In this paper we will discuss about the concept of law of evidence and also the views of the people regarding the adjective law. Law of Evidence is Lex Fori which means it consists of legal rules of evidence. Since the inception of Law of Evidence it has gone into transformation in various periods. Evidence is what leads to truth, evidence is a piece of life, a fact a real or tangible thing that elicudicates a proposition. Evidence is derived from deductive reasoning, logical inference and supposition. Evidence is the laws substantive and procedural instruction for the use of evidence. Evidence is what leads to truth, evidence is a piece of life, truth is a real or tangible thing that clarifies a proposition. Evidence is based on narrow-minded thinking and logical reasoning. Evidence is applicable law and procedure for the use of evidence. There have been several attempts in recent decades to overhaul the body of criminal law, comprising the Indian Penal Code of 1860 vintage, the Code of Criminal Procedure that was rewritten in 1973, and the Indian Evidence Act that dates back to 1872. However, comprehensive legal reform is something that requires careful consideration and a good deal of deliberation. If a law is to be reformed there should be genuine attempt to reach a wide number of people. Reform is best achieved through a cautious and inclusive approach.
The term “law” is used in different senses. In the plain sense, it denotes any rule, regulation or canon, or a norm to which the human actions needed to follow. The entire corpus juris (body of laws) is broadly classified into two categories:
- Substantive laws, and,
- Adjective laws.
Law of evidence is an adjective law which combines both procedural and substantive law. So it can be said that the law of evidence deals with rights, as well as, procedures. Law of evidence is Lex fori. It means evidence is one of those matters which are governed by the law of the country in which the proceedings take place (Lex Fori).
Evidence is the means and proof is the end. Evidence is the means to proof something which but the definition of evidence as per as section 3 of the Indian Evidence Act, Evidence means and includes
- 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;
- All documents [including electronics record] produced for the inspection of the court; Such documents are called documentary evidence.
The objective of codification to secure uniformity
where you can have it, diversity where you must have it,
but in all cases, certainty”. – Macaulay
Our Law of Evidence is totally based on The English Law of Evidence. The great mass of rules and principles of the English Law of Evidence are codified. In the case, Parasram vs Mewa Kunwar, it was held that ” Rules of Evidence are retrospective in their operation.” That too, another view observed in Gardner’s case is that ” the Law of Evidence is law of mere procedure and does not affect substantive rights and therefore ” alteration in form of procedure are always retrospective, unless there is some good reason or other why they should not be”
- In order to trace the history of the law of evidence in our country, we must study three different periods:
- Ancient Hindu period;
- Ancient Islamic period; and
- British time.
Ancient Hindu Period –
The genealogy of the legal information available in Hindu India is from Hindu Dharmashastras.According to Hindu dharmashastras, the purpose of any path is the desire to find the truth. It was emphasized that the judge, using his expertise, should remove the plaque as a surgeon removes metal waste from the body with the help of surgical instruments.
British Period –
In British India, the presidency courts by character of a royal charter establish in Bombay, Madras and Calcutta were following English rules of the law of evidence. In mofussil courts, outside the presidency towns, there were no concrete rules pertaining to the law of evidence. The courts relished unrestrained liberty in the matter of acceptance of evidence. The entire administration of justice in the mofussil courts, in the absence of any definite rules regarding the law of evidence, was in total havoc. There was a terrible necessity for the codification of the rules of law. In 1835 the first endeavor was made to codify the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about eleven enactments were passed dealing with the law of evidence. But all these enactments were found inadequate.
In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne. He submitted the draft, which was later found unsuitable to Indian conditions. Later in the year 1870, this work of compiling the laws of the law of evidence was given to Sir James Fitz James Stephen. Stephen presented his draft, which was forwarded to a select committee and to the highest courts and members of the Bar for comment, after which the bill was tabled in the legislature and adjourned. And finally, the “Law of Evidence” came into force on September 1, 1872.
Before that, Independence, there were many 600 states in India, which were not under British jurisdiction. Each of these states had its own rules of evidence. Most importantly, the Indian witness law was followed in 1872. After independence, there was a meeting of the princely states in the Indian Union. Both applicable laws and procedures have always been the same in all provinces, be it British or American. Most importantly, the law of evidence now applies to all the states that make up the Union of India.
CONCEPT OF EVIDENCE
The word “evidence” means in its original sense, the state of appearance, that is, the clarity, appearance or thunder. But it is used in what often tends to give evidence or produce evidence. The truth sought to be proved is called the fundamental truth; the truth that loves to prove it, the truth of the evidence (Very good). In English law, the word “testimony” sometimes refers to the words spoken and the statements made by witnesses before the Court of Justice.
In some cases, it means that the facts have been shown to exist by those words or things and are considered to be the basis for certain strong inclinations that have not been proved so. Also, it is sometimes used as an assertion that a certain fact is related to the question being asked. In the Law, however, the word is given a clear meaning and is used only in these original senses used as such, it only shows the tool by which the relevant facts are brought before the Court (i.e., witnesses and documents) and the Court is dismissed by these facts and therefore matters other than statements of witnesses and documents prepared for Court examination, e.g. the consent or statement of the accused during the trial. Statements made by parties when examined in a manner other than witnesses, the character of witnesses, the result of a local investigation or examination, and material other than documents such as weapons, tools, stolen property, etc., are not “evidence” according to the definition provided in the Act. Statement recorded under Section 164, Cr. P.C. it is not the evidence that explains this meaning. So also the defendant’s confession is not evidence in the general sense of the word. The full evidence of hostile witnesses is not left out or made unfit for consideration.
Evidence is usually divided into three categories:
• orally or personally or primarily,
• documentary or second,
• tangible or virtual reality.
But the truth only sees the first two stages. Real or tangible evidence is provided by material to be examined by the Court, e.g. Criminal weapon or stolen property. Evidence can be oral and documentary records and electronic records that can be submitted as evidence. This means that evidence, even in criminal cases, can also be made in the form of electronic records. This may include a video conference. Oral evidence can be divided into two categories:
Indirect or hearing
Direct evidence is that which goes beyond the point being discussed and which, if it is believed, proves the point being discussed without any help from speculation or speculation, e.g. Eyewitness testimony in the form of direct or indirect evidence, on the other hand, does not prove the point directly, but it only establishes an inclination. Therefore, when A was tried with B assassination, the true evidence A had the motive for killing Band that, when B was killed, A, with a drawn sword, was seen going to the place where B was killed and, shortly thereafter, appeared returning from the scene with his blood stained clothes, it can be indirect or circumstantial evidence. Direct evidence, as it is understood, should not be confused with the concept in which the term is used in section 60 of the Act. In section 60 the term “direct evidence” is used in contrast to the “ear” evidence and not in opposition to “evidence”, therefore, in the manner in which the term is used in that section, circumstantial evidence must remain precisely “, that is, the facts with which to prove the existence what must be identified must be proved by “direct” and not by “hearing” evidence.
The Indian Witness Act, 1872 was enforced on 01-09-1872. Sir James Fitz James Stephen is the author of Our Testimony Law. It was divided into 3 sections (three), 11 chapters (eleven) and 167 sections (one hundred and sixty-seven). The legal concept of proof is not universal and is not universal. The understanding of the mid-period evidence during the crisis period would have been very different from modern theories (Ho 2003-2004) and there is no way of evidence and evidence shared by all of the world’s legal systems today. Even within Western legal systems, there are significant differences between Anglo-American law and Continental European law (see Damascus 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of evidence that applies to the traditional Anglo-American law itself.
It would seem obvious that there should be a legitimate sense of evidence separated from the common sense of evidence. After all, there are many special rules for what can or cannot be presented as evidence in court, how the evidence will be presented and how to use it, in the capacity or sufficient evidence needed to establish evidence and so on. But the law remains silent on some sensitive issues.
A 185 report by The Law Commission of India suggests that the Principles of Evidence applicable to criminal law should meet the basic requirements of both Art. 20 (3) and Art, 21 of our Constitution. It also submitted its 185 report on the Indian Evidence Law Review, in 1872 and the draft Bill. In this Report, it is considered “ We should have been completely different from the recommendation in Report 69 to the inclusion of Section 26 A to make every high police confession acceptable regardless of the nature of the case, the recommendation to us, is contrary to the views of the High Court and in particular, the views expressed in the case of Kehar Singh.
. It would seem obvious that there should be a legitimate sense of evidence separated from the common sense of evidence. After all, there are many special rules for what can or cannot be presented as evidence in court, how the evidence will be presented and how to use it, in the capacity or sufficient evidence needed to establish evidence and so on but the law remains silent on some sensitive issues.
A well-constructed law of evidence would not be subject to the use of relevant information obtained from the courts of law in the matter of questioning h as contradictory truth questions. The Evidence Act governs court proceedings, which is a speech that includes all judges and magistrates, and all persons other than mediators, who are legally authorized to take evidence. “Fact” itself means and includes (1) anything, state of things, or relation of things capable of being perceived by the senses; (2) any mental condition of which any person is conscious. One fact is related to another when it is linked to another in any of the ways mentioned in the Law (chapter II, paragraphs 5-55).
The term “facts excluded” means and includes any fact in itself or in connection with other facts, the existence, absence, nature or magnitude of a right, debt or disability, guaranteed or denied in any claim or process, subsequently. “Evidence” means and includes (I) all statements, which the court allows or requires to be made before it by witnesses, in respect of the matters in question; and (2) all documents produced for court examination.
The expression “facts in issue” means and includes any fact from which either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. “Evidence” means and includes (i) all statements, which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; and (2) all documents produced for the inspection of the court.
Views on Reform of Law of Evidence
Jeremy Bentham’s history of legal reform is full of inspiration for those reformers who find themselves ahead of the social vision of their time. Bentham, in his longevity of eighty-four years, which ended in I832, the year when modern-day England embarked on the passage of the Transformation Bill, was a staunch and powerful advocate for fundamental reforms in English law. These changes can soon be mentioned as a substitution for the technological process, as well as a written or legal document that has not been written or made by judges. Before we look at ideas for a change in the evidence law, let’s see what the need for a change in the law of evidence was.
The Need for Reform
Evidence rules are particularly helpful, as they are intended to help the application of applicable law. This traditional view of the nature of the law of evidence has contributed to its development. Evidence law is largely made up of judges, and occasionally amendments to the law meet certain concerns. Much of the law of evidence is found in reported cases (i.e., decisions of judges); were added to the statutory provisions, most of which are not found in the Evidence Act 1908. As a result, the law of evidence is difficult to reach, sometimes uncertain and lacks consensus. The law of evidence often fails to fulfill its duty to assist the truth-seeker to make truthful decisions, for example, to prevent the discovery of truth from finding relevant and reliable evidence; instead, it leads to unnecessary complexity, uncertainty, cost and delays. The first consideration of the Law Commission on anti-gossip law in 1989 led to its view that systematic modification and coding were desirable. Creating codes provided an opportunity for redemption and clarification of the law.
Bentham s theory of judicial evidence has been universally regarded as the source of our modern reforms in the law of evidence, though the movement for reform did not begin in England until after his death. Prior to his death, however, the general movement for law reform had begun through the struggle of Sir Samuel Romilly, inspired by Bentham, for the repeal of the barbarous features of the English criminal law. Those who have observed the judicial procedure in England are impressed with the fact that the development of the modern law of evidence is more complete there than in the courts of this country, that is, less attention is there paid to questions of evidence. The comparative infrequency of discussions on evidence in their trials and the absence of the consideration of such questions in the reported opinions of the English courts are striking. It is clear that the proposed increased power of the judges, if wisely exercised, and if sustained by professional and public opinion, would be a very effective means of reform. The reform, however, should go beyond the making of rules of procedure. We have encountered, in this country, a difficulty not foreseen by Bentham. We have by statutes and even constitutions, so restricted the power of the judges, by prohibiting other than written instructions, that they become in trials by jury little more. Different remedies have been suggested, such as legislative re- strict ion upon the publication of the reports, the limitation upon the right of appeal, the non-publication of dissenting opinions and the opinions of courts not of last resort. After a thorough investigation by the American Bar Association, it was decided that these remedies, other than, perhaps, the limitation upon the right of appeal, were impracticable. The association, however, did declare in favor of short opinions, especially in cases turning on facts and not useful as precedents, and doubted the utility in the present state of the law of using opinions of inferior or intermediate courts as precedents.
Many lawyers believe that whatever the objections to codification, it is the only remedy for these conditions. Thus Mr. Rose says, in the address quoted: “Whatever hindrances may be in the way of codification, -and there are many-most lawyers recognize that that is the goal towards which we are inevitably tending. There seems to be no refuge from the riotous and confusing pande- monium of cases. Bentham will be realized, not directly, perhaps, in the form of an official codification, but in a modification of the doctrine of judicial precedent, gradually enforced by new conditions, so that the law may become the effective servitor of the people.
Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. So the process of evidencing any facts or proof should be governed by a well-established law in order to achieve speedy and fair justice.
The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. While it’s moral dimension is a special asset in criminal trials as it endeavors in protecting the innocent and highlighting the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth to be disclosed in the public domain to protect the mass public interest.
Basic of Law of Evidence in a Nutshell
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The Concept and Historical Background of the Evidence Law – Academike- Lawctopus
www.lawctopus.com ( last Visited on March 10, 2021)
Codification and reform of the Law of Evidence
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Evidence Reform: The Administrative Process Leads
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Reforming the Law of Evidence
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Anouska Mishra, BA.LLB (A)