Reviewing The Indian Evidence Act, 1872

Pramod Kapur

Outline The Indian Evidence Act, 1872 framed by Sir James Fitzjames Stephen is one of the most intrinsic and important Acts administered by the civil and criminal laws of the country. Many judges and legal scholars applaud that the ordinary or common sense reasoning plays an imperative role to determine the question of relevance or irrelevance of evidence that explicitly supports judgments, although the relevance of evidence is ordinarily a necessary condition, but not a sufficient condition for the admissibility of evidence. The parties to the dispute whether in civil or criminal proceedings have a number of trepidations to persuade the court in their favour. The study of evidence in recent decades has become broadly interdisciplinary and incorporating insights from economics and probability theory which has a dual facet vis-a-vis possibility of postulations and random processes, since, the law of evidence governs the use of testimony and some judgements must rely on unarticulated premonitions. After independence, the Constitution of India with its Fundamental Rights and Directive Principles of State Policy gave a new course to the advent of law reform geared to the needs of a democratic legal order in a plural society. Though the Constitution stipulated the continuation of pre-Constitution Laws (Article 372), till they are amended or repealed, there had been unswerving demands in the Parliament for forming a Central Law Commission to recommend revision and apprising of the congenital laws to serve the changing needs of our country. The Law Commission of India, an executive body, primarily focuses on legal reforms. Law Commission's 185th Report In the year 2000, the Sixteenth Law Commission was established. During the period between 2000 and 2003, the Commission worked under the Chairmanship of Justices B. P. Jeevan Reddy and M. Jagannadha Rao and submitted its 185th Report. Since, the enactment of the Indian Evidence Act in 1872, there has been a sea-change in human rights jurisprudence all over the world. The Fifth Law Commission had submitted its 69th Report on May 9, 1977 with comprehensive revisions to the Evidence Act. The need for making proposed amendments conforming to the new canons in legal arena was felt, keeping in mind, the fundamental rights guaranteed under the Constitution, making the government machinery transparent, and protecting the women from being victimized. The Sixteenth Law Commission consequently, took up the review of the Act, both in civil and criminal trials in the light of the recommendations made in the 69th Report. Attention was also paid to judgments of the Supreme Court and the High Courts and views of eminent legal luminaries from U.S.A. and U.K. between the period of 1977 and

2003. The Sixteenth Law Commission had not accepted some of the amendments proposed in the said 69th Report, but accepted some others with or without modifications. Let us take a comprehensive look at the changes proposed by the Commission. Section 3 The Act defines the definition of "Court" under section 3 as "including all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence." The Commission closely reviewed the definition in reference to persons "legally authorized to take evidence" and whether the quasi-judicial tribunal or domestic tribunal receiving the evidence be termed as a Court. The apex decision in Union of India vs. T. R. Verma (AIR 1957 SC 882) was indeed remarkable wherein, it was held that the Evidence Act does not apply to inquiries conducted by tribunals even though they may be quasi-judicial in character. The 69th Report after reviewing the authorities suggested for substituting the definition of "Court" as "Court means, a civil, criminal or revenue court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by or under that Act to be a court for the purposes of this Act, but does not include an arbitrator." In India, there are a number of revenue courts which are functioning under the governance of the local applicable laws. Customary perspective being a significant aspect in some laws to confer all the powers of a Civil Court and in some limited powers like summoning witnesses etc. Now, the question arose as to whether all the revenue courts should be governed by the provisions of the Evidence Act as recommended in the 69th Report. Such pessimism and creation of glitches raised presumptions of inclusion of even those revenue courts which had limited powers or have a summary procedure to follow. The Sixteenth Law Commission felt that including all revenue courts within the ambit of the definition of "Court" for the purpose of the Evidence Act was not necessary and differed in view from the 69th Report while recommending that the existing definition required no amendments. Section 65(a) The proposed amendment by the Commission, in respect of Section 65(a) for non-production by "any person legally bound to produce it" was yet another step to resolve the controversy as to whether it was intended to cover a situation where the original document is in the possession of a person "not bound to produce it", in which event, the party relying on it may be entitled to produce secondary evidence. The proposition under the English law was established in the famous case-law Mills vs. Oddy, (1834) 6 C&P 728 in which the proviso had been referred to a person "not compellable by law to produce", due to certain privileges, vis-a-vis being against him or having a lien on the title deed or the document may incriminate him. The Commission finally recommended the amendment to section 65(a) as follows: "(a) when the original is shown or appears to be in the possession or power (i) of the person against whom the document is sought to be proved; or of any person out of reach of, or not subject to, the process of the Court and such person does not produce the original; or

(ii) of any person legally bound to produce it, and such person, after receiving the notice in section 66, does not produce it; or (aa) when the original is shown or appears to be in the possession of any person not legally bound to produce it, and such person, after receiving notice from the Court at the instance of any party to produce the original, does not produce it." Section 112 The conclusive proof of legitimacy of a child born during the continuance of a valid marriage is significantly analysed under section 112 of the Evidence Act and is based on the maxim pater est quem numtioe demonstrant meaning thereby "the father is he, whom the nuptials indicate". The famous case-law in this respect was that of Smt. Kamti Devi & Anr. vs. Poshi Ram (AIR 2001 SC 2226) where the two-judge Bench comprising Justices K. T. Thomas and R. P. Sethi categorically pointed to the two important issues to be decided in the instant case vis-a-vis:
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What is the standard of proof required to displace the conclusive presumption in favour of paternity of a child born during the subsistence of a valid marriage? Is it necessary that non-access should be proved beyond reasonable doubt, or would it be sufficient to prove it by a preponderance of probabilities?

The apex court observed that section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. As a result, a genuine DNA test was said to be scientifically accurate. But, even that was not enough to escape from the conclusiveness of section 112 of the Act, for e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. In the instant case, the plaintiff had examined all the evidence which he possibly could do in the circumstances, based upon the fact that he was not the father of the child, as he had no access to the appellant during the period when the child would have been begotten. The presumptions as stated under Hindu and Mohammedan Law are analogous, regarding legitimacy. The Commission proposed that in the case of blood tests, there can be evidence by way of DNA tests to prove that a person is not the father and added three more exceptions under section 112 of the Indian Evidence Act - (a) medical tests to prove impotency (b) blood tests (c) DNA test. The proposed amendment was thus, formulated as follows: "Birth during marriage conclusive proof of legitimacy except in certain cases112. The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or (ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless-

a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or subclause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child. Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him. Explanation I: For the purpose of sub clause (iii) of clause (b), the words 'DNA genetic printing tests' shall mean the tests conducted by way of samples relatable to the husband and child and the words "DNA" mean 'Deoxyribo-Nucleic Acid'. Explanation II: For the purposes of this section, the words 'valid marriage' shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate." Section 10 The Sixteenth Law Commission closely analysed section 10 of the Evidence Act under the purview of the 69th Report and felt the need to amend the section by using the words "in furtherance of" and accepted the view of the Privy Council and the Supreme Court in Mirza Akbar vs. King Emperor AIR 1940 PC 176 at p 180 & Sardul Singh Caveeshar vs. State of Bombay (AIR 1957 SC 747) respectively while rejecting the view in Saju vs. State of Kerala, 2001(1) SCC 378. Subsequently, the Commission recommended the revision to section 10 as follows"Things said or done by conspirator in reference to common design 10. Where-

(a) the existence of a conspiracy to commit an offence or an actionable wrong, or the fact that any person was a party to such a conspiracy, is a fact in issue or a relevant fact; and (b) the question is whether two or more persons have entered into such conspiracy, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". Section 13 The proposed amendment of section 13 by the Commission had been prodigious while confining itself to the judgments of the Privy Council and Supreme Court. The Commission necessitated the relevance of "findings in earlier judgments", if the right to dispute in a latter case was closely connected with the findings in the earlier case. The recommended Explanation added to the section was as given below: "Explanation I: A previous legal proceeding, whether it was or was not between the same parties or their privies, may be relevant as a transaction or instance, within the meaning of the section; and when a legal proceeding so becomes relevant under this section, a judgment or order delivered in that proceeding is admissible as evidence of such legal proceeding; findings of fact but, not the reasons, therefore, contained in such a judgment or order are relevant; but nothing in this Explanation shall affect the relevance of a judgment or order under any other section." Furthermore, to make the legal proposition clear under Section 13 proposed to add a second Explanation as followsExplanation II: Recitals in documents which are or not between the same parties or their privies, including recitals regarding boundaries of immovable property are relevant in a legal proceeding." Section 24 The reference made by section 24 under the Evidence Act was "confession caused by inducement, threat or promise, when irrelevant in criminal proceedings." The Commission recommended for substituting the words 'inducement, threat or promise' with the words 'inducement, promise, threat, coercion, violence or torture'. The change was based upon the Commission's finding and proposed amendment to section 27 by analysing the laws of various countries like U.S.A., U.K. and Canada which was as mentioned below"Discovery of facts at the instance of the accused 27. Notwithstanding anything to the contrary contained in sections 24 to 26, when any relevant fact is deposed to as discovered in consequence of information received from a person accused

of any offence, whether or not such person is in the custody of a police officer, the fact so discovered may be proved, but not the information, whether it amounts to a confession or not: Provided that facts so discovered by using any threat, coercion, violence or torture shall not be provable." Role of Police Since time immemorial, the role of police had remained under the purview of controversies. The Law Commission's First Report held that the evidence of the Parliamentary Committee on Indian Affairs showed gross abuse of powers by the police officers in India leading to tyranny and extortions. In the last three decades, the law reports of the Supreme Court and High Courts also showed that the police conduct have deteriorated rather than being refined. Today's scenario is no exception, as there has been a view particularly by the police departments that confessions made to senior police officers should be made admissible in all cases without distinction. In UK and countries other than Pakistan, such confessions are no longer inadmissible. The Commission closely scrutinized the 69th Report to introduce section 26A. But, based upon the findings in various case-laws and law reports the Commission favoured the judgment in Maneka Gandhi's case in terms that the procedure must be fair, just and equitable and that a mere prescription of a procedure whether fair or unfair is no longer an excuse. Reference was also made to the English law where in earlier times torture was seen as a normal practice to get information regarding the crime, accomplices and to extract confessions. But, with the changing times and the development of human rights jurisprudence, the English law now provides various safeguards to the person interrogated under the Police and Criminal Evidence Act, 1984. The Supreme Court in D.K. Basu vs. State of West Bengal 1997(1) SCC 416 emphasized that the remedy lies in imparting proper training to the police for adopting more sophisticated methods of investigation and affording them with the necessary infrastructure or tools rather than making confessions to police admissible. Accordingly, the Sixteenth Law Commission recommended that the Explanation to the section be omitted and the section be read as follows"Confession by accused while in custody of Police not to be proved against him 26. No confession made by any person whilst he is in the custody of a police officer, shall be proved as against such person, unless it is recorded by a Magistrate in accordance with Chapter XII of the Code of Criminal Procedure, 1973." Conclusion The Central Government re-entrusted the task of reviewing the Indian Evidence Act, 1872 to the Law Commission which has displayed both spirit and ability in successfully executing the task. The approach and the methodology adopted by the Sixteenth Law Commission while submitting its 185th Report for review of the Indian Evidence Act, 1872 is noteworthy and based upon the study of international legal reforms and their present day standing. The Commission examined in detail and also accepted certain recommendations of the 69th Report. In doing so, it suggested a

number of amendments to give a more materialistic effect to and invoked the need for improvisation of the obsolete provisions in the Act.

Justice R.L. Gupta Former Member, Law Commission of India In the Law Commission's 185th report, various critical observations have been made. In my view, every observation of the Commission has to be looked into carefully and should be acted upon. The observation of the Commission in its 69th report wherein it recommended confessions made to the senior police officer to be admissible subject to safeguards is one such noteworthy observation. Although, the 185th report has considered this provision to be unconstitutional. In my opinion, if, the confessions are made with certain safeguards and also before a senior police officer, it can be always made admissible in the court. If such a confession is being made and is in collaboration with other circumstantial evidence, the court can look into the same. In such circumstances, admitting such admissions in the court would ease the judicial procedure. Having said that, there are other circumstances as well which should be looked into by the court in this regard, especially those which help in proving whether the confession so made is true or not. In regard to the Law Commission's recommendation pertaining to the definition of "document" so as to include "electronic records" after incorporation of sections 65A and 65B, I hold the opinion that in the modern day society, electronic records are the pre-requisites! I would like to say that, the court should definitely look into these welcoming changes in the society. The Indian judicial system should embrace the positive changes sweeping our society and proactively admit "electronic records" as a part of the term "document". Such records whether in the form of recordings or visuals would help the judiciary in determining the intention of the parties at that particular point of time. But, of course, there should always be relevant circumstances for consideration by the court. Prima facie it should be admitted by the courts and should definitely be considered as a piece of evidence.

Justice P. K. Bahri Former Judge, Delhi High Court (Q) The Law Commission recommended amending the definition of document to include electronic records owing to the recent developments in the field of technology and law. What are your views on this? In this regard, I would like to say that there are certain provisions which are to be considered and dealt with while keeping in mind the advancement in technology in today's times. If the court would ever have any kind of apprehension of any fabrication, the court can always permit the parties to lead evidence and the parties in such circumstances can always prove that the document is fabricated. In my opinion, in an advance society like ours, electronic records should definitely be taken as genuine documents and, should be considered as a prima facie assumption

by the court. In the developed and developing countries, the electronic media is playing a vital role and that fact must be accepted. In my opinion, the amendment in the definition was long awaited and should have been executed long back. In the present scenario, arbitration tribunals are admitting electronic records like e-mails, faxes etc. Therefore, I strongly believe that, the courts should also start admitting and respecting "electronic records" as such to expedite the judicial procedure. (Q) The Commission observed that there was no need to provide a specific mention to include "DNA evidence" under the Act specifically after the ruling of the Supreme Court in Kamti Devi & Anr. vs. Poshi Ram. However, the Commission did not preclude the possibility of leading DNA evidence by the parties and it was upon the court to draw the inference against the refusing party. Do you agree? The amendment in this particular regard is definitely awaited. The legislative has to intervene in this regard to say that DNA should be taken as evidence. At any point of time, there is no need for any consent by the party in regard to this test. Sometimes, certain allegations are to be proved and DNA test is the best way to prove the same. As far as I think, DNA test should be included in the Evidence Act as a vital amendment and the documents pertaining to such reports should be considered as vital documents in the courts as the proof of legitimacy of a child holds a significant perspective under section 112 of the Evidence Act. In the course of an investigation, DNA test can be the best way to prove the identity of a person and an important requirement in the Act. (Q) The Commission made a serious note to resolve the controversy under section 10 of the Act as to admission of evidence in case of conspiracy. What are your comments? It should be clearly understood that for any investigating officer it is very difficult to prove conspiracy and as such in very few cases the charge for conspiracy can be made out. In this regard, this particular provision, if, amended would facilitate the work of the investigating officer and would definitely help in proving the charge against the conspirator. In many advanced countries, these provisions already exist. (Q) The Law Commission has proposed certain changes to section 23 in respect of admissions in civil cases. What are your views in the light of the development under English Law? This is a much awaited and a useful provision recommended by the Law Commission and should definitely be decided upon. I would like to add that, an elaborate provision in this context will help the courts in arriving at decisions with a lot more speed. (Q) Confessions made to a senior police officer has been suggested by the Commission as unconstitutional and opposed to Articles 14 and 21 of the Constitution of India? What in your opinion would be the impact of section 26A, as proposed in the 69th Report? In my view, the Commission is not right in making such an observation. If a particular confession is made in front of a very high authority in the police and definitely with certain

safeguards, I see no reason why it should not be accepted. No doubt, if a provision in the Act says that, the confession in front of police officer is not admissible, such a law can always be amended. A confession of an accused can always bring about quick trial. In most of the countries, it is a regular practice. As of now, in the Indian judicial system, the accused is kept in detention for long, but he is not "touched" because of the weakness in the legal provision. Further, currently, after the prosecution evidence is over, only then the accused is asked his point of view. Instead, if the statement of the accused is taken at the initial stages itself, i.e., when the charge is framed, it will expedite the judicial procedure.

Justice R. S. Sodhi Former Judge, Delhi High Court (Q) What are your views on the recommendation made by the Law Commission for amending the definition of "document" to include electronic records within its purview? In my view, the amendment was required long back. In the present times, with the advancement in technology, when it is vastly accepted and used in all the fields, the court should also accept these amendments. When the Indian Evidence Act was framed, the legislators did not foresee such a huge advancement in technology. In the wake of advanced technological developments in all the fields, there is an urgent need to amend the Evidence Act in order to bring it in tune with today's society. These changes are always welcomed and awaited. (Q) Is there a need to provide a specific mention to include "DNA Report" under the Act? I would like to say that, as far as "DNA report" is concerned, it is a huge advancement in technology and medical sciences. This report is used to prove facts in the court. It facilitates the court in passing decision to a great extent. Once a DNA report is established, it is a foolproof method in determining the identity of a person. This amendment in the Evidence Act is definitely required. I personally see no reason as to why DNA reports should not be included in the Evidence Act. It is a vital document and should be used as one of the important documents for the detection of a persons identity. (Q) Are the confessions made to a senior police officer unconstitutional? What would be the impact of section 26A, as proposed in the Law Commission's 69th Report? I absolutely agree with the Commission on this aspect. In my opinion there is no question as to admitting the confessions made to a senior police officer in the court. The statements made to a police officer, be at a senior level or at a junior level, can in no circumstances be made admissible in the court. In India, considering the manner in which the investigations are conducted, there seems to be no credibility in such confessions. We have seen misuse of this provision in countless matters, particularly in matters under TADA. Therefore, I firmly oppose any recommendation of the Law Commission to admit confessions (made in front of police official of any designation) in a court of law