History of Evidence Act, 1872 (Act No. 1 of 1872)

The term “law” is used in different senses. In the plain sense, it means any rule,

regulation or canon or a norm to which the human actions are required to conform. The

entire corpus juris (body of laws) is broadly classified into two categories:

1. Substantive Laws

2. Adjective Laws

The law of evidence comes under the purview of adjective law, not substantive law. So,

we can say that law of evidence comes under adjective laws, because law of evidence

provides that how to reach before the court, how to proceed court and how to establish

our claims before the court. It means law of evidence deals with rights as well as

procedures.

The Evidence Act, originally passed by the British parliament in 1872, contains a set of

rules and allied issues governing admissibility of any evidence in the courts of law. The

enactment and adoption of the Evidence Act was a path-breaking judicial measure

introduced in British India, which changed the entire system of concepts pertaining to

admissibility of evidences in the courts of law. Up to that point of time, the rules of

evidences were based on the traditional legal systems of different social groups and

communities of British India and were different for different persons depending on his or

her caste, religious faith and social position. The Evidence Act removed this anomaly and

differentiation, and introduced a standard set of law applicable to all citizens.

The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitz James

Stephen, who was the founding father of this comprehensive piece of legislation. The

Evidence Act, identified as Act No. 1 of 1872, and called the Evidence Act, 1872, has

eleven chapters and 167 sections, and came into force on 1st September 1872. Over a

period of approximately 145 years since its enactment, the Evidence Act has basically

retained its original form except certain amendments from time to time.

When Pakistan and India gained independence on 14th and 15th August 1947

respectively, the Act continued to be in force throughout the Republic of Pakistan and

India except the state of Jammu and Kashmir. After the Independence of Bangladesh in

1971, the Act continues to be in force in Bangladesh, however it was repealed in Pakistan

in 1984 by the Evidence Order 1984 (also known as the "Qanun-e-Shahadat"). It also

applies to all judicial proceedings in the court, including the court martial as well.

However, it does not apply to affidavits and arbitration.

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Classification of Evidence

From the view point of definition of Evidence, referred section 3 off the provisions of the

Evidence Act, 1872 (Act No. 1 of 1872), generally evidence is classified into three kinds.

1. Oral Evidence;

2. Documentary Evidence; and

3. Real or Material Evidence

1. Oral Evidence:

Oral testimony or evidence is the evidence which is given in a Court by a witness in

front of judge regarding the subject matter. It also called parol evidence.

Oral evidence is classified as follows:

(i) Direct Evidence:

Direct evidence is the evidence such as those evidences made by some individuals.

The person who made the evidence, speaks from his or her experience or personal

knowledge with regards to the subject matter. The direct evidence declares that a

certain fact exists.

(ii) Indirect or Circumstantial Evidence:

Indirect or circumstantial evidence is the evidence that requires an inference to

connect to a conclusion or fact.

In the other words, such type of evidence that establishes immediately collateral facts

from which the main fact may be inferred. It also called circumstantial evidence.

(iii) Hearsay Evidence:

Hearsay is an out of court statement, which is made in court, to prove the truth of the

matter asserted (displayed).

In other words, hearsay evidence is one kind of statement, that was made other than

by a witness while testifying at the hearing in question and that is offered to prove the

truth of the matter stated.

2. Documentary Evidence:

Documentary evidence is any evidence introduced at a trial in the form of documents.

Although this term is most widely understood to mean writings on paper (such as an

invoice, a contract or a will), the term actually includes any media by which

information can be preserved.

Documentary evidence is classified as follows:

(i) Primary Documentary Evidence

(ii) Secondary Documentary Evidence

Primary documentary evidence is the evidence of the original documents (Section 62)

Secondary documentary evidence is the evidence of copies, etc., of documents which are

admissible under certain circumstances. (Sections 63, 65).

3. Real Evidence:

The real evidence is the evidence that is presented directly to the one by some

individuals or witness, that will make the judgment; maybe through the different

senses.

Doctrine of res gestae

res gestae is a latin term which meaning is “things done” or “it means an act done or

event said in the course of a transaction”.

In other words, parts of transaction which are interconnection and related circumstances

with the facts in issue.

In Evidence Law, it’s refer to words spoken that are so closely connected to an event that

they consider part of the event, and their introduction does not violate the hearsay rule.

res gestae goes to all acts that are necessary to fill in the factual context of criminal

charges. These facts may be happenstance.

res gestae refer to time, place and in the interest of an employer.