law_of_evidencelaw_of_evidence

The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law. Law of Evidence is one of the fundamental subjects of law. The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.

The Act consolidates, defines and amends the laws of evidence It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth. The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly. discover, to ascertain or to prove.”

OBJECT OF THE STUDY OF THE LAW OF EVIDENCE

Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalizing an opinion of the judicial authorities. Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed. Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums. If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts may be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the existence or non-existence of facts as to be shown and therefore, the law of evidence plays a very important role.

Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y. a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved.

The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remains intact and strong. It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence.

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the laws which will be applied during such recording of evidence will Sri Lankan Law of Evidence.

THE LAW OF EVIDENCE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence) For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

WHAT IS PROOF? HOW DOES IT DIFFER FROM EVIDENCE?

Anything that can make a person believes that an assertion is true or false. It is distinguishable from evidence such that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial. A case that goes to trial must be strong in its legal submission and satisfy the Court of the claims made by producing evidence to do this, there are certain documents and objects that are taken into consideration while deciding on a matter of evidence The Law of Evidence governs this aspect of criminal proceedings. The level of proof in a criminal case is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doubt This standard is examined by looking at whether a reasonable man would be convinced by the allegations levelled in the face of evidence to the contrary. This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident.

BASIC PRINCIPLES OF EVIDENCE

The Act deal with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and the exceptions to the above principles; the exact application has been set out very clearly in the Act:

  1. Evidence must be confined to the matters in issue
  2. Hearsay evidence may not be admitted.
  3. The best evidence must be given in all cases.
  4. All facts having rational probative value are admissible in evidence, unless excluded by a positive rule of paramount importance.

There two fundamental principles of trial in the all-judicial system, firstly, it must ensure that parties to the case are given full opportunity to prove their case, and secondly every dispute must come to an end. These two rules which are juxtaposed to each other must be balanced and this is done by the blending of procedural law and rules of evidence.

HISTORY OF THE LAW OF EVIDENCE

Today we have two basics of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.

Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence:

  1. Lekhya (Documentary Evidence)
  2. Sakshi (Witnesses)
  3. Bukhti (Possession)
  4. Divya (Ordeals)

Though the concept of justice in Islam is that it is a divine disposition, the Mohammedan law givers have dealt with evidence in various forms:

  1. Oral that may be Direct Hearsay
  2. Documentary (Less preferred than oral)

Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting one’s hand in boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could go scot-free.

It was believed that if a guilty man touches the corpse, it would show a reaction and then the man should be punished. Accordingly, refusal to touch a corpse was also admission of guilt by the accused.

The cruellest evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately, she would be dead by then but nevertheless innocent in the eyes of law. Confessions due to torture are not unknown today either.

THE MODERN LAW AS IT PREVAILS

The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.

In 1856. Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So, it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts

Indian Evidence Act (IEA) makes provisions about rules regarding evidence and applies to all judicial proceedings in or before any court including court martial. However, if the court martial is done under-Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act. 1934, the Air Force Act, then it will have no application over these laws. It may also be noted that Evidence Act does not apply on affidavits presented to any Court or Officer, nor it applies to any proceedings before an arbitrator.

CONSTITUTIONAL PERSPECTIVE OF EVIDENCE

Clause (3) of Article 20 of the Indian Constitution, 1950 provides that “No person accused of any offence shall be compelled to be a witness against himself.” This principle is espoused on the maxim “nemo teneteur prodre accussare seipsum“, which essentially means “NO MAN IS BOUND TO ACCUSE HIMSELF.

The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial compulsion for people who are accused of an offence and are compelled to be a witness against themselves. The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No person shall be compelled in any criminal case to be a witness against himself”, same as mentioned in the Constitution of India embodying the principles of both English and American Jurisprudence. This libertarian provision can be connected to an essential feature of the Indian Penal Code based on the lines of Common Law that, “an accused is innocent until proven guilty” and the burden is on the prosecution to establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his much broader right, against self-incrimination.

The tendency of Indian legal system manifests skepticism of the police system. This is the reason confessions of an accused is only admissible if recorded by a Magistrate in accordance with an elaborate procedure to ensure that they are made voluntarily. Protection is also accorded by the provisions of The Indian Evidence Act. This protection is available to every person including not only individuals but also companies and incorporated bodies.

This clause gives protection only if the following ingredients are present:

  1. It is a protection available to a person accused of an offence;
  2. It is a protection against compulsion to be a witness against oneself; and
  3. It is a protection against such “Compulsion” as resulting in his giving evidence against himself.

Person accused of an offence

A person accused of an offence means a “person against whom a formal accusation relating to the commission of an offence has been levelled, which may result in prosecution”. Formal accusation in India can be brought by lodging of an F.I.R or a formal complaint, to a competent authority against the particular individual accusing him for the commission of the crime.

It is only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that person with its protective umbrella against testimonial compulsion. It is imperative to note that, “a person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a government servant, since there is no accusation of any offence within the meaning of Article 20 (3).

Self-incrimination has been extensively discussed in the case of Nandini Satpathy v. P.L Dani. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at Vigilance Police Station, for being examined in connection to a case registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165 and 120-B and 109 of The Indian Penal Code, 1860. Based on this an investigation was started against her and she was interrogated with long list of questions given to her in writing. She denied to answer and claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and hence it extends to the stage of police investigation apart from the trial procedure.

Further, this right to silence is not limited to the case for which the person is being examined but also extends to other offences pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well.

Protection against compulsion to be a witness

The protection contained in Article 20(3) is against compulsion “to be a witness” against oneself. In M.P Sharma v. Satish Chandra, the Supreme Court gave a wide interpretation of the expression “to be a witness” which was inclusive of oral, documentary and testimonial evidence. The Court also held that the protection not only covered testimonial compulsion in the Court room but also included compelled testimony previously obtained from him.

To be a witness– Furnishing Evidence

In M.P Sharma’s case it was held that. Article 20 (3) was directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in the Court.

Exception

It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings or exposing body for the purpose of identification are not covered by the expression to be a witness’ under v Article 20(3).

The Court distinguished ‘to be a witness’ from ‘furnishing evidence’, and interpreted the former to mean imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise. The latter included production of documents or giving materials which might be relevant at a trial to determine the guilt or innocence of the accused.

Analysis

Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal knowledge of the person giving information. But where an accused is compelled to produce a document in his possession which is not based on the personal knowledge of the accused, in such a case there is no violation of Article 20(3).

Searches & Seizures

In V.S. Kuttan Pillai v Ramakrishnan, the Supreme Court held that search of the premises occupied by the accused without the accused being compelled to be a party to such a search would not be violative of the constitutional guarantee enshrined in Article 20(3)

Section 27 of the Indian Evidence Act, 1872

S.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of evidence by the police is led by some fact that was disclosed by the accused then so much of the information as relates to the facts discovered. may be proved irrespective of the fact whether that information amounts to a confession of not. It was held that the provisions of this section are not prohibited within the scope of Article 20(3) unless compulsion had been used in obtaining the information.

Compulsion to give evidence “against himself

The protection under Article 20(3) is available only against compulsion of the accused to give evidence against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces documentary evidence, incriminatory in nature, Article 20(3) would not be attracted. The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion may take many forms. If an accused is beaten, starved, tortured, harassed etc. to extract a confession out of him/her then protection under Article 20(3) can be sought A case at hand would be Mohd. Dastagir v. State of Madras, where the appellant went to the residence of the Deputy Superintendent of Police and handed him an envelope. On opening the envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the officer. The DSP refused it and asked the appellant to place the envelope and the notes on the table, and he did as tell, after which the cash was seized by the Police. In this case the Supreme Court held that, the accused wasn’t compelled to produce the currency notes as no duress was applied on him. Moreover, the appellant wasn’t even an accused at the time the currency notes were seized from him. Hence in this case the scope of Article 20(3) was not applicable.

Tape Recording of statements made by the accused

If statements recorded are made by the accused, without any duress, with or without his knowledge are not hit by Article 20(3).

Scientific tests involuntary?

The issue of involuntary administration of certain scientific techniques, like narco-analysis tests, polygraph examination, etc. for the purpose of improving investigation efforts in criminal cases has gained a lot of attention. For a long time. there was a debate about whether such tests were violative of Article 20(3) or not and the same issue were brought to the Supreme Court in the case of Selvi v. State of Karnataka.

In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex Court, and drew the following conclusions:

  • The right against self-incrimination and personal liberty are non-derogable rights, their enforcement therefore is not suspended even during emergency.
  • The right of police to investigate an offence and examine any person do not and cannot override constitutional protection in Article 20(3):
  • The protection is available not only at the stage of trial but also at the stage of investigation;
  • That the right protects persons who have been formally accused, suspects and even witnesses who apprehend to make any statements which could expose them to criminal charges or further investigation;
  • The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question would be inculpatory or exculpatory;
  • Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings;
  • Compulsory narco-analysis test amounts to testimonial compulsion and attracts protection under Article 20(3);
  • Conducting DNA profiling is not a testimonial act, and hence protection cannot be granted under Article 20(3):
  • That acts such as compulsory obtaining signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration;
  • That subjecting a person to polygraph test or narco-analysis test without his consent amounts to forcible interference with a person’s mental processes and hence violates the right to privacy for which protection can be sought under Article 20(3):
  • That courts cannot permit involuntary administration of narco-tests, unless it is necessary under public interest.

Article 20 (3), invokes protection against self-incrimination and gives an accused the right to remain silent over any issue which tends to incriminate him. This protection by the Indian Constitution is also extended to suspects. Article 20 clause 3. has been carefully drafted to protect the accused from further self- incriminating himself only if any statement of his might result in prosecution. For the benefit of the Courts, the Supreme Court has distinguished between the terms “witness” and “furnish evidence”, the former including furnishing statements from one’s own knowledge and the latter referring to simply presenting documents required by the court under which protection under Article 20(3) cannot be sought.

In addition, it stretches its privileges to a person who is compulsorily being made a witness and also covers searches and seizures wherein, an accused or the person being searched is under no obligation to be a part of the search. If any confession or a mere statement is made based on which some material corroboration is found then that statement cannot be protected under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a confession and no duress can be exercised in order to obtain some information out of him, in such a case the statement would be void and the privileges under Article 20(3) would be applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary administration of mental processes, are considered violative of Article 20(3) and can only be done in a few cases as it disrupts the right to privacy.

But with the advancement in medical sciences, the certainty of such scientific tests has increased and the author thinks that they provide an effective tool to furnish evidence which help in speedy disposal of cases. By balancing the harmony between the protective rights and the need for speedy disposal.

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