Scope of Evidence Act

On the night of 19th July 2019, the dead body of one ‘A’ was discovered in A’s house by A’s neighbour. Police were soon informed, and the area was cordoned off. The body of A was found drenched in blood and multiple stab wounds were clearly visible. There was a splatter of blood on the walls. The police started the investigation, the forensic team was called, and the police started collecting pieces of evidence from the crime scene. The neighbour is questioned, friends and family of the deceased are questioned.

Now in this case, let us assume the police has collected about 50 different pieces of evidence which they believe can strengthen their case against one ‘B’, who is the ex-lover of A. These evidences range from

• Abusive messages sent by ‘B’ to ‘A’ because A refused to talk to him and was not picking up B’s call.  
• the frantic call records of ‘B’ to ‘A’,
• the relationship timeline of ‘A’ and ‘B’, how ‘B’ was a loving partner and then turned into a raging and vengeful lover.
• Police also knows that ‘B’ had arrived in the town on the day of ‘A’s death to visit ‘A’.  
• ‘B’ and ‘A’ were also seen fighting in the public in a restaurant where they ate on the same day.
• The police also found a denim thread on the nail of the table in A’s house which matched the jeans which B was wearing the day he visited A.
• Police also found out that B has a past behaviour of bad temper when certain neighbours in his locality have made complaints against him for picking fights in the neighbourhood streets.
•  During investigation, police found out that B had taken a loan of 50,000/- from A which A was now demanding back but B was unable to pay it and was asking for more and more time.
• Footprint in the house of A on the same day of A’s death which are of the same size and shape as the shoe size of B.
• Police recorded the statement of one ‘D’ who is the childhood friend of A. She told the police that often A and B used to fight a lot and A would get very upset because of controlling behaviour of B. B would sometimes start shouting at B for small things and even start throwing and breaking things when B would be angry.
• Police recorded the statement of one ‘E’ who was the college roommate of ‘B’ who told the police, “B was madly in love with A. He can never stab A that badly. B had temper issues but he never raised his hand on A or injured A in any manner. B just wanted to keep A happy and they fought just like any other normal couple.

Now, there can be numerous questions in this case.

• Will the police submit all this evidence before the court? If not all, then which evidences are to be presented?
• Even if all evidences are presented, do they all carry the same weight and impression? If not, then who decides what will be the weight of each evidence?
• Also, in which form the evidence is to be submitted before the court? Do the police have to produce the mobile which contains the chat of A and B or the police can take out the printout of the chat? Even if printout of the chat is taken out, how does the court know that the chat has not been edited and is in its original form?
• Also, none of the evidences in the above case clearly show B killing A. Can such evidences be presented and how does the court infer from such evidence that B is guilty of murder of A?
• Furthermore, we can see that two different witnesses i.e. ‘D’ and ‘E’ have presented two different versions of the same relationship between ‘B’ and ‘A’. How does the court decide which witness to believe or not? What are the criteria that a witness must fulfil in such a case?

Thus, we can see that there are a million questions at this stage regarding the EVIDENCES to be presented in trial before the court. This is where the Indian Evidence Act steps in. As we shall discuss the Indian Evidence Act, we will find out that the act provides answers to all these questions.

The Indian Evidence Act deals with the following

• What facts may be proved? (Section 5-55)
• What facts need not be proved? (Section 56-58)
• By what means facts may be proved? (Section 59-99)
• By whom facts may be proved? (Section 101-167

WHICH LAW OF EVIDENCE TO APPLY?

In any given case, how do we decide which law of evidence is to be applied. Why only Indian Evidence Act and why not the evidence law of America or Britain? What if in the above case ‘A’ happened to be a national of United States of America who was here on a holiday? Then also, do we need to apply the law of India and not that of USA?

Here, we see the concept of lex fori. Law of evidence is lex fori which simply means law of the forum. Thus, the answer to question as to which law of evidence is to be applied in a case depends on the forum in which the case will be tried. If the case is being tried in India, the Indian law of evidence will be applied in the case irrespective of the nationality of the parties to the case. The only requirement for application of Indian evidence act is that the forum should be in India. So, even if ‘A’ or ‘B’ happened to be national of some other country, but if the case is being tried in India, Indian Evidence Act will apply and only the evidences which are allowed to be presented under Indian Evidence Act can be given in a case.

DOES EVIDENCE ACT APPLY IN ALL FORUMS IN INDIA?

TERRITORIAL APPLICATION: Section 1 of Indian Evidence Act provides for the territorial application of the act. The section in your bare act might say ‘it extends to whole of India except the State of Jammu and Kashmir’. Earlier, the state of Jammu and Kashmir enjoyed special status by reason of Article 370 of Constitution of India. However, with the abrogation of Article 370 on 5^th August, 2019 the special status of Jammu and Kashmir has been revoked. As a result the parliament has passed Jammu and Kashmir reorganisation act, 2019 and Section 95 of the Act specifies that the central laws mentioned in Table 1 of fifth schedule shall also apply to the UT of Jammu and Kashmir and UT of Ladakh. This table includes Indian Evidence Act along with many other acts.

Thus, now the words ‘except the state of Jammu and Kashmir’ in Section 1 of Indian Evidence Act stands omitted and the Indian Evidence Act applies to the UT of Jammu and Kashmir and Ut of Ladakh as well.  

APPLIES TO ALL JUDICIAL PROCEEDINGS: Section 1 of Indian Evidence Act states that the act applies to all judicial proceedings in or before any Court. Thus, there are two requirements for application of the act:

• It must be a judicial proceeding: The term judicial proceeding is not defined in the act. Judicial proceeding can be defined as an enquiry the purpose of which is to determine the jural relation between the parties to the case.

A non judicial proceeding would be one in which the judge is acting in an administrative capacity. There is no judgment to be formed in such an enquiry.

• Such judicial proceeding must be before a court: The term ‘court’ is defined in section 3 of the Indian Evidence Act as including
• Judges
• Magistrates
• All persons legally authorised to take evidence
• Does not include an arbitrator

Thus, a commissioner appointed under Code of Civil Procedure is legally authorised to take evidence and is therefore, a court within the meaning of this act. Thus, Indian Evidence act will apply on such commissioner. However, an arbitrator is expressly excluded from the definition of court.

APPLIES TO COURT MARTIAL: Section 1 of Indian Evidence Act further states that the act shall also apply on court martials except court martials mentioned in the act specified in the section. This becomes a matter of confusion sometimes. The court martial on which Indian Evidence act applies are the court martials under domestic law.

Are tribunals ‘court’ under Indian Evidence Act? There are two divergent views on this question. One view is that tribunals are court as they fit the definition of court as given under Indian Evidence Act. The tribunals are legally authorised to collect evidence under the provisions of statutes governing them.

However, the second view is that tribunals are formed to deal with certain specific matters. For example, Income Tax tribunal deals with Income tax cases, Industrial Disputes Tribunal deals with labour related cases. Thus, these tribunals are formed to deal with cases in which public is far more interested. The public on a larger scale is affected by the decisions of such tribunals rather than decision of ordinary courts in cases between private litigants. Thus, such tribunals will be able to deal better with the case when they are free from any restrictive technicalities of the act. That is why, many statutes governing such tribunals clearly specify that the tribunal shall not be bound by the rules of Indian Evidence Act.

Therefore, it can be said that while tribunals are court within the meaning of Evidence act, the provisions governing the tribunal make them free from the technicalities of the act and they are not bound by the rules of Indian Evidence Act is it is clearly specified.

ARBITRATION: Arbitrators are not bound by the strict rules of evidence which are applicable before court of law. The object is to avoid the elaborate procedure of a regular trial.

• SOME BASIC RULES OF EVIDENCE ACT:

Before we proceed further with the law of evidence, we must remember the following rules which are the golden principles which run throughout the act. Once we remember these rules, we will be able to understand Indian Evidence Act more clearly.

1. Evidence must always be confined to matter in issue: this means that no evidence related to an unnecessary fact can be given in a case. For example see section 153 of the Indian Evidence Act. It says that once the witnesses has given an answer, the answer shall be final and no evidence can be presented to contradict such witness. This is because the witness is not at trial but it is the parties who are at trial. Therefore, giving evidence to rebut the answer of witness becomes unnecessary.

• Best evidence must always be given before the court. (See section 59 and 60)
• As a rule, hearsay evidence must be excluded: we shall discuss in detail what is hearsay evidence and whether there is any exception to this rule.