Evidence Law Made Easy

• 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

Evidence Law Decoded   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   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

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.)

• Summary Of  The Indian Evidence Act, 1872
• Relevancy Of Facts (Ss 1-55)
• Proof Of Facts (Ss 56-100)