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The Indian Evidence Act Is Not A Complete Code In Itself: An Analysis


In general, corpus juris i.e. the body of law is classified into two categories namely, substantive laws and procedural laws, despite the common division of civil and criminal. In which, the former deals with the rights, powers, obligations, and rights of a person, whereas the latter elucidates the court procedures to execute the substantive law. Irrespective of judicial jurisdictions, these two legal components have an inevitable significance in deciding a dispute. Furthermore, the same has an intertwined eminence.

The substantive law comprises the rules or laws passed by the legislature. The same has meant to govern the rights and responsibilities of citizens, with provided punishments for infractions. It has its elements in both the facets of civil and criminal laws. The Indian Contracts Act of 1872, The Indian Penal Code of 1860, The Hindu Marriage Act of 1955, and so on is the instance of substantive law.

As mentioned, the procedural or adjective law facilitates the substantive law by establishing and bestowing the parties with their rights or imposing sanctions qua ramification of their wrongful deeds. Moreover, the substantive laws figure out the sanctions. Howbeit, the procedural law processes the case mechanism and leads the proceedings from suspecting to conviction. For instance, The Civil Procedure Code of 1908, The Criminal Procedure Code of 1872, etc. are under the ambit of adjective law.

Even though the adjective law is ancillary, since its object is to Endeavour the efficacy of substantive law, one without another will be futile. Thus the procedural law is the cornerstone on which the judicial system has been framed. The law of evidence is one among those adjective and substantive laws as well qua it has both the aspects; withal in India, it was codified in 1872 as the Indian Evidence Act.

Brief about the Indian evidence Act:

The evidence plays a pivotal role in deciding the court’s judgment as it ascertains a contention either by proving or disproving the disputed fact. The set of rules which determines the fact is known to be the law of evidence. Lack of such pieces of evidence will retards the proceeding or hinders the law of the court in rendering justice. Back then, erstwhile colonial India did not follow any particular legislation appertain to evidence law.

Later, following the desperate need for codified evidence law, the Indian Evidence Act was framed in reliance on Sir James Stephen’s groundwork. As per its preamble, the purpose of the Act is to consolidate, define and amend the Law of Evidence. Comprehensibly, the Indian Evidence Act is the collection of principles and rules related to evidence law. Further, it has derived from the Rules of English Law of Evidence.

Meaning and definition of evidence:

The term evidence was inherited from the Latin word ‘Evidera’, which denotes lucidity, clarity in the display, and to prove the facts in question. In layman’s connotation, the evidence is a piece of information that verifies the true nature of the contention. In Sir William Blackstone’s words; the evidence mostly signifies anything which demonstrates, increases the transparency, and ascertains the truth of the facts or points in issue either on one side or the other side.

Besides, Section 3 of the Act defines evidence as; the collection of statements brought in before the court, which proves or disproves the advanced arguments in relation to facts in dispute. The term evidence includes both statements of the witness or witnesses in court i.e. oral evidence, and documentary evidence. But it is a prerequisite to satisfy the principle of admissibility.

The Apex court has expressed its observation on evidence as, the word “evidence” has used in common parlance in three different senses:

(a) as equivalent to relevant,

(b) as equivalent to proof, and

(c) as equivalent to the material, on the basis of which Courts come to a conclusion about the existence or non-existence of disputed facts.”[1]

General description:

Facts in issue: the existence of the information or facts, which is in the question of law that either to be asserted or denied to resolve the case.

Relevant facts: it is the information related or connected to the facts in the issue. The concept of the relevancy of the fact has dealt with under Section 5 to 55 of the Act.

Admissibility of evidence:  information or details which are permissible to admit as shreds of evidence in the court.

Basic types of evidence:

The term evidence has been used often throughout the Act in various expressions viz. oral evidence, documentary evidence, substantive evidence, hearsay evidence, best evidence, real evidence, and so on. The summary of some notable evidence types are as follows,

1. Oral evidence:

The evidence was given by the witness with the conscience of what he has seen or heard[2].

2. Documentary evidence:

As mentioned earlier, all documents (including e-records) produced for court inspection, which is permissible and capable of determining the fact in issue are known as documentary evidence [3]

3. Primary evidence:

The evidence in the first place and capable to prove or disprove the disputed fact [4]. For example, the original land deed is the primary evidence to prove the ownership of the land.

4. Secondary evidence:

In the absence of primary evidence, secondary evidence can be perused[5]. For instance, by the lack of an original land deed document, its replica (copies) or photograph can be used.

5. Direct evidence and circumstantial evidence:

Direct evidence is strong evidence, which defines or establishes the facts by itself, and the court is not required to intervene. Regarding the circumstantial evidence, it is not a kind of secondary evidence but the presumptive evidence, which proves the disputed fact indirectly. Thus, direct evidence admits the facts in the issue, whereas circumstantial or indirect evidence includes all the relevant facts.

6. Real evidence:

The material pieces of evidence other than the regular kinds of evidence defined under Section 3 of the act include weapons, photographs of the crime scene, behavioral aspects, CCTV footages, etc.

Circumstances under, which a code of law would be avowed as incomplete?

It is a prerequisite to check out the meaning of code before analyzing its incompleteness. The term Code denotes the précised collection of relevant rules and regulations on a particular facet of law. In common parlance, it is the statement of law in a specified area. Code not only comprises the existing statutes but pertinent unwritten laws as well.

The assessment of the legal completeness of a law or an enactment will be based on its lucid nature and its mastery in dealing the future contingencies. Per contra, incompleteness in law is the ramification of its inconsistency to adapt to the dynamic status quo and inability to provide clear guidance. Withal, it also depends on the vagueness and obscurity of the same. Here comes the need for statutory interpretations, where the court steps to reduce the incompleteness. However, the court only responds and resolves the arisen issue, which leads to the inadequacy of sources to address future novel problems.

Lacunae in Indian Evidence Act:

Incomplete definition of evidence,

Section 3 of the Act states the term evidence 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[6];
  2. all document including electronic records produced for the inspection of the Court, such statements are called documentary evidence[7];

Hence, the oral evidence is the statement of the witness or witnesses. And the documentary evidence comprises all documents (including electronic recordings) produced for the inquiry. Thus, as per this definition, the followings will not be considered as a piece of evidence,

  1. Statement of the parties,
  2. Accused confession,
  3. Accused person’s confession about his partner or co-accused(Section 30),
  4. Real evidence
  5. Court presumptions out of circumstantial evidence

Even though Section 3 has not defined and includes the aforementioned concepts within its ambit, the court could examine these matters to determine the fact in issue.

Loopholes in Section 112 of Indian Evidence Act,

The legitimacy of wedlock baby is dealt with under Section 112 of the Act as follows,

“the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten[8].

Thus, this section provides that a child born within 280 after the dissolution of a valid marriage with having the mother unmarried will consider as a legitimate child in the eye of law. This fact in itself is conclusive proof of legitimacy. But, the same depends on the access between the parties of the marriage (parents). So as to challenge such legitimacy non-access should be proved.

The term non-access is a matter in dispute, and the same has to be proven by the husband who is disputing the child’s legitimacy. The sea change development in technology has contributed to the admissibility of scientific shreds of evidence like DNA tests to ascertain paternal legitimacy. But the incompleteness of this Section is as follows,

  1. Section 112 of IEA has not explicitly disclosed DNA test as an exception to the conclusive proof
  2. It is upon the court’s discretion to direct DNA tests, thus it leaves numerous res Integra questions viz. when the court would permit to conduct the test, whether the party could apply for the re-test upon an unsatisfactory prior result.
  3. Even when the courts opt for DNA tests to ascertain paternal legitimacy, there is obscurity, unbalanced and unregulated practice in prevalence.
  4. The status of this Section in relation to surrogacy law and adultery is unclear.

The accuracy and certainty of the scientific pieces of evidence are irrefutable, and further, it will obviate the time-consuming process. But still, there are ambiguities in its application and performance.

Position of the witness under Section 27 of the Act,

Primarily, the scope of its enactment is to act as an exception of its preceding Sections 25 and 26. The said sections prohibit the admissibility of confessions made by a custodian to the police officer in the absence of the Magistrate. Per contra, Section 27 prescribes that such a confessional statement to a police officer is admissible unless and until it assists in discovering the relevant new facts.

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved[9].

Comprehensibly, said Section has not mentioned the position of witness and has not their presence as well.  In the case of Praveen Kumar v State of Karnataka[10], the court relaxed the presence of witnesses during such confession. Either way, this Section is lambasted for inducing the practice of coercion, threat, or compulsion, and as it is contrary to other provisions of the Act, for example, Section 24, 25, and 28.


As mentioned, code is the complete statement of the law on a specific legal facet. As follows in India, umbrella legislation that covers the various aspects of evidence law is the Indian evidence Act, 1872. Such a procedural law comprises the XI chapter dealt with the catchall concept of evidence. However, the incompleteness is the aftermath of the existing vagueness, lacuna, and ambiguity within the enacted legislation itself. As far as the Indian evidence act is concerned, it has ambiguities and obscurity, but none of the issue under its realm has been left out or overlooked. It was incomplete until Section 65A and 65B were included in 2000.

The advent of information technology and its abrupt progress has made the majority of erstwhile legislations futile by questioning its completeness and competency to survive. However, it is a trite concept that law is not static but dynamic. Likewise, the vacuum regarding the admissibility of technical pieces of evidence has been bridged with amendments. Recently, the apex court has validated said section’s completeness in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal[11]Besides, the aforesaid highlighted lacunae are some of the minor weaknesses of the said Act. However, the same will not amount to considered as incomplete code. But, it indeed desires an amendment if needed.

[1] Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr. [AIR 2011 SC 760].

[2] Indian Evidence Act of 1872, S 60.

[3] Indian Evidence Act of 1872, S 3.

[4] Indian Evidence Act of 1872, S 62.

[5] Indian Evidence Act of 1872, S 63.

[6] Indian Evidence Act, 1872, S 3,

[7] Id. At 6.

[8] Indian Evidence Act, 1872, S 112,

[9] Indian Evidence Act, 1972, S 27,

[10] JT 2003 Suppl 2 SC 431, 2003 (8) SCALE 642, (2003) 12 SCC 199.

[11] [2020] SCC Online SC 571.

This Article is Authored by Snegapriya V S, 2nd Year (B.A. LL.B) Student at Vellore Institute of Technology (VIT Law School).

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