EVIDENCE ACT LECTURE – II (PRELIMINARY)

INDIAN EVIDENCE ACT

LECTURE – II
PRELIMINARY
Rule of evidence in civil and criminal cases
In both civil and criminal cases, the rules of evidence generally remain uniform. The Indian
Evidence Act, 1872 encompasses provisions that are equally applicable to both civil and
criminal trials. The interpretation clause of the Indian Evidence Act, 1872 holds the same
meaning for both civil and criminal procedures. The admissibility of documents or methods
used to establish facts is consistent across civil and criminal proceedings. However, certain
provisions within the Indian Evidence Act, 1872 exclusively pertain to either civil or criminal
cases. For instance, Section 23 addresses admissions in civil cases when relevant, while
sections 52 and 55 pertain to character evidence that is deemed irrelevant to proving conduct
and character’s impact on damages, respectively, in civil cases. Sections 115 to 117 specifically
deal with estoppel in civil cases. On the other hand, confession (Sections 24–30) and previous
good character (Sections 53 and 54) are exclusively applicable to criminal proceedings.
The following are the basic differences between civil and criminal cases regarding the proof or
effect of evidence:
1. In civil cases, it is customary for all witnesses to provide their evidence while under
oath. In criminal proceedings, it is possible for a kid who is below the age of 12 to
provide testimony without being required to take an oath, provided that the child
demonstrates an adequate comprehension of the issues posed and is capable of
providing coherent and sensible responses to them.
2. In civil trials, it is commonly seen that a rule of evidence has been loosened, allowing
for the admission of a document into evidence upon the agreement of the involved
parties. In the context of criminal trials, it is important to note that a universally
applicable principle of leniency does not exist.
3. In civil litigation, prior decisions serve as evidentiary support for the factual matters
that the parties attempted to litigate in subsequent lawsuits involving similar issues. In
criminal proceedings, prior judgements do not serve as evidentiary support for
establishing the veracity of the facts.
4. The act of confession is limited in its use to cases that include criminal offences. The
concept of confession is not commonly seen within the framework of civil law.
5. In criminal proceedings, the presiding judge has the authority to summon any witness
at their discretion if they believe that the testimony of said witness is essential for
reaching a fair and equitable verdict. In civil proceedings, the court lacks the authority
to compel any party to present a specific witness.
6. The clauses pertaining to estoppel, specifically Sections 115, 116 and 117, primarily
exhibit characteristics unique to civil law systems. The application of estoppel within
the realm of criminal law is not commonly encountered.

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7. In the context of civil procedures, it is permissible for both the individuals involved in
the lawsuit and the spouse of any party to the lawsuit to provide testimony as witnesses.
In the context of criminal proceedings, the spousal relationship between an individual
and the accused renders the husband or wife of said individual ineligible to provide
testimony as a competent witness.
8. In civil proceedings, a decision might be reached based on the preponderance of
evidence or the likelihood of a particular outcome. However, in criminal matters, which
pertain to the imposition of penalties upon the perpetrator, a heightened level of
certainty is necessary.
9. In civil litigation, the responsibility lies with the parties involved in the lawsuit to
present their evidence to the court in order to substantiate their claims. In criminal
proceedings, it is incumbent upon the prosecution to establish the guilt of the accused
beyond reasonable doubt. Hence, the Supreme Court made the observation that the
more severe the offence, the greater the burden of proof required.
10. In civil cases, it is possible to waive the restrictions outlined in Section 33, which
pertains to the relevance of specific evidence for establishing the reality of the facts
contained in said evidence during subsequent legal proceedings, through mutual
agreement. However, it is not possible to exempt or disregard such restrictions in
criminal proceedings.
Falsus in uno, falsus in omnibus
The Latin phrase “falsus in uno, falsus in omnibus” signifies that if something is untrue in one
aspect, it should be regarded as false in other aspects. There exists an argument suggesting that
when a portion of the testimony provided by a witness is deemed untrustworthy, it is necessary
to discredit the entirety of their testimony as a legal principle. The aforementioned maxim does
not hold the legal status of a law within the jurisdiction of India. The aforementioned maxim
has not garnered widespread recognition throughout various jurisdictions in India, nor has it
attained the stature of a legally binding principle. This guideline serves as a precautionary
measure. There is concern that the acceptance of this philosophy may result in a complete halt
to the administration of criminal justice. Witnesses are generally unable to embellish a
narrative, although this is generally accurate. Hence, it is imperative to evaluate the credibility
of the evidence in each instance, taking into account the degree to which it merits acceptance.
It is important to note that if the court deems certain aspects of the evidence inadequate for
relying on a witness’s testimony, it does not automatically imply that the evidence must be
entirely disregarded as a matter of legal principle. The evidence must be carefully manipulated.
There is a need to undertake an endeavour to distinguish veracity from fallacy, akin to the
process of separating grain from chaff.
In Bhagwan Tana Patil v. State of Maharashtra [AIR 1974 SC 21], it has been held that “the
mere fact that the evidence of the prosecution witnesses is not firm and safe enough to be relied
upon with regard to the part assigned to the acquitted accused in the occurrence is no ground
to reject it mechanically against the other accused also. The maxim falsus in uno falsus in
omnibus’ is not to be blindly invoked in appraising evidence adduced in our courts, where

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witnesses seldom tell the whole truth but often resort to exaggerations, embellishments, and
‘padding up’ to support a story, however true in the main. It is the function of the court to
disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. It
is only where truth and falsehood are inextricably mixed up, polluting beyond refinement the
entire fabric of the narration given by a witness, that the court might be justified in rejecting
his evidence in toto.’
In Gurucharan v. State of U.P. [AIR 1956 SC 360], it has been held that because two of the
four accused have been acquitted, even though the evidence against them was the same as
against the appellant, would not entitle them to acquittal only on that ground.
In Gallu Shah v. State of Bihar [AIR 1958 SC 813], it has been held that the witnesses were
disbelieved with regard to some accused but they were believed with regard to others, and no
rule of law was held to have been violated.
INTERPRETATION CLAUSE - DEFINITIONS
Judicial Proceedings
Definition:
The term ‘Judicial Proceedings’ is not defined in the Indian Evidence Act, 1872, but it is stated
in Section 1 that “It applies to all judicial proceedings in or before any court.
Under Section 2(i) of the Code of Criminal Procedure, 1973, judicial proceedings includes any
proceedings in the course of which evidence is or may be legally taken on oath.
Abbott Law Dictionary defines the judicial proceedings as a general term for proceeding in
Courts; for the course authorized to be taken in various cases to secure the determination of
controversy; to obtain the enforcement of a right or the redress or prevention of a wrong.
In Queen v. Golam Ismail [All. 1 FB P. 13], it is defined that “judicial proceeding” is any
proceeding in the course of which evidence is or may be taken or in which any judgment,
sentence or final order is passed or recorded evidence.
Courts discharge two types of duties, namely (i) administrative; and (ii) judicial. An inquiry
about matters of fact, where there is no discretion to be exercised and no judgment to be formed
but something is to be done in a certain event as a duty, is an administrative inquiry. A
proceeding in which only administrative duties are to be discharged cannot be said as a judicial
proceeding. The Indian Evidence Act, 1872 applies to all judicial inquiries. In Alchayya v.
Gangaiah [ILR 15 Mad. 138], it has been held that an inquiry is judicial if the object of it is to
determine the jural relation between one person and another, a group of persons, or between
him and the community generally.
In Queen Empress v. Tulja, [ILR (1887) 12 Bom. 36(42)] it has been held that an inquiry in
which evidence is legally taken is included in the term judicial proceeding.
Examples of Judicial Proceedings:
i) The proceedings in or before any Court are judicial proceedings.

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ii) A trial before a Court-martial is a judicial proceeding.

iii) An investigation directed by law preliminary to a proceeding before a Court of Justice
is a stage of a judicial proceeding.
iv) An executive proceeding is a judicial proceeding.
v) Every proceeding in the course of which evidence is or may be legally taken on oath
is a judicial proceeding.
vi) An application for leave to sue is a stage of judicial proceeding.
vii) The appointment of a Commissioner or receiver by a Court is a judicial proceeding.
Examples of proceedings which are not judicial:
i) Proceedings before a Magistrate not authorised to conduct an inquiry.
ii) An inquiry by a District Magistrate into a crime alleged.
iii) An inquiry under Section 176 of the Code of Criminal Procedure, 1973.
iv) An inquiry under Section 340 of the Code of Criminal Procedure, 1973, (old Section
476).
v) An inquiry conducted by a Collector under the Land Acquisition
vi) A departmental inquiry.
vii) The proceedings before the authorities of sales-tax and Income-tax; labour tribunals;
commissions of inquiry.
viii) A statement recorded by a Magistrate in the course of police investigation under Sec.
164 of the Code of Criminal Procedure, 1973.
Court
Meaning of Court:
In England, the word court originally meant the King’s palace. Later it was given the meaning
that a person or persons who administers justice and also a place where justice was
administered.
A court is defined as a place wherein justice is judicially administered. “In every Court, there
must be at least three constituent parts-the actor, reus and judex: the actor, or plaintiff, who
complains of an injury done; the reus, or defendant who is called upon to make satisfaction for
it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine
the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by
its officers to apply the remedy”.
In general sense, court is a body in the Government to which the public administration of justice
is delegated, an organised body, with defined powers, meeting at certain times. and places, for
the hearing and decision of causes and other matters brought before it, and aided in this, its

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proper business, by its proper officers, viz. attorneys and counsel, to present and manage the
business, clerks to record and attest its acts and decisions; and ministerial officers to execute
its commands and secure order in its proceedings.
In Indian Evidence Act, 1872, the word ‘Court’ is defined to include all Judges and Magistrates
and all persons except arbitrators legally authorised to take evidence. The expression “include”
would show that the Act is not meant to be exhaustive. In Braj Mandan Sinha v. Jyothi Narain
[AIR 1956 SC 66], the Supreme Court has held that the definition is necessarily not exhaustive
but is framed only for the purpose of the Act, and as such cannot be extended where such
extension is not warranted.
In the 69th Report of the Law Commission of India, the following five tests have been
suggested to determine whether a person or body of persons, is to be regarded as Court:
1) Test of exercise of judicial functions under authority derived either immediately or
mediately from the sovereign.
2) Test of definitive judgment.
3) Test of legal power to take evidence.
4) Test of judicial power, or of being a part of the judiciary.
5) Test of exercise of power otherwise exercisable by civil and revenue courts.
Under the Indian Evidence Act, 1872, ‘Court’ includes Judges and Magistrates. The Act has
not defined the words ‘Judges’ and Magistrates’. However, under Section 2(8) of Code of the
Civil Procedure, 1908, Judge means the Presiding Officer of a Civil Court and the Section 19
of the IPC states that the word ‘Judge’ denotes not only every person who is officially
designated as Judge, but also every person,-who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed
against, would be definitive, or a judgment which, if confirmed by some other authority, would
be definitive, or who is one of a body of persons, which body of persons is empowered by law
to give such a judgment.
Under Section 3(32) of the General Clauses Act, 1897, “Magistrate shall include every person
exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for
the time being in force”.
Under Section 20 of the Indian Penal Code, 1860 the word ‘Court of Justice’ is defined as a
Judge who is empowered by the law to act judicially alone, or a body of Judges which is
empowered by law to act judicially as a body, when such Judge or body of Judges is acting
judicially.
Thus, according to the definition given in Section 3 of the Indian Evidence Act, 1872, the Court
does not mean the place or the four walls of the premises where justice is administered but it
means and includes all Judges and Magistrates and all persons, except arbitrators, legally
authorized to take evidence. The definition of ‘Court’ in this Act is framed only for the purpose

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of the Act itself and should not be extended beyond its legitimate scope. Special laws must be
confined in their operations to their special subjects.
Examples of Judicial Proceedings held to be that of a ‘Court’:
i) A Magistrate making the inquiry for committing a case to the Court of Sessions.
ii) Commissioner appointed for holding an inquiry under Public Servants (Inquiries) Act,
1850 is a Court.
iii) Accident Claims Tribunal under Motor Vehicles Act of 1939 is a Court as it has the
power to record evidence on oath.
iv) The Election Tribunal under M.P. Municipalities Act.
v) Assistant Collector acting under Section 134 of the Excise Act is a Court within the
meaning of Section 195 of the Code of Criminal Procedure, 1973.
vi) The Rent Controller under the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 is a Court.
vii) Under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956,
the authorities under the Act constitute a Court as the provisions of the Indian Evidence
Act, 1872 are applicable to the proceedings before them.
Examples of Judicial Proceedings held to be not proceedings in a Court:
The following were held to be not proceedings in a court
i) A Commissioner appointed under Public Servants (Inquiries) Act, 1950 is not a Court.
ii) Proceedings before the Income-tax Authorities.
iii) Proceedings under the Contempt of Courts Act.
iv) Proceedings of the Collector of Central Excise.
v) Proceedings of Regional Transport Authority.
vi) Proceedings of a Commissioner appointed to record evidence and submit a report.
vii) Magistrate holding preliminary inquiry under Section 164 of the Code of Criminal
Procedure, 1973.
Meaning of Evidence:
The word ‘Evidence’ is derived from the Latin ‘Evidentia’ which means “the state of being
evident, i.e., plain, apparent clear”. It is also related to the Latin expression ‘evidens evidere’
which means to show clearly, to make plain, certain or to prove.
Wigmore states that the term evidence means any knowable facts or group of facts, not a legal
or a logical principle, considered with a view to its being offered before a legal tribunal for the
purpose of producing a persuasion, positive or negative, on the part of the tribunal as to the

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truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to
be asked.
Taylor states that it includes all the legal means exclusive of mere argument, which tend to
prove or disprove any matter of fact, the truth of which is submitted to judicial investigation.
According to Bentham, evidence is defined as any matter of fact, the effect, tendency or design
of which is to produce in the mind, a persuasion affirmative or disaffirmative, of the existence
of some other matter of fact.
Tomlin’s Law Dictionary states that evidence is the means from which an inference may
logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses,
on oath; or by writing or records.
Blackstone states that evidence is that which demonstrates, makes clear, or ascertains. The truth
of the very fact or point in issue either on the one side or on the other.
In Best’s Evidence, it is explained that the word ‘evidence’ signifies, in its original sense, the
state of being evident, i.e., plain, apparent, or notorious. But by an almost peculiar inflexion of
our language, it is implied that that which tends to render evident or to generate proof. This is
the sense in which it is commonly used in our law books. In this way, evidence has been well-
defined as any fact whose effect, tendency, or purpose is to convince the mind, either positively
or negatively, of the existence of some other fact.
Lord Cowper states that “The wisdom and goodness of our law appear in nothing more
remarkably than in the perspicuity, certainty, and clearness of the evidence it requires to fix a
crime upon any man, whereby his life, his liberty, or his prosperity may be concerned: herein
we glory and pride ourselves and are justly the envy of all our neighbouring nations. Our law,
in such cases, requires evidence so clear and convincing that every bystander, the instant he
hears it, must be fully satisfied on the truth of it; it admits of no surmises, innuendos, forced
consequences, or harsh constructions, nor anything else to be offered as evidence, but what is
real and substantial, according to the rules of natural justice and equity”.
The word evidence, considered in relation to law, includes all the legal means, exclusive of
mere argument, that tend to prove or disprove any matter of fact, the truth of which is submitted
to judicial investigation.
According to Phipson, “Evidence, as used in judicial proceedings, has several meanings. The
two main senses of the word are: first, the means, apart from argument and inference, whereby
the court is informed as to the issues of fact as ascertained by the pleadings; secondly, the
subject matter of such means. The word is also used to denote that some facts may be admitted
as proof and, in some cases, that some facts have relevance to the issue of fact. In a real sense,
evidence is that which may be placed before the court in order that it may decide issues of fact.
Evidence, in the first sense, means the testimony, whether oral, documentary, or real, that may
be legally received in order to prove or disprove some fact in dispute. In the second sense, it
means the content of that testimony.”

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According to Stephen, evidence means “that part of the law or procedure which, with a view
to ascertain the individual rights and liabilities in particular cases, decides what facts may or
may not be proved in such a case; what sort of evidence has to be given of a fact which may be
proved, by whom and in what manner evidence must be produced relating to a fact Which is
to be proved.”
To sum up, the statements made by the witness in Court under the legal rules relating to the
matters of fact under inquiry and/or the documents produced for the inspection of the Judge,
or the Court may be termed as evidence.
Section 3 of the Indian Evidence Act, 1872, defines evidence as given below:
“Evidence”: Evidence means and includes,
1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry such statements are called
Oral Evidence;
2) all documents including electronic records produced for the inspection of the
Court; such documents are called Documentary Evidence.
The definition of evidence covers the evidence of witnesses and documentary evidence. Both
of them must be produced before the Court for its inquiry and inspection. All the statements
must be permitted by the court or required to be produced before it by the witnesses. The term
“court” in its definition limits the purview of evidence to judicial proceedings only.
The definition of ‘evidence’ in Indian Evidence Act, 1872 is not exhaustive. It is incomplete.
It does not include all means of proof or real evidence, i.e., the demeanour and conduct of the
parties to the suit, the demeanour of the witnesses, etc. Oral evidence is one of the important
factors for consideration by the court in coming to its conclusion, but it has to be tested by the
yardstick of probability along with other materials on record. Oral evidence must pass the
probability test before it can be accepted. In criminal cases, evidence can be recorded through
video conferencing. Electronic records include video conferencing. Video conferencing is an
advancement in science and technology that permits one to see, hear, and talk with someone
far away with the same facility and ease as if he is present before the recording officer or court.
Items which are not evidences
The following are not evidences:
a. According to Section 1 and the definition of Evidence under Section 3, an affidavit is
not evidence.
b. Under the Indian Evidence Act, 1872, matters other than statements of witnesses and
documents produced for the inspection of the Court e.g.
i. a confession or a statement of an accused in a trial; statements made by parties
when examined otherwise than as witnesses; demeanour of any witness under
examination;

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ii. the result of local investigation or local inspection; and

iii. material objects other than documents such as weapons, tools, stolen properties
etc. are not ‘evidence’ according to the definition of the Act.
c. A statement of a witness recorded under Section 161, of the Code of Criminal
Procedure, 1973, is not evidence though it may be considered for other purposes.
[Bhuboni Sahu v. King, AIR 1949 pc 257].
d. Result of investigation is not a legal evidence. [Kaptan Singh v. State of M.P., AIR
1997 SC 2485].
e. The statement in reply to a show-cause notice is not evidence. [Collector of Central
Excise, Baroda v. L.M.P Precision Engg. Co. Ltd., AIR 2004 SC 3309].
f. The Privy Council observed: A statement made under Section 164 of the Code of
Criminal Procedure, 1973, can never be used as substantive evidence of the facts
stated, but it can be used to support or challenge evidence given in Court by the person
who made the statement.
g. An affidavit required to be filed under amended Section 26(2) and O. VI. R. 15(4) of
the Civil Procedure, 1908, would not be evidence for the purpose of the trial. [Salem
Advocate Bar Association v. Union of India, AIR 2005 SC 3353].
h. When the Court has not directed the proof of a fact by an affidavit it is no evidence.
[Vishwanath v. Abdul, AIR 1963 SC 1]. Affidavit is no evidence under the Indian
Evidence Act, 1872 but it can be so used under Order XIX, the Civil Procedure, 1908,
and Sections 295 and 296 of the Code of Criminal Procedure, 1973.
i. Judges cannot impart his personal knowledge to take place of evidence nor can he-
rely on books (not being text books) if the books were not admitted in evidence or
were inadmissible. [Vallabh v. Madusudhanam, ILR 12 Mad. 495]. In Pritam Singh
v. State of Punjab, (AIR 1956 SC 415) it was held that the learned Judge was not
entitled to allow his view or observation to take the place of evidence because such
view or observation could not be tested by cross-examination.
j. When the accused makes a statement in answer to questions from the Court it does
not fall within the definition of the word evidence as defined in the Indian Evidence
Act, 1872. [AIR 1958 Cal. 616]
k. The speeches by the Ministers and the Members of Assembly are inadmissible in the
Court of Law, when the provisions of an enactment are being considered. [S.R.
Mehrotra v. State of H.P., AIR 1997 HP 51]
l. Newspaper items by itself does not constitute evidence. [Niranjan Lal Ratan Kumar
v. River Steam Navigation Co. Ltd., AIR 1967 Assam & Nagaland 74].
m. Pleadings do not constitute evidence. [State of Punjab v. Ramjilal, AIR 1971 SC
1228].

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n. Report of Medical Officer without statement on oath by the Medical Officer is not
evidence. [Reshmi v. Jai Singh, 1975 Hindu LR 22].
o. Conclusions of witnesses including the police are not evidence. [1975 Mad. L.J. (Cri.)
399]
p. Answers by the accused under Section 313 of the Code of Criminal Procedure, 1973,
are not evidence. [S.K. Gosh v. State, AIR 1969 Ori. 228].
q. Evidence collected by the police during investigation is not evidence. [Ranjit Singh
v. State, AIR 1952 HP 81].
r. The statement made in a letter addressed to the Court is not evidence. [Ramjanam
Singh v. State of Bihar, AIR 1956 SC 643].
s. Statement of witnesses in the FIR or before police and identification parade held by
the Magistrate is not substantive evidence. [Ajayab Singh v. State, 1978 Raj.L.W. 9].
t. Judicial confession of a co-accused, though evidence in a generic sense, is not
evidence under Section 3 of the Indian Evidence Act, 1872. [Bindu Gouda v. state,
AIR 1965 Ori. 170].

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