Best Evidence Law Notes

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Evidence law notes

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Best Evidence Law Notes

Question no. 1- Explain the law of evidence and describe whether it is substantive or adjective law?


Sir James Stephen define Law of Evidence as-

“The law of evidence is that part of the law of procedure, which with a view to ascertaining individual rights and liabilities in individual cases, it decides:

(1) What facts may and what may not be proved in such cases.

(2) What sort of evidence must be given to a fact which may be proved and

(3) By whom and in what manner the evidence must be given by which any fact is proved.”

So the law of evidence deals with modes of Leading evidence as well as regulating that evidence of which fact can be given in court.

The main object of the law of evidence is to assist the court in judging what facts are relevant to ascertain the truth and to avoid the confusion and how much relevant facts will be proved in courts by lawfully leading the evidence.

Laws may be divided into `Substantive’ and `Procedural’ Laws.

The Laws which define lights, duties, and Liabilities are called “Substantive law”. For example the Indian Penal Code.

The laws which prescribe the mode of procedure by which application of substantive law is regulated are called “procedural law” or “Adjective law”

So Law of Evidence is the law of procedure i.e. adjective law. Evidence Act does not define rights or liabilities under the law but only prescribe the mode by which rights or liabilities of parties is as curtained. Therefore it is adjective law and helps in implementing the substantive law.

Law Evidence is “Lex fory” :- Maxim “Lex fory” means the law of place of the action. The law of evidence is `lex fory’. Whether certain evidence proves a certain fact or not is to be determined by law of the country where the question arises, where the remedy is sought to be enforced and court sits to enforce it.

Question no. 2- The expressions relevancy and admissibility are used as a synonym but their legal implication are different comments?

Section 3 of Indian Evidence Act define the term relevant as –

“One fact is said to be relevant to another when one is connected with other in any of the ways referred to in provisions of this Act relating to the relevancy of facts”

Admissibility is the means and the method of proving the relevant facts.

In Ram Bihari Yadav v State of Bihar, AIR 1998 SC 1850 the Supreme Court observed that more than often, the expressions relevancy and admissibility are used as a synonym but their legal implications are different because more often than not, facts which are relevant may not be admissible for example, the communication made by a spouse during the marriage, the communication between an advocate and his client, though relevant are not admissible.

So also the facts which are admissible may not be relevant. For example, questions permitted to be cross-examined to test the veracity or to impeach the credit of witness, though not relevant are admissible.

Distinction between Admissibility and Relevancy
1Admissibility is not based on logic but strict rules of law.Relevancy is based on logic and probativity.
2The rules of admissibility is described after section 56 of Indian Evidence Act, 1872The rules of relevancy is described from  sections 5 to 55 of Indian Evidence Act, 1872
3The rules of admissibility declare whether certain type of relevant evidence are admissible or are to be excluded.The rules of relevancy declare what is relevant.
4Admissibility is the means and modes for admissibility of relevant evidence.The rules of relevancy indicate the facts permitted to be proved which then become admissible.
5The facts which are admissible are not necessarily relevant.The facts which are relevant are not necessarily admissible.

Question no. 3- Define the term “Proved”, “Disproved” and “Not proved”?


Section 3 of Indian Evidence Act has defined the term `Proved’, `Disproved’ and `Not Proved’ as follows:

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 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.

In State of West Bengal v. Section Orilal Jaiswal AIR 1994 SC 1418 it was observed by Supreme Court “Proof does not mean rigid mathematical demonstration because that is impossible. It means such evidence as would induce a reasonable man to come to a conclusion.”

Question no. 4- Discuss the doctrine of Res Gestae?


Section 6 of Indian Evidence Act deals with doctrine of Res Gestae, it runs as follows-

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

For  eg- A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating or so shortly before or after it as to form part of the transaction, is a relevant fact.

In case of  Ratten v The Queen,  A man was prosecuted for the murder of his wife. His defence was that the shot went off accidently. There was evidence to the effect that the deceased telephoned said that, “Get me the police please”. Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call suddenly ended.

Thereafter the police came to the house and found the body of a woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death.

Her call in distress showed that the shooting in question was intentional. This then is the utility of the doctrine of res gestae. It enables the court to take into account all the essential facts of a transaction.

In Bhairon Singh v. State opf Madhya Pradesh, AIR 2009 SC 2603, the Supreme Court  has observed that the rule embodied in Section 6 is usually known as the rule of Res Gestae.

It means that a fact which, though not in issue, is no connected with the fact in issue “as to form the part of the same transaction” becomes relevant by itself.

To form a particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.

In State of Andhra Pradesh v Panna Satyanarayan, AIR 2000 SC 2138 the accused murdered his wife and daughter. The statement by the father of deceased wife that the father of accused told him on telephone that his son had killed the deceased.

Absence of a finding as to whether the information given by accused’s father to the deceased’s father that the accused had killed the deceased was either at the time of the commission of the crime or immediately thereafter.

So as to form the part of the same transaction. The statement cannot be considered as relevant under Section 6 of the Act.

Question no. 5- Discuss the law of Conspiracy described under section 10 of the Indian Evidence Act, 1872?


Section 10 of Indian Evidence Act deals with the admissibility in a conspiracy case.

Section 10 said :-

“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it.”

Therefore anything said or done or written by any one of the conspirators in respect of their common intention is admissible under section  10 of  the Act against all the conspirators for the purpose of proving (a) that the conspiracy existed and (b) for the purpose of proving that a person was party to it.

In  Case of Rakesh Kumar v. State, 2000(1) Recent Criminal Reports 74 (Delhi), it was observed that Section 10 will come into play when Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence there should be prima-facie evidence that person was a party to a conspiracy before his acts can be used against his co conspirators, Section-10 of  The Indian Evidence Act which is an exception to the general rule, while, permitting the Statement made by one conspirator to be admissible as against another conspirator restricts to the statement made during the period when the agency subsisted – Once it shown that a person became snapped out of conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators.

Question no. 6- Define admission and discuss the parties to the admission?


Section 17 of the act defines the Admission as under– 

An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under circumstances hereinafter mentioned.

Further, Section 18 provides the list of people whose admission is admissible.

Section 18 says-

Admission by party to proceeding or his agent.- Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

By suitor in representative character– Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by–

  1. By party interested in subject matter– persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested,
  2. By person from whom interest derived– persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.

Section 19 deals with statements of persons whose position is in issue, though they are not parties to the case. It is based upon the principle that where the right or liability of a party to a suit depends upon the liability of a third person, any statement by that third person about his liability is an admission against the parties.


A undertakes to collect rents for B.

B sues A for not collecting rent due from C to B

A denies that rent was due from C to B

A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Section 20 deals with Admissions by persons expressly referred to by party to suit:

According to Section 20, Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.


The question is, whether a horse sold by A to B is sound.

A says to B—”Go and ask C. C knows all about it.” C’s statement is an admission.

Question no.- Discuss the admissibility of Confession made in Police custody?


Sections 25 to 27 of the Indian Evidence Act deals with the Confession made by the accused in the police custody.

Section 25 says- “No confession made to a police officer, shall be proved as against a person accused of any offence.”

Section 26 says- “No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”

Explanation.–In this section “Magistrate” does not include the head of a village, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).

These provisions state that confession made by person to police or in police custody is inadmissible. Unless the confession made by an accused in police custody is in the immediate presence of magistrate.

Section 27 says-

Question no.7- Discuss the concept of a hostile witness?


Term `Hostile Witness’ has not been defined under the Indian Evidence Act. In simple words `Hostile Witness’ means a witness who does not support the case of a party by whom he is called. Normally a witness speaks in favor of a party who calls him for examination.

When a witness is examined by a party who calls him is called `Examination-in-Chief’ and then an examination of a witness by the adverse party is called cross-examination of witness by the adverse party is called cross-examination (Section 137).

According to Section 142 and 143 of the Indian Evidence Act, a party who calls a witness for examination can’t ask leading questions in examination-in-chief however adverse parties can ask leading questions in a cross.

The Rule which excludes leading question being put is founded on assumption that a witness must be taken to have a bias in favor of party by whom he is called when the circumstances show that this is not the case and he is hostile to party producing him the judge may in his discretion allow the Rule to be relaxed and grant permission to party producing the witness to put such questions as may be put in cross-examination.

Thus when a witness does not support the case of the party by whom the witness is called then such witness is termed `Hostile Witness’.

Evidentiary value of Hostile Witness

Section 154 of Indian Evidence Act deals with evidentiary value of Hostile Witness :

  1. The court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross examination of adverse party.
  2. Nothing in this section shall disentitle the person so permitted under subsection (1) to rely on any part of the evidence of such witness.

So when witness becomes hostile to party producing it, then court can under section 154 of Act allow that party cross examine his own witness and ask leading question, before the cross examination by adverse party and person who called the witness can rely on any part of the evidence of Hostile Witness.

In Case of Yogender Kumar and other v. State of U.P. 1999 Cri.L.J. 4685 , it was held that mere fact that a witness were declared Hostile by prosecution does not efface their evidence from record all together.

Evidence of prosecution witness who had partly resided from their previous statement can be used to the extent they support the prosecution for corroborating the other witness.

Question no. 8 – Discuss the Power of Court under Section 165 of Indian Evidence Act?


Section 165 of Indian Evidence Act, 1872 says-

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question;

Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall be dispense with primary evidence of any document, except in the cases hereinbefore excepted.

The main objective of Section 165 is to provide extensive power to the judges for the interest of the administration of justice. A judge can, therefore, put any question to the witness or to the party at any time which it thinks fit for knowing the truth of a case and making it clearer.

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