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THE CARDINAL PRINCIPLES OF THE LAW OF EVIDENCE
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THE CARDINAL PRINCIPLES OF THE LAW OF
EVIDENCE
AUTHORED BY - DANISH SAMI
ABSTRACT
This paper gives a theoretical
understanding of the cardinal principles of the law of evidence through which
the Court can ensure that justice is done in the case. It discusses the various
provisions of the Indian Evidence Act along with the process to ensure
fairness, through which the cardinal principles of the law of evidence is
embedded. It also discusses the rules of admissibility of evidence, the
exclusion of hearsay evidence and the other dimensions of the rule of best
evidence along with the special powers of the court. It also appreciates the
various Hon’ble Supreme Court judgements wherein the duty of courts becomes
more to shift the grain from the chaff i.e., to disengage the truth from
falsehood as there is always almost a fringe of embroidery to a story, however
true is the main. It also talks about the relevant provisions related to the
exclusion of oral evidence by documentary evidence. It concludes with the
jurisprudential essence and the constitutional spirit behind the cardinal
principles of the law of evidence expressly mentioned in various provisions of
The Indian Evidence Act,1972.
Keywords: Principles of the Law of Evidence,
admissibility of evidence, exclusion of hearsay
evidence, rule of best
evidence.
INTRODUCTION
The Indian Evidence Act plays its
role mainly at the trial stage in the civil and the criminal procedure and the
purpose of The Indian Evidence Act is to ensure fairness of procedure. “Justice
has not only to be done but is has to be seen to be done”. The Indian Evidence
Act helps in arriving at a just decision in the case. In every suit or
proceedings there will be two or more parties and justice has to be done
between those parties. The Indian Evidence Act plays the role of balancing of
interests between those parties. In order to do complete justice and balancing
between the parties there has to be a fairness of procedure between the parties
and The Indian Evidence Act ensures such fairness of procedure.
Every law has to subscribe to the
essential elements and the requirements of the Constitution and no law can
afford to exist without subscribing to these principles like natural justice,
reasonableness, fairness, non-arbitrariness, equity, justice, fairness etc.
These essential principles are the part of the basic structure of our Indian
Constitution and they cannot be violated in any circumstances by any law or any
executive action. These elements are the essentials of the basic structure of
the Constitution and they are implicit in Article 14, 19, 21 etc of our Indian
Constitution. These principles are clearly manifest also in The Indian Evidence
Act. The Indian Evidence Act essentially aims at providing finality to the
requirements of procedural fairness and it serves the larger societal interest
of developing societal faith and coherence.
The Indian Evidence Act logically
provides for what facts will be considered to be fact in issue in a particular
case and what facts will be considered to be relevant fact in that case. The
Indian Evidence Act provide for entire process/mechanism of duly proving or
disproving of these facts. It is only after these facts have been duly proved
that the Court will apply its judicial mind in order to describe the particular
case. The whole of The Indian Evidence Act is based upon logic, common-scenes
and the principles of justice.
RULE OF BEST EVIDENCE
The Indian Evidence Act have devised
some mechanisms, some principles, some processes and rule by which the Court
can ensure that the justice is done in the case until the Court ensures that
best possible evidence is available before it, it cannot give a just decision
in the case.
Dimensions of Rule of Best Evidence
·
Relevant
fact must be duly proved.
·
The
rules of admissibility of evidence.
·
Exclusion
of hearsay evidence.[1]
·
Documentary
evidence will exclude oral evidence.[2]
·
Exclusion
of secondary evidence by primary evidence.[3]
·
The
special powers of the court.[4]
PRINCIPLES RELATED TO ORAL EVIDENCE
I.
There
is no presumption to perjury in the case of oral evidence but before acting
upon the oral evidence the court must satisfy itself about the credibility of
such oral evidence. The credibility has to be established in the following two
manners: -
a) Intrinsically
The Court has to examine the
veracity i.e., the truthfulness of that statement by the process of
cross-examination which the other party does, by asking the questions under
Section 165 of The Indian Evidence Act which the Court does, the court
examines, whether the statement has some internal inconsistencies or
contradictions.
b) Extrinsically
The Court has to examine whether the
said oral evidence is in line with the other proved circumstantial evidence
i.e., whether it is corroborated by the other proved circumstantial evidence or
not. If yes, then it will be said reliable or credible.
II.
The
Court also has to see whether the oral evidence is contradicted by some proved
documentary evidence.
III.
It
is the general principle that greater credence shall be given to men’s acts in
the form of documents rather than their mere words. Words are always
susceptible to mistakes, variations and misrepresentation. And therefore, the
court shall be cautious about the oral evidence.
IV.
Oral
evidence shall not be utterly disregarded, if the oral evidence satisfies the
intrinsic and extrinsic test then it is reliable and trustworthy.
V.
“Falsus
in uno falsus in omnibus” i.e., False in one particular false in all. If any
part of the oral evidence is found to be false then the whole statement in
totality will be considered to be false. But this rule/maxim is applied in
England and it is not applicable in India.
If a witness has made a
statement and it is found that some part of the statement is false then, in
England his entire statement will be discarded and the entire statement will be
considered to be false.
However, in India, the
rule is different. In India, the approach is that it will be examined whether
the false part of the statement is severable from the rest of the statement
then the false part will be discarded and the remaining part of the statement
will be admissible.
In the case of Nasar Ali vs The State
Of Uttar Pradesh[5] it was held
that the maxim “Falsus in uno falsus in omnibus” is not a mandatory principle
in India, rather the maxim is not applicable in India. It is the duty of the
court to disengage the truth from falsehood i.e., to sift the grain from the
chaff. It also held that if the false part is not separable from the true part,
then the entire evidence will be discarded.
“There is always almost a fringe of
embroidery to the story, however true is the main” i.e., whenever a person makes a
statement there is always a slight fringe of falsehood, however true the main
statement may. The Court should know the art to sift the grain from chaff.
Exclusion of Hearsay Evidence
Section 59 of The Indian Evidence Act
is a declaration that if there is something in document or electronic record
then it has to be proved by the document, but apart of that if there is any
other fact then it may be proved by the Oral Evidence. It is enabling provision
and it simply declares that any fact may be proved by oral evidence excepting
the contents of a document and electronic evidence.
There are certain situation where
even if document, oral evidence is permissible: -
i.
Secondary
Evidence under Section 63 (5) of The Indian Evidence Act wherein oral accounts
are allowed.
ii.
Oral
admissions are allowed under Section 22 of The Indian Evidence Act.
iii. Oral evidence of transactions is
allowed under Section- 91 of The Indian Evidence Act.
iv. Oral evidence is allowed also under
Proviso to Section 92 of The Indian Evidence Act.
In the case of Kalyan Kumar Gogoi vs
Ashutosh Agnihotri & Anr[6] (2
Judges Bench) (Judgement delivered by Hon’ble J.M. Panchal Justice) has discussed
elaborately the defects of hearsay i.e., why hearsay evidence shall not be
allowed.
Why we consider hearsay evidence
inadmissible? / Defects of hearsay evidence.
i.
It’s
second-hand evidence.
ii.
It
is susceptible to personal whims and fancies of witness.
iii. There are chances of improvisation,
concoction, fabrication, exaggeration, etc.
iv. Since the witness has not himself
perceived the thing himself, he will not feel responsible while giving evidence
rather he will give an incorrect version of the real facts. Also, the
administration of oath to such witness will useless.
v.
Since
the witness has not himself perceived it, he cannot be effectively
cross-examined and hence his evidence will be defective evidence. Such
defective evidence cannot be allowed to prove the Relevant Fact or Fact in
Issue.
vi. Allowing hearsay evidence would
result into parties giving weaker proof of facts and that may result into an
unnecessary protracting (delay) of the trial. And that will defeat the ends of
justice.
Hearsay Evidence is a subjective
concept[7]-
Whether the evidence will be hearsay or not would depend upon who is giving the
evidence and of what fact he is giving the evidence. There is nothing like
hearsay evidence universally and this is the unique feature of hearsay
evidence. It is the purpose for which the evidence has been recorded which will
make it direct evidence or hearsay evidence. For example- If the evidence of
dying declaration is given by the witness the if that evidence is used to prove
the dying declaration i.e., to prove what the victim told to the witness before
his death, then it will be direct evidence and will be admissible. However, if
the purpose of recording the testimony of that witness is to directly prove the
guilt of accused then it will be hearsay evidence.
Some exceptions to the rule of
“Exclusion of Hearsay Evidence”: -
i.
Res
Gestae (Section 6 and 7 of The Indian Evidence Act)
ii.
Dying
Declaration (Section 32 (1) and 33 of The Indian Evidence Act)
iii. Admission and Confession (Section 17
to 31 of The Indian Evidence Act)
iv. Statement of person dead etc (Section
32 (2) to (8) of The Indian Evidence Act)
v.
Entries
in books of accounts (Section 34 to 38 of The Indian Evidence Act)
vi. Opinion of third person (Section 45
to 51 of The Indian Evidence Act) (subject to the proviso to Section 60)
Exclusion of Oral Evidence by
Documentary Evidence
This is the second cardinal principle
of the law of evidence. A document is prepared in order to bring about a
permanence regarding that transaction and make that document perpetual in memory.
The purpose of reducing something in writing is to perpetuate the memory of the
transaction so as to avoid any confusion about that transaction and if that
transaction has to be proved then it can be proved only by that particular
document and oral evidence will not be allowed to be proved. This is what is
called the principle of exclusivity of document. Here exclusivity means that
the transaction can be proved only be that document and not by any oral
evidence.
Rule of conclusivity of document
When you prove a transaction by a
document it is final on that transaction and any changes etc related to that
transaction should also be in writing. Despite the principle conclusivity and
exclusivity of documents there may be some logical, equitable and some reasonable
circumstances wherein the court may permit the oral evidence of some changes or
variations in some specified circumstances.
Extrinsic Evidence is inadmissible to
supersede the document (Section 91 of The Indian Evidence Act) or to control
i.e., to contradict, vary, etc. the terms of the document (section 92 of The
Indian Evidence Act). However, in some equitable circumstances oral evidence is
allowed to prove the variations in the document. (The proviso to Section 92)
If as per the Indian Registration
Act, a matter is required to be registered but it was not registered though it
was documented. In the case where the document is required to be registered, if
the transaction has been documented but it has not been registered, the
following consequences will follow:-
i.
Since
the document is unregistered, as per Section 49 (c) of The Indian Registration
Act the said document will not be allowed to be proved in evidence excepting in
the cases where the suit is for specific performance of a Contract and also to
prove any collateral transaction. Thus, excepting the exceptions the said
documents cannot be used in evidence.
ii.
Since,
the transaction has been documented, according to Section 91 of The Indian
Evidence Act, oral evidence to prove the terms of the said document cannot be
allowed.
Thus, the combine effect of Section
49 (c) of The Indian Registration Act and Section 91 of The Indian Evidence Act
is that neither documentary evidence can be given nor oral evidence can be
given.
Even though Section 92 of The Indian
Evidence Act talks about both contract, grant or other disposition of property
as well as those matters which are required by law to be documented. Here, the
important point to be kept in mind is that both these phrases are qualified by
the phrase “as between the parties” and this phrase “as between the parties”
implies that the document should have two parties at least. And whenever a
document has two parties, it will be a bilateral document and thus it comes out
that the matters which are required by law to be reduced into writing is
limited only to those matters which are bilateral in nature and which are
therefore dispositive documents. Thus, those matters which are required by law
to be reduced to writing and are unilateral in nature i.e. of a non-dipositive
character, Section 92 will not apply.
Therefore, conclusivity of Section 92
of The Indian Evidence Act does not apply upon non- dispositive document which
are required by law to be reduced into writing as such documents are unilateral
in nature and they are not between two or more parties. And therefore Section
92 of The Indian Evidence Act does not apply upon such documents. Hence, for
such documents alteration or variation can be proved even by Oral Evidence.
In the case of Bai Hira Devi Vs
Official Assignee of Bombay[8]
the Hon’ble Supreme Court has very elaborately discussed the difference between
Section 91 and 92 of The Indian Evidence Act. Section 92 of The Indian Evidence
Act is in two parts: -
i.
Contract,
Grant or other disposition of property which has been reduced into writing
voluntarily. And has been proved under Section 91 of The Indian Evidence Act.
ii.
Any
other matter required by law to be reduced to writing and which has been proved
under Section 91 of The Indian evidence Act.
Both these phereses are
further qualified by the phrase “as between the parties or their
representatives in interests”. The above suggest that the document concerned
should be between two or more parties i.e. it is a bilateral document in which
there is an agreement between two or more parties who have created rights and
duties amongst themselves. Thus, any such document which was required by law to
be reduced into writing but which did not create bilateral rights will not fall
under Section 92 of The Indian Evidence Act as that is not “between the
parties”.
Thus, the restriction of
Section 92 of The Indian Evidence Act will apply upon Contract, Grant and
Disposition of property which are either voluntarily reduced into writing or
which are required by law to reduced into writing or which are required by law
to reduced into writing. Thus, the implication is that if a document is
required by law to be reduced into writing and it is a unilateral document then
even if it is reduced into writing and ha been proved under Section 91, it will
not hit by the restriction of Section 92 of The Indian Evidence Act, and
therefore Oral Evidence to prove any alteration will be allowed.
In the case of Godhra
Electricity Co. vs. The State of Gujrat[9] it
was held that if there is an ambiguity in the document then oral evidence of
the surrounding circumstances can be proved. For example- Any statement made by
either of the parties at the time of transaction, before the transaction or
after the transaction. Similarly, any conduct made by the parties
contemporaneous to the transaction or proceeding the transaction or subsequent
to the transaction.
In the case of SBI &
another Vs. Mulla Sahakari Sakkar Karkhana Ltd.[10]
It was held that in order to apply to proviso to Section 92 of The Indian
Evidence Act, it is essential that there has to be some ambiguity in the
document. If there is no ambiguity in the document, then oral evidence of
surrounding circumstances cannot be given so as to give a different meaning to
the express terms of the document. In the present case the document clearly
specified that the document related to bank guarantee but one of the parties
sought to give oral evidence to prove that it is indemnity, this was not
allowed as the document was not ambiguous.
In the case of Mangala
Waman Karandikar Vs. Prakash Damodar[11]
it has been held that proviso 6 to Section 92 of The Indian Evidence Act will
apply only when there is an ambiguity in the document.
Section 91 clearly
declares that in certain cases oral evidence may not be given rather the
document itself has to be proved. The party therefore has an implicit right
under Section 91 itself that if oral evidence is being given of such a
document, then the opposite party can raise the objection against such oral
evidence. The same thing with respect to
the objection has been expressly declared in Section 144 (Ist part) of The
Indian Evidence Act if it was contract/grant/or other disposition of property
which has been documented. At the stage of examination of such a witness the
objection can be raised by the adverse/opposite party and in that case the
document itself will have to be produced. As far as the matter required by law
to be reduced into writing is concerned that is not expressly covered by
Section 144 of The Indian Evidence Act but still as in such cases also Oral
Evidence cannot be given, the party can raise an objection under Section 91 of
The Indian Evidence Act itself such a right to raise the objection will be
implicit under Section 91 or it can be said to be implicit under Section 144 of
The Indian Evidence Act also, but since Section 144 is a special provision and
it does not expressly cover such matter, it would be better to say that the
right to raise objection in such cases is implicit under Section 91 of The
Indian Evidence Act.
In the second part of
Section 144 of The Indian Evidence Act, it is clearly provided that if a
witness is giving oral statement of the contents of any document i.e. if he is
giving oral accounts of the contents of any document then the opposite party
may raise an objection and the party concerned will be required to produce the
original document itself and if he cannot produce the original then he will
have to prove that he is entitled to give secondary evidence under Section 65
of The Indian Evidence Act, only statement i.e. the oral account of the
contents of the document.
Conclusion
“There is always almost a fringe of
embroidery to the story, however true is the main” i.e., whenever a person makes a statement
there is always a slight fringe of falsehood, however true the main statement
may. The Court should know the art to sift the grain from chaff.
The Indian Evidence Act has devised
some mechanisms, principles, some processes and rules by which the Court can
ensure that justice is done in the case until the Court ensures that best
possible evidence is available before it, it cannot give a just decision in the
case.
The general rule in Section 92 of The
Indian Evidence Act is that if the conditions of Section 92 are fulfilled then
oral evidence for any alteration in the terms can not be given. However, there
are some logical circumstances which are equitable justified and reasonable
wherein any such alteration may be proved by oral evidence also. These
circumstances have been provided in the various provisos to Section 92. The
provisos to Section 92 are based upon the principles of equity, justice and
reasonableness. The provisos are exception to Section 92 and the rule of
interpretation says that exceptions have to be given strict interpretation.
Strict interpretation here would mean that only as much is permissible under
the proviso as is expressly provided in the proviso. A proviso cannot be given
a liberal or wide interpretation.
[1]
Section 60 in The Indian Evidence Act, 1872
[2]
Section 91 in The Indian Evidence Act, 1872
Section 92 in
The Indian Evidence Act, 1872
Section 99 in
The Indian Evidence Act, 1872
[3]
Section 61 to 66 of The Indian Evidence Act & Section 162 to 164 of The
Indian Evidence Act, 1872
[4]
Section 165 of The Indian Evidence Act, 1872
Section
311,313 of The Code of Criminal Procedure.
Order XVI
Rule 14 and Order XVIII Rule 17 of The Code of Civil Procedure.
[5]
Nasar Ali vs The State Of Uttar Pradesh (14 February, 1957, SC)
[6]
Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr (18 January, 2011, S.C.)
[7]
Balram Prasad Agrawal vs The State Of Bihar & Ors (10 December, 1996 S.C.)
[8]
Bai Hira Devi And Others vs The Official Assignee Of Bombay (on 20 February,
1958) (Equivalent citations: 1958 AIR 448, 1958 SCR 1384)
[9]
Godhra Electricity Co. Ltd. & Anr vs The State Of Gujarat And Another (on
12 September, 1974) (Equivalent citations: 1975 AIR 32, 1975 SCR (2) 42)
[10]
State Bank Of India & Anr vs Mula Sahakari Sakhar Karkhana Ltd (on 6 July,
2006 S.C.)
[11]
Mangala Waman Karandikar(D) ... vs Prakash Damodaar Ranade (on 7 May, 2021
S.C.)
Article Information
THE CARDINAL PRINCIPLES OF THE LAW OF EVIDENCE
Authors: DANISH SAMI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/17
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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