Evolution and Historical Background of Indian Evidence Act



The word “law” has several different meanings. It refers, in the broadest sense, to any requirement that people must follow a rule, law, norm, doctrine, or standard. There are two major divisions in the corpus juris (body of laws):

  • Substantive laws
  • Procedural Law

The law of evidence is classified as “adjective law,” which explains the manner and method by which substantive laws are applied, rather than as either substantive or procedural law.

The opposing parties in a lawsuit present evidence to refute each other’s claims. The law of evidence in legal systems controls this area. This piece of law has major implications. Both criminal and civil law are affected by it. Every criminal or civil trial must adhere to the rules of evidence. The purpose of evidence law is to use science to recreate the historical events that the parties to a dispute disagree about. The pursuit of truth and serving as a useful instrument in the gathering of facts are the two main objectives of evidence law. Relevance and admissibility are two important ideas that the law of evidence has developed. Relevance and admissibility are two terms that are commonly used in the legal profession and are usually used synonymously in legal proceedings. The law of evidence is fundamentally based on both of these ideas.


Evidence is a word derived from the Latin word ‘evidere’ which means to discover clearly, to ascertain or to prove. In simpler terms evidence is an eye and ear of a court as it plays important and significant role in helping one reach a certain and accurate conclusion.


According to Blackstone, evidence “signifies that which demonstrate, makes clear or ascertain the truth of the facts or points in issue either in one side or the other

According to Taylor, evidence means which tend to prove or disprove any matter, fact, the truth of which is submitted to judicial investigation.

According to Stephen, evidence sometime means words and things exhibited by witness before a court of justice.

According to Phipson, evidence means testimony, whether oral or documentary or real, which may be legally received in order to prove or documentary some facts in disputes.

Therefore, everything that serves to confirm or refute the truth or falsity of a claimed fact is considered to be evidence. A fact must be proven to exist for it to be accepted as true; on the other hand, a truth that is denied must be refuted or shown false.


Section 3 of the Indian Evidence Act defines “evidence in these words;

  1. Oral evidence refers to all declarations that witnesses may make before the court that are related to the facts being investigated.
  2. Documentary evidence includes any written materials, including digital records, that are produced for the court’s review.

It is argued that the act’s definition of proof is too limited since it excludes the following 

  1. Other tangible items besides paperwork, such as firearms or items of stolen property.
  2. Utterances made by parties in court or out of it.
  3. a finding from a local investigation or inspection.
  4. Identity verification procedures.

In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri

In its findings on evidence, the Supreme Court noted that the term “evidence” has three different meanings in everyday speech: 

  1. Comparable to relevant, 
  2.  As equivalent to proof, and 
  3.  As equivalent to the material.


Three distinct eras must be studied in order to trace the development of the law of evidence in our nation:

  1. The Ancient Hindu Period 
  2. The Ancient Muslim Period
  3. The Modern Period

Ancient Hindu Period

There is ample material on the law of evidence in Hindu Dharmashastras. The object of the trial was to find out truth from the false in the same way as a surgeon by his tools takes out an iron arrow from the body. Dharmashastras recognized four types of evidence 

  1. Lekhya (Document)- Lekhya was of three types-
    • Rajya Sakshayak- It was a document written in the court by the clerk of the king. It was like a registered document.
    • Sakhshyak- It was a document written by the private person and attested by the witness.
    • Asakhshyak- It was a document written by the parties themselves by their own hands.
  2. Sakshi (oral evidence)- The rules of Sakshi or oral evidence were quite different in civil and criminal matters. The capacity of witness was regulated by the rules made like other ancient laws. The strict rules of capacity of witness were relaxed in penal matters probably due to reasons that the crimes could be committed in forests or lonely places where only the persons present could see the incidents whatever their eligibilities.
  3. Bhukti or Bhog (Use)- The main economy in ancient India, was agriculture. The dispute relating to Bhukti i.e., the possession of the land was in plenty. The law relating to possession was well settled through this medium. 
  4. Divya (Divine tests or Ordeals)- Where the evidence given by a man does not lead to decision, Divya i.e., divine test (ordeal) help to reach the decision. Such test was prevalent in ancient India where the appeal was to super natural power to prove guilt or innocence. 

Ancient Muslim Period

In the Muslim period, the rules of evidence were well developed. The evidence was of two types- Oral and Documentary. The oral evidence was further divisible into direct and hearsay evidence. The oral evidence was preferred to documentary evidence in the Muslim era.


  1. Introduction of English law- The English common law and statutory law was prevalent prior to 1726 was introduced in India by the Charter of 1726 in Presidency town of Calcutta, Madras and Bombay. The Courts established by the Royal Charter, in these Presidency towns administered English law. In the Mofussil area i.e., the area following outside the Presidency Towns, there was no definite law of evidence. The rules of evidence were governed by the customs and usages. The courts in the Mofussil area for guidance sometimes referred to directions and Regulations made area for guidance sometimes referred to directions and Regulations made between 1793 to 1834. The law of evidence was not satisfactory here
  2. Enactment of the Indian Evidence Act, 1872.-The first Act relating to the Evidence was of 1835 enacted by the Governor-General. From 1835 through 1855, a number of Acts were passed to implement Bentham’s reform recommendations. Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were also passed, however while dispensing justice, Indian courts utilised English law of evidence, even though only a portion of English law was applicable in Mofussil region and Presidency Towns. Therefore, the position was rather unsatisfactory, and the Judges included remarks in their rulings about it. 

Maine Commission. – The Law of Evidence needed to be codified. In 1868, a commission was established to create the Law of Evidence, with Sir Henry Maine serving as its chairman. Maine’s proposed bill was rejected because it wasn’t appropriate given the circumstances at the time. 

Stephen Commission. – For the purpose of creating the Law of Evidence, the Stephen Commission was established in 1871. On March 31, 1871, Stephen sent the Council a draught of the Bill, which was then circulated to the High Courts, Advocates, and municipal governments for review. After hearing their opinions, the Bill was submitted to the Select Committee, which made the necessary changes, and presented it to the Council, who passed it into law as The Indian Evidence Act, 1872. (Act No. 1 of 1872). After the division, all of the country—India and Pakistan—was covered by the legislation, with the exception of Jammu and Kashmir. It was enacted on September 1, 1872, and all of India was covered by its 11 Chapters and 167 parts. The Act has undergone a number of modifications since it was enacted. The Criminal Law (Amendment) Act of 2013 made the most recent modification (Act No. 13 of 2013).

The Indian Evidence Act, 1871 is based on English evidence law, although it includes several provisions tailored to Indian circumstances and need. Though defects have been pointed out in the Act from time to time yet the drafting of the Act is the model of the best craftsmanship skill. It may be relevant to mention that most of the States had already adopted this Act much prior to the Constitution of India came into force. It is a matter of importance that the Law of Evidence which came to be enforced in 1872 still continues to be applicable with least changes being made during the long period of more than 140 years. 


The development of India’s law of evidence took many decades and hundreds of years. Although it had existed from the dawn of the Early Vedic civilizations and even during the Muslim reign that dominated the Middle Ages of Indian history, Sir James Flitzjames developed it as a comprehensive code of Evidence Law during the British era in the year 1872. The Indian Evidence Act is mostly a reduction of the English law of evidence, which was required for India’s unique conditions. Sir James claims that there are two components to the law of evidence:

(1) Over the span of 100–150 years, a huge number of cases have been determined.

(2) Before the Indian Evidence Act of 1872 was enacted, the parliament had approved several laws and regulations during the previous thirty to forty years.

The evidence law under Hindu law was far more complex, whereas the evidence law under Muslim rule or law was much more specific and freer of superstitions and discriminatory injunctions. The evidence law during the British era was made up of progressive rules that were often even more advanced than the English laws that served as its basis.

Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year/ Student

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