Evidence Law Made Easy

LAW LIBRARY

  • Evidence before Statutory Commission
  • Evidence before the Quasi-Judicial Body
  • Evidence under Departmental Inquiry
  • Recording Evidence by the Civil Court
  • Recording evidence By the Criminal Court
 3   Evidence Law Decoded
 BULLET 2 Indian Evidence Act 1872
 SECTIONS TEXTS
Preamble
1. Short title, extent and Commencement
2. Repeal of enactments
3. Interpretation clause
4. “May presume”
5. Evidence may be given of facts in issue and relevant facts
6. Relevancy of facts forming part of same transaction
7. Facts which are the occasion, cause or effect of facts in issue
8. Motive, preparation and previous or subsequent conduct
9. Facts necessary to explain or introduce relevant facts
10. Things said or done by conspirator in reference to common design
11. When facts not otherwise relevant become relevant
12. In suits for damages, facts tending to enable Court to determine amount are relevant
13. Facts relevant when right or custom is in question
14. Facts showing existence of state of mind, or of body or bodily feeling
15. Facts bearing on question whether act was accidental or intentional
16. Existence of course of business when relevant
17. Admission defined
18. Admission by party to proceeding or his agent by suitor in representative character
19. Admissions by persons whose position must be proved as against party to suit
20. Admissions by persons expressly referred to by party to suit
21. Proof of admissions against persons making them, and by or on their behalf
22. When oral admissions as to contents of documents are relevant
22-A. When oral admission as to contents of electronic records are relevant
23. Admissions in civil cases, when relevant
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding
25. Confession to police officer not to be proved
26. Confession by accused while in custody of police not to be proved against him
27. How much of information received from accused may be proved
28. Confession made after removal of impression caused by inducement, threat or promise relevant
29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc
30. Consideration of proved confession affecting person making it and others jointly under trial for same offence
31. Admissions not conclusive proof, but may estop
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated
34. Entries in books of account including those maintained in an electronic form] when relevant
35. Relevancy of entry in public record or an electronic record made in performance of duty
36. Relevancy of statements in maps, charts and plans
37. Relevancy of statement as to fact to public nature, contained in certain Acts or notifications
38. Relevancy of statements as to any law contained in law-books
39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers
40. Previous judgments relevant to bar a second suit or trial
41. Relevancy of certain judgments in probate, etc., jurisdiction
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant
44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved
45. Opinions of experts
46. Facts bearing upon opinions of experts
47. Opinion as to handwriting, when relevant
47-A. Opinion as to digital signature when relevant
48. Opinion as to existence of right or custom, when relevan
49. Opinion as to usages, tenets, etc., when relevant
50. Opinion or relationship, when relevant
51. Grounds of opinion, when relevant
52. In civil cases character to prove conduct imputed, irrelevant
53. In criminal cases, previous good character relevant
54. Previous bad character not relevant, except in reply
55. Character as affecting damages
56. Fact judicially noticeable need not be proved
57. Facts of which Court must take judicial notice
58. Facts admitted need not be proved
59. Proof of facts by oral evidence
60. Oral evidence must be direct
61. Proof of contents of documents
62. Primary evidence
63. Secondary evidence
64. Proof of documents by primary evidence
65. Cases in which secondary evidence relating to documents may be given
65-A. Special provisions as to evidence relating to electronic record
65-B. Admissibility of electronic records
66. Rules as to notice to produce
67. Proof of signature and handwriting of person alleged to have signed or written document produced
67-A. Proof as to digital signature
68. Proof of execution of document required by law to be attested
69. Proof where no attesting witness found
70. Admission of execution by party to attested document
71. Proof when attesting witness denies the execution
72. Proof of document not required by law to be attested
73. Comparison of signature, writing or seal with others admitted or proved
73-A. Proof as to verification of digital signature
74. Public documents
75. Private documents
76. Certified copies of public documents
77. Proof of documents by production of certified copies
78. Proof of other official documents
79. Presumption as to genuineness of certified copies
80. Presumption as to documents produced as record of evidence
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
81-A. Presumption as to Gazettes in electronic forms
82. Presumption as to document admissible in England without proof of seal or signature
83. Presumption as to maps or plans made by authority of Government
84. Presumption as to collections of laws and reports of decisions
85. Presumption as to power-of-attorney
85-A. Presumption as to electronic agreements the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records
87. Presumption as to books, maps and charts
88. Presumption as to telegraphic messages
88-A. Presumption as to electronic messages
89. Presumption as to due execution, etc. of documents not produced
90. Presumption as to documents thirty years old
90-A. Presumption as to electronic records five years old
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
92. Exclusion of evidence of oral agreement
93. Exclusion of evidence to explain or amend ambiguous document
94. Exclusion of evidence against application of document to existing facts
95. Evidence as to document unmeaning in reference to existing facts
96. Evidence as to application of language which can apply to one only of several persons
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies
98. Evidence as to meaning of illegible characters, etc
99. Who may give evidence of agreement varying term of document
100. Saving of provisions of Indian Succession Act relating to wills
101. Burden of proof
102. On whom burden of proof lies
103. Burden of proof as to particular fact
104. Burden of proving fact to be proved to make evidence admissible
105. Burden of proving that case of accused comes within exceptions
106. Burden of proving fact especially within knowledge
107. Burden of proving death of person known to have been alive within thirty years
108. Burden of proving that person is alive who has not been heard of for seven years
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent
110. Burden of proof as to ownership
111. Proof of good faith in transactions where one party is in relation of active confidence
111-A. Presumption as to certain offences
112. Birth during marriage, conclusive proof of legitimacy
113. Proof of cession of territory
113-A. Presumption as to abetment of suicide by a married woman
113-B. Presumption as to dowry death
114. Court may presume existence of certain facts
114-A. Presumption as to absence of consent in certain prosecutions for rape
115. Estoppel
116. Estoppel of tenant; and of licensee of person in possession
117. Estoppel of acceptor of bill of exchange, bailee or licensee
118. Who may testify
119. Dumb witnesses
120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial
121. Judges and Magistrates
122. Communications during marriage
123. Evidence as to affairs of State
124. Official communications
125. Information as to commission of offences
126. Professional communications
127. Section 126 to apply to interpreters, etc
128. Privilege not waived by volunteering evidence
129. Confidential communications with legal advisers
130. Production of title-deeds of witness not a party
131. Production of documents or electronic records which another person, having possession, could refuse to produce
132. Witness not excused from answering on ground that answer will criminate
133. Accomplice
134. Number of witnesses
135. Order of production and examination of witnesses
136. Judge to decide as to admissibility of evidence
137. Examination-in-chief
138. Order of examinations
139. Cross-examination of person called to produce a document
140. Witnesses to character
141. Leading questions
142. When they must not be asked
143. When they may be asked
144. Evidence as to matters in writing
145. Cross-examination as to previous statements in writing
146. Questions lawful in cross-examination
147. When witness to be compelled to answer
148. Court to decide when question shall be asked and when witness compelled to answer
149. Question not to be asked without reasonable grounds
150. Procedure of Court in case of question being asked without reasonable grounds
151. Indecent and scandalous questions
152. Questions intended to insult or annoy
153. Exclusion of evidence to contradict answers to questions testing veracity
154. Question by party to his own witness
155. Impeaching credit of witness
156. Question tending to corroborate evidence of relevant fact, admissible
157. Former statements of witness may be proved to corroborate later testimony as to same fact
158. What matters may be proved in connection with proved statement relevant under section 32 or 33
159. Refreshing memory
160. Testimony to facts stated in document mentioned in section 159
161. Right of adverse party as to writing used to refresh memory
162. Production of documents
163. Giving, as evidence, of document called for and produced on notice
164. Using, as evidence, of document production of which was refused on notice
165. Judge’s power to put questions or order production
166. Power of jury or assessors to put questions
167. No new trial for improper admission or rejection of evidence
   SCHEDULE
 BULLET 2 Glossary Indian Evidence Act 
 WHAT IS EVIDENCE?

“Article 48   All materials that prove the facts of a case shall be evidence. Evidence shall include:

  1. Physical evidence;
  2. Documentary evidence;
  3. Testimony of witnesses;
  4. Statements of victims;
  5. Statements and exculpations of criminal suspects or defendants;
  6. Expert opinions;
  7. Records of crime scene investigation, examination, identification and investigative experiments;
  8. Audio-visual materials, and electronic data.

The authenticity of evidence shall be confirmed before it can be admitted as the basis for making a decision on a verdict.”[Criminal Procedure Law of the People’s Republic of China]


Following five  materials are Relevant for the purpose of Evidence and could be proved 

1. Facts connected with the  other facts (ss 6-16)

In Sukhar v. State of U.P., (1999) 9 SCC 507, Supreme court has explained the provisions of Section 6 of the Evidence Act, 1872 observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself.

2. Statements about the Facts(ss 17-39)

3. Decisions about the Facts(ss 40-44 )

4. Opinion on or about the Facts( ss 45-51)

5. The Character of a person concerned or connected with the facts

Due to Judicial notice or  Legal Presumption, few matters are exempted from proof although they may be the subject matter of the above five materials within ss 6-51.

The above facts are called Evidence under section 3 ⇑

Facts could be proved either -

Orally – (Direct viewership)  or

Through some concrete materials, such as

a) by written documents ( Original or Copied or Certified )

b) by electronic/ digital material ( Original  with Certification)

c) any other concrete materials ( the actual material )

by the method of Examination under oath in a court of law.
The Logic adopted in the Evidence Act is:-
  1. Some facts Exist
  2. the existence of the Facts must be proved
  3.  The Facts existed have been proved

A breaking of the above chain resulted in Disprove / not prove / dismissal of the Plaint or Acquittal of the accused.


For indirect evidence to prove a fact, following standard has been adopted by judicial fiction:-

  1. proof beyond reasonable doubt in case of criminal prosecution
  2. the standard of probability for civil prosecution

American law

Extract from – FEDERAL RULES OF EVIDENCE (TITLE 28, UNITED STATES CODE )

Rule 104. Preliminary Questions

(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) RELEVANCE THAT DEPENDS ON A FACT. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT.
The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests;
or
(3) justice so requires.

(d) CROSS-EXAMINING A DEFENDANT IN A CRIMINAL CASE. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) EVIDENCE RELEVANT TO WEIGHT AND CREDIBILITY. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec.1, 2011.)


Rule 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains
on the party who had it originally.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)


Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 402. General Admissibility of Relevant Evidence  Relevant evidence is admissible unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
  Irrelevant evidence is not admissible.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

The court may exclude relevant evidence if its probative value is substantially   outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)


Rule 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.)


STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

DECLARANT. ‘‘Declarant’’ means the person who made the statement.

HEARSAY. ‘‘Hearsay’’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.


Rule 901. Authenticating or Identifying Evidence

(a) IN GENERAL. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) EXAMPLES. The following are examples only—not a complete list—of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged
speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business   and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations.
For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be;
and
(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

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