Jai Narayan vyas university

Jodhpur
Faculty of law

Session=2018-2019
Subject=law of evidence
Topic=nature and function of law of
evidence

Submitted by= submitted to=

Dilip kumar jani

Ba llb 3 sem.
rd

1
 Acknowledgment
I have taken lots of efforts in this assignment. However it
would not have been possible without the kind support of
Ms …………………………….. I would like to express my
sincere thanks to him.

I m highly indebted to jai Narayan vyas university for

this guidance and constant supervision as well as for
providing necessary information regarding this
assignment.

I would like to express my gratitude towards my family

and friends for their kind cooperation and
encouragement which helped me in completing my
assingnment.

My thanks also goes to those people who directly or

indirectly helped me in completing my project report.

2
INTRODUCTION
Evidence denotes the means by which an alleged matter of fact, the truth of which if
submitted to investigation, is proved or disapproved; and without prejudice to the preceding
generality, includes statements and admissions by accused persons[1]. Thus evidence is
something which serves to prove or disprove the existence or non existence of an alleged fact.
A party who alleges the existence of a certain fact has to prove its existence and the party
who denies has to disapprove its existence or non existence[2]. Law of evidence means rules
from different laws governing what facts may be proved or disproved in court, they govern
what materials may be presented in court to prove or disprove a fact, and the form in which
those materials should be placed before the court. It is also defined as the body of law
regulating the admissibility of what is offered as proof into the record of the legal
proceedings

The production of evidence has not left to parties to decide on what they wish
to tender before the court of law without procedures, there are rules that governing the
production of that evidence gives the court a greater chance of arriving at the correct
conclusion.

DEFINITION OF EVIDENCE
The term “evidence” means anything by which any alleged matter of fact is either established
of disproved. Anything that makes the thing in question evident to the court is evidence.
Where the question is whether an exploitation took place before a fire occurred. The noise of
the explosion and its flash are evidence of it. Persons who saw the flash or heard the noise
can give evidence of the fact of the explosion. Evidence can be both oral and documentary
and electronic records can be produced as evidenced as evidence. Even in criminal matters
also there can be evidence by means of electronic records, including video-conferencing. If
the happening of a fact is recorded on anything apart from human memory, that record is
also an evidence of the happening. Where the delivery of goods under a contract is recorded
in a document, such as, a delivery book, that document is an evidence of the truth or
probability of some fact asserted before it.

Section 3-

“Evidence”- 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, including electronic records, produced for the inspection of the court; such
documents are called documentary evidence.

Evidence obtained by undesirable means:-

3
The Supreme Court has made it clear in Pushpadevi M. Jatia v. M.L. Wadhawan, that where
“evidence” offered comes within the meaning of its definition, the court can act on it and
need not concern itself with the method by which the evidence in question was obtained. The
court cited the observation of SIR LAWARENCE JENKINS in Barindra Kumar Ghose v.
Emperor, to the effect that relevant evidence remains relevant even if it was obtained in the
course of a search or seizure in violation of the provisions of the Criminal Procedure Code.
The court found support in the following observation of LORD GODDARD, C.J. in the
judgment of the Privy Council in Kuruma v. Reginam: “the test to be applied in considering
whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is
admissible and the court is not concerned with how it was obtained. In their Lordships’
opinion, when it is a question of the admission of evidence strictly it is not whether the
method by which it was obtained is tortious, but whether what has been obtained is relevant
to the issue being tried.”

Evidence obtained in investigation of other crimes

Statements in an affidavit do not constitute an evidence within the meaning of S.3. Where,
however, a court orders that a particular fact may be proved by submitting an affidavit, it
then becomes an evidence. An affidavit is not included in the definition of evidence unless the
law specifically permits that something may be proved by an affidavit.

The Code of Civil Procedure (Amendment) Act, 2002 permits evidence in the form of
affidavits. Where the deponent can be available for cross-examination and an opportunity is
given to the other party to do so, the same can be replied upon.

First Information Report (FIR):-

FIR does not constitute substantive evidence. But it can be used as a previous statement of
the witness for purposes of either corroborating contradicting him. Those parts of the FIR
which are to be used for contradicting him have to be brought to his notice. Thes was not
dine in the cross-examination of the victim of rape. The statement in the cross-examination
which was not there in the FIR could not be used to contradict her. The victim was grown up
married lady with two children. Absence of no injury on her private parts was held to be not
a ground to hold that there was no assault. The plea of consensual affair put for the first time
at the trial was held to be not tenable.

Confession of co-accused
The confession of a co-accused is not ebidence in the real sense of the word because he does
not make his statements on oath and is also not cross-examines. But the testimony of an
approber is an evidence because it is made on oath and he is also cross-examined. The
written statement of an accused person is also no evidence ffor the same reason, being not
subjected to cross-examination.

4
Panchnama
neither the contents of a panchnama nor the statements of those who sign it constitute any
evidence. They have to appear as witnesses and the panchnama can be used as a record for
refreshing memory.

Function or rules of evidence law

Analytical function; this entails that law of evidence are created to restrict
admissibility of evidence which by their nature are likely to be inadmissible in some
circumstances depending on the rule from which the said function arose. For instance the
function of the rule against hearsay evidence, this rule as provided under section 34[4] is not
necessarily of bad account; sometimes it may be admissible in a certain circumstance. For
instance the statement made by person who cannot be called as a witness either by reason of
death or incapacity may be testified by the other person who heard it or whom the statement
was made on his favour[5].
Preferential function; Before the court of law the court tends to accept or prefer
superior evidence to inferior evidence, for example when there is primary evidence the court
does not accept secondary evidence unless the one producing that secondary evidence alleges
that primary evidence is on the possession of adverse party as envisaged in Section 67 (1) (a)
(i)[6]. It was agreed in the case of Dr. Kakonge v Christine Bitabeiho[7] where the original
document appeared to be in the possession of an adverse party the one who wants to produce
it will be allowed to produce secondary evidence after he has produced notice to produce. So
this preferential rule governs on what the court prefer most than the other if the one is
stronger than the other.
Structural function; these rules are designed to provide for a framework in dealing
with different evidence produced or tendered before the court, it govern the court to be aware
on the rules applicable in describe either the burden of proof or authentication of
exhibits produced before the court. With regard to the burden of proof, the standard of proof
required in the criminal proceeding is that of beyond reasonable doubt different of that civil
proceedings whereas the parties must prove on balance of probability, this is clearly
cemented under provision of section 3 (2) (a) (b) of the law of the Evidence Act[8]. The same
position has been discussed in the case of Jonas Nkize v Republic.[9]where the court were on
the opinion that “ it is the trite law that he who alleged must prove and the burden of proof
lies on the prosecution with regards to criminal cases beyond reasonable doubt and to the
parties in civil proceedings on balance of probability.”

5
TYPES OF THE EVIDENCE

1. oral evidence

Section 60 of the indian evidence act explains the oral evidence. Oral evidence arethose
evidence which are personally seen or heard by the witness giving. Oral evidence are always
direct and oral evidence are the evidence which are spoken in the front of the jury. All the
statement which are permitted by the court expects the witness to make such statement in his
presence regarding the truth of the fact

2 primary evidence

section 62 of the indian evidence act defines the primary evidence. Primary evidence are the
most superior class evidence. These are the evidence which are expected by the court of law
and admissible and permissible at the first place. These are the evidence which give the vital
hint in any difficult situation.

3. Documentary Evidence
Section 3 of the indian evidence act defines the documentary evidence. All those document
presented in front of the court are regarded as the documentary evidence. Most commonly
considered to be written forms of proof, such as letters or wills, documentary evidence can
also include other types of media, such as images, video or audio recordings, etc.

4 secondary evidence
Section 63 of the indian evidence act defines the secondary evidence. These are the those
evidence which are admissible in the court in the absence of the primary evidence. Therefor it
is known as the secondary evidence.

5 real evidence
The real evidence are those evidence which are real or the material evidence. The real
evidence are brought to the court in the inspection of the physical object rather than by
deriving an information by a witness or the document

6 hearsay evidence
Hearsay evidence are those evidence which the witness has personally never seen or heard,
nor has been perceived through his senses. But these are the evidence which have come to
knowledge through other person are called the hearsay evidence.

7 direct evidence
The court will also generally attribute a high probative value to physical exhibits. The court
likes physical evidence because they are items the court can see and examine to interpret the
facts in issue for proof beyond a reasonable doubt. Physical evidence can include just about

6
anything, such as weapons, fingerprints, shoe prints, tire marks, tool impression, hair, fiber,
or body fluids. These kinds of physical exhibits of evidence can be examined and analyzed by
experts who can provide the court with expert opinions that connect the item of evidence to a
person, place, or the criminal event.

8 indirect or circumstantial evidence

The indirect or the circumstantial evidence are those evidence which attempts to prove the
facts with the help of the other fact. These evidence are not the definite proof. They only
provide the general idea that what had happened on the crime scene.

9 judicial evidence
Judicial evidence are those evidence which are made in front of the judicial magistrate and
they are the valid evidence and also they are admissible in the court of the law. For
example= the confession made in front of the judicial magistrate is the valid evidence in the
court

10 non-judicial evidence
The non judicial evidence are those evidence which are not made in the front of the any
judicial officer. And confession made by accused outside the court not in front of the judicial
magistrate are not the valid evidence. The confession made in the police custody is also the
non-judicial evidence.

11 testimonial evidence
The court will also generally attribute a high probative value to physical exhibits. The court
likes physical evidence because they are items the court can see and examine to interpret the
facts in issue for proof beyond a reasonable doubt. Physical evidence can include just about
anything, such as weapons, fingerprints, shoe prints, tire marks, tool impression, hair, fiber,
or body fluids. These kinds of physical exhibits of evidence can be examined and analyzed by
experts who can provide the court with expert opinions that connect the item of evidence to a
person, place, or the criminal event.

7
LEX FORI

Explaining the place of the law of evidence as early as 1850, the house of lords observed.

The law of evidence is the lex fori which governs the court whether a witness is
competent or not, whether a certain fact requires to be proved by writing or not, whether a
certain evidence proves a fact or not, that is to be determined by the law of country where the
question arises, where the remedy is sought to be enforced and where the court sits to enforce
it

BSIC PROCEDURE OF THE LEX FORI

Thus it is basically a procedural law but even so here and there it has overtones of
substantive law. For example the doctrine of estoppel can defeat a man’s right. It shuts his
mouth. It would not permit him to speak of his rights.

Case:-

Haji Ebrahim Kassam Cochinwala V/S northern India oil industries ltd

8
 BIBLIOGRAPHY
1 Dr Avtar Singh – Principles of The Law of Evidence
Central law publication, Allahabad(U.P)
2 www.legalbites.com
3 www.wikipidia.com