Introduction to the law of evidence and its central conceptions

1. Substantive and procedural law

Substantive law defines rights and liabilities: the Bharatiya Nyaya Sanhita says what murder is, the Contract Act says when a promise binds. Procedural or adjective law supplies the machinery by which those rights are enforced. The law of evidence belongs to adjective law. It answers three questions every court faces: what facts may be proved, how they must be proved, and who must prove them. It creates no right and no offence.

The line is not perfectly clean. Some rules in the Adhiniyam work like substantive law. A conclusive presumption such as section 116 (old s.112), which treats a child born during a valid marriage as legitimate, in effect fixes status. Estoppel (section 121, old s.115) stops a party from setting up the truth. Examiners like the point because it tests whether you understand that "procedural" describes the main purpose, not every provision.

2. Evidence in customary and older systems

The syllabus asks for evidence in customary law systems. Keep it to a paragraph.

• Ancient Hindu law. The Smritis recognised human proof (manusha pramana): documents (lekhya), possession (bhukti) and witnesses (sakshi). Where these failed, divine proof by ordeal (divya) was used. Rules on competence of witnesses and on the weight of written documents appear in Yajnavalkya and Narada.
• Islamic law placed heavy weight on oral testimony of witnesses of good character, with fixed numbers of witnesses for certain matters.
• Customary tribunals (village panchayats, caste councils) decided on local knowledge, oaths and reputation rather than formal rules of admissibility.

The 1872 Act, drafted by Sir James Fitzjames Stephen, replaced this mixture with a single code built on English common law rules. The Adhiniyam keeps that design.

3. The basic principles

• Evidence only of facts in issue and relevant facts (section 3, old s.5). Everything else is excluded, however interesting.
• Best evidence. Documents are proved by primary evidence unless a case for secondary evidence is made out (section 59, old s.64).
• Hearsay is excluded. Oral evidence must be direct (section 55, old s.60), subject to listed exceptions such as dying declarations.
• Opinion is generally irrelevant, except the opinions made relevant by sections 39 to 45 (old ss.45 to 51).
• Relevance is not admissibility. A relevant fact may still be excluded, as a confession to a police officer is by section 23(1) (old s.25).

4. Civil and criminal proceedings

The Adhiniyam applies to "all judicial proceedings in or before any Court, including Courts-martial", but not to affidavits or to proceedings before an arbitrator (section 1(2)). The same definitions of "proved" and "disproved" govern both kinds of case. What differs is the standard that the prudent man of section 2(1)(j) applies. In a civil case a fact is proved on a preponderance of probabilities. In a criminal case the prosecution must prove guilt beyond reasonable doubt, because the presumption of innocence and the consequences for liberty require more.

Several provisions apply to one side only. Section 21 (old s.23, without-prejudice admissions) and sections 46 and 50 (character in civil cases) are civil. Sections 22 to 24 (confessions), 47 and 49 (character of the accused) are criminal. So the statement "the rules of evidence are the same in civil and criminal cases", set in June 2025, is true of the definitions and the general scheme but not of every rule.

5. Salient features of the Adhiniyam

• 170 sections in place of 167, in twelve chapters, with a Schedule containing the certificate for electronic records.
• Electronic records written into the definitions. "Document" includes electronic and digital records (section 2(1)(d)), and "evidence" includes statements given electronically (section 2(1)(e)).
• Electronic records as primary evidence in the situations listed in Explanations 4 to 7 to section 57, and a new section 61 stating that a record is not to be refused only because it is electronic.
• A two-part certificate under section 63(4) (old s.65B(4)), signed by the person in charge of the device and by an expert, in the form in the Schedule.
• Consolidation. Old ss.25, 26 and 27 now sit in one section, 23. Old ss.28 and 29 are provisos to section 22. Old s.45A is now section 39(2).
• Joint trial with an absconder. Explanation II to section 24 treats a trial held in the absence of an absconding accused as a joint trial for using a co-accused's confession.
• Secondary evidence enlarged. Section 58 adds oral and written admissions and the evidence of a skilled person who has examined voluminous documents.
• Colonial references removed: references to the Crown, Parliament of the United Kingdom, Lahore, and the like are dropped or replaced.

6. The central conceptions in section 2

Fact (section 2(1)(f), old s.3) means anything capable of being perceived by the senses, and any mental condition of which a person is conscious. So that a man heard something, held an opinion or acted in good faith are all facts.

Facts in issue (section 2(1)(g)) are those from which the existence, nature or extent of a right, liability or disability asserted or denied necessarily follows. On a murder charge: that A caused B's death, that he intended it, that he was provoked, that he was of unsound mind. In a civil suit the issues framed under Order XIV CPC fix the facts in issue.

Relevant (section 2(1)(k)): one fact is relevant to another when connected with it in any of the ways set out in sections 4 to 50. Relevance under the Adhiniyam is legal, not merely logical. A fact may be logically probative and still irrelevant because no section makes it so.

Evidence (section 2(1)(e)) has two parts: oral evidence, statements (including those given electronically) which the Court permits or requires witnesses to make before it, and documentary evidence, documents including electronic or digital records produced for inspection. The definition is about the means of proof, so it does not mention material objects or the accused's statement under section 351 BNSS, though courts use both. Evidence is also classified as direct or circumstantial, primary or secondary, and original or hearsay.

Document (section 2(1)(d)): any matter expressed or described on any substance by letters, figures, marks or other means, intended to be used or which may be used to record that matter. The new illustration (vi) lists emails, server logs, files on computers and smartphones, messages, websites, locational evidence and voicemail.

Proved, disproved, not proved (section 2(1)(j), (c), (i)). A fact is proved when the Court believes it exists, or considers its existence so probable that a prudent man ought, in the circumstances, to act on the supposition that it exists. Disproved is the mirror image. Not proved means neither. The test is that of a prudent man, not of mathematical certainty.

7. May presume, shall presume, conclusive proof

• May presume (section 2(1)(h)): the Court has discretion. It may treat the fact as proved unless disproved, or call for proof. Example: section 119 (old s.114), that a man in possession of stolen goods soon after theft is the thief or a receiver.
• Shall presume (section 2(1)(l)): the Court must treat the fact as proved unless and until it is disproved. The presumption is rebuttable. Example: section 118 (old s.113B), dowry death where cruelty soon before death is shown; section 79 (old s.80), genuineness of a record of evidence.
• Conclusive proof (section 2(1)(b)): on proof of one fact the Court must regard the other as proved and shall not allow evidence to disprove it. Examples: section 116 (legitimacy), section 35(2) (judgments in rem).

How this is examined

Every recent paper has a definitions question in Unit I. January 2026 asked "Explain fact, fact in issue and relevant fact" for ten marks and "May presume, shall presume and conclusive proof" as a short note. June 2025 asked for the definition of evidence with a discussion of whether the rules are the same in civil and criminal cases, and again the three presumptions as a note. The June 2025 Law of Evidence paper asked to distinguish oral and documentary, direct and circumstantial evidence. Give the statutory words, one illustration for each term, and always the new and old section numbers together.