Law of evidence

1. Facts in Issue and Relevant Facts

The Indian Evidence Act is also one of the few great pieces of work by the British rule passed in
India by the Imperial Legislative Council in 1872. It contains a series of rules and related issues that
stipulate the admissibility of evidence in Indian courts. Sir James Fitzjames Stephen (3 March 1829 –
11 March 1894) is the founder of this comprehensive legislation. It is a composition of eleven
chapters and 167 sections and is one of the most way breaking legal measures introduced to India.

 Section-3:
This section tells us about the interpretation of words and expressions to be used in the following
senses,

 Fact: “fact” means and includes,

(1) anything, state of things, or relation of things, capable of being perceived by the senses;

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

Relevant: “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.”

The expression facts 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 in any suit or proceeding, necessarily follows.

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 documents, including electronic records, produced for the inspection of the Court; such
documents are called documentary evidence.

Other words and expressions defined in this section are – “Court”, “Document”, “Proved”,
“Disproved” and “not proved”.

1.1 Facts at issue:

Fact in issue simply means “the disputed facts“. In litigation or proceedings, generally, one-party
claims that certain facts exist, while the other party denies the existence. In this case, the fact that it is
accused by one party but denied by the other party is called a fact in issue. In other words, the
controversial fact is the fact in issue.

For example, A accused B of theft, but B denies the performance of any such activity. Here, the
question of whether B had committed theft or not, is a fact in issue.

1.2 Relevant Facts:

The relevant facts are different from the facts at issue. These are facts that are not in dispute/issue,
but they are related to facts that are in dispute/issue. But the connection must be real or logical. In
other words, not all connections make the facts meaningful. To be relevant, the facts in question must
be logically connected to the facts at issue. Events that are the cause or result of disputed “ facts in
issue” will be considered “relevant facts”.

For example, A is accused of B’s murder, and A denies any such act. C saw A with B on the day of
the murder. Here, the question of whether A had committed murder or not is a “fact in issue” and the
fact that C saw A on the day of murder with B will be the “relevant fact”, i.e., a fact connected to
the fact in issue which either helps to prove or dis

1.3 Difference:
Facts at Issue Relevant facts

1) A fact in issue is the ultimate facts in dispute, i.e., A relevant fact is which helps to prove/disprove the facts at
“principal facts” or “factum probandum”. issue, i.e., “evidentiary fact” or “Factum probandi”.

2) Facts at issue are significant in nature Relevant facts are non-significant.

3) The facts at issue are the basis of the “law of

They are part of the law of evidence.
evidence”.

4) These are confirmed by one party but denied by

The relevant facts are the foundation of the inferences made.
the other party.

1.4 Section-5:
It states that “Evidence may be given in any suit or proceedings of the existence or non-existence of
every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no
others.”[iv]

This means that in the absence of evidence of “facts at issue”, it can be proved by the evidence
of “relevant facts”. Section 5 of the law clearly stipulates that the facts at issue can be proved either
by evidence of itself (facts at issue) or by evidence of relevant facts. The true importance of relevant
facts is that when we have no evidence of facts at issue, we can provide evidence of relevant facts to
prove facts at issue. Relevant facts are also called circumstantial or indirect evidence. Indirect
evidence refers to all the evidence surrounding the facts at issue. However, the law does not use the
term “circumstantial evidence” or “indirect evidence” to describe it.

1.5 Relevancy of facts:

The relevance of the facts is provided in chapter 2 of the IEA and a fact is presumed to be relevant
to another when it is relevant under the provisions of Articles 6 to 55 of the Evidence Act. Facts can
be logically or legally relevant. It is commonly said that “Every legally relevant fact is also
logically relevant, but every logically relevant fact is not necessarily legally relevant or
admissible”.

If a fact is connected with another fact, it is said to be logically relevant but it will only be legally
relevant if the law establishes that the fact is relevant. Otherwise, it is unacceptable as evidence in
court. Logically speaking, a fact may be related to a particular case, but there is no guarantee that the
fact will be accepted by the court in law. Therefore, all the evidence that must be presented in court
must be both logically relevant and legally admissible.

1.6 Conclusion:
“Knowledge of facts at issue and knowledge of how to use existing evidence and relevant facts to
prove, constitute the effective use of the rules of evidence. The identification of the facts at issue is
essential to a systematic solution of problems of evidence. They provide the organizational structure
and they operate at the highest level of versatility because solving almost all problems related to a
particular evidence depends on maintaining a vivid understanding of the final evidence. Once the
facts at issue in a particular case are clarified, one can focus on the exact way in which the evidence
involved testifies against it. For relevant facts, since the thought is related to something, it can be
determined that the relevant fact is admissible if related to the fact in issue and not by the
exclusionary rule. One can focus on the exact way in which the evidence involved testifies against
it. “

2. Documents under indian evidence act

1872(Made elaborative notes in file 2)

Introduction           
Witnesses and Documents are the Chief sources of evidence. A witness is person gives testimony or
evidence before any Court. Evidence given by witnesses is called oral evidence while the evidence
produced through the document is called documentary evidence. According to Section 3 of the Indian
Evidence, 1872 documentary evidence means and includes all documents produced before the Court for
its inspection. Documents are divided into two categories, Public Documents and Private Documents.  
2.1 The meaning of Documents:

In general, Document is a record or the capturing of some event or thing so that the information will
not be lost. Usually, a document is written, but a document can also be in other forms like pictures
and sound.

2.2 Examples of documents:

Here are some examples of Documents - Birth Certificate, Bank Statement, Wills and Deeds,
Newspaper issues, Individual newspaper stories oral history recordings, Executives orders etc.

2.3 Definition Of Document:

The document can be defined as," a piece of written, printed or electronic matter that provides
information or evidence or that serves as an official record.

Section 3 of Indian Evidence Act, 1872 defines Document as,“Document” means any matter
expressed or 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.

2.4 Illustrations -

1. A writing is a document;

2. Words printed, lithographed or photographed are documents;

3. A map or plan is a document;

4. An inscription on a metal plate or stone is a document;

5. A caricature is a document.

2.5 Types of Documents

Documents are divided into two categories Private Documents and Public Documents.

Public Documents :

According to Section 74 of Indian Evidence Act, 1872 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 tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents."

Private Documents :
As per Section 75 of Evidence Act, "all other documents other than those, enlisted in Section
74 of the Evidence Act are Private Documents."

3. Evidence : Proved; Disproved; Not proved;

Section 3 of the Indian Evidence Act, 1872 defines the term ‘Proved’,
‘Disproved’ and ‘Not proved’.
3.1 Proved
According to Section 3- “A fact is said to be proved when, after considering the matters before it,
the court either believes it to under the circumstances of the particular case, to act upon the
supposition that it exists.” We are performing several acts in this physical world. But it is not
possible for us to attain complete certainty in all activities. Hence, we have no other option than
to act on the basis of the majority of probabilities. Court itself also takes the assistance of this
concept.
The court can on the existence of any fact:
1. Either definitely believe upon it, or
2. Considers its existence to be highly probable.
While doing so, the court has to act like an ordinarily prudent man. Prudent man means such a
person who is reasonable or understanding with respect to practical things. In other words, we
can call a man with normal intelligence or reason, to be a prudent man. It is such evidence which
takes a reasonable man to a reasonable conclusion.
In the case of ‘Vijay Singh versus State of Uttar Pradesh A.I.R. 1990 S.C. 1459), Supreme
Court held that, ‘Proved does not mean to be a proof of mathematical level, because it is
impossible. It means only with such evidence which encourages an ordinarily prudent man
towards a particular conclusion.
In the case of ‘Barbuda VS. The state of Rajasthan’ (A.I.R. 1992 S.C. 1459), the Supreme
Court said that, ‘Doubt cannot take place of evidence nor judge can have moral faith that accused
is guilty. Doubt is an ocean without shores.
It has been said up to this extent in the case of ‘Hernell VS. Newberger product Ltd.’ [(1956) 3
weekly. L.R. 1034] is an illustrative example. L.J. Denning said that ‘It is presumed regarding
any fact in civil matters that it is provided if the evidence recommends that it was probable but
any fact is not presumed in a criminal matter to be proved until its existence is not proved to such
an extent that no reasonable doubts remain regarding its happening.
It can be proved by an example. A is alleged with theft in B’s house. Three witnesses testify in
evidence that they saw A committing theft B’s house. A is caught at the place of crime and
stolen property is seized from his possession. A also confesses. This fact is capable of being
‘proved’.
3.2 Disproved
Disproved is the exact opposite of proved. According to section 3- “A fact is said to be
disapproved 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.
It is clear that the definition of Disproved is the exact opposite of ‘Proved’. Here, the court
1. Either believes that the fact does not exist; or
2. Considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that does not exist. This
may be clarified by an example. A is alleged with the murder of B. A proves that he was
imprisoned in a particular jail on the date on which the alleged incident is believed to
occur. Record of the jail also proves it. Court has disproved the fact that A murdered B
because it is highly improbable for A to murder while being under imprisonment.
3.3 Not Proved
Section 3 says that- “A fact is said not to be proved when it is neither proved nor disproved.”
Thus, the expression “not proved” is a mental situation between proved and disproved. It rejects
both proved disproved. Whenever it cannot be certainly said in any matter on the basis of
evidence produced that a fact is neither proved nor disproved, it will be called ‘not proved’.
In this matter, the case of Bhagwan Patil versus State of Maharashtra (A.I.R. 1974 S.C. 211)
is an illustrative example. In this case, it has been said by the Supreme Court that when truth and
false fact related in such a way that they cannot be segregated, it is deemed to be ‘Not proved’.
It can be shown by an example. A is alleged of Robbery of B. There are two eyewitnesses of the
incident, but both the witness has become hostile. It becomes difficult to reach to any conclusion
because it can neither be said that A robbed B nor be said that A did not rob B. Such fact is said
to be ‘Not proved’.
Distinction between Proved, Disproved and Not Proved. 

No     Proved      Disproved   Not Proved

1 The term ‘proved’ is The term ‘disproved’ is The term ‘Not Proved’ is a
positive negative. mean between the terms
proved and disproved

2 When fact is proved the When a fact is disproved no When a fact is not proved, it
court gives judgment in further question arises as to implies further evidence
favour of the person, who its proof. either to prove or disprove
has proved it. the fact.
********3.4 Facts need not be proved
Section 56 and 58 of the Indian Evidence Act, 1872 mention those facts
which are not required to be proved. Section 58 reads as below-
“No fact need be proved in any proceeding which the parties thereto or
their agents agree to admit at the hearing, or which, before the hearing,
they agree to admit by any writing under their hands, or which by any rule
of pleading in force at the time they are deemed to have admitted by the
pleadings.
Thus, it is clear that facts which have been admitted, are not required to be
proved. Section 58 mentions about the facts; like
1. Those facts which the parties or their agents agree to admit at the
hearing;
2. Those facts which are admitted before the hearing by any writing
under their hands;
 Those facts which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings.
In the case of ‘R versus Tregear’ [(1967) 2 weekly L.R. 1414] and R
versus Kleghoin’ [(1967) 2 weekly L.R. 142], it was held that the facts
which have been admitted by the parties, do not create any dispute and as
such do not require any proof.
In this matter, the case of ‘Narendra Kumar versus Vishnu Kumar (A.I.R.
1994 Delhi 209) is an illustrative example. Under it, the tenant had
accepted by way of pleadings that the plaintiff was his landowner and he
was the tenant. Court did not require any evidence on this fact.

But the court has been powered by the discretionary powers to demand
other facts of the admitted facts. (Purnabai versus Ranchod Dass, A.I.R.
1992, Andhra Pradesh 270). In this context, Section 56 of the Indian
Evidence Act is to be referred to. It has been stated in it that-
“No fact of which the court will take judicial notice need to be proved.”
Thus, Section 56 lays down an exception to the general rule that ‘every fact
must be proved by evidence’. Such facts of which court will take notice, are
not required to be proved by evidence. These facts are itself so important
or of such public nature that court is bound to take notice of them.
Stephen also says that some facts itself so important and famous that they
are not required to be proved. The court is in the know of them. In case the
court is not in the know of the same then the information may be gathered
without taking evidence.
The best example is- ‘Law in force in the territory of India’. Such laws are
not required to be proved because the court has to take judicial notice of
them.
In this context, the case of Jaishankar Prasad versus State of Bihar (A.I.R.
1993 Patna 22) is a good example wherein it has been stated by the Patna
High Court that court can take judicial notice that several blind people have
the capability to obtain the higher educational qualification.
Thus section 56 and 58 provides that such facts are not required to be
proved-
1. Which are taken as judicial notice by courts; and
2. Which has been admitted by the parties?
3. Section 56 to Section 58 of the Indian Evidence Act contains the
provisions related to non-imperativeness of admission of evidence by the
parties to the suit before the Court to endorse the credulity of their
statements.

4. **********Facts which are judicially noticeable need not be

proven

5. According to Section 56 of the Indian Evidence Act, 1872, the facts of
which the Court will take judicial notice need not be proved.
6. Simply put, any judicially noticeable fact does not require to be proven
before the Court. Now for comprehending this statement, first
understanding the meaning of the clause “taking judicial notice” is
necessary.
7. This expression means recognizing something without proof of being
existing or truthful. Judicial notice is the acknowledgement by the Court
on certain matters which are so infamous or transparently established
that their existential evidence is deemed inessential. The clear reason
behind this is that such facts are expected to be within the ambit of
knowledge of the Judge and therefore any attempt of proving them would
indirectly undermine the judicial competency.
 8. According to Lord Stephen, certain facts are so notorious by nature or
have such authentic assertion and accessible publications that they do not
require any proof. The Court, if it is unknown to such facts, can inform
itself about them, in prior to taking evidence. These facts are deemed to
be judicially noticed.
9. This Section has to be understood in unison with Section 57, reckoning
the instances when the Court shall take judicial notice such that adducing
any evidence would be unnecessary

4.1 Facts of which the Court must take judicial

notice
According to Section 57 of the Indian Evidence Act, 1872, the Court shall
judicially notice the following facts:

 All existing laws within the territory of India;

 All previously enacted legislations or future legislations made by the UK
Parliament, and all local and personal legislations made under its
direction;
 Articles of war for the Indian Army, or Navy, or Airforce;

This refers to the Articles contained in the Army Act (XLVI of 1950), for soldiers,
officers, etc.

The Parliamentary proceedings of the United Kingdom, the Indian Constituent

Assembly, and any other provincial or State Legislature;

This refers to all legislative and other proceedings by the Parliament of the
United Kingdom. Indian Constituent Assembly referred to the Central
Legislature of the British India, however, subsequent to Independence it refers
to the legislative and other proceedings held in the Upper House and the Lower
House of the Parliament. The provincial or the State Legislatures refer to the
Legislative Assemblies located in all the States constituting the Union of India.
For Eg: the State of West Bengal, Andhra Pradesh, Maharashtra, etc.

 The accession and the sign manual of the existing Sovereign of the
United Kingdom and Ireland;

Accession refers to the attainment or acquisition of a position of rank or power;

and Sign Manual is the signature of the Sovereign, by affixation of which it
expresses its pleasure either by order, or commission, or warrant. Here the
Sovereign refers to the King or Queen of the United Kingdom.

 The Seals of all the Indian Courts, the seals of all the Courts outside
India established under the jurisdiction of the Central Government or
the Representative of the Crown, the Seals of the Admiralty Courts and
of Public Notaries, and all other seals which any person is authorized of
using under the Constitution or a Parliamentary Act of the U.K. or an
Act or Regulation having a legal operation in India;
 The accession to office, names, titles, functions, and signatures of the
persons occupying any public office, in any state, if the fact of their
appointment has been declared by notification in the Official Gazette;
 The recognition of the existence, title, and national flag of every State
or Sovereign by the Government of India;
 The time divisions, the geographical divisions of the world, public
festivals, facts and holidays which are promulgated by notification in
the Official Gazette;
 The territories which are located under the paramountcy of the
Government of India;
 Any “notification” related to commencement, continuance, and
termination of animosity between any other State or body of persons
and the Government of India;
In simpler words, any declaration by the Government of India in relation to the
beginning of hostility, continuation of hostility, and end of such hostility. For Eg:
Declaration of War, continuation of war, and end of war.

 The identity of the judicial officers and members, including their

deputies, subordinate officers, assistants, including all the officers
acting towards executing the judicial process. Also of all the advocates,
the attorneys, the proctors, the vakils, the pleaders and other persons
legally authorized to appear or act before the Court;
 The rule of the road, either at land or at sea.

In case of road, the horses and all other forms of vehicle should keep to the left
side of the road. At sea, it is the rule that ships and steamboats, on coming
across, shold port their helms for passing on the port or left side of each other;
steam boats should stay away from the route of sailing ships; and every vessel,
while overtaking another vessel should stay away from its way.

In all these cases, including all matters related to public history, literature,
science or art, the Court may refer to appropriate books or documents.

On being called upon to take judicial cognizance by any person, the Court may
refuse to do so unless and until that person produces any such book or
document which it may consider necessary to enable it to do so.

4.2 Facts admitted need not be proved

According to Section 58, no fact requires to be proved in any suit which the
parties to the suit, or their agents agree of admission at the hearing, or which
they agree to admit in writing, prior to the hearing or which they under any
existing rule of pleading are deemed to have been admitted through their
pleadings.
However, the Court by exercising its discretionary potency may require the
admission of such facts in some other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the
hearing.
2. Facts which the parties to the suit or their agents agree to admit, prior
to the hearing, in writing.
3. Facts deemed to be already admitted by the parties to the suit through
pleadings. 

4.3 Case laws

Onkar Nath and Ors v. the Delhi Administration 

In this case, the appellants were Union Leaders of the Northern Railwaymen’s
Union. They were accused of instigating other workmen towards striking and
were booked under Rules 118 & 119 of the Defence Of India Rules, 1971. They
were sentenced with 6 months of rigorous imprisonment by the Metropolitan
Magistrate of Delhi. The conviction order was upheld in a Revision Appeal by the
Additional Sessions Judge of the Delhi High Court.

However, the previous judicial decisions were set aside by the Supreme Court,
which observed that mere summary instead of the exact words cannot be
deemed as the ground for conviction. The statement of the only witness may
although be truthful cannot be relied upon, in absence of the exact words which
were delivered at the meeting by the accused. The list of facts of which the
Court shall take Judicial notice under Section 56 to be read with Section 57 is
non-exhaustive, and shall, therefore, depend upon the discretion of the Court
and vary from case to case.
S. Nagarajan v. Vasantha Kumar & Anr. 
Here, in this case, the respondents were husband and wife by relation and had
2 shops located at Trivandrum. Their residences were also located in the vicinity
of those shops.

The petitioners, i.e. the Officers of the Customs Preventive and Intelligence

Unit, on obtaining information that foreign goods were being sold in those shops
and also stored in the houses of the respondents, searched the shops and also
the house premises and seized them.

A trial was held under the Customs Act, 1962 with the prosecution asserting
that the respondents were guilty of committing an offense under Section
135(1) of the said Act.

However, the respondents contended that the seized and confiscated goods
were not for sale and also the notifications by the Central Government are not
laws for consideration under Section 57(1) of the Indian Evidence Act, 1872,
thereby pleading not guilty.

The Trial Court maintained the contention and ordered in favor of the
respondents to which the petitioners appealed before the High Court of Kerala.

The High Court of Kerala after making due observations and considerations,
overruled the trial Court’s decision and held that Central Government’s
notifications are indeed laws within the ambit of Section 57(1) and therefore the
respondents were held guilty.
Subhash Maruti Avasare vs State Of Maharashtra  
In this case, the appellant along with the accomplices of four others were found
guilty of murdering one Babdya and were convicted under Section 323 of the
Indian Penal Code by the Trial Court.

The appellant was a friend of the main accused Subhash Maruti Avasare and
was also acquainted with the family of the deceased. The appellant had gone to
inquire of the whereabouts of the deceased at his house and was informed by
his mother of the deceased’s absence at that time. The deceased after returning
had been informed about it and then he allegedly disclosed to her mother that
the accused no. 3 (Rakesh Tukaram Pawar) had asked for a bottle of beer from
him and on his refusal had slapped him. He further disclosed that an attempt of
assault with a knife was also made on him but he had managed to escape.

On 30.10.1996 at about 6:30 PM, i.e the day of the incident, the deceased had
gone to a clinic of a doctor with his wife for medical check-up of their ailing son.
After some time, the victim’s wife runningly returned home and informed the
witness no.1 (the deceased’s mother) that some people had picked up a quarrel
with her husband in front of the hospital of Dr. Babar.

The prime witness went to the spot with her daughter-in-law and witnessed her
son being mortally stabbed by the appellants. By this time the victim’s father
and his son had also arrived at the spot, and the accused-appellants escaped in
the meantime. The deceased was first taken to a local hospital and then
transferred to the Sassoon hospital, where he died due to his injuries.

A post mortem was conducted and the cause of death was deemed to result
from 7 succumbed external injuries and 5 internal injuries.

The Trial Court after observing the reports and testimonies of the accused
persons and witnesses of the cases convicted the accused persons. The decision
of the Trial Court was maintained both by the High Court of Maharashtra and
the Supreme Court.

4.4 Conclusion

In the light of the above provisions from the Indian Evidence Act and the
judicial decisions, it can be concluded that facts judicially noticeable by the
Courts, such as laws operating in India; articles of war; governmental seals;
facts related to legislative, executive and judicial proceedings in India or any
other Sovereign or State recognized by the government of India; the rule of the
road, at the land or at sea, etc; need not be proved by the parties to a Suit.

It is imperative for providing evidence under Section 57 that exact words and
not the gist of the assertion is necessary for the purpose of conviction as mere
gist is insufficient. Also, every notification or order made by the Central
Government under the empowerment of any legislation is deemed as an
operating law under Section 57.

Also, the facts admitted by the parties to a suit either prior to or at the hearing
by themselves or their agents need not be endorsed with evidence. Such
admission includes written admission.

5. Presumption.
5.1 Meaning of presumption

As per the dictionary, the meaning presumption is ‘an idea that is taken to be
true on the basis of probability’ or ‘the act of believing that something is true
without having any proof’.

In the law of evidence, a presumption of a particular fact can be made without

the aid of proof in some situations. The invocation of a presumption shifts the
burden of proof from one party to the opposing party in a court trial.
Presumptions are either of law or fact. Presumptions of fact are inferences
which the mind naturally and logically draws from given facts, irrespective of
their legal effect. A presumption is a rule where if one fact which is known as
the primary fact is proved by a party then another fact which is known as the
presumed fact is taken as proved if there is no contrary evidence of the same.
It is a standard practice where certain facts are treated in a uniform manner
with regard to their effect as proof of certain other facts.

Presumptions can be classified into certain categories:

1. Presumption of fact
2. Presumption of law
3. Mixed presumption

According to Section 114 of The Indian Evidence Act-

The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the
particular case.
Different types of presumption of law have been provided in section 4.

5.2 “May Presume”

The word “may” itself denote ‘expressing possibility’ or ‘expressing or seeking

permission’.

The presumptions under the first clause of Section 4 (May Presume) may also
be called as “Presumptions of Fact”; “Natural Presumptions”. “Permissive
Presumptions”; “Rebuttalble Presumptions”. These presumptions do not
constitute a branch of jurisprudence

According to the first clause of Section 4, whenever it is provided by this Act

that the Court may presume a fact,-

(i) It may either regard such fact as proved, unless and until it is disproved; or

(ii) It may call for proof of it.

The word provided in the first clause is weaker than the word directed in the
second clause.

Illustrations

The Court may presume-

a. That judicial and official acts have been regularly performed;

b. That the common course of business has been followed in particular cases;

c. That a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen, unless
he can account for his possession;

Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the
necessary presumptions for “may presume”.

5.3 “Shall Presume”

The word ‘shall’ itself denotes a “strong assertion or intention or

determination”. The presumptions under the Second Clause of Sec. 4 (Shall
Presume) may also be called as “Presumptions of Law”; “Artificial
Presumptions”, “Obligatory Presumptions”; “Rebuttable Presumptions of Law”.
These presumptions constitute a branch of jurisprudence.

According to the second clause of Sec. 4, 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 is disproved.

The word directed in the second clause is stronger and determinative than the
word provided in the first clause. The expression shall presume gives no
discretion to the Court, but to accept a fact as proved, unless and until it is
disproved.

Sections 79 to 85-C, 89 and 105,111-A, 113-B of the Evidence Act provide

necessary presumptions for “shall presume”.
Whenever there is a provision to the effect “that the court shall presume a
fact” the court cannot exercise its discretion. It is compelled to take the fact as
proved, i.e., it shall have to presume the fact. But in this case, the court will be
at liberty to allow the opposite party to adduce evidence to disprove the fact
so presumed and if the opposite party is successful in disproving it, the court
shall not presume the fact.

5.4 “Conclusive proof ”

The word ‘conclusive’ itself denotes a “proving that something is true”, or

“ending any doubt”.

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.

When the law says that a particular kind of evidence would be conclusive, that
fact can be proved either by that evidence or by some other evidence that the
court permits or requires. When such other evidence is adduced, it would be
open to the court to consider whether, upon that evidence, the fact exists or
not.

The phrase ‘Conclusive proof is found in Sections 41, 112, and 113 of the
Evidence Act and S. 82 of the Indian Penal Code
6. Circumstantial Evidence
Introduction
Circumstantial evidence is a particularly important concept in the law of
evidence but there are terms that come now and then again. It is good to go
through basic concepts of proof to have some basic understanding of what it
means to have Direct Evidence and Circumstantial Evidence. As it will show you
that historically there were some pretty significant differences in the way this
type of evidence would be treated by the law. Today, those differences have
mostly evaporated but still because these terms are used so frequently, it’s a
good idea to have a basic understanding of what they mean and what the
implications for their use are.

Analysis of the Term Evidence

There are two fundamental rules on which the law of evidence is based on:

 no facts other than those having rational probative value should be

admitted in evidence.
 all facts having rational probative value are admissible in evidence
unless excluded by a positive rule of paramount importance. These two
ideas are expressed in Section 5 of the Act.
Definition of Evidence in Section 3 is not the real definition of the term
“evidence”, but is rather a statement of what the term “evidence” includes. The
word ‘evidence’ has been derived from a Latin word ‘ēvidēnt’, which means
“obvious” i.e. Everyday law which means to discover, to prove something which
is in question. 

According to the Indian Evidence Act (1872),  the term evidence means and
includes all statements that grants or requires to be made before the court by
the witnesses in relation to any matter of fact which is under inquiry, all such
statements are called Oral Evidence. The second part of the definition which
talks about is all documents including the electronic records, which are
produced before the examination of court. These are distinguished from the oral
testimonies and all such documents are known as Documentary Evidence. The
term ‘evidence’ means anything by which the alleged matter of fact is either
established or disproved. Anything (exclusive of mere argument) that makes
the thing in question evident to the court is evidence.

For instance, where the question is whether an explosion took place before a
fire occurred. The noise of the explosion and its flash are evidence of it. Persons
who saw the flash or heard the noise can give evidence of the fact of the
explosion. If the happening of the fact is recorded on anything apart from
human memory, that record is also evidence of the happening.

The definition of ‘evidence’ provided in the Evidence Act is incomplete and

defective. It excludes the statements and admissions of the parties, their
conduct and demeanour(outward behaviour) before the court, circumstances
coming under the direct cognizance of the court, facts of which the court can
take ‘judicial notice’ of the fact which the court must or may presume. The
confession of an accused person is not evidence in the ordinary sense of the
term, as defined in this section(as not taken on oath and not subject to cross-
examination) though it has to be given due consideration in deciding the case.

Similarly, statements of parties when examined otherwise than as witnesses,

material objects other than documents, etc. do not amount to evidence
according to the definition given in section 3, but these are matters which the
court may legitimately consider. The definition given in section 3 is, however,
exhaustive in the sense that every kind of evidence can ultimately be reduced
either to the category of oral or documentary evidence.

Difference between ‘evidence’ and ‘proof’- the word ‘evidence’. ‘Proof’ is the

establishment of fact in an issue by proper legal means to the satisfaction of the
court. It is the result of evidence, while evidence is only the medium of proof.

Section 3 of the Indian Evidence Act, 1872

The word evidence is used in three different senses or forms:

i) as equivalent to relevant

ii) as equivalent to proof

iii) as equivalent to the material on the basis of which courts come to a

conclusion about the existence or nonexistence of disputed facts.

For instance, we may say, the presence of a person who is guilty near the scene
of the crime just before the crime was committed, is evidence that he may be
guilty of committing that crime; whereas his presence after the crime was
committed, at the same place, is not evidence of the guilt of the person who
committed the following crime. In the above example or the statement, the
word evidence is used as equivalent to relevant (i).
Again we may say that the possession of a stolen article immediately after the
theft is evidence of the fact that the person in whose possession the article is
found is either the thief or a receiver of stolen property. In this example, the
word evidence is used as equivalent to proof (ii), which is really the effect of
evidence. But neither of these senses that the word is used in the Act.
In Section 3,   the word Evidence is also used in different phrases. But, In the
definition of the word, we find only oral and documentary evidence But neither
of these senses that the word is used in the Act. It is used in the third sense
mentioned above, namely, as equivalent to the material on the basis of which
courts reach the conclusion about the existence and the non-existence of the
disputed facts.

Oral Evidence and Documentary Evidence

Oral Evidence as provided under Section 59 and Section 60  of the Indian
Evidence Act. On the other hand, the Documentary Evidence is provided
in Section 61 and Section 62. Basically, Documentary Evidence covers two types
of evidence that can be considered as the Primary Evidence as well as the
Secondary Evidence.

Oral Evidence- Section 59 says that it considers all facts as oral evidence except
those that contain document or electronic evidence but that oral evidence must
be the direct one. Now, the question arises what is actually the direct evidence.
So, let us try to understand with an example – so if there is any kind of crime
that has been committed and there is the person available at the moment on
the spot of crime. then whatever he heard or whatever he sees as well as
whatever he perceived by his senses, even though his own opinion will also be
considered as oral evidence.

When we talk about Primary Evidence, it can be considered as that evidence

which can be given in several parts like duplicate copies which can be given as
counterparts like those which are signed by parties and also the uniform
process of the documents that have been made by a uniform process like
printing, lithography and also the photograph. The process of formation is all
considered as Primary evidence.

Secondary Evidence contains the certified copies, those copies which have been
contained by the same mechanical process and those documents as well as
which is made or compared with the original one. Also contains the counterpart
of the document against the party even though the important thing is that oral
account of a content of a document will also be considered as secondary
evidence but it must be the oral account of that person who has himself seen it,
means he himself has seen the content of the document and is giving the oral
account of that.

There are different kinds of evidence but Direct evidence and circumstantial
evidence are one of the more talked about pieces of them.

Direct Evidence
It is the testimony of the witness as to the principal fact to be proved e.g. the
evidence of a person who says that he saw the commission of the act which
constitutes the alleged crime. It also includes the production of the original
document.

It is much easier to understand and much easier to apply. You always know
Direct Evidence when you see it because essentially what you have is a witness
who is providing directly what you need to prove. So in this case, direct
evidence is essentially categorised by the idea that witness gives you the very
inference that you need to prove in this case. 

For instance, this is direct evidence of the fact that it rained yesterday you have
witnessed they have told you they saw it raining yesterday. Therefore, it is
direct evidence of the fact that it rained yesterday and reason you know that
this is what I call direct evidence is the links in the evidentiary chain of
reasoning are direct, what I mean by that is i) the witness says that its raining
and you are using it to prove a proposition that is asserted that it was raining. 

Therefore, indirect evidence links in the chain are incredibly short. ii) If you
believe this witness you can accept the fact that it was the exact proposition
that the witness asserts that it was raining. Therefore step one it was raining
and step two it was raining that is direct evidence. That is the only type of
direct evidence there is when the proposition you mean is tendered exactly to
what it is you are trying to prove. We can call it direct evidence because we are
not trying to draw any other conclusion from that fact.

Again we may say that the possession of a stolen article immediately after the
theft is evidence of the fact that the person in whose possession the article is
found is either the thief or a receiver of stolen property. In this example, the
word evidence is used as equivalent to proof (ii), which is really the effect of
evidence. But neither of these senses that the word is used in the Act.
In Section 3,   the word Evidence is also used in different phrases. But, In the
definition of the word, we find only oral and documentary evidence But neither
of these senses that the word is used in the Act. It is used in the third sense
mentioned above, namely, as equivalent to the material on the basis of which
courts reach the conclusion about the existence and the non-existence of the
disputed facts.
Circumstantial Evidence?
‘Circumstantial Evidence’ includes all the relevant facts. It is not secondary
evidence; it is merely direct evidence; it is merely direct evidence applied
indirectly.

Essentials of Circumstantial Evidence

A fact which is put before the court and that fact itself does not tell us anything
about the offence of the course of action. It is not one of the elements of the
course of action but it allows the court to make some assumptions or some
inferences that bring it very close to being able to define other facts which are
directly related to the chain of the course of action.

You can see circumstances not related directly to the crime but they indirectly
point at the crime. They make it more likely that what has been proposed to the
court is true. For instance:

1. A was observed in the laneway where the B was robbed and murdered.
A was then observed burying what turned out to be a quantity of
money, approximately the same as had been stolen. Now, we can see
that these two inferences are pretty coincidental. It is much more likely
 that A has been seen as the victim who has a large amount of money.
These are the irresistible inferences that he probably killed and robbed
the person. Circumstantial evidence leads in the direction of thinking
but they do not give us anything conclusive.
2. C aged 9 attended the slumber party and alleges to have been
indecently assaulted by an adult male. Only two males were in the
house overnight and the other male’s guilt was excluded by evidence.
In both the above examples there are inferences which lead to the elements of
crime being done.

Scope
In the absence of any direct evidence, a person can be convicted on the basis of
circumstantial evidence alone if the conditions mentioned above are satisfied
(Umedbhai v State of Gujarat AIR 1978 SC 424). In appreciating a case based
on circumstantial evidence, one circumstance by itself may not unerringly point
to the guilt of the accused. It is the cumulative result of all the circumstances
which could matter (Gade Lakshmi Mangraju v State of A.P. AIR 2001 SC
2677). Thus, there must be a chain of evidence where no reasonable ground is
left for a conclusion which is relevant with the innocence of the accused and it
must be such as to show that, it is within all human possibility, the act must
have been done by the accused (Hanumant Govind Nargundkar v State of M.P.
AIR 1952 SC 343).

Sometimes the facts happen suddenly and do not leave behind much direct
evidence. In such cases, the main event will have to be reconstructed before
the court with the help of surrounding circumstances such as the cause or the
effects of the event. Circumstances sometimes speak as forcefully as does
direct evidence. For instance, there is a quiet little village touched by a road
which ends there. Occasionally the driver who belongs to the village comes
there with his lorry for night rests. The night on which the truck came, a man
from the village was found lying dead by the road-side. The position of his body
and nature of his injuries creates a doubt that he was dragged by a vehicle for a
little distance and then one wheel ran over him. There was no dust storm, rain
or mist to obstruct visibility. From these circumstances, certain facts may
reasonably be inferred and many others can be safely presumed as a matter of
probability. The facts tell a story beyond a shadow of a doubt that it is the work
of the village lorry and it must have been negligently handled.

Where the circumstantial evidence only showed that the accused and deceased
were seen together the previous night, it was held to be not sufficient (Prem
Thakur v State of Punjab AIR 1983 SC 446). The Kerala high court has observed
that, in a murder case, just because the doctor conducting the autopsies not in
a position to give his expert opinion related to the cause of the death of the
person, the court does not become helpless in this situation. It can still convict
the accused on the basis of other circumstantial evidence they already have on
the basis of the investigation. (State v Mani, 1992 Cr LJ 1682). In Laxman Naik
v State of Orissa AIR 1995 SC 1387, the conviction and sentence of death
supported on the basis of circumstantial evidence which presented a continuous
and complete chain of events which lead to the rape and murder of a seven-
year-old daughter of the brother of the accused.

Circumstantial Evidence – A Sole Base for

Conviction
The confession of an accused person is the best evidence if it is voluntary, to
make this happen accused are tortured till they confess, and their confession is
used as evidence of guilt against them. Today, no court would act upon a
confession if there is the slightest suspicion of torture having being employed,
but that does not prevent the person entrusted with investigation from resorting
to such methods for gathering evidence. The remedy lies elsewhere, and not in
courts. Mechanical aids like lie detectors and truth drugs are being used, but no
court would think of acting upon such mechanical aids only. (Haricharan Kurmi
v State of Bihar, AIR 1964 SC 1184).

A court after considering the evidence presented before it and hearing the
arguments comes first to a conclusion that if the facts exist or not in reality
which have been declared or denied by the parties and after finding all the
facts, the court applies the rule of law. If all the facts given in the rule of law
are found to exist, the right or liability which would follow according to the rule
of law is ordered by the court. When a court finds that facts provided exists, the
following facts are said to have been proved, if the court finds they do not exist,
they are said to be rejected by the court according to Section 3 of Indian
Evidence Act.

Section 106 of the Indian Evidence Act, 1872

Section 106 deals with the burden of proving a fact within the special
knowledge of a particular person. When any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him. For
example, A does an act. The circumstances are such that the reasonable
inference is that he did the act with a particular intention. If A wants to show
that he did the act with a different intention then the burden is upon him, for
A’s intention being a psychological fact and within A’s special knowledge, under
the section, the burden is upon him. 
Similarly, if A is charged with the offence of travelling without a ticket and if A’s
defence is that he bought a ticket, but lost it, then the burden of proving that
he had a ticket lies upon him, but lost it, for it is is a matter within his special
knowledge as to where he bought the ticket and entertain, and so, under the
section 106, the burden is upon him. To throw the burden upon the prosecution
would reduce the trial to an absurdity, as the prosecution will have to examine
every ticket-issuing clerk of every station in the country, to show that A did not
buy a ticket. In such a situation, it is not a matter of mere inconvenience but
one reducing the trial to a farce.

In Shambu Nath Mehra v. the State of Ajmer, the appellant was charged with
offences under Section 420 of I.P.C., and Section 5(2) of the Prevention of
Corruption Act,1947, in that he drew from government money, second-class
T.A., without travelling in second class and without paying the fare. The
prosecution proved that no second-class tickets were issued on that day for the
journey, and relied on illustration (b) to Section 106 and contended that burden
was on the applicant to show that he travelled or paid this fare or the difference
on the train. 

If facts within the special knowledge of the accused are not satisfactorily
explained by the accused it would be a factor against him, though by itself it
would not be conclusive about his guilt. It would be relevant while considering
the totality of the circumstantial evidence. It is submitted that under the Indian
law, section 106 should be more liberally used against the accused [State of
Punjab v Karnail Singh (2003) 11 SCC 271].

Difference between Direct and Circumstantial Evidence

As you can see, circumstantial evidence can be very convincing and sometimes
it can be incredibly powerful but it does mean that circumstantial evidence is
different from direct evidence. In this, one has to draw more links in his
evidentiary chain of reasoning plus it is not simply a matter of belief. Evidence
can be direct evidence and circumstantial evidence at the same time, it depends
upon what you are trying to prove. So, this evidence right here is direct
evidence of the fact it was raining yesterday but it’s circumstantial proof if you
need to prove that people near John were carrying umbrellas. 

So guess what whether something is direct evidence or circumstantial evidence

depends upon the assertion you are trying to prove. So if you need to prove in
your case that it was raining yesterday, it is the direct evidence we are talking
about here. If you need to prove rather that people around where John was
standing were carrying umbrellas, it is circumstantial evidence and that is
essentially different. It just depends on what it is you are trying to prove.
Circumstantial evidence is incredibly important in criminal cases and the reason
why it is important is that in criminal cases there is a probable need to prove
the Actus Reus which is an act and the Mens Rea which is the intention. So in
most of the assault cases, for example, direct evidence for the Men’s Rea is
difficult to obtain but easy to obtain for Actus Reus. In such cases where it is
difficult to obtain direct evidence for the men’s rea, their circumstantial
evidence is used instead to prove the men’s rea of the person who committed
the crime. 

For example, the fact that Suman saw Ram punch Ravi in the head is the direct
evidence of the Actus Reus but she can also provide circumstantial evidence of
the men’s rea because he looked like he was intending to punch him. From this,
it can be inferred that Ram had the Men’s Rea. It is very important to use
circumstantial evidence for a variety of propositions in a criminal case.

Direct evidence turns mainly on whether you believe the witness, if you believe
this witness and saw that it was raining then you have proof of the fact that you
are trying to establish but circumstantial evidence requires a different form of
reasoning.

First of all, it has to be believed for whatever reason the underlying statement
just like with direct evidence, it should be believed that this witness saw that
the road was wet but then need to go through a different pattern of reasoning
because now it is entirely possible that the fact the road was wet shows that it
rained yesterday but it is also possible that the fact that the road was wet
means street was cleaned.

Basics of what we do when we use Circumstantial

Evidence?
Use the two-fold breeze process which makes this different from direct
evidence.

1. decide whether or not to believe the witness i.e., believe that what the
piece of evidence is asserting.
2. it requires to evaluate all the conclusions in light of all the evidence.
So the fact that the road was wet probably means that it was raining but it may
mean that the street was being cleaned. So whether or not we should accept
proposition A or proposition B depends upon all the other evidence in the case.
What it means is if there is enough circumstantial evidence, there were clouds
in the area, for example, more likely it was raining and we saw many people
around with umbrellas that day, then more likely it was raining or on the
contrary, you know at the same time as he saw the road was wet somebody
reported seeing a street cleaner. This gives us the idea that what is being tried
to prove in circumstantial evidence requires to evaluate conclusions in light of
all the evidence of a case.

Circumstantial evidence requires easy use of an interim proposition sometimes, 

it also requires the obviousness of other pieces of evidence. So the propositions
can be strengthened by adding additional facts. If circumstantial evidence is
being used to prove the following case then it should be remembered that it
should be the only reasonable inference from the facts. 

Risks involved when using Circumstantial

Evidence:
1. There is a risk of too easily jumping to conclusions.
2. Instructions to the jury are useful in warning of the risk of this type of
evidence.
3. Instruction should remind the jury the inference of guilty should be the
only reasonable inference from the facts.
When providing the circumstantial evidence one should not jump too easily to
the conclusion, remember that other possibilities are involved and think them
through. The inference one wishes to draw probably by tendering other forms of
circumstantial evidence because the truth of the matter is the more one can
build various circumstantial points, the more strong propositions can be proven.
Like by showing road is wet, well the road is wet is one thing that one piece of
circumstantial evidence, it was cloudy that is another piece of circumstantial
evidence, people were carrying an umbrella that is another piece of
circumstantial evidence, it usually rains at that time of the year that is all
circumstantial evidence to prove that on that day it was raining even though
nobody saw that it was raining. Circumstantial evidence can add up and become
a powerful tool in the evidentiary reasoning process

Which is Superior Direct or Circumstantial

Evidence?
This question arises because it is sometimes said that witnesses may lie but
circumstances never do, thereby implying that circumstantial evidence is
superior to direct evidence. A little thought, however, will show that the
statement is meaningless because we are comparing incommensurable things. 

Circumstances are the relevant facts and are placed before a court through the
witness. If we are saying that circumstances do not lie, we are assuming that
the witnesses who speak of the circumstances are not lying, and, if that
assumption is made, there is no reason why the same assumption should not be
made about the direct witness also, in that case, certainly the evidence of the
direct witness is superior. 

If you assume that the direct witness is telling a lie then the possibility cannot
be overruled by witnesses speaking about the various circumstances, are all
speaking the truth, or, that all of them are speaking falsehood. If all are
speaking the truth, there is no reason why circumstantial evidence should prefer
to direct evidence and if all are speaking falsehood, there is nothing to choose
at all. One aspect, however, must be noted. 

The human mind is so constituted that when a person gives evidence of having
seen a particular fact, it may not accept it because of the possibility of a
mistake; whereas, if there is a chain of circumstances, all logically pointing
towards the existence of the matter in controversy, the human mind would
prefer to follow the chain of circumstances. It is almost impossible for such a
chain to be forged falsely and deliberately. 

Therefore, the fact to which they all lead must be true. To create such a chain
would involve a conspiracy between the several witnesses, a plan of mendacity
which would be highly improbable. Therefore, we might with greater truth say
that witnesses may be mistaken but circumstances are not. Even so, fact and
fiction have several instances of circumstances pointing one way, the truth is
the other way. 

The trials of Robert Wood, Adolf Beck, and Oscal Slater show the dangers of
placing too much reliance either on witnesses identifying the accused (witnesses
giving direct evidence) or on witnesses giving evidence of incriminating
circumstances (witnesses giving circumstantial evidence). The stories of Sir
Arthur Conan Doyle especially; (i) The Beryl Coronet, (ii) The Silver Blaze, (iii)
The Boscombe Valley Mystery, (iv) The Norwood Builder, and (v) The Thor
Bridge, wherein the same set of circumstances are differently interpreted by the
police and by Sherlock Holmes, are worthy of a close study.
Case Laws

State of U.P. v Ravindra Prakash Mittal (AIR 1992

SC 2045)
In this case, The respondent took his trial on the allegations that Saharanpur
committed the murder of his wife Smt. Kamlesh, burnt the dead body by
sprinkling the kerosene oil and thereby caused the evidence of the offence of
murder to disappear with an intention of screening himself from legal
punishment. On the above allegations, he stood charge under two heads, that is
under Sections 302 and 201 IPC. The court laid down:

1. The circumstances from which the conclusion is drawn should be

established by the court regarding the following case.
2. The circumstances should be conclusive in nature i.e unquestionable by
the court on the bases of the set of circumstantial evidence provided as
evidence.
3. All the facts that are established should be accordant only with the
hypothesis of guilt and not according to the innocence of the accused.
4. The circumstances should depend on moral certainty, that should
exclude the possibility of the guilt of any person other than the accused
person.

Bodh Raj @ Bodha And Ors vs State Of Jammu

And Kashmir on 3 September 2002
Facts and Issue: In the case, the question was whether the discovery of a
weapon of assault on the basis of information given by the accused while in
custody, was sufficient to fasten the guilt of the accused.

Observations and Decision: The court said that the exact information was
given by the accused which leads to the recovery of the denouncing article must
be proved and only then could such information become the basis of convicting
the accused of the following accusations. The court observed:

1. Section 27 of the Evidence Act was enacted as the proviso to Section

25 and Section 26, which imposed a complete ban on the admissibility
 of any confession made by accused either to the police or to anyone
during the period the accused was in police custody. The object of
making provision in Section 27 was to allow a certain portion of
statements made by an accused to the police officer admissible as
evidence whether or not such statement is confessional or non-
confessional. The ban imposed by section 25 and 26 would be lifted if
the statement is clearly related to the discovery of facts (Pandurang
Kalu Patil v State of Maharashtra AIR 2002 SC 733).
2. Under Section 27, in order to provide the evidence leading to the
discovery of any fact admissible in the court, the information must
come from any accused in the custody of the police. The statement
which is admissible under Section 27 is the one which is the
information leading to the discovery of the admissible facts. So, what is
admissible is the information discovered and provided by the
information and not the opinion formed on it by the police officer.
3. For the benefit of both the accused and prosecution the information
given should be recorded and proved. But if not recorded and proved,
the exact information must be mentioned through the evidence. The
basic idea implanted in section 27 is the Doctrine of Confirmation by
successive events.
4. The doctrine is founded on the principle that if any fact is discovered in
a search made on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the information provided
by the prisoner is true. The information might be confessional or self-
harming in nature but if it results in the discovery of fact, it becomes
reliable information.
5. It is now well established that the recovery of an object is not a
discovery of fact anticipated in section 27. The fact discovered
anticipated in the section also embraces the place from which the
object was produced, and the knowledge of the accused as to it.
Information regarding the concealment of the article of the crime does
not lead to the discovery of the fact that the article was concealed at
the indicated place to the knowledge of the accused.
6. The extent of the information admissible must depend on the exact
nature of the fact discovered to which such information is required to
relate. The information related to being admitted in evidence is
confined to that portion of the information which noticeably relates to
the fact thereby discovered and must be curtailed as to make it
senseless or unclear. The extent of information admitted should be
accordant with understandability.
The court, therefore, held that the mere statement which the accused provided
to the police and the witnesses to the place where he had concealed the article
is not indicative of the information as considered under section 27.
Conclusion
In practice,  if there is direct evidence and also circumstantial evidence, such as
evidence of motive, conduct and opportunity, the court feels itself on safe
ground in finding an accused person guilty. If however, the entire evidence is
purely circumstantial even if the court believes it, the court scrutinises the
evidence with such great care as to eliminate the possibility of any hypothesis in
favour of the accused, and then only finds him guilty. It is also necessary,
before drawing the inference of guilt from circumstantial evidence, to be sure
that there are no other coexisting circumstances in which the word weakens or
destroys the inference. As regards the punishment to be awarded, however, it
makes absolutely no difference whether the evidence is direct or circumstantial
once it is accepted as proof of the guilt of the accused.

7.*******8 Relevancy and Admissibility

Definition of Relevancy and admissibility

Relevancy 
Relevant Evidence is evidence that makes a reality practically obligated to be
legitimate than it would be without confirmation. Relevant proof might be
rejected for unreasonable partiality, perplexity, or a waste of time. The relevant
proof is commonly permissible and irrelevant proof is never acceptable. Two
main fundamental standards on relevance:

1. Nothing is to be received which is logically not verified regarding the

matters which are required to be proved.
2. Unless and until the clear ground of law or policies excludes it,
everything which is verified or probative should come in. Relevancy act
as a link between a statement of proof and a statement that needs to
be proved.
One fact is said to apply to one another when one is associated with the other in
any of the ways alluded to in the provisions of The Indian Evidence Act relating
to the relevancy of fact. 

Indian Evidence Act does not give a particular meaning of relevancy or relevant
fact. It essentially depicts when one fact become applicable to another one. 

Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact
might be associated with another fact and in this way the idea of relevant fact
can be distributed. One fact is pertinent to another fact if they are associated
with one another in any of the ways as portrayed in Section 5 to Section 55. In
the event, if a fact isn’t so associated, then the fact is irrelevant.

A court may bar important proof when the probative estimation of the proof is
significantly exceeded by the peril of at least one of the accompanying: out of
line bias; confounding the issues; misdirecting the jury; undue postponement;
unnecessarily exhibiting aggregate proof.

Admissibility
All the relevant facts which are admissible by the court are called admissibility.

As per the Section 136 of the Evidence Act, the final discretion of the
admissibility of evidence of the case lies with the judge. Section 136 of the
Evidence Act states that exactly when either assembling proposes to give proof
of any reality or actuality, the Lord justice may ask the social event proposing
to give the proof how the alleged truth, at whatever point illustrated, would be
huge; and the judge will surrender the verification if he envisions that the truth,
at whatever point appeared, would be relevant, and not something different.

Essential ingredients of Admissibility

1. The judge is the only person who determines relevancy and
admissibility. 
2. When an individual proposes to show proof of any fact, the judge may
ask an individual to explain ‘in what way’ the fact is relevant. 
3. The judge would concede the particular demonstrated reality just if he
is content with the suitable reaction of the individual that it is, to be
sure, significant under either provision of S. 6 to 55. Hence the thought
of relevancy begins first and of admissibility later and the judge will
concede the reality only if it is relevant.

What is Relevant Evidence?

All reality is relevant which is equipped for bearing any reasonable assumption
as to facts in issue or principal matter in dispute. Sir “Stephen,” said that
relevancy means a connection of event as cause and effect. By and large, the
realities significant to an issue are those actualities that are important for
evidence or disproof of reality in the issue. Such realities might be given in
proof legitimately or inferentially. 
What is truly implied by ‘relevancy of fact’ is a fact that has a specific level of
probative power. They are not certainties in issue but rather may influence the
probability of reality in the issue. 

Relevant evidence is auxiliary or collateral in nature, yet appropriate or likely in

offering ascend to a derivation of right or risk by a procedure of thinking.

A fact will be relevant only when it has a link with the facts in issue, but it is not
admissible. For example- communication between spouses during the marriage
or any professional communication or communication which is made regarding
the affairs of the state these all are not admissible but they are relevant. A
particular fact is reasonably connected to the main issue it can be easily
ascertained by logic and not by law. Therefore logical relevancy signifies a
reasonable link between the facts. Basically, it is a question of fact in which
lawyer duty arises and they have to decide whether to tender the proof in the
court or not. The Relevant fact is given in evidence to act from Section 5 to 55
and they are admissible in court. 

Case – Knapp v. state

In the American case of Knapp v. state, the standard of law expressed by the
court was that “the assurance of the determination of a particular thing of
evidence lays on whether verification of that evidence would sensible in general
assistance settle the essential issue at trial.

Essential ingredients of relevance 

1. Relevancy is not totally dependent on law.

2. Relevancy is determined on the basis of practical experience, logic,
common sense, human experience and basic knowledge of affairs.

Difference between relevance and admissibility

Relevance Admissibility

At the point when certainties are so related as to

At the point when facts have
render the presence or non-presence of different
been announced to be lawfully
facts likely as indicated by the normal course of
significant under I.E.Act, they
occasions or human conduct, they are called
become admissible.
relevancy.

It is found on the basis of the rationale and human It is established on law, not on
experience. the rationale.

The provision regarding

The provision regarding relevancy is discussed admissibility is discussed
under Section 5 to 55 of the Evidence Act. under Section 56 of the Indian
Evidence Act.

It mainly emphasis on what facts are necessary to Between relevancy and proof, it
prove before the court and not? acts as a decisive factor.

It mainly focuses on what facts

It basically implies the relevant facts. are admissible and what facts are
not admissible.

Relevancy is basically a cause. It is mainly an effect.

The court has the power to apply discretion in The discretion cannot be applied
relevancy. by the court in admissibility.

Relevant facts are not admissible.

Admissible facts can be relevant. Legal relevant facts are
admissible.

Case- Ram Bihari v State of Bihar

In this case, the supreme court observed that relevance and admissibility are
synonyms to each other but their legal implications are different from each
other, and the admissible facts may not be relevant.

Relevant facts (Section 9)
Facts will help in supporting, refuting, clarifying or presenting significant
realities are additionally important under this section, for instance, if an
individual is absconding away not long after in the wake of being blamed for a
wrongdoing, it is applicable as lead ensuing and influenced by certainties in the
issue. In Sainudeen v State of Kerala (1992 Cr LJ 1644 Kerala),
distinguishing proof of the blamed through his voice was significant under this
section. 

This Section likewise covers test recognizable proof processions (TI parades).
Its utility was clarified by the Supreme Court in Ramanathan v State of
TN (AIR 1978 SC 1201) expressing that the normal and old routine with
regards to arranging suspects for distinguishing proof by observers or by the
unfortunate casualty winds up fundamental where the personality of the culprit
is obscure.

Case – Lakkshmandas Chaganla Bhatia v State

Section 9 of the Evidence Act, 1872, brings out certain facts which can be
treated as applicable. On the basis of this case Lakshmandas Chaganlal Bhatia
v. State, the court laid down some of the following relevant facts: 

1. Facts are important to clarify or present reality in issue or relevant

fact. 
2. Certainties that support or counter an induction proposed by a fact or
truth in issue or a relevant fact. Realities that set up the character of
anything or individual whose personality or identity is relevant.
Substances which fix the time and spot at which any reality in issue or
noteworthy assurance occurred. Certanities which shows the
relationship of social events by whom any reality in issue or fitting
truth was executed. 
Another section of the Indian Evidence Act which manages adequacy is Section
11. Section 11 manages those substances which are not regularly noteworthy
yet somewhat wound up being significant in the event that they are conflicting
with any appropriate truth or they make the proximity or non-closeness of any
relevant sureness exceedingly more likely than not or fantastical. 

Sheik Ketab-Uddin v. Nagarchand Pattak– In this case, it was held, that

where the executants of a record-holding presentations of cutoff purposes of
property are alive and don’t give their evidence, such records are not adequate
around there. 

Bibi Khaver v. Bibi Rukha,- In this case, the court said that all together that a
security truth might be passable as significant under this segment, the state of
the law is that: 

The insurance truth must itself be developed by usually indisputable proof.

It must, when developed, bear the expense of a reasonable presumption or

deducing concerning the issue in the contest. 
Numerous confinements are made in Section 11. R.v. Prabhudas– In a charge
of fraud, proof of ownership by the blamed for different records suspected to be
forged is prohibited.

Another constrainment referenced for the circumstance Bela Rani v.

Mahabir. In this case, the Section 11 is also obliged by Section 17-39. Besides,
concerning the appropriateness of declarations made by a person since
perished, it has been held that except if on the off chance that they are
acceptable in chapter 32 and Section 33, Section 11 won’t profit to make them
proof.

Conclusion
Relevancy is a test for admissibility. The topic of admissibility is one of the laws
and is controlled by the Court. In Section 136 of Evidence Act 1950, a variation
is made among relevancy and admissibility, on the off chance that it very well
may be demonstrated that the proof would be relevant whenever demonstrated,
the court will concede proof of it. All admissible evidence is relevant but all
relevant evidence is not admissible. An irrelevant truth isn’t allowable in court.
Be that as it may, in specific cases, proof which isn’t relevant under Section 5 to
55 may, in any case, be acceptable.

Evidence is considered as more important in deciding cases over many years.

The power vested on the managing official in choosing whether a proof is
permissible or not is immense and must be limited through rules. the law
identifying with proof isn’t reasonable for the present age and it must be
changed for the better working of the legitimate framework. An unmistakable
line must be drawn between the intensity of the judge and the intensity of the
judge all things considered a gigantic power vested on individuals would just
bring about defilement of intensity. the law is incomparable and no man should
given the optional capacity to twist it to his desire. Each bit of proof which
concerns the case must be admissible whether it is found through illicit hunt or
some other methods. There are many people among us who envade the eyes of
law forever because of inadmissible evidence.

8. Res Gestae
I. Introduction
‘Res Gestae’ is a Latin term which can roughly be translated to ‘things done’.[1] The
concept of res gestae has emerged from the belief that certain acts or statements,
which may otherwise be irrelevant and inadmissible, may be admitted as evidence due
to the very situation in which they were committed or uttered. The doctrine of res gestae
is generally used to admit a potentially inadmissible piece of evidence in order to
provide context to an event. Thus, one of the important requirements for the applicability
of the doctrine is that the said act or statement must not exist in complete ‘factual
isolation’.[2] Statements forming a part of res gestae are often admitted as evidence
even though they may be hearsay.
Thus, res gestae is also recognized as an exception to the general rule of hearsay
evidence. The rationale behind this is that human nature is such that sometimes the
words uttered and actions done are so interwoven with each other that it becomes
difficult to view the action in total isolation and doing so might lead to miscarriage of
justice. Therefore, such statements were declared to be a part of res gestae and an
exception to the rule of hearsay evidence. Let us look at the historical development of
the principle or doctrine of res gestae in the common law.
II. History
The doctrine of res gestate can be traced back to as far as 1693 when in the case
of Thompson v. Trevanion[3] the court admitted a declaration accompanying an act as
evidence giving the justification that it provides an explanation regarding the
commission of the act. Although it was later discussed and used in a number of
subsequent cases,[4] its development began only in 1805 after the case of Aveson v.
Lord Kinnaird.[5]
The scope and applicability of the concept gained the attention of scholars and jurists
after the infamous case of R. v. Bedingfield[6] wherein Cockburn C.J. ruled that a res
gestae statement cannot be made after the transaction. In this particular case, the
accused had slit the throat of the deceased who ran outside and told a witness to look
at what the accused had done. The Court ruled that since the statement was made after
the throat had been slit, it cannot be said to be a res gestae statement. This decision
was later overruled in the case of Ratten v. R.[7] wherein it was stated that a res gestae
statement may even be made immediately after the transaction. The scope of the
doctrine of res gestae in common law was further widened by this decision.
III. Under Indian Law
The concept made its way to the Indian Evidence Law in the form of section 6 of the
Indian Evidence Act, 1872, which reads as,
“Relevancy of facts forming part of same transaction- Facts which, though not in issue,
are so connected with a fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place or at different times and
places.”
The provision is contained in Chapter-II of the Act which deals with the ‘Relevancy of
Facts’. It begins with section 5 which states that evidence may be given to prove the
existence or non-existence of a fact in issue, that is, a fact which has been submitted to
judicial investigation, or any other fact which has been declared relevant by the statute.
Following this is section 6 which provides that even though a fact may not be ‘in issue’
but is connected to such a fact so deeply that it forms a part of the same event or
‘transaction’, it is a relevant fact and evidence may be submitted to prove or disprove it
u/s 5 of the Act. The facts may have occurred at the same time and place or at different
times and places.
The provision inter alia covers the following-
1. Statements made by either of the parties or by any by-stander during or shortly before or
after the event
 2. Facts containing the effects of the act committed by the accused, regardless of the fact
that he might not have caused all of them himself.
3. Facts that provide context to an event even though they may not constitute the event itself.
IV. Test for Applicability
The foremost requirement for the applicability of the section is that the fact must be a
part of the ‘same transaction. The following requirements must be fulfilled in order to
conclude that the facts are a part of the same transaction:-
1. They must be in close proximity of time, so much so that there remains no possibility of
concussion or fabrication.
2. They must have occurred at the same place or at different places which are in close
proximity to each other.
3. There must be certain continuity in action.
4. There must be a ‘community of purpose’.
5. The courts have used the aforementioned test to determine the applicability of
section 6 in a case. Gestures made by the victim while dying may also qualify as
res gestae.[ Queen v. Abdullah (1885) ILR 7 All 385 ] As far as statements are
concerned, the Supreme Court has ruled in the case of Krishna Kumar Malik v.
State of Haryana[9] that the doctrine of res gestae is an exception to the rule of
hearsay evidence. It further observed that for a statement to be admissible under
section 6 of the Evidence Act, it must be made contemporaneously with the act
or immediately thereafter.[10] Where there was a significant time lapse between
the occurrence of the event and the recording of statements of injured victims by
the magistrate, it was held that the statements will not qualify as res gestate
statements u/s 6 of the Evidence Act.[ Gentela Vijayvardhan Rao and anr. v.
State of Andhra Pradesh]
6. In another case,[  Bishna v. State of West Bengal ] the witnesses arrived at the
place of occurrence immediately after the completion of the event and heard the
full account of what had happened. Their testimony was considered valid u/s 6 of
the Evidence Act. It is essential to note here that only a statement of fact can
form part of res gestae and not a statement of opinion.

V. Widening Scope
Initially, the doctrine of res gestae was mainly applied to cases involving murder.
However, over time the courts have started applying the doctrine in cases of rape,
domestic violence, etc. which are generally based on circumstantial evidence. The
requirement of the proximity of time is given relaxation in cases of rape and domestic
violence due to the general attitude of the Indian society on the issue which discourages
women from immediately coming out to seek legal redressal or help. Thus, a statement
made by the victim in cases of rape and domestic violence even after a lapse of time
may fall under the purview of section 6 of the Indian Evidence Act, 1872, provided that it
has been established that the victim was still under some kind of shock or trauma due to
the incident. The same rule of relaxation may also apply to cases involving child
witnesses.
An interesting decision of the Patna High Court in the case of Shyam Nandan Singh v.
State of Bihar[13] is worth discussing in light of the widening scope of the doctrine of
res gestae. In this particular case, the deceased and her mother went to a field where
they were stopped by the accused from harvesting crops and they slit the throat of the
deceased who had raised an alarm.
The deceased’s mother narrated the events to the people who had gathered due to the
alarm and went to lodge an FIR in a nearby police station along with them.
Subsequently, the mother passed away before she could be examined. The issue
before the court was pertaining to the admissibility of the FIR as res gestae since it was
lodged by the mother who had seen the incidents first hand. The counsel on behalf of
the accused argued that FIR can only be used as a corroborative piece of evidence and
not as substantial evidence.
The court, after careful consideration, ruled that the FIR is a relevant fact under the
provisions of section 6 of the Indian Evidence Act, 1872. However, it further stated that,
since the person who has lodged the FIR in the instant case has passed away before
she could be examined, the FIR is required to be used as substantive evidence. This
cannot be done since the general rule is that FIR is supposed to be used only as a
corroborative piece of evidence. Therefore, the court allowed the appeal and acquitted
the accused.
The rule of res gestae is generally extended to acts done or statements made. By
bringing an FIR within its purview, the court has made room for expansion of the scope
of section 6 of the Indian Evidence Act, 1872.
VI. Criticism
The concept of res gestae has been subjected to criticism since its very inception. The
concept has been remarked to be conveniently obscure leaving an ample amount of
room for loopholes and multiple interpretations.
Wigmore has even criticized the very nomenclature stating that the rule is overlapping
with one or the other well-established principle of the law of evidence. He has stated
that the phrase ‘Res Gestae’ is ambiguous and, therefore, harmful for use.
VII. Conclusion
The rule of res gestae is often used as the last resort. The legislative rationale behind
the inclusion of the rule in the Indian Evidence Act, 1872, was to make sure that no
criminal walks away freely due to lack of evidence against him. The rule of res gestae
has been subjected to criticism for its nomenclature as well as its obscurity. However,
when looked at from a different angle, the vagueness and obscurity enable the courts to
judge each case on its own merits. The exact contents and requirements of res gestae
are still subjected to interpretation on a case-to-case basis.
Moreover, as we have already seen, the scope and horizons of the doctrine are
expanding through various judicial decisions over time. This particular trend, in a way,
justifies the legislative rationale behind the provision and may even be helpful for the
overall realization of the constitutional goal of ‘justice for all’ which has been subtly
highlighted in the preamble.

9. Admission and Confession

I. Introduction
Admission, as defined under section 17 of The Indian Evidence Act, 1872:
“An admission is a statement, oral or documentary or contained in electronic form, which
suggests any inference as to any fact in issue or relevant fact, and which is made by any of
the persons, and under the circumstances hereinafter mentioned.”
The definition states that evidence can either be oral, documentary or be contained in
electronic form (inserted by Information Technology Act, 2000). Its relevancy is depended
on whether if, it satisfies the conditions mentioned in sections 18 to 23 of The Indian
Evidence Act, 1872.
Surprisingly, in common parlance, ‘confession’ is used to refer to adverse statements made
by a competent party but it comes under the purview of admission. Admission is a broader
term and includes confessional statements. Confession is nowhere defined in the act but
the conditions for its relevancy are given in sections 24 to 30.

As the definition of admission is also applicable to that of confession and confession comes
under the topic of ‘admission,’ it can be inferred that admission is a broader term and it
covers confessions.

II. Admissions
As already defined above, admissions are statements that attach a liability, as inferred from
the facts in issue or relevant facts, to the party who made such statements; the statement,
denouncing any right, should be conclusive and clear, there should not be any doubt or
ambiguity. This was held by the Supreme Court in Chikham Koteswara Rao v. C
Subbarao (AIR 1981 SC 1542). They are only prima facie proof and not conclusive proof.
Admissions can be either formal or informal. The former also called judicial admission is
made during the proceedings, while the latter is made during the normal course of life.
Judicial admissions are admissible under Section 58 of the act and are substantive.
They are a waiver of proof, that is, no further proof is needed to prove them unless the court
asks the same. The Supreme Court in Nagindas Ramdas v. Dalpatram Ichharam (1974 1
SCC 242) explained the effect of it, stating that if admissions are true and clear, they are the
best proof of the facts admitted. Through informal or casual admission, the act brings in
every written or oral statement regarding the facts of the case (by the party), under
admission.
A person’s conduct may also be taken as an admission. In an Australian case, Mayo v.
Mayo (1949 P 172), a woman registered the birth of her child but did not enter the name of
the father or his profession. The court said that either she did not know who the father was
or she was admitting that the child is illegitimate. In either case, there is an admission of
adultery and admissible evidence of adultery.
Before any admission becomes relevant, it should meet certain conditions, which are
explained further down below.

1. Section 18, 19 & 20

These sections lay down the list of persons whose admission will be relevant. Section 18
lays down the rules for parties to the suit and sections19 & 20 lay down rules regarding
relevancy for third parties. They are:

1. Parties to the Suit: All statements made by parties to the suit that makes an inference as
to a relevant fact or fact in issue is relevant. In the case of defendants, a defendant’s
admission does not bind his co-defendants as, then, the plaintiff would defeat the case of
all defendants through the mouth of one. In the case of the plaintiff, since they all share
 some common interest, the admission of one plaintiff is bound on co-plaintiffs (Kashmira
Singh v. State of MP AIR 1952 SC 159).
2. Agents of Parties: As the law of agency dictates, anything done by an agent, in the
normal course of business, is deemed to have been done by the principal himself (qui
facit per alium, facit per se). Hence, if an agent is impliedly or expressly been asked to
make an adverse statement, the same shall be relevant. A lawyer does not come under
this section.
3. Statement in Representative Character: A person who sues or is sued in a
representative character. These refer to people such as trustees, administrators,
executors, etc. Nothing said in their personal capacity is taken as admission but if said in
the representative capacity, it counts as an admission.
4. Statement of Third Parties: These include-
a. Persons having a proprietary or pecuniary interest in subject matter, provided, their
statements are in the character of their interest.
b. A predecessor-in-title, that is, from whom the parties have derived their interest in the
subject matter of the suit. This is applicable only if the parties to the suit continue holding
their title. The previous owner of the title to the property can make admissions regarding
the property and not the parties or the new owner.
2. Section 21
This section is regarding the proof of admissions. It states that, since admission is evidence
against the party who has made it; it cannot be proved by the party but has to be proved
against the party. It is better explained by Crompton J in R v. Petcherini (1855 7 Cox CC
70), If a man makes a declaration accompanying an act it is evidence, but declarations
made two or three days, or a week, previous to the transaction in question cannot be
evidence, otherwise, it would be easy for a man to lay grounds for escaping the
consequences of this wrongful acts by making such declarations.
It can, though, be proved in favour of the party, if, the party who made the statement,
originally, died. This comes under Section-32 of the Indian Evidence Act and the statement
is proved by the representatives of the original party. When the statement relates to a bodily
feeling or state of mind, the person making the admission can prove it, too. The state of
mind in question should be proved with appropriate conduct, since, a person in pain would
act differently than a person faking it. Certain other relevant statements can also be proved
by the party making it, such as, when the statement is itself a fact in issue or if it is a part of
res gestae.

3. Section 22 & 22A

Section 22, along with section 65 and section 22A (inserted by the Information Technology
Act, 2000) provides that oral admissions as to the content of documents or electronic
records are irrelevant unless the question is about the document or record being forged or
genuine.

4. Section 23
In civil cases, when a statement or an admission is made ‘without prejudice,’ it is not
relevant. It means that both the parties have agreed to that admission and no evidence is to
be provided regarding the same. This section is meant to reach a compromise between
parties and avoid litigation. It protects every admission made where ‘without prejudice’ is
expressly or impliedly stated and cannot be disclosed in the court, except by the consent of
both parties to the suit.
In Paddock v. Forrester (1842 3 Scott NR 715: 133 ER 1404) a letter was written by one
party ‘without prejudice.’ The reply to the letter was not so marked but it was held to be
inadmissible by the court. Only those admissions which come under the purview of Section
126 are to be compulsorily disclosed by the lawyer.
III. Confessions
A confession is nowhere defined under the act and it occurs under the heading ‘admission.’
The definition of ‘admission’ under Section 17, hence, becomes applicable for Confessions.
In terms of the act, a relevant statement made in a civil case is an admission and an
admission made in a criminal case is a confession.

In Palvinder Kaur v. State of Punjab (1953 SCR 94) the Supreme Court upheld the
decision of the Privy council in Pakala Narayan Swami v. Emperor (AIR 1939 PC 47) and
cited two points: confession must either admit the guilt in terms or admit substantially all the
facts and secondly, a mixed-up statement, containing confessional statements which will
lead to acquittal is no confession. The court cannot remove the exculpatory part out of a
statement and deliver a decision on the basis of the inculpatory part of the statement.
A confession, like admission, can be judicial or extra-judicial. In Sahoo v. State of UP (AIR
1966 SC 40), the accused was talking to himself and made the confession of killing his own
daughter which was overheard by the witness. This was held to be confession relevant in
evidence.

1. Section 24

This section makes those confessions irrelevant which are:

1. A result of inducement, threat or promise;

2. Inducement, etc be made from a person in authority;
3. It should relate to a charge in question; and
4. It should hold out some worldly benefit or advantage.
The law considers confessions, which are not made freely, as false. A government official is
considered to be a person in authority as they are deemed to be capable of influencing the
course of prosecution (R v Middleton, 1974 QB 191 CA). The benefit promised should be
reasonable and make the accused believe that he would gain an advantage from it and an
evil which the accused is threatened with should be of a temporal nature.
2. Confession to Police
Section 25 to 30 talks about confessions to police.

1. Section 25: It provides that no confession made to a police officer shall be provable or
relevant. This is to protect the accused who might be tortured to extract out a false
confession. If a person is confessing in front of someone else, it will not be irrelevant just
because of the presence of a policeman around. This section only applies to confessional
statements, orally or in FIR; other admissions can be taken as evidence to prove facts or
facts in issue.
2. Section 26: This section is similar to the preceding one and states that no confession of a
person, in police custody, is provable. It applies the same context that a false confession
could be extracted out through fear or torture. It not only applies to confessions to a
policeman but to any other person. Police custody does not only mean within the four
walls of a police station, but it could also mean police control in a home, a car or a public
 place. The only exception to this rule is that if the confession is made by the person in
presence of a Magistrate, it will be admissible.
3. Section 27: If a statement leads to a discovery of a fact related to the crime, it becomes
admissible, even if it was extorted out of the accused. This acts as an exception to Section
26. To certify the genuineness of the recoveries, they should be made in presence of
witnesses. In Mohan Lal v. Ajit Singh (AIR 1978 SC 1183), the accused, on arrest,
indicated where he had kept the stolen goods and the same were found within six days.
The court held that his liability can be inferred from the statement and was held liable for
murder and robbery. A statement made cannot be used against other co-accused, as was
held in Satish Chandra Seal v. Emperor (AIR 1943 Cal 137).
4. Section 28: If the inducement, threat or promise, as defined in section 24 is removed, a
confession afterwards, becomes relevant. Here, the confession is free and voluntary.
5. Section 29: Unlike admissions, where a ‘without prejudice’ statement is inadmissible, a
confession that is made by a promise of secrecy is admissible. The law is only concerned
with the confession being free and voluntary, hence, even if deception or fraud is being
employed or the person is inebriated or if he is made to answer questions, he was not
supposed to, the confession made through all these methods is admissible. In R v.
Maqsud Ali (1966 1 QB 688), two accused were left alone in a room where they thought
they were all alone but secret tape recorders had been implanted in the room. The
confessions thus, recorded were held to be relevant.
6. Section 30: This section comes into play when more than one person is jointly accused of
the same offence. Here, if one of the co-accused makes a confession regarding himself
and some other such persons, the court will take that confession into account against the
accused and his co-accused. In Kashmira Singh v. State of MP (AIR 1952 SC159), a
person named Gurbachan, along with 3 others was accused of the murder of a child.
Through his confession, the prosecution was able to give shape to the story and he, with
Kashmira Singh was held liable and sentenced to death. Kashmira was acquitted by the
Supreme Court on an appeal as uncorroborated confession was not deemed enough to
deprive a person of the right to life.
IV. Difference Between Admission and Confession
As the definition of admission is also applicable to that of confession and confession comes
under the topic of ‘admission,’ it can be inferred that admission is a broader term and it
covers confessions.

Hence, all confessions are admissions but not all admissions are confessions.
Confessions, usually, refer to admissions made in a criminal case whereas an admission is
a relevant statement made in a civil case. As was held in cases Pakala Narayan Swami v.
Emperor and Palvinder Kaur v. State of Punjab (cited above), that a confession must go
further and admit the guilt in terms or substantially the facts from which guilt follows, and not
merely acknowledge a fact suggesting an inference as to a fact in issue or a relevant fact.
An admission can either be in favour or against the interest of the party making it (Section
21 & 32), whereas a confession is always against the interest of the party making it.

Admission can be made anywhere, even in police custody, or in front of a person in

authority or whether it was a result of inducement, whereas the conditions for relevancy of
confessions are different and would not be applicable in such cases.

A confession is binding on the co-accused, whereas this is not the case in admissions.
Admission can be made by a third party, too but confession proceeds from a person who
has committed the crime. Lastly, admission is not conclusive proof but a confession is taken
to be satisfactory proof of guilt of the accused.

10. Dying declaration

In order to prove their positions, and make one’s story to be true, they give
Statements to judge but their story one can not rely on the veracity of
statements which  they made to support their stories, as it may be prejudiced
or untrue so generally, the role of Witness becomes crucial to determine the
truth.

But there is a condition when the statement made by the person to be treated
as true evidence in spite of the fact that he made the statement in his own
favour and hardly any doubt behind the reason for that statement. That
condition is Dying Declaration. 

Dying Declaration is a statement made by the person while he was dying and
states the reason for his death. The statement given by the dying person can be
circumstantial or tells the cause for his death. Hence, the only statement given
just before the death of a person is called Dying Declaration. The person who is
conscious of Compos Mentis and knows that death is about to happen can make
a declaration and state the cause of his death and that statement will be
Admissible and treated as Evidence in the Court. Declaration made by the
deceased person can be in oral, written and by conduct. The word Dying
Declaration explain the word itself. 

Definition
In Section 32 (1) of Indian Evidence Act defines when the statement is made by
the person as the cause of his death, or as any of the circumstances of the
transaction which resulted in his loss of life, in cases in which the cause of that
person’s death comes into question. Such statements made by the person are
relevant whether the person who made them was alive or was not, at the time
when they were made, under the expectation of death, and whatever may be
the nature of the proceeding in which the cause of his death comes into
question.

The statement made by the deceased person will be treated as Evidence and
Admissible in a Court of law. The reason behind this can be followed by Latin
maxim Nemo Mariturus Presumuntur Mentri which means that “Man Will Not
Meet His Maker With Lying On His Mouth. More precisely in our Indian law, it is
the fact that the dying man can never lie or Truth sits on the lips of dying man.
Hence, the Dying Declaration is Admissible and considered as Evidence in Court,
and can be used as a weapon to punish the culprit.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it
can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can
also be in the form of Question Answer. However, there must be a distinct and
definite assertion on the part of the person who produces the statement.
Possibly the declaration should be in written form in the exact words stated by
the person who made the statement. When a magistrate records the dying
declaration, then it should be in Question-Answer form as the magistrate will
opt the maximum information rightly, as in some cases dying declaration
becomes the sole way to help in the conviction of the accused.

Let us discuss some of the types in the elaborative form:

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with
the offence of murder before the court of session. That he had murdered one
DULARI, a prostitute by cutting her throat through RAZOR. It seems that one-
morning dulari with her throat cut was taken to the police station and from
there to the dispensary. She was alive till the morning. The post-mortem report
shows that the windpipe and the anterior wall of the gullet had been cut
through. When Dulari was taken to the police station, she was questioned by
her mother in the presence of a sub-inspector. She was again questioned by the
sub-inspector, deputy magistrate and subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs.
Magistrate asked dulari, as who had wounded her, but due to the injured
condition dulari was unable to speak. After that, The magistrate mentioned
several names one by one and asked if they had wounded her. Dulari moves
her hand forward and backwards and made negative and affirmative signs.
Subsequently, the magistrate asked whether Abdullah had wounded her, for
that dulari waved her hand made the sign in the affirmative, the magistrate
recorded the statement. After that question was put to her that if she been
wounded with a knife or sword. In this regard, dulari makes a negative sign,
again magistrate asked her if she had been wounded with the RAZOR. She in
answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same
was accepted as evidence to prosecute Abdullah.
Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by
her in the form of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the
hospital on the night of December 16, 2012 and the second on December 21 by
the sub-divisional magistrate during which she gave exact details of the
mishappening.

The third declaration was recorded by the metropolitan magistrate on December

25 and was mostly by gestures. The bench said that as far as the third dying
declaration is concerned, this court has already held that the dying
declaration made through signs, gestures or by nods are admissible as
evidence.

Oral and written

When the person gives the name of the murderer to a person present and
written by any of them then it is a relevant dying declaration. However, people
may dispose of the name of the mugger orally.

An oral dying declaration is admissible in evidence as an exception to the

general rule of evidence that hereby evidence is no evidence in the eyes of law.
The oral dying declaration made before his wife, father-in-law and other near
relatives were made in the conscious state.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and

brother gave the evidence, that the deceased made the statement month prior
to the incident of suicide by her that the appellant, her husband used to taunt
the deceased saying that she had come from a hunger house and the appellant
himself go to the house of deceased and asked for 10.000/-. It was held that
the dying declaration and appellant were convicted under section 304B and
498A of IPC. The Court referred to Pakala Narain Swamy v. Emperor[3]. in
which Lord Atkin: held that the circumstances of the transaction which
resulted in the death of the declarant will be admissible if such
transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not
be admissible as evidence. When the condition of the deceased is grave and at
his own request a statement made by him in the presence of the doctor was
later taken by the police but could not be completed as the deceased fell into a
coma from which he could not recover. It was held that the dying declaration
was not admissible in court as the declaration appears to be incomplete on the
face of it. But the statement, though it is incomplete in the sense but conveys
the declarant all necessary information or what he wanted to state, yet stated
as complete in respect of certain fact then the statement would not be excluded
on the ground of its being incomplete.

The deceased stated, “I was going home when I came near the house of Abdul
Majid, Sohail shot me from the bush. He ran away. I saw.” this was the dying
declaration made by the deceased and further was unable to answer the
questions. It was held that there is no question of incompleteness so far as the
context of the case is concerned. In the case of Muniappan v. State of
Madras[4]. The deceased made the dying declaration as follows :

“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola
goundan of kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken
after he was dead. This declaration against Muniappan was complete and
admissible.

Question- Answer form 

Dying Declaration can be made in the form of Question-answer. the deceased,
in some of her statement, did not state the actual part played by the appellant.
She merely answered the questions put to her. The court held that when
questions are put differently then the answer will also appear to be different. At
first glance, the detailed description of the offence may appear to be missing
but the statement of the deceased construed reasonably. However, when the
magistrate records the dying declaration, it must be preferred to be recorded in
the form of a question-answer must be preferred. If there is nothing to doubt
that the person who records the statement made by the deceased exact word to
word, would not make any difference merely because the same was not
recorded in the form of question and answer. 

Reason for admitting dying declarations in evidence

A dying declaration is admitted in evidence that is truly based on the principle of
“Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in
his mouth). Dying declaration does not require any corroboration as long as it
creates confidence in the mind of the Court and free from any form of tutoring.
In case Uka Ram v. State of Rajasthan[5]. Court held that dying declaration is
admitted upon consideration is made in extremity; when the maker of the
statement is at his bed end, every hope of this world is gone; and every motive
of falsehood is silenced and mind induced to speak only truth. Indian law
recognises this fact that “a dying man seldom lies”.

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement
must be in a fit state of mind. If the court has the slightest doubt about the
mental soundness of the maker of dying declaration, it is unsafe and unfair for
the base on such a statement.

The mere fact that the victim in his dying declaration did not make any
reference to injuries received by the accused is not a genuine ground that
decides the merit of dying declaration. Where the dying declaration was
recorded by the doctor who himself certified that the patient was in a fit
condition for giving the statement, his non-mentioning that the patient was in a
fit mental condition and throughout remained conscious would be of no
consequence. In case State of M.P. v. Dhirendra kumar[6]. The mother-in-law
of the deceased was in the position to reach the upstair within 5 to 6 minutes
after hearing the cry of the deceased. According to the opinion of the autopsy
surgeon, the deceased was able to speak about 10-15 minutes. The Supreme
Court did not agree with the view of the High Court that the deceased is not in a
position to make the dying declaration, as it was reaffirmed by the autopsy
report and circumstances of the case that the deceased was in a fit state of
mind to talk when her mother-in-law reached the place where the deceased was
dying.

Whereas in the case State of Orissa v. Parasuram Naik [7]. The accused, the
husband was alleged that he poured petrol on the body of his wife and lit a fire.
Whereof extensive burn injuries were sustained by the deceased wife. It was
held that the oral dying declaration to her mother can not be accepted because
there was no certificate by medical officer certifying that the deceased was
medically fit to make a statement.

It is improper to reject the dying declaration on the ground that the fitness of
the maker depends solely on the certificate of the doctor and the magistrate
himself did not require independently as to whether the deceased was in a fit
state to make a dying declaration.

As in the case of Arvind Kumar v. State of Rajasthan [8]. The accused is charged
with an offence under Sections 304B and 498A of IPC. The dying declaration
was recorded by Naib-Tahsildar but did not take any certificate from the doctor
regarding the fit state of mind of the deceased nor there was any endorsement
by the doctor. The doctor testified that the dying declaration was recorded by
the reader of Naib-Tahsildar. No preliminary questions were asked from the
deceased before recording his statement. The naib-Tahsildar also stated that he
did not seal the recorded statement of the deceased and carbon copies provide
instead of the original copy of dying declaration of the deceased during cross-
examination. The mother of deceased categorically refused to put a signature or
thumb impression on dying declaration which showed that the dying declaration
made in the hospital room was a lie. All these facts created doubt and
truthfulness of dying declaration and held that the alleged dying declaration
could not be admissible and reliable document as it suffered from a number of
infirmities. However, the accused were convicted on the basis of entire
evidence.

In case Dhanraj and other v. State of Maharashtra [9]. The dying declaration

was challenged on the ground that no medical certificate was attached to the
condition of the deceased. However, the deceased went to the hospital all alone
by changing different vehicle in the way. The statement of doctor and
magistrate was on record to indicate that the deceased was in a fit state of
mind to give a statement. Such circumstances can be used as supporting
evidence about the mental condition of the deceased.

When the deceased made a dying declaration and while stating that fell into a
coma before completing the statement, it would have a serious effect on his
capacity to make such a statement. Certificate of fitness given by the doctor
with regard to this condition of the deceased. Such an opinion should be
accepted by the court. If the circumstances so demand, such opinion must be
carefully balanced with all other surrounding facts and circumstances.

In a case Rajeev Kumar v. State of Haryana[10] medical opinion shows that the

deceased larynx and trachea were charred by heat. It was clarified that when
larynx and trachea are charred, the person can not speak but when they are in
the process of being charred, he can speak. The second medical opinion was if
the vocal cords or larynx is charred of a person, he may be able to speak but
not clearly and it will be difficult to understand. The medical report of two is not
in variance with the ocular evidence that the deceased was in a position to
speak when dying declaration was recorded and the court can rely on such
dying declaration.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the
person who is recording the dying declaration must have some nexus with the
deceased either circumstantially or by some fact. However, the doctor or police
officer hold more value as compared to the normal person. As far as the dying
declaration is concerned the magistrate entrusted to record the dying
declaration, as the statement recorded by him is considered more evidential
rather than statement recorded by the doctor, police officer and by the normal
person.

The Supreme Court has found this to be true in law, at least in cases where the
person dies of burn injuries. Court hold the opinion that “The law on the issue
can be summarized to the effect that law does not give any direction that who
can record a dying declaration but just provided that magistrate is above all the
person in subject for recording the statement, nor is there any definite form,
format or procedure for the same,” said a bench of Justices B S Chauhan and
Dipak Misra while quashing the high court order in the case of dowry death
acquittal case.

The person who records the dying declaration must be satisfied that the maker
is in a fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the

police officer, but if it is recorded by the judicial magistrate that it will have
more credential value and reliability.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some
circumstances where the judicial magistrate, police officer and doctor is not
available, the Court can not reject the dying solely statement made before the
normal person. But the person who records the statement must show that the
deceased was in a fit state of mind and conscious while making the statement
no matter if the statement is not recorded by Judicial Magistrate, doctor and
police officer. The statement is admissible in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated
condition of the declarant, the statement can be recorded by the doctor or by a
police officer. But one condition must be coupled with it that while recording the
statement there shall one or two-person present there as a witness otherwise
the Court may find the statement to be suspicious. Moreover, the statement
record by the doctor, later endorses that the declarant was not in a stable
condition and his statement would not be considered as evidence, rectify by the
witness that the deceased was in a fit state of mind and conscious to make the
declaration. It was held in the case of N. Ram v. State[11] that the medical
opinion can not wipe out the direct testimony of an eye witness which states
that the deceased was in a fit mental condition and able to make a dying
declaration.
Recorded by the magistrate
When the deceased statement recorded by the competent magistrate has
deemed to be considered as reliable and attracts the evidentiary value as he
presumed to know how the dying declaration should be recorded and he is a
neutral person. Moreover, the magistrate has empowered to record the dying
declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to
record the statement of the dying person, no matter whether he has jurisdiction
over that case or not, and in case where the statement recorded by the
magistrate who has no jurisdiction in that case subsection (6) will apply. Here
the word “statement” does not confine to only the statement by the deceased
and witness but also include a statement of the accused, in order to satisfy
himself, but the accused statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magistrate
shall have the power to record the dying statement made by the dying person,
whether the magistrate has jurisdiction in that particular case or not, he will be
able to record the state provided under this chapter or by any other law for the
time being enforced, or at the time before the commencement of trial and
investigation.

Section 164 provides a warning. Under this provision the magistrate who record
the statement should tell the accused that he has to made only statement which
shall not be amount to confession, but if he did so, then the confession can be
used against him for the purpose of conviction. This is the sine qua non for
recording confession. The other important requirement is that the Magistrate
must raised questions from the wrongdoer to satisfy himself that the confession
made by the accused was voluntary so as to enable him to give the requisite
certificate under subsection(4) of this chapter. The judicial magistrate here tell
the accused that he is not bound to make a confession, but he did not ask the
question from the accused in order to satisfy in question, whether the
statement made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the
Magistrate did not clear the rule that the statement made by the accused should
not be amount to confession, if he does so then it will be used as evidence
against him, can not be considered. The Magistrate must satisfy himself that the
statement made by the accused voluntary, no pressure or force was used on
the accused while making the confession. Any mark of the person of the
accused to vitiate the voluntary character of the confession. When was held not
only inadmissible under the section but it could not be used under the other
provision of Indian Evidence Act such as sections 21 & 29.
Language of the statements
As far as the language of the statement is concerned, it should be recorded in
the language of the deceased in which he is fluent or may possible than in Court
language. The court cannot reject the dying statement on the basis of the
language in which it was made. It can be recorded in any language. Even if the
dying declaration is made by the deceased in Urdu, Hindi, Punjabi languages, it
was considered that statement could not be denied on the ground of language
in which it was made solely or on the ground that it was recorded in Urdu.
When the statement was given by the deceased in Urdu and the magistrate
recorded it in English than in that case precaution should be taken while in
explaining every statement to the deceased by another person, it was declared
that the statement was the valid dying declaration.

Statements made in different languages

When two dying declaration was recorded in two different languages on is in
Marathi and the other is in Hindi and the deceased were proficient in both the
language the statement could be the basis of conviction as it was held in the
case of Amar Singh Munna Singh Suryavanshi v. State of Maharastra[13].

Points to remember
1. Dying declaration made by the deceased can be recorded in any
language.
2. If the statement was recorded in another language than the one which
magistrate recorded, then precautions should be taken to explain each
and every aspect and phrase.
3. The court cannot deny or discard the dying declaration only on the
ground of language.
In Biju Joseph v. State Of Kerala[14] it was observed by the court that only
ground that the statement of the deceased made was in her own language can
not reduce it value of the dying declaration. It was given by the High Court Of
Kerala:

“Presumed that the statement made by the deceased when he was dying
recorded in his language in which he has command or fluent, does not vitiate it
value and court can not denied or rejected on that basis. Judicial magistrate
entrusted with the duty to convert the statement in court language. And such
translation process would not affect the credibility that dying declaration”.
Multiple dying declarations
Supreme Court Of India in concern to multiple dying declarations, it can be
considered upon without corroboration if there is no breakdown of fact in all the
dying declaration. If all the dying declarations are similar to each other and
state correctly the cause of death, and there is no contradiction between the
statement it can be admissible But if the dying declaration is different from each
other and there is a contradiction between them, then court will cross-examine
the facts of the case or can examine the statements of other witnesses to
determine the truth and sanctity of statement regarding the case.

The statement of the deceased should match the facts and circumstances of the
case. It is very important to understand the character of multiple dying
declarations. Points to be considered in multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the
court will examine the facts of the case with the dying declaration Or
examine the witnesses.
In Kushal Rao v state of Bombay[15] that case Court set the importance rules
for dying declaration and what is the right process or manner to record it. In
this case, if the dying statement made by the deceased. That it should be
recorded in the form of question answer form, shall be endorsed/supported by
the doctor that the deceased was in good mental state, can be recorded by the
person who is legally entitled to record, if there are multiple dying declarations
than it should be consistent, so that the court can rely on it.

The Supreme Court has held that multiple dying declarations can be reliable
when it made without corroboration if consistency is maintained throughout the
statement. Otherwise, the courts would have to cross-examine the statements
of other witnesses to determine the truth in a criminal trial.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of death.
Evidence Act has taken this law from English law. If the statement has been
made even when no cause of death had arisen then also the statement will be
relevant. It is not important at all that the statement recorded should be just
before the death of the victim.

In Pakala Narayan Swami v Emperor[16], it was held that the letter given by
the deceased to his wife before going to the place where he was killed was
relevant. The court said that the statement made must be at any rate near
death or the circumstances of the transaction explaining his death is relevant
under section 32 of Evidence Act. In this case, the court stated that dying
declaration can be any statement that explains the cause of death or the
circumstances of the transaction explaining his death. Hence, statements as to
any of the circumstances of the transaction which resulted in the death would
be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and stating
that his life was in danger, it is relevant to be recorded as circumstantial dying
declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court
Of India observed that statement made by injured person recorded as FIR can
be deemed as dying declaration and such declaration is admissible under
Section 32 of Indian Evidence Act. It was also observed by the court that dying
declaration must not shows the whole incident or narrate the case history.
Corroboration is not necessary in this situation, Dying declaration can be
declared as the exclusive evidence for the purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the question
arises that after the dying declaration was recorded and the deceased is still
alive, was the statement holds the same effect. In that situation, the deceased
now turned to be a witness against the accused to narrate what the actual story
was. As the dying declaration itself mentioned the word dying, so it is necessary
that there must be an expectation of death on the part of the declarant.

Criticism of dying declaration doctrine

Since the nineteenth century, critics have questioned the credibility of dying
declarations. In a state court case, the Wisconsin Supreme Court considered the
issue of a dying declaration. The defense pointed out that “this kind of evidence
is not regarded with favor.” The defense argued that several factors could
undermine the reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire

of self-vindication, or a disposition to impute the responsibility for a wrong to
another, as well as the fact that the declarations are made in the absence of the
accused, and often in response to leading questions and direct suggestions, and
with no opportunity for cross-examination: all these considerations conspire to
render such declarations a dangerous kind of evidence.
Dying Declaration in India
Dying declarations are admissible as evidence in Indian courts if the dying
person is conscious of his or her danger, he or she has given up some hope of
recovery, the death of the dying person is the subject for the changing nature of
the dying declaration, and if the dying person was capable of to justify a sense
of accountability to his or her Maker.

Distinction between Indian and English law

The distinction between English law and Indian law on the subject of dying
declaration has been elaborately dealt in the case of Rajindra Kumara v.
State[17] Under English law, the essentials of a dying declaration are as
follows:

1. The declarant should have been in actual danger of death at the time
when they were made the dying declaration.
2. He should have had a full apprehension of his death is near.
3. Death should have ensued.
These conditions must be proved for the satisfaction of the judge before
considered it as a dying declaration than it can be received. Both in England and
America, dying declaration is not admissible as evidence whether any civil cases
or in criminal cases; it is not admissible upon charges other than homicide, or
as to homicides other than that of the declarant.

However, these conditions are not provided in Section-32 Of the Indian

Evidence Act. It is not required for a declarant to be in expectation of actual
death while making such a declaration nor is it restricted in the cases of
homicide. Because of this structure, it becomes increasingly necessary to know
that the dying person speaks the truth because if he does not die than still
declaration can be used as evidence against the accused. Moreover, dying
declaration can be considered as relevant evidence in both criminal and civil
proceedings, whenever the cause of his or her death comes into question.

Requirements of dying declaration

According to section 32 clause (1) of Indian Evidence Act, the requirement of
dying declaration is as follows:

1. The statement made by the deceased may be oral or written. But in

some cases it can be made with sign and gesture depends on the
condition of the deceased
2. The statement must be as:
  Cause of death- when the statement is made by the person as to the
cause of his death or as to any of the circumstances of the transaction
which was the reason for his death not cover all the incident which are
not relevant in order to determine the cause
 Circumstances of the transaction- the statement made by the deceased
is only related to the circumstances of the transaction will result in the
death of the deceased, remoteness or having no nexus which can not
be connected with the transaction have no value.
 Resulted in the death- the deceased statement should have the cause
and circumstances that will clearly   reason for his death or ultimately
result in his death.

Pakala Narain Swami v. Emperor Case 

The deceased was a man of about 40. He had been a peon in the dewan of
Pithapur. Pakala Narain Swami, the accused, was married to one of the
daughters of dewan of pithapur. After marriage pakalana narain swami and his
wife went to live at Berhampur about 250miles away from pithapur. In the year
of 1993, they came back to pithapur and where they stayed with the dewan.
They seemed at that time to have been in need of money, and during 1936 the
wife of the accused borrowed money from the deceased at various times an
amount of Rs. 3,000. On Saturday 18th March 1937, the deceased received a
letter from the accused inviting him to come that day or the next day to
Berhampur. The deceased left his house in order to go there and catch the train
of Berhampur. He did not come back. On 23rd March 1937, the body of the
deceased was found in steel trunk in the third class compartment at puri. The
body has been cut into seven portions. The body of the deceased was identified
by his widow. The accused was tried and convicted for murder and was
sentenced to death.

During the trial, the widow of the deceased stated before the court that on the
day her husband showed her a letter and said that he was going to Berhampur
as the appellant’s wife had written to him to come and receive payment of his
dues.

The lordship of the privy council held that the statement related to the
circumstances of the transaction which resulted in the death of the deceased so
it was relevant. They also held that the statement made by the deceased that
he was proceeding to the spot where he was killed or as to his reason for
proceeding or that he was going to meet him would each of them be
circumstances of the transaction. However, circumstances must have some
proximate relation to the actual cause and must be related to the transaction
which resulted in death. For instance, in case of prolonged poisoning, they may
be related to date at the considerable distance from the date of the actual fatal
date. It is not necessary that there should be a known transaction other than
the death of the declarant has ultimately been caused comes into question. In
the present case the cause of death comes into question, the transaction is one
in which the deceased was murdered on 21th march or22nd march, the
statement that he was setting out the place where the accused lived and to
meet a person, the wife of the accused, who lived together with the accused’s
appears to be clear statement as of some transaction which resulted in his
death.

Note: This case is important to be discussed here, as earlier in the

article it was stated that the deceased can make a statement by sign
and gesture or there are some circumstances that reflect the cause of
the death and transaction of the situation collateral to it. In that case,
the statement made by the deceased hold   strong basis for conviction.

Dying declaration Case laws and landmark Judgments

1. Lakhan v. State of M.P.[18] in this case supreme court provides

that, when the condition is satisfied that the dying declaration made by
the deceased is true and can be relied upon, as the declarant is found
to be conscious and mentally fit while making the statement, and the
statement made by him proven to be voluntarily and no compulsion
was there while making the statement and can be put for the sole basis
of conviction. In that situation there is no need for corroboration is
necessary.
In case of multiple dying declarations consists which consist in the form of
irregular interval and contradict each other, dying declaration recorded by the
person who is entitled to record like magistrate then there is no doubt and can
be found to be reliable. But in circumstances where it was observed that the
statement made by the deceased is not voluntarily but due to some force or
compulsion, then the court raised suspicion on that dying declaration and Court
should re-examine the statement of witness and other facts in order to
determine the truth.

2. In the case of State of Punjab v. Parveen Kumar[19], the Supreme

Court set forth some measure to test the veracity in the case when
there is more than one dying statement. The court provides that there
must be a series of examinations in order to determine the truth. If the
statements provide different versions and do not couple with given
facts, then the court must opt for other evidence in their record to
clarify the things so that truth can be inferred. 
3. In the case of Sudhakar v. State of Madhya Pradesh[20], the
Supreme Court while deciding the issue of multiple dying declarations,
which varying from other statements and have no series related to
each other, this will raise a doubt in the eyes of court to whether the
 statement should be believed or not, in order to clear the issue the
Court has given some directions which help to guide while exercise the
judgment by court in such matters, examined.
The Court put forward the point that when multiple dying declarations made by
the declarant, if found either contradictory or are at variance and having no
nexus to each other to a large extent and narrate another version of the story,
then the test of common reasonableness would be applied while examining
which dying declaration is corroborated by circumstantial evidence. Further,
when the dying declaration was made the condition of the deceased at the time
of making of each declaration concerned, medical report of the deceased,
truthfulness of statements made by deceased, possibility of deceased being
tutored, are some of the points which would guide while exercise of judicial
function by court in such matters.

The Supreme Court also observed that the dying declaration is the

statement made when a person is at there bed end, as the word dying
declaration itself signifies its meaning. A person having a serious
apprehension of death and there shall be no chances for his survival. At
this point, the court assumed that whatever the statement made by the
declarant is purely true as the man will never meet his maker with a lie
on his lips and person will speak only truth.

4. Natha Shankar Mahajan v. State of Maharashtra [21] in this case

the supreme court ruled that if there is a doubt about the statement
made by the deceased, in that case, the gain will transfer to the
accused. As this is the correct Law preposition. Moreover on the other
was round if the statement found to be true and reliable ten it can be
used solely as the purpose of the convection.
5. The Supreme Court in the case of Surajdeo Oza v. State of
Bihar[22] does not give an affirmative answer to the question and
held that merely because the dying declaration is a brief statement it is
not to be discarded. On the contrary, the length of the statement itself
guarantees the truth.
The Court has to scrutinize the dying declaration carefully and examine each
and every sort of situation and must ensure that the declaration is not the result
of tottering prompting of imagination and the deceased had the opportunity to
observe and identify the accused and was in a fit state while making the dying
declaration.

Dying deposition
Dying deposition is almost a dying declaration. The main difference between
both is that the dying deposition is always recorded in the presence of a
magistrate. Whereas dying declaration can be recorded even by a normal
person, doctor and by a police officer.
A deposition is recorded when the lawyer of the accused is present and
magistrate record the dying declaration. But dying declaration has no such
conditions, but the evidentiary value will be more if the statement is recorded
by the magistrate. However, it can be recorded by the doctor or police officer
also.

Illustrations
1. A case where the deceased was given the statement to his father that I
inhale the poison because of my heartbreak and the same was
conveyed to the police and father of the deceased also said that the
deceased was conscious and in a fit state of mind and the same was
endorsed by the autopsy report. After that when the police investigate
the matter it was found to be true that the cause of his suicide is the
girl who used to aid and abet him to commit the suicide. Hence the
statement recorded by the normal person(father) has admissible in a
court of law. This is the example of dying declaration. 
2. In a case where a woman is burnt by his father-in-law. And the woman
was admitted to the hospital by the neighbour and when the police
were informed about the matter they came to rely on the statement of
the deceased but the doctor tells them that the deceased is not in a
position to answer the question. After 2nd and 3rd day when the
woman is in better condition and subsequently magistrate was
available to record the dying statement and the accused lawyer was
also there. The statement is recorded and this is called dying
deposition.

Comparison Between Dyeing & deposition declaration

Basis Dying declaration Dying deposition

While here, administering oath

Oath Here, the oath is not administered.
is important.

Cross- Here, cross-examination is not But here, the witness can be

examination allowed. cross-examined by the lawyer.

The dying declaration can be

Whereas, it can be recorded by
Recorded by recorded by a normal person,
the magistrate in the presence
whom doctor, police officer and by the
of accused or by his lawyer.
magistrate.
 There is no such provision of
Applicability It is applicable in India.
dying deposition.

It   superior and has more value

Value It has less value.
than the dying declaration.

Identification through dying declaration

The conviction can be based on the statement made by the deceased, and the
identity of the accused must be established by it. It should contain the same
parentage and address of the accused. But if there is no corroborative evidence
to prove identity, the conviction is possible and this was established by the
Court in the case of Pritam Singh v. State of U.P[23]. However, there is no
particular form which is dying declaration identified and admissible as evidence
in a court of law in a case the Supreme Court held that only the Crux is
important or relevant to determine what actually happened. For instance, if
someone stabbed a deceased then the crux of this is, who stabbed him and
why, and the rest are the complementary things.

Absence of medical statement of fitness

It is only a rule of caution. Normally, the Court places reliance on the medical
evidence for reaching the conclusion whether the person making the dying
declaration was in a fit state of mind but where the person recording the
statement of the deceased stated that the deceased was in a fit state of mind
and conscious, the medical opinion will not prevail nor can it be said that there
being no certificate of the doctor as to the fitness of the mind of the declarant,
the dying declaration is not acceptable. A certificate from the doctor is
essentially the rule of caution. Where the testimony of the magistrate is to the
effect that the declarant was fit to make the statement, it can be acted upon
without there being a certificate of the doctor provided that the court ultimately
held the same to be voluntary and truthful.

When there was no certificate of doctor about the fitness of the deceased
making dying declaration before the investigating officer but the doctor was
present at the time of making dying declaration and thumb-impression of the
deceased was attested by him, holding that there could not have been any
attestation of such document was technically held to be too wrong.

Where the eye-witnesses stated that the deceased was in a fit and conscious
state to make the declaration, the medical opinion will not prevail, nor can it be
said that since there is no certification of the doctor as to the mind of the
declarant, the dying declaration is not acceptable. A dying declaration may
be reliable without obtaining a certificate of endorsement by the doctor.
Statement is not relevant to the cause of the death
The dying declaration is a statement made by a person to the cause of his death
or as to any of the circumstances of the transaction which resulted in his death
and such details which fall outside the ambit of this are not strictly within the
permissible limits laid down by section 32(1) of the evidence act and unless
absolutely necessary  to make the statement coherent or complete should not
be included in the statement. Where the dying declaration is set to be a long
written document and tell about the number of incidents in a narrative form and
talk about what happened before the actual resort, such long statement being
more in the nature of first information reports than recitals of the cause of
death or circumstances resulting in it, are likely to give the impression of their
being not genuine or not having made unaided without prompting.

When the dying declaration made by the deceased is not coupled with the
transaction of consequences which results in the death of the deceased or the
statement made regarding the fact which has no nexus or connection with it or
in other words having no remote reference to the death of the deceased, it
would not be admissible under Indian evidence act.

In the case of Bhairon Singh v. State of M.P.[24] the body of the deceased lady
was found in a well of the village. The cause of the death asphyxia due to
drowning. She was married to accused about 10 years before the death of the
incident take place. The trial court held that the incident took place accidentally.
And the presumption of her dying declaration does not attract section 113-A
and 113-B of Indian evidence act and the accused set free under section 304-B
and 306 of the IPC.

But later on, the trial court held the accused guilty under section 498-A of IPC
and section 3 of the dowry prohibition act,1961 and gives the punishment to
accused of rigorous imprisonment for three years along with the fine of Rs.
15000. 

Again high court made changes in the judgment and accused convicted under
section 498-A of IPC, the changes were the cause of the statement given by her
brother that his sister(deceased) told him that the accused used him to force
her as he wanted that her brother arranged a job for him and also demanded
for dowry for her of Rs 1lakh. On the deposition brother of the deceased stated
that the accused by putting a cloth in her mouth(deceased) beating him for
dowry. 

Medical report
Medical reports are those reports which are provided by the doctor usually in
criminal cases, they are admitted as evidence in a court of law when a doctor
provides oral evidence while taking the oath. The report includes the mental
condition, fitness of the disease whether he is able to give the statement or not.
And sometimes forensic and autopsy reports also clarify that the deceased was
saying right in his dying declaration. For example, there was a case in which the
mother of the deceased, when hearing the cry of her son immediately reached
to their room, where the deceased made the dying declaration in front of his
mother that he was in love with some girl and she left her and due to this he
commits the suicide. The time to reach in his room was estimated by the police
in their investigation was about 2 minutes.

Here the question comes that if the mother was really saying the truth about
the declaration as there was no one when the deceased was making the
statement, the absence of medical fitness will remain in the dark. But the
autopsy report conferred that decrease is the condition to survive for 6-8
minutes. So that the mother statement can be admissible in a court of law. In
that perspective the role of medical report become crucial and if sometimes, if
there is a plotting in dying declaration (which rarely happens as the law
presumed that no one meet his maker with a lie on his lips) the report may
contract the statement which creates the sense of suspicion and the statement
made by the deceased can not be regarded as the sole base for the conviction.
But the medical report did not discard the statement on the basis of the report
in which it was stated that the nature of injuries sustained by the deceased.
Moreover, if the medical report states the fitness of the deceased while taking
the statement of the deceased by magistrate then there is no need for a
separate test of fitness by the magistrate. 

Doctor statement
It is necessary that the dying declaration recorded by a magistrate should be
endorsed by the doctor, as it gains more evidentiary value. But there are many
situations when the statement is recorded by the doctor as due to
circumstantial reasons and unavailability of magistrate. So the statement of
doctor is regarded to be true and being a doctor, he understands about the
condition of the deceased whether the deceased is able to make dying
declaration or not. In the case where a burnt wife had been admitted in the
hospital and the doctor who operates her, disclose the fact that the husband of
her pour kerosene oil and set ablaze to her. At this point, the doctor records the
statement point by point. Later on, it was found that records are also in favour
and did not contradict the statement made by the deceased. The court held that
the doctor has no other motive to make a false statement and the value of
statement recorded by the doctor is admissible. But the statement made by the
doctor is proven more relevant when there is an eye witness in order to endorse
that particular dying declaration.
Dowry death, wife burning
When there is a situation after the three or four months of the marriage, where
the wife is burnt by her husband or husband relatives for dowry purposes or for
monetary gain. And in relation to this, she expressing the danger and threat to
her life is somehow the expression which depicts the circumstance which leads
to the death of the deceased. But when there is a contradiction found in the
statement by the deceased, it would raise the presumption of suspicion and
decrease its value as evidence. In case where wife by way of plotting set ablaze
to her and when she was admitted to hospital, where she made the statement
that her husband set on fire to her after some point of time it was discovered in
the police investigation that the children of the deceased state that their father
will never do this kind of act, moreover they also said that the deceased was
tried for committing suicide earlier. And police also found that the relation
between the husband and wife is not good. And deceased also think that her
husband had some extramarital affair. All the facts show that there was a
motive to lie. So the court held the dying declaration to be falsehood and set
aside the conviction. And the court has reason to believe, as the person who
took the deceased to the hospital was none other than her husband.

Evidentiary value of dying declaration

In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the court
that the evidentiary value of dying declaration made by the deceased:

There is no doubt that the dying declaration is admissible in court under section
32(1) of the Indian Evidence Act. and there is no compulsion while making of
dying declaration to take an oath, but the truth of the statement can be
determined by the cross-examination. The court has to ascertain necessary
measures to check the sanctity of the statement made by the deceased. As in
India law, it was presumed that the man who is going to die, not meet his
maker with a lie on his lips this is because, when the person is at his bed end all
the desire and greed of person come to an end so probably there is no motive
to lie. After that, the court must be satisfied with the condition that the
deceased must be in a fit state of mind while making the statement. After all
the measures assured by the court and satisfied that the statement is made
voluntarily and true then it will be sufficient to accept the statement to finding
conviction even without the corroboration.

In Khushal Rao v. State of Bombay[26] Apex Court laid down the following
principles related to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated. A true & voluntary declaration needs no
corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

(iii) Each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence
& has to be judged in the light of surrounding circumstances & with reference to
the principle governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in

the proper manner, that is to say, in the form of questions and answers, &, as
far as practicable in the words of the maker of the declaration stands on a much
higher footing than a dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human memory & human character.

Exception of dying declaration

There are many circumstances in which the statement made by the dying
person is not admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death of the

deceased. For example, if a person in his declaration state anything
which is not remote or having a connection with the cause of death
than the statement is not relevant and hence not be admissible.
2. The declarant must be competent to give a dying declaration, if the
declaration is made by the child then the statement will not be
admissible in court as it was observed in case of Amar Singh v. State
of M.P[27] that without the proof of mental fitness and physical fitness
the statement would not be considered reliable.
3. The statement which is inconsistent has no value and can not be
considered as evidentiary in nature.
4. The statement made by the deceased should be free from any
influential pressure and should be made spontaneous.
5. It is perfectly allowed to the court if they reject any untrue statement
which contradicting in nature.
6. If the statement is incomplete in the sense which means it can not
answer the relevant questions which are necessary to found guilty, and
on the counterpart, statement deliver nothing so it will not be deemed
to consider.
 7. Doctor’s opinion and the medical certificate should with the statement
and support that the deceased is capable of understanding what
statement he makes.
8. If the statement is not according to the prosecution. In this regard, the
following points should be taken into consideration by the apex court.

 While making the statement deceased must be in fit mind of the state.
 Should be recorded by the magistrate or by a police officer and  
person in a case when deceased was so precarious
 A dying declaration should be recorded in question-answer form and
written in words of the persons exactly who gives the statement.

Dying Declaration should be free and spontaneous

Dying declaration due to compulsion or pressure not be relied upon whereas
dying declaration free from any biased relied upon. As it was held in the case
of Krishna Lal v. Jagun Nath that the wife was burnt by the husbands-in-law
and in her dying declaration she held that she was not burnt by her husbands-
in-law and she was believed.

Conclusion
The dying declaration is not specifically mentioned in our penal law under
Section 32(1) of IPC. it is the statement made by the person who is going to
die, and that statement will be considered as evidence in court, how his death
caused and who is the mugger. There are many conditions that relied upon the
dying declaration that it should be in an adequate manner as dying declaration
is the weapon who convicted the accused and stood as strong evidence. The
admissibility of dying declaration accepted in our Indian court because the law
presumes that in Leterm Mortem i.e in his last parting words the man will never
lie as anyone will meet his maker with a lie on his lips. This is because a man
who is going to die, end with all his needs and wants and his interest is no more
passionate for self deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court
has the right to reject the statement. Or there are other situations and
circumstances which coupled with dying declaration for its admissibility which
discussed above.

Or…………

Dying Declaration is of the utmost importance and the evidence as to it should

be exact and full as possible. The general rule is, 'hearsay evidence is no
evidence and is not admissible in evidence.' Section 32 and 33 of the Evidence
Act are among the Exceptions, as such dying Declaration is an exception to this
general rule.

Statement made by a person who cannot be called as Witness:

Section. 32 Cases in which statement of relevant fact by person who

is dead or cannot be found etc is relevant: Statements, written or verbal, of
relevant facts made by a person who is dead, or cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be produced
without an amount of delay or expense which under the circumstances of the
case appears to the court unreasonable, are themselves relevant facts in the
following cases.

When it relates to cause of death:

When the statement is made by a person as to the cause of his death,

or as to any of the circumstances of the transaction which resulted in his death,
in which cases the cause of that person's death comes into question.

Such statements are relevant whether the person who made them
was or was not, at the time when they made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his death
comes into question.

Following are the classes of person who cannot be called as witness under
section 32 and their statements allowed to be proved in their absence.
1) Person who is dead:

2) Person who cannot be found

3) Who has become incapable of giving evidence: or

4) Whose attendance cannot be produced without unreasonable delay or

expense?

Meaning and Definition:

"A dying declaration is a declaration written or verbal made by a person, as to

the cause of his death or as to any of the circumstances of the transaction,
which resulted in his death"

Illustration

Sam has been attacked by Anna. If Sam, shortly before death makes a
declaration holding Anna, responsible for his injuries, it is called "Dying
Declaration'.

Section 32(1) of The Indian Evidence Act defines,'dying declaration' as " a

statement verbal or written made by a person who is dead or cannot be found,
who has become incapable of giving evidence or whose attendance cannot be
procured without an amount of delay or expense, which under the circumstance
of the case, appears to the court unreasonable, are themselves relevant facts in
the following cases.

a) When it relates to cause of death

b) When it is made in course of business; or

c) Against the interest of maker; or

d) Gives opinion as to public right or custom or matters of general interest; or

e) Relates to existence of relationship; or

f) When it is made in will or deed relating to the family affairs; or

g) In document relating to transaction mentioned in section 13(a);

h) When it is made by several persons and expresses feeling relevant to matter in question

      In short according to Section 32(1), “Dying declaration is a statement oral or written made
by a person who is dead or cannot be found or incapable of giving evidence or whose attendance
involves delay or expensive under the circumstances stated above, which the court considers
reasonable “. 

            Before such statements are admitted in evidence, it must be proved that who made the statement
is dead and gone and therefore cannot appear before the court unless this fact is proved, the statement is
not admissible. When the statement is admitted under any of the clause of this section, it is substantive
evidence and has to be considered along with other evidence. Dying declaration is an exception to the
general rules as to relevancy of fact. The relevancy of fact provides that the statement made by witness in
connection of fact or fact in issue are relevant but under Section 32 a statement made under certain
circumstances become relevant , even though person is not called as a witness before the court.  Dying
declaration in fact is a surviving declaration. Declarant died and statement survives. It is declaration of a
dead person.

The Conditions in this Section are: 

   1) It must be a statement, written or verbal

    2) The person making statement must have died.

    3) The statement relate to the cause of his death or the circumstances of the transaction which related in
his death and not the cause of the death of someone else.

    4) The cause of the person's death must be in question.

5) The person making statement must be in a fit condition to make the statement.

    6) The statement must be competent

     7) Declaration must be competent

Reasons For admissibility of dying declaration:

    Dying declaration is admissible for the following two reasons....

1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.

2) Declaration made by a person under exception of death is presumed to be true.

 Merits of Dying Declaration:

1) There is heavy conscience -, therefore law presume that there is a possibility of true statement as to
the cause of his death. It has moral and religious aspect behind it because a person who is on the bed of
death, about to die generally speaks true, so as to attain spiritual benefits in other world. This is relative
element, which changes from person to person, personality and mentality person making Dying Declaration.
So a person who is about to die, tells the truth and truth only is a half truth as in case of harden criminals.
So it is the personality, circumstances and the character of the person making Dying Declaration that
decides the relevancy of Dying Declaration.

2) There is no reason to implicate wrong person: 

                        The person making Dying Declaration and mentioning in the name of the person
responsible who has caused injuries to him which are likely to result in his death, generally will not implicate
in a wrong person who is not at all responsible for such injuries.

3) There is no reason why he will avoid the name of the person who is responsible for his death and
his worst enemy in his life. It is more logical and realistic concept because person who is on the bed of
Death will not implicate the name of wrong person for the cause of his death, but he will not allow his
enemy to go unpunished who is responsible for his death.

Infirmities/ Defects of Dying Declaration:   

1) There is no oath administered: 

                    When a person is called as witness in the Court he has to make a statement on oath. This is to
have his inner conscience say truth and truth only. Law presume and expect person to state the truth.  This
is the theoretical aspect as it may be correct theoretically but not practically.

2)  There is no cross-examination of such person making Dying Declaration:

The need of cross-examination is to judge the credibility of the witness. It is the right of Defense Council.
Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or defense
council have no opportunity of cross-examination of the witness who is dead.

3) Witness is not present before the Court: 

                     Behavior, manner of answering the question of witness before the Court is a vital aspect in
law because it gives opportunity to the judges to judge the character, personality of the witness this
element is absent in dying declaration and hence it is not accepted as a rule

 Evidentiary Value of Dying Declaration:

              The evidentiary value of dying declaration will vary according to the circumstances of a particular
case in which it is made
              Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other
evidence for example other facts and evidence supporting Dying Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty
of the judge to consider the valuation of Dying Declaration. Such valuation of Dying Declaration depends
upon many things as under

1) State of mind of declarant.

2) State of the body of declarant.

3) To whom the Declaration/Statement is made.

4) Who recorded the statement?

5)  Whether the statement is recorded in the same language and in a same word of the declarant. Even
though Dying Declaration is said to be of weak piece of evidence it is relevant in the Indian Evidence Act,
because it is the best available evidence as to the cause of his death after his death.
11. Conduct and Character of Parties (Sections 52 to55).
Introduction 
We often term the habit of judging people based on their character as normal
human nature. Judges are also human beings and the question that arises
is, doesn’t to know about the character of an individual influence their decision?
The next set of questions that arise are, does the character have relevance,
especially under the Indian Evidence Act? What is the scope of relevance of
character? Answers to all these questions a re the takeaway from this article.

The word ‘Character’

The term ‘character’ has not been described in Indian law. The Cambridge
dictionary defines conduct as a particular combination of qualities that make a
person different from others. Honesty, good-natured, modest, violent temper,
etc. are all traits of character.

Section 55 of the Indian Evidence Act provides that the term ‘conduct’ includes
both reputation and disposition. It is normally established that reputation is the
general opinion about an individual in the eyes of the others whereas disposition
is how that person is in real and what are his inherent qualities.

Evidence of character is irrelevant in civil cases

Section 52
Section 52 of the Indian Evidence Act provides that in civil cases, a fact
pertaining to the character of an individual is not relevant. It lays the principle
that the character of a party as a piece of evidence can’t be used to manifest
that conduct attributed to him is probable or improbable. 

Illustration- 

 ‘A’, a businessman is charged with fraud. 

 In this case, no evidence of the fact can be treated as relevant which
states that he is an honest man i.e. the character is such that he can
never commit fraud.
 Neither can the opposite party present evidence of the fact that A’s
character had been so trickery that he must have committed the fraud.
The reasons behind the irrelevance are that a case has to be decided based on
the facts of the case and not the character of the parties. Evidence of conduct
doesn’t just delay the proceedings but also hampers and impairs the mind of
the judge. In civil cases, previous convictions of the accused person are
irrelevant.

There are a few exceptions to Section 52-

 Section 55 of the Evidence Act provides that in civil cases, evidence of

the good or bad character of the person that is to receive the amount
of damages is relevant. The character of the original plaintiff is
relevant. 
For example- In a case of the action of damages for rape or seduction, the
character of the plaintiff is relevant as it is likely to affect the damages that the
plaintiff ought to receive.

 When the character of the party is itself a fact in issue then the
evidence pertaining to the character of that party is relevant.  
For example- if divorce is sought on the ground of cruelty of husband, in such
case evidence pertaining to the character of the husband will be relevant as the
cruel character is itself a fact in issue.

In the case of Scott v. Sampson, the court held that the term ‘character’ should
mean a man’s reputation and nothing more than “general evidence of
reputation”.

Evidence of previous good character is relevant in criminal cases 

Section 53
Unlike civil cases where the character is irrelevant, in criminal cases it is
relevant. Section 53 of The Indian Evidence Act provides that in criminal cases,
the good character of the accused person is relevant. The reason behind this is
the basic human psychology that a person of good character will not generally
resort to a criminal act. If goodness is proved it helps in a presumption of non-
commission of the offence by that individual. 

Evidence of good character is always admissible. In a doubtful case, it may be

used to tilt the balance in favour of the accused but in a case where there is
positive evidence of guilt of the accused then the good character cannot
outweigh the positive evidence. It depends on the discretion of the court that
how much weight the evidence of the good character has to be given while
deciding the case.

In the case of Habeeb Mohammad v. State of Hyderabad, the Supreme Court

held that in criminal proceedings, the character of the accused can help in
determining the innocence or guilt of the accused. It can help in either making
him suspicious or free from all the suspicions. Accused is allowed to prove
general good character in the question of punishment.

Evidence of character or previous sexual experience not relevant in certain

cases  

Section 53A
Section 53A of the Indian Evidence Act was inserted by Act 13 of 2013. This
section provides that in cases where the offence is committed under the
following sections of Indian Penal Code-

 Section 354 (Assault or criminal force to woman with intent to outrage

her modesty), 
 Section 354A (Sexual harassment and punishment for sexual
harassment), 
 Section 354 B (Assault or use of criminal force to woman with intent to
disrobe),
 Section 354 C (Voyeurism),
 Section 354 D (Stalking), 
 Section 376 (Rape), 
 Section 376 A (Intercourse by a man with his wife during separation), 
 Section 376 B (Intercourse by public servant with woman in his
custody), 
 Section 376 C (Intercourse by superintendent of jail, remand home,
etc.), 
 Section 376 D (Gang Rape), 
 Section 376 E (Punishment for repeat offenders) and,
 an attempt to commit such offences 
and the consent or quality of consent is in question, then neither the character
of the accused nor the victim is relevant. Evidence pertaining to previous sexual
acts of the victim is also irrelevant.

Previous bad character not relevant, except in Reply  

Section 54
According to Section 54 of the Indian Evidence Act, evidence pertaining to the
fact that the accused has a bad character is not relevant in criminal cases. In
other words, the prosecution cannot present evidence of the accused’s bad
character as a part of the main case. 

There are certain exceptions to this section-

 When the accused has submitted any evidence of his good character,
in such a case to rebut, the prosecution can present evidence
pertaining to the bad character of the accused.
 Explanation 1 to Section 54 provides that when the character is itself a
fact in issue then evidence of bad character can be submitted. 
Illustration: In a defamation case, the character of the plaintiff becomes a fact
in issue. Section 110 of the Code of Criminal Procedure provides that if a person
is by habit a robber, a housebreaker, etc. then he is to be bound down.

In the case of B. Vasanthi v. Bakthavatchalu, the characters of both the plaintiff
and the defendant were facts in issue and the court considered evidence of the
character of both to decide in the best interest, the custody of the children.  

Bad character isn’t defined in Indian law but it amounts to the general meaning
as interpreted by the society. Explanation 2 of section 54 provides that evidence
showing any previous conviction is also relevant as evidence of bad character in
criminal cases. According to Section 71 of the Indian Penal Code, any person
who is already a previous convict should be sentenced a longer term of
imprisonment than that is awarded ordinarily.   

Character as affecting Damages: Section 55

Section 55 of the Indian Evidence Act states that in cases of civil nature, the
character of the person who is ought to receive the amount of damages is
relevant. This section is an exception to Section 52 mentioned above. The
evidence pertaining to the good or bad character of the accused is irrelevant
whereas evidence of the good or bad character of the victim is relevant.
For instance, in cases of seduction or rape or defamation, the evidence of the
good or bad character of the original plaintiff is relevant to decide the amount of
damages that the plaintiff is ought to receive. This is generally used to reduce
the amount of damages. 

Explanation of this section states that the term character which is used in
sections 52, 53, 54 and 55 includes both reputation and disposition.

 Disposition is often referred to as what a person is in a person’s reality.

A person’s inherent qualities which he had obtained through education,
upbringing or any material condition in life is called disposition. A bad
reputed person may have a good disposition.
 Reputation is often referred to as the general estimation of a person. It
is what other people think about that individual. It is to be noted the
evidence of those who do not know the individual but have heard of his
reputation is not admissible in court.
Illustration: In the show ‘Suits’, the character Harvey Specter had a reputation
of an arrogant and selfish individual whereas he had a disposition of a highly
confident, self-motivated, practical thinker and focused individual. Both of these
things combinedly defined the character of Harvey Specter.

Distinction Between Relevancy of character in Criminal and Civil Cases 

In order to differentiate the first thing to note is that the Indian Evidence Act
talks about two types of characters- good and bad character. 

In cases of civil nature, the evidence pertaining to character is irrelevant as per

Section 52 of the Evidence Act. There are two exceptions to this rule: first,
when the character of the party is a fact in issue then evidence of character is
relevant and second, the character of the person who ought to receive the
amount of damage is relevant(Section 55). 

Whereas in cases of criminal nature, the previous good character of the accused
person is relevant(section 53) but the previous bad character is not
relevant(section 54). Evidence of the bad character of the accused is relevant in
two cases: first, to rebut the evidence of good character presented by the
prosecution and second, when the character of the party is itself a fact in issue.
Case laws

 Bharpur Singh v. Parshotam Dass on 2

November 2015
In this case, the Court described the scope of sections 52 and 54 of the Indian
Evidence Act. This case was filed to resist an action for recovery brought on a
promissory note. While deciding the scope of Section 52, the Court observed
that this section refers to a situation where evidence of character is relevant in
a civil case. Normally any evidence of character cannot render the probability or
improbability of any conduct and is irrelevant in civil cases. If the character is a
fact in issue then evidence of character is relevant. 

Section 54 observed that previous bad character can be relevant only in case of
rebuttal to good character evidence or when the character is a fact in issue.

 Sardar Sardul Singh Caveeshar v. State Of

Maharashtra on 18 March 1963
This case is also referred to as the Empire Conspiracy Case. The Court answered
the question of what is the evidentiary value of the character of an accused in a
criminal case. It observed that Section 53 mentions that the good character of
the accused is relevant in cases of criminal nature. 

Section 55 of the Act makes it clear that general reputation and general
disposition in criminal cases are relevant. The Court also explained the
difference between reputation and disposition. It stated that disposition is
‘inherent qualities of a person’ whereas reputation is ‘general credit of the
person amongst the public’. A man may have a good reputation but in reality,
may have a bad disposition. The value of evidence depends on the cleverness of
the person to hide his real traits, and the witness’s opportunity to observe the
accused. 

The court quoted Wigmore’s proposition which stated that evidence can be used
in a doubtful case to tilt in favour of the accused but it can’t outweigh a piece of
evidence which shows the guilt of the accused. Evidence of good character is a
weak evidence but can be used in criminal cases.
Conclusion 
It is concluded that according to the Indian Evidence Act, in civil cases, the
evidence pertaining to character isn’t relevant subject to certain exceptions. In
criminal cases, the evidence pertaining to good character is relevant but
evidence depicting the bad character isn’t relevant subject to certain
exceptions. Various countries like the USA, UK and many more also deal with
the relevance of character as evidence.

12. Principle of Estoppels.

        Part III , Chapter VII containing Section 115 to 117 of the Indian Evidence Act 1872 , lay down the
provisions relating to the "doctrine of Estoppel" Section 115 embodies the principle of Estoppels.
  
Meaning and Definition: 

              The expression 'Estoppel' is derived from the French word 'Estoup' which means, 'shut the mouth".
When a person by declaration (act or omission) makes/ induces another to believe a thing, cannot deny its
truth subsequently. The other person cannot be estopped from proceeding upon such declaration.

     Estoppel is rule of evidence, by which a person is not allowed to plead the contrary of a fact or state of
things, which he formally asserted as existing. 
 

Section 115 of the Indian Evidence Act, 1872 embodies the Principle of Estoppel, as Follows....

 When one person has by his declaration, act or omission, intentionally caused or permitted another person
to believe a thing to be true and to act upon such belied, neither he nor his representative shall be allowed,
in any suit or proceeding between himself and such person or his representative, to deny the truth of that
thing.

Illustration: 

              'A' intentionally and falsely leads 'B' to believe that certain land belongs to 'A' and thereby induces
'B' to buy and pay for it.

              The land afterwards becomes the property of ’A’ and A seeks to set aside the sale on the ground
that, at the time of the sale, He had no title. He must not be allowed to prove his want of title.

              The principle of Estoppel says that a man cannot approbate and reprobate, or that a man cannot
blow hot and cold, or, again that a man shall not say one thing at one time and later on say a different
thing.
Kinds of Estoppel:

The Principle of Estoppel is classified under three heads in English Law: 

i) Estoppel by Record

ii)  Estoppel by Deed

iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, Estoppel in pais)

i) Estoppel by Record:

            Estoppel by record arises in a case where a judgment has been given by a competent court, and the
effect of it is that the matters decided cannot be reopened by a person who is a party to the judgment or his
representative. We do not use this rule in India but rely upon the principle of Res Judicata to get the same
effect. (See also...Difference between Estoppel and Res Judicata)

                  
ii)  Estoppel by Deed

        Estoppel by deed also does not obtain in India. English law attaches a particular importance to deeds,
with the result that if a person makes a statement in a deed he cannot say the opposite of it later. It means
when a person enters into an agreement, and his statement is furnished therein, he shall not be permitted
to deny his statement.

iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, estoppel in pais)

       When a person, by acts or words or deeds, induces another person to believe the existence of things
and make him to act upon it he (for example - the person who induced another) is estopped from denying
the existence of such facts.

Other kinds of estoppel  

a) Constructive estoppel:

     This phrase is a really used, and it is submitted that it is wrongly used. The adjective "constructive" is
used in cases where the true state of affairs is different from what is construed to be. For example, under
the Transfer of Property Act, registration of a document operates as constructive notice of its contents.  A
man may really know nothing of the document or its contents, but because it is registered, it is construed as
if everyone has such knowledge - because if one wanted to have such knowledge he could obtain it.  The
adjective is inappropriate when used with Estoppel. Either the conditions of Estoppel are present in which
case the principle operates, or they are not present and the principal will not operate.

b) Estoppel by election

           This arises in cases where there is a plurality of gifts or rights which are inconsistent or alternative
and the party who makes the gifts or creates the rights, shows by and express or implied intention that the
person taking the gift or claiming the right should enjoy one of them, but not both of them. Having made his
choice, the person choosing cannot go back upon it and later attempt to choose the other.
It also rises in cases where a person cannot approbate or reprobate under the same instrument.

c) Estoppel by silence:

       Such Estoppel arises only when there is a duty to speak or disclose

If A and B are parties to a litigation and A contends that B is estopped from raising a particular plea and B,
in his turn, contends that A is estopped from raising another plea, and each establishes a case for the
application of the principle of Estoppel, then it is as if the two estoppels cannot out, and the court will have
to proceed as if there is no such plea on either side.
Relevant Case Law: 

Sarat Chandar Dey vs Gopal Chandra Laha (1892) 19 IA 203.

           A widow was holding property under a hibanama (hiba-bil-ewaz) executed by her husband in her
favour.  She mortgaged the property. During the transaction, her son acted on her behalf under a power of
attorney. He has signed the mortgage on her behalf and in her name and received the money from the
mortgagee. The mortgagee filed a suit on his mortgage and in the execution of a decree, the Appellant and
purchased the property. Meanwhile, the son claiming to the owner of the property had sold a part of it to the
respondent and the respondent filed a suit for partition and possession of the part purchased by him. The
Appellant set up the widow's title to the property and also that is if the Hibanama was ineffective her son
was estopped from denying her title under Section 115.

Satnam Gowda vs Beherampur University 1990 SC 107 1990 (3) SCC 23.

           In this case the Appellant, a student was admitted to law course at Ganjam Law College. There was
no dispute that at the time of admission he had submitted his marksheet. He studied for 2 years and was
admitted to final year course. His result of Pre-law and intermediate examinations watch withheld on the
ground that he was ineligible for admission as he secured 39.5% marks in M.A. examination Overruling the
High Court decision, the Supreme Court held that Estoppel would apply. The Court also pointed out that
there was the requirement of minimum marks 40% of marks for graduates only. There was no requirements
of any percentage of marks for postgraduates. There was no Fraud or miss-representation on the part of the
candidate…………………………………………………………………………………………………………………………

Also>>>
1) Introduction Estoppel  - 

              The doctrine of Estoppel is based on the principle of equity. S.115, S.116 and S.117 of Indian
evidence Act deals with the provision doctrine Estoppel. It would be most inequitable and unjust if one
person is allowed to speak contrary to his earlier statement. As it would cause loss and injury to the person
who has acted on such statement.

2) Object- 
To Prevent commission of fraud against another.

3) Meaning of Estoppel -

   "  Estopped means stopped, which means a person is not allowed or permitted to speak
contrary to his earlier statement. "

4) Definition of Estoppel :
            S.115 of  the Indian evidence Act defined Estoppel as follows,

                " When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such person
or his representative, to deny the truth of that thing."

Illustration :

               'A' intentionally and falsely leads 'B' to believe that certain land belongs to A, and thereby induces
B to buy and pay for it.

       The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that,
at the time of the sale, he had no title. He must not be allowed to prove his want of title

5) Conditions for Application of Doctrine of Estoppel -

              For the application of the doctrine following conditions have to be satisfied -

1) There must be a representation made by one person to another person.

2) The representation must have been made as to fact and not as to law.

3) The representation must be as to an existing fact.

4) The representation must be intended to cause a belief in another.

5) The person to whom the representation is made must have acted upon that belief and must have suffered
a loss.

6 ) Provisions in Indian Evidence Act  As to Estoppel -

A) S.116.Estoppel of tenant and of license of person in possession

                
            No tenant of immovable property of person claiming through such tenant shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of
the tenancy, a title to such immovable property; and not person who came upon any immovable property by
the license of the person in possession thereof, shall be permitted to deny that such person has a title to
such possession at the time when such license was given.

            S.116 prevents and disables the tenant from denying the title of the landlord at the beginning. No
tenant in possession shall be permitted to challenge or question the title of landlord at the time of
commencement of Tenancy.  And no person who came upon any immovable property by the licence of the
person in possession thereof, shall be permitted to deny that such person had a title at the time when the
licence was given. Thus no licencee shall be permitted to question or challenge the grant or licence at the
time of granting the licence.

            In Kuldeep Singh vs Shrimati Balwant Kaur ,AIR 1991 P & H. 291, when the tenant become

wealthy of the property portion of which was let out to him, under the sale deed registered prior to one
registered in favour of other. denied by him of relationship of tenant and landlord between him and
subsequent vendor. It was held that tenancy right is not extinguished.

B) S.117 Estoppel of acceptor of bill of exchange, bailee or licensee

               No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw
such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had,
at the time when the bailment or license commenced, authority to make such bailment or grant such
license.

Explanation (1)

             The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom
it purports to have been drawn.

Explanation (2)

              If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such
person had a right to them as against the bailor
7) Case law -

1) Rajesh Wadhwa vs Dr.(Mrs) Sushma Goyal AIR 1989 Delhi 144.

                In this case, the lease deed executed by land lady's father on behalf of the landlady. Eviction
petition by father under power of attorney of the landlady. The tenant was estopped from taking the plea
that the land lady's father was not duly constituted attorney to file the eviction petition.

2) Ambika Prasad Mohanty Vs Orissa Engineering College and others AIR1989 Orissa 173.

             In this case, the plea was against cancellation of admission of student admitted in private
Engineering College after the selection. The cancellation of his admission was on the ground that he had
secured minimum marks in the qualifying examination as prescribed in college prospectus. The university
regulation does not prescribe any minimum marks for eligibility for admission to the engineering college
estopped from canceling the admission.

8) Conclusion-

            The principle of estoppel is a rule which prevents a person from taking up the inconsistent position
from what he has pleaded or asserted earlier. The principle Estoppel is based on equity and good conscience
the object of this principle is to prevent for and to manifest good faith amongst the parties. only parties and
no stranger can take advantage of it. Estoppel is only a rule of law. It does not give rise to a cause of action.

Also refer other long notes-Ipleaders

13. Oral evidence

Introduction
All of us know what importance evidence holds under any court proceedings.
Evidence is a certain reliable and relevant set of facts which proves or abstains
from proving any matter; there is a prescribed manner on which the cycle of
evidence works which has been divided into two main heads- Oral and
Documentary evidence by the Evidence Act 1872. In this article we will be
dealing with oral evidence, how is it made and everything which will make us
understand Oral Evidence.
Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act,
1872. Oral evidence is defined under section 3 (under evidence head) which
explains that “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 as oral evidence.” The word ‘Oral’ itself describes its
meaning as something spoken or expressed by mouth; so anything which is
accepted in the court in relation to the inquiry and expressed by any witnesses
who are called in the trial is termed as oral evidence. Oral Evidence also
includes the statements made by people in signs and writing forms (inclusive of
people who cannot speak).     

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been
growing in regards to usage; as earlier it was not considered to be as precise
and blunt as documentary but its need and importance has been constantly
subjected to rapid growth. Oral evidence is also equally important as it
stimulates a person and extracts what a person has seen or what he wants to
say in regards to the trial. Oral evidence is comparatively easier to refer. The
importance has been explained by the Bombay High Court in one of the
cases that if the oral evidence is proved beyond reasonable doubt it can also be
enough for passing conviction.  

Section 59 – Proof of facts by Oral Evidence 

All the facts and circumstances may be proved by oral evidence by expressing
or speaking except the contents of documents and electronic records. The
contents of documents and electronic records cannot be proved by oral
evidence. It is held that if any person has to be called for proving their
documents then that document becomes oral and documentary evidence loses
its significance.

It was held in Bhima Tima Dhotre v. The pioneer chemical co. that

“Documentary evidence becomes meaningless if the writer has to be called in
every case to give oral evidence of its contents. If that were the position, it
would mean that, in the ultimate analysis, all evidence must be oral and that
oral evidence would virtually be the only kind of evidence recognised by law.
This provision would clearly indicate that to prove the contents of a document
by means of oral evidence would be a violation of that section.”

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If
any oral evidence needs to be admissible, all the conditions under Section 60 of
the Indian Evidence Act must be fulfilled. If anyone of the following conditions is
not fulfilled, then the evidence will fail to be pictured as an Oral Evidence. Oral
evidence and section 60 is a proportional equation. For acting out one, the other
needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is
taken into regards must be direct. The word direct does not include any
category of hearsay as its main element is vested in the word “must”. Every
statement under oral evidence must be direct. Now let’s focus on some
conditions which need to be fulfilled to make oral evidence admissible;

 Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not
considered a part of direct oral evidence. The word “Direct” in all matters must
mean that it is administered by any person on their own i.e through their
personal knowledge and is not passed by any other person (hearsay) which on
the other hand will be inadmissible. This involves certain cases in which the
word “direct” is involved :-

1. It refers to a fact which could be seen, it must be the evidence of a

witness who says he saw it –
It refers to evidence which has been given by the person who has actually seen
or observed the matter by their own eyes, This will be actuated as direct
evidence.For example: if A saw that B is hitting C. A will be an eyewitness to
the crime scene and his testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a

witness who says he heard it – 
It refers to evidence which has been given by the person who was present and
has actually heard the matter by themselves, this will come under direct
evidence.For example: if A overheard B’s conversation that stated; that he is
going to kill C tomorrow under the bridge, A’s testimony will be that of direct
evidence.

3. It refers to a fact which could be perceived by any other senses or any

other manner, it must be the evidence of person who says he
perceived it by that sense or manner –
Meaning such evidence that has been given by the person who has perceived it
in any other manner or by any other senses but it has been perceived by that
person itself. For example: through sense of smell or taste. 

4. If it refers to an opinion or to grounds on which that opinion is held, it

must be the evidence of the person who holds that opinion on those
grounds – 
It means when a person holds any opinion on any matter or incident, only his
testimony on the ground of which his opinion is formed will be admissible in the
court.For example A thinks that B is not a good guy, so his testimony of that
opinion will be termed under direct evidence.  

 Meaning of Hearsay Evidence 

All of us are aware  of what hearsay is; hearsay is any information which is
received by any person from any other source. Hearsay means when a person
does not have a personal knowledge about a particular matter or incident and
he has been informed about that particular matter by any other person. 

As oral evidence includes first-hand knowledge thus, Hearsay evidence is

excluded under the ambit of oral evidence because hearsay is not directly
obtained evidence.

 Rationale behind the exclusion of Hearsay

Evidence
From the above head now we know that Hearsay Evidence is second-hand
knowledge. But why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand

knowledge. It only includes what is directly seen, heard and perceived by a
person. There is no room for second-hand knowledge. A conviction passed on
hearsay may be truly unjustified as there is no reliability as to whether the
person who has passed on the following information is credible enough or not.
For example: if A has received information through B that he saw C hitting D.
This will be hearsay because A himself has not administered the incident. For
this reason, Hearsay has been excluded from Oral Evidence. 

 Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their
testimony is accepted and not treated as hearsay. In certain cases, such
statements may be admissible. Opinions of experts which are embedded in
things which are maintained for sale like books of authors can be accepted as
oral evidence when the author of the book is dead, cannot be found, cannot
come to the court for some reason or the court thinks that calling such person
may be a delay of proceeding, so any such statements shall be admissible. 

 Child Complainant’s Evidence by video-

recording and television link
Oral Evidence also includes the child’s complainant evidence by video recording
and television link, so if there is any evidence which is presented through video
recording they are admissible under oral evidence as long as they are not
tampered with. 

 Witnessing offence on visual display of video-

recording
If there is a video which displays an offence being committed it may be
admissible if it ensures that it is not tampered by any means. This may also be
included under oral evidence. 

Section 33 as an Exception to Section 60

Section 33 of Indian Evidence Act, 1872 basically gives us a structure of
exception to section 60, it has certain exceptions against rule of hearsay which
we will see below: 

1. Res-gestae( derived from a Latin word meaning something deliberately

undertaken or done)– For example, if A sees B passing by him on a
bike and after that he sees that B has been injured but A has not
administered the accident on his own, when A goes to B;  B says that C
has hit him by truck, such statement though hearsay may be
admissible.  
2. Admission or confession- For example, A coming out of the court tells B
his guilt of committing murder of C, though hearsay but statement
shall be accepted as evidence. 
3. By any reason the person cannot come to the court if he is dead,
cannot be found, is incapable of coming to court; every such
information which has been passed to the other person and that person
giving the testimony in the court shall be held admissible.  
Difference Between Oral and Documentary Evidence
BASIS ORAL EVIDENCE DOCUMENTARY EVIDENCE

Oral evidence is the Documentary evidence, on the

evidence given by other hand, is the evidence which is
witnesses who are called submitted in the court in written
1. Meaning in the court in regards to form including documents, papers
the trial orally. etc.

Oral evidence is
Documentary evidence is dealt from
mentioned under section
2. Legally defined section 61 to 66 of the Indian
59 and 60 of the Indian
Evidence Act.
Evidence Act.

Documentary evidence has direct

Oral evidence should be
3. Types documents and secondary
given direct form.
documents.

Oral evidence can be

4. Forms of Documentary evidence must be
given through speaking,
submission given in writing.
signs or gestures

Case Laws on Oral Evidence

 State v. Rajal Anand 

It was held under this case that section 60 of the Indian Evidence Act only
includes the word “direct” and excludes hearsay. Any evidence given must be
direct and the hearsay evidence does not hold any area under oral evidence as
it is not direct. But the doctrine of Res-gestae has been observed as an
exception to the rule of hearsay which explained that any person who has
experienced any series of relevant facts, his testimony after the incident even if
he has not seen the crime being committed will be accepted. 

 Amar Singh v. Chhaju Singh And Anr.

A relationship between section 50 and 60 of Indian Evidence Act has been
established which says that for proving an evidence completely, two things shall
be fulfilled firstly, there shall be a presence of relevant facts and those facts
have been presented directly by the person who has either seen them, heard
them or etc. 

 Bhima Tima Dhotre v. The Pioneer Chemical

Co.
In this case, it was held that any fact can be proved by oral evidence instead of
the content of documents or electronic records. It is seen that if the person who
has presented the documentary record is called to prove the records,
documentary evidence loses all its significance and it will become oral evidence
which will be meaningless.  

Conclusion
On concluding the article, oral evidence, with its increasing approach can be
appropriate for passing judgement if proved beyond a reasonable doubt. Earlier
it was seen to be weak evidence but its need has been growing in modern
times. In my opinion incidents and facts can be better understood through oral
ways as the person who has administered the incident itself can explain it in a
more clear way rather than documentary form of evidence.

Also Refer>>>>>>
Introduction:
Oral and Documentary evidence Section 3 “Evidence” – “Evidence” means and includes – (1) Oral
Evidence – 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) Documentary
Evidence- all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.
CHAPTER IV.–– OF ORAL EVIDENCE
Chapter IV deals with oral evidence. There are two sections in this chapter namely sections 59 & 60.

Section 59 – Section 59 contents two principles –

1. All facts, except the contents of documents or electronic records, may be proved by oral
evidence.
2. Oral evidence must be direct rather than hearsay evidence.
Sections 60 – Sections 60 deals what is direct. For example, in the case of seeing, hearing, perceiving
and making opinions and grounds of opinion, the evidence must be given only by that person who
has seen, heard, perceived or made the opinion. Section 60 contents one exception.
This exception is 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 treatises
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.
Section 59. Proof of facts by oral evidence – All facts, except the contents of
documents or electronic records, may be proved by oral evidence.
Comment
According to section 3, there are two types of evidence namely „Oral Evidence‟ and
„Documentary Evidence‟. Oral Evidence means all statements which the Court permits or
requires to be made before it by witnesses, in relation to matters of fact under inquiry.
„Oral‟ means by word of mouth. But according to section 119, „A witness who is unable
to speak may give his evidence in any other manner in which he can make it intelligible,
as by writing or by signs, the evidence so given shall be deemed to be oral evidence‟.
Section 119 is an extension of „Oral Evidence‟. It is a fiction of law.

Oral is different from the word „Verbal‟. In the case of Queen Empress v. Abdullah (27
February 1885), Hon’ble Chief Justice of Allahabad W C Petheram discussed the
difference between Verbal and Oral, Verbal means by words. It is not necessary that the
words should be spoken. If the term used in the section were oral, it might be that the
statement must be confined to words spoken by the mouth. But the meaning of Verbal
is something wider.
Verbal [Section 32(1)] Oral [Section 3, 59& 60
It is wider. It is narrower
Verbal includes words spoken by the mouth and sign also. Words were spoken by the mouth
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 a witness who says he perceived it by that sense or in that
manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
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 treatises 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 thinks fit, require the production of
such material thing for its inspection.

Comments
Remarks Facts Direct Evidence
if it refers to a fact which could it must be the evidence of a witness who
Seen
be seen says he saw it
if it refers to a fact which could it must be the evidence of a witness who
Heard
be heard says he heard it
Perceive if it refers to a fact which could it must be the evidence of a witness who
d be perceived says he perceived it
if it refers to an opinion or
Opinion it must be the evidence of the person
grounds
1 it must be the evidence of a witness who says he saw it Witness
 2 it must be the evidence of a witness who says he heard it Witness
3 it must be the evidence of a witness who says he perceived it Witness
4 it must be the evidence of the person who holds that opinion on those grounds Person
Hearsay Evidence –
According to Taylor, “Hearsay is used to indicate that evidence which does not derive its
value from the credit given to the witness himself, but which rests also on the veracity
and competence of some other person”. It is used in contradiction to „Direct Evidence‟ 2.
Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr. (S.C., 18 January, 2011)
Hon‟ble Justice Panchal observed, “
 Meaning of Hearsay -The term „hearsay‟ is used with reference to what is done or
written as well as to what is spoken and in its legal sense, it denotes that kind of
evidence which does not derive its value solely from the credit given to the witness
himself, but which rests also, in part, on the veracity and competence of some other
person.
 Hearsay evidence‟ under IEA- The phrase „hearsay evidence‟ is not used in the
Evidence Act because it is inaccurate and vague.
 Hearsay in a different sense -The word „hearsay‟ is used in various
senses. A. Sometimes it means whatever a person is heard to say.
B. Sometimes it means whatever a person declares on the information given by
someone else, and
C. Sometimes it is treated as nearly synonymous with irrelevant.
The sayings and doings of the third person are, as a rule, irrelevant, so that no proof of
them can be admitted. Every act done or spoken which is relevant on any ground must
be proved by someone who saw it with his own eyes and heard it with his own ears”.

 Reason of exclusion of Hearsay Evidence – Hearsay evidence is excluded on the

ground that it is always desirable, in the interest of justice, to get the person, whose
statement is relied upon, into court for his examination in a regular way, in order
that many possible sources of inaccuracy and untrustworthiness can be brought to
light and exposed, if they exist, by the test of cross-examination.
 Fundamental rule regarding „Hearsay Evidence‟ – It is a fundamental rule of
evidence under the Indian Law that hearsay evidence is inadmissible. A statement,
oral or written, made otherwise than a witness in giving evidence and a statement
contained or recorded in any book, document or record whatever, proof of which is
not admitted on other grounds, are deemed to be irrelevant for the purpose of
proving the truth of the matter stated.
 Reason of exclusion of Hearsay Evidence- The reasons why hearsay evidence is not
received as relevant evidence are:
(a) the person giving such evidence does not feel any responsibility. The law requires all
evidence to be given under personal responsibility, i.e., every witness must give his
testimony, under such circumstances, as expose him to all the penalties of falsehood. If
the person giving hearsay evidence is cornered, he has a line of escape by saying “I do
not know, but so and so told me”,

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying “someone told me
that………..”.

It would be attaching importance to false rumour flying from one foul lip to another.
Thus the statement of witnesses based on information received from others is
inadmissible”.

According to section 59 „Oral Evidence‟ must be direct. Hearsay evidence is not direct
evidence. So the rule is that „Hearsay Evidence‟ is not acceptable. There are certain
exceptions to this rule.

There are following exceptions of this –

 Res gestae
 Conspiracy
 Admission & Confession
 Dying Declaration
 Evidence in the former proceeding
3
 Opinion published in treatises 7. Sections 32, 33, 34 & 35
 Res gestae is an exception of „Hearsay Evidence‟
The rule is that hearsay evidence is not acceptable. Oral evidence must be direct. But
Res gestae is the exception of „Hearsay Evidence‟.

Sukhar vs. State of U.P.4(1999)
In the case of, Sukhar vs. State of U.P., the Supreme Court said that Section 6 of the
Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes
admissible.
Javed Alam v. State of Chhattisgarh and Anr. (8 May, 2009)
Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay
evidence is not admissible.

Bhairon Singh v. State of Madhya Pradesh (May 29, 2009)

Supreme Court observed, “The rule embodied in Section 6 is usually known as the rule
of res gestae.
(2) Section 10 (Conspiracy)
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August 2005
Section 10 of Evidence act is based on the principle of agency operating between the
parties to the conspiracy inter se and it is an exception to the rule against hearsay
testimony. If the conditions laid down therein are satisfied, the act is done or statement
made by one is admissible against the co-conspirators.

(3) Admission and confession are exceptions of „Hearsay Evidence‟

In Sahoo v. State of U.P.5 Supreme Court said that Admissions and confessions are

exceptions to the hearsay rule
(4) Dying Declaration
Khushal Rao v. State of Bombay (25 September, 1957)
Section 32 has been made by the Legislature, advisedly, as a matter of sheer necessity -
by way of an exception to the general rule that hearsay is no evidence and that
evidence, which has not been tested by cross-examination, is not admissible. Here there
is neither cross-examination nor oath.

Ram Bihari Yadav v. State of Bihar (1998)

Hon‟ble Justice Syed Shah Quadri said, “Though a dying declaration is an indirect
evidence being a specie of hearsay, yet it is an exception to the rule against admissibility
of hearsay evidence”.

Sharad Birdhichand Sarda v. State of Maharashtra (17 July, 1984)

Section 32 is an exception to the rule of hearsay

Sudhakar & Anr. v. State of Maharashtra (July 17, 2000)

Section 32 is an exception of the rule of hearsay

(5) Evidence in the former proceeding

Section 33- Relevancy of certain evidence for proving, in a subsequent proceeding, the
truth of facts
therein stated.

(6) Opinion published in treatises

Opinion published in treaties maybe the exception of hearsay evidence if all the
conditions are being fulfilled.
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
treatises 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

14. Documents
Document Meaning
According to section 3 of the Evidence Act, “document” alludes to any issue
communicated or portrayed upon any substance by methods for letters, figures
or checks, or by more than one of those methods proposed to be utilized, or
which might be utilized, to record that issue.” Writing, words printed,
lithographs, photos, a guide or an arrangement, an engraving on a metal plate
or a stone are reports.

There are two types of evidence, i.e. primary evidence and secondary evidence.

Primary Evidence
Primary evidence is defined in section 62 of the Indian Evidence Act which
states that the primary evidence is the best available proof of the existence of
an object or a fact because it is the actual document or the authentic source of
evidence. Primary evidence is different from secondary evidence, which is a
copy or a  substitute for it. If primary evidence is available to a party, then that
person must offer it as evidence in the court. Subsequently, if primary evidence
is not available due to the loss or destruction of the same, then the party may
present a reliable substitute of it.

Secondary Evidence 
Secondary evidence is the evidence that has been duplicated from a unique
report or has been substituted from the first thing. For instance, a photocopy of
a record or photo would be viewed as secondary evidence. However, the court
prefers original or primary evidence. The courts usually try to avoid using
secondary evidence wherever it is possible, and this approach is called the best
evidence rule because these are copies of the original one and not the original
document.
Definition (Public and Private Document)
Evidence which is provided to the court in the written form is called
Documentary Evidence as per section 3 of the Indian Evidence Act, 1872. There
are two types of documentary evidence, namely, public documents and private
documents.

Public Documents: Public Documents are those documents which are

authenticated by a public officer and subsequently which is made available to
the public at large for reference and use. Public documents also contain
statements made by the public officer in their official capacity, which acts as
admissible evidence of the fact in civil matters. These documents are also
known as public records as these are issued or published for public knowledge.

Private documents: Private documents are those documents which are

prepared between persons for their usual business transactions and
communications. These documents are kept in the custody of the private
persons only and are not made available to the public at large. Certified copies
of the private documents are generally not considered as evidence unless there
is proof of the original copy is provided.

What documents are said to be Public Documents?

Section 74 of the Indian Evidence Act, 1872 states that the following documents
are considered public documents:

Documents forming the acts or records of the acts:

1. Of sovereign authority
2. Of official bodies and tribunals
3. Of public officers, legislative, judiciary and executive of any part of
India or of the commonwealth, or of a foreign country.
4. The public record kept in any State of Private document

Documents forming the acts or records of acts

1. Statements which are recorded by police officers under section 161 of
Cr.P.C.
2. Records that are maintained by the revenue officers relating to land
revenue, survey and settlement of land disputes, etc are public
documents. ‘Pahanies’ and ‘faisal patties’ are public documents as
 stated by the High Court of Andhra Pradesh in the case of K. Pedda
Jangaiah v. Mandal Revenue officer, Moinabad.
3. Records of the developmental authorities of the regions are public
documents as stated in the case of S L Sharma vs Delhi Development
Authority.

Published Under the Statute

Schemes which are published in the Official Gazette. Example scheme published
under the Electricity Supply Act, 1948. The scheme so published talked about
the installation of overhead transmission lines, thereby, making it a public
document.

Orders of a civil court, FIR, Charge-sheet

1.  The certified copies of the orders of the civil court and FIR  are Public
Documents as stated in the case of The Royal Sundaram Alliance
vs D.Gunasekaran.
2. A charge-sheet filed under Section 120-B of Indian Penal Code, 1860
against any individual is held to be a public document as stated in the
case of  The Royal Sundaram Alliance vs D.Gunasekaran and is
admissible as evidence without any proof. 

Marriage register
Hindu Marriage Register is considered to be a Public Document as considered by
the judges of the Supreme Court in the case of Smt. Seema v. Ashwani Kumar
[2006 2 SCC 578]

Public document kept in any state of private

documents
To get the document within the purview of section 74 of the Indian Evidence
Act, 1872, it should be shown that the document is prepared by a public servant
in the discharge of his/her official duty, the fact that it is kept in public office
does not make it a public document.

Section 74 (2) of the Indian Evidence Act, 1872 states that the private
documents though made by an individual person but it is kept as records in the
public offices are regarded as a public document as stated by the Guwahati High
Court in the case of Narattam Das V. Md. Masadharali (1991) 1 Gau LR 197
(DB) which said that “Public Documents are those documents, which are
required to be kept in the Governmental units and discharge their duty as
prescribed by law. A Public record is one required by law or directed by law to
serve as a memorial and evidence of something written, said or done.

Therefore, a Private Document would be called a ‘Public Document’ under the

purview of section 74(2) if the Private Document is filed and Public official is
required to keep it for a memorial or permanent evidence of something written,
said or done.”

An Example of section 74(s): Memorandum of Association of a company is a

public document under the purview of this Section. 

Medico-legal report
In the case of Dalip Kumar Alias Pinki vs State [ 1995 CriLJ 1742] the Delhi
High Court stated that the medical officer prepared the MLC report as a public
servant in discharge of his duties and therefore, the MLC report is a public
document and the contents of which are admissible as evidence. 

Records of nationalized banks

Records of nationalized banks maintained have been considered as Public
Documents as considered by the court in the case of Shri Keshava Gupta vs
Coal India Limited

Examples of Public Documents

These documents are considered to be public documents which are open to the
public at large:

 Electoral Roll of all the districts

 Census Report of India
 Town Planning Reports by the Department of State Development
 Village Records of the villages
 Public records keeping the original private documents and not the
copy 
 Records of National Bank
  Birth and Death Register
 Charge Sheet
 Confessions recorded by a magistrate under section 164 of Cr.P.C.
 Sanction to prosecute
 Record of Information under section 145 of Cr.P.C.
 Notice under section 106 of Cr.P.C.

Exceptional Cases:
1. A private record turns into a public record when public interest is
involved at large and prepared by the public servant. Example: The
share allotment certificates to the members of the Adarsh Housing
Society, Mumbai which normally would be a private document as the
parties to the documents are the society and the individual members,
but since the society at large was involved in the fraudulent act of
taking the government defense such records become public records
and were accessible by the public.
2. In the case of Hardayal vs Aram Singh And Ors [ AIR 2001 MP 203] ,
the Madhya Pradesh High Court said that the panchanama prepared by
a police officer would not be considered to be prepared in the course of
his/her public duty and hence, it is not a public record. 

Private Documents
Section 75 of the Indian Evidence Act states that all documents other than the
documents mentioned in section 74 of the act are private documents. Private
Documents are those documents which are made by an individual for his/her
personal interest under his/her individual right.

These documents are in the hands of the individual to whom the public
document belongs to and is not made open to the general public for inspection.
Certified copies of the private documents are not admissible in court unless the
proof of original document is submitted. Example: Correspondence between
persons; matter published in newspapers, books; deed of the contract;
memorandum; sale deed.

Difference Between Public and Private Documents

 
 Basis Public Documents Private Documents

Public Documents are made Private Documents are made by an

by a public servant in individual for his/her personal
Prepared by
discharge of his/her public interest under his/her individual
duties. right.

Public Document is available

Private Document is in the hands of
for inspection to the public in
the individual to whom the document
Availability public office during the
belongs to and is not available for
appointed time after payment
inspection to the general public.
of fixed fees.

Public Documents are proved Private Documents are proved by

Proved By
by Secondary Evidence. original i.e. Primary Evidence.

The certified copy of a public The secondary evidence of the

Secondary
document is to be admitted original document is not to be
Evidence
in judicial proceedings. admitted in judicial proceedings.

No presumption is made about the

The court is bound to
genuineness of the original
presume the genuineness of
Genuineness document from secondary evidence
a public document from the
of private document except in some
duly certified secondary copy.
exceptional circumstances.

Certified copies of public

Issuance of Certified copies of the private
documents may be issued to
Certified Copy document can be issued.
a person requiring them.

Certified copies of Public Documents (Section 76)

Section 76 of the Indian Evidence Act, 1872 gives us the method of getting
certified copies of public documents from the public officer. It states that if a
public document is open to inspection, it’s copy may be issued to any person
who is demanding it. The copy of the public document is issued on payment of
legal fees and a certificate shall be attached thereof, containing the following
particulars:
 1. That it is a true copy.
2. The date of the issue of the copy.
3. The name of the officer and his official title.
4. The seal of the office, if there is any.
5. It must be dated.
When these particulars are mentioned in the copy, then only it is considered as
a Certified Copy.

The basic question that arises here is whether a person will be entitled to a copy
of a public document? Well the answer to this is if a person has the right to
inspect the document then, he would be entitled to get a copy of the public
document and if he has no right to inspect the public document he cannot get a
copy of the public document, as mentioned in the case of Rasipuram Union
Motor Service vs Commissioner Of Income-Tax [(1956) 2 MLJ 604].

On receiving the certified copy of the public document he has the right to look
into the order of the copy which is sought and not the right to inspect the whole
record as stated by the High Court of  Judicature of Allahabad in SURAJ NARAIN
VERSUS SETH JHABHU LAL AND OTHERS.  If a person has no right to inspect
the certified copy of the public document and still he obtains it then, the
certified copy so obtained is illegal and inadmissible as evidence in court

Proof of Documents by the production of certified copies (Section 77)

Section 77 of the Indian Evidence Act, 1872 states that “such certified copies
may be produced in proof of the contents of the public documents or parts of
the public documents of which they purport to be copies.”

In simple words it states that, when the contents of the public documents are to
be verified in  court of law, the original copy of the public document need not be
presented before the court, instead the certified copy of the public document
taken from the public officer in accordance with section 76 of the Indian
Evidence Act, 1872 may be presented before the court which would be accepted
by the court.

The basic idea of this principle is that the record of the court should not be
taken away from its place of custody into courts meaning if public documents or
public records are summoned in courts it would be difficult for the time being
for others to use the public records.

Suppose a particular public record or public document is presented in one court

in 1940 and the case is dragged till 1950, in this time period many other
individuals who want to or needs to present those public records or documents
are crippled. So, if copies of these public documents or records are not allowed
and the originals are filed in cases, the individuals would be deprived of the use
of those public documents or records for 10 years and plus there would be a
constant risk of loss and additional wear and tear of the documents if they are
moved from place to place.

In State Of Haryana vs Ram Singh , the Supreme Court held that it is not the
law that the certified copy of a registered agreement for sale is inadmissible in
court if it can be shown that the parties to the certified copy are asked to
examine and prove the same. This would be contrary to section 77 read with
section 74 (2) and section 76 of the Indian Evidence Act, 1872
more especially Section 51-A of Land Acquisition Act. A certified copy of the
document registered under the Registration Act including a copy under section
57 of the Land Acquisition Act may be accepted as evidence of transactions
recorded in such documents.

It is available to the court to acknowledge the certified copy as solid proof and
without inspecting parties to the documents. This, however, does not preclude
the court from rejecting the transaction itself being mala fide provided such
challenge is laid before the court.

In the case of Smt. Seema v. Ashwani Kumar [2006 2 SCC 578], the Supreme
Court came to the conclusion that Marriage certificate is a good evidentiary
proof of marriage.

A certified copy of the public document or public record can be presented and
received as evidence in the court and without proof, as concluded by the judges
of the Supreme Court of India in the case of Madamanchi Ramappa & Anr vs
Muthalur Bojjappa [1963 AIR 1633]. Further, if the certified copy of the public
document or public record is defective then the objection has to be taken to the
trial court as stated by the Punjab High Court in the case of Harichand And Ors.
vs Bachan Kaur. 

Proof of other Official Document (Section 78)

Section 78 of the Indian Evidence Act, 1872 states that the following public
documents may be proved as follows:

1. Acts, orders or notifications of the Central Government in any of its

departments, or of the Crown Representative or any of the State
Government or any department of any State Government; by the
records of the departments, certified by the heads of those
departments respectively, or by any document purporting to be printed
 by order of any such Government or; as the case may be, of the Crown
Representative.
2. The proceedings of the Legislatures; by the journals of those bodies
respectively, or by published Acts or abstracts, or by copies purporting
to be printed by order of the Government concerned.
3. Proclamations, orders or regulations issued by Her Majesty or by the
Privy Council, or by any department of Her Majesty’s Government; by
copies or extracts contained in the London Gazette, or purporting to be
printed by the Queen’s Printer.
4. The Acts of the Executive or the proceedings of the Legislature of a
foreign country; by journals published by their authority, or commonly
received in that country as such or by a copy certified under the seal of
the country or sovereign, or by a recognition thereof in some Central
Act.
5. The proceedings of a municipal body in a State; by a copy of such
proceedings, certified by the legal keeper thereof, or by a printed book
purporting to be published by the authority of such body.
6. Public documents of any other class in a foreign country; by the
original, or by a copy certified by the legal keeper thereof, with a
certificate under the seal of a Notary Public, or of an Indian Council or
diplomatic agent that the copy is duly certified by the officer having the
legal custody of the original, and upon proof of the character of the
document according to the law of the foreign country.

Kinds of Public Documents (Section 78)

Section 78 of the Indian Evidence Act, 1872 gives us six kinds of Public
Documents:

1. Central Acts, orders or notifications – certified by the Heads of the

departments concerned.
2. Proceedings of the Legislatures – Journals of those bodies or copies
printed by the Govt.
3. Proclamations, orders or regulations issued by Her Majesty or Privy
Council – by copies of extracts of London Gazette.
4. The acts of the executives or proceedings of the foreign legislatures.
5. Municipal bodies proceedings – publications of such body certified
by their legal keeper.
6. Public documents of some other class in a foreign country might be
proved by the original or certified copy issued by the lawful attendant
 of the document with a certificate and seal of a notary public, or Indian
counsel or diplomatic agent.

Rangataju v. Kannayal and ors [2012 SCC Online Mad. 138]

The High Court of Madras in this case after considering various other cases laid
down a few characteristics which are required in order to call a document as a
public document. The High Court stated that the public documents are prepared
by the public servant in discharge of his/her official duty. It also stated that
public documents are those which are made by the public officer in order to
make it available to the public at large so that they could use and refer to it as
well.

If the public is interested in seeing such documents and refer it and if there is
anything wrong with it they could protest. The High Court further stated that
when the public has the right to inspect an official document it is considered as
a public document and a certified copy of the same shall be given to the person
who has applied for it and also that the certified copy of the public document so
provided in court need not be proved by calling a witness, it is admissible as
evidence. 

Between Private Documents and Public Documents

The most basic question that should arise in the minds of people as to which
documents should one rely on? 

Well, in the case of State Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S.
Husain [AIR 2008 SC 155], the judges of the Supreme Court concluded when a
public document such as a birth certificate is brought forth by the prosecution
which demonstrates the age of the injured individual beneath 16 years of age
then, it will be superior over the date given in the FIR and also enhanced by the
affidavit. In this case, the accused injured individual was compelled to flesh
trade.

In the FIR and the valuable affidavit, the age of the individual was provided to
be 18 years of age, but, based on the radiological test the age was resolved to
be between 14 to 16 years. And also, in order to prove the radiological test
correct the prosecution produced before the court the birth certificate which
demonstrated the date of birth to be 16 years of age.

Again In the case of Shah Nawaz vs State Of U.P.& Anr Shahnawaz was

arrested on an FIR lodged against him by one Katizan, wife of Mr Nawab. In the
FIR she alleged that shahnawaz had murdered her husband Mr Nawab. On his
arrest, Shahnawaz’s mother filed an application stating that his date of birth
was 18.06.1989 and at the commission of crime i.e. on 04.06.2007, he was a
minor under the Juvenile Act.
The Juvenile Board after the examination of the date of birth mentioned in the
mark sheet and other witnesses held that Shahnawaz was indeed a minor and
therefore, Juvenile Act is applicable to him. The wife subsequently filed an
application to the additional session judge against the board’s decision. The
additional judge set aside the boards order and declared him as major.
Subsequently, an appeal was filed in the High Court which quashed the decision
of the additional judge and declared Shahnawaz as minor.

The High Court in reaching this decision referred to the reports of the Juvenile
Board which took into consideration the date of birth of Shahnawaz as
mentioned in the mark sheet. The Supreme Court too stated that Shahnawaz
was a minor when an appeal was filed in it. 

In the case of The Cpio, Supreme Court Of India vs. Subhash Chandra
Agarwal & Anr. in which an application was filed before the Supreme Court to
be aware of the fact that are the judges of the Supreme Court of India and the
judges of the High Court are filing their assets declarations in accordance to the
1997 Full Court resolution of the Supreme Court of India.

The court in its decision held that all information available with the public
authority is covered by the RTI act being public documents. This decision of the
Supreme Court helps in clarifying various issues and also further widens the
right to information understanding by the citizens of India. 

So, it can be inferred from the above-cited case laws that the answer to the
above-mentioned question is that between the private and public documents,
the latter is to rely on.

Conclusion
After going through this, one can easily infer that the public documents are
those documents prepared by the public officer in the discharge of his/her
official duty. According to the case laws cited above, we know that the
documents prepared by the private individual kept in public office are
considered as public documents and not a private document.

But when the question of admissibility of these documents arises in the court,
then, the certified copies of the public documents are admissible and they need
not any witnesses to prove it whereas, in case, of private documents certified
copy is admissible only when the original private document is shown as proof in
the court. 
15. Primary and secondary evidence
Primary evidence
Primary evidence means the documents itself produced for the inspection of the Court.
According to Section 62, primary evidence is considered to be the topmost class of
evidence. Such evidence is an original document that needs to be submitted before the
court for inspection. Moreover, it is admissible without any prior notice. Such evidence must
be presented before the court before the secondary evidence. Moreover, secondary
evidence can be presented only in the absence of primary evidence by explaining the
reason for the absence of such evidence. Primary evidence, more commonly known as best
evidence, is the best available substantiation of the existence of an object because it is the
actual item. It differs from secondary evidence, which is a copy of, or substitute for, the
original. If primary evidence is available to a party, that person must offer it as evidence.
When, however, primary evidence is unavailable—for example, through loss or destruction
—through no fault of the party, he or she may present a reliable substitute for it, once its
unavailability is sufficiently established.

Secondary evidence
On bare reading, secondary evidence means and includes:
(1) Certified copies given under the provisions hereinafter 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 as against the parties who did not execute them.
(5) Oral accounts of the contents of a document given by some person who has himself
seen it.
According to Section 63, secondary evidence is considered to be an inferior type of
evidence. It implies, that even after producing secondary evidence one needs to produce
primary evidence in order to fill in the gaps. Such evidence can be presented in the absence
of the primary evidence, however, the notice of the same is to be given. However, if the
secondary evidence is accepted without any objection within a reasonable time then the
parties do not have the right to argue that the point was proved with the help of secondary
evidence and not primary evidence.

TYPES OF SECONDARY EVIDENCE AND JUDICIAL DECISIONS Certified copies

Under section 76 the certified copies are defined. The correctness of certified copies will be
presumed under section 79, but that of other copies will have to be proved. This proof may
be afforded by calling a witness who can swear that he had compared the copy tendered in
evidence with the original, or with some other person read as the contents of the original
and that such is correct. Copies prepared by mechanical process
The copies prepared by mechanical process and copies compared with such copies is
mentioned in clause 2 of this section. In the former case, as the copy is made from the
original it ensures accuracy. To this category belong copies by photography, lithography,
cyclostyle, and carbon copies. Section 62 (2) states that, where a number of document 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 content of the original. Counter foils
The counter foils of rent receipts being an admissible in favor of the landlord are not
admissible against the tenant. Photographs
HALSBURY states “ Photographs properly verified on oath by a person able to speak to
their accuracy are generally admissible to prove the identity of persons, or of the
configuration of land as it existed at a particular moment, or the contents of a lost
document”  Xerox copy
A Xerox copy of the forensic report sent by FSL after certifying the same as true copy, was
held to be admissible in evidence as officer of the FSL had no interest in concocting report
against the accused.
Photostat copy
A Photostat copy of a letter is a piece of secondary evidence, and it can be admitted in case
original is proved to have been lost or not immediately available, for given reason, it is not
conclusive proof in itself of the truthfulness of the contents contained therein. Photostat
copies of documents should be accepted in evidence after examining the original records as
genuineness of a document was a fundamental question. The witness can be shown and
questioned as regards the Xerox copy of the document on records and the same will not
amount to admission of the said document in evidence. If the witness admits the signature
thereon, an objection can be raised at that time before the court that the document, being a
copy, could not be exhibited. In a case where the Photostat copy of the original was
produced, and there was no proof of its accuracy or of its having been compared with, or its
being true reproduction of the original it was held that the Photostat copy cannot be
considered as secondary evidence, as necessary foundation for its reception was not laid. A
Photostat copy of a document is not admissible as secondary evidence unless proved to be
genuine or the signatory accepts his signature. Carbon copy
A carbon copy of a signature is a piece of secondary evidence within the meaning of section
63 (2) of this Act, being a copy made by a mechanical process which ensures its
correctness. In a claim petition, the original insurance policy was not filed by the owner of
the vehicle. He did not object to the geniuses of the printed copy of the policy giving
particulars filed by the insurance company. He could not be allowed to raise objection that
the same could not be read as evidence. Typed copy
A typed copy of an alleged partition deed without alleging that the document falls under one
of categories enumerated in section 63 of this Act, could not be held to be a secondary
evidence. Tape record
In the case of tape recording, which was referred to by the petitioner in support of his
assertions as regards the substance of what passed between him and the chief minister of
Punjab on several matters, there was no denial of the genuineness of the tape-record; and
there was no assertion that the voices of the persons were not those which they purported
to be. Copies made from or compared with original Copies made from the original or
copies compared with the original are admissible as secondary evidence. A copy of a copy
then compared with the original, would be received as secondary evidence of the original.
Counterparts
Execution of a document in counterparts has already been explained while dealing with
explanation 1 to section 62. Counterpart of document is primary evidence as against the
parties executing them under section 62 whereas under this clause they are secondary
evidence as against the parties who did not execute them Oral accounts
This is last clause enable oral account of the content of a document being as secondary
evidence. The oral account of the content of a document given by a person who has merely
seen it with his own eyes, but not able to read it is not admissible as secondary evidence.
The word seen in clause 5 of this section means something more than the mere sight of the
document, and this contemplates evidence of a person who having seen and examined the
document is in a position to give direct evidence of the content thereof. An illiterate person
cannot be one who has seen the document within the meaning of the section. In Pudai
Singh v. Brij Mangai, Allahbad HC held that as regards the letting in of secondary evidence
the word seen in this section includes read over in the case of a witness who is illiterate and
as such cannot himself read it, if it is read over to him, it will satisfy the requirement of the
section. But this ruling was not accepted by HC oral account of the content of a document
by some person who has himself sent it. Oral account given by an illiterate person will be
hearsay evidence and excluded by section 60. Registration copy
Where the plaintiff took step to produce original will but it was not produced by the parties in
whose possession it was, it was held that the registration copy of the will which she filed,
was admissible in evidence as secondary evidence. Unprobated will
Unprobated will can be admitted in evidence for collateral purpose in any other proceeding
apart from probate proceedings.
Age certificate The age certificate issued by headmaster of a school on the basis of
admission from was held to be not a primary but a secondary evidence. Voters list A voters
list is not a primary evidence of date of birth but a secondary evidence which was held in
Mustafa v. Khurshida  Newspaper report A news item published in a newspaper is at best
a second-hand secondary evidence. A fact has to be alleged and proved and then
newspaper reports can be taken in support of it but not independently.

Tabular Representation of Primary and Secondary Evidence

No Primary Evidence Secondary Evidence
Primary Evidence is original Secondary Evidence is the document which is not
1) document which is presented to the original document but those documents which are
court for its inspection. mentioned in Section.63.
2) It is the main source of Evidence. It is an alternative source of Evidence.
Section 62 of the Evidence Act Section 63 of the Indian Evidence Act defines
3)
defines Primary Evidence Secondary Evidence
4) Primary Evidence is the best Secondary Evidence is not best evidence but is evidence
Evidence of secondary nature and is admitted in exceptional
 circumstances mentioned in Section 65.
Giving Primary Evidence is general Giving Secondary Evidence is exception to the general
5)
rule. rule.
Primary Evidence itself is Secondary Evidence is admissible in the absence of the
6)
admissible. Primary Evidence.
No notice required before giving Notice is required to be given before giving Secondary
7)
Primary Evidence. Evidence.
The value of Primary Evidence is The value of Secondary Evidence is not that of Primary
8)
highest. Evidence

CURRENT JUDICIAL STANDING

Arjun Khotkar vs Kailash Kushanrao Gorantyal- Case Analysis
In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that
deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra
Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section
65B(4) is a condition precedent to the admissibility of evidence by way of electronic record,
as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC
473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of
Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required
certificate under Section 65B (4) is unnecessary if the original document itself is produced.
The Court was hearing the reference from the July 26, 2019 order where, after
quoting Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of
this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of
Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration by a Bench of a larger
strength. The Division bench, in the Shafhi Mohammad judgment, had “clarified” that the
requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the
Court wherever the interest of justice so justifies, and one circumstance in which the interest
of justice so justifies would be where the electronic device is produced by a party who is not
in possession of such device, as a result of which such party would not be in a position to
secure the requisite certificate.
The 3-judge bench in the present case, holding the Shafhi Mohammad judgment to be
incorrect said, “the major premise of Shafhi Mohammad (supra) that such certificate cannot
be secured by persons who are not in possession of an electronic device is wholly incorrect.
An application can always be made to a Judge for production of such a certificate from the
requisite person under Section 65B (4) in cases in which such person refuses to give it.”
Clarification on Anvar P.V. case:
“… if an electronic record as such is used as primary evidence under Section 62 of
the Evidence Act, the same is admissible in evidence without compliance with the
conditions in Section 65-B of the Evidence Act.”
The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V.
Case and held that the last sentence in Anvar P.V. case which reads as “…if an electronic
record as such is used as primary evidence under Section 62 of the Evidence Act…” is to
be read without the words “under Section 62 of the Evidence Act,…”
It said, “The clarification referred to above is that the required certificate under Section
65B(4) is unnecessary if the original document itself is produced. This can be done by the
owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the
witness box and proving that the concerned device, on which the original information is first
stored, is owned and/or operated by him. In cases where the “computer” happens to be a
part of a “computer system” or “computer network” and it becomes impossible to physically
bring such system or network to the Court, then the only means of providing information
contained in such electronic record can be in accordance with Section 65B(1), together with
the requisite certificate under Section 65B(4).”
Stage of furnishing the certificate to the Court:
The Court also took note of the fact that Section 65B does not speak of the stage at which
such certificate must be furnished to the Court, and said that in cases where such certificate
could be procured by the person seeking to rely upon an electronic record, such certificate
must accompany the electronic record when the same is produced in evidence. However, in
cases where either a defective certificate is given, or in cases where such certificate has
been demanded and is not given by the concerned person, the Judge conducting the trial
must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and
require that such certificate be given by such person/persons. This, the trial Judge ought to
do when the electronic record is produced in evidence before him without the requisite
certificate in the circumstances aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law, and in accordance with the
requirements of justice on the facts of each case.
“When it comes to criminal trials, it is important to keep in mind the general principle that the
accused must be supplied all documents that the prosecution seeks to rely upon before
commencement of the trial, under the relevant sections of the CrPC.”
General Directions to Cellular companies and internet service providers:
The bench issued general directions to cellular companies and internet service providers to
maintain CDRs and other relevant records for the concerned period (in tune with Section 39
of the Evidence Act) in a segregated and secure manner if a particular CDR or other record
is seized during investigation in the said period. Concerned parties can then summon such
records at the stage of defence evidence, or in the event such data is required to cross-
examine a particular witness. This direction shall be applied, in criminal trials, till appropriate
directions are issued under relevant terms of the applicable licenses, or under Section 67C
of the Information Technology Act.
The Court directed that the aforementioned general directions shall hereafter be followed by
courts that deal with electronic evidence, to ensure their preservation, and production of
certificate at the appropriate stage. These directions shall apply in all proceedings, till rules
and directions under Section 67C of the Information Technology Act and data retention
conditions are formulated for compliance by telecom and internet service providers.
Framing of rules and directions under Section 67C of Informational Technology Act:
The Court directed that appropriate rules and directions should be framed in exercise of the
Information Technology Act, by exercising powers such as in Section 67C, and also framing
suitable rules for the retention of data involved in trial of offences, their segregation, rules of
chain of custody, stamping and record maintenance, for the entire duration of trials and
appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise,
appropriate rules for preservation, retrieval and production of electronic record, should be
framed as indicated earlier, after considering the report of the Committee constituted by the
Chief Justice’s Conference in April 2016.
[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC Online SC 571  ,
decided on 14.07.2020]
To settle the two different interpretations between Anvar P.V. v. P.K. Basheer & Ors. (2014)
10 SCC 473 and Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, the
mater was referred to larger Bench of Hon’ble Supreme Court of India. We all were waiting
for the verdict to come which would rest in peace the two completely different approaches of
interpretation of “may be” clause in section 65A that is whether statement u/s 65B of Indian
Evidence Act is mandatory or not and this Judgement (Arjun Panditrao Khotkar Versus
Kailash Kushanrao Gorantyal And Ors) solves many controversies regarding
presentation, relevancy and admissibility of electronics evidence in Court room. In the
following paragraphs I have tried to understand the gist of this recent landmark judgement
which are as follows:  
(i). The judgement in Tomaso Bruno being per incuriam does not lay down the law correctly
and the judgement reported as (2018) 5 SCC 311 and Shafhi Mohammad do not lay down
the law correctly and are hereby overruled.
(ii).    The certificate under Section 65B (4) is unnecessary if the original document
itself is produced. If the owner proves a laptop, computer, computer tablet or a mobile
phone owned or operated by him, bringing the same in the witness-box, on which the
original information is first stored, the requirement of the statement or the certificate u/s
65B(4) is unnecessary.
(iii).  On the other hand, where the computer is part of a computer system or computer
network and bringing the said system or network before the court is impossible then
providing the information contained in such electronic record can only be in accordance
with section 65B(1) along with requisite certificate u/s 65B(4) of Evidence Act. Hence,
in that situation the clarification made in Paragraph 24 of Anvar P.V. v. P.K. Basheer does
not require to be revisited.
(iv). the direction issue in Paragraph 62 of Arjun Panditrao Khotkar Versus Kailash
Kushanrao Gorantyal And Ors. Judgement shall hereafter be followed by the court
dealing with electronics evidence till rules and directions u/s 67C of I.T. Act and data
retention conditions are formulated for compliance by telecom and internet service
providers. In Paragraph 62, general directions are issued to cellular and internet service
providing companies to maintain CDRs and other relevant records for the concerned
periods in tune with section 39 of evidence act in a segregated and secure manner if a
particular CDR or other records is seized during investigation in the said period. Concerned
parties can then summons such records at the stage of defense evidence or if such data is
required to cross examine a witness. The above direction in criminal trials be applicable till
appropriate directions are issued under various relevant terms of the applicable license or
u/s 67C of I.T. Act.
(v).     Appropriate rules and directions should be framed by exercising powers such as 67C
of I.T. Act and framing suitable rules for retention of data involved in trial of offences, there
segregation, rules of chain of custody, stamping and record maintenance. for the entire
duration of trials and appeals and in case of preservation of meta-data to avoid any
corruption of data.
(vi).  Lastly, “appropriate rules for preservation, retrieval and production of electronic record,
should be framed as indicated earlier, after considering the report of the Committee
constituted by the Chief Justice’s Conference in April 2016.”
Finally, Hon’ble Supreme Court of Indian, concludes in the following celebrated way: It will
be clear from the above discussion that the major jurisdictions of the world have come to
terms with the change of times and the development of technology and fine-tuned their
legislations. Therefore, it is the need of the hour that there is a relock at Section 65B of the
Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a
huge judicial turmoil, with the law swinging from one extreme to the other in the past 15
years from Navjot Sandhu31 to Anvar P.V.32 to Tomaso Bruno33 to Sonu34 to Shafhi
Mohammad.35 ”
Now on analysis some issues are coming up which are as follows:
i) Not all the time the people will come before Court with clean hand and there may be
cases where the litigant will come with devises with evidence already modified and what will
be their point of reliability, especially when the Central Forensic Laboratories are not willing
to accept the request for extraction of data or providing expert report with the suspected
devices with a plea that they are over-burden.
ii) Will the ISP or MSP will make necessary arrangements to preserve their data in their
original form till the completion of trail or appeal what is applicable?
iii) This judgement will help compel the stake-holders to come with appropriate rules under
67C of IT Act and materialist a draft rule in dealing with electronic evidence as  it is high
time to have a comprehensive rule for us to dispel all types of confusion in dealing with
electronic evidence in Court room.  
iv) A comprehensive rule in the wake of the provision of section 79A of IT Act(making
arrangement for Examiner of Electronic Evidence) is highly required for assistance of
various learned Courts throughout the country. 
The judgment reads, "In a fact-circumstance where the requisite certificate has been
applied for from the person or the authority concerned, and the person or authority either
refuses to give such certificate, or does not reply to such demand, the party asking for such
certificate can apply to the Court for its production under the provisions aforementioned of
the Evidence Act, CPC or CrPC."
Supreme Court- It was further held that once such application is made, and the court then
orders or directs that the requisite certificate be produced by a person to whom it sends a
summons to produce such certificate, "the party asking for the certificate" would be deemed
to have done all that he can possibly do to obtain the requisite certificate.
The Aurangabad Bench of the Bombay High Court asked the Election Commission to
produce the entire record of the election, including the original video recordings. A specific
order was made that this electronic record needs to be produced along with the ‘necessary
certificates’. Though the Commission did not produce a certificate in writing, the Returning
Officer in her cross-examination stated that there was no complaint with regard to the
working of video cameras at her office. Based on this “substantial compliance” of the
requirement of giving a certificate under Section 65B of the Evidence Act, it was held that
the CDs/VCDs were admissible in evidence. Thus, based on this evidence, the Bench of
Justice TV Nalawde on November 24, 2017, ruled the election of Khotkar as void. 
Khotkar thus approached the Supreme Court in appeal, contending, among other things,
that without the necessary certificate in writing under Section 65B(4) of the Evidence Act,
the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted
in evidence.

Conclusion
Evidence is an imperative part of every case, whether it is a criminal case or a civil suit as it
validates a fact. The facts can be used in evidence for deciding as well as proving the
disputed facts. Evidence attaches weight to the facts quoted as evidence. Thus, various
types of evidence can be used for proving and disproving facts. Moreover, evidence helps
in curbing down the time dedicated to a particular case. Thus, it can be concluded that the
evidence is for judicial behaviour like the reasoning for logic.
To view all formatting for this article (eg, tables, footnotes), please access the original here.

16. Exclusion of Oral Evidence by

Documentary Evidence
Types of Evidence
The types of evidence are as follows:

 Direct evidence- It refers to the evidence directly about the real point
in the issue. It is the declaration of the observer as to key certainty to
be demonstrated. Example- The proof of an individual who says that he
saw the commission of the demonstration that comprises of affirmed
wrongdoing. The original document is also included in the  indirect
evidence. Direct evidence is generally clear and convincing. It is simply
the hypothetical verification when the truth of the matter is
demonstrated by direct declaration or facts. Direct evidence also
means that the person has heard, seen, perceived, form opinion and
after that revealed the facts.
  Circumstantial evidence- “Proof does not mean hard mathematical
formula since it is impossible”. It was told by Justice Fletcher
Moulton in regard to circumstantial event. He also said that these
proofs are strong but sometimes it leaves a gap through which the
accused escapes.
         
It was said by Justice Coleridge, that circumstantial evidence is like a
grassamer thread, light and visionary like air that easily vanishes with a
touch. If a witness gives evidence in a court that he saw a defendant while
firing a bullet to a a person and the person dies, then this is direct evidence. In
this case, the only that question arises is whether the person is telling the truth
or not. However if the witness while giving evidence says that he is only able to
recognize that he heard the shot, then arrived on the scenes after some time
and saw the gun in hands of the defendant with fumes coming out, the proof is
circumstantial as the circumstances may be different from what he perceived.

 Real evidence- Real evidence means any tangible object which is

presented before the court as proof. It means the evidence of any class
or object which can be treated as proof, persons are also included in
this. Real evidence may be a weapon found at a place where crime is
committed or any dispute arising in a contract. Any object, person or
material that is used at the time of proceeding in a court to make other
parties feel guilty or to make him liable is real evidence.
 Expert evidence- The law of evidence is drafted to make sure that,
the court only considers  the proof that allows them to reach a valid
conclusion. When an issue arises such as a medical issue, then the
court needs expert advice to settle it. The logical inquiries included are
assumed not to be within the knowledge of the court. The cases in
which scientists and specialists are involved, there the role of experts
cannot be argued.
 Hearsay evidence- This evidence is also called as indirect, derivative
or second- hand evidence. In this type of evidence, the witness tells
the court about what he had heard from somebody but has not seen
anything. Thus it can be said that the witness does not tell about the
circumstances with his knowledge but with the knowledge of other
person and what the other person told him. The court does not take
such type of proof seriously.
 Primary oral evidence- Oral evidence means that any announcement
which is made by an observer in the court, who has personally seen
the act, heard it and was present there. This evidence is also called
direct evidence contrary to hearsay. These types of evidences are
taken seriously by the court.
 Secondary evidence- The evidence which is given in the absence of
primary proof is called secondary evidence. Secondary evidence is the
evidence which is extracted from the original ones such as a photocopy
of an original document. At the point when the first archive has been
crushed or lost, and when the party has made a persistent scan for it
and depleted all sources and means accessible for its generation then
the optional proof is allowable.
 Oral evidence- When the proof is restricted to spoken words or by
gestures or motion then it is termed as oral evidence. Oral evidence,
when reliable, is adequate without narration or written proof to
demonstrate a reality or fact. Where a reality can be demonstrated by
oral proof, it isn’t essential that the announcement of the observer
ought to be oral. Accordingly, a speechless individual may give
evidence by signs or by composing. The reality can likewise be
demonstrated or shown by oral proof.
 Documentary evidence- Any evidence which is present as a
document before the court in order to demonstrate or show a
reality. The content of documentary evidence can be separated
into three sections:

1. How the subject matter of document can be demonstrated?

2. How the record is to be proved to be authentic? and
3. How far and in what instance oral evidence is excluded by
documentary evidence?

 Positive and negative evidence- By positive evidence the existence

of reality can be proved and by negative evidence non-existence of
reality can be proved. The people and the court should keep in mind
that negative evidence does not act as a good evidence.
 Substantive and Non-substantive evidence- Substantive evidence
are those evidences on which the court is dependent for the decision of
a case. The non-substantive proof is which either strengthens or
validates the substantive proof to increase its worthiness of belief or
which disproves substantive evidence in order to impair the credibility
of a person.
 Prima facie and conclusive evidence- Prima facie evidence is
accepted valid at a first instance and demonstrates a fact in the
absence of contradictory evidence. Conclusive evidence is that
evidence which is not opposed by any other evidence. It is very strong
that it can bear any other evidence. It is of such a nature that it
compels the person who finds the fact to come to a certain conclusion.
  Pre-appointed and casual evidence- The law prescribes this type of
evidence in advance which is necessary for the demonstration of
certain facts or for the formation of certain instruments. The evidence
which isn’t pre-appointed is called casual evidence. The casual
evidence grows naturally with the surrounding situations.
 Scientific evidence- Scientific proof is proof which serves to either
support or counters a logical hypothesis or speculation. Such proof is
required to be exact proof and translation as per logical strategy.
 Digital evidence- Digital evidence was recognized in Commissioner of
Customs, New Delhi v. M/s. C-Net Communication India Pvt. Ltd., AIR
2007 SC (Supp) 957. In this case, the Supreme Court held that “digital
electronic” would mean that decoder is multiple outputs, input and
logical circuits that changes coded input into a coded output. It was
additionally held that a decoder is a gadget which does the opposite of
an encoder, fixing the encoding so that the first data can be recovered.
 Electronic evidence- This proof can likewise be as electronic record
delivered in court. The proof, even in criminal issues, can likewise be,
by method for electronic records. This would incorporate or comprise of
video conferencing.
 Tape record evidence- The tape itself acts as direct evidence, what
the person has said can be recorded and can be presented before the
court. Any previous statement made by a person can be tape-recorded
and if in the end, the person changes his statement before the court
then the tape-recorded statement can be presented before the court in
order to test the veracity of the witness. Tape recorded evidence is
more authentic than documentary evidence.

Difference between Oral and Documentary Evidence

                  Oral evidence Documentary evidence

Documentary evidence means producing a

Oral evidence means and includes all
document before the court of law and
statements which are made by a
inspection is done by the court in order to
witness in the court.
know the facts.

It is a statement by a witness. It is a statement of documents.

In oral evidence, the witness tells

In documentary evidence, the facts are told
about the facts by speaking or with
and it is recorded in writing.
gestures.
Oral evidence is provided under
Documentary evidence is provided under
Section 59 and 60 of Indian Evidence
Section 61 to 66 of the Indian Evidence Act.
Act, 1872.

Primary evidence is considered as the evidence

which is given in several parts like duplicate
Section 59 of the evidence says that
copies or as counterpart like those which is
it considers all facts as oral evidence
signed by the parties or photocopy of the
except electronic evidence and
document whereas, Secondary evidence
documentary evidence. Section
contains certified copies, that have been made
60 says that oral evidence must be
by the same mechanical process and also
direct.
contain counterparts of the document against
the parties.

For example- any crime has been

committed by a Ram and there is a
person available at the movement For example- a photocopy of a document or
then whatever he heard, sees, photograph.
perceive, or forms an opinion all this
is considered as oral evidence.

Exclusion of Oral and Documentary Evidence

One of the essential standards of the law of proof is that in all cases the best
proof ought to be given. Where the demonstration is exemplified in a record,
the record is the best proof of the reality. The maxim of law is “whatever is
recorded as a hard copy must be demonstrated in the form of hard copy only“.

Section 91 of the Evidence Act- Evidence in the form of contracts,

grants and other dispositions of property should be in the form of a
document. This Section applies similarly to cases in which the agreement,
stipends or disposition of property alluded are contained in one document or has
one record, and cases in which they are contained in a greater number of
reports that one.

If there are more than one original documents, then only one original needs to
be proved. The statement in any document of whatever facts are mentioned
under this Section, shall not prevent the admission of oral evidence as to the
same fact mentioned.
Exceptions
There are two exceptions mentioned under this rule:

 The general guidelines are that when some content of a document is to

be proved in writing, the writing itself must be produced before the
court and if it is not produced then secondary evidence should be
given. Exception- when any public officer is appointed for writing and it
is seen that a particular person has acted like such an officer then in
such situations, the writing by which he has been appointed need not
be proved. Example- Suresh appears as a witness before the court, to
prove that he is a civil surgeon there is no need to show the
appointment order. The surgeon only needs to show that he is working
as a civil surgeon.
 To the general guidelines of content of writing there is one more
exception mentioned under this- At the point when a probate (the copy
of will which is required to be certified by the court) has got based on a
will and subsequently question emerges about the presence of that
will, the mere presence of the probate will demonstrate the presence of
the will and the original will require not to be produced.
Section 92- Exclusion of evidence of an oral agreement.

If any contract, grants or disposition of property which is required by law to be

in writing in form of document and if it has been  proved according to Section
91, then for the purpose of varying it, contradicting it or subtracting it parties or
their representative is not required to give oral evidence and it is not
admissible. Two points are proved from this Section:

1-If any third party gives then it is admissible.

2-If any oral evidence is given which do not contradict the contract then it is
admissible.

Exceptions
 Validity of document
If any contract or grant is made between the parties and fraud is done by other
party or there is a mistake of fact, or mistake of law, or the party is not
competent to contract then in such circumstances oral evidence can be given
and it is admissible.
  Matters on which document is silent
Oral evidence can be given when the documents are silent but subject to these
two conditions are there:

1- The oral evidence should not contradict the document. Illustration – A sells

his horse to B and told about the price but the soundness of horse is not told
but oral evidence can be given that horse is of sound mind because the
document is silent here.

2- In allowing the proof of oral understanding the court is to have respect the
level of the custom of the record. On the off chance that the report is formal,
proof of oral understanding will not be permitted even on issues on which the
record is silent.

 Separate oral agreement as condition precedent

In this situation, it is provided that if there is any condition precedent is
constituted to the existing separate oral agreement to attaching of any
obligations under a  document , then it needs to be proved.

 Recession or modification
This provision permits the proof of oral agreement by which the document was
either revoked or altered. When documents are executed then parties orally
agree to treat it as canceled or alter some of its terms, such oral agreement is
admissible.

 Usages or customs
If there is the existence of any particular usage or customs by which incidents
are attached to a contract then it can be proved.

 Relation of language to facts

If any document is written then oral evidence can be given of such a document
that what is mentioned in and in what circumstances it was mentioned and how
to interpret it but it should not exclusively contradict the document.

Section 93- Exclusion of evidence to explain or amend an ambiguous

document. If the language used in the document is defective or ambiguous,
evidence cannot be given of facts which would show it’s meaning. Illustration- A
agrees to sell his cow to B in writing for Rs. 1500 or Rs. 2000. Evidence cannot
be given to show which price wast to be given.

Section 94- Exclusion of evidence against the application of document

to existing facts. When the language used in the document is correct and
when it applies correctly to the facts mentioned, evidence cannot be given that
it is to be proved that it was not meant to apply on such facts.

Section 95- Evidence as to the document unmeaning in reference to

existing facts. When language used in a document is plain in itself, however,
is unmeaning in reference to existing facts, reality or situations, proof might be
given to demonstrate that it was used in an unusual or different way.

Section 96- Evidence as to the application of the language which can

apply to one of several persons. At the point when the facts are with the end
goal that the language utilized may have been intended to apply to anyone, and
couldn’t have been intended to apply to multiple, of a few people or things,
proof might be given of certainties which shows the people or things, it was
planned to apply to.

Section 97- Evidence as to the application of language to one of two

sets of facts, to neither of which the whole correctly applies. When the
language used is applied partially to other existing facts and partially to other
existing facts but the whole does not apply to either of the facts mentioned.
Evidence can be given to show that which of the two it was meant to apply.

Section 98- Evidence as to the meaning of illegible characters, etc. Proof

might be given to demonstrate the significance of obscured or not ordinarily
clear characters, of remote, out of date, specialized, and provincial expressions,
of abbreviations and of words utilized in an exceptional sense.

Canadian-General Electric W. v. Fatda Radio Ltd held that for the explanation of

artistic words and symbols used in the record oral evidence is admissible and
can be used for that purpose.

Section 99- Who may give evidence of an agreement varying term of

the document? The person who is not a party to a contract or their
representative may give evidence of any fact which do not contradict with the
documents.

Conclusion
The value of documentary evidence is more than oral evidence. The court
mainly accepts documentary evidence but takes oral evidence into
consideration. Briefly, we can say that there are two types of documents- oral
and documentary evidence. In court, documentary evidence has more value.
Court wants best evidence and documentary evidence is the best evidence and
it consists of two parts primary evidence and secondary evidence. Primary
evidence is the best evidence recognized by the court. In the absence of
primary evidence, secondary evidence is given to the Court. On the other hand,
oral evidence is evidence given by words and gestures and are not permanent it
can be changed. Hence Section 91 and 92 exclude oral evidence by
documentary evidence. Proof in the form of a document can be submitted
instead of giving orally.

17. Burden of proof

The Law of Evidence is a critical piece of legislature which supplements Court’s proceedings.
Evidence is the material that establishes a claim or an assertion and enables the Court to come to a
just decision. Oral or documentary evidence should be produced before the Court to prove or
disapprove respective contentions of both parties. The rule of evidence requires the respective parties
to place the best evidence in hand to establish their assertion beyond the reasonable doubt. The Law
of evidence is said to be the law of the forum or the Lex fori.[i]

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act, states that
when a person is bound to prove the existence of a fact, the burden to provide evidence for the same
lies upon him. Chapter VII of the Act deals with provisions under burden of proof. The term “burden
of proof” isn’t defined in the Act, however it is the rudimentary principle of criminal that, that the
presumption of innocence lies with the accused unless proven otherwise.  

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was made by A, the
onus to provide evidence to support such assertion lies upon him.

Principles of Burden of Proof

The principle of Burden of proof is based on the concept of onus probandi (burden of proof)
and factum probans (proving a fact). While the burden of proof remains constant, the onus for the
same shifts from one party to another. The facts that are required to be proved are those which are
not self-evident in nature. In the case of Jarnail Sen v. State of Punjab[ii] that in, if the prosecution fails
to adduce the satisfactory evidence to discharge the burden, they cannot depend upon evidence
adduced by the accused person in support of their defense

Initial Burden of Proof:

In criminal cases, the principle remains constant that the initial burden is on the prosecution to
establish that the accused has committed a crime. If the prosecution fails to establish beyond
reasonable doubt that the accused is guilty, the accused is entitled to an acquittal. [iii] If burden of proof
is put on the shoulders of the wrong party, the Supreme Court states that this would vitiate the entire
judicial system.[iv] Wherein, a landlord seeks eviction of the tenants on the grounds of bona fide
personal need, the onus to establish the same is on him [v]. In the case of Banwari Lal v. Road
transport, where good were lost by the carrier, the burden lies upon him to establish that there was no
negligence on his part.[vi] The defence version may even be false; nevertheless, the prosecution cannot
derive any advantage from the falsity or other infirmities of the defence version, so long as it does
not discharge its initial burden of proving the case beyond ail reasonable doubt. [vii] In the case of Triro
v. Dev Raj,[viii] there was a delay in filing the case going beyond the limitation period, the onus to
justify the delay was on the prosecution.

In matrimonial cases, the principle of burden of proof relating to civil cases is applicable. A party
seeking divorce will have to prove the grounds for divorce such as desertion, cruelty or infidelity. [ix]

Section 102
This section attempts to locate the party, upon whom the burden of proof lays, the burden of proof
lies upon the party whose stance will fail if no evidence is produced by either of the parties. The
burden of proof lies on the party who affirms a fact rather than the party who denies it. [x] In the case of
insanity or unsoundness of mind, the law presumes sanity until proven otherwise. [xi] In the case
of Ram Raja Ram v. Dhruba Charan Jena, the party claiming no consideration under Section 118 of
Negotiable Instruments Act must provide proof for the same. [xii]

Illustration: A sues B for possession of family heirloom, which A asserts was left by his family in
the will, if no evidence is provided by either side, B will retain the family heirloom.

Section 103
The section imposes the responsibility of burden of proof upon the party that wishes the Court to
believe and act upon the existence of a fact. This principles stays unaffected by the fact that a
particular fact being asserted is negative or affirmative.

Illustration: A stole B’s car. B subsequently admitted the same to see. For the Court to believe the
same, A will have to provide evidence that proves admission of theft of car committed by B.

Section 104
This section states that when admissibility of one fact depend upon the existence and admissibility of
another fact, the party which wants to prove it will depend upon the fact that makes the subsequent
fact admissible. 

Illustration: A wants to prove dying declaration of B, A must prove B is dead.

Section 105
This section refers to the exceptions provided to the accused that will serve as benefit of ‘the general
exceptions of the Indian Penal Code or of any of the special laws’. The general principle requires the
Court to presume innocence of the accused until proven otherwise and it is upon the prosecution to
establish the guilt of the accused. Once the guilt is established, the onus then shifts to the accused
who can take the defense of general exceptions in I.P.C.
In Pratap v Stare of U.P. where the probability that the accused had caused death in self-defense was
held to be sufficient even though he had not taken his defense in the committal proceedings. Again
the Supreme Court held that the burden of proving that the case comes within any of the general
exceptions can be discharged by showing a preponderance of probability. Under section 105 of the
Evidence Act the burden of proof is on the accused, who sets up the plea of self-defence, and in the
absence of proof, it is not possible for the court to presume the truth of the plea of self defense.

The standard of proof upon the accused whilst claiming an exception under section 105 is
comparatively lower than that upon a prosecuting party in similar circumstances. An accused may
not have to bring forth evidence to prove innocence beyond a reasonable doubt. However, an accused
when asserting that his particular circumstances fall within an exception under the said provision, he
alone has the onus of proving the same. [xiii] 

Section 106
Under the said provision, any person who is said to be aware of a particular fact has the onus of
proving such a fact is upon him. The section uses the term “Specially within knowledge” denoting
that the possession of such knowledge also shifts the burden of proof upon the possessor.

An example would be the case of Eshwarai v. Karnataka[xiv] wherein a man and a woman were found
in the bedroom of person who had been killed due to extensive injuries, the burden to prove the
rationale of their presence was upon them. It was assumed that since they are present at the scene of
the crime, they would specially have knowledge regarding the circumstances under which the death
of the person was caused.

Burden upon affirmation:

A general trend that the Indian Evidence act follows is that of shifting the burden of proof onto a
person who affirms a fact or assertion. The same is visible in various provisions of the act. The
rationale behind the same is that if a person asserts something, he may also prove the same. Such
instances can be found in sections 107 to 110. Section 107 states that if a person who was alive
within the last 30 years is said to be dead by another person, the person affirming the same must
prove the death. Similarly, under section 108, person who hasn’t been heard from in 7 years and is
therefore presumed dead, the burden of proving that the person is on whomsoever affirms it. The
situation is similar under section 109 which talks about establishing relationships between partners,
landlords – tenants & principal – agents and under section 110 regarding assertions of ownership.
Whoever affirms it, must prove it.

Presumption as to Burden of Proof

Section 111 to 114 lay down certain specific conditions that define the party upon which the burden
of proof lies. These provisions envisage the exceptions to the doctrine of “Innocent Until Proven
Guilty”.[xv] These enumerated conditions go against the doctrine by shifting the onus onto the accused
to prove innocence, as opposed to the prosecution proving guilt. There are various examples in the
Indian evidence act:

Section 111A
This sec. states that a person accused of the commission of certain offences under the Indian Penal
Code such as conspiracies against the government etc. in a disturbed area is presumed to be guilty
and must prove his innocence, thereby putting the burden of proof onto him.

Section 112
It lays down that in the event a child is born during the course of a marriage or within 280 days of its
dissolution, he may be presumed to be the legitimate child of his father. This was characterized in the
case of Smt. Dukhtar v. Mohd.Farooq[xvi] as the father would have the burden to prove that the child is
not his or would owe the same obligations as he would to a legitimate child. 

Sections 113A & 113B

These create presumptions against the husband and his family in cases of allegations of harassment,
cruelty and dowry death. The burden of proof is on the husband and his family to show innocence.

Section 114
It allows the court to presume certain facts such as that the possession of stolen property means that
the person is the thief. Another example would be that when a person refuses to answer a question
put to him in court, the presumption would be that if he had given the answer, it would be
unfavorable for him. Various other cases have been enumerated in section 114 which allow for the
court to presume the existence of certain facts and accordingly shift the burden of proof. These
presumptions generally go against the generally established principles of burden of proof. The
burden of proof is always upon the party against whom the presumption works. [xvii]

The general principle, when it concerns the burden of proof, is that the person who makes a particular
assertion has the onus of proving the same. This is based on the rationale that the party who seeks to
initiate action against another by the way of judicial dispute resolution must also be forced to prove
why the other party must undergo the said process. The Indian evidence Act allows for the courts to
shift the burden of proof onto the other party, in contradiction of the principle above, but only in
specific instances. The threshold for proof also decreases in certain cases when that happens.
18. Witnesses
Introduction
A witness is a person who has personally seen an event happen. The event
could be a crime or an accident or anything. Sections 118 – 134 of the Indian
Evidence Act, 1872 talks about who can testify as a witness, how can one
testify, what statements will be considered as testimony, and so on. 

Capacity of witness
A witness who needs to testify before the Court must at least have the capacity
to understand the questions that are posed to him and answer such questions
with rationality. Sections 118, 121 and 133 of the Act talks about the capacity
of a witness. 

Who may testify?

Any person who has witnessed the event is competent to testify, unless – the
Court considers that they are unable to understand the questions posed to
them, or unable to give rational answers as prescribed in Section 118. 

Rational answers should not be expected from those of tender age, extreme old
age, or a person with a mental disability.

The section says that generally, a lunatic does not have the capacity to testify
unless his lunacy does not prevent him from understanding the question and
give a rational answer.

Can a child testify?

A small child of even 6 or 7 years of age can testify if the Court is satisfied that
they are capable of giving a rational testimony.

In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole

eyewitness of murder was a child of 13 years old, who worked as a house
servant where the incident took place.
He identified the accused persons in the Court. However, the accused persons
had no prior animosity with the deceased and were acquitted as the case could
not be proved against them beyond reasonable doubts.

The Supreme Court on this matter held that – the child had no reason to falsely
implicate the accused, as the accused raised him and provided him with food,
shelter, clothing, and education.

Therefore, the testimony of a child cannot be discarded as untrue.

In Dhanraj & ors v. the State of Maharashtra, a child of class VIII was a witness
to the event. The Apex Court observed that a student of 8th standard these
days is smarter, and has enough intelligence to perceive a fact and narrate the
same.

The Court held that the statement of a child who is not very small is a good
testimony for the same reason.

Therefore, a child can testify provided that he is not a toddler.

Witness unable to communicate verbally

Section 119 of the Act says that a person who is not able to communicate
verbally can testify by way of writing or signs.

A person who has taken a vow of silence and is unable to speak as a result of
that vow will fall under this category for the purpose of this Section.

In the case of Chander Singh v. State, the High Court of Delhi observed that the
vocabulary of a deaf and dumb witness may be very limited and due care must
be taken when such witness is under cross-examination.

Such witnesses may not be able to explain every little detail and answer every
question in detail using the sign language, but this limitation of vocabulary does
not in any way mean that the person is any less competent to be a witness. A
lack of vocabulary does not affect her competence or credibility in any way.

If a dumb person can read and write, the statements of such persons must be
taken in writing. The same was held by the Supreme Court in State of
Rajasthan v. Darshan Singh.
Can judges testify?
A judge or a magistrate is not compelled to answer any question regarding his
own conduct in the Court, or anything that came to his knowledge in the Court
– except when asked via special order by a Superior Court as stated in Section
121.

He may, however, be subject to examination regarding other matters that

happened in his presence while he was acting as a judge or a magistrate.

For a better understanding of this provision, let’s look into the illustrations
provided.

 Harry is being tried before the Court of Session. He says that

deposition was improperly taken by Magistrate Draco. Draco is not
obligated to answer unless there is special order by a Superior Court.
 Hermoine is accused of having given false evidence before the Court of
Magistrate Draco. He cannot be asked what Hermoine said unless there
is a special order by a Superior Court.
 Ron is accused of attempting to murder a witness during his trial in the
Court of Magistrate Draco. Draco may be examined regarding the
incident.
This section gives a judge or a magistrate the privilege of a witness and if he
wishes to give it away, no one can raise any objection. 

So, if a magistrate has been summoned to testify regarding his conduct in the
Court, no one can raise any objection if he is willing to do so.

A magistrate or a judge is a competent witness and they can testify if they want
to but they are not compelled to answer any question regarding their conduct in
the Court.

Can a Judge testify in a case being tried by him?

We have already seen that a judge can be a competent witness if he wants, but
what if the case is being tried by himself?

In the case of Empress v Donnelly, the High Court of Calcutta stated that a

Judge before whom a case is being tried must conceal any fact that he knows
regarding the case unless he is the sole judge and cannot depose as a witness.
It was held that such a judge cannot be impartial on deciding the admissibility
of his own testimony. He will not be capable of comparing his own testimony
against that of others. 

If he has to testify, then he must leave the bench and give away his privileges
in order to act as a witness in the case.

Can accomplice be a witness?

Section 133 of the Act says that an accomplice to a crime is competent to be a
witness against the accused. The conviction made on the basis of such
testimony is not illegal.

An accomplice is a person who is guilty of helping the accused to commit a

crime. He can be appropriately described as a partner in the crime of the
accused. 

In the case of C.M. Sharma v. The State of A.P, it was held that if a person has
no other option than to bribe a public officer for getting his work done, such a
person will not be considered as an accomplice. 

Cases of bribery are difficult to corroborate as bribes are usually taken where no
one else can see, but, in this case, there was a shadow witness who
accompanied the bribe giver (a contractor in this case) and the case could be
corroborated with his help.

The public officer pleaded to treat the contractor to be treated as an accomplice,

but his plea was rejected on the ground that the money was extracted from the
contractor against his will.

Therefore, an accomplice is someone who has either wilfully participated in

committing a crime with an accused or helped him in some manner. If he has
been forced to break any law against his will, then he may not be regarded as
an accomplice.

It is also clear from this case that an injured person or a victim will be a
competent witness in a case. This type of witness is called ‘injured witness’.

In the case of Khokan Giri v. The State of West Bengal, it was held by the Apex
Court that even though an accomplice can be a competent witness, it would not
be very safe to make a decision solely relying on his testimony. 
The Court suggested that the testimony of an accomplice should not be
accepted by any court without corroboration of material facts. Such
corroboration must be able to connect the accused with the crime and it must
be done by an independent, credible source. This means that one accomplice
cannot corroborate with another.

With respect to corroboration of statements given by an accomplice, in another

case of Sitaram Sao v. State of Jharkhand, the Supreme Court held that Section
133 must not be read by itself, but, should be read with Section 114(b) which
says that an accomplice is not worthy of credit unless corroborated with
material particulars. 

This Apex Court further says that the Court should always presume that an
accomplice is unworthy of credit, and no decision must be made solely based on
his testimony unless the facts have been corroborated.

Types of accomplices
For the purposes of this section, accomplices can be divided into three
categories.

 The principal in the first degree: Also called ‘principal offender’, this

is a person who has actually committed the crime. There can be
multiple persons who committed the crime together, each one of them
will be principal offenders.
For example – Harry and Ron plan to murder Tom.
                   – Both drive to Tom’s house and shoot him.

In this case, Harry and Ron both are the principal offenders.

 The principal in the second degree: This refers to someone who is

present at the crime scene and helps the principal offender in any
way. 
For example – Ron and Harry plan to murder Tom.
                    – Ron provides Harry with weapons.
                    – Harry drives to Tom’s house and shoots him.

In this case, Harry is the principal offender and Ron is the principal of the
second degree.
How many witnesses can there be?
There is no prescribed number for minimum or maximum witnesses to be in a
case in any provision. Section 134 lays down the same. It says that there is no
requirement of a particular number of witnesses to prove any fact.

In the case where there are multiple witnesses that have seen the same event,
not all of them are required to be examined for proving a fact, examining two or
three of them would be enough to establish the case.

The same was held in the case of Amar Singh v. Balwinder Singh, wherein the
Supreme Court said that if out of all the witnesses, only two or three have been
examined, it will not mean that the prosecution was incorrect.

The credibility of a single witness

It is a general rule that goes unsaid that the Court must act on the testimony of
a witness even if he is the only one and his statements are uncorroborated. 

In the case of Ramesh Krishna v. the State of Maharashtra, there were multiple

witnesses who could not stand with their statements given during the
investigation. On the other hand, one of them stood firmly with his statement
who was deemed to be a credible witness.

The Court, in this case, held that – the testimony of one credible witness will
outweigh the same given by other questionable witnesses.

A witness is considered to be credible if he stands by his statements and the

same can be proved later on.

Witnesses may also need to identify the accused person, and there is no
minimum number of witnesses required to identify an accused in order to get
him sentenced. 

In Binay Kumar v. the State of Bihar, the Supreme Court said the same; it held
that there is no rule of evidence that conviction can not happen unless there is a
particular number of witnesses to identify the accused. 

Any conviction is not influenced by the quantity of the witnesses but by the
quality and credibility of witness testimonies.
Conclusion
The laws in India regarding competence and protection of witnesses are up to
par and are legislated keeping everyone in mind. Judiciary has further
strengthened this act by way of interpretations, broadening its scope and
applicability.

It is irrelevant whether a person can speak or not, if he is capable of

understanding questions and answering them, he is capable of being a witness.

19. Competency, Reliability&

Protection of Witnesses
Introduction
In the words of Whittaker Chambers, a witness is “a man whose life and faith
are so completely one that when the challenge comes to step out and testify for
his faith, he does so, disregarding all risks, accepting all consequences.”Witness
in a trial is a person who has some relevant knowledge of the dispute and gives
evidence thereof.

According to Manu, a person becomes a witness either because he has seen

something or heard something. Witness is the one, who deposes to fill in the
lacuna in the story of prosecution and defence. Thus, witnesses are the
backbone of the case.

Under the Indian Evidence Law, every person is competent to testify as a

witness as long as he understands the questions put by the court and gives
rational answers thereof. Religion caste, sex, age play no role at all in deciding
he competency of a witness. Once a court is satisfied that the person has the
mentally capability to answer the questions rationally, he is allowed to give his
testimony and help in completing the story involved in the case.

Section 118, Indian Evidence Act, 1872 states the qualification of the persons
who can testify. The section is reiterated as below:

S.118 Who may testify: All persons shall be competent to testify unless the
Court considers that they are prevented from understanding the questions put
to them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any other cause of the
same kind. 
Therefore, the disqualifications as provided in the act are:

1. Tender age
2. Extreme old age
3. Disease of mind or body which renders the person incompetent to
understand the questions and answer rationally.
4. Any other cause for instance unconsciousness, drunkenness, extreme
bodily pain etc.
In other words, witness is that dramatis personae whose attendance in re is
indispensable to establish the happening. Jeremy Bentham defines a witness as;

 “…..those who are accustomed to reflect on ideas, know well how much idea
depend on words. According to him, the word witness is employed to mark two
different individuals or the same individual in two different situations; the one
that of perceiving witness, that is of one who has seen or heard or learned by
his senses the fact concurring which he can give information when examined
and the other that of a deposing witness, who states in a court of justice the
information which he has acquired. The term witness then may be applied to
the parties themselves who have an interest in the case as well as to all those
whom it is commonly employed to designate….”

History & Importance

According to Yajnavalkya Smriti, Part IIch.II. v. 22, in ancient India, proof was
considered to be of two kinds:

1. Human
2. Divine
Human proof is furnished by

1. Document- Lekhya
2. Witnesses- Sakshi
3. Enjoyment or possession- Bhukti
     Divine proof is usually of 5 kinds:

1. Ordeal by Balance – Ghata,

2. by fire – Agni,
3. by water –Udaka,
4. by poison – Visha,
 5. by drinking water – Kosa.
The Human proof was always considered primary proof and divine proof
subordinate to human proof. The Shastras laid down that truth shall always be
established by means of a Sakshi i.e. a witness-in conflicts and disputes.

As stated in B. Guru Rajah Rao, The Ancient Judicature, 98 (Ganesh & co.
Madras 1920), The ancient Hindu law insisted on high moral qualifications in a
witness in all matters and did not permit any one being picked up from streets
or from the court premises and made to depose.The term Sakshi itself connotes
that witnesses could only speak to what they had themselves seen or had
heard.

In the case of (Mahender Chawla v Union of India, 2016)[i], A.K Sikri J.

stated:

The importance of the witness, particularly in a criminal trial is highlighted in a

book in the following manner:

“In search of truth, he plays that sacred role of the sun, which eliminates the
darkness of ignorance and illuminates the face of justice, encircled by devils of
humanity and compassion.The value of witnesses can’t be denied, keeping in
view the dependency of the criminal proceedings on the testimonies and
cooperation of witnesses in all the stages of the proceedings, especially in those
cases where the prosecution has to establish the guilt with absolute certainty
via oral cross-examination of witnesses in hearings open to the world at large.
In such cases, the testimony of a witness, even if not as an eye witness, may
prove to be crucial in determining the circumstances in which the crime might
have been committed…”

Notwithstanding the same, the conditions of witnesses in Indian Legal System

can be termed as ‘pathetic’. There are many threats faced by the witnesses at
various stages of an investigation and then during the trial of a case.[ii]

To ensure fair trial, both the sides must be allowed to produce witnesses to
prove their case. Witnesses, whether corroborated or uncorroborated, are
administered the oath and required to present before the court whatever they
had seen or heard on their own. Hearsay evidence is generally rejected by the
court since it is unreliable. The information provided by the witness, along with
other evidence on record, helps the judge in deciding the case.

Types of witness
Witnesses can be of three types; namely:
Factual Witness
Any person who has seen or heard the crime on his own i.e. a person who was
present at the time of occurrence of the offence. The factual, ordinary or a
regular witness knows the circumstances under which the crime was committed
and can be totally relied upon provided the court is satisfied with the veracity of
his statements.For instance, in case of a murder, if the factual witness on being
administered the oath, testifies that the murder by the accused was committed
as a result of grave and sudden provocation, the case will take a major turn and
accused be convicted for the offence of culpable homicide not amounting to
murder.

Expert Witness
Any person who has a special expertise about any element of the crime or
offence and which is usually beyond the understanding of an ordinary man is
called an expert witness. Whenever a judge suffers with the understanding of a
particular element, an expert witness may be called by any of the parties to the
case. Such witnesses analyse the facts of the case and give their opinions to the
court.  Doctor, psychologist, accountant, handwriting expert, forensic expert,
etc are all expert witnesses whose testimonies are helpful in deciding the case.
However, expert evidence is not a substantial piece of evidence and may be
required to be corroborated.

Character Witness
Such witnesses are required to describe the character and standing of the
accused in the society. The objective of character evidence is to establish that
the accused is less likely to have committed the offence because they possess
good character. Such evidence is usually given when the accused has already
been convicted and the judge has to decide the sentence to be imposed upon
him. For instance, in a defamation case, character witness is usually called to
testify and then the such witness is cross examined by the other side.

Chance Witness
If by coincidence or chance a person happens to be at the place of occurrence
at the time it is taking place, he is said to be a chance witness.The term has
been borrowed from foreign country where every person values the privacy of
his house and the presence of other shall have a reasonable explanation. The
testimony of the chance witness in favour of the accused must be scrutinised
carefully and cautiously more so if he happens to be the relative or friend of the
victim, his subsequent conduct can also be taken into consideration for testing
the credibility and reliability of his deposition. Evidence given by the chance
witness whose presence cannot be explained or is doubtful must be discarded
by the courts.

Hearsay Witness
Hearsay witnesses are those who have given the statements on the basis of
what they have heard from the third person. The testimony of such witnesses is
generally excluded. Such witness is unreliable as he has not observed the event
on his own and is not qualified to depose on oath. The testimony of only those
witnesses who have heard seen or perceived the occurrence with their own
senses is admissible unless the statement is covered by Sec. 32 of Indian
Evidence Act, 1872.

Test of Reliability
The judges are considered to be the gatekeepers i.e. they are, using their
judicial mind, required to exclude all the testimonies of different witnesses
which are unreliable.

The test of reliability is important to avoid wrongful convictions. According to

Blackstone’s ratio, the idea is that “It is better that ten guilty persons escape
than that one innocent suffer.” This idea has now become a staple of legal
thinking under criminal jurisprudence. A witness, if reliable, helps to reach the
doors of justice. There is no straitjacket solution for testing the veracity of
witnesses, however, it must not depend on the caprice of the judge and jury,
rather there should be some scientific reason to accept or reject the testimony
of the witnesses.

 WITNESS CREDIBILITY & RELIABILITY ASSESSMENT

When the witness’s statements are recorded, it is the job of the
investigator/prosecution to see the level of confidence which can be attributed
to each part of the statement. Sometimes, the witness is also one of the
offenders and there comes the witness-suspect dilemma i.e. such a witness
cannot be relied upon as he is to give self serving statements both for himself
and his accomplice. A proper witness interview must be conducted and variety
of leading questions must be asked. An in-depth cross examination must be
done. In a recent judgement, SC observed that cross examination is not a
child’s play and must be done only by an experienced lawyer.
  VOIRE DIRE TEST
Voire Dire means to speak the truth. It is generally conducted before the
examination-in-chief by the lawyer wherein the lawyer asks several preliminary
questions from the witness to check his veracity & credibility. If the answers
received are not satisfactory, the witness is out rightly rejected however if the
answers received are satisfactory, the lawyer can contradict the witness using
other evidence on record and prove that the witness is unreliable and hence
incompetent.

Position of witness child

As stated above, there is no rule to reject the testimony of a child witness based
on his age. The earlier criterion to rely on the testimony of a child was based on
his age. It was considered that children were more prone to tutoring and lived
in the world of their own and hence could imagine stories and state things which
they did not really witness themselves. As per the Section 4 of the Oaths Act,
1969, all witnesses must be administered oath, however; this section does not
apply to a child witness below 12 years of age, As it is believed that a child
below 12 years of age does not have a sufficient level of maturity and
understanding. But now the present trend states that a child can be a reliable
and competent witness, if in the opinion of the court, they appear to possess a
degree of understanding. Scientific research shows that a child can be a reliable
witness, as once they have witnessed something; they have the tendency to
remember that for a long period of time. The admissibility of the testimony of a
child witness depends upon the good sense and discretion of the judge.

In the case of State of Maharashtra v. Dama Shinde[iii], it was observed

that it was not possible for a child to remember each and every detail of the
offence they witnessed and therefore, it was not reliable.

In Nivruti v. State of Maharashtra[iv], the court stated that Children were

pliable and liable to the influence easily and therefore proper scrutiny of their
testimony was required.

If on scrutiny, it’s found that there was no tutoring and the testimony was
straightforward, trustworthy and inspired confidence, then there was no need of
corroboration. The same view was taken in State of U.P. v. Krishna Master&
Ors.[v]. However, as a rule of prudence, there must be some additional
evidence if the child witness is involved in anycase. The independent evidence
must be able to connect the accused with the commission of the crime.
Testimony of one child is not sufficient to corroborate the testimony of the
other. If there is no direct evidence involved then the court may look into the
circumstantial evidence which proves sufficient connection between the accused
and the crime. However, a child witness is not required to give affidavit in the
court. In Ghewar Ram v. State of Rajasthan[vi], it was held that once the
child witness was found competent, his inability to give affidavit or take or
understand oath or affirmation or omission in administering the oath had,
neither invalidated the proceedings nor made his testimony inadmissible.

Position of Witnesses Unable to Communicate Verbally

‘Language is much more than words’

In Criminal Law (Amendment) Act, 2013 section 119 of the Indian Evidence Act,
1872 was amended and its scope was widened. Prior to the said amendment,
Section 119 talked about the competency of dumb witnesses.However, post
amendment; it now talks about the witnesses who are unable to communicate
verbally owing to physical deformity or vow of silence.

S.119 Witness unable to communicate verbally:  A witness who is unable to

speak may give his evidence in any other manner in which he can make it
intelligible, as by writing or by signs; but such writing must be written and the
signs made in open Court, evidence so given shall be deemed to be oral
evidence:

Provided that if the witness is unable to communicate verbally, the Court shall
take the assistance of an interpreter or a special educator in recording the
statement and such statement shall be video graphed.”

Earlier, it was considered that deaf and dumb people were idiots and
incompetent to understand and give rational answers. But now, due to the
scientific advancement, it has been proved that these people are far more
intelligent than others and may understand the nature of the oath. The oath can
be administered to them and their evidence can be taken with the help of an
interpreter by means of deaf and dumb alphabets/sign language or face
expressions, hand gestures etc. or if the person is literate, he can be given the
list of questions and he can write the answers thereto. However, these evidence
would be admissible only when both the witness and the interpreter are
administered the oath and sign language used by the person unable to
communicate verbally and the interpretation thereof by the interpreter are
video graphed.

In the era of silent movies and Charlie Chaplin, silence was considered golden
as the facial and body languagecommunicated the ideas though novel signs and
gestures and had enabled the audience to comprehend the intended message. A
person’s face and body language form 55% of the communication and convey
more reliable information and thus, the use of body language to give evidence
can never be discarded.

In the case of MeesalaRamakrishan v. State of Andhra Pradesh[vii], the

apex court stated:

“…we would state that the “sign language” developed so much by now that it
speaks quite well. We may refer in this connection to what has been mentioned
about this language at pp. 120 to 123 of Encyclopaedia Britannica, Vol. 7, 1968
Edn., wherein the history of the education of the deaf has been dealt with. A
perusal of the same shows that the educators of the deaf are divided into those
who favour the manual (sic language) system supplemented by articulation and
those who favour the speech and lip reading, vetoing the manual language. At
p. 796 of Vol. IO of the aforesaid Encyclopaedia, something more has been said
about “sign language”. Reference has even been made to what a certain Mehar
Baba, an Indian religious figure, had done in this regard. As to this Baba it has
been noted that he abstained from speech in the last decades of his life, but
“dictated” voluminous writings to his disciples, at first by pointing to letters on
an English language alphabet board; but, after evolving a suitable sign language
of gestures, he relied on that alone. If volumes can be dictated by this method,
a short message of the type at hand can definitely be conveyed by gestures.”

In case of State of Rajasthan v. Darshan Singh[viii], the Hon’ble Supreme

Court observed that:

“a deaf and dumb person is a competent witness. If in the opinion of the Court,
oath can be administered to him/her, it should be so done. Such a witness, if
able to read and write, it is desirable to record his statement giving him
questions in writing and seeking answers in writing. In case the witness is not
able to read and write, his statement can be recorded in sign language with the
aid of interpreter, if found necessary. In case the interpreter is provided, he
should be a person of the same surrounding but should not have any interest in
the case and he should be administered oath.”

The Hostility of a Witness

A witness turns hostile when he ruins the case of the party by whom he was
called to testify. In other words, the witness who becomes adverse to his own
party is called a hostile witness. Witnesses are the foundation stone on whom
the entire wall of prosecution’s case is built and if the witnesses turn hostile, the
case of prosecution would fall and is no longer a fair trial as most likely the
witnesses have been threatened, coerced, induced or bought by the other side.
This renders the case paralyzed.
In Panchanan Gogoi v. Emperor[ix], it was observed that a hostile witness is
one who from the manner in which he gives evidence shows that he is not
desirous of telling the truth to the court, Within which is included the fact that
he is willing to go back upon previous statements made by him.

However, only because a person gives evidence which is favourable to the other
party does not necessarily mean that he has turned hostile. It is only when, in
the opinion of the judge that the witness has been gained over by the other
party, that the judge will reject his testimony and label him hostile.

In R.K. Dey v. State of Orissa[x], it was observed that the duty of the witness
was to furnish the true details of the crime as were seen/heard by him and not
to favour the party which called him. Hence, an unfavourable testimony did not
turn the witness hostile.

The hostility may not always be expressed, it can as well be inferred from the
demeanour, temper, attitude, sympathy of witness towards the accused or
disinclination to attend the court proceedings or answer the questions.

Once the prosecution feels that the witness is giving unfavourable answers, it
can request the court to allow cross examination of the witness i.e. the
prosecution itself can put such questions to the witness as may be asked from
him by the other party. If during cross examination by the party to his own
witness, it is found that the witness has been gained over by the other party,
the court can reject the testimony of the witness. However, India does not
follow ‘Falsus in unofalsus in omnibus’ which translates to False in one thing,
false in everything. In other words, u/s 154(2) of the Indian Evidence Act,
1872, the part of the statement of the hostile witness which supports the party
shall be admissible and the other part shall be discarded by the court.

A party cannot onits own declare the witness hostile, it is only the judge, in
whose opinion the witness has – 1. Suppressed the truth; 2. Caused harm to
the party’s disadvantage, can declare the witness hostile. There should be some
material to show that the witness has retracted from his earlier statement and
is no more desirous of telling the truth to the court or has exhibited the element
of hostility or has changed sides.

When a party is confronted with a hostile witness, it has three courses of action:

1. With the permission of the court, the party calling the witness may-
put leading questions (Sec. 143); cross-examine the witness (Sec.
145) or put questions which tend to test his veracity or shake his credit
(Sec. 146).
 2. Impeach the credit of a witness (Sec. 155) i.e. expose the real
character of the witness so that the court may not trust him. This can
be proved by introducing an independent evidence to show that the
witness in question is unworthy of credit or has been corrupted by
inducement or threat or by proving that the witness has been giving
inconsistent statements.
3. If the hostile witness was required to prove a fact in issue or a relevant
fact then the party may call any other witness to depose to the fact
and destroy the adverse effect of hostile witness’ evidence.

Witness Protection: The Lifeline Of A Criminal Trial

Jessica Lal, Priyadarshini Mattoo, Nitish Katara cases, deaths of material witness
of Vyapam scam and Asaram case throw light on the failure of investigation and
miscarriage of justice in India. All these cases point towards the hostility of
witnesses and travesty of justice. There are several reasons for the hostility of a
witness. The other party in order to win acquittal, might induce, threaten,
coerce or lure the prosecution witnesses. The witnesses are often given threats
of retaliation or physical violence to depose against the prosecution. A person
who is poor or disadvantaged by caste or gender may turn hostile due to the
grave threats and intimidations. Sometimes, political pressure or fear of police
or annoyance caused by frequent adjournment of proceedings can also turn the
witness hostile.

In order to ensure fair trial and delivery of justice, Witness Protection

Scheme(WPS) should be implemented. Such programme will help the party to
protect its witness from unnecessary inducement and threats from the opposite
party.

WPS will inspire the confidence of the witness and, knowing that he is under the
protective shield of the State, he will be able to bring the truth of the
occurrence of crime in the knowledge of the court. In ZahiraHabibulla H.
Shiekhand Anr. v. State of Gujarat[xi]  it was said, “If the witnesses get
threatened or are forced to give false evidence that also would not result in a
fair trial.” And therefore it becomes of utmost importance that witnesses, the
bulwark of investigation and prosecution, have faith and trust in the criminal
justice system and come forward to assist the justice delivery authorities.

In case of Neelam Katara v. Union of India & Ors.[xii](14.10.2003), The Delhi

High Court stated that the competent authority (Member Secretary, Delhi Legal
Services Authority) on receiving a request from the witness shall determine
whether the witness requires police protection and to what extent and for what
duration. The factors to be taken into consideration while extending the police
protection to the witness by the competent authority are as follows:
 1. The nature of the risk to the security of the witness which may
emanate from the accused or his associates.
2. The nature of the investigation or the criminal case.
3. The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the witness.
4. The cost of providing police protection to the witness.
The Court also issued direction viz-a-viz the obligations of the police such as:

1. While recording statement of the witness Under Section 161 Cr.P.C., it

will be the duty of the Investigating Officer to make the witness aware
of the “Witness Protection Guidelines” and also the fact that in case of
any threat he can approach the Competent Authority. This the
Investigation Officer will inform in writing duly acknowledged by the
witness
2. It shall be the duty of the Commissioner of Police to provide security to
a witness in respect of whom an order has been passed by the
Competent Authority directing police protection.
The above-mentioned directions and guidelines are applicable only within the
NCT of Delhi.

Recently, The Punjab and Haryana Court (The Bench of Justices Rajiv Sharma
and Harinder Singh Sidhu) also issued 10 commandments for protection of
witnesses. The Bench directed all the Trial Courts in Punjab to grant
adjournment for next day only on under special circumstances and the
examination of witnesses must be done on continuous basis. It was held that
witness is an integral part of the system therefore they should be provided with
some necessary facilities such as short or long term insurance, installation of
security devices at their homes including security doors, CCTV cameras and
alarms, providing boarding and lodging facility in case the recording of
statements spill over the next date, providing travel allowance, audio-video
recording of their statements, relocating the witnesses, giving them new
identity and the police were directed to have emergency contact number of the
witnesses, ensure regular patrolling around their houses and escort them to and
from the courts on government vehicles.

As per the proposed Witness Protection Scheme, 2018 by National Legal

Services Authority, following are the rights of witnesses:

1. Right to give evidence anonymously.

2. Right to protection from intimidation and harm.
3. Right to be treated with dignity and compassion and respect of privacy.
 4. Right to information of the status of the investigation and prosecution
of the crime.
5. Right to secure waiting place while at Court proceedings.
6. Right to transportation and lodging arrangements.
The proposed scheme also talks about the various measures in proportion to the
threat and for a specific duration; the protection of identity; change of identity;
relocation of witnesses; confidentially and preservation of records; recovery of
expenses, etc.

It is important to prevent the witch-hunting of witnesses by the accused and

provide them with the formal rights so that they are not afraid to testify even
against the accused that is politically or financially powerful and influential.

Suggestions & Conclusion

Witnesses, who are considered the cornerstone of the criminal justice
administration, are the primary oral evidence of the commission of crime. Based
on their testimony, along with other evidence on record, the judge has to decide
the case which ultimately affects the rights of parties to the case. Witnesses of
the case are like a foundation stone on whom the strength of the case is
dependent. A witness sometimes may be competent but not compellable owing
to the privileges provided under the Act. Such witnesses cannot be compelled to
depose and therefore their testimony is inadmissible. We have seen a colossal
change in the opinion of the courts regarding the competency of a child witness
and a witness who is incapable of communicating verbally. An applaudable
Witness protection Scheme has been proposed by National Legal Services
Authority in 2018 however, India still has a long way to go before it can ensure
the safety of the witnesses. Owing to the majority of political figures facing
criminal charges against them, the witnesses in their cases are always under
the grave threat of death or harm to person and property. India’s criminal
justice system suffers from some major loopholes and hence fails to ensure the
confidentiality and safety of witnesses. Whether the Witness protection Scheme
as proposed will be a success or not depends upon thelevel of penalties and
punishment for the witness tampering or intimidation. Nonetheless, it has been
able to ignite the confidence within the witnesses to support the truth and bring
the criminal trial to the door of justice.
20. Examination and Cross-
Examination of Witnesses
Introduction
The examination of witnesses is an integral part of a criminal trial. Witness
testimonies are one of the most reliable evidence because the person giving the
statements has personally witnessed the event happen. Section 135–165 of the
Evidence Act, 1872 deals with examination and cross-examination of witnesses.
This article will cover each section one by one, along with case laws.

Admissibility of evidence
Under the Evidence Act, 1872 Section 5 states that evidence is admissible only
when it supports a relevant fact in issue. It is further provided in Section
136 that the judge may ask the parties if the evidence they have adduced deals
with a relevant fact or not.

For evidence to be admissible in Court, the judge must be convinced that the
evidence is relevant and does help establish a relevant fact in issue.

Examination Order
Witnesses are required to answer the relevant questions presented to them. A
question asked to a witness must be relevant to a fact in issue, and must help
establish the same. Their answers when recorded are called testimonies of
witnesses. This questioning of the witness and recording their answers is called
witness examination.

Examination of witness
Examination of a witness is asking the witness questions regarding relevant
facts in the case and recording the statements of witnesses as evidence. There
are three parts to the examination of a witness and Section 138 of the Evidence
Act states that the witness must be examined in the following order:

 First, the party that called the witness examines him, this process is
called examination-in-chief as mentioned under Section 137 of the
Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party
wants to, they can take over the witness and cross-question him about
 his previous answers. The opposite party may ask him any question
regarding all the relevant facts and not merely the facts discussed
during the examination-in-chief. This process has been described in
Section 137 of the act as cross-examination.
 If the party that called the witness sees the need to examine the
witness again after cross-examination, they may examine the witness
one more time. This has been laid down as re-examination in Section
137 of the Indian Evidence Act, 1872. 
Section 138 states that the re-examination must be directed by the Court for
explaining matters referred to in cross-examination. The section further states
that if any new fact or issue arises during re-examination, the opposite party
can further cross-examine the witness on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court
of Jammu and Kashmir that- cross-examination might not be necessary if the
witness testimony is prima facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to

his statements, his testimony can be rejected and there is no need for cross-
examination in that case.

The examination of a witness must be done specifically in the sequence

mentioned under Section 138. In the case of Sharadamma v. Renchamma, it
was held that examination-in-chief must be done before the cross-examination.
The opposite is neither possible nor permissible.

Examination of non-witness

Section 139
Apart from witness testimonies, there are numerous other forms of evidence
admissible in the Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them.

A person might be called just in order to produce a document. Section 139 of
the Act states that- such a person called in for producing documents, does not
become a witness. 

He can be examined in order to establish the credibility of the document. But,

he cannot be cross-examined unless he has been called as a witness. 
Section 140
Section 140 talks about the character of a party. “Character” of someone refers
to their quality or characteristics that distinguish them. Especially mental and
moral characteristics. It also includes a person’s reputation in society.

The section states that the witness to a party’s character can be cross-
examined if the examination-in-chief has already been completed. 

The evidence of character is helpful to assist the Court in determining the value
of statements given by the witnesses.

Leading Questions
While examining, cross-examining, or re-examining a witness, the parties must
refrain from asking leading questions. Leading questions have been described
in Section 141 of the Act as- any question that suggests the answer which the
person questioning expects to receive.

One party must object if the other party asks a leading question to the witness.

A leading question suggests the witness the answer, for example:

 “You saw Harry wearing a black robe, didn’t you?”

This question by itself suggests that Harry was wearing a black robe,
this question is leading the witness to reply with what the questioner
wants.
 “What was Harry wearing?”
The answer to this question could be the same as the previous one,
however, there are no suggestions in the question. It is a simple
question and not leading in any way. These types of questions are
permitted.
This is because the witness must answer every question by himself as he is the
one who has witnessed the fact. If there is a suggestion in the question, the
questioner would be feeding responses to the witness.

Can leading questions be asked to a witness?

Even though asking leading questions is prohibited by Section 141 as it feeds
the witness with responses and must be objected by the opposite party when
asked to a witness. However, Section 142 says that leading questions can be
asked in an examination-in-chief, or in a re-examination if the Court permits.

The section further states that leading questions can be permitted by the Court
in cases where the facts are introductory or undisputed or those in the opinion
of the Court have already been sufficiently proved.

The same was supported by the High Court of Kerela in the case of Varkey
Joseph v. the State of Kerela. 

Section 142 does not mention asking leading questions during cross-
examination. But, Section 143 states that leading questions can be asked even
in cross-examination.

Leading questions cannot be asked in examination-in-chief, cross-examination,

or re-examination only if objected by the other party. Such questions may be
asked if the other party does not object.

Even when a leading question has been objected, it is at the discretion of the
Court whether to allow it or not and the discretion will not be interfered by the
Court of appeal or revision except in extreme cases.

Oral evidence of written documents

Section 144 states that any witness may be asked questions regarding the
contents of a document or contract that is not present in the document. If the
witness gives statements regarding such documents, it must be produced
before the Court.

The opposite party can object to such evidence until it has been produced in the
Court.

For example:

 Harry claims that overheard Hermoine telling Ron that “Tom has
written a letter threatening to kill my family and I will kill him before
he can do anything”.
This statement is relevant in showing Hermoine’s intention for the
murder, and evidence may be given for it, though no other evidence is
given about the letter.
If a witness is giving evidence regarding a contract, grant or any other
disposition of property he may be asked whether there is a documentation of
the same. If he answers with yes, then Section 91 of the Act becomes
applicable and oral evidence of the terms of the said document will not be
permitted.

In the case of Atul Bora v. Akan Bora, the Court held that Section 144 has no
application when the witness is sought to be cross-examined by the election-
petitioner, has not been asked any question on any contract, grant or other
disposition of property.

Cross-examination on previous statements

Every statement given by a witness must be reduced to writing. He can on a
later stage of cross-examination be contradicted on his prior made statements.

Section 145 of the act states that such contradictions can be made in relevant
questions without showing the writings to the witness before they are proved.
Once the statements have been proved to be true, there is no use of
contradicting the witness then.

In the case of Purshottam Jethanand v. The State Of Kutch, the Court observed
that this section does not help the accused to get the statements made during
the investigation, but it does help him to use such statements in case he
somehow obtained them. The statement on which the witness is being
contradicted must be relevant to the matter issue.

Lawful Questions
The witness’s statements will be taken as evidence by the Court, but it must be
proved that the witness is actually telling the truth. Section 146 states that
during cross-examination of a witness, he may be in addition to the
aforementioned questions also be asked questions that try to:

 Test his accuracy or truthfulness.

 Understand more about the witness and his position in life.
 To shake his credit by questioning his character.
Even though the answers to these questions have the capacity to directly or
indirectly criminate or expose him or directly or indirectly lead him to penalty or
forfeiture, the witness is compelled to answer such questions.

However, the section does not permit to adduce any evidence or ask any
questions in cross-examination that may include the victim’s moral character or
previous sexual experience with any person.

Is the witness compelled to answer?

Section 147 of the Act states that if any question related to a relevant issue of
the case, then Section 132 shall be applicable.

Section 132 says that the witness will not be excused from answering any
question on the grounds that the answer might criminalize him or lead to a
penalty or forfeiture on any question regarding a relevant issue in the case.

The proviso to the section says that no such answer shall subject him to arrest
or prosecution or be proved against him in any criminal proceeding. Apart from
prosecution for giving false evidence by his statements.

It is mentioned in Section 148 of the Act, that the Court must decide whether a
witness should be compelled to answer or not.

This statute provides the witness with protection from aggressive cross-
examination. He is not obligated to answer questions that:

 Injures his character, or

 Doubts his credibility.
In Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal, it has been pointed
out that such questions relate to relevant facts and are relevant only to the
issue whether the witness should or should not be believed.

In cases where the decision is solely dependent on oral evidence, it is most

important to answer such questions.

Therefore, the Court can decide when a witness is compelled to answer

questions and if the questions tend to criminalize him in any way, he cannot be
prosecuted on the basis of his statements. He has been granted protection by
the statute.
Questions must be on reasonable grounds
No question must be asked to the accused without any reasonable ground as
mentioned in Section 149 of the Evidence Act. 

The section states that any questions referred to in Section 148 are to be asked
only when there are reasonable grounds to ask such questions that might injure
the witness’s character or expose him.

 To understand the provision better, let’s look at illustrations of Section 149:

 A barrister is informed by an advocate that the witness is a dacoit. This

is a reasonable ground to ask whether the witness is a dacoit or not.
 When nothing is known about a witness and he is randomly asked
whether he is a dacoit. There are no reasonable grounds for this
question.
It is clear upon reading the illustration that this Section also intends to protect
the witness from getting his character injured.

Further, Section 150 mentions that if any barrister, pleader, vakil or attorney

asks such questions as mentioned above, without any reasonable grounds, then
the Court must report the matter to the High Court or other authority to which
such advocate is the subject in the exercise of his profession.

Forbidden Questions
The Court has been conferred with the power under Section 151 to forbid such
questions that are indecent or scandalous. 

In the case of Mohammad Mian v. Emperor, it was held that these questions
may only be allowed if they are related to the matter and are regarding a
relevant fact in issue, or essential for finding out whether some fact in issue
exists.

The Court can also forbid questions that are intended to insult or annoy as
stated in Section 152 of the act. The section further states that the Court might
forbid a question even if it is proper, but the Court thinks that it is needlessly
offensive in form.
Questions should not attack the witness’s character
A question asked during an examination of a witness must establish a fact in
the case, it should not be asked merely to shake his credit or injure his
character. It is stated in Section 153 of the Act.

It says that if any question has been asked and the witness has answered it and
it only causes injury to the witness’s character, no evidence shall be given to
contradict him. Unless he answers falsely, in which case he will be charged for
giving false statements.

There are two exceptions to this section, which are:

 If a witness has been asked whether or not he was previously

convicted. On denial of the witness, the evidence regarding the proof of
his previous conviction can be given.
 If a witness has been asked a question that impeaches is impartiality,
on denial of witness, he may be contradicted.
It means that if a party has sufficient grounds to believe that the
witness is not impartial, they may contradict him and try to furnish
proof.
In the case of State of Karnataka v. Yarappa Reddy, the Supreme Court added
that the basic requirement for adducing such contradictory evidence is that the
witness, whose impartiality is in question, must be presented with evidence and
asked about it and he should have denied it.

Without adopting such preliminary measures, it would be meaningless and

unfair to bring a new witness to speak something fresh about a witness already
examined.

To understand this better, here’s a hypothetical situation:

 A claims to have seen B at Delhi on a certain date,

 A is asked whether he himself was at Calcutta that very day or not,
 A denies it,
 Evidence is adduced to show A was actually in Calcutta.
The evidence is admissible, not as contradicting A on the fact which affects his
credit but as contradicting the alleged fact that he saw B in Delhi on that same
date. The same was held in the case of Reg. v. Sakharam Mukundjee.
Questions by a party to his own witness
Section 154 of the Evidence Act allows a party who calls a witness to ask any
question to their own witness like they are cross-examining him. 

Sometimes a witness can turn hostile and it is necessary for the party that
called a witness to cross-examine him if such a situation occurs. 

In the case of Sat Paul v. Delhi Administration, the Supreme Court has

interpreted this section and defined a hostile witness as one who is not willing,
to tell the truth when a party calls him.

For the purpose of cross-examination under this section, there must be enough
evidence to show that the witness is not telling the truth and he has turned
hostile as held in Atul Bora v. Akan Bora.

In the State of Rajasthan v. Bhera, the Court observed that a previous

testimony of a hostile witness can be used as evidence as they are still on
record. If the party does not resist the hostility of the witness, then it is upon
the Court to find out the truth.

The Section clearly states that it is the discretion of the Court to allow such
cross-examination or not. In Mattam Ravi v. Mattam Raja Yellaiah, the Court
held that:

 The Courts have a legal obligation to exercise their discretionary

powers in a judicious manner by proper application of mind and
keeping in view the attending circumstances.
 Permission for cross-examination with regard to Section 154 cannot
and should not be granted on mere asking.

Impeaching credit of witnesses

If the witness has turned hostile, his credit can be impeached by the opposite
party, or by the party that calls him (subject to permission from the
Court). Section 155 provides three ways of doing so:

1. By calling such a person who can from their personal experience and
knowledge testify against the witness and establish that the witness in
question is unworthy of credit.
 2. By furnishing proof that the witness has taken a bribe, or has accepted
to take a bribe, or any other incentive to turn hostile.
3. By showing inconsistency in his former statements and contradicting
him to the extent permitted by Section 153 as held in Zahira
Habibullah Sheikh v. Sate of Gujarat.

Corroboration of evidence
Sometimes merely asking the most relevant fact may not be enough to obtain
all the necessary facts from a witness. Some questions that do not seem very
much connected to the relevant fact can be asked if they help corroborate such
fact.

Section 156 allows parties with the permission of the Court to beat around the
bush a little with the intention of connecting the dots and establishing the
relevant fact in issue.

Previous statements given by the witness can also be used to corroborate the
later testimony regarding the same fact as prescribed under Section 157 of the
Act.

The prior statements do not need to be given to the Court, it can be any
conversation regarding the facts of the case. 

In the case of Rameshwar v. State of Rajasthan, a young girl had been raped
and she had told her mother about it. Later that statement of the girl given to
her mother was corroborated with her other statements in order to establish the
case.

It is stated in Section 158 of the act that any statement which is relevant
under Section 32 or 33 and has been proved, all matters have to be proved in
order to confirm or negate it, or for impeaching or crediting the person that
made such statement, to the extent as if that person had been called as a
witness.

Refreshing Memory
We humans, sometimes tend to forget things and it is extremely important to
keep remembering the entirety of the facts if we have been called as a witness.
Someone’s life could be at the line and our statements may help the Court
serve justice to someone. A witness may be under a lot of pressure and due to
all the stress he might need to refresh his memory.

Section 159
That is why Section 159 of the Evidence Act says that a witness can refresh his
memory while under examination.

He may do so by referring to any writing made by himself at the time of the

event taking place regarding which he has been questioned, or a while later as
long as the Court considers it to be fresh in his memory.

The witness can also refer to someone else’s notes prepared within the
aforementioned time frame, and decide whether it is correct or not.

The section further says that the witness may use a copy or photocopy of a
document with the permission of the Court in order to refresh his memory.

The word ‘writing’ for the sake of this section includes printed matter. A witness
who heard a speech may refer to his memory by referring to a newspaper
account of it if he read it soon afterwards, and if, at the time he read it, he
knew it to be correct.

Section 160
This section states that a witness must testify to the facts that were mentioned
in any such document as mentioned in Section 159. It is irrelevant whether he
remembers all the facts that were recorded with every little detail as long as he
is certain that the facts have been recorded correctly by him.

To better understand this section, we need to look into the illustration provided
in the section, which says:

 A book-keeper will need to testify the facts he has recorded in the

books regularly kept during the course of his business. 
 He might not be able to remember every detail about his entry, but as
long as he knows that the facts entered were correct and the book was
kept correctly, he is good to go.
The fundamental difference between Section 159 and Section 160 is that:
  The former talks about the recollection of memory of the witness and
not the document.
 Whereas, in the latter, the document itself becomes evidence of the
facts mentioned therein.

Section 161
This section states that any writing or document mentioned in the last two
sections above must be produced and provided to the opposite party if they
require it.

The opposite party may cross-examine the witness over the document if the
need be.

When a document is produced under Section 161, it becomes subject to a

general inspection and cross-examination by the opposite party.

But the cross-examination on the portion referred to by the witness does not
make the document evidence against the cross-examiner.

It has been made clear in the case of Pran Dutt v. State of Uttar Pradesh that a
statement of record by the investigating officer such as police reports,
under Section 161 is not usable for contradicting a witness.

Production of documents

Section 162
This section says that a witness when summoned to produce a document must
produce it if he has it in his possession. 

If there are any objections with regard to its production or admissibility, the
Court will deal with it. The Court may also inspect the document unless it refers
to matters of the state. 

In case the documents need to be translated, it can be done so by a translator

who must keep the contents confidential. If the translator leaks the content of
the said document, he shall be charged under Section 166, IPC for disobeying
the law.
Section 163
This section mentions that when a party asks another party for a document to
be produced, and it has been produced and inspected by the party that asked
for it, he must give it as evidence if the party producing thinks fit.

To understand this better, let us say:

 Harry and Ron are parties to a case.

 Harry wants a document that is in possession of Ron.
 Harry must give Ron notice to produce the document.
 After receiving the notice, Ron has given the document to Harry.
 Harry has inspected the document given by Ron.
 Now, Harry must give that document as evidence to the Court if Ron
says so.

Section 164
This Section talks about the consequences when a party upon receiving the
notice to produce a document, does not do so.

If under the aforementioned situation:

 Ron does not give the document to Harry.

 If sometime later, Ron wants to use that document as evidence, he will
not be able to do so without Harry’s consent.

Power of the judge

Section 165 of the Evidence Act talks about the power of the judge to pose
questions and order the production of evidence.

In order to procure proof of relevant facts, the judge may ask any question that
suits him. It does not matter whether the question posed by him is relevant or
irrelevant. The question may be asked at any time during the trial, it may take
any form and he could ask anyone, be it the witness or the parties.
However, the judge cannot compel the witness to answer his questions and his
decisions should not be solely based on his questions. The decisions must be
based on relevant facts and evidence produced.

Conclusion
The Indian Evidence Act, 1872 is very necessary for protecting the witnesses,
letting him speak freely without the fear of prosecution.

Judicial interpretations have brought significant positive changes in this act to

meet the needs of the time and have made some provisions more practical.

Also refer>>>>>>>>>>>
Introduction : 

    Part III , Chapter X, Section 135 to Section 166 of The Indian Evidence Act Deals
with the Provisions of Examination of witnesses .

1) Order of Production and Examination of Witness  (Section 135) 

    The order in which witness are produced and examined shall be regulated by the
law and practice for the time being relating to civil and criminal procedure
respectively, and in the absence of any such law, by the discretion of the Court. 

2) Judge to decide as to admissibility of evidence (Section 136)

       When either party proposes to give evidence of any fact, the Judge may ask
the party proposing to give the evidence in what manner the alleged fact, if proved,
would be relevant; and the Judge shall admit the evidence if he thinks that the fact,
if proved, would be relevant, and not otherwise.

       If the fact proposed to be proved is one of which evidence is admissible only
upon proof of some other fact, such last-mentioned fact must be proved before
evidence is given of the fact first mentioned, unless the party undertakes to give
proof of such fact and the Court is satisfied with such undertaking.

         If the relevancy of the alleged fact depends upon another alleged fact being
first proved, the Judge may, in his discretion, either permit evidence of the first fact
to be given before the second fact is proved or acquire evidence to be given of the
second fact before evidence is given of the first fact.

Illustrations 

    (a) It is proposed to prove a statement about a relevant fact by a person alleged
to be dead, which statement is relevant under section 32. The fact that the person
is dead must be proved by the person proposing to prove the statement, before
evidence is given of the statement.

    (b) It is proposed to prove, by a copy, the contents of a document said to be

lost. The fact that the original is lost must be proved by the person proposing to
produce the copy, before the copy is produced.

    (c) A is accused of receiving stolen property knowing it to have been stolen. It is
proposed to prove that he denied the possession of the property. The relevancy of
the denial depends on the identity of the property. The Court may, in its discretion,
either require the property to be identified before the denial of the possession is
proved, or permit the denial of the possession to be proved before the property is
identified.

    (d) It is proposed to prove a fact (A) which is said to have been the cause or
effect of a fact in issue. There are several intermediate facts (B, C and D) which
must be shown to exist before the fact (A) can be regarded as the cause or effect of
the fact in issue. The Court may either permit A to be proved before B, C or D is
proved, or may require proof of B, C and D before permitting proof of A. 

3) Examination of Witness : Stages in Examination of Witness (Section

137)

    There are three Stages of Examination of Witness, Examination-in-

chief, Cross-Examination and Re-examination.

i) Examination-in-chief :
         The examination of a witness, by the party who calls him, shall be called his
examination-in-chief.

See in detail >>>>> Examination-in-Chief

ii) Cross-examination :
          The examination of a witness by the adverse party shall be called his cross-
examination.

See in detail >>>>> Cross-Examination

 
iii) Re-examination : 
           The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.

See in detail >>>>> Re-Examination

4) Leading Questions (Section 141 to Section 143): 

Meaning: 
     The expression "Leading Questions" literally means a question which itself
suggest answer. As expected by the person asked the same, any questions which
leads to answer, or a question which is pregnant with the answer.

Definition:
              Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions'
as, “Any questions suggesting the answer which the person putting it wishes or
expects to receive is called a leading question."

Bentham:
             Bentham defines leading questions as," A question is a leading one, when
it indicates to the witness the real or supposed fact which the examiner expects and
desires to have confirmed by the answer.

Examples 
           a) Is your name so and so?

           b) Do you reside in such and such a place?

           c) Are you not in service of such and such person?

           d) Have you not lived with him for so many years?

           e) Did you see him enter X's office and take a file?
          It is clear that under this form every sort of information may be conveyed to
the witness in disguise. It may be used to prepare him to give the desired answers
to the questions about to be put to him; the examiner, while he pretends ignorance
and is asking for information is, in reality, giving instead of receiving it.

When  leading Questions  must not be asked  (Section 142) :

      Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in re-examination, except with the permission of the Court.
           The Court shall permit leading questions as to matters which are
introductory or undisputed or which have, in its opinion, been already sufficiently
proved.

When Leading Questions may be asked ? 

 
According to Section 143 of Indian Evidence Act 1872 Leading questions may be
asked in Cross-examination 

Examination as to matter in Writing  (Section 144) :

              Evidence as to matters in writing Any witness may be asked whilst under
examination, whether any contract, grant or other disposition of property as to
which he is giving evidence, was not contained in a document, and if he says that it
was, or if he is about to make any statement as to the contents of any document,
which, in the opinion of the Court, ought to be produced, the adverse party may
object to such evidence being given until such document is produced, or until facts
have been proved which entitle the party who called the witness to give secondary
evidence of it.

Explanation – 

 A witness may give oral evidence of statements made by other persons about the
contents of documents if such statements are in themselves relevant facts.

 Illustration 

         The question is, whether A assaulted B. C deposes that he heard A, say to D
– “B wrote a letter accusing me of theft, and I will be revenged on him. “This
statement is relevant as showing A’s motive for the assault, and evidence may be
given of it, though no other evidence is given about the letter.

Cross-examination as to previous statements in writing (Section 145) : 

         A witness may be cross-examined as to previous statements made by him in

writing or reduced into writing and relevant to matter in question, without such
writing being shown to him, or being proved; but if it is intended to contradict him
by the writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.

Questions lawful in cross-examination (Section 146) :

       When a witness is cross-examined, he may, in addition to the questions

hereinbefore referred to, be asked any questions which tend —

       (1) to test his veracity,

       (2) to discover who he is and what is his position in life, or

       (3) to shake his credit, by injuring his character, although the answer to such
questions might tend directly or indirectly to criminate him, or might expose or tend
directly or indirectly to expose him to a penalty or forfeiture.

      Provided that in a prosecution for an offence under section 376, section 376A,
section 376B, section 376C, section 376D or section 376E of the Indian Penal Code
(45 of 1860) or for attempt to commit any such offence, where the question of
consent is an issue, it shall not be permissible to adduce evidence or to put
questions in the cross-examination of the victim as to the general immoral
character, or previous sexual experience, of such victim with any person for proving
such consent or the quality of consent.

When witness to be compelled to answer (Section 147) :

          If any such question relates to a matter relevant to the suit or proceeding,
the provisions of Section 132 shall apply thereto.

Court to decide when question shall be asked and when witness compelled
to answer (Section 148) 
           If any such question relates to matter not relevant to the suit or proceeding,
except in so far it affects the credit of the witness by injuring his character, the
Court shall decide whether or not the witness shall be compelled to answer it and
may, if it thinks fit, warn the witness that he is not obliged to answer it.

In exercising its discretion the Court shall have regard to the following
considerations;

         (1) Such questions are proper if they are of such nature that the truth of the
imputation conveyed by them would seriously affect the opinion of the Court as to
the credibility of the witness on the matter to which he testifies.

         (2) Such questions are proper if they are of such nature that he truth of the
imputation conveyed by them would seriously affect the opinion of the Court as to
the credibility of the witness on the matter to which he testifies.

        (3) Such questions are improper if there is a great disproportion between the
importance of the imputations made against the witness’s character and the
importance of his evidence.

        (4) The court may if it sees fit, draw from the witness’s refusal to answer, the
in ference that the answer if given would be unfavorable.

Question not to be asked without reasonable grounds (Section 149)

      No such question as is referred to in Section 148 ought to be asked, unless the
person asking it has reasonable grounds for thinking that the imputation which it
conveys is well-founded.

Illustrations 

(a) A barrister is instructed by an attorney or vakil that an important witness is a

dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) A pleader is informed by a person in court that an important witness is a dakait.

The informant, on being questioned by the pleader, gives satisfactory reasons for
his statement. This is a reasonable ground for asking the witness whether he is a
dakait.
(c) A witness, of whom nothing whatever is known, being questioned as to his
mode of life and means of living gives unsatisfactory answer. This may be a
reasonable ground for asking him if he is a dakait.

(d) A witness, of whom nothing whatever is known, being questioned as to his

mode of life and means of living gives unsatisfactory answer. This may be a
reasonable ground for asking him if he is a dakait.

Procedure of Court in case of question being asked without reasonable

grounds (Section 150)

            If the court is of opinion that any such question asked was without
reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or
attorney report the circumstances of the case to the High court or other authority to
which barrister, pleader, vakil or attorney is subject in the exercise of his
profession.

Indecent and scandalous questions Section 151

         The Court may forbid any question or inquiries which it regards as indecent
or scandalous, although such questions or inquiries may have some bearing on the
questions before the Court unless they relate to fact in issue or to matters
necessary to be known in order to determine whether or not the facts in issue
existed.

Question intended to insult or annoy (Section 152) 

      The Court shall forbid any question which appears to it to be intended to insult
or annoy, or which, though proper in itself, appears to the Court needlessly
offensive in form.

Exclusion of evidence to contradict answer to questions testing veracity

(Section 153 )

         When a witness has been asked and has answered any question which is
relevant to the inquiry only in so far as it tends to shake his credit by injuring his
character, no evidence shall be given to contradict him, but if he answers falsely,
he may afterwards be charged with giving false evidence.

Exception (1)
       If a witness is asked whether he has been previously convicted of any crime
and denies it, evidence may be given of his previous conviction.

Exception (2)

      If a witness is asked any question tending to impeach his impartiality, and
answers it by denying the facts suggested, he may be contradicted.

Illustrations 

     (a) A claim against an underwriter is resisted on the ground of fraud. The
claimant is asked whether, in a former transaction, he had not made a fraudulent
claim. He denies it. Evidence is offered to show that he did make such a claim. The
evidence is inadmissible.

     (b) A witness is asked whether he was not dismissed from a situation for
dishonesty. He denies it. Evidence is offered to show that he was dismissed for
dishonesty. The evidence is not admissible.

     (c) A affirms that on a certain day he saw B at Lahore. A is asked whether he
himself was not on that day at Calcutta. He denies it. Evidence is offered to show
that A was on that day at Calcutta. The evidence is admissible, not as contradicting
A on a fact which affects his credit, but as contradicting the alleged fact that B was
seen on the day in question in Lahore. In each of these cases the witness might, if
his denial was false, be charged with giving false evidence.

     (d) A is asked whether his family has not had a blood feud with the family of B
against whom he gives evidence. He denies it. He may be contradicted on the
ground that the question tends to impeach his impartiality.

Question by party of his own witness (Section 154) 

               The Court may, in its discretion, permit the person who calls a witness to
put any question to him which might be put in cross-examination by the adverse
party.

Who is hostile witness ? when a party cross examine his witness?

Impeaching credit of witness (Section 155)

Questions tending to corroborate evidence of relevant fact, admissible
(Section 156) 

           When a witness whom it is intended to corroborate gives evidence of any

relevant fact, he may be questioned as to any other circumstances which he
observed at or near to the time or place at which such relevant fact occurred, if the
Court is of opinion that such circumstances, if proved, would corroborate the
testimony of the witness as to the relevant fat which he testifies.

Illustration 

            A, an accomplice, gives an account of robbery in which he took part. He

describes various incidents unconnected with the robbery which occurred on his
way to and from the place where it was committed. Independent evidence of these
facts may be given in order to corroborate his evidence as to the robbery itself.

Former statements of witness may be proved to corroborate later

testimony as to same fact (Section 157) 

              In order to corroborate the testimony of a witness, any former statement

made by such witness relating to the same fact, at about the time when the fact
took place, or before any authority legally competent to investigate the fact, may
be proved.

What matters may be proved in connection with proved statement relevant

under Section 32 or 33 (Section158) 

             Whenever any statement relevant under Section 32 or 33 is proved, all

matters may be proved either in order to contradict or to corroborate, or in order to
impeach or confirm the credit of the person by whom it was made, which might
have been proved if that person had been called as a witness and had denied upon
cross-examination the truth of the matter suggested.

Refreshing memory (Section 159) 

         A witness may, while under examination refresh his memory by referring to
any writing made by himself at the time of the transaction concerning which he
questioned, or so soon afterwards that the Court considers it likely that the
transaction was at that time fresh in his memory. The witness may also refer to any
such writing made by any other person and read by the witness within time
aforesaid, if when he read it he knew it to be correct When witness may use copy of
document to refresh his memory -

          Whenever a witness may refresh his ness may refresh his memory by
reference to any document, he may, with the permission of the Court, refer to a
copy of such document. Provided the Court be satisfied that there is sufficient
reason for the non-production of the original. An expert may refresh his memory by
reference to professional treatises. Comments Objection to check records not legal
Objection to check records or entries by investigating officer is not legal and liable
to be rejected; State of Karnataka v. K. Yanappa Reddy, 2000 Cr LJ 400.

Testimony to facts stated in document mentioned in Section 159 (Section

160) 

       A witness may also testify to facts mentioned in any such document as is

mentioned in Section 159, although he has no specific recollection of the facts
themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

       A book-keeper may testify to facts recorded by him in books regularly kept in
the course of business, if he knows that the books were correctly kept, although he
has forgotten the particular transactions entered.

 Right of adverse party as to writing used to refresh memory (Section 161)

           Right of adverse party as to writing used to refresh memory - Any writing
referred to under the provisions of the two last preceding Sections must be
produced and shown to the adverse party if he requires it; such party may, if he
pleases, cross-examine the witness there upon.

Production of document (Section 162)

     A witness summoned to produce a document shall, if it is in his possession or

power, bring it to the Court, notwithstanding any objection which there may be to
its production or to its admissibility. The validity of any such objection shall be
decided on by the Court. The Court, if it sees, fit, may inspect the document, unless
it refers to matters of State, or take other evidence to enable it to determine on its
admissibility. Translation of documents If for such a purpose it is necessary to
cause any document to be translated, the Court may, if it thinks fit, direct the
translator to keep the contents secret, unless the document is to be given in
evidence : and, if the interpreter disobeys such direction, he shall be held to have
committed an offence under section 166 of the Indian Penal Code (45 of 1860).

Giving, as evidence, of document called for and produced on notice

(Section 163) 

       When a party calls for a document which he has given the other party notice to
produce, and such document is produced and inspected by the party calling for its
production, he is bound to give it as evidence if the party producing it requires him
to do so.

Using, as evidence, of document, production of which was refused on

notice (Section 164) 

              When a party refuses to produce a document which he has had notice to
produce, he cannot afterwards use the document as evidence without the consent
of the other party or the order of the Court.

Illustration

          A sues B on an agreement and gives B notice to produce it. At the trail, A
calls for the document and B refuses to produce it. A gives secondary evidence of
its contents. B seeks to produce the document itself to contradict the secondary
evidence given by A, or in order to show that the agreement is not stamped. He
cannot do so.

Judge’s power to put questions or order production (Section 165) 

          The Judge may, in order to discover or to obtain proper proof of relevant
facts, ask any question he pleases, in any form at any time, of any witness, or of
the parties about any fact relevant or irrelevant; and may order the production of
any document or thing; and neither the parties nor their agents shall be entitled to
make any objection to any such question or order, nor, without the leave of the
Court, The Orient Tavern cross-examine any witness upon any answer given in
reply to any such question.

        Provided that the judgment must be based upon facts declared by this Act to
be relevant, and duly proved.
        Provided also that this Section shall not authorize an Judge to compel any
witness to answer any question or produce any document which such witness would
be entitled to refuse to answer or produce under Sections 121 to 131, both
inclusive, if the questions were asked or the documents were called for by the
adverse party; nor shall the Judge ask any question which it would be improper for
any other person to ask under Section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases herein before excepted.

 Power of jury or assessors to put questions (Section 166)

      In cases tried by jury or with assessors, the jury or assessors may put any
question to the witnesses, through or by leave of the Judge, which the judge
himself might put and which he considers proper.

21. Privileged Communications

Introduction
Evidence is an essential part of a trial as it is used to establish any relevant fact
and reach a conclusion. Evidence can be in many forms; witness testimony is
one of them. A witness can testify based on any event they have seen or any
communication they have heard or been a part of.

However, some conversations do not need to be disclosed, even if required

during a trial. Such conversations are known as privileged communications.
These communications can be privileged because of personal or professional
reasons.

Communications during marriage

The communications between a husband and a wife have been given the status
of privileged communication under Section 122 of the Evidence Act. It states
that a married person:

 Shall not be compelled to disclose any communication made to them

during the marriage by their spouse or ex-spouse.
  They are not permitted to disclose anything without their spouse’s or
ex-spouse’s consent even if they are willing to.
In the case of S.J Choudhary v. The State, the Court held that compelling
spouses to disclose their private communications is far worse than not getting
any information at all. Therefore, such communications must be privileged.

The idea behind this privilege is that if testimonies are accepted from private
communications between spouses, such testimonies have the power to destroy
household peace among families and create a domestic broil. It will hamper the
mutual trust and confidence between the spouses and weaken the marital bond.

What communication is confidential?

Under this section, it is irrelevant whether the communication was sensitive or
confidential in nature or not. Any conversation or communication between a
husband and wife is privileged no matter what the means of communicating
was. The same was held in the case of Emperor v. Ramachandra.

However, this rule was overruled in the case of Bhalchandra Namdeo Shinde v.
the State of Maharashtra, wherein the Court laid down that Section 122 must
not have any broad interpretations that expand the scope of this section.

The literal rule of interpretation must be followed if the Court has to interpret it
and the scope must be kept limited because it reduces the scope of admissibility
of evidence in the 

Court, which could be very essential in any case.

The Court further held that communication for the purpose of this Section would
refer to only verbal or written words said by a spouse and not their actions. 

The wife, in this case, was called in to give testimony against her husband who
was being tried for allegedly committing a  murder. She was allowed to testify
regarding his conduct and actions but not the communication between them.

Also, for the purpose of this Section, the communication must be made only by
a spouse during a marriage for it to be privileged. Any communication made
before the marriage or after its dissolution will not have this privilege.

In the case of Ram Bharosey v. The State of Uttar Pradesh, the Court laid down
that mere doing of an act in the presence of the spouse can not be considered
as communication between them. It is not like any domestic act will be
considered as communication. Communication must be conveyed in some way;
be it verbal, or non verbal.

In the instant case, the wife has seen her husband coming down from the roof
and then coming out of the bathroom again with changed clothes. The wife
testified regarding the same and the testimony was admissible as the act of the
husband was not a communication.

Is this privilege absolute?

The privilege provided under Section 122 is for the welfare of the marital bond
shared between spouses and for protecting their families.

However, this privilege is not absolute and information can be disclosed if:

 The person who made such communication or their representative

gives free consent; or
 There is a suit between a married couple; or
 One of the spouses has been prosecuted for any crime committed
against the other.
In the case of Nawab Howladar v. Emperor, a widow wanted to act as a witness
and disclose communications made by her deceased husband. 

The Court held that in order to be admissible as evidence – the consent for
disclosure must be express and can not be implied. In case there is no
representative in interest, it would be impossible to obtain consent and
therefore such communication is entirely inadmissible.

A widow is not a representative in the interest of her deceased husband, and

hence, cannot give her consent.

Further, the Court clarified that communications between spouses must be

confidential only if it had happened during the marriage and not before
marriage or after the dissolution of marriage.

Any conversation made before marriage or after its dissolution is not protected
by this provision. For example:

Situation 1

 Ron and Hermoine are soon to be married;

  Ron tells Hermoine how he committed fraud.
 Hermoine’s testimony is admissible before the Court as the
communication was not made during the marriage.
Situation 2

 Harry and Ginny are husband and wife.

 Harry tells Ginny about how he diverted funds to his own account.
 Ginny’s testimony will be inadmissible as the communication was made
during their marriage.
Situation 3

 James and Lily have recently been divorced.

 Lily tells James about how she stole the gold.
 James can testify regarding the same and his testimony will be
admissible as the parties were not married during such communication.

Professional Privileges
Communications made between an attorney and his client is a privileged one,
and no one can compel either the advocate or his client to disclose anything
regarding the same.

Section 126 of the Act says that – no barrister, attorney, pleader or vakil is
permitted to disclose any communication made to him by his client during the
course and for the purpose of his employment without the consent of his client.

The privilege under this Section is applicable to anyone who is registered as a

legal practitioner in India and falls under the aforementioned categories, which
simply means an advocate.

In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that
everyone has the right to a fair trial, and for obtaining such right one might
need to seek help from an attorney.

People have a hard time trusting their advocates and are often scared of
sharing the entire facts with them. They are under constant fear that their
advocate might expose them. With the fear of being exposed in mind, they
might not be able to express their problems properly and get proper legal
advice.
To ensure that advocates cannot expose their clients, the conversations
between them have been made privileged under this act.

In order for a conversation to be privileged under this section, the client-

attorney relationship must exist when the communication took place. Any
communication made with a lawyer before actually appointing him is not
protected under this Section.

Similar to Spousal Privileges, this privilege is not absolute. The Act itself states
that this privilege does not apply under some conditions. Communication in
furtherance of an illegal purpose could be one example of the same. 

In order to understand this better, let’s look at some illustrations.

Situation 1

 Harry, a client, says to Ron, an attorney – “I have murdered a man

and the body is in my freezer. I want your advice on how I should get
rid of it”. This communication is made in furtherance of a criminal
purpose, it is not protected from disclosure.
Situation 2

 Hermoine wants to appoint Draco as her lawyer but Vakalatnama (a

document empowering an advocate to represent his client in the Court)
has not been signed yet.
 She tells Draco about how Tom was brutally killed by her and her
friends.
 The communication is not protected from disclosure because the client-
advocate relationship does not exist as the Vakalatnama has not been
signed yet.
Situation 3

 Harry, a client, says to Ron, an attorney – “I stole a BMW and sold its
parts in the black-market”. This communication is protected from
disclosure as the crime is already done and the client-advocate
relationship exists between them.
State Privileges

Affairs of the State

Section 123 of The Indian Evidence Act states that no person is allowed to give
any evidence that may be derived from any unpublished records of any state
affairs.

Unless with the permission of the officer-in-charge or the head officer at the
concerned department. Such an officer can give or withhold permissions
regarding the same as he thinks fit.

In the case of Duncan v. Cammell Laird & Co. Ltd, it was held that in case such
a situation arises, the Court is bound to accept the decision of the public-officer
without any questions.

Further, the decision ruling out of such documents is entirely the decision of the
Judge. It is the Court who is in charge of a trial and not the executive.

The phrase “Affairs of State” has not been per se described in this section or
any other provision in this Act. So, it is not very practical for the judiciary to
come up with a single definition of the phrase.

Therefore, the Court must determine whether any documents fall under this
category, depending upon the facts and circumstances of every case. However,
it is clear that only the Court has the power to decide whether any document
can be classified as an ‘unpublished document of state affairs’.

Official Communications
Section 124 of the Evidence Act talks about official communications. It states
that a public officer can not be compelled to disclose any communication made
to him in official confidence if he believes that such disclosure could harm the
public interests.

While Section 123 talks about unpublished documents related to affairs of the
state, section 124 restrains the disclosure of all communication made in an
official capacity, be it in writing or not and it is immaterial whether they relate
to state affairs or not.
In the case of in re. Mantubhai Mehta, it was held that it is upon the Court to
determine whether a document is a communication made to a public officer in
official confidence and if the document does not deal with any affairs of the
State, it may be taken up as evidence.

While determining whether the communication was made in official confidence

or not, only primary evidence must be used and the same cannot be determined
by secondary evidence, as laid down by the High Court of Madras
in Sivasankaram Pillai v. Agali Narayana Rao.

Secret Informants
Section 125 of the Evidence Act states that a Magistrate or a Police Officer can
not be compelled to reveal as to how they got any information regarding the
commission of a crime. 

The section further states that a Revenue Officer can not be compelled to reveal
as to how he got any information regarding the commission of any offence
against the public revenue.

For example:

Situation 1

 Harry is a Police Officer.

 Someone told Harry about riots that are being planned to happen later
today.
 Harry can not be compelled to tell where he received such information.
Situation 2

 Ron is a Revenue Officer.

 Someone told him that Draco is hiding millions of rupees in black
money in his basement.
 Ron can not be compelled to tell as to where he received such
information.

Conclusion
The intention behind giving such privilege to some communications is to protect
the public. Be it regarding the safeguarding of their marriage or preventing
government information from getting leaked.
In the absence of this Act, multiple classified information could have been easily
leaked in the name of trial and could have compromised the security of the
country.

Also, letting a husband or a wife testify against the other would make people
lose trust over marital bonds and disrupt peace among families. It would start
family broils, that could have the capacity to destroy families.

This Indian Evidence Act, 1872, is a wholesome act and the laws regarding
privilege communications are up to par and have been legislated keeping public
welfare in mind. There are separate provisions for family issues, professional
issues, and issues relating to the state.