Justice is truth in motion, as the saying goes. Of course, it is the primary duty of the Courts to find out the truth as far as justice administration is concerned. However, seeking truth can be quite deceptive. Sometimes, it may not be an easy task as certain circumstances are capable of diverse interpretations at the same time. Even if it is taken for granted that truth is absolute, the existence of “untruth” in any circumstance or event makes it imperative that seeking truth has to be an even handed exercise. Hence, the Courts cannot proceed in an arbitrary manner in seeking out the truth. The Courts have to operate under the all encompassing radar of Rule of Law. Both substantive and procedural safeguards have been prescribed as a check against any partisan proceedings so far as the quest for the truth is concerned. One important check, which hardly receives public attention or awareness, is the Law of Evidences.
The importance of the Law of Evidences in justice administration can be summarized as follows:
- As stated, justice administration deals with circumstances and events, both fictitious and real. It is for the Courts to separate the chaff from the grain. The Law on Evidences prescribes the procedure/ methodology for the Courts to go about it. In legal terms, it is generally referred to as appreciating evidence.
- Secondly, by stipulating the procedure, the Evidence Law charts out the limitations of the powers of the Courts in appreciating evidence.
- Thirdly, in seeking out truth, the Court inadvertently determines the rights and the liabilities of the parties involved in the said matter or event. In legal parlance, such parties may be termed as litigants, complainant, accused, plaintiffs, respondents or defendants, as the case may be.
The determination of the rights and the liabilities of the parties entail proving/ disproving the existence or non-existence of certain facts/ events, i.e., separating the real from the fictitious. Legally, these certain facts/ events, whose existences or non-existences are to be proved or disproved, are called as facts-in-issue. In order to do so, certain other facts are necessarily required to corroborate or to contradict the impugned facts-in-issue. These facts, which are required to prove the existence or non-existence of the facts-in-issue can be termed as evidence. It can be both oral and documentary as per the Evidence Law of India. Documentary evidence can be further sub-classified into primary and secondary evidence also.
In India, the Law of Evidences is generally covered by the Indian Evidence Act, 1872. The said Act was enacted on 15th March, 1872, to consolidate, define and amend the Law of Evidence.
First of all, Evidence Act illustrates the facts for which the evidence may be given; and the facts which can be tendered as evidence. Meaning thereby, the Evidence Act prescribes the relevancy and the admissibility of those facts which can be termed as evidences.
As mentioned, Evidence Act not only defines not only the “facts-in-issue”, but also stipulates that evidence can be given for “facts-in-issue” as well as facts relevant to the “facts-in-issue”. What are facts relevant to the “facts-in-issue” may be facts which forms part of the same transaction, continuation of the chain of events; facts which are the cause, effect, or facts which constitute preparation, explanatory and introductory facts or facts inconsistent with the “facts-in-issue”; facts which shows intangible aspects such as existence of state of mind, whether intentional or accidental or even motive etc.
Secondly, Evidence Act prescribes the mode in which such facts may be tendered as evidence. There are generally three modes-
- Judicially noticed – Once a fact has been taken on judicial notice by the Courts, no further tendering of evidence/ proof is required for its existence or non- existence.
- Oral evidence – A person can prove the existence or the non-existence of a fact by tendering his own statement in the Court, on oath and with the permission of the Court or directed by the Court to tender such statements. This mode has to be direct at all times. Meaning thereby that a person can give such evidence of those facts which he himself has seen or done or heard, and not otherwise. Hearsay statements are generally excluded by this principle. Thus, a person cannot give statements of something he has neither seen, heard nor done, but came to know about it through an indirect third party/ medium.
- Documentary evidence – As the name suggest, the third mode prescribes that a fact can be proved/disproved by all such documents produced for inspection before the Court. Documentary evidence can be both primary and secondary- i.e., the document itself will be the primary evidence; or in case the document itself is not available, the Court may allow copies of the original document to be tendered as evidence. This is called secondary evidence.
Admissibility and relevancy
One of the general principles of Evidence Law is that a fact has to be both relevant as well as admissible.
- Suppose B is murdered and A is arrested for the charge of murder. The fact in issue is whether A murdered B.
Relevant facts may be both the conduct of A and B before the fatal incident, admissions of A as to the crime committed etc. However, for the conduct of A to become admissible in evidence, it has to satisfy certain criteria as prescribed under the Evidence Act. Like an eye-witness ‘X’ of the incident, can give his account of what he has seen about the conduct of A. And X has to give his statement in Court under oath, subject to cross examination by A
- Again, A filed a suit for the declaration that he is the owner of a homestead land X.
Whether A have in his possession a sale deed executed by B transferring the ownership of the land X is a relevant fact. And he can produced the said sale deed as evidence. However, he has to produce the said sale deed, so as to be admissible. This is called primary evidence. But if he has lost or doesn’t have the original, he can produce a photo-copy, if the lost or any other circumstance is proved as provided under section 65 of the Indian Evidence Act. This is called secondary evidence. Otherwise, the sale deed, otherwise relevant, shall be inadmissible. However, when such secondary evidence is allowed under section 65, they are deemed to be in some documentary form.
Here, it can also be noted that Evidence Act is very clear about the demarcation between oral and documentary evidence. Generally, it is not permitted to prove the contents of a document by oral accounts/ admissions. For example, suppose the question is about the existence of certain words or figures in a sale deed, the same cannot be proved by someone who claims that he has seen the sale deed and those certain words or figures are present or absent in the sale deed as the case may be. However, oral accounts/ admissions may be allowed if the genuineness of the document is in question or if fraud is alleged. But that is more of an exception than the rule.
There are also facts which are inherently inadmissible although relevant. Examples of it are privileged communication, prohibited and confidential communications etc. The communication between the husband and wife during their marriage are privileged and they neither be compelled nor permitted to disclose all such communication generally, unless of course either one of them consents or in cases when either the husband or the wife is being prosecuted for crime (s) committed against each other. Professional communication between the professional and the client are also privileged and public officials are prohibited from disclosing those information/ communication made to them in official confidence. All such communications, although relevant, are hence inadmissible.
There are also facts which are both inherently irrelevant and inadmissible for the purpose of the Act. Confessions on inducement, threat or promise etc, are all inherently irrelevant and inadmissible. The same holds true for hearsay evidence. Further, the Indian Evidence Act explicitly provides that any confession to any police officer as to the commission of crime, irrespective of any threat, promise or coercion, is irrelevant and hence inadmissible. Even confession to the commission of crime whilst in custody of the police alone also becomes irrelevant and inadmissible ipso facto. The easiest example which can be given here is that when police claims that certain accused “A” have confessed to the crimes either to the police officer during interrogation or when in their custody, such claims are utterly irrelevant and pointless in the eyes of law.
However, some exceptions are there. Hearsay evidence is both relevant and inadmissible as it forms part of the same transaction. For example, suppose ‘A’ heard someone shouting. ‘A’ rushed to the spot and find a person lying on the ground and another one standing near him. The one on the ground states that he was kicked by the other person and thus he fell on the ground. Though ‘A’ is not privy to what had happened and what ‘A’ heard is merely hearsay, his statement about what the person on the ground said will be both relevant and admissible as forming part of the same transaction.
Statements made to the police or inside the police station, apart from confessions as to the commission of crime, are relevant and admissible as to that part which leads to the discovery of some incriminating fact or material object. But the admissibility part ends there. Suppose, during interrogation, the accused admittedly gives statements which led to the discovery of some weapon used in the commission of some crime; that part of the statement which led to the discovery is admissible only and not otherwise.
As to the question whether there are also facts which are admissible and irrelevant. As evidence is to be given for the relevant facts in principle, such admissible but irrelevant facts are to be excluded. Even during the examination and cross examination of a witness, questions which are irrelevant and scandalous are not permitted to be asked.
During the trial, it is the duty of the Judge to decide the admissibility and the relevancy of the evidence. The Evidence Act provides that the Judge is to decide in what manner the fact to be proposed to be proved by any of the parties would be relevant during the trial. This intends to weed out and de-clutter unnecessary pleadings and arguments, which will tend to delay or even subvert the proceedings before the Court.
Further, the Evidence Act provides that if evidence of a fact would be admissible only on proof of some other fact, the latter fact should be proved first. Or if evidence of it would be relevant only on proof of some other fact, it becomes optional as to which fact is to be proved first. For example, secondary evidence becomes admissible only when the conditions as to the non-availability of primary evidence are proved. And in the other case, when a person is accused of possessing a stolen property, both the facts whether the property itself was stolen or not and whether the person had in his possession the alleged stolen property are all relevant facts. Both or either of these facts can be proved without any reservations as to the order in which it is to proved.
During examination of witnesses also, the Court is to decide which questions can be asked to the witness. Generally, there are three stages in the examination of a witness, viz., examination-in-chief, cross examination and re-examination. Examination-in-chief is when the witness so called is permitted to give his statements as to what he knows about the case. To begin with, he will be asked questions by the party calling him to be the witness and to give his statements. Here, the party calling him cannot ask such questions which are leading in nature. For example, he cannot be asked, “Is it true that on 2nd day of July, you went to Paona Bazar?”. Such questions are called leading because they already suggest the answer which is desired. In this situation, the witness can only be asked, “Where did you go on 2nd July?”.
The second stage is cross-examination. It is where the opposite party will get an opportunity to discredit the statements made by the witness and to disprove him. Here, all such leading questions are allowed, subject to the condition they are proper questions. The Court is also to decide which of these questions are proper when such questions are attempts to impeach the credit of the witnesses by injuring his character. The questions are proper only when the truth of the imputation would affect the opinion of the Court as to the credibility of the witness. Indecent and scandalous questions, questions which are offensive, and which tend to insult and annoy are all prohibited and inadmissible.
However, when a witness is questioned as to his veracity only and he answers accordingly, no evidence shall be further given so as to contradict him. However, if he has been proved to have been answered falsely, he may be held accountable for giving false evidence, which of course has to be dealt separately.
Re-examination is the third stage, when in case, clarification is required from the witness in relation to the new facts that have been disclosed in cross-examination.
The touchstone is always the prudent man; the reasonable man and his standards. Law is founded on the fiction of the reasonable man whether be it of substantive or procedural law. Yes, proof in criminal case is always to be beyond reasonable doubt and in civil cases, it is to be after preponderance of evidence. However, the yardstick employed is always the same. At all times, the parameter is the reasonable standards of a common man and not the lofty heights of an ideal man. Appreciation of evidence, its relevancy and admissibility have to be seen in the light of this fiction, always.
The writer is Deputy Member Secretary Manipur State Legal Services Authority