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Indian Evidence Act, 1872

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The Indian Evidence Act, 1872 is the Indian Law of Evidence. The Act is contained in 167 sections and one schedule. The schedule is repealed using the Repealing Act, 1938. Several amendments are later made to the act. The updated Act contained 182 sections.

Features of the Indian Evidence Act

  • The Act is based on English Evidence Law with few exceptions. It is not uncommon for Courts to peek into English Evidence Law in case of doubt. The Act is Lex Fori.
  • The Act is not applicable for domestic tribunals (such as Industrial Tribunal, Administrative Tribunal etc.) and non-judicial proceedings (such as Departmental inquiries, affidavits presented to a Court etc., proceedings under defense discipline acts)
    • Tribunals do not follow Evidence because they have to follow rules of natural justice
  • Indian Evidence Act applies to both Civil and Criminal proceedings. However, some sections are applicable only to Civil, some only to Criminal and some to both. The Act has put more burden of proof on the prosecution to provide the guilt of the accused. The degree of proof required is stricter in criminal proceeding than in a civil proceeding. In a criminal proceeding, the accused must be proved beyond all reasonable doubts.
  • Despite being a sister Act of Criminal Procedure Code, 1973 and Civil Procedure Code, 1908, it is a complete Act.
  • Object of the Act is to get the truth of the several disputed facts or points in issue. Burden of proof is on the party claiming to prove the substance of the issue to the satisfaction of the court.
  • Direct and circumstantial evidence is given importance over Hearsay Evidence.
  • No person is bound to incriminate himself. Some categories of witnesses are given protection and privilege.

General structure of the Act

The Indian Evidence Act, 1872 is divided into three parts, each with chapters and sections:

Part I

  • Contains Section 1 to 55 housed in 2 Chapters and deals with Relevancy of Facts.

Chapter I: From Section 1 to 4 contains the preliminary provisions

  • Section 1: Short title, extent and commencement
  • Section 2: Repeal of enactments
  • Section 3: Interpretation Clause. Defines various terms including Court, Evidence, Fact, Relevant etc.
  • Section 4: 'May presume', 'Shall presume' and 'Conclusive proof'

Chapter II: From Section 5 to 55 explains about Relevancy of Facts

  • Section 5 says that Evidence may be given of facts in issue and relevant facts
  • Section 6 deals with Relevancy of facts forming part of same transaction, Res Gestae
  • Section 7 deals with facts which are the occasion, cause or effect of facts in issue
  • Section 8 deals with Motive, preparation and previous or subsequent conduct
  • Section 9 speaks about facts necessary to explain or introduce relevant facts / Identification parade
  • Section 10: Things said or done by conspirator in reference to common design
  • Section 11: When facts not otherwise relevant become relevant
  • Section 12: In suits for damages, facts tendering to enable court to determine amount are relevant
  • Section 13: Facts relevant when right or custom is in question
  • Section 14: Facts showing existence of state of mind, or of body or bodily feeling
  • Section 15: Facts bearing on question whether act was accidental or intentional
  • Section 16: Existence of course of business when relevant Admissions
  • Section 17: Admission defined
  • Section 18: Admission by party to proceeding or his agent by suit or in representative character by party interested in subject-matter by person from whom interest derived
  • Section 19: Admission by persons whose position must be proved as against party to suit
  • Section 20: Admissions by person expressly referred to by party to suit
  • Section 21: Proof of admissions against persons making them and by or on their behalf
  • Section 22: When oral admissions as to contents of documents are relevant
  • Section 23: Admissions in civil cases, when relevant
  • Section 24: Confession caused by inducement, threat or promise when irrelevant in criminal proceeding
  • Section 25: Confession to police officer not to be proved
  • Section 26: Confession by accused while in custody of police not to be proved against him
  • Section 27: How much of information received from accused may be proved
  • Section 28: Confession made after removal of impression caused by inducement, threat or promise relevant
  • Section 29: Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.
  • Section 30: Consideration of proved confession affecting person making it and others jointly under trail for same offence
  • Section 31: Admissions not conclusive proof, but may estop
  • Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant
  • Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Statements made under special circumstances
  • Section 34: Entries in books of account when relevant
  • Section 35: Relevancy of entry in public record, made in performance of duty
  • Section 36: Relevancy of statements in maps, charts and plans
  • Section 37: Relevancy of statement as to fact of public nature, contained in certain Acts or notifications
  • Section 38: Relevancy of statements as to any law contained in law books
  • Section 39: What evidence to be given when statement forms part of a conversation, document, book, or series of letters or papers. Judgments of courts of justice, when relevant
  • Section 40: Previous judgments relevant to bar a second suit or trail
  • Section 41: Relevancy of certain judgments in probate, etc. jurisdiction
  • Section 42: Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41
  • Section 43: Judgments, etc. other than those mentioned in Sections 40 to 42, when relevant
  • Section 44: Fraud or collusion in obtaining judgment, or incompetence of Court, may be proved.

Opinion of third persons, when relevant

  • Section 45: Opinions of experts
  • Section 46: Facts bearing upon opinions of experts
  • Section 47: Opinion as to handwriting, when relevant
  • Section 48: Opinion as to existence of right or custom, when relevant
  • Section 49: Opinion as to usage's, tenets, etc., when relevant
  • Section 50: Opinion on relationship, when relevant
  • Section 51: Grounds of opinion, when relevant. Character when relevant
  • Section 52: In civil cases, character to prove conduct imputed irrelevant
  • Section 53: In criminal cases, previous good character relevant
  • Section 54: Previous bad character not relevant, except in reply
  • Section 55: Character as affecting damages

Part II

Chapter III: From Section 56 to 58 deals with facts that need not be proved

  • Contains Section 56 to 100 housed in 4 Chapters and deals with Proof.
  • Section 56: Facts judicially noticeable need not be proved
  • Section 57: Facts of which Court must take judicial notice
  • Section 58: Facts admitted need not be proved

Chapter IV

  • From Section 59 to 60 deals with Oral Evidence
  • Section 59: Proof of facts by oral evidence
  • Section 60: Oral evidence must be direct

Chapter V

  • From Section 61 to 90A deals with Documentary Evidence
  • Section 61: Proof of contents of documents
  • Section 62: Primary evidence
  • Section 63: Secondary evidence
  • Section 64: Proof of documents by primary evidence
  • Section 65: Cases in which secondary evidence relating to documents may be given
  • Section 66: Rules as to notice to produce
  • Section 67: Proof of signature and handwriting of person alleged to have signed or written document produced
  • Section 68: Proof of execution of document required by law to be attested
  • Section 69: Proof where not attesting witness found
  • Section 70: Admission of execution by party to attested document
  • Section 71: Proof when attesting witness denies the execution
  • Section 72: Proof of document not required by law to be attested
  • Section 73: Comparison of signature, writing or seal with others admitted or proved
  • Section 74: Public documents
  • Section 75: Private documents
  • Section 76: Certified copies of public documents
  • Section 77: Proof of documents by production of certified copies
  • Section 78: Proof of other official documents
  • Section 79: Presumption as to genuineness of certified copies
  • Section 80: Presumption as to documents produced as record of evidence
  • Section 81: Presumption as to Gazetteers newspapers, private Act of Parliament and other documents
  • Section 82: Presumption as to document admissible in England without proof of seal or signature
  • Section 83: Presumption as to maps or plans made by authority of Government
  • Section 84: Presumption as to collections of laws and reports of decisions
  • Section 85: Presumption as to powers of attorney
  • Section 86: Presumption as to certified copies of foreign judicial records
  • Section 87: Presumption as to books, maps and charts
  • Section 88: Presumption as to telegraphic messages
  • Section 89: Presumption as to due execution, etc., of document not produced
  • Section 90: Presumption as to documents thirty years old
  • Section 90A: Presumption as to electronic records five years old

Chapter VI

  • From Section 91 to 100 deals with Exclusion / Estoppel of Oral Evidence by the Documentary Evidence
  • Section 91: Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
  • Section 92: Exclusion of evidence of oral agreement
  • Section 93: Exclusion of evidence to explain or amend ambiguous document
  • Section 94: Execution of evidence against application document to existing facts
  • Section 95: Evidence as to document unmeaning in reference to existing facts
  • Section 96: Evidence as to application of language which can apply to one only of several persons
  • Section 97: Evidence as to application language to one of two set of facts, to neither of which the whole correctly applies
  • Section 98: Evidence as to meaning of illegible characters, etc.
  • Section 99: Who may give evidence of agreement varying terms of document
  • Section 100: Saving of provisions of Indian Succession Act relating to wills

Part III Production and Effect of Evidence

  • Contains Section 101 to 167 housed in 5 Chapters and deals with Production and Effect of Evidence.

Chapter VII

  • From Section 101 to 114A contains the provisions related to Burden of proof
  • Section 101: Burden of proof
  • Section 102: On whom burden of proof lies
  • Section 103: Burden of proof as to particular fact
  • Section 104: Burden of proving fact to be proved to make evidence admissible
  • Section 105: Burden of proving that case of accused comes within exceptions
  • Section 106: Burden of proving fact especially within knowledge
  • Section 107: Burden of proving death of person known to have been alive within thirty years
  • Section 108: Burden of proving that person is alive who has not been heard of for seven years
  • Section 109: Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent
  • Section 110: Burden of proof as to ownership
  • Section 111: Proof of good faith in transactions where one party is in relation of active confidence
  • Section 114A: Presumption as to absence of consent in certain prosecutions for rape

Chapter VIII

  • From Section 115 to 117 contains the provisions of Estoppel
  • Section 115: Estoppel
  • Section 116: Estoppel of tenant and of licensee of person in possession
  • Section 117: Estoppel of acceptor of bill of exchange, bailee or licensee

Chapter IX

  • From Section 118 to 134 contains the provisions of Witness
  • Section 118: Who may testify
  • Section 119: Dumb witness
  • Section 120: Parties to civil suit and their wives or husband-Husband or wife of person under criminal trial
  • Section 121: Judges and Magistrates
  • Section 122: Communications during marriage
  • Section 123: Evidence as to affairs of State
  • Section 124: Official communications
  • Section 125: Information as to commission of offences
  • Section 126: Professional communications
  • Section 127: Section 126 to apply to interpreters, etc.
  • Section 128: Privilege not waived by volunteering evidence
  • Section 129: Confidential communications with legal advisers
  • Section 130: Production of title-deeds of witness not party
  • Section 131: Production of documents which another person, having possession, could refuse to produce
  • Section 132: Witness not excused from answering on ground that answer will criminate
  • Section 133: Accomplice
  • Section 134: Number of witnesses

Chapter X

  • From Section 135 to 166 contains the provisions of Examination of Witnesses
  • Section 135: Order of production and examination of witnesses
  • Section 136: Judge to decide as to admissibility of evidence
  • Section 137: Examination-in-chief, Cross-examination, Re-examination
  • Section 138: Order of examinations
  • Section 139: Cross-examination of person called to produce a document
  • Section 140: Witnesses to character
  • Section 141: Leading questions
  • Section 142: When they may not be asked
  • Section 143: When they may be asked
  • Section 144: Evidence as to matters in writing
  • Section 145: Cross-examination as to previous statements in writing
  • Section 146: Questions lawful in cross-examination
  • Section 147: When witness to be compelled to answer
  • Section 148: Court to decide when question shall be asked and when witness compelled to answer
  • Section 149: Question not to be asked without reasonable grounds
  • Section 150: Procedure of Court in case of question being asked without reasonable grounds
  • Section 151: Indecent and scandalous questions
  • Section 152: Questions intended to insult or annoy
  • Section 153: Exclusion of evidence to contradict answer to questions testing veracity
  • Section 154: Question by party to his own witness
  • Section 155: Impeaching credit of witness
  • Section 156: Questions tending to corroborate evidence of relevant fact, admissible
  • Section 157: Former statements of witness may be proved to corroborate later testimony as to same fact
  • Section 158: What matters may be proved in connection with proved statement relevant under section 32 or 33
  • Section 159: Refreshing memory -When witness may use copy of document to refresh memory
  • Section 160: Testimony to facts stated in document mentioned in Section 159
  • Section 161: Right of adverse party as to writing used to refresh memory
  • Section 162: Production of documents -Translation of documents
  • Section 163: Giving, as evidence of document called for and produced on notice
  • Section 164: Using, as evidence, of document, production of which was refused on notice
  • Section 165: Judge's power to put questions or order production
  • Section 166: Power of jury or assessors to put questions

Chapter XI

  • Chapter XI contains only one section, the Section 167 that deals with provisions about Improper Admission and Rejection of Evidence
  • Section 167: No new trail for improper admission or rejection of evidence

Related Cases / Recent Cases / Case Laws

  • Management of Karnataka State Road Transport Corporation vs KSRTC Staff and Worker's Federation, AIR 1999 SC 1059 at p. 1070: Question of fact cannot be raised for the first time before the Supreme Court.

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