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Concept and Historical Background of Evidence

The document provides a historical overview of the development of evidence law in India. It discusses how evidence was determined in ancient Hindu and Muslim periods, including trials by battle, ordeal, and touch. It outlines the inconsistent application of evidence rules in British-era India and the need for a uniform evidence act, which led to the enactment of the Indian Evidence Act of 1872 that drew from English evidence law but was tailored to Indian society. The Act standardized evidence rules across India and remains the governing law today.

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1K views19 pages

Concept and Historical Background of Evidence

The document provides a historical overview of the development of evidence law in India. It discusses how evidence was determined in ancient Hindu and Muslim periods, including trials by battle, ordeal, and touch. It outlines the inconsistent application of evidence rules in British-era India and the need for a uniform evidence act, which led to the enactment of the Indian Evidence Act of 1872 that drew from English evidence law but was tailored to Indian society. The Act standardized evidence rules across India and remains the governing law today.

Uploaded by

Rvi Mahay
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Concept and Historical

Background of Evidence
What is Law
• The term “law” is used in different senses.
In the plain sense it means any rule,
regulation or canon, a dogma or a norm to
which the human actions are required to
conform.
• The entire corpus juris (body of laws) is
broadly classified into two categories:
• Substantive laws
• Adjective laws
Law of Evidence
• The law of evidence come under the
purview of neither substantive nor
procedural law but come under adjective
law.

• It is the machinery by which substantive


laws are set and kept in motion.
• Section-3 Defined as 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 electronics
record] produced for the inspection of the
court;
Such documents are called documentary
evidence.
History of Evidence Law in India
• Prior to IEA, the rules of Evidence were
not universal rather subjective in nature.
• It were varying with the
– Different social groups
– Communities of India,
– As well as his or her caste, religion and social
faith.
Trial by Battle
• Initially at many places and in many
beliefs, Trial by battle used as a tool to
extract the truth.
• Belief was that divine help will come to the
rightful party.
• Trial by battle has been abrogated only in
1817.
Trial by Ordeal
• Trial where the guilt or innocence of the
accused was determined by subjecting them
to:
– A painful, or
– At least an unpleasant,
– Usually dangerous experience.
• It included a person on bed of hot coals or
putting ones hand in boiling water.
• Anyone who suffered injury was held to be
impure and guilty.
• Criticise due to the role of prreast in these
Trial by Touch
• Belief was that if a guilty man touches the
corpse it would show a reaction and then
the man should be punished.
• Accordingly refusal to touch a corpse was
also admission of guilt by the accused.
Weird Evidence System of the Europe
• The most cruel evidence law existed in
Europe with respect to witch hunts and
witch craft.
• The woman suspected of being a witch
was tied up and thrown into a pond.
• If she floated up, she was a witch and was
burned alive at stake.
• If the woman were to sink to the bottom of
the pond, she was not a witch.
• Confessions due to torture are not
unknown today either.
• English rule of evidence was followed by
the presidency towns of Calcutta, Madras
and Bombay.
• The Mofussil courts were governed by
Mohammendan and English rules of
evidence.
Historical Background
• In order to traced the history of the law of
evidence in our country we have to visit
three different periods:
• The ancient Hindu period;
• The ancient Muslim period; and
• The British period.
Ancient Hindu period
• Law of evidence prevailing in Hindu India
emanate from the Hindu dharma Shastras.
• According to Hindu dharma shastras the
purpose of any trial is the desire to
ascertain the truth.
• This emphasized that
– a judge by using his skill should extricate the
deceit like a physician taking out from the
body an iron dart with the help of the surgical
instruments.
• Vasista recognised three type of evidence:
– Lekhya (documentary evidence)
– Sakshi (witnesses)
– Bukhthi (possession)
– Divya (Ordeals)
Ancient Muslim period
• The Mohammendan law givers deals with
evidence under the heads of oral and
documentary.
• Oral evidence is further sub-classified into
(a) direct and
(b) hearsay evidence as in present day
British Era
• As Sarkar Points out, “before the introduction of
the Indian Evidence Act, there was no complete
or systematic enactment on the subject”.
• In Presidency Town the courts established by the
Royal Charter used to follow the English Rules of
Evidence.
• Outside the Presidency the application of Law of
Evidence was vague.
• Mofussil Court were also not bound to follow the
English law of evidence.
• There was a certain amount of caprice and
arbitrariness in the administration of law of
evidence.
• This anarchy paved a way for the
enactment of Indian Evidence Act
premised on line of English Evidence Law.
• Certain efforts have been made in 1835
and in 1853 but same were desultory.
• Curtain raiser was the Draft bill on
Evidence of 1868 perpared by the Indian
Law Commissioner in the Chairmanship of
Henry Maine..
• According to Maine the state of judicial
anarchy in the administration of evidence
was highly unsatisfactory.
• Moreover, wholesale importation of
English Law of Evidence in India is not
feasible as per need and status of Indian
Society.
• Draft bill did not pass the even first stage
of reading and same was criticized for its
complexity and paucity of expertise of
Indian Judges in applying the said law.
• Sir James Fitzjames Stephan who became
the law member in 1871 to come up with
the Indian Evidence Act.
• His draft bill was approved and came into
being as the Indian Evidence Act, 1872
• It came into force from 1st September
1872.
• Before independence, many states had
already accepted this law as the law in
their respective state.
• After independence, the Indian evidence
Act was held to be the law for all Indian
courts.

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