The evidence, in simpler terms, is the eye and ear of a court. The true facts,
in order to come upon a certain and precise judgment, is very necessary and
plays a crucial role in doing so. The word evidence
is derived from a
Latin word evident
, which means to prove
or to show clearly.
Evidence is something which ascertains the truth of the fact or print in
Evidence, in law, means all the legal means. not restricted to arguments, in
order to prove or disprove a fact to ascertain the truth of matter which is
subject to a judicial investigation.
Historical Background Of Evidence Law In India
The law of evidence in India traces back its root to Vedic period. It was
recognized by Dharma Shastra in order to ascertain the truth. It was also an
important and integral part of Muslim rule of law in order to ascertain the
truth of facts pertaining to judicial proceedings. Subsequently, in the modern
times, it all superseded by the modern English evidence law what we no call as
Indian Evidence Act, 1872. But it was a long-drawn process over a span of
Everything in ancient India, including kings, was subservient to Dharma
(complete rules of right conduct). Sources of law of ancient India are namely;
Vedas, Smriti, and Achara (customary law). The earliest lawgiver of early Hindu
law is Manu. The subcontinent was divided in a number of independent territories
and every territory has a leader whose main objective was to protect Dharma and
rule according to it. Dharma also means observance & conduct of truth.
truth was given an integral importance in ancient India which led to the same in
laws of that period. The whole administration was divided in different units
ranging from villages to towns and provinces. There is no evidence of a single
judge & lawyer but there was a jury system prevalent. Even the king would have
to consult Brahmins on any matter relating to justice. The authority to rely on
were Dharma Sutras.
All the matters pertaining to civil & criminal matters were
heard. A person wanted to make representation in a court on any matter would
submit a complaint and after due consideration whether to admit such a
complaint, the defendant was called. Each one had to submit a written complaint
and reply and after due deliberations, the burden of proof lied upon whom the
jury considered to, and he had to submit his evidence in order to substantiate
his claim. There are two kinds of proofs in Hindu law; 1. Divine, 2.
Human. The former consisted of ordeals and latter consisted witnesses,
documents and inferences from the circumstances.
Some main features of Hindu or Ancient evidence law:
- Oral evidence was to be direct and first-hand not what one has heard.
- Circumstantial evidence was an important feature both in criminal and
civil cases but stress was laid upon careful inquiry and investigation of
circumstances in order to minimize mistakes.
- Torture was permitted but not considered solely an element of evidence.
- There were various circumstances for putting burden of proof. e.g., if
defendant admitted the commission, then there was no need of burden of proof
- Witnesses were also divided on the basis of kinds of persons who were
included in the commission and who were not.
- Documents were divided into: - Public & Private. Etc.
Medieval Period- Muslim Rule
By the end of the Mameluke dynasty, the first Muslim dynasty in India, Muslim
rule was well established in India. The administration of justice was also
largely administered by the Muslim rulers. The Islamic thinking and state were
influenced by Iranian & Byzantine philosophies but Islamic principles remained
integral throughout in the administration of justice. Men of affairs laid out a
great stress on justice and equity in conformity within the limits of Islam.
Contrary to Hindu laws, king was the supreme authority of rule in Muslim India.
Ziauddin Barani laid out a great stress on despotism. Barani was the main man of
affairs in Delhi Sultanate who is an authority in matters pertaining to Muslim
administration. He gave an idea of justice; 'adl', based on equal treatment and
supreme authority of justice above all even for non-Muslim subjects.
non-Muslims were not subjected to Muslim-law on civil matters but criminal law
was applied equally over them also. After the advent of Mughals, the
subcontinent was again divided into several fragments but the administrative
setup of Delhi Sultanate was imitated more or less by all the rulers.
Then came Abul Fazl in the picture who played an important role in Mughal administration
and its setup. The King was again the supreme authority, as indicated by the
concept of farr-i-izadi of Abul Fazl, but then came Qazi (judge). There was a
body of Ulemas (Muslim jurists). There were several offices of; Qazi, Mufti, Mir
Adl, Muhtasid etc. were instituted for the sole purpose of delivering justice as
Abul Fazl gave very much importance to justice and considered King as its
The Judicial setting and the features of the evidence of Mughal period are as
Win wood Reade puts:
- Representatives, modern day wakils, were allowed to represent and argue
on behalf of clients and they were paid by the state and could be promoted as
- There was bifurcation in civil and criminal proceedings. In civil cases,
the plaintiff had to file a claim and if defendant denies then plaintiff had
to adduce evidence in substantiating his claim and defendant had to adduce
evidence in rebuttal of those claims. Then the kazi had to decide the matter based on the
proceedings in such a manner. In criminal matters, the Kazi would summon any of
the accused-defendant and hear the complainant and witnesses. Then the judgment
was pronounced in open court. There was also an element of extra-judicial
inquiry as rightly inherent in the evidence of Mahmud of Ghazni that he made
such an attempt upon a complaint of a subject.
- According to Hanafi law, which was prevalent in Muslim India, evidence
is; (a) Tawatur or fully corroborating (b) Ehad or testimony of one., (c) Iqrar
which means acceptance or confession.
- Trial by ordeal was not known in Islamic law.
- Oral evidence was to be direct.
- Hearsay evidence was also preferred but under strict scrutiny and
conditions. e.g.- 4 witnesses required in order to prove adultery in Muslim
- Evidence produced in a court was to be in support of one's cause, so
relevancy can be inferred.
- There was not any hard-fast rule regarding putting the onus of Burden of
Proof and the Kazi had the complete authority to put it.
Whatever laws he made respecting women and slaves were made with the view of
improving their condition. Instead of repining that Mohammad (PBUH) did no
more, we have reason to be astonished that he did so much. His career is the
best example that can be given of the influence of the individual in human
British Period (East India Co. & Crown Rule)
The East India Co. came in India in the year 1601 after which it got trading
rights in Surat by the Emperor Jahangir then in Bengal by Emperor Shah Jahan.
They had trading rights and a little number of administrative powers which
subsequently, after the decisive Battle of Buxar in 1764, significantly grew in
all realms of political administration of its provinces.
The Muslim penal law
was prevalent in Bihar, Bengal and Orissa and after Britishers came they didn't
alter it over 100 yrs and never they touched upon Personal Law ever much. But
gradually after gaining much power and sovereignty they took upon themselves the
task of judicial administration of India and superseding the existing Muslim
law, importing the modern English laws through a cohort of enactments.
Let's look up briefly about the developments and culmination of what we today
know as Indian Evidence Act, 1872:
- Many of the principles of Muslim law were discarded by Western thoughts
long ago. Warren Hasting was one of the main critics of Muslim law who
termed it as 'barbarous construction
- In 1723, Royal courts were established in the three presidency towns but
Indian subjects were not subjected to their jurisdiction.
- The act of Regulation, 1773 made a substantial change in the judicial
system of India by establishing courts outside Bengal and establishing
Supreme Court of Judicature in Calcutta.
- After that there was a dual system of justice in presidencies and mofussil
through the acts of 1781, 1801 and 1823
- Now it was felt necessary to assimilate the procedural laws first than
the substantive laws of this dual system.
- First Law Commission Report, under Sir Macaulay, came in 1833 with
several enactments. In 1835, first enactment regarding law of evidence was
part as Act 10 of 1835 of Governor-General-in-council which was applied in
all courts; provincial and mofussil.
- Act 19 of 1837, Act 5 of 1840, Act 7 of 1844, Act 15 of 1852, Act 19 of
1853, Act 10 of 1855, Act 8 of 1859, Act 25 of 1861, Act 15 of 1869 were
among some of the important Acts pertaining to evidence in British India
prior to the enactments of Indian Evidence Act, 1872.
- The English judges in India were following English law on matters that
were not mentioned in the Acts in place of Islamic Law.
- Zamindar of Karvetinugar v. Venkatadri, Narappa v. Gupayya,
Gulam Ali v. H.H. Aga Khan were some of the leading cases pertaining to the
development of Evidence Law in India prior to the enactment of Indian Evidence
- The Third Law Commission of India assigned Sir Henry Maine with task to
draft the Indian Evidence Act and it was rejected after being introduced by
Sir Henry owing to the fact that it was not suitable for India.
Indian Evidence Act, 1872
Now the task of drafting a suitable code for Evidence Law came upon the
shoulders of Sir James Fitz James Stephens, which he completed and culminated
into what we know today as Indian Evidence Act, 1872. In 1868, a commission was
setup to frame a draft code and 39 sections were included in the code.
The code was termed as irrelevant to India and was dropped out. In the year of
1870, a new bill containing 163 sections in a form different for the present
Evidence Act of 1872 was prepared by James Stephen which he recasted and
ultimately Indian Evidence Act, 1872 was passed. After the partition, the act
applied to both the nation, India and Pakistan except the territory of Jammu &
It has 11 Chapters and 167 sections and came into force on 1st September 1872and
applies to all over India except the state of Jammu & Kashmir.
Evidence, under the said act has been classified into different categories
- Oral Evidence
- Documentary Evidence
- Primary Evidence
- Secondary Evidence
- Real Evidence
- Hearsay Evidence
- Direct Evidence
- Circumstantial Evidence
- Judicial and Non-Judicial Evidence
- Prima Facie Evidence
The Law of Evidence in India has been created with a long-drawn process of over
hundreds of years. Though it was existent since the inception of Early Vedic
civilizations and also in the middle age of Indian history, the Muslim rule, but
it was drafted as a complete code of Evidence Law in the British period in the
year 1872 by Sir James Flitzjames. Indian Evidence Act is little or more an
attempt to reduce the English law of evidence which was necessary for the
peculiar circumstances of India.According to Sir James, the Law of evidence
is composed of two elements:
- An enormous number of cases which have been decided over a course of
- Acts & Regulations of the parliament which have been passed over past
thirty to forty years before the enactment of Indian Evidence Act, 1872.
The Evidence law of Hindu law was much more elaborate and Evidence law under
Muslim rule or law was much more concrete and freer from superstitions and
discriminatory injunctions. The Evidence law under the British period was
consisted of progressive regulations, influenced by English system and sometimes
was far more progressive from its inspiration; English laws.
- William C Anderson, A Dictionary of Law 575 (1898
- Abhinav Prakash, Law of Evidence 1 (Universal Law Publishing Co., Delhi)
- Sarathi, V. P. (1972). HISTORICAL BACKGROUND OF THE INDIAN EVIDENCE ACT,
1872. Journal of the Indian Law Institute, 2 http://www.jstor.org/stable/43950171
- Supra note 4 at 11
- Gibbon, Decline and fall of Roman Empire 4 (Everyman's edn. 1975)
- Win wood Reade, Martyrdom of Man 219 (Thinkers Library 1932)
- Supra note 4 at 16-18
- Sutherland Weekly Reporter 121 (PC) (1865)
- 2 Bom. HCR 341
- 6 BOM. HCR (CCJ) 93
- James Flitzjames, An Introduction to The Indian Evidence Act 2 (Thacker,
Spink & Co., Digital Library of India, 1902)
- Sir James Flitzjames, A digest of the Law of Evidence viii (fifth edn.,
Macmillan & Co. 1887 New York)