Preamble – Indian Evidence Act 1872

    Edited by: Vaani Garg


    INTRODUCTION TO INDIAN EVIDENCE ACT 1872


    Evidence law is very important part of both civil and criminal law. Indian Evidence Act was enacted in 1872. It is not governed by substantive or procedural law, but by adjective law, which defines the pleading and procedure by which substantive laws are put into practice. The Act comprises of 167 sections and out of these 1 section was repealed. This Act is used in all judicial proceedings in or before a Court.


    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.’ As per Phipson – Evidence means the testimony whether oral, documentary or real which may be legally received in order to prove or disprove some fact in dispute. Thus, major types of evidence are:
    • Oral Evidence
    • Documentary Evidence
    • Real Evidence


    PREAMBLE


    The bare language of the Act provides the preamble as “Whereas it is expedient to consolidate, define and amend the law of Evidence.”


    Consolidate


    Consolidation basically means that all other previous laws related to evidence are repealed and now only Indian Evidence Act is the law for matters relating to evidence. Whenever an Act is consolidated, it is the last product and thus, Indian Evidence Act is the end product for all matters of evidence.

    Privy Council said that once this Act is passed, employment of any kind of evidence not authorized by this law will not be allowed. Consolidation always leads to judicial restraint. As per Supreme Court, “The principle of exclusion of evidence laid down in this act may now be strictly applied and cannot be relaxed at the discretion of the court.” Therefore, the courts will have discretion only in those matters which are allowed by this particular Act.

    State of Punjab v. Sodhi Sukhdev Singh
    Judge Subba Rao observed that in cases where there is no answer in the Evidence Act, the court can refer to relevant English Common Law.

    Define


    Section 3 i.e. the interpretation clause which provides various definitions.
    All sections have headings that explains the scope of the section.
    Wherever illustrations are provided, they are the part of the section and give meaning and clarity to it but they cannot be allowed to override the section.
    Proviso is attached to the main clause to vary that clause. It adds or gives exception. A proviso can be negative as well as positive. Exceptions are for whole section whereas proviso is for a particular clause of that section.
    Explanations is provided in a section to deal with the the ambiguities and explain a concept in detail.

    Amend


    The word “amend” clearly indicates that there was some existent law before the Evidence Act was enacted to regulate the concepts of evidence, which has been amended by this particular Act.
    The Evidence Act amended:


    I. Hindu Law of Evidence


    The source of information relating to Law of Evidence was derived from Dharmashastras.
    It has been laid down in the Hindu Dharma Shastras that “the purpose of any trial is the desire to find out the truth”. Yajnavalkya says: “Discarding what is fraudulent; the King should give decisions in accordance with the true facts.” There were three types of evidence:

    1. Lekhya (documentary evidence)
      There were 3 kinds of documentary evidence:
      • Rajasaksika,
      Rajasaksika was a public document which was executed in the king’s court and attested by the hand of the presiding officer.
      • Sasaksika
      Sasaksika was a private document scribed by anyone, but attested by witnesses
      • Asaksika
      Asaksika is a document which was written entirely by the party.

    2. Sakshi (witnesses)
    According to Manu, the trustworthy men, who knew their whole duty and were free from covetousness, were admissible as witnesses irrespective of caste interested persons, friends, companions, enemies and those convicted of perjury, while persons of several other categories were not admissible as witnesses. Any person who had personal knowledge of a murder case or acts done could be called as a witness.

    3. Bhukti (possession)
    Where the dispute was in relation to a landed property, the possession was used as an evidence.

    4. Divya (Ordeals)
    The help of ordeals was taken when there were no concrete documentary evidence, witnesses and possessions. Ordeals were based on faith and belief in God was a way of demonstrating the person’s guilt.
    A detailed account of ordeals, as they existed in ancient India, is given in Agni Purana. It points out that only in cases of high treason of very serious offences, trial by ordeal was used. In other petty matters, it was sufficient to prove the truth by taking oath. Some of the ordeals are as follows:
    • Ordeal of Fire
    The accused was directed to walk through or stand or sit in fire for some specified time. If the accused comes out from the fire without any harm, he was considered to innocent.


    • Ordeal by Water
    The accused had to stand in deep waist water and then sit down in the water when an archer was aiming at him with an arrow. If the accused remained in the water within the time limit, he was considered innocent.


    • Ordeal by Balance
    A wooden balance was set up on which accused was weighed against the weights in other pan and then he had to get down. After legal proceedings, he was weighed once again and if the pan went up then he was declared innocent and if it went down, then he was declared guilty.


    • Ordeal by Poison
    This method was also based on the view that God protects innocent people. The accused was required to drink poison without vomiting it. If he survived, he was declared to be innocent.


    • Ordeal by Lot
    A white picture of the Dharma and a black picture of the Adharma was prepared. The accused was asked to place his hand in the pot and take one of the pictures without looking at it.
    White image of dharma – Innocent
    Black image of Adharma – Guilty

    II. Muslim law of evidence


    As per Muslim law, Quran itself is justice and the Holy Quran provides that God itself is justice. Muslim law provides two kinds of evidence:


    1. Oral Evidence
    Oral evidence was further divided into: Direct evidence and Hearsay evidence. During the examination of the witnesses, the courts, had to pay close attention to the demeanor of the parties and witnesses to ensure their credibility.


    2. Documentary Evidence
    Documents properly executed and books in the course of business were accepted as evidence. Documents executed by certain persons like women, children, drunkards, gamblers, criminals etc. were considered as vitiated and inadmissible in evidence.


    Fatwa-i-alamgiri by Aurangzeb provided that oral evidence must be given preference over secondary evidence. Moreover, a non-believer’s testimony against a muslim was not admissible.

    III. Common Law of Evidence (British Era)


    The English law of evidence originated in India from Presidencies – Calcutta, Bombay and Madras, in 1726 and thus the presidency courts were following it. It was based on laws of England. There were no specific laws relating to the law of evidence in mofussil courts outside the presidencies. In the matter of accepting evidence the courts enjoyed full autonomy.

    An effort was made for the first time in 1835 to consolidate all laws of evidence and they were codified in Act of 1835 which applied to all the courts. Between 1835 and 1853, eleven enactments dealing with the rule of evidence were passed but all of these enactments were found to be incompetent.


    Evidence Act of 1855 – It established certain evidentiary laws to be followed in India. It was not uniformly applicable and did not prohibit adoption of other laws in Indian Courts. Additions were made in 1859, 1861 and 1869.

    A commission under the chairmanship of Sir Henry Mayne was established in the year 1868. He submitted the draft based on the recommendations of the third Indian Law Commission, 1861 which was later found to be inadequate for the Indian conditions.


    Sir James Fitzjames Stephen was given a task to draft a complete law of evidence in 1870. He headed a committee of 6 jurists. It was presented before the Legislative Council in 1871. This bill was approved by the Legislative Council and received the assent of the Governor General in India on the 15th March 1872 and became Indian Evidence Act, 1872 which came into force on 1st September, 1872.

    Prior to Independence, there were as many as 600 princely States in India, which were not within the jurisdiction of the British system of justice. Each of these states had its own rules of law of evidence. But by and large, followed the Indian evidence Act 1872. After independence, there was a merger of princely states into the Indian Union. Both the substantive as well procedural laws have since been made uniformly applicable to all states.

    CONCLUSION

    Indian Evidence Act 1872 has introduced a set of rules to be applicable all over India. It is used by courts in both civil as well as criminal proceedings. The preamble is the most important part of any Act as it defines the objects of passing such law. Preamble Indian Evidence Act 1872 provides that it seeks to consolidate, define and amend the law of evidence. After enactment of this Act, no other law of evidence is applicable in India. It has consolidated all laws related to evidence.