Important Definitions Under Law of Evidence

By | September 26, 2018
Important Definitions Law of Evidence

One great object of the Evidence Act is to prevent laxity in the admissibility of Evidence Act and to introduce a more correct and uniform rule of practice than was previously in vogue. This article is about the important definitions of the Indian Evidence Act, 1872 which help in analyzing how legal terms in the evidence act are to be interpreted for the better understanding of the sections.


“Court includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.”

Court, as mentioned in section 3 of the evidence act 1872 includes judges, magistrates and all persons except arbitrators are legally authorized to take evidence. The definition is not exhaustive in itself. In a trial by jury, the court does not exclude the jury. In such a case it means to include both the judge and the jury. Where the authorities under the M.P. Madhyasthan Adhikaran Adhiniyam are empowered to examine witnesses after administering the oath to them, they are a court within the meaning of Evidence Act.[1] A district magistrate hearing an appeal under section 163 of the Municipalities Act is not legally authorized to take evidence and so it is not a court.[2]  An SDO hearing election petition under Panchayat Raj Act is not a court.[3] Commissioner appointed under Public Servant Act is a court under the Contempt Of Courts Act.[4] Industrial Tribunal under Industrial Disputes Act is not a court in the technical sense.[5]


“Fact means and includes-

(1) Anything, state of things, or relation of things, capable of being perceived by the sense;

(2) Any mental condition of which any person is conscious.”

Fact basically means an existing term. It does not refer to a mental condition of which a person is conscious. It is not limited to tangible or what is visible. The statements, feelings, opinion and state of mind are as much fact as any other fact which is tangible and visible. Facts can be of two types:

Physical and Psychological: Physical facts are those facts which can be perceived by five senses. For example; a horse or a man. Psychological fact is considered to have its seat in some animate being and by that virtue of the quality by which it is constituted animate. For example, intention, fraud, good faith and knowledge. The court takes cognizance only of those facts which appear on the record. Things that do not appear and things that do not exist, reckoning in a court of law is the same.

Positive and negative facts: The existence of a certain state of things is a positive fact, the non- existence of it is a negative fact.

Matter of fact and matter of law:

Matter of fact is anything which is the subject of testimony and can be proved by evidence. Matter of law is general law of land of which the court will take judicial notice. It is not to be proved by evidence.


“One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

Relevant can be interpreted in two ways; firstly it means connected and secondly, it means admissible. Relevancy means the connection of events as cause and effect. It has a certain degree of probative force. A fact becomes relevant only when it is connected with other facts in any of the ways referred to in this Act relating to the relevancy of facts. In order to be a relevant fact, a fact should be connected with the facts in issue. A fact not so connected is not a relevant fact. When a fact is connected with another fact, it is logically relevant but it is legally relevant if the law declares it to be relevant. If the law does not declare it to be relevant, it is not admissible as evidence.

Fact in issue:

“The expression facts in issue means and includes –any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied on any suit or proceeding, necessarily follows.

Explanation – Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.”

These are those facts which are alleged by one party and denied by the other in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case. These are the facts of which existence or the non-existence is disputed by the parties. The expression means the matter which is in dispute or which form the subject of investigation.


“Documents” means any matter expressed of described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”

Document means any matter expressed or described upon any substance, paper, stone or anything by means of letter or marks. Computer database recorded in backups and files is a document.[6]Television films are document.[7] A tape record is a document.[8] The electronic record produced for the inspection of the court is documentary evidence under section 3 of the Indian Evidence Act, 1872.[9] For example; a musical composition, a savage tattooed with words intelligible to himself, letters or marks imprinted on trees and intended to be used as evidence that the trees have been passed for removal by a ranger, are documents.


“Evidence means and 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;

(2) All document including electronic records produced for the inspection of the Court, such statements are called documentary evidence.”

The word evidence signifies only the instruments by means of which relevant facts are brought before the court. For this purpose, the instruments adopted are witnesses and documents. It includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true or were themselves proven via evidence. Under this definition, evidence can be divided into two types:

Oral evidence: It means statements made by a witness before a court in relation to matter of fact under inquiry. Thus the oral evidence is the evidence that is given before the court.

Documentary evidence: When a document is produced in a case in support of the case of the party producing it, the document becomes the documentary evidence in the case. All electronic evidence produced for the inspection of the court are included in the document and therefore they are also documentary evidence. A document is an evidence only when it is produced for the inspection of the court.


“A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

It means such evidence as would induce a reasonable man to come to conclusion.[10] A fact is considered to be a proved fact when after considering all the matter and the evidence, the court believes the statement to exist so much so that a prudent man under normal circumstances will believe that the statement exists.  In the case of M. Narsingha Rao v. State of Andhra Pradesh[11] the Supreme Court held that a fact is said to be proved when after considering the matter before it the court believes it to be true. The standard of proof required is proving beyond reasonable doubt, yet it need not be absolute.


“A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.”

A fact is said to be disproved when after considering all the matter and the evidence, the court does not believe the statement to exist or highly doubts its existence so much so that a prudent man under normal circumstances will not believe it to be true. For proving a fact, the burden is always on the person who alleges that the fact is not true.

Not Proved:

“A fact is said not to be proved when it is neither proved nor disproved.”

The expression not proved indicates a state of mind in between proved and disproved; when one cannot say whether a fact has been proved or disproved. It is a situation where. Merely because a fact has not been proved does not mean that it is false. Its falseness can be established only when it is disproved. A fact which is not proved may be true or may be false. A doubt lingers upon its truthfulness.

May presume:

“Whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.”

According to section 4 of the Indian Evidence Act, 1872 whenever the court may presume a fact, it may either regard the fact to be proved until it is disproved or may ask to prove it. It leaves upon the court to make or not to make presumption from the circumstances and facts of the case. Presumption means conclusive deduction. The court, based on its rational prudence may presume a fact or may not presume a fact or may call for further proof to corroborate it. Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the necessary presumptions for “may presume”.

Shall presume:

“Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it disproved”

The word shall denote a strong confirmation and intention. Whenever the court has to presume a fact under this section, then the court shall regard such fact to be true unless it is disproved. It does not give any discretion to the court to presume or not to presume the fact. If the court is directed as per this section, the court has accepted it to be proved until it is disproved and the party interested to disprove it has to do so by providing evidence. If the opposite party can prove that the fact is not true then the court will not presume. This is also known as the presumption of law. The phrase ‘shall presume’ is to found in Sections 79, 80, 81, 83, 85, 89 and 105, 113B etc.

Conclusive proof:

“When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

Whenever it is mentioned that a fact is a conclusive proof of another fact, the court has no discretion at all. It cannot call upon a party to prove the fact nor can it allow the opposite party to adduce evidence to disprove the fact. Conclusive proof in Section 4 of the Indian Evidence Act shows that by declaring certain fact to be conclusive proof of another and the artificial probative effect is given by the law to certain parts and no evidence is allowed to be produced with a view to combating that effect.[12] For example, A files a suit in a court of law for the declaration that B is his legally married wife. The court gives a decree in favour of A and declares that B is his wife. After few years in the lifetime of A, B files a Suit against D for the property of one C, alleging that she is a widow of C. In this case, there will be an issue whether B is the wife of C. D files the copy of the judgment of the previous case. This judgment will prove that B is legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the fact that she is not the wife of C, therefore after the judgment mentioned above have been filed, court cannot allow B to adduce evidence to prove that she is wife of C and not of A.

Res Gestae:

Res Gestae means “things done”. It is a declaration that is uttered closely to the occurrence of an event that it can be used to prove that the event actually happened. It is automatic and undersigned incidents of a particular litigated act and which are admissible when illustrative of such an act. There incidents may be separated from the act by a lapse of time more or less appreciable. It is made at an event that proves that the event happened because the words were uttered upon witnessing the event. No uniformity exists in the length of time over which the transaction shall properly be held to extend. There is no limit as to the territorial boundaries within which the transaction must occur.  For example, Res Gestae would exist if a person yelled ‘FIRE’ upon noticing that a fire had broken out in a crowded movie theatre.

Res Gestae is an exception to the principle that hearsay evidence is no evidence. In R v. Foster[13], the deceased has been killed in an accident by the speeding truck. The witness had not seen the incident but only the speeding truck. The deceased stated to him the incident. The court held the statement as a witness and admissible as evidence.

By – Sagnika Banerjee

(National Law University and Judicial Academy, Assam)

Sources and Footnotes

[1] State of M.P. v. Anshuman Shukla, AIR 2008 SC 2454

[2] State of UP v. Ram Din, 8 Alld 429

[3] Mahadeo and others v. The Sub-Divisional Officer, Kunda and others, AIR 1959 All 43

[4] Krishna v. Gobardhan Aiars, AIR 1954 Mad. 822

[5] Bharat Bank v. Employees of Bharat Bank, AIR 1960 SC 188

[6] Derby v. Weldon,(1991)1 WLR 652

[7] Senior v. Holdsworth, 1976 QB 23

[8] Ziayyuddin v. Brijmohan, AIR 1975 SC 1788

[9] Anvar P.V. P.K. Basheer, civ Appeal No. 4226 of 2012.

[10] State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418

[11] AIR 2001 SC 318

[12] Din Dayal v. state, AIR 1959 All 420.

[13] (1834) 6C & C325


  • The Indian Evidence Act, 1872


  • Batuklal, The Law of Evidence (20th edn, 2014)
  • Ratanlal & Dhirajlal, Law of Evidence (26th edn, 2017)

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