Criminal Law - Indian Evidence Act

CRIMINAL LAW
UNIT 3: INDIAN EVIDENCE ACT

IEA - Introduction
 The Indian Evidence Act is a criminal law in India. Originally it was passed in 1872 by
the then Imperial Legislative Council during the British Raj.
 It is a set of rules and guidelines which govern the admissibility of evidence in Indian
courts.

IEA - History
 Prior to the IEA, traditional legal systems like - relying on the word of an important
person in society, asking the witness to say an oath and threat of punishment if found
false were practised.
 The passage of IEA is considered as a landmark moment in India's judicial history.
 The law was based on the recommendations of Sir James Fitzjames - who is still
considered the founding father of the IEA.
 Upon passage, the IEA had 11 chapters and 167 sections. It came into force on 1st
September 1872.

IEA - History
 It has been amended through the Criminal Law Amendment Act 2005 and many other
amendments. But interestingly the original framework has still been retained and
India's IEA has been praised as a fine piece of law, which has stood the test of the court
all these past years.
 Post the Indian Independence, India continued to hold the IEA throughout the
jurisdiction of India except in the state of Jammu & Kashmir.
 Pakistan repealed the act and passed the Evidence Order, 1984 for itself.

IEA - Framework
 The Act is divided into 3 Parts.
 Part 1 deals with relevancy of facts and has 2 chapters.
 Part 2 deals with facts which need not be proved and has 3 chapters.
 Part 3 deals with burden of prooof and has 5 chapters.

IEA - Framework
 Chapter 1 (Sections 1 - 4) - Preliminary
 Chapter 2 (Sections 5 - 55) - Relevancy of facts
 Chapter 3 (Sections 56 - 58) - Facts which need not be proved
 Chapter 4 (Sections 59 & 60) - Oral Evidence
 Chapter 5 (Sections 61 - 90) - Documentary evidence
 Chapter 6 (Sections 91 - 100) - Exclusion of oral by documentary evidence

IEA - Framework
 Chapter 7 (Sections 101 - 114) - Burden of proof
 Chapter 8 (Sections 115 - 117) - Estoppel
 Chapter 9 (Sections 118 - 134) - Witnesses
 Chapter 10 (Sections 135 - 166) - Examination of witnesses
 Chapter 11 (Sections 167) - Improper admission and rejection of evidence

IEA - Framework
 The Indian Evidence Act is generally understood as two parts
 Recording the evidence by the court
 Evaluation of evidence by the court
 Recording the evidence deals with which is admissible evidence (Could be fact in issue
/ relevant facts); Facts have to be proved for them to be admitted and recorded.
 Evaluation the evidence includes the court's interpretation on both oral and
documentary evidence. Evidence can either prove a fact or disprove a fact. Evidence
can also presume a fact - presumption can lead to proof.

IEA - Evidence
 The term “evidence” means and includes:
 Oral evidence - All statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry
 Documentary evidence - All documents, including electronic records, produced for the
inspection of the Court.

IEA - Evidence
 The above definition of the term “evidence” is not a complete definition. Evidence, thus
defined, is not the only medium of proof; in addition to it, there are a number of other
matters like the demeanour of a witness, which the Court has to take into consideration
when forming its conclusion. The definition of ‘evidence’ has to be read with the word
“proved” when determining what is ‘evidence’ within the Indian Evidence Act.
 Bentham defines evidence as “any matter of fact, the effect, tendency or design of
which, when presented to the mind, is to produce in the mind, a persuasion concerning
the existence of some other matter of fact — a persuasion either affirmative or
disaffirmative of its existence.”

IEA - Evidence
 Taylor uses the word evidence to mean “all the legal means, exclusive of mere
argument, which tend to prove or disprove any fact, the truth of which is submitted to
judicial investigation”.
 The confession of an accused person is not evidence in the ordinary sense of the term,
as defined in this section, though it has to be given due consideration in deciding a
case.

IEA - Evidence
 Similarly, the confession of a co-accused has to be regarded as amounting to evidence
in a general way, because whatever is considered by the Court is evidence;
circumstances which are considered by the Court as well as probabilities do amount to
evidence in that generic sense. Thus, though a confession may be regarded as evidence
in that generic sense, the fact remains that it is not evidence as defined by S. 3 of the
Act. (Haricharan Kurmiv. State of Bihar, A.I.R. 1964 S. C. 1184)
 What evidence means and includes is described in S. 3 of the Evidence Act, but
affidavits are not included within that description. Rather, affidavits have been expressly
excluded by S. 1 from the applicability of the Act. That means that affidavits cannot be
used as evidence under any of the provisions of the Indian Evidence Act. (Firm S.
Rajkumar v. Bharat Oil Mills, A.I.R. 1964 Bom. 38)

IEA - Evidence
 The expression “judicial evidence” may be defined as evidence received by Courts in
proof or disproof of facts, the existence of which comes into question before such
Courts. It will thus be seen that judicial evidence is a species of the genus “evidence”
and is mainly natural evidence as refined and modified by rules of positive law.

IEA - Evidence
 According to Stephens the word “evidence” is used in three senses
 Words uttered, and thing exhibited in Court,
 Facts proved by those words or things, which are regarded as ground word of inference
as to other facts not so proved, and
 Relevancy of a particular fact to matter under inquiry

IEA - Evidence
 Evidence as per Indian law Sections of Indian Evidence Act 1872 defines evidence which
is more definite meaning, viz, the first one. Evidence thus signifies only the instruments
by means of which relevant facts are brought before the Court .Evidence is generally
divided into three categories facts are brought before the Court. Evidence is generally
divided into three categories:
 Oral or personal
 Documentary and,
 Material or real.

IEA - Evidence
 The definition of “evidence “must be read together with that of “proved”. The combine
results of these two definition is that evidence under the Indian Evidence Act which is
not only the medium of proof but there are in addition to this , number of other”
matter” which the Courts has to take into consideration, when forming its conclusion.
Thus the definition of “evidence” in the Indian evidence Act is incomplete and narrow.
 In State of Maharashtra v. Dr. Praful B. Desai, the Supreme Court has held that under
section 3 of the Indian Evidence Act, besides oral and documentary evidence, electronic
record can also be admitted as evidence. The Court further stated that evidence ruled
in criminal matters could be by way of electronic records, which would also include
videoconferencing. Hence, “what is no evidence”

IEA - Evidence
 A confession or the statement of one accessed under Section 342,CrP.C
 Demeanour of witness (section 361, Cr.P.C ,O18,R,12,C.P.C)
 Local investigation or inspection (O.26,R,9);(O18,R18,C.P.C;sections 293 , 539B,CrP.C )
 Facts judicially noticeable without proof (Section 56 ,57 Act)
 Material objects(Section60)
 Further coming to the subject, English text writers has divide evidence into
 Direct evidence
 Indirect and circumstantial evidence

IEA - Evidence
 Direct Evidence
 In this sense direct evidence is the evidence is that which goes expressly to the very
point in question and proves it, if believed without aid from inference or deductive
reasoning, e.g., eye witness to a murder is direct evidence.
 Circumstantial Evidence
 Circumstantial evidence is used in criminal courts to decide the fate of accused by
establishing guilt or innocence through reasoning. According to Benthem witnesses are
the "eyes and ears of justice". But testimony of witnesses is not always credible;
therefore, facts are provable not only by witnesses but also by circumstances.

Rules of relevancy
 The Indian Evidence Act 1872, provides for admissibility of oral, documentary and material
evidence. It covers the relevance of these evidences in criminal trials as well.
 The Act stipulates that evidence in a court or judicial proceeding must be given of facts in
issue and relevant.
 The term 'in issue' means the fact has to be part of the criminal case.
 The term 'relevant' means the fact can be connected with a primary fact which is in issue
with the crime.
 During a criminal trial, no evidence is required on any fact which is not related to the fact in
issue. However if a fact is an integral part of a transaction connected with a fact in issue, it
can be taken by the court as relevant.
 This liberty is provided by the IEA.

Rules of relevancy
 Relevance vs. admissibility
 The concept of relevancy is one criterion that governs the admission and use of
evidence in a judicial proceeding. If the evidence does not relate directly or indirectly to
the issue at hand, it should not be admitted as proof for either the prosecution or the
defense.
 The term 'relevance' in this context simply means that the evidence in question is
closely connected or logically related to the matter at hand.
 Relevant evidence is the evidence that is logically connected to the fact that it intends
to establish.

Rules of relevancy
 Relevance vs. admissibility
 The term 'relevance' refers to the degree of connection between a fact that is given in
evidence and the issue to be proved.
 The term 'admissibility' refers to the process whereby the court determines whether the
law of evidence permits the relevant evidence to be received by the court or not.
 An irrelevant fact is normally not admissible in court.
 However in certain cases, evidence which is not relevant may still be admissible.
 In any case the fact in issue, relevant fact, motive and preparation for the crime play a
major role in proving guilt.

Rules of relevancy
 Relevance of expert opinion
 Expert opinion is relevant in a judicial proceeding. But irrelevant facts become relevant,
if they do not go consistent with the expert opinion.
 Opinion on a handwriting is relevant when the court has to find out whether any
person has written or signed in a disputed document produced in a case.
 Opinion of a person knowing the custom is relevant if the disputed issue is existence of
custom. Opinion of a person knowing the relation is relevant when such a relation is a
fact in issue.

Rules of relevancy
 Relevance is a matter very important in evidence admissibility.
 The IEA determines whether an evidence (oral, document or material) is relevant for the
case or not.
 An evidence being relevant, does not make it admissible. They are both different.
 Expert opinion however, can be used by the court even if not relevant exactly to the
case in issue.

Expert witness
 Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of
opinion of third persons, which is commonly called in our day to day practice as
expert’s opinion.
 These provisions are exceptional in nature to the general rule that evidence is to be
given of the facts only which are within the knowledge of a witness.
 The exception is based on the principle that the court can’t form opinion on the
matters, which are technically complicated and professionally sophisticated, without
assistance of the persons who have acquired special knowledge and skill on those
matters.

Expert witness
 Conditions for admitting an expert opinion are following:-
 That the dispute can’t be resolved without expert opinion and
 That the witness expressing the opinion is really an expert.

Expert witness
 Who is an expert?
 The definition of an expert may be referred from the provision of Sec.45 of Indian
Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or
experience in any of the following:
 Foreign law, Science, Art, Handwriting or Finger impression
 and such knowledge has been gathered by him:
 By practice,
 Observation or
 Proper studies.

Expert witness
 For example, a medical officer, chemical analyst, explosive expert, ballistic expert,
fingerprint expert etc.
 According to Sec.45, the definition of an expert is confined only to the five subjects or
fields as mentioned above. But practically there are some more subjects or fields on
which court may seek opinion an expert.
 An expert witness is one who has devoted time and study to a special branch of
learning and thus he is specially skilled on those points on which he is asked to state
his opinion. His evidence on such points is admissible to enable the court to come to a
satisfactory conclusion.

Expert witness
 Duty of the expert
 An expert is not a witness of fact.
 His evidence is of advisory character.
 An expert deposes and does not decide.
 An expert witness is to furnish the judge with necessary scientific criteria for testing the
accuracy of the conclusion so as to enable the judge to form his independent judgment
by application of the criteria to the facts proved by the evidence.

Expert witness
 Value of expert opinion
 The Expert evidence has two aspects:
 Data evidence [it can’t be rejected if it is inconsistent to oral evidence]
 Opinion evidence [it is only an inference drawn from the data and it would not get
precedence over the direct eye-witness testimony unless the inconsistency between the two
is so great as to falsify the oral evidence] - [Arshad v. State of A.P. 1996 CrLJ 2893 (para34)
(AP)]
 Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is
a rule of procedure that expert evidence must be corroborated either by clear direct
evidence or by circumstantial evidence.
 It is not safe to rely upon this type of evidence without seeking independent and reliable
corroboration -- [S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)]

Order of examination
 Witnesses are required to answer the relevant questions presented to them. A question
asked to a witness must be relevant to a fact in issue, and must help establish the same.
Their answers when recorded are called testimonies of witnesses. This questioning of
the witness and recording their answers is called witness examination.

Direct Examination
 Section 138 of Indian Evidence Act details the order of examination during criminal trial as
follows:
 Order of examinations —Witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross- examined, then (if the party calling him so desires) re-examined.
 The examination and cross-examination must relate to relevant facts but the cross-
examination need not be confined to the facts to which the witness testified on his
examination-in-chief.
 Direction of re-examination - The re-examination shall be directed to the Explanation of
matters referred to in cross-examination; and, if new matter is, by permission of the Court,
introduced in-re-examination, the adverse party may further cross-examine upon that
matter.

Direct Examination
 First, the party that called the witness examines him, this process is called examination-
in-chief as mentioned under Section 137 of the Indian Evidence Act.
 The examination of a witness must be done specifically in the sequence mentioned
under Section 138. In the case of Sharadamma v. Renchamma, it was held that
examination-in-chief must be done before the cross-examination. The opposite is
neither possible nor permissible.
 During the direct examination, there would be general questions asked in the
examination in chief which is related to the facts of the evidence no leading questions
are asked in the examination in chief. Leading questions are asked only in cross
examination and re-examination, first of all, prosecutor ask the question in the
examination in chief in the criminal trial.

Direct Examination
 Examination-in-chief is an examination of a witness which is done by the party who
filed the suit or case in the court.
 The purpose of examination-in-chief is to make a statement under oath of a witness in
the court.
 No leading questions may be asked without permission of the court in examination-in-
chief.
 This step cannot be skipped as well.
 One must also remember that it is not always the prosecution who does the direct
examination. There could be cases where the defence can call upon a witness (could be
a relevant witness / expert witness). In such cases the defence performs the direct
examination.

Cross Examination
 After the completion of the examination-in-chief, if the opposite party wants to they
can take over the witness and cross-question him about his previous answers. the
opposite party may ask him any question regarding all the relevant facts and not
merely facts discussed during the examination-in-chief. this process is described in
section 137, IEA.
 Section 137 states “Cross examination – the examination of the witness by the adverse
party shall be called his cross-examination”.

Cross Examination
 Cross examination is not a compulsory part of trial. The adverse party can choose to
NOT cross-examine the witness if they feel it may not suit their interests.
 When cross-examination is not opted for there is no question of re-examination during
the trial.
 Cross examination is stipulated by certain rules. Cross examination questions can only
be based on the facts stated by the witness during the direct examination. Irrelevant
questions cannot be asked.

Cross Examination
 Leading questions are generally not a good practice in legal trials. The reason being, it
gives an idea to the witness about the answer the party is expecting from him.
 But in Indian judicial system, the practice of leading questions came into practice
because of the need to educate witnesses before going for trial – as trials in India
usually take place lot later after the actual incident.
 Leading questions have been described in section 141 of IEA as any question that
suggests the answer which the person questioning expects to receive.

Cross Examination
 A leading question suggests the answer to witness. For example:
 You saw the murderer with a red cap, didn’t you?
 A simple question would however not lead the witness to a particular answer. For example:
 What was the murdered wearing?
 Here the answer could still be the same, but the question does not throw any suggestions
and therefore the answer can be more valid.
 This is because the witness must answer every question by himself as he is the one who has
witnessed the fact. If there is any leading to him, the answer cannot still be the same neutral
fact.
 Cross examination in India allows leading questions. The other party can however object if
the leading goes too far.

Cross Examination
 Cross-examination on previous statements
 It can happen in circumstances where a witness could backtrack on a witness statement
he may have given during criminal trial / contradict his prior statement.
 In such circumstances the opposing party / affected party could be granted permission
to cross-examine the witness.
 Again leading questions are put forward to the witness in such circumstances and the
court is bound to punish such acts by a witness.

Cross Examination
 The rights of a witness during cross-examination
 There is a debate on whether every question during cross-examination needs to be
answered by the cross examination. Sometimes witnesses feel threatened and injured
during cross examination and this is a cause of concern.
 The judiciary of India allows witnesses to refrain from answering questions during cross
examination. This provision is granted when the witness feels answering to a particular
question may injure his character or make the world doubt his credibility.

Re-Examination
 If the party that has called the witness sees the need to examine the witness again after
the cross examination, they may examine the witness one more time. This is known as
re-examination as described under section 137 of the IEA.
 Section 138 states that re-examination must be directed by the court for explaining
matters referred to in cross examination. The section further states that if any new fact
or issue arises during the re-examination, the opposite party can further cross-examine
the witness on that fact or issue. Otherwise there is no scope for cross-examination.
 The party which called the witness may re-examine the witness only if he likes or if it is
essential. It is not compulsory. The re-examination must be confined to the explanation
of matters which grew during cross-examination.

Re-Examination
 The intention of re-examination is by asking questions as may be proper to pull
forward an explanation or meaning or expression used by the witness during cross-
examination, if they are questionable.
 New matters may be introduced only by the permission of the court and if that is done,
the opposing counsel has the right to cross-examine the witness once again.
 During re-examination, the examination-in-chief cannot add to the facts by stating
totally new facts for the first time. The intention of re-examination is only to get the
clarification of some questions created in the cross examination.

Re-Examination
 Leading questions are used during re-examination also. But it must be kept in mind
that unlike during cross-examination they need not quote the facts stated during the
previous examination.
 There is no limitation that re-examination should be limited to one or two questions
only and if required any number of questions can be asked.
 Hypothetical questions however are disallowed. But this rule applies only to ordinary
witness.
 To expert witness section 45, IEA allows hypothetical questions to be asked. Court
allows hypothetical questions to experts, because it is important to clarify to what limit
/ extent the findings of the expert stands good.

Important sections
Section 32 IEA
 Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
 When it relates to cause of death;
 or is made in course of business;
 or against interest of maker;
 or gives opinion as to public right or custom, or matters of general interest;
 or relates to existence of relationship;
 or is made in will or deed relation to family affairs;
 or in document relating to transaction mentioned in section 13, clause (a);
 or is made by several persons and expresses feelings relevant to matter in question;

Important sections
Section 32 IEA
Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant. -Statements, written or verbal, of relevant facts made by a person who is dead, or
who cannot be found, or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which under the circumstances of
the case, appears to the Court unreasonable, are themselves relevant facts in the following
cases: --
 When it relates to cause of death.
 Or is made in course of business
 or against interest of maker
 or gives opinion as to public right or custom, or matters of general interest
 or relates to existence of relationship
 or is made in will or deed relating to family matters
 or in document relating to transaction mentioned in section 13, clause ‘a'
 or is made by several person and expresses feeling relevant to matter in question

Important sections
When it relates to cause of death
 When the statement is made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his death, in cases in which the
cause of that person's death comes into question. Such statements are relevant
whether the person who made them was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.

Important sections
or is made in course of business;
 When the statement was made by such person in the ordinary course of business, and
in particular when it consists of any entry or memorandum made by him in books kept
in the ordinary course of business, or in the discharge of professional duty; or of an
acknowledgment written or signed by him of the receipt of money, goods, securities or
property of any kind; or of a document used in commerce written or signed by him; or
of the date of a letter or other document usually dated, written or signed by him.

Important sections
or against interest of maker;
 When the statement is against the pecuniary or proprietary interest of the person
making it, or when, if true, it would expose him or would have exposed him to a
criminal prosecution or to a suit for damages.
or gives opinion as to public right or custom, or matters of general interest;
 When the statement gives the opinion of any such person, as to the existence of any
public right or custom or matter of public or general interest, of the existence of which,
if it existed, he would have been likely to be aware, and when such statement was
made before any controversy as to such right, custom or matter had arisen.

Important sections
or relates to existence of relationship. -
 When the statement relates to the existence of any relationship 1*[by blood, marriage or adoption]
between persons as to whose relationship 1*[by blood, marriage or adoption] the person making the
statement had special means of knowledge, and when the statement was made before the question in
dispute was raised.
or is made in will or deed relating to family affairs;
 When the statement relates to the existence of any relationship 1*[by blood, marriage or adoption]
between persons deceased, and is made in any will or deed relating to the affairs of the family to which
any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait
or other thing on which such statements are usually made, and when such statement was made before
the question in dispute was raised.

Important sections
or in document relating to transaction mentioned in section 13, clause (a);
 When the statement is contained in any deed, will or other document which relates to
any such transaction as is mentioned in section 13, clause (a).
or is made by several persons and expresses feelings relevant to matter in question.
 When the statement was made by a number of persons, and expressed feelings or
impressions on their part relevant to the matter in question.

Important sections
 Section 57 IEA
 Refer LMS

Important sections
 Section 58 IEA
 Facts admitted need not be proved. No fact need be proved in any proceeding which
the parties thereto their agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their hands, or which by any rule of
pleading in force at the time they are deemed to have admitted by their pleadings:
 Provided that the Court may, in its discretion, require the facts admitted to be proved
otherwise than by such admissions.

Important sections
 Section 60 IEA
 Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to
say
 if it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;
 if it refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it;
 if it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that manner;
 if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:

Important sections
 Section 60 IEA
 Provided that the opinions of experts expressed in any treatise commonly offered for
sale, and the grounds on which such opinions are held, may be proved by the
production of such treatises if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness without an amount of
delay or expense which the Court regards as unreasonable:
 Provided also that, if oral evidence refers to the existence or condition of any material
thing other than a document, the Court may, if it thinks fit, require the production of
such material thing for its inspection.

Important sections
 Section 73 IEA
 Comparison of signature, writing or seal with others admitted or proved. In order to
ascertain whether a signature, writing or seal is that of the person by whom it purports
to have been written or made, any signature, writing or seal admitted or proved to the
satisfaction of the Court to have been written or made by that person may be
compared with the one which is to be proved, although that signature, writing or seal
has not been produced or proved for any other purpose.
 The Court may direct any person present in Court to write any words or figures for the
purpose of enabling the Court to compare the words or figures so written with any
words or figures alleged to have been written by such person.

Criminal Law - Indian Evidence Act

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