The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law. For example, the law of estoppel can defeat a man’ right. Law of Evidence is one of the fundamental subjects of law and therefore we must study it in detail and depth.
The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’
OBJECT OF THE STUDY OF THE LAW OF EVIDENCE
Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities.
Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed.
TYPES OF EVIDENCE
Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums.
If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts ma be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence plays a very important role.
Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved.
In Indian Evidence Act, we will study who is a competent witness, on whom does the burden of proof lie and other things.
ARE SUCH RULES NECESSARY
The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remain intact and strong.
It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence.
INTRODUCTION TO IEA
The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.
The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute.
Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.
THE LAW OF EVIDENCE IS THE LEX FORI
Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of evidence will Sri Lankan Law of Evidence.
THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS
A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.
BASIC PRINCIPLES OF EVIDENCE
The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and The exceptions to the above principles, the exact application has been set out very clearly in the Act:
Evidence must be confined to the matters in issue.
Hearsay evidence may not be admitted.
The best evidence must be given in all cases.
All facts having rational probative value are admissible in evidence,unless excluded by a positive rule of paramount importance.
HISTORY OF THE LAW OF EVIDENCE
Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.
Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence:
Lekhya (Documentary Evidence)
Sakshi ( Witnesses)
Bukhti ( Possession)
Though the concept of justice in Islam is that it is a divine disposition, the Mohammedan law givers have dealt with evidence in various forms as indicated by the table below:
1. Oral that may be Direct Hearsay
2. Documentary (Less preferred than oral)
Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could go scot-free.
It was believed that if a guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused.
The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law.
Confessions due to torture are not unknown today either.
THE MODERN LAW AS IT PREVAILS
The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.
In 1856, Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts.