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THEORY (LAW OF EVIDENCE)

A legal dispute arises between the parties to a litigation when one of the parties asserts some right and the other party denies it. The aggrieved party, i.e., the party whose rights are denied approaches a Court having jurisdiction by presenting his pleadings. In the pleadings submitted by him, the party instituting the case pleads facts and claims relief based on certain grounds. The Court issues summons to the opposite party. Along with the summons a copy of the pleadings presented by the party instituting the case is supplied to the opposite party. The opposite party appears before the Court and presents its pleadings in reply to the pleadings submitted by the party instituting the case.
In the pleadings submitted by the opposite party, he pleads his version of facts, and seeks dismissal of the case against him. The Court compares the two pleadings, one submitted by the party instituting the case and the other submitted by the opposite party. By doing so, the Court separates two sets of facts.

1. Facts pleaded by the party instituting the case and admitted by the opposite party. These set of facts are called ‘admitted facts’.
2. Facts pleaded by the party instituting the case and denied by the opposite party. These facts are called the ‘disputed facts’.

As there is a consensus among the parties in respect of the admitted facts, they form the facts of the case. In respect of disputed facts, the versions of the parties differ, and the Court has to decide which facts of these two different sets should be treated as the facts of the case. In this regard, the Court frames issues. Issues so framed are the questions of fact involved in the case. These issues specify the exact controversy between the parties. The Court answers these questions of fact based on the evidence on record, which is produced by the parties.
An analysis of the above discussion leads to the conclusion that in a case there can be four sets of facts.

1. the actual facts, or the real facts;
2. the facts pleaded by the party instituting the proceedings;
3. the facts pleaded by the opposite party; and
4. the Court’s findings.

The Court’s findings should be based on the ‘material before it’, which includes pleadings of the parties, evidence on record and material objects. The judge cannot apply his personal knowledge in finding the fact of the case. The decision of the Court is based on the facts admitted by both the parties and the facts found by the Court.

CONCEPT OF FACT

Jurisprudentially, ‘fact’ may be viewed in two different ways:

1. First, fact may be viewed as distinguished from law. Law is something which may be ascertained from the books of law. Anything which may not be ascertained from the books of law is a fact.

2. Second, fact is something which may be perceived. In this sense, a fact is something which may be seen, heard, tasted, smelt or felt.

DEFINITION OF FACT, RELEVANT FACT and FACT IN ISSUE

Section 3 of Indian Evidence Act, 1872 defines Fact as:

“Fact” means and includes--

(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

The definition of “fact” includes two parts. The first part deals with what may be called the “physical facts”, while the second part deals with what may be called “psychological facts”.

2) “Relevant Fact” -

One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of Indian Evidence Act, relating to the relevancy of facts.

The word 'relevant' has two meanings. in one sense, it means "connected" and another sense "admissible". One fact is said to be relevant to another when the one is connected with the other, in any of the way referred to in the provisions of the Evidence Act relating to the relevancy of facts as under Section 5 to 55:
.
(i) Logical Relevancy - A fact is said to be logically relevant to another when by application of our logic if it appears that one fact has a bearing upon another .

(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as relevant under Section 5 to 55 (Relevancy of Fact).

A fact may either be logically relevant or legally relevant. Where a fact bears such casual relation to the other that it renders probable its existence or non-existence, it is said to be a logically relevant fact. For instance, where it is to be determined where it is to be determined whether A has placed the murder weapon in the field or not, the fact that B saw A walking towards the field with the murder weapon is relevant.

The Evidence Act recognizes some of the kinds of causal relations. Thus, those kinds of causal relations which are recognized by law are known as legally relevant fact. Therefore, while all legally relevant facts are logically relevant, all logically relevant facts may not be legally relevant.

3) Fact in Issue:

According to Section 3 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.

Explanation-

Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

llustrations-

A is accused of the murder of B. At his trial, the following facts may be in issue —

That A caused B’s death;
That A intended to cause B’s death;
That A had received grave and sudden provocation from B
That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature he expression “Facts in issue” refers to facts out of which a legal right, liability or disability arises and such legal right, liability, or disability is involved in the inquiry and upon which the Court has to give the decision. The question as to what to what facts may be “facts in issue” must be determined by substantive law or the branch of procedural law which deals with pleadings. Generally, in criminal cases the charge constitutes the facts in issue whereas in civil cases the facts in issue are determined by the process of framing issues.

PROOF

Normally “proof” and “evidence” are mistaken to be synonymous. “Proof” of a fact is showing the existence of the fact. Thus, a fact may be “proved”, “disproved” or “not proved”.

Proved

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved

A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not Proved

A fact is said not to be proved when it is neither proved nor disproved.

Thus, where neither party can produce evidence in its favour, the fact is said to be not proved. In normal parlance, expression “proof” included “dis-proof” also. Thus “burden of proof” is burden not only of proving but also disproving depending upon circumstances.

EVIDENCE

Evidence is something which is used to prove or disprove a fact. Evidence, is itself a fact. Evidence is classified as under
1. Oral Evidence
2. Documentary Evidence

However, under some legal systems there is a third type of evidence which is called as Real Evidence, which is not recognized under Indian Evidence Act. Real Evidence is in the form of objects which are covered under documentary evidence

Section 3 of IEA defines Evidence 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 produced for the inspection of the Court; such documents are called documentary evidence

Evidence can be said to be any matter of fact which produces a persuasion in the mind regarding the existence and non-existence of some other matter of fact. Evidence may be oral, which refers to the testimony of witnesses, or documentary, which refers to the documents and electronic records tendered before the Court.

KINDS OF EVIDENCE

Direct Evidence

The evidence given by a witness who saw or heard or perceived the fact in issue or relevfant fact. Under this the evidence is given by the witness on the basis of his own perception, for instance eye witness. Direct evidence is considered as the best form of oral evidence of the fact to be proved.

Indirect or Circumstantial Evidence

Indirect or circumstantial evidence are which attempts to prove the facts in issue by proving other facts. They do not provide a definite proof, but gives a general idea as to the existence or non existence of the facts in dispute.

Hearsay Evidence

It is the evidence given by a witness who derived it from the person who saw it. It is is the one which witness neither personally seen it or perceived it through his senses, but has come to his knowledge from other person It comes under the weaker category of evidence. The Act lays down that hearsay evidence must always be excluded. However there are few occasions where it is admissible.

Presumptions

The term “presumption” refers to an affirmative or non-affirmative illation pertaining to a doubtful fact or proposition and drawn by following a process of probable reasoning from something substantive.

Section 4 of the Indian Evidence Act, 1872, enunciates the law of presumption. It defines “May Presume”, “ Shall Presume” and “Conclusive Proof”

May Presume

Whenever it is required by this Act that the court may presume a fact, it may it may regard the fact as proved until and unless it is disproved or may call for the proof of it.

Thus, wherever the words “may presume” have been used, the court has the discretion to either make a rebuttable presumption or call for confirmatory evidence. It must be noted here that the presumption so made is not conclusive or incapable of being rebutted.

Shall Presume

Whenever it is directed by this Act ,that the court shall presume a fact, it shall regard the fact as proved until it is disproved.

Unlike “may presume”, wherever the words “shall presume” have been used, the court has to regard a fact as proved unless it is disproved. Thus, the court has to necessarily make a rebuttable presumption regarding the existence or non-existence of a fact. For disproving a fact so presumed or, in other words, rebutting a statutory presumption, the evidence has to be clear and convincing. It must be such that, by judicial application of mind, it is established that the real fact is not the one that has been presumed.

Conclusive Proof

When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” The section provides for non-rebuttable presumptions, that is, presumptions which are conclusive in nature.

Section 4 deals with two types of presumptions. Presumptions of Fact and Presumptions of Law. Presumptions fact is a natural presumption based upon the human experience which are always rebuttable. The court enjoys a discretion either to presume a fact as proved or may call evidence to disprove it. May presume cases come under the natural presumptions.
Presumptions of Law or legal presumptions are based upon a systematic analysis of facts. Legal presumptions are of two types, rebuttable and irrebutable. Rebuttable presumptions are those where the courts shall presume as fact as proved until it is disproved. The court has no discretion except to presume the fact, however can allow the evidence to disprove it. Irrebuttable presumptions are those where the court shall presume the fact as proved on proof of another fact and cannot call any evidence to disprove it. Ex: Sec. 40 Relevancy of Judgments, Sec 112 Legitimacy of Children.

Relevancy and Admissibility

The expressions ‘relevancy’ and ‘admissibility’ are often taken to be synonymous. But they are not the same. Their legal implications are different. All admissible evidence are relevant but all relevant evidence are not admissible. Relevancy is the genus of which admissibility is the species.

Relevancy is the ultimate touchstone for determination of the admissibility of evidence. It is due to this fundamental rule of the Law of Evidence that the terms ‘relevancy’ and ‘admissibility’ are often used interchangeably. It must be noted that both the concepts are quite distinct from each other. For instance, a confession made by an accused to his wife may be relevant but is inadmissible since it falls within the purview of ‘Privileged Communications’ under the Indian Evidence Act, 1872. It may be stated that all that is admissible is relevant but all that is relevant may not be admissible.

Admissibility refers to the question as to whether the court must consider a relevant fact in deciding upon the issue or not. A fact is admissible only if it does not infringe any of the rules of exclusivity provided by law. Thus, logically relevant facts are relevant but may not be admissible whereas legally relevant facts are relevant as well as admissible. Relevancy is a question pertaining to the tendering of evidence before a court of law and is for the lawyers to decide. On the other admissibility is for the judge to decide since it pertains to the weight that must be attached to a piece of evidence tendered before the court.

Rules of Evidence in Civil and Criminal Cases

The Indian Evidence Act applies to both civil and criminal cases. The Rules of Evidence are in general same in both Civil and Criminal Cases. However, owing to some differences between the nature of the civil cases and criminal cases, there are some differences in the rules of evidence:
1. Confessions are applicable only to criminal cases. With reference to civil cases, the parties may admit facts. Formal admissions need not be proved, and courts may accept them as true and proceed to decide the cases on the basis of such admissions. But the Courts are under a duty to ensure that a confession is not only voluntary but also true.
2. The main difference between the use of evidence in criminal and civil cases is the burden of proof. Though in both the cases the initial burden is on the person who initiates the case, in civil cases the burden of proof shifts from one party to another as the case proceeds. On the other hand, the burden of proving the guilt of accused always lies on the prosecution and never shifts on the accused.
3. Standard of Proof in criminal cases are stricter which means that the guilt of accused must be proved beyond any reasonable doubt. Where as in civil cases the standard of proof goes by probabilities.
4. The character evidence is no relevance in civil cases except in determining the quantum of damages in suit for defamation, whereas the character evidence is significant in criminal cases.
5. Few provisions relating to admissions and estoppels apply only to civil cases, whereas confessions and character evidence are peculiar to criminal cases.