The Law of Evidence (PB), 27th ed
Ratanlal & Dhirajlal: Law of Evidence (PB), 27th ed / THE LAW OF EVIDENCE
Currency Date: 22 April 2020
© 2020 LexisNexis
,THE LAW OF EVIDENCE
THE INDIAN EVIDENCE ACT
(Act I of 1872)1
[Received the Governor General's assent on March 15, 1872]
Preamble.—WHEREAS it is expedient to consolidate, define and amend the law of
Evidence; it is hereby enacted as follows:—
COMMENT
The object of the preamble of an Act is to indicate what, in general terms, was the
object of the Legislature in passing the Act. The preamble here shows that the Indian
Evidence Act is not merely a fragmentary enactment, but a consolidatory one.
The Act reduces the English law of evidence to the form of express propositions
arranged in their natural order with some modifications rendered necessary by the
peculiar circumstances of India. It is in the main, drawn on the lines of the English law
of evidence.
The word "evidence" is derived from the Latin word evidens or evidere, which means "to
show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to
ascertain; to prove".
Before the passing of the Indian Evidence Act, the principles of English law of evidence
were followed by the courts in India in presidency-towns. In the mofussil,
Mohammedan law of evidence was followed for some time by British Courts, but
subsequently various regulations, dealing with principles of evidence, were passed for
the guidance of mofussil courts. Act II of 1855 partially codified the law of evidence.
But it did not affect the practice in vogue in mofussil courts. In 1868, Mr Maine
(afterwards Sir Henry Sumner) prepared a Draft Bill of the Law of Evidence, but it was
abandoned as it was not suited to the country. In 1871, Mr Stephen (afterwards Sir
James Fitz-James) prepared a new draft which was passed as Act I of 1872.
One great object of the Evidence Act is to prevent laxity in the admissibility of evidence,
and to introduce a more correct and uniform rule of practice than was previously in
vogue. The Act is not intended to do more than prescribe rules for the admissibility or
otherwise of evidence on the issues as to which the courts have to record findings.
The main principles which underlie the law of evidence are—
(1) evidence must be confined to the matter in issue;
(2) hearsay evidence must not be admitted; and
(3) best evidence must be given in all cases.
The Indian Evidence Act is not exhaustive of the rules of evidence.2 For the
interpretation of the sections of the Act the court can look to the relevant English
common law,3 but the law of evidence which is a complete Code does not permit the
importation of any principle of English Common Law relating to evidence in criminal
cases to the contrary.4
,Once a statute is passed, which purports to contain the whole law of evidence
applicable in India, it is imperative. It is not open to any Judge to exercise a dispensing
power, and admit evidence not admissible by the statute, because it appears to him
that the irregular evidence would throw light upon the issue. The principles of exclusion
of evidence adopted by the Act must be applied strictly and cannot be relaxed at the
discretion of the court.5
The Evidence Act has no application to enquiries by Tribunals, even though they may be
judicial in character. And the law only requires that rules of natural justice should be
observed in the conduct of enquiries and if they do so the decisions of Tribunals are
not liable to be impeached.6
The law of evidence is an adjective law, and, as such, has retrospective effect.7
1 For Statement of Objects and Reason, see the Gazette of India, 1868, p 1574. 1
2 Re Rudolf Stallmann, (1911) 39 Cal 164; King-Emperor v Tun Hlaing, (1923) 1 Ran 759 FB; Re
Annavi Muthiriyan, (1915) 39 Mad 449.
3 State of Punjab v SS Singh, AIR 1961 SC 493 : (1961) 2 SCR 371.
4 HH Advani v State of Maharashtra, AIR 1971 SC 44 : 73 Bom LR 112 : 1971 Cr LJ 5.
5 Sris Chandra Nandy v Rakhalananda, (1940) 43 Bom LR 794 : 68 IA 34 : (1941) 1 Cal 468;
Emperor v Parbhoo, (1941) All 843 (FB).
6 UOI v TR Varma, (1958) SCJ 142.
7 Data Xiva v State, AIR 1967 Goa 4.
, THE LAW OF EVIDENCE
PART I RELEVANCY OF FACTS
CHAPTER I PRELIMINARY
[s 1] Short title, extent and commencement.—
This Act may be called the Indian Evidence Act, 1872.
It extends to the whole of India[s 1.1] 1[except the State of Jammu and Kashmir2] and
applies to all judicial proceedings[s 1.2] in or before any Court,[s 1.3] including Courts
martial, 3[other than Courts-martial convened under the Army Act], 4[the Naval
Discipline Act] 5[***] or the Indian Navy (Discipline) Act, 1934, 6[or the Air Force Act]
but not to affidavits[s 1.4] presented to any Court or officer, nor to proceedings before
an arbitrator;[s 1.5]
And it shall come into force on the first day of September, 1872.
COMMENT
The Indian Evidence Act applies to all judicial proceedings before (a) any court, or (b) a
court-martial (other than the courts-martial held under the specified Acts). It does not
apply to (a) affidavits, and (b) proceedings before arbitrators.
"The law of evidence is the lex fori which governs the Courts. Whether a witness is
competent or not; whether a certain matter requires to be proved by writing or not;
whether certain evidence proves a certain fact or not; that is to be determined by the
law of the country where the question arises, where the remedy is sought to be
enforced, and where the Court sits to enforce it."7 The law of evidence is a part of the
law of procedure.
[s 1.1] "India".—
"India" means the territory of India excluding the State of Jammu and Kashmir.8
[s 1.2] "Judicial proceedings".—
An inquiry is judicial if the object of it is to determine a jural relation between one
person and another, or a group of persons; or between him and the community
generally; but, even a Judge, acting without such an object in view, is not acting
judicially.9 An enquiry in which evidence is legally taken is included in the term judicial
proceeding.10 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 not a judicial but an administrative inquiry. Similarly, proceedings before a
Magistrate not authorised to conduct any inquiry,11 or before a Collector under the
Land Acquisition Act12 or an inquest proceeding before the Coroner under the
Coroners Act, 1871,13 are not judicial proceedings.
Ratanlal & Dhirajlal: Law of Evidence (PB), 27th ed / THE LAW OF EVIDENCE
Currency Date: 22 April 2020
© 2020 LexisNexis
,THE LAW OF EVIDENCE
THE INDIAN EVIDENCE ACT
(Act I of 1872)1
[Received the Governor General's assent on March 15, 1872]
Preamble.—WHEREAS it is expedient to consolidate, define and amend the law of
Evidence; it is hereby enacted as follows:—
COMMENT
The object of the preamble of an Act is to indicate what, in general terms, was the
object of the Legislature in passing the Act. The preamble here shows that the Indian
Evidence Act is not merely a fragmentary enactment, but a consolidatory one.
The Act reduces the English law of evidence to the form of express propositions
arranged in their natural order with some modifications rendered necessary by the
peculiar circumstances of India. It is in the main, drawn on the lines of the English law
of evidence.
The word "evidence" is derived from the Latin word evidens or evidere, which means "to
show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to
ascertain; to prove".
Before the passing of the Indian Evidence Act, the principles of English law of evidence
were followed by the courts in India in presidency-towns. In the mofussil,
Mohammedan law of evidence was followed for some time by British Courts, but
subsequently various regulations, dealing with principles of evidence, were passed for
the guidance of mofussil courts. Act II of 1855 partially codified the law of evidence.
But it did not affect the practice in vogue in mofussil courts. In 1868, Mr Maine
(afterwards Sir Henry Sumner) prepared a Draft Bill of the Law of Evidence, but it was
abandoned as it was not suited to the country. In 1871, Mr Stephen (afterwards Sir
James Fitz-James) prepared a new draft which was passed as Act I of 1872.
One great object of the Evidence Act is to prevent laxity in the admissibility of evidence,
and to introduce a more correct and uniform rule of practice than was previously in
vogue. The Act is not intended to do more than prescribe rules for the admissibility or
otherwise of evidence on the issues as to which the courts have to record findings.
The main principles which underlie the law of evidence are—
(1) evidence must be confined to the matter in issue;
(2) hearsay evidence must not be admitted; and
(3) best evidence must be given in all cases.
The Indian Evidence Act is not exhaustive of the rules of evidence.2 For the
interpretation of the sections of the Act the court can look to the relevant English
common law,3 but the law of evidence which is a complete Code does not permit the
importation of any principle of English Common Law relating to evidence in criminal
cases to the contrary.4
,Once a statute is passed, which purports to contain the whole law of evidence
applicable in India, it is imperative. It is not open to any Judge to exercise a dispensing
power, and admit evidence not admissible by the statute, because it appears to him
that the irregular evidence would throw light upon the issue. The principles of exclusion
of evidence adopted by the Act must be applied strictly and cannot be relaxed at the
discretion of the court.5
The Evidence Act has no application to enquiries by Tribunals, even though they may be
judicial in character. And the law only requires that rules of natural justice should be
observed in the conduct of enquiries and if they do so the decisions of Tribunals are
not liable to be impeached.6
The law of evidence is an adjective law, and, as such, has retrospective effect.7
1 For Statement of Objects and Reason, see the Gazette of India, 1868, p 1574. 1
2 Re Rudolf Stallmann, (1911) 39 Cal 164; King-Emperor v Tun Hlaing, (1923) 1 Ran 759 FB; Re
Annavi Muthiriyan, (1915) 39 Mad 449.
3 State of Punjab v SS Singh, AIR 1961 SC 493 : (1961) 2 SCR 371.
4 HH Advani v State of Maharashtra, AIR 1971 SC 44 : 73 Bom LR 112 : 1971 Cr LJ 5.
5 Sris Chandra Nandy v Rakhalananda, (1940) 43 Bom LR 794 : 68 IA 34 : (1941) 1 Cal 468;
Emperor v Parbhoo, (1941) All 843 (FB).
6 UOI v TR Varma, (1958) SCJ 142.
7 Data Xiva v State, AIR 1967 Goa 4.
, THE LAW OF EVIDENCE
PART I RELEVANCY OF FACTS
CHAPTER I PRELIMINARY
[s 1] Short title, extent and commencement.—
This Act may be called the Indian Evidence Act, 1872.
It extends to the whole of India[s 1.1] 1[except the State of Jammu and Kashmir2] and
applies to all judicial proceedings[s 1.2] in or before any Court,[s 1.3] including Courts
martial, 3[other than Courts-martial convened under the Army Act], 4[the Naval
Discipline Act] 5[***] or the Indian Navy (Discipline) Act, 1934, 6[or the Air Force Act]
but not to affidavits[s 1.4] presented to any Court or officer, nor to proceedings before
an arbitrator;[s 1.5]
And it shall come into force on the first day of September, 1872.
COMMENT
The Indian Evidence Act applies to all judicial proceedings before (a) any court, or (b) a
court-martial (other than the courts-martial held under the specified Acts). It does not
apply to (a) affidavits, and (b) proceedings before arbitrators.
"The law of evidence is the lex fori which governs the Courts. Whether a witness is
competent or not; whether a certain matter requires to be proved by writing or not;
whether certain evidence proves a certain fact or not; that is to be determined by the
law of the country where the question arises, where the remedy is sought to be
enforced, and where the Court sits to enforce it."7 The law of evidence is a part of the
law of procedure.
[s 1.1] "India".—
"India" means the territory of India excluding the State of Jammu and Kashmir.8
[s 1.2] "Judicial proceedings".—
An inquiry is judicial if the object of it is to determine a jural relation between one
person and another, or a group of persons; or between him and the community
generally; but, even a Judge, acting without such an object in view, is not acting
judicially.9 An enquiry in which evidence is legally taken is included in the term judicial
proceeding.10 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 not a judicial but an administrative inquiry. Similarly, proceedings before a
Magistrate not authorised to conduct any inquiry,11 or before a Collector under the
Land Acquisition Act12 or an inquest proceeding before the Coroner under the
Coroners Act, 1871,13 are not judicial proceedings.
