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given fact ought to proceed upon grounds altogether independent of the relation of the fact to the object and nature of proceeding in which its existence is to be determined. The question is whether A wrote a letter. The letter may have contained the terms of a contract. It may have been a libel. It may have constituted the motive for the commission of a crime by B. It may supply proof of an alibi in favour of A. It may be an admission or a confession of crime, but whatever may be the relation of the fact to the proceeding, the Court cannot act upon it, unless it believes that A did write the letter, and that belief must obviously be produced, in each of the cases mentioned, by the same or similar means. If the Court requires the production of the original when the writing of the letter is a crime, there can be no reason why it should be satisfied with a copy when the writing of the letter is a motive for a crime. In short, the way in which a fact should be proved depends on the nature of the fact, and not on the relation of the fact to the proceeding.

"Some facts are too notorious to require any proof at all, and of these the Court will take judical notice; but if a fact does require proof, the instrument by which the Court must be convinced of it is evidence, by which, I mean, the actual words uttered, or document, or other things actually produced in Court, and not the facts which the Court considers to be proved by those words and documents. Evidence in this sense of the word must be either (1) oral or (2) documentary. A third class might be formed of things produced to Court, not being documents, such as the instruments with which a crime was committed, or the property to which damage had been done, but this division would introduce needless intricacy into the matter. The reason for distinguishing between oral and documentary evidence is that in many cases the existence of the latter excludes the employment of the former, but the condition of material things, other than documents, is usually proved by oral evidence, so that there is no occasion to distinguish between oral and material evidence.

"It may be said that in strictness all evidence is oral, as documents or other material things must be identified by oral evidence before the Court can take notice of them. It is

unnecessary to discuss the justice of this criticism, the phrase 'documentary evidence' is not ambiguous, and is convenient and in common use. The only reason for avoiding the use of the word evidence in the general sense in which most writers use it is that it leads, in practice, to confusion, as has been already pointed out.

"III. The Production of Proof.-This includes the subject of the burden of proof; the rules upon which answer the questions,-By whom is proof to be given? The subject of witnesses the rules upon which answer the questions, who is to give evidence, and under what conditions? The subject of the examination of witnesses-the rules upon which answer the questions, How are the witnesses to be examined, and how is their evidence to be tested? Lastly, the effect upon the subsequent proceedings of mistakes in the reception and rejection of evidence may be included under this head.

"The following tabular scheme of the subject may be an assistance to the reader. The figures refer to the sections of the Act, which treat of the matter referred to:

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The object of legal proceedings is the determination of rights and liabilities which depend on facts

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"What has been said above explains with sufficient clearness the principles which have been followed in framing the Act. These principles have been adopted as guides to action, after prolonged experience and varied discussion, as they have been found to be extremely valuable as tests of truth. They help to produce in the judicial mind a reasonable belief as to existence or non-existence of certain facts, on which the rights or liabilities of the parties and the decision of the case depend. They enable the Judge to select the materials out of which belief is to be formed, and point out the mode in which the materials of belief are to be presented before the mind's eye for consideration. But however valuable these rules of evidence may be, they do not help the Judge on certain branches of judicial inquiry. One of the most difficult functions of a Judge is to decide on the accuracy and truthfulness of the witnesses who are the legal media, through whom the materials of belief are presented to his mind. The Act does not affect to provide him with rules to guide him in ascertaining whether a witness was deceived or not as to what his senses told him, whether he accurately remembered or not what he saw, and whether he is telling truth in his evidence before the Court. A proper solution of such questions is of great practical importance in every judicial proceeding whatever; and here the Judge must be guided by his own good sense and judgment, and by the results of close observation of human nature and conduct.*

"For the reasons mentioned above, the author has thought it desirable to publish an edition of this most important Act of the Legislature with copious notes, showing the scope and purport of the more difficult sections, the reason of the rules embodied in them, and the interpretations which have been put on them by the Highest Courts of Judicature. Special care has been taken to make the notes full, accurate and trustworthy. The principles of legal evidence need illustrative cases to explain their meaning and use, as they are better learnt from specific illustrations and from actual practice than from abstract theories. The auther has, therefore, studiously selected the cases best calculated to serve the purpose, and has, in all instances, set forth as much of the special facts on which the decision of the

*For practical hints, vide author's' Sequel to the Indian Evidence Act.'

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case with reference to the subject of this work turned. He has spared neither time nor pains to make the work useful to the student of law, as also to Judges and legal practitioners, and he will be perfectly well pleased if the legal public find it of any help to them."

KRISHNAGHUR,

The 21st December 1896Í

TARAPADA BANERJI.

THE

LAW OF EVIDENCE IN INDIA

BEING

ACT I OF 1872.

PASSED BY THE GOVERNOR-GENERAL OF INDIA
IN COUNCIL.

(Received the assent of the Governor-General
in Council on 15th March 1872).

WHEREAS it is expedient to consolidate, define and amend the law of evidence; It

Preamble.

is hereby enacted as follows :

PART I.

RELEVANCY OF FACTS.

CHAPTER I.

PRELIMINARY.

1. This Act may be called "The Indian Evidence Act, 1872."

Short title.
Extent.

It extends to the whole of British India, and applies to all judicial proceedings in or before any Court, including Courts Commencement Martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September 1872.

of Act.

"The law of evidence is the lex fori, which governs the Courts. Whether a witness is competent or not: whether a certain matter

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