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Indian Evidence Act

Unit-I

Qs: Sec. 3 Definition.

Ans: Evidence has important place in Administration of Justice. Court
reaches to a conclusion on the basis of evidence. It is impossible to solve
any matter in the absence of evidence. Evidence is considered to be the
backbone of Administration of justice. It determines the truth.
Dharamshastras have also discussed the importance of evidence. It has
been said that a king cannot punish anyone if any doubt exists. It means
that until anyone is not proved beyond doubts, he cannot be considered
to be guilty. Kautilya had also said that a person must be punished only
when he is graved to be guilty beyond doubts.
‘Ramjas V/s Surenranath’ (A.I.R. 1980 Allahabad 385)- Allahabad
High Court said that the Evidence law provides a way to the courts. It
propounds such rules which can comfortably conduct administration of
Justice. Study of such an important subject- matter is essential.
Section- 3
The word ‘Evidence’ has originated from the Latin word ‘Evidere’,
which means- to prove, show or determine any fact by legal resources.
Various jurists have given different definitions of the word ‘Evidence’
like-
According to Taylor- all legal medium except argument which proves
or disproves any fact, are called evidence.
According to Salmond- any fact or statement which has the power to
prove, is called evidence.
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According to Ausburn dictionary- evidence means with all those legal

facts or medium by which any fact is tried to be proved or disproved.
Section 3 of Indian Evidence Act, 1872, defines the term ‘Evidence’.
According to it-
‘Evidence means and includes-
a) All statements which the courts permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry,
such statements are called ‘oral evidence’ and
b) All documents including electronic records produced for the
inspection of the court; such documents are called documentary
evidence.
Actually, it is not a wordly definition of evidence. This definition
only indicates that the evidence may be oral or documentary.
Although, affidavits are not considered to be evidence; but it may
become if the court requires it to be so.’ Ghanshyam Kishore
Vajpayee V/s State of U.P. (A.I.R. 2005, Allahabad 65)- Allahabad
High court while not considering the evidence value of the Newspaper-
report, has considered it not entertainable in the evidence.
Section -6
Fact- section-3 of Indian Evidence act, 1872 defines fact as-
Fact means and includes-
(1) any things, state of things, or relation of things, capable of being
presented by the senses;
(2) any mental condition of which any person is conscious.
Illustration
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(a) that there are certain objects arranged in a certain order in a

certain place, is a fact;
(b) that a man heard or saw something, is a fact;
(c) that a man said certain words, is a fact;
(d) that a man holds a certain opinion, has a certain intention, acts in
good faith or fraudulently, or uses a particular word in a particular
sense, or is or was at specified time conscious of a particular
sensation, is a fact;
(e) that a man has a certain reputation, is a fact.
Famous Jurist Benthan has also classified facts into two categories-
(i) Physical facts which can be perceived by the senses.
(ii) Mental or internal facts which are within consciousness and are
known due to conscious.
(iii) Physical facts can be proved by oral evidence of any person
whereas mental facts may be proved by circumstantial
evidence.
Illustration- A attacks B with sword or lathi. Attacking with
sword or lathi is physical fact which can be proved by the oral evidence
of a person who has seen it. But as to the question of intention of A, it is
a mental element which can only be proved by his confession or
circumstantial evidence.
Facts does not mean with any specific incident, rather it is a
continuous process; like- possession. Misrepresentation regarding
intention of any person is misrepresentation of a fact.
Relevant fact
There has been no literal definition of term ‘Relevant’ in Indian
Evidence Act. Section 3mentions only about Relevant facts. According
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to Section 3 –‘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.’
As per Law, relevant facts are those facts which are not disputed
by themselves rather are so related to disputed facts that the disputed
facts become probable or improbable. A plaintiff challenging the
existence of arbitration agreement or its legal recognition may prove it
by the relevant facts. Thus, ‘Motive’ is a Relevant fact.
Any fact which is not directly or indirectly relevant to those
subjects cannot be accepted as evidence. Generally, the reasons for
which evidence may not be accepted owing to irrelevancy may be three-
a) that the relation between main and evidential fact is too remote and
imaginary;
b) that evidence has become necessary considering the pleadings; and
c) that evidence is not required owing to the admissions by opposite
party.
In the case of Dalbir Singh V/s state of Punjab (A.I.R. 1987 SC.
1328), the Supreme Court held that the evaluation of evidence is
question of fact whose determination shall depend upon the
circumstances.
In the case of Sukhdev singh V/s state of Punjab (A.I.R. 1991
S.C. 318) the Supreme Court said that the Evidence of any person
cannot become unreliable merely on the ground of technical method that
he is a near relative of deceased. A similar view was expressed in the
case of ‘Ishrar V/s State of U.P. (A.I.R. 2005 S.C 249).
Facts in Issue
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Facts in issue are base of nay case. They are those facts which give
motion to judicial process. In absence of fact in issue, neither hearing of
case nor evidence is required.
Section 3 of the Act defines fact in issue as- “Fact 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 nay suit or proceeding, necessarily
follows.”
Thus, fact on issue means those facts which a party pleads in any
proceeding and another denies it. In other words, it is those subjects
which are disputed between two parties. They can also be part of
subject- matter of investigation.
It can be proved by any illustration. ‘A’ is charged of theft from B’s
house. A refuses it. It is a disputed fact that whether A committed theft
in B’s house.
In a case, which is the fact in issue, it is determined by substantive
law or procedural law. In civil matters, it is determined by procedure
mentioned in Order 14 of Civil Procedure Code, whereas in criminal
matters, the charge against alleged is the fact in issue under chapter 17
of Criminal Procedure Code.
Difference between Relevant fact and Fact in Issue
There are following differences between Relevant Fact and fact in issue-
Relevant Fact Fact in Issue
1) relevant fact is called Evidence fact. 1) fact in Issue is called prime
fact.
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2) It is not essential element of a right 2) it is essential element of a

or liability. Right or liability.
3) It is not by itself a disputed fact. They 3) it is such fact on which
are those facts which the existence or dispute lies and decision over
non- existence of fact in issue is presu- them also decides the suit.
med.

(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 exist or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists.”
We are performing several acts in this physical world. But it is not
possible us to attain complete certainty in all activities. Hence, we have
no other option than to act on the basis of majority of probabilities.
Court itself also takes assistance of this concept.
Court can on the existence of any fact-
(i) either definitely believes upon it, or
(ii) considers its existence to be highly probable.
While doing so, court has to cat like an ordinary prudent man.
Prudent man means such a person who is reasonable or understanding in
respect of 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 reasonable conclusion.
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In the case of ‘Vijay Singh V/s state of U.P. (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 ordinary prudent man towards a
particular conclusion.
In the case of ‘Babuda V/s State of Rajasthan’ (A.I.R.1992 S.C.
209), Supreme court said that, ‘doubt cannot takes place of evidence nor
judge can have moral faith that accused is guilty. Doubt is an ocean
without shores.
It has been said upto this extent in the case of S.D. Soni V/s state
of Gujarat (1992 S.C. Criminal 331) that graver the offence, stricter
should be the degree of proof, is necessary.
(2) Disproved
Disproved is exact opposite of proved. According to section 3- “A
fact is said to be disproved when, after considering the matters before it,
the court either believes that it does not exist, or considers its non-
existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it does not exist”.
It is clear that definition of Disproved is exact opposite of
‘Proved’. Here, the court
(i) Either believes that the fact does not exist; or
(ii) 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.
This may be clarified by an example. A is alleged with 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
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proves it. Court has disproved the fact that a murdered B, because it is
highly improbable for a to murder B, imprisonment.
(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 or disproved. It rejects both proved and disproved. Whenever it
cannot be certainly said that 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 V/s State of
Maharastra (A.I.R. 1974 S.C. 211) is an illustrative example. In this
case, it has been said by the Supreme Court that when a truth and False
fact related in a 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 eye witnesses 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 is robbed B nor be said that A did not
robbed B. such fact is said to be ‘Not proved’.

Section- 4 ‘May Presume’ ‘Shall Presume’ and ‘conclusive proof’?

Presumption has important place in evidence law. According to
evidence law, any fact has to be proved by any evidence. But, it
sometimes there are few such facts whish are deemed to be proved on
the grounds of presumption.
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Hence, presumption of any fact is such conclusion or inference

of its existence which without evidence, on the basis of few other facts,
is already proved or deemed to be proved in present.
According to Best, where the truth or untruth of a fact cannot
clearly be concluded, there the positive or negative estimation about its
truth or untruth, with the admitted or established fact, on the basis of
probable logic is presumption.
Illustration
Smoke coming out from a place, may lead to presumption
without any evidence that there must have been fire.
Presumptions are of three types- presumption of facts,
presumption of law and mixed presumption of law and fact.

 May Presume
Section 4 of Indian Evidence Act, 1872 defines the term ‘May
Presume’. According to it,
“Whenever it is provided by this Act that court may presume a
fact, it may either regard such fact as proved, unless and until it is,
disproved or may call for proof of it”.
Thus, “may presume” provides discretion to court, to presume or
not, regarding any fact. Section 4 provides that where a court presumes
any fact, it shall
a) either regard such fact as proved unless it is disproved; or
b) may call for proof of it.
Illustration
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When a man has not been heard of for seven years by those who
would have naturally heard of him if he had been alive, his death shall
be presumed. Such death is called ‘civil death’.

 Shall presume
Section 4 of the Act defines the term ‘shall presume’. According to
it-
‘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’.
Thus, ‘shall presume’ means that- a court shall presume any fact
until it is disproved. In other words, ‘shall presume’ means –irrevocable
and definite presumption.
Illustration
Where any accused charged of murder, pleads of exception owing
to his unsoundness of mind, because court shall presume absence of
such circumstances.
In the case of Sridhar Dey V/s Kalpna dey (A.I.R. 11987
Kolkata 213), it has been held by the court of Kolkata that, where any
marriage is proved to have been celebrated, the court shall presume that
all ceremonies of marriage has been completed, but only until the
marriage is not questionable on the ground of validity or recognition.

 Conclusive Proof
Conclusive proof is the most important and weighty of all. Court
does not allow disproving it.
It has been said about the conclusive proof in the section 4 of the
Act that- “Where one fact is declared by this Act to be conclusive proof
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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.
Thus, conclusive proof is such inference which cannot be
disproved by any contrary evidence.
Section 112 of Indian Evidence act, 1872 is a good example of
conclusive proof. It has been said in section 112 that- “the fact that any
person was born during the continuance of a valid marriage between his
mother and any man, or within 280 days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate
son of that man, unless it can be shown that the parties to the marriage
had no access to each other at any time when he could have been
begotten.”

Qs: section 6 “Facts which form part of the same transaction”

Ans: Evidence is an important source of finding out the truth and
solution to disputed subjects. The quality of evidence is important in
respect of disputed subjects. it is the reason that section 5 says that
–“evidence may given in any suit or proceeding of the existence or non-
existence of every fact in issue and of such other facts are as here in after
declared to be relevant, and of no others.”
1. Facts forming Part of same transactions
Section 6 of the Act provides that “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.
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Illustration- A is accused of the murder of B by beating him. Whatever

was said or done by A or B or the by- standers at the beating, or so
shortly before or after it, as to form part of the transactions is a relevant
fact.
Principle of Res Gestae
Section 6 has propounded a principle called as ‘Principle of Res Gestae’.
The term ‘Res gestae’ literally means ‘Related facts’. Such facts which
form part of a transaction are called Res Gestae.’
The conclusion of Res Gestae in the Evidence is –Facts- which, though
not in issue, are so connected with fact in issue as to form part of the
same transaction and therefore are relevant like fact in issue.
The main object of this section is to make knowable or to clear more the
evidence of the facts of the issues so as to reach at correct conclusion.
Same Transaction
The term same transaction is important for the application of Section 6.
The application of Section 6 requires a fact must form part of the same
transaction with other facts.
According to Stephens- transaction is group of those acts or facts which
combine with each other so that they are known by the same legal name,
like- crime, breach of contract, etc.
Illustration- A is accused of murder of B with a sword. Whatever was
said or done by A or B or by-standers at the attack or shortly before or
after it as to form part of the transaction and is relevant.
It has become clear from the above that it is necessary for a statement to
be part of the transaction that it is of the time on which the event
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occurred. If the statement has been made after the end of the event then
it will not be considered relevant.
In this matter, the case of ‘Janteka V. Rao Vs. State of A.P.
(A.I.R. 1996 S.C. 2791) is good example. A bus has been burnt and
several people have been injured. They were sent to hospital and their
statements were recorded by Magistrate. These statements cannot be
considered to be part of same transaction, because they were made a
long time after the incident.
Similarly in the case of “V. Chadra Shekhar rao V/s P. Satya
Narain” (A.I.R. 2000 S.C. 2138) it has been stated by the Supreme
Court that the telephone call made to the husband of deceased by the
father of accused that murder has been done by his son, is not the part of
one transaction.
Res Gestae and Hearsay Evidence
The principle or Res Gestae is an exception to the principle of not
accepting Hearsay evidence. Hearsay evidence may be admitted if it part
of the transaction.
Illustration- A person saw a running truck, but not the accident.
He goes near to the victim person and obtains knowledge regarding the
accident. Such person can give evidence in respect of words stated by
the victim, because it is part of incident.

Qs: Occasion, cause or effect of facts in Issue (Section-7)

Ans: section 7 of the Act provides that –“Facts which are the occasion,
cause or effect, immediate or otherwise, or relevant facts or facts in
issue, or which constitute the state of things under which they happened,
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or which afforded an opportunity for their occurrence or transaction, are

relevant.”
Thus, the provisions of relevancy of such facts have been made
under section 7 which are occasion, cause or effect of the facts in issue.
Illustration- the question is whether A robbed B. the facts that
shortly before the robbery, B went to a fair with money his possession,
and that he showed it or mentioned the fact that he had it, to third person
are relevant.
The question is whether A murdered B. marks on ground,
produced by a struggle at or near the place where the murder was
committed, are relevant.
One more example of it may be given. The question is whether A
poisoned B. the state of B’s health before the symptoms ascribed to
poison and habits of B known to A, which, afforded an opportunity for
the administration of poison, are relevant facts.
In the case of ‘Indian Airlines Vs Madhuri Chaudhary’
(A.I.R. 1965 Kolkata 252) it has been held by the Kolkata High Court
that the report of inquiry committee regarding the causes of accident of
airplane, to be relevant.
In the case of ‘Ratan Vs Rajinam’ [(1971) 3 A.I.R.801] the
accused was charged of the murder of his wife by firing bullet. There is
a fact that he was not happy with his wife and he had friendly relation
with another woman. It is relevant fact, because it describes about the
relations of the husband and wife which are very important facts in the
case of murder.
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 Motive (section 8)
Section 8 of the Act says that- “Any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant
fact.
Thus section 8 provides three types of relevancy of facts
(a)Those facts which show or constitute the motive of the fact in issue
or relevant fact;
(b) Those facts which show or constitute the preparation of the fact in
issue or relevant facts; and
(c)The previous or subsequent conduct of any party or its agent to any
suit or proceeding in reference to such suit or proceeding or any fact
in issue or relevant facts.
Motive
According to Whigmore, “motive is feeling due to which act is
committed.” In other words, Motive is that due to which any person is
compelled to act.
Generally, each work is being done by a motive. That is a motive
which includes a person to act.
Motive is not an offence by itself, whether it is so faulty. In the
case of ‘Kehar singh Vs State [(1988) 3 S.C.C. 609] it has been said by
the Supreme Court that Motive, mental condition, agitation and feeling
of revenge is neither an offence by itself nor is sufficient to relate the
accused with the incident, but the evidence of motive becomes very
important once the offence is committed. It is the reason that evidence of
Motive is relevant.
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In the case of Tarshim Kumar Vs Delhi Administration (A.I.R.

1994 S.C. 2585) it has been held by the Supreme Court that when a
matter depends upon the circumstantial evidence, then evidence on
motive becomes important.
In the case of Lokesh Shiv Kumar Vs State of Karnatak (A.I.R.
2012 S.C. 956) it has been held by the Supreme Court that the
importance of motive comes to an end for the commission of the offence
in a case when the case has already been established or proved by the
mental evidences or other confirmatory evidences.
Preparation
Every act has to be performed after preparation, hence its evidence
is relevant. Section 8 says that- the preparation made before the
happening of the fact in issue or relevant fact, is relevant.
Illustration- buying poison with intention of committing murder
or buy instrument with the intention of committing theft, is preparation.
Conduct
Conduct of any person has an important place in evidence law. It
is the conduct which represents the guilty mind. The guilty mind creates
guilty conduct.
Illustration- A is accused of murder of B. C said to A that- the
police is coming to look for the man who murdered B. A ran away from
that place. It is relevant fact that because it reflects the conduct of A.
Such conduct may be previous or subsequent conduct of the
incident.

Qs. Relevance of Introductory and Explanatory facts Section 9

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Ans. Facts necessary to explain or introduce a fact in issue or relevant

fact, or which support or rebut an inference suggested by a fact in issue
or relevant fact, or which establish the identity of anything or person
whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by
whom any such fact was transacted, are relevant in so far as they are
necessary for that purpose.
Illustrations:
(а) The question is, whether a given document is the Will of A,

The state of A’s property and of his family at the date of the alleged Will
may be relevant facts.

(b) A sues В for a libel imputing disgraceful conduct to A; В affirms that

the matter alleged to be libelous is true.
The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and В about a matter

unconnected with the alleged libel are irrelevant, though the fact that
there was a dispute may be relevant if it affected the relations between A
and В.

(с) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from
his house, is relevant, under section 8, as conduct subsequent to and
affected by facts in issue.

(d) A sues В for inducing С to break a contract of service made by him

with A.C., on leaving A’s service, says to A—“I am leaving you because
В has made me a better offer.” This statement is a relevant fact as
explanatory of C’s conduct, which is relevant as a fact in issue
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(e) A, accused of theft, is seen to give the stolen property to B, who is

seen to give it to A’s wife. В says, as he delivers it—“A says you are to
hide this.” B’s statement is relevant as explanatory of a fact which is part
of the transaction.
Scope:
Section 9 dealing with large number of facts which are either
introductory or explanatory in nature, are relevant. These are as follows:

1. Facts which are necessary to explain a fact in issue or relevant fact.

2. Facts which are necessary to introduce a fact in issue or relevant fact.

3. Facts which support an inference or relent a fact in issue or relevant

fact.

4. Facts which establish the identity of anything or person whose

identity is relevant.

5. Facts which fix the time or place of the fact in issue.

6. Facts which show the relation of parties by which any fact was
transacted.

1. Explanatory facts:
There are many pieces of evidence which have no meaning at all if
considered separately, but become relevant when consider in connection
with some other facts. Such facts explain the fact in issue or relevant
fact. Illustrations (e) & (f).

Example:
A was tried for abducting a girl. Once during police investigation, the
accused at that time was loitering near police station. The girl suddenly
found the accused and started to cry out to her brother who told the
police. The police arrested the accused. The statement of the girl is
explanatory.
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2. Introductory facts:
Facts which are introductory of a relevant fact, are of great importance
in understanding real nature of transaction and being relevant. Thus,
evidence is allowed of facts which are necessary to introduce fact in
issue or relevant fact. In a suit of libel evidence of person’s relation at
the time of alleged libel may be necessary to introduce the circumstances
that led to libel. Illustrations (a), (b), (d), explain the introductory facts.

3. Facts supporting inference:

There are facts which are neither relevant as facts in issue nor as relevant
facts but they support the inference suggested by the facts in issue or
relevant fact or contradict the facts in issue or relevant fact.

A, after murder was seen running away from the village. Running away
supports the inference that the murder might have been caused by him. It
is relevant.

Similarly, a group of men was charged of committing a dacoity. Prior to

decoity the accused were associated with the approver being relevant as
supporting the statement of approver. Facts contradictory to fact in issue
or relevant facts are relevant under the section.

Facts rebut inference:

There are facts, which can rebut or contradict the inferences suggested
by the facts in issue or relevant fact being relevant.

4. Facts establishing identity of thing or person:

When the identity of thing is in question, every fact which will be
helpful to identify the thing is relevant.

Example:
In a robbery with murder case the house lady was called to identify the
article of the deceased and other belongings. Identification of the
deceased can be made with the help of this clothes and shoes.
Identification of jewellery of victim by neighbour who attended a birth
day is admissible.
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Qs. Things done by conspirator in reference to Common Design

Section 10
Ans. Section 10 of the Indian Evidence Act 1872 says that “things said
or done by conspirator in reference to common design” It runs as follow-
Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong,
anything said, done or written by anyone of some person in reference to
their common intention, after the time when such intention was first
entertained by anyone of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well for the purpose of proving
the existence of conspiracy as for the purpose of showing that any such
person was a party to it.
Illustration - Reasonable ground exists for believing that a has joined in
a conspiracy to wage war against government of India.
The fact that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Calcutta for a like object, D persuaded
persons to join the conspiracy in Bombay, E published writings
advocating the object in view at Agra, and F transmitted from Delhi to G
at Kabul the money which C had collected at Calcutta, and the contents
of a letter written by H giving an account of the conspiracy, are each
relevant, both to prove the existence of conspiracy, and to prove A’s
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complicity in it, although he may have been ignorant of all of them, and
although the persons by whom they were done strangers to him, and
although they may have taken place before he joined the conspiracy or
after he left it.
Conspiracy meaning and definition
Conspiracy means breathing together. When two or more persons agree
to commit a crime they are said to have conspired. In other words,
conspiracy is an agreement of two or more person to do an illegal act or
a legal act by an illegal means. Such persons are said to be conspirators.
Section 120A of the Indian Penal Code 1860 define ‘criminal conspiracy
and section 120B prescribe punishment for the same.
Section 120A defines criminal conspiracy as follow-
“When two or more person agree to do, or cause to be done;
1. An illegal act, or
2. An act which is not illegal by illegal means, such as agreement is
designated as criminal conspiracy

Ingredients or Essential of Conspiracy

To constitute criminal conspiracy, the following ingredients are to be
satisfied.
1. There must be an agreement between the persons, who are alleged
to conspire and
2. The agreement should be-
I. For doing of an illegal act or
II. For doing by an illegal means an act, which may not itself be
illegal.
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In simple words to constitute criminal conspiracy-

1. There must be an agreement between two or more persons
2. The agreement must be for
I. Dong an illegal act or
II. Doing a lawful a but by illegal means and
3. There must exist over act.
Conditions for application of section 10
Following conditions are to be satisfied-
1 Reasonable grojunds to belive the existence of conspiracy
Before the application of section 10 it must be established by
independent evidence that there is a reasonable ground to believe that
two or more persons conspired to commit an offence or actionable
wrong.
2) Act or statement of the conspire
Section allows evidence to be given of anything said done or written by
any one of the conspirator.
3) Common Intention
Intention means the desire of doing of an act. If two or more person
desirous of doing an act by prior meeting or prearranged plan, it is called
‘Common Intention’. For application of section 10, there must exist
common intention before the act or statement by the conspirator.
4) Act or statement must be in reference to common intention-
The expression “in reference to common intention or in furtherance of
common intention” means “action of helping forward”. The offence is
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committed in accordance with the common intention. In other words,

putting the common intention in operation.
However the expression “in reference to their common intention used in
Section 10 of the Evidence Act is very comprehensive.
Restriction as to use of Evidence- the evidence of anything said, done
or written by one conspirator against the other conspirator may be used
subject to the following restrictions-
1) The evidence is capable of being used only for two purposes,
namely-
a) To prove the existence of conspiracy, and
b) To prove that a particular person was a party to the conspiracy.
2) The death of the conspirator does not affect the act or statement.
3) The evidence of anything said, done or written by one conspirator
cannot be rendered inadmissible merely because of the fact that the
person who made the statement or had done the act is dead.
4) Acts and statements of one conspirator cannot be utilized in favour
of another conspirator.
 24

Unit-II
Qs: Person qualified to make admission section 17 to 20
Ans: admission and confession both plays an important role in evidence
law. Any case may be solved easily and simply by the help f both. When
any person accepts any fact or admits the commission of offence, there ir
is not required to be proved.
Section 17 of Indian Evidence act, 1872 defines the term ‘admission’.
According to it- An admission is a statement, oral or documentary which
suggest any inference as to any fact in issue or relevant fact and which is
made by any of the person and under the circumstances hereinafter
mentioned.”
According to Stephen- Admission is such oral or written statement
made by any party or any other person on his behalf, which suggests any
inference towards fact in issue, or relevant fact.
Illustration- A brings suit for the recovery of money against B. it is
written in the book of accounts of B that he has taken loan from A. it is
admission of liability against him.
Similarly, if B says that he had taken loan from A, and then it shall be
admission of loan because he accepts his liability by saying so. After
such admission, the fact of loan is not required to be proved.
In the case of ‘Chikham Koashwara Vs Subbarao (A.I.R.1971 S.C.
1542), it has been held by the Supreme Court that, “Admission must be
clear and specific. There must not be any chance of uncertainty.
Illustration- if any person accepts only that he had signed any document
without seeing what it was, then it cannot be said that he has accepted
the document (Brijmohan Vs Amarnath, A.I.R. 1980 J & K 54).
 25

Also the statement which shows about admission, must be presented

completely, but not presenting in part only. (Dharamvati Vs Shiv
Singh, A.I.R. 1991 M.P. 18).
Types of Admission-
It is mainly of following types-
(a) Judicial Admission
It is also called formal admission. It is made before the court during any
judicial proceeding.
In the case of ‘K.K.Chari Vs R.M. Sheshdhari [(1973). 1S.C.C. 761],
it has been said by the supreme court that- admission made in pleading is
considered to be judicial Admission. If it is clear and unambiguous then
it is considered as the best evidence of the facts.
(b) Extra Judicial Admission
It is also called informal or casual admission. Such confession normally
occurs in the natural course of discussion in life. It does not exist in
records of the court. Such admission may be oral or written. Written
admission may be in form of letters, books of business, passbook, etc.
[Maithlai Vs Christie, (1975) 1 S.C. 340].
(c) Admission by Conduct
Several times the conduct of parties also becomes admission. Such
admission is more powerful than verbal confession.
In this matter, the case of ‘Maini Vs Maini’ (1940 Edwards Cases on
Evidence 172) is a good example. Under it, a woman got registration of
the birth of her child. But, she did not disclose the name and occupation
of the child’s father. Court inferred that either she did not know who was
 26

the father or she admits that the child is illegitimate. In one way, it was
acceptance of adultery and was relevant evidence of adultery.
Sometimes, silence is also a confession when anyone says anything and
the other does not reply and keeps silence, then it is an admission by
conduct.
Who can make Admission?
Section 18 of Act says that admission can be made by-
(a) any party to the proceeding; or
(b) any agent of such party; or
(c) plaintiff of a representative suit; or
(d) person interested in subject matter; or
(e) person from whom the interest is derived.
In the case of ‘Ram Sahay Vs jai Prakash (A.I.R. 1993 M.P. 147) a
tenant issued power of attorney to another person for his case in a
proceeding for ejection. The attorney accepted the fact that the rent was
due. This admission was considered as binding on the tenant.

19. Admissions by persons whose position must be proved as against

party to suit.
Statements made by persons whose position or liability it is necessary to
prove as against any party to the suit, are admissions, if such statements
would be relevant as against such persons in relation to such position or
liability in a suit brought by or against the made if they are made whilst
the person making them occupies such position or is subject of such
liability. 
 27

Illustration-
A undertakes to collect rent for B. B sues A for not collecting rent
due from C to B. A denies that rent was due from C to B.

A statement by C that he owned B rent is an admission, and is a relevant

fact as against A, if A denies that C did owe rent to B.

20. Admission by persons expressly referred to by party to suit.

Statements made by persons to whom a party to the suit has expressly
referred for information in reference to a matter in dispute are
admissions. 

Illustration-
The question is, whether a horse sold by A to B is sound.
A says to B “Go and ask C. C knows all about it” C’s statement is an
admission
In eviction suit where person having power of attorney for tenants
admits arrears of rent tenant subsequently cannot resile(abandon a
position/back off) from such admission. case- Ram Sahai v. Jai Prakash,
1993.

Qs. Proof of admissions against persons making them, and by or on

their behalf section 21

Ans. Admissions are relevant and may be proved as against the person
who makes them or his representative in interest; but they cannot be
proved by or on behalf of the person who makes them or by his
representative in interest

Scope:
 28

The general rule laid down in Section 21 is that admissions are relevant
and may be proved against person who makes them or by his
representative-in- interest. It is quite natural that a person always makes
statement in his favour even if the statement is false. The other
proposition is that the statements will be used against the person who
himself cannot prove his own statements. If persons are allowed to prove
their statements, they will make the statement in their favour, such type
of self-serving statement by party is irrelevant and cannot be regarded as
evidence. 

Illustrations:
(a) The question between A and В is, whether a certain deed is or is not
forged, A affirms that it is genuine, В that it is forged.

A may prove a statement by В that the deed is genuine, and В may prove
a statement by A that the deed is forged; but A cannot prove a statement
by himself that the deed is genuine, nor can В prove a statement by
himself that the deed is forged.

(b) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day,

and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because, if A were

dead, it would be admissible under section 32, clause (2).

(c) A is accused of fraudulently having in his possession counterfeit coin

which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coin, as

he doubted whether it was counterfeit or not, and that the person did
examine it and told him it was genuine.

A may prove these statements, though they are admissions, because they
are explanatory of conduct influenced by facts in issue.
 29

Exceptions:
The section has appended three exceptions to the general rule that
admission cannot be used by a person or his representative-in-interest:

(1) When the statement is such of a nature that it should have been
relevant as dying declaration under section 32;

(2) When it consists of a statement of the existence of bodily feeling or

state of mind falling under section 14.

(3) When the statement otherwise relevant falling under section 21(3).

1. Statements as dying declarations:

Section 32 of the Evidence Act lays down that the statement of persons,
who are dead, or who cannot be found or who otherwise cannot be
called before the court, may be proved under the circumstances
mentioned in the sub-clauses (1) to (8) of that section. Thus, the
statement of such persons may be proved in any proceeding to which it
is relevant as between third persons under section 32. Illustrations (b)
and (c) relate to the first exception. This exception is to be found in
Section 95 of the Road Cess Act which lays down that returns filed by or
on behalf of person shall be admissible in evidence against him but shall
not be admissible in his favour.

2. Statement of mind and bodily feeling:

The statement of existence of any state of mind or body made by a
person is relevant. But such statement should have been made at or
about the time when such state of mind or body existed and followed by
conduct. Such state of mind or body is relevant also under section 14.
[Illustration (c) Section 14 only provides that such statements are
relevant, whereas the Section 21 (b) demands that such statement must
 30

be proved on behalf of person making them. The rule laid down in this
section is subjected to the provisions relating to confessions of the
accused in Sections 24, 25 and 26 and also subjected to Sections 164 and
281, Cr. PC.

3. When the statement otherwise relevant:

The clause (3) of Section 21 lays down that an admission may be proved
by or on behalf of a person making it if it is relevant otherwise than as
an admission. The condition is that the statement must be relevant to
determine the fact in issue and only previous statements are relevant.

For example, where plaintiffs sought to establish their pedigree by

proving that A and B were brothers, a statement to that effect made by
one of the plaintiffs long before the controversy arose, were held
relevant. The statement admissible under clause (3) is also relevant
under sections 6 to 13 and 34 and 35 of the Evidence Act. The statement
of A in a previous proceeding that B was a tenant of the property in
dispute is an admission and can be used when in the later proceeding he
denied that fact.

Qs: Relevancy and Admissibility of Confession section 24,28,29

Ans: The importance of confession in evidence law is same as that of
admission. Confession helps in achieving correct conclusion and fast
solution of trial. Section 24 of the Indian Evidence Act, 1872 defines
confession. According to it-
“A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the court to have
been caused by any inducement, threat or promise having reference to
the charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the court, to give the accused
person grounds which would appear to him reasonable for supposing
 31

that by making it he would gain any advantage or avoid any evil of a

temporal nature in reference to the proceeding against him.
This is not a literal definition of confession. Provisions about the
confession are also made under section 164 of the criminal Procedure
code, 1973.
What is confession?
According to Stephen, “Confession is such admission which is made by
a person who is accused of an offence and admits or it is inferred from
the statement that he has committed that crime.”
In the case of Pakala Narayan Swami Vs Emperor (A.I.R. 1939 P.C.
47), privy council while defining the confession has said that- “The term
confession cannot be understood in a way that is such a statement of any
accused which may suggest inference that he committed that crime.
Confession must admit either directly the offence or atleast those facts
which creates an offence.” In other words, it can be said that confession
must be such that either the offence must have admitted or atleast have
accepted all the facts related to the offence.
In the case of ‘Palvinder Kaur Vs State of Punjab’ (A.I.R. 1952 S.C.
354), the term confession has been defined by the Supreme Court as
under “Confession by an accused is a statement that must either admit in
terms the offence or at any rate substantially all the facts that constitute
the offence.”
Above definitions shows that the confession requires following-
(a) it is made by the person who is alleged of any offence.
(b) he either admits the offence or the facts constituting the offence,
and
 32

(c) it is made voluntarily, i.e. must be free from inducement, threat or

promise (section 24).
In the case of Abdul Rehman Vs State of Karnataka (A.I.R. 1979 S.C.
1924), it has been considered that the confession should necessarily be
voluntarily.
In the case of ‘Shivappa Vs State of Karnataka’ (A.I.R. 1995 S.C.
980), it has been held by the Supreme Court that before recording the
statement of confession, it must be satisfied that the confession is
voluntarily.
In the case of ‘Brajendra Singh Vs State of Madhya Pradesh (A.I.R.
2012 SC 1552), the Supreme Court has not considered the statements as
a confessional statement which are made by the accused and on the basis
of which FIR was recorded.
Types of Confession:
Confession is of two types- Judicial confession and Extra Judicial
Confession.
Judicial Confession means such confession which is made by the
accused before the court.
Extra Judicial Confession means such confession which made outside
the court before any other person. Utterances made in soliloquy may be
an extra judicial confession.
Two elements are necessary for acceptance of extra judicial confession
in evidence- (i) being independent of the person making confession, and
(ii) Reliability of the person before which it has been made. (Chattar
Singh vs State of Haryana, A.I.R. 2012 S.C. 378).
 33

The following evidence was not considered reliable in the case of

“Pancho Vs State of Haryana” (A.I.R. 2012 S.C. 523).
(i) which was made to the former member of Panchayat,
(ii) which was made after five months of the occurrence,
(iii) the former member was not an acquainted person,
(iv) was residing at a distance of 35- 40 Kms.
It is necessary that an extra- judiciary confession should be reproduced
in exact words used by the accused. But there should not be a vital and
material difference (Ajay Singh Vs State of Maharashtra, A.I.R, 2007
S.C. 2138).
In the case of Makhan Singh Vs State of Punjab (A.I.R. 1998 S.C.
1705), the Supreme Court while considering the extra Judicial
confession to a very weak evidence, said that such confession must be
admitted after due care and caution.
In the case of ‘State of M.P. Vs Paltan Mallah (A.I.R. 2005 S.C. 733),
it has been said to the extent that no conviction can be based on Extra
Judicial Confession of co- accused.
Every confession is admission, but every admission is not confession.
Above analysis shows that every confession contains admission, but
every admission does not contain confession.
As we have seen above admission is such statement which suggest
inference regarding any fact in issue or relevant fact. If such statement is
made in civil matters, it is called admission and if such statement is
made by the person who is alleged of any offence, it is called confession.
In the case of, ‘Sahu Vs. State of U.P. (A.I.R. 1966 S.C. 40), it has been
said by the Supreme Court that the person committing offence admits
 34

the offence in confession whereas there is no such things in admission.

Admission is generally made in civil matters.
Admission of the offence is an essential element of the confession
whereas only in admission there is no acceptance of offence.
Whole confession must be considered
The important fact regarding confession I that the confession must either
be accepted as a whole or rejected completely. It cannot occur that the
part of confession admitting the committing of offence is accepted and
the statements showing innocence are not accepted.
In the case of ‘Palvinder kaur Vs State of Punjab’ (A.I.R. 1952 S.C.
354), the statement of confession was containing few words which
showed the involvement of the accused in the offence whereas few
others showed innocence. The Supreme Court said that the best rule of
applicability of confession is that either the whole confession must be
accepted or whole the must be rejected. The court do not have the right
to deem the statement admitting commission of offence to the reliable
and statements getting set free of offence to be non- reliable.
Scope of Section 24:
Although the substantive law of confession has been laid down in
Sections 24 to 30 it is the positive rule of criminal law that no confession
is admissible unless it is voluntary. Sections 24, 25 and 26 have
described the circumstances. If these are not considered to be voluntary
these are not admissible. A confession is voluntary if it has not been
obtained from the accused either by threat, promise, inducement or
promise.

Principle:
According to Section 24 the confession made by the accused is
irrelevant on the following grounds:
 35

1. The confession is the result of inducement, threat or promise;

2. The inducement, threat or promise has come from a person in

authority;

3. The inducement, threat or promise relates to the charge in question;

4. The inducement, threat or promise holds out some worldly benefit or

advantage.

Thus the Section 24 lays down the rule of exclusion of confession which
is not voluntary.

1. Confession caused by inducement, threat or promise:

If a confession is not free and voluntary and is obtained by force or
violence such confession is not admissible. Where there is element of
inducement, threat or promise in making confession before person in
authority, the confession should not be admitted. A confession can only
be admitted if it appears to the court that confession is voluntary. Any
threat or promise used by the person in authority in getting confession it
will not be taken into evidence. A gentle threat, slightest inducement or
a very little hope of advantage may taint confession.

2. Person in authority:
Next disqualification of rejecting confessional statement is person in
authority. A person holding a special legal status has authority to
influence the proceeding against the accused. “A person in authority for
the purpose of this section must be a person who stands in such
relationship to the accused as to imply some power of control or
interference in regard to his prosecution.” For example, the magistrate
police officers, prosecutor, government officers, doctors departmental
heads etc. “A person in authority within the meaning of Section 24
should be one who by virtue of his position wields some kinds of
influence over the accused.” The father is not person in authority.
 36

3. Inducement, threat or promise relates to charge:

The inducement, threat, promise etc. must be related to the charge in
question. The person against whom charge has been framed must have
been forced to give confessional statement by the person in authority.
The inducement, threat or promise must have reference to the present
case not other cases. An accused was charged with murder and promise
was made that if he confesses the truth in the present case, he will get
benefit in another case the promise is not related to the present case, so
the confession is valid.

4. Benefit or advantage Worldly or temporal nature:

The inducement, threat etc. would be sufficient to convince the mind of
the accused that he would get some advantage or avoid evil of temporal
nature. Where a person charged with murder was made to make
confession to Panchayat which threatened his removal from caste for
life.

The confession was held to be valid. But mere inducement, threat or

promise is not enough unless it is in the opinion of the court that such
inducement, threat or promise is sufficient to cause reasonable belief in
the mind of the accused and that by confession he would get advantage
or avoid any evil of a temporal nature in reference to the proceeding
against him.

Confession made after removal of impression caused by inducement,

threat or promise relevant section 28

If such a confession as is referred to in Section 24 is made after the

impression caused by any such inducement, threat or promise has, in the
opinion of the Court, been fully removed, it is relevant. Section 28
provides for validity of a confession after removal of impression caused
by inducement threat or promise. Under Section 24 when it is in the
opinion of the court that a confession of an accused seems to have been
caused by inducement, threat, promise or hope of advantage, it is
irrelevant and cannot be proved. But if the Court is satisfied that the
 37

impression of inducement, threat or promise has been fully removed

from the mind of the accused and the accused is totally free from the evil
of fear or advantages, the confession will be relevant.

Example

Where an accused confessed to the Panchayat before arrest and was kept
in custody by the villagers till the arrival, next day, of the police who
sent him after formal arrest to the Magistrate. The Magistrate recorded
confession on the fourth day and it was held that the improper influence
had continued and the confession was inadmissible. The requirements of
Section 27 were not fulfilled, because, a confession must have been
proved voluntary and true.

Confession otherwise relevant not to become irrelevant because of

promise of secrecy section 29

Section 29 provides that there is no bar to admissibility of a confession

even if it was made under the promise of secrecy. Under this section a
confession made by an accused is relevant even if it can be excluded
from being proved under the following circumstances:

1. When it was made to the accused under a promise of secrecy;

2. By practicing a deception on the accused;

3. When the accused was drunk:

4. In answer to question which the accused need not have to answered:

or

5. When no prior warning was given to accused that he was not bound to
make any confession and that might be used against him.
 38

1. Under a promise of secrecy:

The principles of admission are applied here to encourage accused
persons to speak truth. When a confession obtained from an accused by
promising him that what he will confess will be kept secret is relevant
under the section. For example, a booking-clerk was arrested for
defalcation of money. The auditor told him, “it would be better for you
to tell the truth and refund the money. Everything would be kept secret.”
After which the booking clerk was brought before the Traffic Manager
in whose presence he confessed to have made defalcation. Although the
confession of the booking clerk is not relevant under section 24, it is
nevertheless relevant under this section.

2. By practicing deception:

When a confession is obtained by practicing fraud and deception with

the accused the confession is admissible as if it was not taken by
inducement, threat or promise. “If it is admissible, the court is not
concerned how the evidence is obtained.”

3. Accused was drunk:

The intoxicated persons generally speak truth. If any confession is made
by an accused who was drunk, in spite of the fact that the liquor was
supplied by the police officer, the confessional statement is not
inadmissible.

4. In answer to questions:

There is no bar to the admissibility of a confession for being made in
answer to question. When an accused is questioned as to the fact he is
not bound to answer whatever may be the form of question. If any
answer is given by the accused it will be treated as confession. Mere
questioning of an accused by a police officer, resulting in a voluntary
statement, which may ultimately turn out to be incriminatory, is not
compulsion.

5. Without warning:
 39

Under the heading the confession of the accused will be relevant also if
no warning was given that he is not bound to make any statement and
that whatever he states will be used against him. The section provides
that a voluntary confession does not become inadmissible merely
because the maker was not warned before that it might be used against
him as evidence. Under section 164(3)of the Cr. PC 1973 the magistrate
before recording confession of an accused has to explain to the accused
that he is not bound to make any confession and that if he does so, it will
be used as evidence against him. There are conflicts of decisions as to
whether the Section 164(3), Cr. PC, overrides Section 29 of the
Evidence Act.

Qs. Consideration of proved Confession against Co-accused section

30
Ans. Generally, the confession of one co- accused does not affect the
other. But an exception has been given in Section 30 of the Indian
Evidence Act, 1872. According to it-
“When more persons than one are being jointly tried for the same
offence and a confession made by one of such person affecting himself
and some other of such person is proved, the court may take into
consideration such confession as against such other person as well as
against the person who makes such confession.
Illustration- “A and B are jointly tried for the murder of C. it is proved
that the A said –B and I murdered C. “the Court may consider the effect
of the confession against B. but, where not tried jointly there such
confession cannot be taken into consideration by the court.
Thus, section 30 says that- when an accused makes a complete
confession and alongwith also admit the guilt of other co- accused, then
the court may admit it as evidence against the other co-accused.
 40

This section has not described about the evidence value of confession.
Its evaluation is upon the discretion of the court. In the case of ‘Bhuwan
sahu Vs King Emperor’ (A.I.R. 1949 P.C. 1257), it has been held by
the Privy Council that council can take into consideration such
confession , but there must be other evidence too. Such confession is
merely an evidence alongwith other evidences, which can be taken into
consideration alongwith proved facts.
In the case of ‘Naresh Vs Union of India’ (A.I.R. 1996 S.C. 522) , the
Supreme Court held that the confession of the accused alleged to have
invalidity obtain foreign exchange under Sea Customs Act, to be an
evidence against the co-accused.
But in the case of ‘State of M.P. Vs Paltan Mallah (A.I.R. 2005 S.C.
733), the Extra Judicial Confession of an accused made against the co-
accused was not admitted which stated that he was paid money by the
co-accused for the killing of a Trade Union Leader. Supreme Court did
not held it to be substantive evidence.
Thus it is totally upon the discretion of the court that it may be taken in
to consideration or not.

 Difference between Admission and Confession

Admission Confession
1. Admission is a species. 1. Confession is sub-species.
2. It is generally used in civil matters. 2. It is used in criminal matters.
3. Admission is made by parties, agents, 3. Confession is made by accu-
Interest person or representative. sed only.
4. It may be used in favour of the per- 4. it is used against the person
son making it. making it.
5. It is not conclusive proof of admitted 5. Voluntarily confession is
 41

facts. considered to be conclusive

proof.
6. Admission by one person cannot be 6.confession by one co-accused
an evidence against against the other. may be used against the co-
accused of the same trial.

Qs. Confession to Police Station section 25 to 27

Ans. Section 24, 25 and 26 of the Evidence Act exclude certain
confessions. Section 24 lays down that if a confession appears to have
been caused by threat, promise or inducement from some man in
authority it will be irrelevant and cannot be proved against the
confessioner. Section 25 excludes a confession made to a police officer.
Section 26 lays down that if a person while in custody of a policeman,
confesses his guilt to any other person not being a Magistrate, his
settlement will not be proved against him.
Section 27 lays down that when at any trial, evidence is led to the effect
that some fact was discovered in consequence of the information given
by the accused of an offence in custody of the police officer, so much of
the information as relates to the facts discovered by that information,
may be proved
Section 25 confession to police station
Section 25– confession to police officer not to be proved.
No confession made to a police officer shall be proved as against a
person accused of any offence.
Reasons for exclusion of confession to police- another variety of
confessions that are under the evidence act regarded as involuntary are
 42

those made to a personnel. Section 25 expressly declares that such

confessions shall not be proved.
If confessions to police were allowed to be proved in evidence, the
police would torture the accused and thus force him to confess to a crime
which he might not have a committed. A confession so obtained would
naturally be unreliable. It would not would be voluntary. Such a
confession will be irrelevant whatever may be its form, direct, express,
implied or inferred from conduct. The reasons for which this policy was
adopted when the act was passed in 1872 are probably still valid.
Ingredients
Following are the ingredients-
I. A confession made to police officer is not valid. Hence such a
confession need not be proved.
II. Under sec. 25 only confession made to police officer are excluded.
All the statements forming admissions made to the police officer
are not excluded.
III. Statement made to a police officer by one accused is admissible
against co-accused, as an admission, however such a statement
cannot be valid as a confession

Section 26- Confession By Accused While In Custody Of Police Not

To Be Proved Against Him.
No confession made by any person whilst he is in the custody of a police
officer, unless it is made in the immediate presence of a Magistrate, shall
be proved as against such person.
 43

Object- The object of section 26 of the Evidence Act is to prevent the

abuse of their powers by the police, and hence confessions made by
accused persons while in custody of police cannot be proved against
them unless made in presence of a magistrate. The custody of a police
officer provides easy opportunity of coercion for extorting confession
obtained from accused persons through any undue influence being
received in evidence against him.
Kishore Chand v. State of Himachal Pradesh, the extra judicial
confession was made to Pradhan who was accompanied by Police
(enquiry) Officer. The only interference which could be drawn from the
circumstance of the case, is that the confession was made at the time
when the accused was in the custody of police and it could not be proved
against the accused. It could not be believed that, when a police officer
has seen the accused with deceased at last occasion, he will not take the
accused in the custody.
Police Custody
The word custody is used here in wide sense. A policeman may lay his
hand on a person, hand-cuff him or tie his waist with a rope and may
take him with him. Again a police officer may not even touch a person
but may keep such a control over him that the person so controlled
cannot go any way he likes. His movement is in the control of the police
officer. A police officer comes to A and asks him to follow to the police
station as he is wanted in connection with a dacoity case. A follows him.
He is in custody of the police officer.
R. v. Lester, the accused was being taken in a tonga by a police
constable. In the absence of constable, the accused confessed to the
tanga-driver that he committed the crime. The confession was held to be
 44

in police custody as the accused was in the custody of constable and it

made no difference of his temporary absence.
Where a woman, charged with the murder of her husband, was taken
into the custody of the police, a friend of the woman also accompanied
her. The policeman left the woman with her friend and went away to
procure a fresh horse. The woman confessed her guilt to her friend while
the policeman was away. The confession would not be admissible
against the accused as the prisoner should be regarded in custody of the
police in spite of the fact that he was absent for a short time. But where
the accused is not arrested nor is he under supervision and is merely
invited to explain certain circumstances, it would be going further that
the section warrants to exclude the statement that he makes on the
grounds that he is deemed to be in police custody.
Section 27- How Much Of Information Received From Accused May
Be Proved:
Section 27 lays down that when at any trial, evidence is led to the effect
that some fact was discovered in consequence of the information given
by the accused of an offence in custody of the police officer, so much of
the information as relates to the facts discovered by that information,
may be proved irrespective of the facts discovered by that information,
may be proved irrespective of the facts whether that information
amounts to confession or not.
Requirements under the Section- the conditions necessary for the
application of section 27 are:
1. The fact must have been discovered in the consequence of the
information received from the accused.
 45

2. The person giving the information must be accused of an offence.

3. He must be in custody of a police officer.

4. That portion only of the information which relates distinctly to the
fact discovered can be proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that articles
were discovered in consequence of the information received from the
accused. In the example given above, before the statement of the
accused could be proved, somebody, such a sub-inspector, must depose
that in consequence of the given information given by the accused, some
facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must
relate to the commission of the crime in question
In State of Maharashtra v. Bharat Ehagan Lal Raghani, it was held by
Supreme Court that, the fact that seized weapons were displayed by
police in press conference was not a ground to disbelieve the factum of
recovery.

Qs: “Dying Declaration”?

Ans: section 32 of Indian Evidence Act, 1872 lays down important
provisions. This section considers the evidence of following persons to
be relevant.
a) Who is dead; or
b) Who cannot be found ; or
c) Who are incompetent to give evidence; or
 46

d) Whose attendance cannot be procured without an amount of delay

or expense which under the circumstances of the case appears to
the court unreasonable.
The provision about the Dying Declaration have been made in its
clause (1).
Dying Declaration:
It has been stipulated under section 32 (1) of the evidence Act that
–“Such a statement can be proved when it 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. The statement will be relevant in every case
or proceeding in which the cause of that person’s death comes into
question.
This clause also says that such statements are relevant whether the
person who made then was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
It has also been cleared in this clause that such statement is
relevant, whether there was no expectation of death of that person at the
time of making statement and irrespective the nature of proceedings.
Illustration- the question is, whether A was murdered by B, or A
dies of injuries received in a transaction in the course of which she was
ravished. The question, is whether she was ravished by B; or the
question is, whether A was killed by B under such circumstances that a
suit would lie against B by the widow of A. statements made by A as to
cause of his or her death, referring respectively to the murder, the rape
and the actionable wrong under circumstances are relevant facts.
What is dying Declaration?
 47

According to the definition given under Section 32 (1)- “dying

declaration means such statements which 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.
Whereas in English Law, the dying declaration requires following-
a) person making statement is on death bed;
b) he has reasonable apprehension that he is about to die; or
c) he is completely disappointed from the wish to live; and
d) he had died after such statement.
In India, the fourth condition is required to be fulfilled. Here,
apprehension of death is not required.
There is a good case of ‘Pakalanarayan Swami Vs. Emperor
(A.I.R. 1939 P.C. 47) in this matter. On 20 th March 1937 the deceased
Kuri Nakuraju said to his wife he is going to Behrampurbecause the wife
of accused appellant had called him to receive the due amount. On 21 st
March, 1937 Nakurajun left for Behrampur. On 23 rd March, 1937the
body of the deceased Nakuraju was found in a box in a coach of train.
This box was bought for the appellant.
Privy council admitted the statements said by the deceased to his
wife as dying declaration- “He is going to Behrampur on the invitation
of the accuser’s wife, because it reflects those circumstances of the
transactions which resulted in the death of Nakuraju.
Where the deceased himself dictated the F.I.R. to the police and
the sane was read over to him and he put his thumb impression on it, the
Supreme court held the F.I.R. to be admissible as a dying declaration.
(Dharam Pal Vs State of U.P. A.I.R. 2008 S.C. 920).
Essential Conditions
 48

The following elements are essential for the relevancy of dying

declaration-
1. Person making statement Dies:
The first condition of applicability of section 32(1) is that- the
person making the statement dies. If such person does not die the n his
statement shall not be relevant as dying declaration. Such statements
shall then be proved by his presence before the court.
If a statement has become relevant due to death of that person then
it is to be proved that the person has died or not alive.
It is not necessary for the admissibility of the dying declaration
that the death occurred immediately after such declaration. Such
statements cannot be rejected merely on the grounds of death after some
days. (Maniben Vs State of Gujarat, A.I.R. 2007 S.C. 1932).
2. Statement must relate to the causes of death:
The second condition for the applicability of Section 32 (1) is that
such statement must relate to the causes of death. If the statements are
not related to the causes of death, then they will not be admitted as
evidence.
In the case of ‘Jayendra Saraswati Vs state of Tamil Nadu
(A.I.R. 2005 S.C. 716), it has been stated by the Supreme court that for
the applicability of dying declaration, statement of deceased should be
related to the causes of his death or as to any of the circumstances of the
transaction which resulted in his death.
Illustration- in a case in which a girl was raped. Immediately
after rape, she committed suicide by herself. The statements made in
 49

relation to rape were not held relevant, because rape was not the cause of
death. (Narayan Singh’s Case, A.I.R. 1962 S.C. 237).
Similarly in another case, a woman was raped. That woman
committed suicide after three days of the rape. The statements made in
relation to rape were not held relevant, because there was no relation of
that with the death. (Koppeviyah’h Case, A.I.R. 1932 Madras 233).
3. Circumstances of Transaction must result in his death:
The third condition for the applicability of section 32(1) is that the
statement must relate to such circumstances of the transaction which
resulted in death. In other words, it can be said that if the statement is
related to such circumstances of the transaction which results in the
death of the person making it, it will be admitted as evidence.
The case of “Pakala Narayan Swami Vs. Emperor (A.I.R. 1939
P.C. 47) is an illustrative example of it.
In a case, a woman received injuries during robbery in a house.
Before death, she makes a statement of those circumstances in which
robbery occurred. Her statement is admitted in evidence, although the
cause of death was not robbery but the injuries received during robbery.
(Dannu Singh’s Case, A.I.R. 1925 Allahabad 227).

4. Question of death is under consideration:

The fourth condition for the applicability of section 32(1) is that
the question as to the death of the person making statement is pending
during proceeding . in other words, it can be said that the proceeding
must be such in which the question as to death of the person making
statement is pending. The proceeding may be civil or criminal.
 50

Thus in the above circumstances the statements of dying

declaration are relevant in evidence.

 Evidencary Value
Dying declaration is considered as an evidence of weak nature.
Many times, it is being said that the statement making dying declaration
have lost their reliability and importance. Several times a question also
arises that whether any person can be convicted merely on the basis of
dying declaration.
There are several matters in which it has been held that if the court
is satisfied on the truthiness of the dying declaration, then it can convict
the accused merely on this ground.
In the case of ‘Darshan Singh Vs State of Punjab (A.I.R. 1983
S.C. 584), it has been stated by the supreme Court that the conviction on
the basis of dying declaration must require that the statements at least
inspire confidence so that they can be completely relied.
Exactly the same view has been expressed in the case of State of
Maharashtra Vs Sanjay D. Rajhans (A.I.R. 2005 S.C. 97). Under it, it
has been held by the Supreme Court that- “Dying declaration should be
of such nature as to inspire full confidence.’
In a case, the medical report indicated burns due to accident and
at other places due to self burning. In response to the questions made
regarding advice, the dying declaration stated that she burnt herself after
getting fed up from dowry demand. Such statements were held to be
doubtful and therefore not admitted (Sheikh Mehboob Vs State of
Maharashtra, A.I.R. 2005 S.C. 1805).
 51

Where the statements of dying declaration are being ratified by

other evidences they are considered relevant in the evidence. (Nabbab
Ali Vs. State of U.P., A.I.R 1994 S.C. 1607).
But, such dying declarations are not admitted which neither
contain the date nor the time. The signature of deceased was neither
taken nor it’s explanation was given. (State of Uttar Pradesh Vs
Shishupal Singh A.I.R. 1994 S.C. 129).
 Difference from English Law
There is difference between English Law and Indian Law
regarding dying declaration. In English Law, the dying declaration
requires that they must have been made when the person making it has
reasonable apprehension of his death whereas in Indian Law it is not
required. Indians Law requires that the person making statement dies.
In the case of ‘B. Shashikala Vs State of Andhra Pradesh
(A.I.R. 2004 S.C. 616), it has been stated by the Supreme court that;
“For the admissibility of dying declaration it is not necessary that
statement of dying declaration is made in expectation of death.
Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated section 33

Evidence given by a witness in a judicial proceeding, or before any

person authorized by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which it states, when the
witness is dead or cannot be found, or is incapable of giving evidence, or
is kept out of the way by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable.
 52

Principles laid down:

The section applies to the cases in which evidence given by a witness:

(i) in a judicial proceeding, or

(ii) before any person who is authorized by law to take evidence,
such evidence is relevant in a subsequent proceeding or at the
later stage of the same proceeding.

Reasons:

(i) when the witness is dead or

(ii) he cannot be found or
(iii) he is incapable of giving evidence or
(iv) he is kept out of the way by the adverse party or
(v) his presence cannot be obtained without an amount of delay
or expense which the court considers unreasonable.

The evidence deposited by any one of these witnesses mentioned above

will be admissible subject to fulfillment of three conditions, viz.,

1. The previous proceeding was between the same parties as in the

subsequent one or their representative-in-interest;

2. The adverse party in the previous proceeding had rights and

opportunities to cross-examine;

3. The question in issue were substantially the same in the previous and
subsequent proceeding;

Unit-III

Qs: Primary and Secondary Evidence.

 53

Ans: the evidence regarding documentary evidence is mainly of two

types- Primary and Secondary Evidence. Section 61 to 66 of the Indian
Evidence act, 1872 lays down provisions regarding the both
Section 61of the evidence at deals with proof of contents of documents.
It provide that the contents of the documents may be proved either by
primary or secondary evidence.
Primary Evidence-
Section 62 of the Act defines the primary evidence. According to it,
“Primary evidence means the documents itself produced for the
inspection of the courts.
Thus, primary evidence means original documents.
Illustration- in a suit for declaring title, a party produces
registered original sale deed before the court. Explanation of section 62
includes following also as primary evidence-
1. Executed documents in several original copies;
2. Counter part;
3. Several documents prepared by uniform process, like- documents
prepare by printing, lithography or photography.
In the case of Smt. K. rajmani Vs Smt. Sushila Thakurdas
(A.I.R. 1983 Allahabad 90)- every such will shall be deemed to be
original will which is
1. prepared in the same language at the same process by using carbon
paper and by typing
2. executed by the testator; and
3. attested by the witnesses.
 54

In the case of ‘Lakshmaiah Vs saropamma, (A.I.R. 2004 NOC

59 karnataka) an unregistered family settlement deed was held to be
admissible strictly for collateral purposes only.
 Secondary Evidence-
It is used when the original document is not available, i.e. in
absence of primary evidence the secondary evidence is presented.
Section 63 of the Act defines the term Secondary Evidence. According
to it,-
“Secondary evidence means and includes-
1. Certified copies given under the provision 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 document 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.
In brief, following are secondary evidence
(1) Certified copies;
(2) Copies made from the original by mechanical processes;
(3) Copies made from or compared with the original;
(4) Counterparts of documents;
(5) Oral accounts of the contents of a document.
The certified copy of money lender’s license has been considered
as secondary evidence. (K. Shivlingayya Vs B.V. Chadershekhar
Gowada, A.I.R. 1993 Karnatak 29).
 55

Certified copies issued by sub-register under Registration Act, are

secondary evidence. [Land Acquisition officer, Vijaywada Thermal
Station Vs N. Venkat Rao, A.I.R. 1991 Andhra Pradesh 31].
Voice in taperecord, if proved to be of that person when
compared, shall be considered evidence. (K.S.Mohan Vs sandhya
Mohan , A.I.R. 1993 Madras 59).
Certified copies by notary officer are secondary evidence.
(Banarasi Das Vs Ramchandra, A.I.R. 1992 Punjab & Haryana 145).

 Difference
Above analysis shows following difference between primary
evidence and secondary evidence-
1. Primary evidence is the best evidence, whereas secondary evidence
is the weaker evidence.
2. Court does not have discretion in admitting the primary evidence,
whereas admission of secondary evidence depends upon the
discretion of the court.
3. There are no prior conditions for producing primary evidence
whereas secondary evidence may only produced when originals
may have been lost, destroyed, not available or cannot be
presented.
4. Primary evidence is the original document whereas secondary
evidence is certified copies, copies prepared by mechanical
process, carbon copies, counterparts, etc. of the originals.
5. There is no requirement of giving notice to the opposition before
producing primary evidence, whereas before presenting secondary
evidence, it is required to give notice to opposition with the
intention to produce original document.
 56

6. The permission of the court is not required for the presentation of

Primary evidence whereas the admissibility of secondary evidence
depends upon the permission of court.
In this mater the case of ‘K. Krishappa Naidu Vs B. Sohanlal
(A.I.R. 2004 S.C. 439) is quotable. Under this case, it has been said that
the admissibility of secondary evidence requires two conditions-
(a) describe in whose possession the original document lies; and
(b) given notice to that person who has to present original
document.
Until these two conditions are not fulfilled, the secondary evidence
cannot be permitted. It is not required for the primary evidence.
Situations when Secondary Evidence may be given
Section 65 of the Act mention those circumstances in which the
permission may be granted to produce secondary evidence. These
circumstances are following-
1. Original document are in the possession of opposition:
Section 65(a) says that the secondary evidence may be admitted if
the original I shown or appear to be in the possession of the person
against whom the document is sought to be proved and such person has
not produced it even after the notice.
Normally, when a original document is in the possession of
against the party and it is proved to be against him then such document
is not being presented by the against party in the court. It is also natural.
Under these circumstances the secondary evidence of that document i.e.
carbon copy, typed copy, photostat, certified copy etc. may be presented.
 57

2. The existence, condition or contents of the original have

admitted:
Section 65(b) says that, “When the existence, condition or
contents of the original have been proved to be admitted in writing by
the person against whom it is to be proved.”
In such matter, it is irrelevant whether the original has been
produced or not. On acceptance of the execution of the document, all
these conditions are meaningless.
3. Original has been destroyed or lost:
Section 65© says that secondary evidence may be produced in
following situations-
(a) When the original has been destroyed or
(b) When the original has been lost; or
(c) When the party offering evidence of its contents cannot, for any
other reason not arising from his own default or neglect,
produce it in reasonable time.
In such matter, it is to proved that the original has been destroyed
or lost. ‘Om Prakash Vs Devraj (A.I.R 1995 Punjab & Haryana 349).
In this matter, the case of “Santan Mohanti Vs Baidhar Raout
(A.I.R. 1986 Orissa 66) is a good case. Under the proceedings, it was
stated by the plaintiff in his examination and cross examination that the
disputed sale deed was lying in his bag but he has forgotten the bag in
the bus. The court granted permission to present the certified copy of
sale deed as secondary evidence.
4. Original cannot be easily movable:
 58

Section 65(d) says that when the original is of such a nature as to

be easily movable, then secondary evidence may be admitted. Writing
on the house wall, monuments, etc. are good examples. They cannot be
produced before court; hence, their secondary evidence may be given.
In the case of ‘Proner Vs B.H. Spinning Co. [(1914) K.B. 105],
it has been said that where it is required that notice must be affixed at a
particular place in the factory, such notice shall be secondary evidence.
5. Original is Public document:
Section 65(e) provides that when the original is public document,
then the secondary evidence may be admitted. The existence, condition
or contents of public document under section 74 may be proved by
certified copies or copies prepared by mechanical process.
In the case of ‘Gopikishan Vs Shankarlal Dakot’ (A.I.R. 2005
Rajasthan 114), it has been stated by the Rajasthan High court that voter
list is public document copies of relevant electoral roll are not only
admissible in evidence, they are themselves a substantive piece of
evidence.
6. Certified copy of original is permitted by law:
Section 65(f) says that the when the original is a public document
of which a certified copy is permitted by this Act, or by any other law in
force in India, to be given in evidence, the copy of such document may
be admitted in evidence even after the existence of original document.
Illustration- certified copies of original are permitted as
secondary evidence under Banker’s Account evidence Act, Power of
Attorney Act, Code of Civil Procedure, etc.
 59

7. Original document consists of numerous accounts or other

documents:
Section 65(g) says that when the original consists of numerous
accounts or other documents which cannot conveniently be examined in
court and the fact to be proved is the general result of the whole
collection, then evidence may be given as to the general result of the
document by any person who has examined them.
Illustration- Where the original has been lost, there the
conclusion of the examination regarding those account by the person
who has himself examined it may be made by the advocate.
Section 66 notice of secondary evidence
Secondary evidence of the contents of document under section 65 is not
allowed unless “not to produce” notice is first given. Section 66 has laid
down the conditions under which the notice can be given. It requires that
notice must be given to the opposite party or somebody who is in
possession of original document under section 65(a). The notice must be
in writing and to be given to produce the original, and if the opposite
party fails to comply with the notice, secondary evidence will be
admissible to prove the contents of the document.

When notice is not necessary:

Proviso to Section 66 enumerates six cases where no notice is required
for admission of secondary evidence in the following:

1. When a document itself is a notice:

When a document to be proved is itself a notice which has already been
given to the adverse party, then no notice is further required to be served
for admission of secondary evidence. Where defendant refused to
produce original rent note which was in’ his possession, and the plaintiff
sought to produce secondary evidence but the trial court rejected it, the
 60

Supreme Court held that the plaintiff should be allowed to produce the
secondary evidence and then the court may pronounce on its veracity.

2. When the opposite party knows that he is bound to produce it:

When the adverse party knows that he will be required to produce the
original or that he will be charged with the possession of the instrument
by the plaintiff, secondary evidence is admissible without giving him
notice. Where the defendant mortgagee was in possession of original
mortgage deed refused to produced it before the court, a certified copy
of the deed was allowed to be produced.

In an action of redemption of a mortgage when the mortgagee in

possession of mortgage deed and fails to produce it before the court, the
mortgagor can have right to produce certified copy of the deed.

3. When the adverse party has obtained original by fraud or force:

No notice is required to be served when it appears or is proved that the
adverse party has obtained the original document by fraud or by force.

4. When the adverse party has the original in the court. Notice to
produce the original is not necessary when it is proved that the adverse
party or his agent, like solicitor or vakil, has the original instrument in
court. When the original instrument is in the court room in opponents
‘possession an instant demand is sufficient.’

5. When the adverse party has admitted the loss:

The notice is not required to be necessary when the adverse party or his
agent had admitted that the original instrument which was in his
possession, has been lost or destroyed. It is a case of admission by the
opponent that presently he is not in possession of the instrument and no
notice is necessary. Secondary evidence is to be admitted.

6. When the person in possession is out of the jurisdiction of the

court:
 61

When the person in possession of the original document is out of the

jurisdiction of the court and not subject to the court, secondary evidence
is admissible without serving any notice.

Qs: What is Burden of Proof?

Ans: our judicial system is based on evidence. The conclusion of the
court depends upon the proof. It is the reason that the parties are
expected to present proof. Actually, it is not as difficult to present proof
as compared to decide the burden of proof to whom. The burden of
proof keeps on changing with the circumstances of the case, thereby
increases the importance of burden of proof.

 Burden of proof- generally, burden of proof means- the burden on

any party to prove any particular fact. Where a fact has to be proved
by any particular party there it is said that the burden of proving that
fact is on that party.
 Section 101 of Indian evidence Act, 1872 propounds the general
principle regarding the burden of proof. According to it-
“whoever desires any court to give judgment as to any legal right
or liability dependent on the existence of facts which he asserts, must
prove that those facts exist.
When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person.”
In simplest words, it can be said that- burden of proof means the
liability or binding of a person to prove any fact. Generally, this liability
lies over the person who make a statement and expects the court to
decide according to it.
 62

The case of Daulatram Vs Sodha (A.I.R. 2005 S.C. 233) is a

good example of it. It has been held by the Supreme Court in it that if
any person says that the will is counterfeit or written under fraud, under
influence or coercion, then the burden of proving this fact shall be on
that person.
Similarly in the case of Amrit Vanaspati Co. Ltd. Vs union of
India (A.I.R. 1995 S.C. 1340), it has been stated by the Supreme Court
that in a petition challenging the validity of the statute the burden of
proof shall be on the person challenging.
In the case of ‘Robins Vs National Trust Co.’ (1927 A.C. 575),
it has been stated by KYcount Dunian that the burden shall always on
the person who asserts that the fact exists.
Merely on the basis of registration, a will cannot be presumed as
original. When it is challenged, it is required to get proved. (Naam Dev
Mali Vs Jairam Birday, A.I.R. 2009 N.O.C. 274 Mumbai).

 On whom burden of proof shall lie:

Section 102 to 112 mentions those matters in which the burden of
proof shall be a particular party.
1. On whom burden of proof lies:
It has been stated in section 102 that the burden of proof in a suit
proceeding lies on that person who would fail if no evidence at all were
given on either side.
Illustration- accused says that there was the consent of
aggrieved party for the incident. The burden of proving this consent
shall be on the accused, not on the aggrieved party. If both the parties do
not produce evidence to it, then it shall be presumed that there was no
 63

consent of the aggrieved party and the accuser’s statement shall be

failed. (State of Himachal Pradesh Vs. Srikanth, A.I.R. 2004 S.C.
4404).
2. Burden of proof as to particular fact:
According to section 103- the burden of proof as to any particular
fact lies on that person who wishes the court to believe in its existence,
unless it is provided by any law that the proof of that fact shall be on any
particular person.
Illustration- A prosecutes for theft and whishes the court to
believe that B admitted the theft to C. A must prove the admission.
If any freedom fighter says that he has been punished upto 6
months of imprisonement. The burden of proving this fact shall be on
the freedom fighter. (B. K. Nagraj Vs. Union of India, A.I.R. 2004,
Karnataka 90).
3. Burden of proving fact to be proved to make evidence
admissible:
It has stated under section 104 that the burden of proving any fact
necessary to be proved in order to enable any person to give evidence of
any other fact is on the person who wishes to give such evidence.
Illustration- A wishes to prove a dying declaration by B. a must
prove B’s death.
Where a sale deed has been executed by such old. Illiterate and
blind lady who has lived with the buyer and also dependent upon him,
the burden of proving the free consent consent of seller shall be on the
buyer. (Sethani Vs Bhana, A.I.R. 1993 S.C 956).
4. Burden of proving that the case comes within exceptions:
 64

According to section 105, when a person is accused of any

offence, the burden of proving the existence of circumstances bringing
the case within exceptions, is upon him.
Illustration- A, accused of murder, alleged that, by reason iof
unsoundness of mind, he did not know the nature of act. The burden of
proof of unsoundness of mine is on A.
In the case of,’V. Subrahamanyam Vs State of Tamil Nadu’
(A.I.R. 2005 S.C. 1983), it has been held by the Supreme Court that the
burden of proving right of private defence is on the accused.
5. Birth during marriage conclusive proof of legitimacy:
It has been provided under section 112 that the fact that any
person was born during the continuance of a valid marriage between
between his mother and any man, or within 280 days after its
dissolution, the mother remaining unmarried, it shall be conclusive proof
that he is the legitimate son of that man, unless it can be shown that the
partiesto the marriage had no access to each other at any time when he
could have been begotten.

Qs: section 113 A, 113 B and 114 A.

 65

Ans: presumption shave important place in evidence law. Presumption

means that the court accepts the existence of any fact. When any fact is
presumed, then that fact is not required to be proved.
1. Presumption as to abetment of suicide by married woman:
A provision has laid down under section 113 about the abetment
of suicide by a married woman. This section reads as under:
“when the question whether the commission of suicide by a
woman has been aetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of 7 years
from the date of her marriage and that her husband or such relative of
her husband had subjected her to cruelty, the court may presume, having
regard to all the other circumstances of the case, that such suicide had
been abetted by her husband or by such relative of her husband.”
Thus section 113 A provides that when a married woman-
(a) During 7 years from the date of her marriage;
(b) Commits suicide; and
(c) It is shown that her husband or any relative of her husband had
subjected her to cruelty.
Then the court shall presume considering all other circumstances
that she has been abetted to commit suicide by her husband or any
relative of her husband.
In such cases, the burden of proof shall lie on the husband or
relative of husband to prove innocence.
This section has been added to the Indian Evidence Act by the
amendment in 1983.
 66

For the purpose of this section, ‘cruelty’ shall have the same
meaning as in Section 498 of the Indian Penal Code, 1860. According to
section 498A of IPC.
“cruelty” means-
a) any willful conduct which is of such nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
organs or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or o account of
failure by her or any person related to her to meet such demand.
2. Presumption as to dowry death:
Similarly, a presumption is in respect of dowry death. A provision
has been laid down under section 113B about the presumption in respect
of dowry death. This section reads as under-
“when the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment for,
or in connection with, any demand for dowry, the court shall presume
that such person had caused the dowry death.”
Thus, section 113B provides that when there is involved a question
of dowry death of a woman and the evidence comes that
(a) Before such death, any person in relation to or in connection
with any demand of dowry;
(b) Subjected that woman to cruelty; or
(c) She was harassed.
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Then the court shall presume that such person committed dowry
death.
The words ‘Soon before death’ used in this section are very
important. The presumption under section 113B requires that the woman
was subjected to cruelty soon before her death. In the case of ‘Kunni
Abdulla Vs State of Kerala’ A.I.R. 2004, S.C. 1731), while ratifying
the matter in this respect, it has been stated that the phrase ‘soon before’
means there should exist live and proximate link between cruelty and
death.
3. Presumption in matters of Rape:
Third presumption is in respect of the cases of rape. Section 114 A
says that-
“in a prosecution for rape under clause (a) or Clause (b) or clause
(c) or clause (e), or clause (g), of sub section (2) of section 376 of Indian
Penal Code, 1860 where sexual intercourse by the accused is proved and
the question is whether it was without the consent of the woman alleged
to have been raped and she states in her evidence before the court that
she did not consent, the court shall presume that she did not consent.”
Explanation- under this section “Rape” means any act as detailed
in Clause (a) to Clause (d) of section 375 of the Indian Penal Code (45
of 1860). [Substituted by the Criminal Laws (Amendment) Act
2013].
It is universal that it is difficult in matters of rape to punish the
accused; because it is a secret act and no eye witness could be found.
Sometimes, it is difficult to decide about the consent of aggrieved
woman. Circumstances are such that the neither the consent nor the non-
consent could be determined.
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Hence, this section had been added to ensure the consent/ non-
consent of the female. The case behind this amendment was ‘Tukaram
Vs State of Maharashtra’ (A.I.R. 1979 S.C. 185)- a woman named
Mathura was raped by two constables. But theses constables were
acquitted because there were no marks of injury of the woman’s body
nor the woman raised any cry at the time of incident. Court held to be
consent. The burden of proving non- consent was on the prosecution,
because circumstances were such.
Hence, to make the fact of consent more simple the Section 114 A
was added.

Qs: ‘Doctrine of Estoppel’?

Ans: Doctrine of Estoppel-
Estoppels literally means – ‘to stop’. According to it, when any
person says one thing at one time and other thing at another time, then
he is prevented from doing so. This is estoppel.
Section 115 of Indian Evidence Act, 1872 defines Estoppel. According
to it-
“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.”
It can be said in simple words that- where any person intentionally
causes another person to believe a thing to be true by his act, omission or
declaration and such other person acts upon such belief, then that person
 69

shall not be allowed to deny the truthiness of that thing, later in a suit or
proceeding.
It means that a person cannot deny thing after having stated it to
be true. In the case of B. Manjunath vs C. G. Srinivas’ (A.I.R. 2005
Karnataka 136), it has been stated by the Karnatka High court that by
way of principle of estoppels, plaintiff may be stopped to go back on his
representation. This is the doctrine of Estoppel.
It could be explained by an illustration. A person accepts his
liability to make payment under an arbitration award. Such person
cannot later challenge the award. (Mr. Govindji Javet and Co. Vs. Sri
Saraswati Mills Ltd., A.I.R. 1982 Bombay 76).
Section 115 gives a good example. ‘A’ intentionally and falsly
leads ‘B’ to believe that certain land belongs to A; and thereby induces
B to buy and pay for it. The land afterward 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.
In respect of estoppel, the case of ‘Shammim Beg Vs
Najmunnissa Begum (A.I.R. 2007N.O.C. 2085 Mumbai) is quotable. In
this case, the document was executed between the husband and the wife
with an intention that the wife has begotten before the marriage with the
husband. The husband has accepted the fact of knowing the child. The
wife gave birth to child on the day of marriage. The husband could not
challenged the legitimacy of this child. He is bounded by his previous
statements.
It becomes clear from this example that the doctrine of estoppels
is baed on having just in equity and fairness in action. Also, in the case
of Jindal thermal Power co. Ltd. Vs Karnataka Power Transmission
 70

Corporation Ltd., (A.I.R. 2005 N.O.C. 55 Karnataka) it has been said

that doctrine of estoppel appertains to equity and fairness in action.
In this context, the case of ‘Pickard Vs Spears’ (1837 A and E
469) is a good example. In this case, the principle of doctrine of
estoppels is propounded as – where any person intentionally causes
another person to believe by his words or conduct that a particular thing
as the existence and thereby encourages that person to act upon that
belief in such a way that his original situation is changed, then the first
person shall be stopped from stating that the existence of the actual
situation was of different type.
Essential elements:
From the above definition of estoppels, the following essential
elements of it reflect-
(a) a person misrepresents by his act, omission or declaration,
(b) such misrepresentation is regarding the existence of any fact;
(c) such misrepresentation is intentionally caused to make a person
believe a thing;
(d) the other person believes such misrepresentation to be true;
(e) the other person does some act believing such
misrepresentation;
(f) such act causes injury to the other person; and
(g) such person is unaware of actual situation.
Types of Estoppel-
1. Estoppels, by record-
Estoppels by record is created by the decision of any competent
court. When any court decides finally over a subject then it becomes
conclusive and the parties, their representative, executor, administrator,
 71

etc. becomes bound to that decision. They can neither bring another suit
on the same subject nor can make the same subject disputed. They are
stopped doing so. It is alike resjudicata.
2. Estoppel by deed-
When nay person becomes bound to another person on the basis of
a record regarding few facts, then neither that person nor any person
claiming through him shall be allowed to deny it.
3. Estoppels by conduct-
Estoppel by conduct is such estoppels which arises due to act,
conduct or misrepresentation by any party. When any person causes
another person to believe by his words or conduct or encourages them to
believe and the other person acts upon that belief and causes changes in
their situation, then the first person is stopped from denying the
truthiness of his statements made earlier. Actually, this is an estoppels of
general nature.
It may be explained by an example. ‘A’ sells his land. The sale
deed is attested by his son. The son does not object even when the sale
deed was adversely affecting his interest. The son cannot later make any
objection. He will be stopped for raising any objection. (Mehboob sahib
vs Sayyed Ismail, A.I.R. 1995 S.C. 1205).
4. Equitable Estoppel-
Such estoppels which has not been provided by any statute is called
equitable estoppel. The best examples of equitable estoppels are there in
Section 41 and 43 of Transfer of property act, 1882.
In this matter, the case of ‘Kumari Swapnarani Das Vs Uttkal
university’ (A.I.R. 1985 Orissa 37) id quotable. Under it, the university
 72

issued twice provisional certificate to Swapnarani Das with the intention

that she has passed intermediate. The university is later stopped from
declaring that she has failed, and has to reappear in exams.
5. Promissory Estoppel-
Promissory estoppels has originated as an exception to
consideration in the field of contract law. When any person promises
another to lend him certain relief or profit and the other changes his
position on the basis of such promise, then the person making promise
shall be stopped from stating that his promise was without any
consideration.
In the case of ‘Jindal Thermal powers Co. Ltd. Vs Karnataka
Power Transmission Corporation Ltd. (A.I.R. 2005 N.O.C. 55
Karnataka), it has been said by Karnataka High Court that the
promissory estoppels is not related to any contract or evidence, law but
to just of equity and fairness in action.
Exceptions-
now, we will discuss the exceptions of Estoppel. The doctrine of
estoppels does not apply on the following-
(1) Principle of estoppels does not apply to those matter where both
parties have the knowledge of truthiness. Also in the case of
‘Mohribibi Vs Dharma Dass Ghosh’ [(1903) 30 Kolkata 539],
it has been held that the principle of estoppels does not apply
where both the parties were in the knowledge of
misrepresentation by any person.
(2) Principle of estoppels does not apply against statutes. It cannot
contradict the provisions of statutes. It cannot also remove the
condition of statutes.
 73

Also, in the case of, ‘Sukumar Chakarvarthy Vs Assistant

Assessor (A.I.R. 1991 Kolkata 181), it has been held that
principle of estoppels, does not affect statutes.
The doctrine of estoppels does not apply to statutes especially in
the cases where it is lower down the educational standards.
(Vipin Kumar Dubey Vs Mahatma Gandhi Chitrakut
Gramodaya university, Chitrakut, sattna, A.I.R. 2009 N.O.C.
441 Madhya Pradesh.
(3) It does not also apply to Regulations. (Smt. Ravindra Verma
Vs State of Punjab, A.I.R. 1995 S.C. 277).
(4) It does not also apply to Ultra Virus orders and decisions. (M.
Devnarayan Reddy Vs Government of Andhra Pradesh,
A.I.R. 2004 N.O.C. 332 Andhra Pradesh).
(5) The principle of estoppels does not also apply to questions of
law.
(6) It also does not apply to sovereign acts of the government.
(7) Mere silence is not estoppel. Where there is no duty to speak,
there silence is not estoppel.
(8) The principle does not apply against misrepresentation of minor.
The application of the principle requires that misrepresentation
shall be made by such person who is competent to contract.
 Difference between Estoppel and Resjudicata-
(1) Estoppels stops any person to say one thing at one time and
other thing at other time. Whereas resjudicata ceases the
jurisdiction of court to hear twice on the same matter.
(2) Estoppel is a rule of evidence law and based on the principles of
equity, justice and good conscience, whereas resjudicata is rule
related to judicial proceeding and based on the principles of
public policy.
 74

(3) Estoppel arises by misrepresentation or conduct of any person

whereas resjudicata is based on decision of the court.
(4) Estoppels stops any person from denying the truthiness of their
earlier statements in civil matter, whereas resjudicata stops the
court from hearing such matter which has been decided once by
a competent court.

Unit-IV

Qs: what do you understand by ‘competent witness’.?

Ans: Competent Witness-
General perception is that witness is a person of high character.
Manusmriti had also mentioned about capable and competent witness.
According to Manusmriti, witness must be always of moral conduct. A
dumb, deaf, old aged, intoxicated, lunatic, cruel, thief, patient, sanyasi
etc. cannot be a good witness.
As per legal approach, definition of competent witness is
something else. Section 118 of Indian evidence Act, 1872 provides for
such that persons who are competent to give witness, i.e. who are
competent witness. According to it-
“All person shall be competent to testify, unless the court
considers that they are prevented from understanding the question 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”.
 75

According to this definition, all those persons are competent

witness who-
(a) are competent to understand the questions put to them; and
(b) can give rational answers to such questions.
Thus, as per section 118 the only criteria for the competency of
witnesses is competence to understand the question put to them and to
give rational answers.

 Minor Person-
The question is whether minor is a competent witness?
According to the definition given in the section 118, a minor can be a
competent witness, if he has the competence-
(a) to understand the question put to him; and
(b) to give rational answers.
There is no definite age determined for competency of a witness,
In a case of ‘Mu. Dato Vs State (A.I.R. 1954 Punjab 825), a 5
years old girl made a statement before the court as a witness that her
step-mother pushed her and 3 years old sister into the well. The question
arose whether she is competent to testify? It has been held by the court
that a child of a tender age can be a competent witness.
Similarly in the case of, ‘Prakash Vs State of M.P. (A.I.R. 1993
S.C. 65), under the case of murder, witness was given by a 14 years old
younger brother of the deceased. It was said that minor cannot be a
competent witness, as his evidence may be taught. But, the Supreme
Court held him to be a competent witness.
 76

In the case of ‘Ratan Singh Dalsukh Bhai Nayak Vs State of Gujarat’

(A.I.R. 2004 S.C. 23), the supreme court held the evidence of such
minor to be reliable which was proved by the evidence of the report of
scientific laboratory.
In the case of ‘White [(1786) 1 Leach 430]’ and ‘Braisier
[(1779) 1 Leach 199]’ mention is observed for testing the competent
witness of a minor. Under it has been stated by that if the minor
possesses a sufficient knowledge of the nature and consequences of an
oath, then he will be a competent witness.
In the case of ‘State of Maharashtra Vs C.K.Jain’ (A.I.R. 190
S.C. 658), it has been held by the Supreme Court that a minor girl victim
of rape shall be a competent witness under section 118. His evidence
must be given the same weightage as given to a person victim of
violence, and only that precaution is required which shall sufficient for a
normal witness.

 Dumb Witness-
Section 119 of the Evidence Act provides for the Evidence by dumb
witness. According to it-
“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.
But if the witness is unable to communicate verbally then the
court will take assistance of an interpreter or a special educator in
obtaining the written statement and such statement shall be
videographed.
[Substituted by the Criminal Laws (Amendment) Act 2013]
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It is clear that dumb witness can be a competent witness. Such person

can give his witness-
(a) in open court;
(b) by writing; or
(c) by signs,
 Lunatic-
The explanation of section 118 says that- A lunatic can be
competent witness, only when has the competence
(a) to understand the question put to him; and
(b) to give rational answer to it.
The explanation reads as – “ A lunatic is not incompetent to testify,
unless he is prevented by his lunacy from understanding, the questions
put to him and giving rational answers to them.

 Husband & Wife-

A provision has been laid down under section 120 of the Act
which stipulates that – “in all civil proceedings the parties to the suit,
and the husband or wife of any party to the suit, shall be competent
witnesses. In criminal proceedings against any person, the husband or
wife of such person, respectively, shall be competent witness.
In this way, section 120 recognizes the person of any party or the
husband or wife of such person as a competent witness. According to it-
(a) in all civil proceedings the parties to the suit and the husband or
wife of any party to the suit, shall be competent witnesses to
give evidence in their suit, and
 78

(b) in criminal proceedings, if the husband is the accused, then

against him, his wife of if the wife is the accused, then against
her, her husband shall be competent witness in that proceeding.
Illustration- in a suit instituted for dissolution of marriage on the
ground of adultery, the evidence of the husband or wife that they did not
have access to each other when she was begotten, shall be admitted to
prove adultery.
Similarly in the case of dissolution of marriage on the grounds of
impotence, the against party is being considered a competent authority.

Qs: “Accomplice”?
Ans: accomplice- section 133 of Indian Evidence Act, 1872 provides
about the evidence of an Accomplice. But does not define an
accomplice. In such situation, a general definition of accomplice cannot
be laid down.
Accomplice means such person who asserts another accused in the
commission of an offence.
In other words, it can be said that accomplice is partner of the
accused in the commission of an offence.
In the cases of ‘Davis Vs Director of Public Prosecution (1954
A.C. 373) and ‘R.K. dalmiya Vs Delhi Administration’ (A.I.R. 1962
S.C. 1821), the “Accomplice” has been defined as; “The person who
participates in the commission of an offence or asserts or encourages it,
is called an Accomplice.
 79

In an offence of theft, the person buying stolen property is an

Accomplice. [R. Vs Dixon, (1925) 10 criminal reports 56].
Similarly, the person who performs the role of a watchman in the
commission of an offence is an Accomplice.
But, in matter of bribe, the person playing role of one who gives
bribe in order to catch the offender, is not an accomplice.
[M.O.Shamsuddin Vs State of Kerala, (1995) 2 S.C.C. 351].
Similarly, in a matter of encroachment upon a government land,
the person filing a report against a policeman that he was demanding
bribe from him, is not an accomplice. [Mahasingh Vs State, (1996) 1
S.C.C. 652].
Accomplice requires that-
(a) he must participate in crime; or
(b) asserts in the offence; or
(c) abet an offence etc.
 Importance of Evidence of an Accomplice:
The question is that what is the importance of the evidence given
or statements made by an accomplice? Whether conviction can be based
on the evidence of an accomplice? The answer to this question could be
obtained from section 133 of Indian Evidence Act, 1872, it has been
stated under section 133 that-
“An accomplice shall be a competent witness against an accused
person, and a conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice.”
Thus, the provision of Section 133show that-
 80

(a) Accomplice can be a competent witness against the accused,

and
(b) A conviction is not illegal merely because it proceeds upon the
corroborated testimony of an accomplice.
This means that an accused may be convicted on the
uncorroborated evidence of an accomplice.
 Whether Corroboration is Required?
Although, according to the section 113, the conviction of an
accused does not require corroboration of the testimony of an
accomplice, but if it is seen in the context of section 114 illustration
(b) then corroboration of the testimony of an accomplice seems to be
required. Now, Court’s have adopted the concept that the
corroboration of the testimony of an accomplice id necessary. The
conviction merely on the uncorroborated testimony of an accomplice
is not safe.
In the cases of ‘G.S.Bakshi Vs Delhi Administartion’ (A.I.R.
1979 S.C. 569), it has been stated by the Supreme Court that the
testimony of an accomplice must be admitted with utmost care and
must be corroborated with logic.
In the cases of “King Vs Vaskar wille” [(1916)2 K.B. 59], it
has by held by the Justice Viscount Reeding that although there is no
legal obstacle before the court to convict on the grounds of witness of
an accomplice, even though it becomes a practical rule that such
evidence should be confirmed by other evidence.
 Why Corroboration is Required?
 81

It is an important question that why corroboration of the

testimony of an accomplice is necessary. Three reasons for its necessity
has been considered-
1) The accomplice is criminal himself, his testimony should not carry
the same respect as that of a law-abiding citizen.
2) He has been faithless to his companions and may be faithless to the
court because he has motive to shift the guilt from himself to his
former companions, and
3) If he is an approver, he has been favored by the state and is,
therefore, likely to favor the state.
Because of these doubts and possibilities, the testimony of an
accomplice must be corroborated. (Sureshchandra Bahri Vs State of
Bihar, A.I.R. 1994 S.C. 2420).

Qs: What is ‘Examination- in –Chief’ ‘Cross- Examination’ and

‘Re-examination’?
Ans: What is the importance of witness in the law of evidence so that of
the examination of witnesses. The witnesses record their statement by
way of the examination. These examinations are the medium to
determine the truthiness of the statements. the examinations is of three
types-
a) Examination- in – chief;
b) Cross- examination and
c) Re-examination.
Section 137 of Indian Evidence Act, 1872 laid down the
provisions regarding these three types of examination.
 82

 Examination – in –chief:
According to section 137- the examination of a witness by the
party who calls him, shall be called his examination- in – chief. In other
words, it may be stated that examination –in –chief means such an
examination which is done to the witness called by the party himself. In
this examination, parties record statement through this witness to
establish their claim.
Illustration- a’ brings a suit for the recovery of money from ‘B’. C
is the executor of the promissory note. A produces C as a witness from
him. Hence, examination of C by A shall be called examination –in-
chief. This examination shall be conducted first.
Thus, the examination of a witness by the party who calls him shall
be called his examination-in- chief.
 Cross examination-
After the examination –in- chief, the cross examination is
conducted. According to section 137- “The examination of a witness by
the adverse party shall be called his cross- examination.”
It is clear that the cross- examination is conducted by the adverse
party. In cross-examination, truthiness of the witness is tried to disclose.
Leading question may be asked. It is not necessary to be limited to only
those facts which the witness had testified in his examination- in- chief.
 Re- examination-
Re- examination is conducted after the cross examination, and is
conducted by the same party which had called him and conducted
examination- in – chief.
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According to Section 137, “the examination of witness, subsequent

to the cross- examination by the party who called him, shall be called his
re- examination.

 Order of Examination-
Provisions for the order of examination are laid down under
section 138 of the
,Evidence Act. According to it-
“witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross-examined; then (if the party calling him so
desires) re-examined.”
It is clear that according to section 138, the order of examination
shall be under:
(a) Firstly, examination-in-chief,
(b) Secondly, cross examination and
(c) Finally, re-examination.
In the case of Sukhwant Singh Vs State of Punjab (A.I.R. 1995
S.C. 1601), it has been held by the Supreme Court that cross-
examination of any witness cannot be conducted prior to examination-
in-chief, that is, a witness cannot be thrown open to cross-examination
unless he is first examined-in-chief.
Importance and Value of Examinations-
Examination-in-chief, cross-examination and re-examination has
its own value and importance. They have their own limitations.
(a) Examination-in-chief:
It must be-
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(i) Conducted first; and

(ii) Conducted by the party who has called him.
The object of examination-in-chief is to obtain evidence for
which he has been called.
The area of examination-in-chief is limited. Section 138 says that
the examination-in-chief must be limited to relevant facts only.
Also, leading question cannot be asked without prior permission
to court.
(b) Cross-examination:
It is conducted after examination-in-chief and by the adverse party.
Its area is extremely wide. Section 138 says that, “The
examination and cross examination must relate to relevant facts, but the
cross-examination need not be confined to the fact to which the witness
testified on his examination-in-chief.
Meaning thereby that different questions to that of examination-
in-chief may be asked in cross-examination. In the case ‘Jobber Singh
Vs state of Madhya Pradesh (A.I.R. 1981 S.C. 373), it has been held
by the Supreme Court that cross-examination need not be confined to the
facts stated by the witness in his examination-in-chief. It can extend to
the whole range of relevant facts and also may be for such facts which
reflect the truthiness.
Actually the main object of cross examination is to disclose the
truth. Prof. Whigmore has said that – “It is greatest legal engine ever
invented for the discovery of truth.” It may, also be called legal surgery
for disclosing truth.
 85

According to Phipson, there are, mainly two objects of the cross-

examination – to weaken the case of against party and to strengthen the
own case. With this object several questions are asked from the witness
in the cross-examination and tried to shift him.
Leading question may be asked from the witness in cross-
examination. To test his truthiness, the questions different from the
examination-in-chief may be asked.
But, in the cases of ‘Choudhary ramji Bhai Narsang Bhai Vs
State of Gujarat’ A.I.R. 2004 S.C. 313, it has been stated by the
Supreme Court that only the statements of that witness can be
contradicted in cross-examination and not of any other witness.
In all, cross-examination is very important for the adverse party.
Opposition may make his case strong and other’s weak by way of cross-
examination.
(c) Re-examination-
It is conducted after cross-examination and the same witness is
examine who has already undergone examination-in-chief and by the
party which called him.
With regard to re-examination, it has been stated by in Section
138 that-“The re-examination shall be directed to the explanation of
matters referred to in cross-examination, and, if new matter is, by
permission of the court, introduces in re-examination, the adverse party
may further cross-examination upon the matter.”
Re-examination mainly has two objects-
(i) Give opportunity to party who called the witness to remove the
defects of his examination-in-chief, and
 86

(ii) Clarify those inconsistent facts which have arisen during

cross-examination.
Neither leading question nor without prior permission of court
any new question may be asked in re-examination. Only the questions
explaining the subjects arising in cross-examination can be asked in re-
examination.
It is to mention here that if any witness avoid re-examination after
his cross-examination, then his testimony lose importance. [Gopal
saran Vs Satyanarayan, (1989)-3 S.C.C.56].
Also, Re-examination shall be permitted only when it has an
object. (Anil Sharma Vs State of Jharkhand, A.I.R. 2004 S.C. 2294).

Qs: What is ‘leading Question’? when it can be asked?

Ans: leading question has an important place in order of examination of
witnesses. Section 141 of the Act defines the leading question.
According to it- “any question suggesting the answer which the person
putting it wishes or experts to receive is called a leading question”.
It is cleared that the answer is rested in a leading question (Varkey
Joseph Vs State of Kerala, A.I.R. 1993 S.C. 1892).
Illustration- an advocate wants to show the presence of a particular
person at a particular place at a particular time. He asks from a witness,
look, it is true that ‘A’ on 25th December 2005 at 8:00a.m. was present in
Raja Park at Jaipur. This is leading question.
Leading question cannot be asked in the examination-in-chief and
re-examination without the permission of the court. In the case of
‘Dadabuddappa Vs Kalu Kanu’ (A.I.R. 2000 Karnataka 158), it has
 87

been held by the Karnataka High Court that any party can ask leading
question to his own witness only when he has become hostile and that is
also with the permission of court only.
According to section 143, leading question may be asked in cross-
examination.
Qs: who is an ‘hostile witness’?
Ans: section 154 of the Act provides for the ‘hostile witness’. When
any witness testifies against that party which has called him, such
witness is called hostile witness.
In the case of ‘Satyappa Vs Delhi administration’ (A.I.R. 1976
S.C. 303), it has been stated by the Supreme Court that hostile witness is
that who do not talk about the interest of the party which has called him
or gives evidence adverse to them or do not tell the truth.
As far as concerned with the admissibility of witness of hostile
witness, generally, the evidence of hostile witness is not much reliable or
not relied upon. But this is not absolute rule. If statement of hostile
witness is corroborated with other evidence, it can be relied upon.
(L.Sriniwas Rao Vs State of M.P. A.I.R.2004 S.C. 1720).
In the case of Sarvesh Narayan Shukla Vs Daroga Singh (A.I.R.
2008 S.C. 320), it has been held by the Supreme Court that it is not
justifiable that the evidence of hostile witness may not be relied upon
completely. Both the parties may take advantage of the reliable part of
its statements.
In the case of ‘Govindraju alias Govind Vs State’ (A.I.R. 2012
S.C. 1292), it has been decided by the Supreme Court that Court has to
act with greater caution and accept such hostile evidence with greater
degree of care in order to ensure that justice alone is done.
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Qs: how can be credit of witness be impeached?

Ans: section 155 of the Act provides for the impeachment of the credit
of witness.
Impeaching the credit of a witness means, to make the evidence
unreliable, so that the court cannot believe it.
According to section 155 of the Act, the credit of a witness may be
impeached in the following ways by the adverse party, or, with the
consent of the court, by the party who calls him-
a) by the evidence or persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit;
b) by proof that the witness has been bribed, or has accepted the offer
of a bribe, or has received any other corrupt inducement to give his
evidence;
c) by proof of former statements inconsistent with any party of his
evidence which is liable to be contradicted;
d) by proof of immoral character of prosecutrix in case of rape.
In the case of ‘State of Punjab Vs Vishwajeet Singh’ (A.I.R. 1987
Punjab and Haryana 126), it was said that in case of rape or attempt to
ravish the evidence may be given that prosecutrix is generally of
immoral character.