Important Blogs

The Indian Evidence Act 1872 Chapter 1( Section 1 to 3)

Chapter-1: Preliminary (Sections 1-3)

Section 1 – Title, Extent and Commencement:

The Indian Evidence Act, 1872 was passed by Legislative Council on 15th March, 1872 and came into force on 1st September, 1872. It extends to the whole of India and applies to all judicial proceedings in or before any court of law.

Court Martial – This Act applies to native Court Martial which were in the existence during British Rule and also applies to the proceedings before Indian Marine Act. According to Section 1 of Act, it will not apply to any Court Martial which has been established under any of the following Act:
  • The Army Act;
  • The Naval Discipline Act;
  • The Indian Navy (Discipline) Act, 1934
  • The Air Force Act.
Interpretation Clause

Affidavits: Section 1 expressly excluded all the affidavits from the scope of the Act. The reason is that affidavits are confined to such facts as the deponent is able of his own knowledge and belief to prove. Of course, the court may order any fact to be proved by an affidavit. Proving a fact by an affidavit cannot be given in accordance of the Evidence Act. In Civil proceedings, it is given as per Order 19, Rule 1-3; CPC and in criminal proceedings, Sections 295 to 297 deal with it.

Arbitrator: According to Section 1, this Act does not apply to proceedings before an Arbitrator. But Arbitrators are bound to follow the rules of natural justice. The reason is that the object of submission to an Arbitrator is to avoid the complicated procedure of a regular trial. Thus, the Arbitrators have no power to administrator on oath and need not examine witness. They can obtain information in any way as they think fit but, must always give a fair opportunity to all parties.

Section 2 has been repealed by the Repealing Act, 1938.

Interpretation clause (Section 3)

This section contains definitions of certain important terms. The very first term that has been defined is “court”. It is defined as except Arbitrtator, “including all Judges and Magistrates, and all persons, legally authorized to take evidence”. This definition of the word “court” is not exhaustive but, is meant for the purposes of Evidence Act alone. As per the definition, arbitrators, even though they may have the legal authority to take evidence, have been expressly excluded from the scope of the Evidence Act.

Fact: 
According to a layman, the term ‘fact’ means an existing thing. It does not refer to a mental condition of which a person is conscious. However, according to the definition contained in the section and the illustrations appended to it; statements, feelings, opinions and state of mind are as much fact as any other fact which is tangible and visible or any other circumstance of which, through the medium of senses we become aware. The illustrations appended to the section amply exemplifies the position that state of mind, opinions, statements, etc. are as much a “fact” as any other visible or tangible thing. 

According to a common man, the word 'fact' means existing thing. It does not refer to the mental state for which a person is conscious. However, according to the definition contained in the section fact means anything which can be known through our senses that is fact.

It is more simplify that Anything which can be perceived by our ear, smell, eyes, or by touching a fact, apart from these relation of things and state of things are also a fact.

Interpretation of relation of things means, there must be some relation between parties, Suppose A and B are accused of murder of C, if there is any enemy with C that a fact and it comes under relation of things.

Any state of things means, whatever the situation, whatever the condition, whatever the stage of things which can be perceived by our sense is a fact

For an example “I smelt urine” that statement is fact”

“I saw ghost yesterday night” this statement is not a fact it cannot be perceived through our sense.

“Any mental condition of which any person is conscious” meaning of this sentence is if anyone knows that “what is going in others mind” is a also fact.

State of mind, A person who knows something about the mind other person is a fact.

For an example A and B are friend , A knows that B is aggressive so might have done this offense this statement is also a “Fact”

Illustrations
  • I saw that Mohan jumped from wall
  • Sohan heard something.
  • He said certain words is a fact
  • He has certain opinion, has a certain intention is a Fact,
  • He acts in good faith or fraudulently is also a Fact,
  • He uses a particular word in a particular sense is a Fact,
  • He was there at a specified time.
  • The consciousness of a particular feeling is a fact.
  • Sachin has certain reputation is a fact.
Relevant Fact

The list of facts, which are relevant, is to found in the provisions contained in Section 6 to 55. But the Act gives no general definition of the term ‘relevant fact’. Generally speaking, a fact is said to be relevant to another if by itself or in connection with other facts it renders the existence of a fact in issue, either probable or improbable. Relevancy implies relationship and such, relationship with the facts in issue as convinces or has a tendency to convince the judge as to the existence or otherwise of the facts in issue. 

A fact in order to be relevant must be connected with the facts in issue or with any other relevant fact in any of the ways referred to in Section 5 to 55. A fact that is not connected is not a relevant fact. The scheme of the Act makes all relevant facts admissible. However, there is a difference between the two which will be considered at a later stage.

Relevant facts are those fact which directly and indirectly connected with other facts in common course of event, which proves or renders probable the past, present or future existence or non existence of other.

Facts in Issue

Fact is issue is very technical, it makes difficult to understand Evidence Act if do not pay attention,

Facts that are alleged by one party and denied by the other in any suit or proceeding are said to be facts in issue.

As per the bare act it is clear that which is claimed in a suit or proceeding by one party and denies by another parties

It means, Suppose A and B are party in a suit or proceeding, if A says that this is my ancestral property and B denies the right of A, the moment he denies it become “Fact-in-Issue”

Example 1 – A dies intestate. One D enters into possession of his property. S files a suit for possession against D alleging that she is a sister of A, that she

Alone is the heir of A. D files a written statement contending that she is the daughter and the only heir of A and that S is not a sister of A. In this case, the Court in order to give a decision has to decide –

A dies intestate, D is in possession of his property. S filed a suit for possession against D, alleging that she is A's sister, that she

A. alone D. Heir's filing a written statement that she is A's daughter and sole heir and not S's sister. In this case, the court has to decide for awarding -
  • whether S is a sister of A;
  • whether D is a daughter of A;
  • whether S is the only heir of A.

From the facts (1) whether S is a sister of A (2) whether D is a daughter, (3) whether S is the only heir of A, the existence or non-existence of right of S to the property of A necessarily follows. Therefore, they are facts in issue.

Document: 

Document means any substance expressed or described by means of letters, fingers, or marks on any substance, or for more than one of the means intended or intended to be used for the purpose of recording that case.

The word document properly encompasses all the physical substances on which men's ideas are represented by any other type of writing or any other species of traditional mark or symbol. Thus the wood marking on which bakers, milkmen, etc. indicate, the number of loaves or the loaves of milk given to their customer is documented as the most elaborate deeds.

For an example Photograph, writing notes, words printed, map, lithographed, any plan in written form, inscription on a metal plate or on stone or caricatures are all documentary evidence.

Evidentiary value of Photograph

In the case of L Choraria vs State of Maharashtra AIR 1968 SC 938, Hon’ble court said that if the court is satisfied that there was no trick photography and the photography is above suspicion, the photograph can be received in evidence . But the evidence of photograph to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not fake or false.

Evidence

Meaning of evidence is the truthiness of any statement, things or matter or its in original sense the state of being Plain, apparent or notorious. Under the act no clear definition of the term evidence has been provided.

This section merely states that what evidence include. In its real sense evidence means anything which establishes the principle of fact or the issue in question before court

The definition in this act included two types of evidence
  1. Statement of witness( oral form of evidence)
  2. Documents

Types of Evidence

Direct Evidence – It is the evidence of what the witness has personally seen or gathered from his senses it is also include production of an original document. Direct here is as opposed to to hearsay and circumstantial evidence. It means any fact which without the intervention of any other fact could prove the fact in issue. Statement of eye witness is direct evidence

For an example

Whatever a person saw the commission of the act which constitutes the alleged crime.

Wedding card is a direct evidence of Marriage,

Indirect Evidence - The hearsay evidence is indirect evidence, any evidence which collaborated with evidence is indirect evidence.

Example

The witness here presents what was told him by a third party.

Suppose Mr “X “ is working in a pvt firm and his friend said to him that he has seen a man was stealing mobile from pocket of other while traveling in Metro.

Statement of Mr. “X” is hearsay or indirect evidence.

Circumstantial Evidence-  It is testimony of witness to other relevant from which the fact in issue may be inferred. In case based on circumstantial evidence, such evidence should be so strong as to point unmistakably to the guilt of the accused.

Circumstantial evidence includes all the relevant facts. It is not secondary evidence, it is merely direct evidence applied indirectly.

But facts that happened sudden, such as road accidents or crimes or tricks, do not leave much direct evidence behind. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victim’s altogether and do not leave any trail of evidence behind.

In such cases, the main event will have to be reconstructed before the Court with the help of surrounding circumstances such as the cause or the effects of the event.

Circumstances sometimes speak as forcefully as does the direct evidence. When footprints are found on sand; it is plausible to infer that someone must have gone that way and also from the shape of footprints it can be ascertained as to whether those are of man or of a bird or of an animal.

In the case of State of UP Vs. Ravindra Prakash Mittal, AIR 1992 SC 2045 the Supreme Court made certain observations vis-à-vis circumstantial evidence.

They are as follows:-
  1. The circumstances from which the conclusion is reached must be fully established.
  2. The circumstances should be conclusive in nature. 
  3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. 
  4. The circumstances should, to a moral certainty exclude possibility of guilt of any person other than the accused. 
The importance which circumstantial evidence assumes in certain cases can be gauged from the fact that in the case of Har Dayal Vs. State of UP, AIR 1976 SC 2055; the Supreme Court sustained the conviction and death sentence of the accused for the murder of a child on the basis of circumstantial evidence alone. 

There were no eye witnesses to the fact of the murder, but, the circumstances had made the chain so complete that there was no escape from the conclusion that within all human probability the child was kidnapped murdered and thrown into the well by none other but the accused. He used to beat his wife and therefore, she had gone back to her parents. He tried his best and even played false tricks with his father-in-law and brother-in-law, but his wife refused to join him. He went back uttering a threat that he would teach them a lesson. Later, he was seen taking away the ten year old child of his wife’s brother while the child was alone at home

The child remained missing and when the accused was traced in his village and surrounded by the fact of the missing child; he confessed to have taken away the child and promised to return him, but instead managed to escape. On report of a villager, the body of the child was recovered from a well and duly identified. The Supreme Court sustained conviction, which was based solely on the basis of circumstantial evidence

Primary Evidence: - It means original evidence which is given in first instance. Section 62 of the acts deals with it

Secondary Evidence: It is an indirect evidence which can be given in the absence of the primary evidence . Section 63 of this Act deals with it.

For an example Photograph of Qutub Minar is secondary evidence because it cannot present as originally

Oral Evidence: - It is something which the witness has seen or heard personally

Documentary Evidence: It is an evidence of original documents such as evidence of Education is Mark sheet , Date of birth certificate, any evidence which can be produced in the form of documents





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