135. Order of production and examination of witnesses. 142. When they must not be asked. 144. Evidence as to matters in writing. 145. Cross-examination as to previous statements in writing. 149. Question not to be asked without reasonable grounds. 150. Procedure of Court in case of question being asked without 151. Indecent and scandalous questions. 152. Questions intended to insult or annoy. 153. Exclusion of evidence to contradict answers to questions test- ing veracity. 154. Questions by party to his own witness. 155. Impeaching credit of witness. 156. Questions tending to corroborate evidence of relevant fact 157. Former statements of witness may be proved to corroborate latter testimony as to same fact. When witness may use copy of document to refresh memory. 160. Testimony to facts stated in document mentioned in section 158. Translation or document for the purpose of deciding on its 163. Document called for and inspected must be given in evidence. 164. Document, production of which was refused on notice, cannot Of Improper Admission and Rejection of Evidence. 167. No new trial for rejection or improper reception of evidence. INTRODUCTION. History of the Law of Evidence in India before 1872.-There was no Law of Evidence in the proper sense of the word, when the English first undertook the systematic administration of this country. Niether Manu and his Brahminical commentators, nor the Mahomedan Moulavis laid down any definite rules regarding the admission and rejection of evidence. Our rulers, being conscious of their ignorance of the manners and customs of the people of this country, did not, for some time, venture to lay down any positive rules relating to this important branch of law, for the guidance of our Law Courts. The Judges were left to themselves. They administered justice according to their individual ideas of equity and moulded their practice by what they thought to be principles of substantial justice. But being mostly foreigners, they were, as a rule, bad Judges of what was expedient for us, and, possibly, not very good Judges of what was just and equitable. They thought that the infusion of English principles was highly desirable, and decided Indian cases by analogies drawn from the experience of Western civilization, and the feelings of European society. They did not take care to view our customs and juridical notions in their true light, and could never fully realise the truth of the saying that a country should be governed in conformity with its own notion and customs. They did not admit the necessity for preserving a tenderness and sympathy for native ideas and notions, some of which, to the European mind, might seem absurd. The usages of Eastern and Western Society are not parallel. What may be regarded as innocent in one community may, in another, be suggestive of guilt. Moreover, there is an inherent difficulty of applying the English Law of Evidence to foreign system of judicial administration. Therefore the attempt of our Judges to decide questions of evidence by reference to English rules oftentimes resulted in miscarriage of justice. Our rulers, however, in course of time, saw the difficulty of their position. They felt that a body of fixed rules of evidence was of extreme importance for B the proper administration of justice. In the absence of any direct legistation, the common and statute law, which prevailed in England before 1726, was introduced in the Presidency-towns by the Charter Act of 1833; but for Courts, not established by Royal Charter, no complete rules of evidence were ever laid down or introduced by authority before the passing of Act II of 1855. In England, Mr. Bentham pointed out what reforms the common and statute law needed. Lords Denman, Brougham and others introduced those reforms. The 3 and 4 Will. IV Cap. 92 removed the restrictions as to interested witnesses; the 6 and 7 Vic. Cap. 85 laid down that no witness should be excluded from giving evidence by reason of incapacity from crime or interest; the provisions of the 9 and 10 Vic. Cap. 95 declared parties to the proceeding and their wives competent witnesses in the County Courts, and the 14 and 15 Vic. Cap. 99 made such persons competent to give evidence in any Court of Justice, or before any persons having, by law or by consent of parties, authority to hear, receive and examine evidence. The Legislature of this country introduced similar reforms by the provisions of Act XIX of 1837, Act IX of 1840, Act VII of 1844, Act XV of 1852, and Act II of 1855. Of these Acts, Act II of 1855 was the most important. It contained many valuable provisions, but it was evidently designed not as a complete body of rules, but as supplementary to and corrective of the English law, and also of the customary Law of Evidence prevailing in those parts of British India, where the English law was not expressly administered. In the words of Mr. Field, "the whole of the Indian Law of Evidence, as it existed before the introduction of the Act of 1872, might have been divided into three portions, viz., one portion settled by the express enactments of the Legislature, a second portion settled by judicial decisions, and a third or unsettled portion, and this by far the largest of the three, which remained to be incorporated with either of preceding portions." Such being the state of the most important branch of Adjective Law, formal legislation was considered necessary, and in the year 1868 the Indian Law Commissioners drew a Draft Evidence Act, which was sent out to this country, and was introduced and referred to a Select Committee by Sir H. S. Maine. But the Bill was pronounced to be unsuitable to the wants of the people, and a new Bill was framed by Sir J. F. Stephen, and passed into law in the year 1872. The Indian Evidence Act of 1872.-In the years 1870 and 1871, Sir J. F. Stephen drew up what afterwards became law in 1872. "The Evidence Act is little more than an attempt to reduce the English Law of Evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.”* Sir J. F. Stephen has, with unrivalled skill, compressed, within the compass of 167 sections, the whole of Taylor's Law of Evidence consisting of some two thousand pages of solid matter. He has made a laborious attempt to adopt an exotic system of legal rules which have been brought into existence by a highly artificial process of evolution from a body of abstract principles of the widest application. It is no doubt the peculiar glory of the English Law of Evidence, that its doctrines are based on ancient experience, on the wisdom of a long succession of learned Judges, and precedents which have left their mark on the history of the country; but it was brought into existence for a community extremely dissimilar to the natives of this country. Its rules have been matured and framed by special reference to English character and custom. It may, therefore, be remarked as Sir H. S. Maine has very justly observed that "it is quite possible to hold a respectful opinion of many parts of English law, and yet to affirm strongly that its introduction by Courts of Justice into India has amounted to a grievous wrong." It is an undeniable fact that Western ideas are making their way into our country, and a disintegration of our usages and thoughts is being gradually effected; but we, as a nation, still cling with our characteristic tenacity to our old usages and customs, and our rulers, notwithstanding their streneous and persistent efforts to metamorphose them by the infusion of foreign modes of thought, have not, as yet, been wholly successful in their attempt. The introduction, therefore, of doctrines developed in the way the doctrines of the English Law of Evidence have done is, to say the least, highly inexpedient. The dicta of English law, or even the most elaborate English decisions, ought never to be allowed to rule imperatively * Vide Stephen's Introduction to the Evidence Act. |