Law of evidence is also known as rules of evidence, which provides the rules and legal principles that, govern the proof of facts in the legal proceeding. Law of evidence applies to every Code or Act, whether it is IPC, CrPC or CPC. In this article we can learn about the provisions of law of evidence applicable with Taxation laws.
1.Introduction
The Indian evidence act is the most important pillar amongst all the laws. It has been enacted to reveal the object behind a particular act committed. The word ‘evidence’ is derived from a latin word evidens or evidere which means ‘to prove’, to ‘discover clearly’.
One of the main objects of the Indian evidence act is to prevent the inaccuracy in the admissibility of evidence and to introduce a more correct and uniform rule of practice. The Indian evidence act is a procedural law because it is concerned with the mode of proving a particular fact, whether a particular offence has been committed by a particular person or not.
The main principles which form the foundation of law of Evidence are:-
- Evidence must be confined to the matter in issue;
- Hearsay evidence must not be admitted; and
- Best evidence must be given in all
2. Section 34
Entries in books of account when relevant-
Entries in the books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability.
Ex A sues B for Rs. 1000/- and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are no sufficient, without other evidence, to prove the debt.
Entries in the books of account are primary evidence in which all the liabilities and payable entries are recorded. But entries in books of account are not complete, other evidence will also require.
3. Section 35
Relevancy of entry in public [record or an electronic record] made in performance of duty.
An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
4. Section 45 Opinion of Experts
When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or figure impression], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts.
Such persons are called experts.
Illustrations
The question is, whether the death of ‘A’ was caused by poison.
The opinions of experts as to the symptom produced by the poison by which
‘A’ is supposed to have died, are relevant.
5. Section 52
In civil cases character to prove conduct imputed, irrelevant.
In civil cases, the fact that the character of any concerned person is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant.
Character of person including past character and conduct, may not be relevant to render probable or improbable any conduct imputed to him. Particularly when other documentary evidences are available, the character of person will not be relevant. Thus, evidence as per records will be important and one cannot take advantage of character concerned person.
6. Section 59
Proof of facts by oral evidence
All facts, except the [contents of documents of electronic records] contents of documents, may be proved by oral evidence.
Contents of a document are evidence to prove a fact. When there is no document, then only oral evidence can be used to prove a fact. Thus, contents of documents cannot be disproved by any oral statement or evidence.
7. Section 60
Oral evidence must be direct
Oral evidence must, in all cases whatever, be direct that is to say-
– If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
– If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
– If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of the person who holds that opinion on those grounds:
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- Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable;
- Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it things fit, require the production of such material thing for its inspections.
8. Section 61
Proof of contents of document
The contents of documents may be proved either by primary or by secondary evidence.
Contents of document may be proved primary or secondary evidence. In case of shares issued by company, share certificate issued by company is primary evidence for allotment of share for the shareholder is concerned. The letter of allotment, application for issue of shares and evidence of payment are secondary evidences and will be useful, if the share certificate is disputed. In case of company, the register of allotment, register of shareholder, return of allotment etc. are primary evidences of share allotment.
9. Section 62 Primary Evidence
Primary evidence means the documents itself produced for the inspection of the court.
Explanation
1. Where a document is executed in several parts, each part is primary evidence of the document:
2. Where a number of documents are made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of playcards, all printed at one time from one original. Any one of the playcards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
10. Section 63 Secondary Evidence
Secondary evidence means and includes-
1) Certified copies given under the provisions herein after contained;
2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
3) Copies made from or compared with the original;
4) Counterparts of documents of documents as against the parties who did not execute them;
5) Oral accounts of the contents of a document given by some person who has themselves seen it.
Illustrations
A, photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was original.
11. Section 64
Proof of documents by primary evidence
Documents must proved by primary evidence except in the cases hereinafter mentioned.
Documents must be proved by primary evidence, subject to exceptions provided.
Entry in the book of account are primary evidence, against the person whose books are concerned, so far liability is concerned, other primary documents provided to other party (creditor) are primary evidence in his hands.
12. Section 74 Public Documents
The following documents are public documents:-
1) Documents forming the acts, or records of the acts-
(i) Of the sovereign authority,
(ii) Of official bodies and tribunal, and
(iii) Of the public officer, legislature, judicial and Executive, [of any part of India or of the commonwealth], or of a foreign country;
2) Public records [in any state] of private documents.
13. Section 75 Private Documents
All other documents are private
14. Section 81
Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.
The court shall presume the genuineness of every document purporting to be the London Gazette or [any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament [or the United Kingdom] printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
15. Section 89
Presumption as to due execution, etc. of documents not produced
The court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
16. Section 90
Presumption as to documents thirty years old
Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation
Documents are said to be proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
Illustrations
A has been in possession of landed properly for a long time. He produces from his custody deeds relating to the land showing his titles to it.
17. Section 94
Exclusion of evidence against application of document to existing facts
When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
Illustration
A sells, to B, by deed “my state at Rampur containing 100 Bighas”. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.
18. Section 97
Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies
When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
Illustration
A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y and he has land in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell.
19. Section 98
Evidence as to meaning of illegible characters, etc.
Evidence may be given to show the meaning of illegible not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expression, of abbreviations and of words used in peculiar sense.
Illustration
A, a sculptor, agrees to sell to B, “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell.
20. Section 103
Burden of proof as to particular fact
The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by ant law that the proof of that fact shall lie on any particular person.
Illustration
A prosecuted B for theft, and wishes the courts to believe that B admitted the theft to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.
21. Section 110
Burden of Proof as to ownership
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
22. Section 125
Information as to commission of offences
No Magistrate or Police officer shall be compelled to say where he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
Explanation
“Revenue-Officer” in this section means any officer employed in or about the business of any branch of public revenue.
23. Section 126
Professional Communication
No Barrister, Attorney, Pleader or Vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such Barrister, Pleader, Attorney or Vakil by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure-
(1) Any such communication made in furtherance of any (illegal) purpose.
(2) Any fact observed by any Barrister, Pleader, Attorney or Vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such Barrister, Pleader, Attorney or Vakil was or not directed to such fact by or on behalf of his client.
Explanation
The obligation stated in this section continues after the employment has ceased.
Illustrations
A, a client, says to B, an Attorney- “I have committed forgery and I wish you to defend me”.
As the defence of man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
24. Conclusion
Law of Evidence provides certain rules and legal principles which determine what evidence must or must not be considered by the trier of fact in reaching its decision. Taxation laws are also empowered with certain provisions made under their Act, but somehow the Evidence Act is required to govern the proof of facts in a legal proceeding. The evidence act provides principles which help in the proof of the facts in the proceeding in every matter whether it is of criminal, civil or taxation. Yet it is concluded that the Law of Evidence is required under the every matter of case to provide its rules and legal principles than govern the proof of the facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of the fact in reaching its decision.
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kindly discuss provisions about
facts, presumption , rebuttal of presumption , investigation reports – when can be used as evidence to rebuttal of documentary evidences and precautions required while applying investigation reports- bias, interest of investigation team,. etc.