The history of the Evidence Act 1872 is not very old. The British enacted the Evidence Act in 1872 to govern the rule of evidence. Before this enactment, there was another enactment back in 1860. But that was not suitable for the Indian subcontinent. As a result, another law of evidence had to be enacted, and that law is currently shaped in Bangladesh with some frequent changes.
The History of the Law of Evidence
In ancient times, when there was no law of evidence, there were trials by battle, where the contestants in litigation fought it out in battle in the hope that God would interfere on the side of the right. There were also trials using the hot iron and boiling water method. These trials by ordeals were believed in with superstitious ideas that innocent persons would not be burnt or scalded.
The priests issuing passports to paradise who officiated at these ceremonial tests must have practiced several tricks to save persons in whom they were interested, for otherwise, once a person was subjected to the test, the only possible conclusion would be that he was usually an old woman. The test was to tie up the suspect and throw her alive. If she did, she was not a witch (of course she died, proving to everyone that she was innocent). Such were the horrors of trials in the past. It was nothing but torture in the name of trial for justice. All these practices have been discarded by modern law of evidence.
In British India before 1835 and 1855, there were eleven enactments touching the law of evidence. In 1860, Sir Henry Summer Maine, the then-law member of the Governor-General’s Council, was asked to prepare an Indian Evidence Act; his draft was found unsuitable to Indian conditions. Subsequently, the task was entrusted to Sir James Fitzjames Stephen in 1871, when he took up the office of law member. His bill was approved and became Act I of 1872, which came into force on 1st September 1872 and contains the law of evidence in India, Bangladesh, and Pakistan today.
Before the passing of this Act, there was an absolute absence of any systematic law of evidence, particularly in the Mufassil area. The English law of evidence was not in force. The courts in Mufassil areas generally followed the rules of evidence of Muslim laws as laid down in Hidaya, which were modified by Regulations passed from time to time from 1793 to 1834. These were also modified to a certain extent by English practice and books on the subject. On the establishment of the Supreme Courts of Calcutta, Madras, and Bombay, English rules of evidence were followed systematically.
As time went on and reforms were made in English laws of evidence, the rules of evidence in British India were also modified side by side by various regulations. The first Act of the Governor-General that dealt with the Law of Evidence and that was made applicable to the whole of British India was Act X of 1835. After this enactment, various enactments were made dealing with different aspects of the law of evidence. The efforts to consolidate and codify the law of evidence in India continued, and this culminated in the Act of 1872.
The Evidence Act and the English Law of Evidence
With few exceptions, the Evidence Act 1872 was intended to consolidate the English Law of Evidence. The Act is intended to be a complete code and does not permit the importation of any principle of English Common Law relating to evidence. Its provisions are not, however, exhaustive of the rules of evidence, and the court can invoke the aid of the principles of English law to supplement and explain the rules of evidence given in the Act.
However, it is to be borne in mind that once a statute is passed that purports to contain the whole law, it is imperative. Thus evidence not admissible under the Evidence Act must be discarded for all purposes and in all circumstances (A1942, 2 Cal 299).
Law of Evidence in Civil and Criminal Proceedings
Certain sections of the Act apply exclusively to civil cases and some to criminal cases. Sections 24 to 30 deal with confessions, Section 120 deals with the competency of a spouse as a witness for the other spouse, and Section 155 deals with the character of the prosecutrix in case of rape or attempt to rape are sections exclusively applicable to criminal cases. Sections 115-117 dealing with estoppels apply exclusively to civil cases.
In appreciating the weight of evidence also, there is a fundamental difference between civil and criminal cases. A mere preponderance of the evidence (balance of probabilities) is sufficient in civil cases, whereas, in a criminal case, before the accused is convicted, the evidence adduced by the prosecution should not only make the guilt of the accused by the prosecution should not alternative hypothesis in favor of the accused must be extremely improbable, or as it is commonly expressed, “the prosecution must prove its case beyond all reasonable doubt.”
Every man is to be regarded as legally innocent until the contrary is proved. Criminality is never presumed. The evidence must be such as to exclude, to a moral certainty, every reasonable doubt of the guilt of the accused. If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted. This is generally known as the “benefit of the doubt.”
