This article has been written by Anurima Malakar from Guru Gobind Singh Indraprastha University

Table of Contents

INTRODUCTION:

Evidence, in legal contexts, refers to information demonstrating the truth of a statement. In English Law, it includes spoken words and exhibits presented by witnesses, signifying proven facts. Indian law emphasizes evidence as instruments revealing relevant facts to convince the court. This involves witness statements, documents, confessions, but excludes certain elements like party statements not given as witnesses. While evidence and what is “proved” are interlinked, courts also consider demeanour, local investigations, and objects. Confessions under Section 164^[1] are not ordinary evidence. Courts possess wide powers to evaluate evidence and circumstances, determining the accused’s guilt or innocence.

Proof

The Cambridge Dictionary defines “proof” as “a fact or piece of information that shows that something exists or is true”. Merriam-Webster defines it as “the cogency of evidence that compels acceptance by the mind of a truth or a fact”.^[2]

The standard of proof, as per Merriam Webster, denotes the level of certainty and evidence required to establish proof in legal proceedings, be they criminal or civil. It places an obligation on the party responsible for proving the case. Different circumstances call for different standards of proof, namely:

Proof beyond a reasonable doubt:

“Proof beyond a reasonable doubt is a crucial standard in criminal prosecutions, mandated by the Fifth Amendment’s due process clause in the U.S. Constitution. It is the prosecutor’s duty to convincingly prove each element of the crime to the jury, leaving no room for doubt. This standard involves the Burden of Production, where the prosecutor must present ample evidence, and the Burden of Persuasion, requiring them to convince the jury of each element’s truth without any reasonable doubt.

Preponderance of the evidence:

In civil cases, the burden of proof rests on the plaintiff to demonstrate the existence of all elements in the case. During judgment, the jury considers all presented evidence, and the bench assesses the credibility and weight of each piece of evidence to establish the facts.

In criminal cases, the jury doesn’t have to be fully convinced of either the plaintiff or defendant’s side; they determine which side’s version is more probable based on the presented evidence.

Clear and convincing evidence:

A standard of proof, requires that the evidence presented in a trial is significantly more likely to be true than not.

Evidence

“Evidence” is defined by the Cambridge Dictionary as “one or more reasons for believing that something is or is not true”.

Merriam-Webster defines it as “something that furnishes proof”.^[3]

The term “evidence” originates from the Latin word “evidentia,” which conveys the idea of being ‘obvious to the eye or mind’.

Definition of evidence in the Indian Evidence Act,1872^[4]

According to Section 3^[5] of the Evidence Act 1872, evidence means and includes:

All such statements which the court allows or needs to be presented before it by the witnesses in connection to matters of fact under inquiry. These statements are termed as oral evidence.
All such documents including any electronics record, presented before the court for inspection. These documents are termed as documentary evidence

Important Terms:

Definition of “Proved”:

A fact is considered proved when, upon assessing the available information, the Court either believes in its existence or deems its existence so likely that a reasonable person should, given the circumstances of the case, act as though it exists.

Definition of “Disproved”:

A fact is considered disproved when, after examining the evidence, the Court either believes it does not exist or views its non-existence as highly probable. In such cases, a prudent individual, considering the specific circumstances, should act on the assumption that the fact does not exist.

Definition of “Not Proved”:

A fact is deemed not proved when there is neither sufficient evidence to establish its existence nor evidence compelling enough to negate it.

TYPES OF EVIDENCE:

Documentary Evidence:

As per Section 3 of the Indian Evidence Act, 1872, it refers to documents submitted in court for examination.

Oral Evidence: As per Section 60^[6], “Oral evidence must be direct.” It Involves statements from witnesses affirming the truth and validity of facts.
Primary Evidence: As per Section 62^[7], “Primary evidence means the document itself produced for the inspection of the Court.” In other word a crucial proof providing a direct disclosure or hint regarding a disputed fact.

Example: Original documents that are directly presented for court inspection.

Secondary Evidence: As per Section 63^[8], Secondary evidence means and includes—

Certified copies,
Copies made from the original by mechanical processes,
Copies made from or compared with the original;
Counterparts of documents as against the parties who did not execute them;
Oral accounts of the contents of a document-who has himself seen it.

Such evidence presented in the absence of primary evidence.

Example: Includes photocopies, tape-recordings; not illegal if primary evidence is unavailable.

Case: Sobha Rani v. Ravikumar (1999)^[9]

an application was made to the court seeking permission to present secondary evidence due to the loss of the original document. The court granted the application, acknowledging the circumstances surrounding the loss of the document. The Punjab and Haryana High Court, in its decision, clarified that permitting the introduction of secondary evidence in this situation was not against the law.

Case: K.S. Mohan v. Sandhya Mohan (1993)^[10]

the Madras High Court ruled that a tape-recorded statement was deemed admissible as secondary evidence.

Case: Surinder Kaur v. Mehal Singh (2013)^[11]

Significant guidelines were laid out concerning the admissibility of photocopies as secondary evidence. The court emphasized that a photocopy of the original document could only be presented when the original is unavailable. When introducing a photostat copy as evidence, the burden lies on the party presenting it to establish that the original document existed, and either it is lost or in the possession of the opposing party who neglected to produce it. Mere assertions are insufficient; substantive proof is required.

The genuineness of the copy must be established on oath by the person responsible for making the copy or someone able to vouch for its accuracy, satisfying the court’s scrutiny. These guidelines offer a structured framework for the admission and verification of photocopies as secondary evidence, ensuring transparency and reliability in legal proceedings.

Direct Evidence: Witness statements directly confirming their presence at and observation of a crime. It constitutes a significant part of trial proceedings.
Circumstantial Evidence or Indirect Evidence: Evidence built on interconnected facts when the crime is not witnessed directly. It establishes facts through a series of related circumstances, forming a chain of inference.

BASIC DIFFRENCE:

Evidence:

Definition: Information or material indicating the potential truth of a fact.
Nature: Suggestive and diverse, with types tailored to specific situations.
Characteristics: Raw pieces of information subject to approval or disapproval.

Proof:

Definition: A comprehensive culmination of evidence establishing a fact as true.
Nature: Conclusive and firm, providing a decisive confirmation of truth.
Standards: Involves meeting three primary standards set by the prosecutor for conviction.
Role: Goes beyond individual pieces of evidence, offering a solid confirmation after careful scrutiny.

While evidence and proof share similarities, they are distinct concepts with nuanced differences. Evidence refers to information or material suggesting the potential truth of a fact, offering a diverse range of raw pieces subject to approval or disapproval.

On the other hand, proof is a more comprehensive term, representing the conclusive and firm confirmation of a fact’s truth. It goes beyond individual pieces of evidence, requiring adherence to three primary standards set by the prosecutor for conviction. In essence, while the terms are often used interchangeably, proof encompasses a higher level of certainty and thorough scrutiny, distinguishing it from the broader category of evidence.

HISTORICAL BACKGROUND OF EMERGENCE OF LAW OF EVIDENCE

The origins of evidence law in India can be traced back to the Vedic period, where its importance in ascertaining the truth was acknowledged by Dharma Shastra. During the rule of the Muslim law, evidence played a crucial role in determining the facts of judicial proceedings. Eventually, the ancient practices gave way to the Indian Evidence Act of 1872, which is rooted in modern English evidence law. This transition, spanning several centuries, reflects the evolution from historical practices to a more organized and codified legal framework in India.

Ancient Hindu Period:

In ancient India, the concept of Dharma, encompassing complete rules of right conduct, held paramount importance. The legal sources included Vedas, Smriti, and Achara (customary law). Manu, an early Hindu lawgiver, played a significant role. The subcontinent comprised independent territories, each led by a ruler tasked with upholding Dharma.

Legal Structure:

Administration: Divided into units from villages to provinces, emphasizing Dharma.
Judicial System: No single judge or lawyer; a prevalent jury system. The king consulted Brahmins on justice matters.
Dharma Sutras: Authority for legal matters.

Legal Proceedings:

Representation: Complaints submitted for civil and criminal matters.
Process: Complaints and replies in writing; defendant called after due consideration.
Burden of Proof: Determined by the jury; the party chosen bore the burden and presented evidence.

Proof in Hindu Law:

Two Kinds: Divine (ordeals) and Human.
Divine Proof: Ordeals for matters of divine nature.
Human Proof: Involving witnesses, documents, and inferences from circumstances.

In essence, truth held integral importance, and legal proceedings involved a structured process with distinct forms of proof under the guidance of Dharma Sutras.

Main Features of Hindu or Ancient Evidence Law:

Direct and First-Hand Oral Evidence: Requirement for oral evidence to be direct and firsthand, emphasizing personal experience over hearsay.
Significance of Circumstantial Evidence: Stress on circumstantial evidence in both criminal and civil cases, with a strong emphasis on careful inquiry and investigation to minimize errors.
Limited Role of Torture: Permission for torture, but it was not considered a sole element of evidence, highlighting a more cautious approach.
Burden of Proof: Various circumstances determined the placement of the burden of proof.

For instance, if the defendant admitted the commission, there was no need for an additional burden of proof.

Classification of Witnesses: Division of witnesses based on those involved in the commission and those who were not, recognizing different kinds of persons in legal proceedings.

In essence, the ancient Hindu evidence law reflected a thoughtful and nuanced legal system. It valued direct oral testimony, appreciated the significance of circumstantial evidence with an emphasis on thorough investigation, recognized the limitations of torture, adapted the burden of proof based on circumstances, and categorized witnesses to acknowledge their varying levels of involvement in the act.Top of Form

Medieval Period – Muslim Rule:

During the medieval period under Muslim rule in India, which was well-established by the end of the Mameluke dynasty, the administration of justice was predominantly overseen by Muslim rulers. Influenced by Iranian and Byzantine philosophies, Islamic principles remained integral in the administration of justice. In contrast to Hindu laws, the king held supreme authority in Muslim India.

Ziauddin Barani, a key figure in the Delhi Sultanate, emphasized despotism, asserting the king’s paramount role. Barani, an authority in Muslim administration, advocated for ‘adl,’ a concept of justice based on equal treatment, extending its authority even to non-Muslim subjects.

While non-Muslims were not subject to Muslim law in civil matters, criminal law applied equally to all. With the arrival of the Mughals, the administrative setup of the Delhi Sultanate was largely adopted by subsequent rulers.

Abul Fazl, a significant figure in Mughal administration, emphasized the king’s supreme authority, as evident in the concept of ‘farr-i-izadi.’ However, the role of the Qazi (judge) gained prominence, supported by a body of Ulemas (Muslim jurists). Various offices, such as Qazi, Mufti, Mir Adl, Muhtasid, were established solely for delivering justice. Abul Fazl attributed great importance to justice, considering the king as its supreme provider. This period reflected a blend of Islamic principles and administrative practices, where justice played a pivotal role in governance.

Judicial Setting and Evidence Features in the Mughal Period:

Legal Representatives (Wakils):

Representatives, akin to modern-day wakils, were permitted to argue on behalf of clients. State-funded, these representatives could be promoted to the position of Kazis.

Bifurcation of Civil and Criminal Proceedings: Civil cases involved a structured process where the plaintiff filed a claim, and evidence was presented by both parties.

In criminal matters, the Kazi would summon the accused, hear the complainant and witnesses, and pronounce judgment in open court. Extra-judicial inquiries were also conducted based on complaints.

Hanafi Law and Types of Evidence:

According to prevalent Hanafi law, evidence could be Tawatur (fully corroborating), Ehad (testimony of one), or Iqrar (confession). Trial by ordeal, not known in Islamic law.

Direct Oral Evidence: Oral evidence was mandated to be direct, emphasizing firsthand accounts.
Hearsay Evidence under Scrutiny: Hearsay evidence was considered but subject to strict scrutiny and conditions.

For instance, proving adultery in Muslim law required four witnesses.

Relevance of Evidence: Evidence presented in court was expected to support one’s cause, implying its relevance.
Flexible Burden of Proof: No rigid rule governed the onus of the burden of proof.

The Kazi possessed complete authority to determine and assign the burden as needed.

In essence, the Mughal period’s judicial system allowed legal representatives, maintained a distinction between civil and criminal proceedings, adhered to Hanafi law principles, avoided trial by ordeal, prioritized direct oral evidence, scrutinized hearsay evidence, emphasized relevance, and granted flexibility in determining the burden of proof.

Modern Period- Indian Evidence Act, 1872:

The genesis of the Indian Evidence Act, 1872, a pivotal legislation shaping the landscape of Indian jurisprudence, can be traced to the shoulders of Sir James Fitz James Stephens. Tasked with the responsibility of drafting a comprehensive code for Evidence Law, Stephens embarked on a meticulous journey that culminated in the enactment of the landmark legislation.

In 1868, recognizing the need for a structured and uniform code governing evidence, a commission was established to frame a draft code. Stephens, a distinguished legal scholar, led this monumental undertaking. The initial draft comprised 39 sections, yet it faced criticism, being deemed irrelevant to the Indian context, leading to its eventual dismissal.

Undeterred by this setback, Stephens revisited the drafting process in 1870. He presented a new bill containing 163 sections, diverging from the previous draft’s form. This revised bill, meticulously recast by Stephens, ultimately materialized into the Indian Evidence Act, 1872. The Act, boasting 11 chapters and 167 sections, came into force on September 1, 1872, and applied uniformly across the vast expanse of India.

The Indian Evidence Act, 1872, represents a cornerstone of India’s legal framework, meticulously structured to govern the admissibility, examination, and treatment of evidence in judicial proceedings. Its enduring significance lies in its ability to provide a standardized and comprehensive set of rules, ensuring fairness and justice in legal processes.

A fundamental aspect of the Act is its systematic classification of evidence. It delineates various types, including oral, documentary, and circumstantial evidence, establishing conditions for their admissibility. This categorization ensures a rigorous standard for presenting proof in legal proceedings, fostering transparency and reliability.

The Act provides a detailed framework for the examination of witnesses, encompassing both direct and cross-examination. It emphasizes fairness and impartiality, essential for unraveling the truth. The competence and compellability of witnesses are carefully addressed, further enhancing the reliability of evidence presented in court.

Privileged communications find recognition under the Act, acknowledging the confidentiality of certain exchanges such as those between legal advisors and clients or spouses. This safeguarding of privileged information aligns with principles of ethical practice and legal norms.

Moreover, the Act recognizes the value of expert opinions in legal proceedings. It establishes guidelines for the admissibility of expert evidence, allowing professionals with specialized knowledge to contribute insights to the court, enriching the overall quality of decision-making.

The Indian Evidence Act, 1872, has not remained static over the years. Amendments have been introduced to ensure its adaptability to evolving legal landscapes and societal needs. These revisions have fortified the Act, maintaining its relevance and effectiveness in the dynamic Indian legal system.

CONCLUSION:

The evolution of the Law of Evidence in India spans centuries, with roots in the Early Vedic civilizations and further development during the Middle Ages under Muslim rule. However, it took a formal shape as a comprehensive code during British colonial rule in 1872, thanks to the efforts of Sir James Fitzjames. The Indian Evidence Act aimed to tailor the English law of evidence to suit the specific circumstances of India.

According to Sir James Fitzjames, the Law of Evidence comprises two essential elements. Firstly, it draws from an extensive number of cases decided over a span of 100-150 years. Secondly, it incorporates Acts and Regulations passed by the parliament in the three to four decades leading up to the enactment of the Indian Evidence Act in 1872.

In comparing the historical evidence laws, Hindu law was characterized by its intricate nature, offering detailed provisions. On the other hand, evidence law under Muslim rule was more concrete, devoid of superstitions and discriminatory injunctions. During the British period, the Evidence law underwent progressive regulations, influenced by the English legal system. Interestingly, at times, it surpassed its English inspiration in terms of progressiveness.

In essence, the Indian Evidence Act is a product of a gradual and extensive legal evolution, amalgamating the rich historical foundations of Hindu and Muslim evidence laws with progressive modifications influenced by British legal principles.