The Historical Aspect of Evidence Law in India

Introduction:

The word “evidence” is derived from the Latin term “evidentia” meaning “to show clearly”, “to ascertain” or “to prove”. Thus, evidence is something that goes on to prove or disprove the existence or non- existence of certain alleged facts. In the administration of justice, the party who claims the existence of a certain fact has an obligation to prove its existence and the party claiming its non existence has to disprove it or that it does not exist. Simply put, evidence is the means of satisfying the court of the truth or otherwise of disputed facts between parties in a judicial proceeding. However, all the facts traditionally considered as evidence may not be “evidence” in the eye of law. 

What is Law of Evidence?

Usually, what facts shall be allowed to be proved and the manner of their proof is determined by the “law of evidence”, which is a body of rules and standards by which the facts are admitted in a court of law for resolving disputes between parties.  According to Sir James Stephen:

All law may be divided into Substantive Law, by which rights, duties, and liabilities are defined, and the Law of Procedure, by which the Substantive Law is applied to particular cases. The Law of evidence is that part of the Law of Procedure which, with a view to ascertain individual rights and liabilities in particular cases, decides:

1). What facts may, and what may not be proved in such case;

2).What sort of evidence must be given of a fact which may be proved:

3). By whom and in what manner the evidence must be produced by which any fact is to be proved.

The law of evidence not only determines whether a given piece of information is admissible or not, but also :

a) as to what shall happen if a party fails to adduce any evidence on a given issue. 

b)How much evidence if any, must be presented by a party to make a court rule in its favour? 

c) What is role of a judge in the process of evaluating the evidence?

d)Do the judges have a discretion in accepting or rejecting a piece of evidence sought to be introduced by a party to the dispute?

Thus, the law of evidence is the body of a legal rules that, inter alia, governs:

1) What facts need to be produced and proved before the court to enable it to make a decision?

2) Which of the parties have an obligation to prove a fact?

3) What is the required standard of proof to win the case?

Therefore, it can be said that the admissibility, credibility, weight of evidence and allied procedural matters are concerns of the law of evidence.

The main principles which underlie the law of evidence are—

(1) evidence must be confined to the matter in issue;

(2) hearsay evidence must not be admitted; and

(3) best evidence must be given in all cases.

Law of Evidence is “Lex Fori”:

Rules with the respect of law of evidence are very necessary. They play an important part in the course of trial, whether of a civil or a criminal case. Since it deals with the procedure, it is part of the adjective law, in contrast to substantive law which deals with rights and liabilities i.e. under what conditions a certain right exists in a certain person: under what conditions is a person subject to specific liability. The law of evidence, however, is a part of the law of procedure, i.e. the procedure which a court has to follow. This is expressed by saying that it is the law of forum (or court) or the lex fori.  This is purely a matter of convenience.  Even if a fact to be proved in an Indian court is one that occurred in another country , it shall be proved in accordance with the Indian law of evidence i.e. Indian Evidence Act, 1872. 

Indian Evidence Act governs all judicial proceedings in or before any court (including all judges and magistrates, and all persons, except arbitrators who are legally authorized to take evidence) where there is an obligation to take evidence from both sides, to hear both sides and formulate a judgment by the use of discretion.

Now in the process to trace the genesis of Law of evidence in India, we will have to look at three different periods:

1) Ancient Hindu Period

2) The Muslim Period

3) The Modern Period.

(1) Hindu Period.-

There is ample material on the law of evidence in Hindu Dharmashastras. The object of the trial was to find out truth from the false in the same way as a surgeon by his tools takes out an iron arrow from the body. Dharmashastras recognized four types of evidence-(1) Lekhya, i.e. document, (2) Sakshi i.e., oral evidence, (3) Bhukti or Bhog, i.e., use in other words possession, and (4) Divya i.e., Divine tests or ordeals.

(1) Lekhya (Document).-Lekhya evidence was of three types-

(i) Rajya Sakshayak.-It was a document written in the court by the clerk of the King. It was like a registered document.

(ii) Sakhshyak.-lt was a document written by the private person and attested by the witnesses.

(ii) Asakhshyak.-It was a document written by the parties themselves by their own hands.

Lekhya Sakhsya was preferred to Sakshi, i.e. oral evidence. Latter on Dharmashastris keeping in view, the defects of Lekhya Sakshya made provisions for the removal of such defects. For example, it was provided that a document written by a rogue or its attestation by a wicked person would vitiate it. In the same way, the documents written by the women, children, dependants or by afraid persons would not be lawful. According to Vardachariyar, there is description of notorial system also in Dharmashastras. There is detailed classification of documents in public and private, ancient and modem India and direction for comparative appreciation of legal documents and the method to prove them. The original document was of great weight. According to Narada, Vishnu Dharmashastra,2 and Katyayan,3 that Lekhya-Praman (documentaryevidence) is treated as proved which is written conforming with the rules,beyond doubt and meaningful. Normally, the attestation of two witnesses was required the attestation by more than two witnesses.

(ii) Sakshi (Oral evidt:nce).-The rules of Sakshi or oral evidence were  quite different in civil and criminal matters. The capacity of witnesses was regulated by the rules made like other ancient laws. The strict rules of capacity of witnesses were relaxed in penal matters probably due to reason that the crimes could be committed in forests or lonely places where only the persons present could see the incidents whatever their eligibilities. The statements of witnesses were taken by the Commissions also. Nyayadhish (judges) put questions to the witnesses and while answering the questions put by them watched their demeanour and took the decisions on their credibility. TheCourts’ behaviour with the witnesses was quite meek. The respectful behaviour with the witnesses inspired non-partisan persons to come and testify before the Courts.

(iii) Bhukti or Bhog (Use).-The main economy in ancient India, was agriculture. The disputes relating to Bhukti i.e., the possession of the land were in plenty. The law relating to possession was well settled. There were two kinds of bhukti, Bhukti-Sagma (with right) and Anaganza Agam means Udgam (origin) the root of the ownership or the basis of the right, e.g., whether the property was purchased or obtained in gift or inherited. The Agam and prescription i.e., the use of the property give weight to each other. According to Narada, the man who proves only the use of the property without Agam i.e., if the property is Anagama but under use, the King should punish him as a thief even if he has used the property for 100 years. The emphasis has been put by some on the prescription i.e., the use of the property while others have put emphasis on Agam. Aprask (P. 631-632), Kulluk and Raghunandan have said that the use of the property for 20 years damages the ownership i.e., the ownership ends.

According to Mitakshara, which is accepted by Vyavaharmayukh and Mitramishra, the use of the property does not damage the ownership but the consequence. If the owner of the property sees another using his property for twenty years and thereafter disputes it, he will get his property but not the profits. Some authors have prescribed very brief period of time of bhukti i.e., the use of the property in which case the ownership of the movable and immovable property may end. The explanation has been given that the owner should take back his property very soon unless there are potent reasons for it.

(iv) Divya (Divine tests or Ordeals).-Where the evidence given by a man does not lead to decision, Divya i.e., divine tests (ordeal) help to reach the decision. Such tests were prevalent in ancient India where the appeal was to super natural power to prove guilt or innocence. If a man entered the burning fire or into deep water and came out without any harm, he was innocent in the eye of law or his case stood proved. Similarly, if a man swallowing the poison did not die, he stood innocent.There were other forms of Divya holding red hot iron and Tula (Balance). Gradually Divya was limited to extra-ordinary cases only where the common type of evidence was not available.

In small pecuniary disputes, ‘Kosh’ Divya was recognized. According to Yajnavalkya (2/22), Narada (2/29, 4/239), Brahaspati, Katyayan and Pitamah Divya should be used only when Manushya Praman i.e., Sakshi, Lekhya, Bhog or Paristhitijanya Praman (circumstantial evidence) are not available. Different types of Divya were also -prescribed for different Varnas. Brahmina was exempt from vish Divya (ordeal by polsonj.!)

Hindu system of evidence had advanced much in course of time and the .

modern concepts of evidence were incorporated in them. For example, it was

well-settled that in case of doubt, the truth was not established.

(2) Muslim period.-

ln the Muslim period, the rules of evidence were well developed. The evidence was of two types-Oral and documentary. The oral evidence was further divisible into direct and hearsay evidence. It appears that oral evidence was preferred to documentary evidence. 

Kinds of evidence 

According to the Hanafi law, evidence is, {a) Towatur or fully corrobo- rating evidence; {b) Ehad or testimony of a single individual; and (c) Iqrar , meaning admissions or confessions. Such evidence could be adduced through witnesses or documents and reliance could also be placed on circumstantial evidence. Trial by ordeal was unknown to strict Islamic law. Hearsay evidence was not altogether excluded.

Demeanour of witnesses.-The demeanour of the parties and witnesses were also taken into account. A Hindu scribe filed a suit against a Muslim soldier for enticing away his wife. The wife denied that the complainant was her husband. The Emperor, Shahajahan who was trying the case was not satisfied with her demeanour who stood as a witness. The Emperor directed that woman to fill up the ink in the inkpot of the Court. The woman did it efficiently. Upon this, the Emperor drew the conclusion that the woman was the wife of Hindu scribe and gave decree in his favour.

Examination of witnesses.-The witnesses were examined and crossexamined separately and far from other witnesses so that the latter could not hear the former. These days this system has been adopted by the Courts from the common Jaw courts. Leading questions were permitted. The persons not considered as competent witnesses were-near relatives, partners etc. Drunkard, children, persons of unsound mind, the blind persons (where the question involved was of witnessing the incident) were not qualified to testify.

Oral evidence to be direct 

Direct evidence was however preferred to hearsay evidence. For conviction of theft and adultery the evidence had to be very convincing, probably because of the punishments involved. The punishment for theft was cutting off of the guilty person’s hand and for adultery, the punishment was stoning to death. Gibbon39 describes the origin of the strict rule of evidence in the case of adultery as follows :

 Ayesha was doubtless a virgin, since Mohammed consum- mated his nuptials (such is the premature ripeness of the climate) when she was only nine years of age. The youth, the beauty, and the spirit of Ayesha gave her a superior ascendant : she was beloved and trusted by the Prophet; and after his death, the daughter of Abubekar was long revered as the mother of the faithful. Her behaviour had been ambiguous and indiscreet: in a nocturnal march she was accidentally left behind, and in the morning Ayesha returned to the camp with a man. The temper of Mohammed was inclined to jealousy; but a divine revelation assured him of her innocence : he chastised her accusers, and published a law of domestic peace, that no woman should be condemned unless four male witnesses had seen her in the act of adultery.

Circumstantial evidence.-Circumstantial evidence was accepted

without any hitch. For example, if a man in fear and anxiety comes out of a

deserted house with a blood-stained dagger and a dead man with severed head

is found inside that house, the inference can be drawn from these facts that he

has murdered the man found dead in that house. In a criminal case, on

difference of opinion amongst the witnesses, the benefit of doubt was given to

the accused person. The evidence was also taken by issuing Commission. The

witnesses were administered oath-Hindus of Go Mata, Muslims of Khoda and

Christians of Bible.

Non-Muslims, especially Hindus, were not subjected to Islamic law. Their affairs were regulated according to the principles of their own religion especially in matters of inheritance, marriage etc ., that is, in matters which we would now refer to as subject to the personal laws. The Hindu law was applied to Hindus with the aid of pundits or shastris who were attached to the courts. But the Islamic criminal law applied to all equally. Representation of clients was permitted and the persons so represent- ing were known as vakils. They were expected to act in good faith. They had a right of audience in the court, were paid by the state and could be elevated to the bench as Kazis..

Relevancy 

No theory of or insistence on relevancy is mentioned, but since it was obligatory on the party to produce evidence in support of his case , it may be presumed that he was required only to produce relevant evidence. 

Modern Period 

As Sarkar points out, “before the introduction of the Indian Evidence Act, 1872, there was no complete or systematic enactment on the subject”. Within the Presidency towns of Calcutta, Bombay and Madras, the Courts established by the Royal Charter followed the English rules of Evidence. Outside the Presidency towns, the law was vague and indefinite as there were no fixed rules of evidence. The mofussil Courts were held to be not bound to apply the English rules of evidence and they were also held to be not bound by the rules of evidence contained in the customary Hindu Law and Muslim Law. Consequently, there was a certain amount of caprice and arbitrariness in the administration of the law of evidence and perhaps this anarchy paved the way for the eventual enactment of the Indian Evidence Act based on the English rules of evidence. Though some attempts have been made between 1835 and 1853 through legislative action to codify and reform the existing rules of evidence, the attempts proved to be fragmentary and desultory. Though the Act of 1855 proved to be “the most important and contained valuable provisions”, this Act also “did not contain a complete body of rules”.

1) Introduction of English Law.-The English common law and statutory law as prevalent prior to 1726 was introduced in India by the Charter of 1726 in Presidency Towns of Calcutta, Madras and Bombay. The Courts established by the Royal Charter, in these Presidency towns administered English law. In the Mofussil area i.e., the area following outside the Presidency Towns, there was no definite law of evidence. The rules of evidence were governed by the customs and usages. The courts in the Mofussil area for guidance sometimes referred to directions and Regulations made between 1793 to 1834. The law of evidence was not satisfactory here.

(2) Enactment of the Indian Evidence Act, 1872.-The first Act relating to the Evidence was of 1835 enacted by the Governor-General. A series of Acts were passed between the period of 1835 to 1855 to incorporate the reforms as suggested by Bentham.

 Act 10 of 1855, Act 8 of 1859, Act 25 of 1861 and Act 15 of 1869 were also ‘passed but the Courts in India while administering justice followed the English law of evidence although only a part of English law was applicable in Mofussil area and Presidency Towns both. Thus, the position was quite unsatisfactory and regarding it the Judges also made comments in their judgments.

Maine Commission.- What proved to be the curtain raiser for the Indian Evidence Act of 1872 was the Draft Bill on Evidence of 1868 prepared by the Indian Law Commissioners under the Chairmanship of Mr Henry James Sumner Maine (later Sir Henry Maine). Mr Maine described the existing state of judicial anarchy in the administration of law of evidence as “eminently unsatisfactory” but also found that the wholesale importation of the English rules of evidence as unsuited to Indian conditions. However, the Draft Bill did not pass even the stage of the first reading in the Parliament and it was subjected to criticism on the grounds that the Bill was not sufficiently simple for its application by the Indian judges who were not well versed in English rules of evidence, and that the Bill was incomplete in certain respects.

Stephen Commission.-In 1871, the Stephen Commission was constituted for drafting of the Law of Evidence. Stephen presented the draft of the Bill to the Council on 31st March, 1871 which was sent to the local Governments, High Courts and Advocates for their consideration. After receiving their views, the Bill was referred to the Select Committee which made the appropriate amendments and then presented to the Council which enacted it as The Indian Evidence Act, 1872 (Act No. 1 of 1872). Speaking of Sir Stephen’s lasting contribution to the Indian Evidence Act, 1872 John Heydon observes:

Although it has been amended it has not been changed substantially. It was examined twice with great thoroughness by the Law Commission of India, in 1977

 and 2003 but no proposal for  radical amendment was made then, or at any other time. It was enacted only for British India (and thus for places like Aden which were technically part of British India). But it also went into force in numerous other parts of India (in some of the princely states) before 1947. After independence the Act was extended to, and remains in force in, the whole of the Republic of India (save for Jammu and Kashmir). It is also in force in Pakistan, Bangladesh, Sri Lanka and Burma. It has heavily influenced the laws of Malaysia, Singapore, Brunei, Kenya, Nigeria, Uganda, Zanzibar, parts of the West Indies and even parts of Australia–the Christmas and Cocos (Keeling) Islands. T O Elias said it ‘is a model of its kind’ 

Though the Indian Evidence Act, 1872 purports to “consolidate, define and amend the Law of Evidence”,  the Act does not exhaust the whole corpus of the rules of

evidence.  For instance the Cr PC 1973 contains an exclusionary rule of evidence in section 162 under which the statements made by any person to the police during the course of investigation are barred from being used in a Court of law. Similarly, section 306 and 307 of Cr PC permit the magistrate to tender pardon to an accomplice for getting true and full disclosure of facts. This is obviously an exception to section 24 of the Evidence Act which bars confessions made under inducement, threat or promise proceeding from a person in authority. In fact the Cr PC contains a whole Chapter XXIII on “Evidence in Inquiries and Trials”. Similarly, the CPC also contains provisions on “Admissions” (O XII), on “Hearing of the Suit and Examination of Witnesses” (O XVIII) and other provisions which directly relate to evidence. It must, however, be stated that though certain rules relating to evidence may be found in enactments other than the Evidence Act, 27 the Evidence Act is a complete code in itself and no judge can override the mandatory provisions of the Evidence Act and admit evidence not admissible under the statute.

Since its enactment, the Act has undergone several amendments. The latest amendment was made by the Criminal Law (Amendment) Act, 2013 (Act No. 13 of 2013). 

Scheme of the Indian Evidence Act, 1872

There are 3 Parts and 11 Chapters, the parts are as follows:

• Part I named Relevancy of Facts consisting of Chapter I and II
• Part II named On Proof consisting Chapters III and VI
• Part III named Production and Effect of Evidence consisting of Chapters VII to XI.

The Chapters are as follows:

Chapter I: PRELIMINARY  (Sections 1-4)

Chapter II: OF THE RELEVANCY OF FACTS (Sections 5-55)

CHAPTER III.—FACTS WHICH NEED NOT BE PROVED (Sections  56-58)

CHAPTER IV.—OF ORAL EVIDENCE (Sections 59-60)

CHAPTER V.— OF DOCUMENTARY EVIDENCE (Sections 61-90A)

CHAPTER VI.–– OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE (Sections 91-100)

CHAPTER VII.–– OF THE BURDEN OF PROOF (Sections 101-114A)

CHAPTER VIII.––ESTOPPEL (Sedctions 115-117)

CHAPTER IX.—OF WITNESSES (Sections 118-134)

CHAPTER X.––OF THE EXAMINATION OF WITNESSES (Sections 135-166)

CHAPTER XI.–– OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE (Section 167).

The provisions  which were introduced to the Indian Evidence Act,1872 through the said amendment  were :

1. A new section 53 A was inserted by the Criminal Law Amendment Act 2013 which deals with ‘evidence of character or previous sexual experience’. As per this section, in a prosecution for an offence of rape, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the question of such consent or quality of consent.
2. The existing section 114A was substituted by a new one stating that in a prosecution for rape under clauses (a) to (n) of section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
3. The proviso to section 146 was substituted with the existing one to state that, in a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.

Conclusion:

The Indian Evidence Act, 1872 is based on the English law of evidence but there are some provisions, in the Act according to the situations and need in India. Though defects have been pointed out in the Act form time to time yet the drafting of the Act is the model of the best draftsmanship skill. It may be relevant to mention that most of the States had already adopted this Act much prior to the Constitution of India came into force. It is a matter of importance that the Law of Evidence which came to be enforced in 1872 still continues to be applicable with least changes being made during the long period of more than 140 years. However, with the advancement of technological developments, the modes of committing crimes are also evolving. To contain the evolving aspect of crime, some changes in the Evidence Act are warranted and the Parliament is fairly cognizant of it. These changes which may be brought in the future will complete the evidence law and help in the administration of justice.

References:

Batuk Lal, The Law of Evidence (Central Law Agency; 2020th edition (1 November 2020); Central Law Agency)

Ratanlal and Dheerajlal, law of Evidence (Lexis Nexis; Twenty Second 2017 edition (9 May 2017))

VP Sarthi, law of Evidence ( Eastern Book Company (1 January 2021))

VP Sarthi, Historical Background of the Indian Evidence Act,, 1872 ,(Journal of the Indian Law Institute , 1972, pp. 1-25).

https://thefactfactor.com/facts/law/indian-evidence-act/introduction-to-the-indian-evidence-act-1872/16139/ (Last visited on November 24, 2021)

https://www.lawctopus.com/academike/concept-historical-background-evidence/ (Last visited on November 24, 2021)