1 Indian Evidence Act, 1872

Introduction
The Indian Evidence Act, 1872 has 167 Sections in XI Chapters and a schedule which has been repealed.
This Act is divided into 3 Parts. Part 1 contains provisions of – ‘Relevancy of facts’, Part 2 contains
provisions of – ‘On Proof’, Part 3 contains provisions of – ‘Production and Effect of Evidence’. The
provisions of this Act provide for the relevancy of facts, mode of proof and production and effect of
evidence. Law of evidence is lex fori which means evidence is one of those matters which are governed
by the law of the country in which the proceedings take place.

History
The Indian Evidence Act, 1872 was passed by the Legislature and assent was given on 15 March 1872.
This Act came into force on 1 September 1872. This Act was drafted in 1872 by one of the most eminent
jurists of the nineteenth century, Sir James Fitzjames Stephen. This Act was passed by the Imperial
Legislative Council in 1872 (a legislature for British India from 1861 to 1947).

Objectives and Applicability of the Act

Extent—It extends to the whole of India and applies to all judicial proceedings in or before any Court,
including Courts-martial, other than Courts-martial convened under the Army Act (44 and 45 Vict.,
c. 58), the Naval Discipline Act (29 and 30 Vict., 109); or the Indian Navy (Discipline) Act, 1934 (34 of
1934), or the Air Force Act (7 Geo. 5, c. 51) but not to affidavits presented to any Court or officer, nor to
proceedings before an arbitrator.
Commencement of Act—It came into force on the first day of September 1872.
The Indian Evidence Act, 1872 was enacted with the object to prevent laxity and negligence in the
admissibility of evidence. In 2018, Amendments to The Indian Evidence Act, 1872—Amendment to
Section 53A, Indian Evidence Act, 1872 (hereafter in this Chapter referred to as the Evidence Act), for
the words, figures and letters ‘Section 376A, Section 376B, Section 376C, Section 376D’, the words,
figures and letters ‘Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section
376DA, Section 376DB’ shall be substituted.
Amendment of Section 146, in Section 146 of the Evidence Act, in the proviso, for the words, figures and
letters ‘Section 376A, Section 376B, Section 376C, Section 376D’, the words, figures and letters ‘Section
376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB’ shall
be substituted.
According to this Act, ‘Evidence’ means and includes—(1) all statements which the Court permits or
requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements
are called oral evidence; (2) all documents including electronic records produced for the inspection of
the Court, such documents are called documentary evidence.

Statement of Objects and Reasons

The present Bill is comprised in the fifth report which the Commissioners appointed to prepare a body of
substantive law for India have recently submitted to Her Majesty. The remarks which the Commissioners
have prefixed to their draft follow this Statement, and will be found to give full information as to the
object of the Bill, and the reasons for the changes which it proposes to introduce.

Indian Evidence Act, 1872 1

 List of Amending Acts and Adaptation Orders
1. The Indian Evidence Act Amendment Act, 1872 (Act 18 of 1872)
2. The Indian Evidence Act, 1872 Amendment Act, 1887 (Act 3 of 1887)
3. The Indian Evidence Act, 1872 Amendment Act, 1891 (Act 3 of 1891)
4. The Indian Evidence Act, 1899 (Act 5 of 1899)
5. The Repealing and Amending Act, 1914 (Act 10 of 1914)
6. The Repealing and Amending Act, 1919 (Act 18 of 1919)
7. The Indian Evidence (Amendment) Act, 1926 (Act 31 of 1926)
8. The Repealing and Amending Act, 1927 (Act 10 of 1927)
9. The Amending Act, 1934 (Act 35 of 1934)
10. The Government of India (Adaptation of Indian Laws) Order, 1937
11. The Repealing Act, 1938 (Act 1 of 1938)
12. The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948
13. The Repealing and Amending Act, 1949 (Act 40 of 1949)
14. The Adaptation of Laws Order, 1950
15. The Part B States (Laws) Act, 1951 (Act 3 of 1951)
16. The Criminal Law (Amendment) Act, 1983 (Act 43 of 1983)
17. The Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983)
18. The Terrorist Affected Areas (Special Courts) Act, 1984 (Act 61 of 1984)
19. The Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986)
20. The Information Technology Act, 2000 (Act 21 of 2000)
21. The Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003)
22. The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006)
23. The Information Technology (Amendment) Act, 2008 (Act 10 of 2009)
24. The Criminal Law (Amendment) Act, 2013 (Act 13 of 2013)
25. The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018)
26. The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019)

Points to Remember !
y The Indian Evidence Act was drafted by Sir James F Stephen.
y The Indian Evidence Act was enacted on 15 March 1872.
y The Indian Evidence Act came into force on 1 September 1872.
y The Indian Evidence Act applies to judicial proceedings in courts.
y Law of evidence consists of legal rules of evidence.
y Law of evidence is an adjective law.
y Law of evidence is lex fori.
y Rules of evidence are not applicable to inquiries under Article 311 of the Constitution.
y Relevant fact must be legally relevant.

2 Indian Evidence Act, 1872

 y Facts can be physical as well as psychological.
y Admissions can be formal and informal.
y Admission is not relevant in a civil case if it is made under circumstances from which the court
can infer that the parties agreed together that evidence of it should not be given.
y Confession of one accused is admissible against co-accused if they are tried jointly for the same
offences.
y Retracted confession cannot be made solely the basis of conviction unless the same is corroborated.
y Necessity Rule as to admissibility of evidence is provided in Section 32.
y Opinion of an expert can be supportive and corroborative in nature.
y Evidence unearthed by the sniffer dog falls under scientific evidence.
y Self-regarding statements can be self-serving or self-harming.
y Self-harming statements are admissible, but self-serving statements are not generally admissible.
y The contents of documents must be proved either by primary or secondary evidence.
y A person summoned to produce a document does not become a witness in the case unless he/
she is called as a witness.
y If the attesting witness denies or does not recollect the execution of the document, its execution
may be proved by other evidence.
y The court may in its discretion call for proving the facts that have been admitted otherwise than
such admissions.
y Burden of proof partially determines the right to begin.
y Burden of introducing evidence under Section 102 constantly shifts.
y Estoppel deals with question of facts.
y Estoppel is a rule of civil action and rule of evidence.
y Estoppel is neither a cause of action nor it creates a cause of action.
y A person is competent to testify if he/she understands the question put to him/her and give
rational answer to those questions.
y Examination-in-chief of a witness must relate to relevant facts.
y Re-examination of a witness can be done after examination chief and after cross-examination.
y Examination-in-chief and re-examination of a witness shall be by the party calling the witness.
y Relevancy and admissibility under the Indian Evidence Act are neither synonymous nor co-
extensive.
y Presumptions under the law of evidence are presumption of facts as well as presumptions of law.
y Identification of a suspect by photo is admissible in evidence.
y Under Section 90, in case of Wills, the period of 30 years shall run from the date of the Will.
y Burden of proof in criminal matters is on the prosecution to prove the guilt of the accused.

Indian Evidence Act, 1872 3

4
The Indian Evidence Act, 1872

Relevancy of
Facts
Quick View of Law Charts

Preliminary Of the Relevancy of Facts

Evidence May
Evidence Res Gestae, Any fact Plea of Facts showing Admission Confession
includes presume,
may be i.e., things is relevant Alibi the existence
both oral and shall
given of done or which (Section of any state
documentary presume
facts in same shows or 11) of mind such
evidence and Confession caused by Confession to
issue and transaction constitutes as intention,
(Section 3) conclusive inducement, threat police officer
relevant (Section 6) a motive or knowledge,
proof or promise, when not to be
facts preparation good faith,
(Section 4) irrelevant in criminal proved
(Section 5) for any fact negligence,
proceeding (Section 25);
in issue or rashness, ill will
(Section 24); Confession by
relevant or goodwill
Confession made after accused while
fact (Section 14)
removal of impression in custody
(Section 8)
caused by inducement, of police not
threat or promise, to be proved
relevant (Section 28) against him
An admission Relevancy Oral In civil (Section 26)
is a statement of admissions cases no
oral or admission as to admission
documentary (Section 21) contents of is relevant Information Confession of
or contained documents (Section 23) received Co-accused
in electronic are relevant from (Section 30)
form (Section 22) accused
(Section 17) may be
proved;
discovery
statement
(Section 27)

Indian Evidence Act, 1872

 The Indian Evidence Act, 1872

Indian Evidence Act, 1872

Relevancy On Proof
of Facts

Dying Relevancy of Character Facts Which Of Oral Of

Declaration Opinion of Expert When Need to Be Evidence Documentary
(Section 32) or Third Person Relevant Proved Evidence

Facts, not Opinion as Opinion as Oral The contents

In civil cases In criminal No fact of Provides evidence
otherwise to hand- to existence of documents
character cases previous which the for the list must be
relevant, are writing of right or may be
to prove good character Court will of facts of direct
relevant if (Section 47) custom proved either
conduct relevant take judicial which Court (Section 60)
they support (Section 48); by primary or
imputed, (Section 53); notice need must take
or are Opinion as by secondary
irrelevant In criminal be proved judicial
inconsistent to usages, evidence
(Section 52); proceedings, (Section 56) notice
with the tenets, etc.
Character the fact that (Section 57)
opinions (Section 49), Primary Secondary
as affecting the accused
of experts, Opinion on evidence evidence
damages person has a
when such relationship Facts (Section 62) (Section 63)
(Section 55) bad character,
opinions are (Section 50) admitted
is irrelevant,
relevant. (Section 58)
unless
(Section 46)
evidence has
been given that
he has a good
character, in
which case
it becomes
relevant
(Section 54)

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6
The Indian Evidence Act, 1872

On Proof Production and Effect

of Evidence

Of Of the Exclusion of
Documentary Oral by Secondary Of the
Evidence Evidence Burden
of Proof
Secondary Public All other Presumption Patent Latent
evidence documents documents as to ambiguity ambiguity
Burden of proof Burden of proving When any fact
may be (Section 74) are private documents (Section 93) (Section 95)
in a suit or that case of is especially
given of the (Section 75) thirty years
proceeding lies accused comes within the
existence, old
on that person within exceptions knowledge of
condition or (Section 90) Evidence as
who would fail (Section 105); any person,
contents of to application
if no evidence Read with General the burden of
a document of language
at all were given Exceptions of proving that
(Section 65) to one of two
on either side Indian Penal Code fact is upon
sets of facts,
(Section 102) (45 of 1860) him
to neither
of which (Section 106)
the whole
correctly
applies
(Section 97)

Principle of Presumption Birth during Court may presume

continuity of of death marriage, the existence of
life (Section 108) conclusive any fact which it
(Section 107) proof of thinks likely to have
legitimacy happened, regard
(Section 112) being had to the
common course
of natural events,
human conduct and
public and private
business, in their
relation to the facts
of the particular case
(Section 114)

Indian Evidence Act, 1872

 The Indian Evidence Act, 1872

Indian Evidence Act, 1872

Production and Effect
of Evidence

Estoppel Of Witnesses Of the Examination Of Improper

of Witnesses Admission and
Rejection of
Testify; A Dumb Husband wife Official Evidence
lunatic is not Witness communication communication Examina- Any question Leading Witness may
incompetent (Section (Section 122) (Section 124) tion-in-chief; suggesting questions be cross-
to testify, 119) Cross-ex- the answer may be examined as Improper
unless he is amination; which the asked in to previous admission or
prevented re-examina- person cross- statements rejection of
by his tion (Section putting it examination made by him evidence shall
Professional Accomplice
lunacy from 137) wishes or (Section 143) in writing or not be ground
communication shall be a
understanding expects reduced into of itself for a
(Section 126) competent
the questions to receive writing new trial or
witness against
put to him and is called (Section 145) reversal of any
an accused
giving rational a leading decision in any
person; and
answers to question case (Section
a conviction
them (Section 141) 167)
is not illegal
(Section 118)
merely because
it proceeds Court may Question by Credit of Witness may Power of the
upon the forbid any party to his a witness refresh his judge to put
uncorroborated questions own witness, may be memory by questions
testimony of or inquiries i.e., hostile impeached referring to or order
an accomplice which it witness (Section 155) any writing production
(Section 133) regards as (Section 154) made by him
indecent or (Section 159)
scandalous
(Section 151)

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The Indian Evidence Act, 1872

Amendments

When oral Opinion Opinion Evi- Special Admis- Proof as Proof as Presump- Presump- Presump- Presump-
admission of Ex- as to dence of provi- si- to elec- to veri- tion as to tion as to tion as to tion as to
as to aminer digital charac- sions bility of tronic fication Gazettes electronic electronic electronic
contents of elec- signa- ter or as to elec- signa- of digital in elec- agree- records signature
of tronic ture, previous evidence tronic ture signature tronic ments and certif-
electronic evidence when sexual relating records (Section (Section forms (Section electronic icates
records (Section relevant experi- to elec- (Section 67A) 73A) (Section 85A) signatures (Section
are 45A) (Section ence not tronic 65B) 81A) (Section 85C)
relevant 47A) rele- record 85B)
(Section vant in (Section
22A) certain 65A)
cases Presump- Presump- Presump- Presump- Presump- Presump-
(Section tion as to tion as to tion as to tion as to tion as tion as to
53A) electronic electronic certain abet- to dowry absence
messages records offences ment of death of consent
(Section five years (Section suicide by (Section in certain
88A) old (Sec- 111A) a married 113B) prosecu-
tion 90A) woman tion for
(Section rape
113A) (Section
114A)

Indian Evidence Act, 1872

Subjective Theory

Indian Evidence Act

What to prove? Who will prove? How to prove?

Facts in issue are The person upon Either by

to be proved whom the burden documentary or
of proof lies oral evidence (best
evidence is to be
given)

In the words of Sir Stephen, the law of evidence is that part of the law of procedure which with a view
to ascertain individual rights and liabilities in particular cases decides:
1. What facts may and which facts may not be proved in a given case,
2. What sort of evidence must be given of a fact which may be proved,
3. By whom and in what manner the evidence must be produced by which any fact is to be proved.

Adjective
(procedural law)

Law of Evidence

Lex fori

Q. Distinguish between the adversarial process and the inquisitorial process. Critically examine the
position of the system of trials in India.

Adversarial Process Inquisitional Process

The role of lawyers is active. The role of lawyers is passive.

It aims to get the truth through open It aims to get the truth of the matter through
competition between the prosecution and the extensive investigation of examination of all
defense. evidence.

Previous decisions by Higher Courts are binding The judges are free to decide each case
on Lower Courts. independently of previous decisions by applying
the relevant statute.

The role of judges is merely passive in nature. The role of judges is quite active.

The judges pronounce judgement depending The judge plays an active role in questioning
on the hearing, evidence, or on the basis of and hearing the parties directly.
examination and cross-examination.

Indian Evidence Act, 1872 9

 Adversarial Process Inquisitional Process
Judges have discretionary power but that is not Judges have wide discretionary power.
wide by the evidence.

Case management depends upon the lawyers of Case management depends upon the judges
both parties, and they get ample opportunity for and the judges fix the term for the disposal of
the case management upon their own wishes. any case.

y Position in India adopted the adversarial system of criminal justice due to its economical unsound
position in the post-colonial era, and with the increase in the population and the need for speedy
justice, it was a viable option to adopt the adversarial system.
During a Judicial Enquiry, a Judge cannot step into the shoes of an Investigating Officer. The Judge
cannot either directly or indirectly interfere with the investigative process. Where the investigation of
an offence is done by the Investigating Officer, the investigation is free from judicial supervision or
control.
However, this should not be misconstrued in such a way as to negate the statutory power recognised
by Section 311, Criminal Procedure Code, 1973, Section 165, Indian Evidence Act, and Section 156(3)
Code of Criminal Procedure, 1973 respectively.
In Sakiri Vasu versus State of Uttar Pradesh, AIR 2008 SC 907, it was observed that Section 156(3) of
the code provides for the check by the Magistrate on the police performing its duties under Chapter
XII of the Code of Criminal Procedure, 1973. In cases where the Magistrate finds that the police has not
done its duty of investigating the case at all or has not done it satisfactorily, the Magistrate can issue
a direction to the police to do that investigation properly and can monitor the same. Section 156(3)
Code of Criminal Procedure, 1973 is wide enough to include all such powers in a Magistrate which are
necessary for ensuring a proper investigation and it includes the power to order registration of an FIR
and of ordering proper investigation if the Magistrate is satisfied that a proper investigation has not
been done or is not being done by the police. Section 156(3) Code of Criminal Procedure, 1973, though
briefly worded, is very wide and it will include all such incidental powers as are necessary for ensuring
a proper investigation.
y Judge’s Power to Put Questions
y In Ram Chander versus State of Haryana, AIR 1982 SC 1036, it was observed that the presiding officer
must cease to be a spectator and a mere recording machine. He must participate in the trial. He
must show intelligent interest and put questions to witnesses to ascertain the truth. He must not
play a part of a party, nor should he frighten or bully the witness.
y Section 311 Code of Criminal Procedure, 1973
y Section 165 of the Indian Evidence Act is complimentary to the power granted to the Magistrate
under Section 311 Code of Criminal Procedure, 1973. Section 311 consists of two parts:
⚪ Giving discretion to the Court to examine witnesses.
⚪ The mandatory provision which compels the Court to examine a witness if his/her evidence
appears to be essential to the just discretion of the Court.

Application of Indian Evidence Act

Date of enforcement: 01 September 1872
Section 1 of the Act provides for the application of the Indian Evidence Act.

10 Indian Evidence Act, 1872

y Judicial Proceedings
It applies to all judicial proceedings. Section 2(i) of the Code of Criminal Procedure, 1973 states
‘Judicial Proceedings’ as any proceeding during which evidence is or may be taken on oath legally.
The main objective of a judicial proceeding is to determine rights, duties, immunities, liabilities,
disabilities, etc. The following are held to be judicial proceedings:
⚪ execution proceedings;
⚪ proceedings under Chapter IX of Criminal Procedure Code, 1973;
⚪ enquiries under Section 340, 145 of Criminal Procedure Code, 1973.
y Non-judicial Proceedings
An enquiry about the matter of facts where no discretion is to be exercised and no judgement to be
framed but something to be done in a certain event as duty, is not a judicial but an administrative
enquiry. The following proceedings come under the head of non-judicial proceedings:
⚪ recording of statement by Magistrate under Section 164 Code of Criminal Procedure, 1973;
⚪ enquiry under Section 176 Code of Criminal Procedure, 1973;
⚪ departmental enquiry held by police officers.
y Affidavits:
The Act does not apply to affidavits because the deponent’s assertion of facts based on his/her
personal knowledge and belief does not constitute evidence. The provisions pertaining to affidavit
are made in Order XIX, Rule I, II, III of the Civil Procedure Code, 1908 and Sections 295, 296, and
297(1) of the Code of Criminal Procedure, 1973.
y Court Martial The Indian Evidence Act applies to court martial except court martial convened under:
⚪ The Army Act
⚪ The Navy Discipline Act
⚪ The Air Force Act
⚪ The Indian Navy (Discipline) Act, 1934
y Arbitrators:
The arbitrators are not bound by the strict rule of evidence that is applicable to the court of law.
The arbitrators are only bound by the principle of natural justice. The arbitrator decides the disputes
according to equity, justice, and good conscience.

Scope of Indian Evidence Act

The Preamble of the Act shows that the Act is not merely a fragmentary enactment but a consolidating
one.
In Ram Naresh versus Emperor, AIR 1939 All 242, the Court observed that the Indian Evidence Act
deals with a particular subject of evidence including the admissibility of evidence, and is a special law.
Evidence excluded by the Indian Evidence Act as inadmissible should not be admitted merely because
it may be essential for the ascertainment of truth.
Q. Define fact. How is it different from fact in issue?
Fact: it means an existing thing. Section 3 of the Act defines ‘fact’ as:
1. Anything, state of things, or relation of things, capable of being perceived by senses;
2. Any mental condition of which any person is conscious.

Indian Evidence Act, 1872 11

 Illustration:
1. That a man heard or saw something, is a fact.
2. That a man has a certain reputation, is a fact.
Bentham classified facts into two parts:

Physical Fact Psychological Fact

Physical facts are facts that can be perceived The facts that cannot be perceived through
by everybody by senses of sight, smell, touch, our senses but about which we can draw only
hearing, and taste. inferences are psychological facts.
They can be proved either by direct or indirect They can only be proved by circumstantial
evidence. evidence and presumptions drawn from proven
relevant facts.
Example: That man heard or saw something, etc. Example: That man holds certain opinion or
intention, etc.

Facts

Relevant Fact Fact in Issue

Factum probans Factum
probandum

Evidentiary facts
Matter in
which either prove
dispute
or disprove the fact
in issue

y Fact in issue:
The principal facts which may be regarded as determining points in a suit or proceeding and out of
which some legal right, liability, or disability necessarily arises and upon which accordingly, a decision
must be arrived at based on evidence produced before the Court. Every fact which a plaintiff must
prove in order to get the adjudication in his/her favour, or which a defendant may prove to defeat the
suit becomes fact in issue.
Example: A is the Accused of the murder of B. At his trial, the following facts may be in issue:
1. A caused B’s death,
2. A intended to cause B’s death,
3. That A had received grave and sudden provocation from B, or
4. That A at the time of doing that act caused B’s death, was by reason of unsoundness of mind
incapable of knowing its nature.

12 Indian Evidence Act, 1872


Fact in Issue

Criminal proceedings Civil proceedings

Charge Framing of Issues

Chapter XVII Code of

Order XIV Code of
Criminal Procedure,
Civil Procedure, 1908
1973

Relevant Facts
Section 5, Indian Evidence Act provides that the evidence must in all cases be confined to the facts in
issue and facts relevant to the fact in issue. Relevant facts are those facts that have a certain degree of
probative force. They are not themselves in issue but are the foundation of inferences regarding them.

Matter of Fact Matter of Law

Anything which is the subject of testimony that It is the general law of the land which the Court
can be proved by evidence. will take judicial notice of. It is not to be proved
by evidence.
Example: When A is accused of Murder of B, the relevant facts are:
1. A had a motive and opportunity to kill B,
2. A had made preparations by buying a knife, or
3. After the murder, A was seen running with a blood-stained knife in hand.

Relevancy Implies a Relationship

y Relevancy here implies such a relationship with the fact in issue which either convinces or tends to
convince the Judge as to the evidence or otherwise of the fact in issue.
It is a settled law that relevancy implies a relationship, i.e., any two facts to which it is applied
are so related to each other that according to the common course of events one taken by itself or
in connection with other facts proves or renders probable the existence or non-existence of the
other. Thus, circumstantial evidence is evidence that relates to facts, other than those in issue, which

Legally relevant
facts (species)

Logically relevant
facts (genus)

Indian Evidence Act, 1872 13

 by human experience, have been found to be associated with fact in issue that the latter may be
reasonably informed therefrom.

Evidence
According to Stephen, the term ‘evidence’ is used in three senses:
1. words uttered and things exhibited in Court,
2. relevancy of a particular fact to matter under inquiry, or
3. facts proved by those words or things which are regarded as the ground word of inference as to
other facts, not so proved.

Indian Law of Evidence English Law of Evidence

No facts other than those having rational Evidence must be confined to the matter in
probative value should be admitted in evidence. issue.

All facts having rational probative value are The best evidence must be given.
admissible in evidence unless excluded by a
positive rule of paramount importance.

Hearsay evidence is not to be admitted. Hearsay evidence is not to be admitted.

Q. What is evidence? How is it different from proof?

In Ram Narayan versus State of Maharashtra, (1964) 5 SCR 1064, the term ‘evidence’ is used in common
parlance in three different senses:
y as equivalent to relevant,
y as equivalent to proof,
y as equivalent to the material on the basis of which Courts come to a conclusion about the existence
or non-existence of disputed facts.

Evidence Proof
It is the means of proof. It is the effect or result of evidence.

Evidence means anything by which an alleged A fact that demonstrates something to be real or
matter of fact is either proved/disproved. true.
It is tentative. It is final and conclusive.
It is suggestive. It is concrete and conclusive.

Proof is generally affected by:

y evidence,
y presumption,
y judicial notice

Evidence means and includes:

1. All statements that the Court permits or requires to be made before it by the witness in relation
to the matter of facts under inquiry; such statements are called oral evidence.
2. All documents including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.

14 Indian Evidence Act, 1872

Q. Difference between relevant facts and fact in issue.

Fact in Issue Relevant Fact

Principal/ultimate fact, i.e., factum probandum. Factum probandi, i.e., the evidentiary fact that
directly or by inference proves or disproves the
fact in issue.

Matters which are in dispute, i.e., affirmed by They are the foundations of inference and are
one party and denied by another party. essential in deciding a dispute.

The facts out of which same legal rights, liability, It merely renders probability to the existence or
or disability can arise upon which decision is non-existence of right and liability.
formulated.

It is a question of law that will be determined by It is a fact so connected with other facts to
substantive law or procedural law regulating the prove/disprove that fact in issue.
law of pleadings.

They are the basis of the law of evidence. The relevant facts are part of the law of
evidence.

They are determined by the Courts based upon The Courts considered the relevant facts in
the facts/pleadings of the case at the stage of supporting/denying those facts in issue during
framing of issues/charges. the trial, i.e., to prove the fact in issue.

Example: A alleged that B borrowed Rs 5000 from him on a certain date. This fact is denied by B.
Fact in issue: Whether B borrowed Rs 5000 from A on a certain date?
Relevant facts: (As they make it probable/improbable that A lent money to B)
1. B was well off.
2. A never lent money to anyone on that date.
3. A himself borrowed money from the other person.
Falsus in Uno, Falsus in Omnibus
This maxim implies that if a thing is false in respect of one, it must be taken false in respect of all. It
is to be noted that this maxim does not occupy the status of law in India and has not received general
acceptance in different jurisdictions in India. It is merely a rule of caution. It is feared that if this
doctrine is accepted, the administration of criminal justice would come to a dead stop.
In Kulwinder Singh versus State of Punjab, AIR 2007 SC 2868, it was held that ‘falsus in uno, falsus in
omnibus’, which is not a rule of law but a rule of caution, has no application in India.
In Dalbir Singh versus State of Haryana, AIR 2008 SC 2389, it was observed that ‘falsus in uno, falsus
in omnibus’ is merely a rule of caution. It has not come to occupy the status of law in India. In case,
the major portion of evidence is found to be deficient but if the residue is sufficient to prove the guilt
of an accused, notwithstanding the acquittal of other co-accused persons, he/she can be convicted. It
is the duty of the Court to separate the grain from the chaff. Where chaff can be separated from the
grain, it would be open to the Court to convict an accused notwithstanding the fact that the evidence
has been found to be deficient to prove the guilt of other accused persons.

Indian Evidence Act, 1872 15

 Kinds of Evidence
y Oral evidence: Section 3 defines oral evidence and provides that if it is a case of oral evidence, the
Act requires that only that person who has actually perceived something by that sense by which it is
capable of perception, should make the statement about it and no one else. It means the statement
made by the witness before a Court in relation to the matter of fact under inquiry.
y Documentary evidence: when a document is produced in a case in support of the case of the party
producing it, the document becomes documentary evidence in the case. The purpose of producing
documents is to rely upon the truth of the statement contained therein. This involves when a
document is produced in Court, the examination of three questions:
⚪ Is the document genuine?
⚪ What are its contents?
⚪ Are the statements in the document true?
y Direct evidence: It is the evidence about the real point in controversy. Example: A is tried for causing
grievous hurt to B with a club. C deposes to the effect that he saw the accused inflicting the blow
which caused the grievous hurt.

Direct Evidence

As opposed to As opposed to
hearsay evidence circumstantial evidence

It means evidence of a It goes expressly to the very

fact actually perceived by point in question and proves

a witness with his/her own it if believed without aid
senses or an opinion held by from inference or deductive
him/her. meaning, i.e., eyewitness to
murder is direct evidence.

In Ram Swaroop versus State of Rajasthan, AIR 2008 SC 1747, it was held that when the evidence
of eyewitness clearly brings out accusations against the accused, certain minor variations in their
testimony cannot in anyway corrode the credibility of the prosecution version.
y Circumstantial evidence: it is that evidence that relates to the surrounding relevant facts than that of
fact in issue. But they are so associated with the fact in issue in relation to the cause-and-effect that
enables the Court to draw only a positive conclusion. It means the necessary corollary of relevancy
of facts.
In Makhan Lal versus State of Rajasthan, 2006 0 Supreme (Raj) 1034, it is settled law that
circumstances should be like a spider web. There must not be any exit.
Test: It is well settled that when a case rests on circumstantial evidence, such evidence must
satisfy three tests:
⚪ The circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established.

16 Indian Evidence Act, 1872

 ⚪ Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the
accused.
⚪ The circumstances taken cumulatively should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by accused and
no one else.
⚪ Substantive evidence: It is that on which reliance can be placed for the decision of a case. It
means the evidence which is given of the fact in issue or of a relevant fact.
⚪ Corroborate evidence: The evidence that either corroborates the substantive evidence to increase
its credibility or contradicts the substantive evidence to discredit it. Evidence to corroborate
evidence is permitted under Section 156, 157 of the Indian Evidence Act, 1872.
Section 156 provides for the admission of evidence given for the purpose, not of proving a particular
fact but of testing the truthfulness of the witness. Generally, there is no better way of doing this
than by ascertaining the accuracy of his evidence as to surrounding circumstances.
In Ram Prasad versus State of Maharashtra, AIR 1999 SC 1969, the Supreme Court held that Section
157 of the Indian Evidence Act permits proof of any former statement by a witness relating to the
same fact before any authority legally competent to investigate the fact. But its use is limited to
corroborating the testimony of the witness.

Conditions for Admitting Statement

The previous statement made under either of the following two conditions may be admitted for
corroboration under this Section:
y The statement must have been made at or about the time when the fact took place.
y It must have been made before any authority legally competent to investigate the fact.

Fact Evidence
Those things which are in existence of which a Those means by which the relevant facts are
person is conscious of. brought before the Court.
Facts can be positive and negative. Evidence can be oral or documentary.

Facts can be physical or psychological. Evidence is only expressed facts.

All facts are not evidence unless they are allowed All evidences are facts in some way or the other.
to be produced before any Court in any legal
proceedings.

Burden of Proof
Proved: 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.
In M Narsimha Rao versus State of Andhra Pradesh, AIR 2001 SC 318, the Supreme Court held that proof
does not mean proof to the rigid mathematical demonstration but such evidence as would induce a
reasonable man to come to a conclusion. It depends upon the degree of possibility of having existed.
Disproved: Section 3 provides that a fact is proved 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 person ought under the circumstances of the particular case to act upon the supposition

Indian Evidence Act, 1872 17

 that it does not exist. Thus, this standard of proof should be of ordinary prudence in a person who will
judge its existence or non-existence from the standard of circumstances before him/her.
In Chaturbhuj Pandey versus Collector of Raigad, AIR 1969 SC 225, the Supreme Court held that under
Section 3, the proof or disproof of a fact is to be tested on the touchstone of belief of the Court or
the probability or otherwise of a prudent man. There is no standard by which the weight of evidence
of parties can be ascertained.
Not Proved: Section 3 provides that a fact is said to be not proved when it is neither proved nor
disproved. In other words, the man of ordinary prudence neither believes that the fact exists, nor he
believes that it does not exist.

Standard of Proof
The standard of proof in civil and criminal cases is different. In a civil case, a mere preponderance of
probability is sufficient basis for the decision, on the other hand, in a criminal case, a much higher
degree of proof is needed before a person is convicted and his guilt must be proved beyond a reasonable
doubt. In a criminal case, the accused is always presumed to be innocent until prosecution proves him
guilty and the evidence must exclude every reasonable doubt of the guilt of the accused.
In Bhagwan Patil versus State of Maharashtra, AIR 1974 SC 211, the Supreme Court observed that when
truth and false facts are related in such a way that they cannot be segregated, it is deemed to be ‘not
proved’.

General Rules of Burden of Proof

Burden of Proof

Burden of Burden of proof as a matter

establishing a case of introducing evidence

The burden is fixed, and It is not fixed and keeps

it never shifts under any vacillating throughout the

circumstances trial and the parties

Section 101 of the Indian Evidence Act provides that burden of proof arising from pleading and
determined by substantive law never shifts. It remains constant. The general principle is that for a
party who asserts the affirmative of an issue, the burden of proof lies on him to prove the fact.
Example: A desires a Court to give judgement that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.

Ingredients
Whenever any person desires that the Courts should give a decision in his/her favour,
1. He/she has to prove that the facts on which his/her case depends, and
2. Burden of proof lies upon the person who has to prove the existence of any fact.

18 Indian Evidence Act, 1872

In Jarnail Singh versus State of Punjab, AIR 1996 SC 755, the Supreme Court observed that in a criminal
case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon
the prosecution, and therefore it fails to adduce the satisfactory evidence to discharge that burden it
cannot fall back upon evidence advanced by the accused person in support of their defence to rest its
case solely thereupon.
In SJ Ebenezer versus Velaya Dhan, AIR 1998 SC 746, the Supreme Court held that where a landlord
wants to evict the tenant on the ground of genuine need of accommodation, the burden of proving that
he genuinely required the accommodation lies on the landlord.

Burden of Proof in Civil Cases

In civil cases, the burden of proof in the sense of proving a case is discharged by a mere preponderance
of probability. The accused need not prove his case beyond a reasonable doubt. It is enough for him to
show the preponderance of probabilities in his favour.

Burden of Proof in Criminal Cases

In criminal cases, the prosecution must prove the guilt of the accused beyond a reasonable doubt.
1. The burden of proof is always on the prosecution.
2. The prosecution must stand on its own legs.
3. The weakness of the defence will not help the prosecution.

On Whom the Burden of Proof Lies

Section 102, Indian Evidence Act provides that the burden of proof in a suit or proceeding lies on the
person who would fail if no evidence at all were given on either side.
In Wingly versus State of Madhya Pradesh, AIR 1954 SC 15, it was held that the burden of proof in the
sense of burden of adducing evidence may and constantly shift during the trial.

1. In a suit or proceeding
2. Burden of proof lies on the party
Section 102
3. Who will be loser?
4. If neither party produces any evidence

Section 101 Section 102

Burden to establish a case. Burden to introduce/adduce evidence.

It never shifts. It keeps on shifting.

Burden of Proof as to a Particular Fact

Under Section 103, the party has to prove all the facts that he/she alleges to entitle him/her to a
judgement when the burden of proof is on him/her. This Section enables a person to prove a particular
fact and not the whole bundle of facts.

Indian Evidence Act, 1872 19

 y When it is not provided by law that the
burden of proving a particular fact shall lie
on the person.
y Section 103 relates to the onus of proof of
proving only a particular fact.

The burden of proof lies on that party:

1. Who desires that the Court must believe in its existence.
2. Who desires that the Court must decide the case in his/her favour.

Section 101 Section 103

The party has to prove all the facts that he It provides proof of one particular fact.
alleges to entitle him to a Judgement when the
burden of proof is on him.
Burden to establish a case. Burden to adduce evidence related to the
particular fact.

Example: In a case of theft or receiving stolen property, though the main burden of proof is throughout
on the prosecution, yet if the accused sets up a case that he innocently purchased the property from
the market or from a particular person, he/she must prove it.

Burden of Proving Fact to Be Proved to Make Evidence Admissible

Section 104 provides that whenever it is necessary to prove any fact, in order to render evidence of
any other fact admissible, the burden of proving that fact is on the person who wants to give such
evidence.
Section 104 states that if the relevancy or admissibility of a fact depends upon proof of some other
fact, the burden of proving the latter fact is on the party wishing to give evidence of the former fact.

Where the admissibility of one fact depends

upon the proof of another fact, the party who
wants to prove it will have to prove the fact
on which admissibility depends.

Example: A wishes to prove a dying declaration by B. A must prove his death.

Res Ipsa Loquitur (The Thing Speaks for Itself)

It is a doctrine of law of torts, when it applies, it shifts the burden of proof from the plaintiff to the
defendant, i.e., the defendant has burden to prove that he/she was not negligent and was vigilant.

Burden of Proving That Case of Accused Comes within Exception

Section 105 provides that the burden of proof is upon the accused of showing existence, if any, of
circumstances, which brings the offence charged with any of the special as well as any of the general
exceptions or proviso contained in any part of the Indian Penal Code, 1860 or any law defining the
offence.

20 Indian Evidence Act, 1872

Example: A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the
nature of the Act. The Burden of proof is on A.
In Prabhu versus Emperor, AIR 1941 All 402, it was held that the burden of proof of self-defence lies on
the Accused but he need not have to prove it beyond reasonable doubt.
In State of Uttar Pradesh versus Ram Swaroop, AIR 1974 SC 1570, it was held that if any accused pleads
insanity, he has to prove that he was insane at the time of the occurrence.

Burden of Proving Fact, Especially within Knowledge

Section 106 lays down that where the subject matter of the allegation lies peculiarly within the
knowledge of one of the parties, the party must prove it, whether it may be of positive or negative
character.
This Section applies only to the parties to the suit.
In MCD versus Subhagwanti AIR 1960 Punj 300, it was held that in case of negligence, the burden of
proof of negligence on the part of the defendant lies on the plaintiff. But in the case where the fact
speaks for itself showing negligence of the defendant, the burden lies on the defendant to prove that
he was not negligent.

Burden of Proving Death of Person Known to Have Been Alive within 30 Years
Section 107 states that the law will presume that a person is alive, when it is shown that he was alive
within 30 years. The burden of proving that he is dead is on the person who says that he is not alive.

Section 107, Indian Evidence Act presumes

continuity of life.

Burden of Proving That Person Is Alive Who Has Not Been Heard of for Seven Years
Section 108 lays down that when it is proved that a person has not been heard of for seven years by
those who would naturally have hear of him if he has been alive, the burden of proving that he is living
is shifted to the person who affirms it.
Section 108 has the effect of shifting burden
of proof on the one who asserts the fact of
the person being alive. Thus, seven years of
absence creates a rebuttable presumption of
death.

Burden of Proof as to Certain Kinds of Relationship

Section 109 lays down that principle dealing with the presumptions of the continuity of a relationship
between persons or state of things.

Indian Evidence Act, 1872 21

 Application of Section 109

Partnership Landlord and tenant Principal and agent

When the existence of any relationship between person or state of things is shown, Section 109 enables
to draw a presumption that such relationship or state of thing continues to exist till the contrary is
proved.

Facts Which May Not Be Proved

Every fact upon which a party relies must be proved either by oral or documentary evidence. However,
there are three exceptions to this general rule, i.e.,
(a) Facts judicially noticeable;
(b) Facts admitted;
(c) Facts presumed by law.
Facts Need Not Be Proved

Judicially noticeable facts Things admitted need

(Section 56-57) not be proved
(Section 58)
Facts Judicially Noticeable
Section 56 states that “no facts of which the Court will take judicial notice need be proved.” It is to be
noted that no party has to prove the fact of which the Court will take judicial notice.
y Judicial notice: it means that the Court or judge will take notice of the existence of certain facts
without requiring any evidence to be given of those facts. Section 56 dispenses the proof of facts
which are capable of being judicially noticed on account of their notoriety (32 Cr. LJ 923).
y Section 57 enumerates the facts of which the Court shall take the judicial notice and states that on
all matters of public, history, signs, literature or art, the Court may resort for its aid to appropriate
books or documents of reference. In Onkar Nath versus The Delhi Administration, AIR 1977 SC 1108,
the bench held that the list of facts mentioned in Section 57 of which the Court can take judicial
notice is not exhaustive and indeed the purpose of the Section is to provide that the Court shall
take judicial notice of certain facts rather than exhaust the category of facts of which the Court may
in appropriate cases takes judicial notice. The Court further held that judicial notice in such matter
takes the place of proof and is equal of force.

Facts Admitted Need Not Be Proved

In criminal proceedings, Section 58 has no Section 58 states that the following admission
application. of facts by the opposite party at or before the
hearing need not be proved:
1. The facts which the parties to the proceedings or their agents agree to admit at the hearing, or
2. The facts which they agree before the hearing, to admit by any writing under their hand, or

22 Indian Evidence Act, 1872

3. The facts by which any rule of pleadings, they are deemed to have admitted by their pleadings.
Section 58 deals with the formal/judicial admissions, i.e., admissions during trials either at or before
hearing. They are so called because they are made deliberately in contemplation of or during a judicial
proceeding.

Evidentiary Value of Judicial Admissions

In Nagin Das versus Dalpat Ram, AIR 1974 SC 471, it was held that “admissions in pleadings or judicial
admissions, admissible under Section 58, made by the parties or their agents at or before the hearing
of the case stand on a higher footing than evidentiary admission. The former class of footings are
fully binding upon the parties that make them and constitute a waiver of proof. They by themselves
can make the foundation of the rights of parties. On the other hand, evidentiary admissions which are
receivable at the trial as evidence are by themselves, not conclusive. They can be shown to the wrong.”

Circumstances When Further Evidence May Be Required

The proviso to Section 58 gives ample power to the Court to exercise its discretion requiring the parties
to prove these facts though they are admitted in the proceedings. When the Court is of opinion that
an admission was obtained by fraud, or any other ground, it can, in exercise of its discretion, under the
proviso, require the proof of facts otherwise than by admission.
Mode of Proof

Admissibility

Relevancy

Q. Distinction between relevancy and admissibility.

Relevancy Admissibility
It is based on logic and probability. It is based on strict rules and not on logic.
The rules of relevancy are described from Section The rules of admissibility are described after
5 to 55, the Indian Evidence Act, 1872. Section 56 of the Indian Evidence Act, 1872.
The rules of relevancy declare what is relevant. The rules of admissibility declare whether
certain types of relevant evidence are admissible
or are to be excluded.
Under the Evidence Act, the rules of relevancy Admissibility is means and modes of
means where evidence are admissible. admissibility of relevant evidence.
The facts which are relevant are not necessarily The facts which are admissible are necessarily
admissible. relevant.

Admissibility and Relevancy, Are Synonyms?

In Evidence Act, 1872, the question of relevancy has been dealt under Section 5 to 55 and that of
admissibility under Section 56 onwards. Relevancy and admissibility are not synonyms. Strictly
speaking, admissibility is a quality standing between relevancy and probative value on one hand and
proof or weight of evidence on the other hand.

Indian Evidence Act, 1872 23

 Part II of the Indian Evidence Act, 1872 containing Section 56 to 100 is devoted to the means of proof.
This chapter lays down auxiliary tests for deciding as to whether a particular kind of evidence would
be allowed to be adduced to prove a relevant fact.
Means of Proof

CHAPTER IV CHAPTER V CHAPTER VI

Section 59 and 60 Section 61 to 90A Section 91 to 100
(Oral evidence) (Documentary evidence) (Principles relating to
exclusion of oral evidence
by documentary evidence)

Proof of Facts by Oral Evidence

Oral Evidence

All facts except, the contents of documents or Oral evidence must in cases
electronic records may be proved by oral evidence. be direct and not hearsay.

Section 59 states that “All facts, except the contents of documents or electronic records, may be proved
by oral evidence.” The oral evidence is always admissible except when the contents of documents have
to be proved. The documents speak for themselves and therefore, the contents of the documents are
to be proved by the production of documents.

Section 59 vis-à-vis Section 65, The Indian Evidence Act, 1872

Section 65 prescribes that where the document is not available for proof for one reason or the other
as mentioned in the provision. The secondary evidence includes also the oral accounts of the contents
of the documents.
It is important to state here that oral evidence need not always come only from lips of a person. In
case of dumb witness who is unable to speak may communicate through his knowledge of the facts to
the Court by signs or by writing and in either case it will be regarded as oral evidence (Section 119, the
Indian Evidence Act, 1872). In Queen Empress versus Abdullah, (1885) 7 All 385, where the woman was
unable to speak because her throat was slit and she suggested the name of her assailant by the signs
of her head, it was held to be verbal statement relevant as dying declaration.

Oral Evidence Must Be Direct

It is a cardinal rule that the best available evidence should be brought before the Court to prove a fact
or fact in issue.

24 Indian Evidence Act, 1872

 Best Evidence Rule

Section 60 Section 64 Section 91

Oral evidence to be direct Document to be proved by Evidence of terms of

primary evidence contract

Direct Evidence to Be Adduced

Section 60 enumerates that oral evidence must be direct. By direct evidence, it is meant that:
1. if evidence is to be led about a fact which can be heard, witness must be produced who says that
he heard it;
2. if evidence is to be led about a fact which can be seen, witness must be produced who says that
he saw it;
3. if evidence is to be led about a fact which can be perceived by any other sense or in any other
manner, the witness produced must say that he perceived it by that sense or any other manner;
4. if evidence is to be led about an opinion or as to the ground of such opinion is to be held, the
witness must say that he holds that opinion on those grounds.

Evidence

Original evidence Un-original evidence

Primary evidence Secondary evidence
Direct evidence Hearsay evidence
It means and includes that a witness reports It means and includes that where a witness
himself to have seen/heard/perceived through is merely reporting not what he saw or heard
the medium of his own senses. himself, but what he had learnt respecting the
fact through the medium of third person.

Exclusion of Hearsay Evidence

Comprising two words, ‘hear’ and ‘say’, the term ‘hearsay’ defines a testimony based not on direct
communications but what a witness may have heard others say over an out-of-court conversation. It
is a piece of second-hand information. According to the definition provided under Oxford Learner’s
Dictionaries, hearsay is, “things that you have heard from another person but do not (definitely) know
to be true ”. Hearsay evidence is uniformly held incompetent to establish any specific fact which in its
nature is susceptible of being proved by witnesses who cannot speak from their own knowledge.
Q. Distinction between direct and hearsay evidence.

Direct Evidence Hearsay Evidence

Evidence which the witness gives based on his Evidence which he derived from another person
own perception

Indian Evidence Act, 1872 25

 It is the best oral evidence of the fact to be It is the secondary evidence and is admitted in
proved exceptional cases
The reliability or veracity of direct evidence is on The person giving does not take responsibility of
the person who gives evidence its veracity
The person giving direct evidence is available for The person giving hearsay evidence is not author
cross-examination for testing its veracity of original evidence. It is derived from original
author
The source of direct evidence is the person who In case of hearsay evidence, the person giving
is present in Court and gives evidence hearsay evidence is not original source of
evidence given by him

In Rameshwar Dayal versus State of UP, AIR 1978 SC 1558, it was held that the documents like the
inquest reports, seizure lists or the site plans consists of two parts one of which is admissible and
the other is inadmissible. That part of such document which is based on the actual observation of
the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of
the evidence act, whereas, the other part which is based on the information given to the IO or on the
statement recorded by him in the course of investigation is inadmissible under Section 162 of the Code
of Criminal Procedure, 1973 except for the limited purposes mentioned in that Section.

Exceptions to Hearsay Evidence

1. Opinion of experts: Opinion as to handwriting, opinion as to existence of right or custom, opinion
as to relationship are also relevant though they are not direct evidence.
2. Res-gestae: The statement of a person may be proved through another person who appears as
witness if the statement is a part of transaction in issue, i.e., when they are forming part of res-
gestae (Section 6, the Indian Evidence Act, 1872).
3. Statements by persons who cannot be called as witness: Statements, verbal or written, which are
relevant/admitted under Section 32 are made persons who are:
a. dead,
b. cannot be found,
c. incapable of giving evidence,
d. whose statement cannot be procured without an amount of unreasonable expense or undue
delay.
The evidence of their statement in the circumstances mentioned in the provision is received through
the testimony of persons who heard their statements or otherwise acquired knowledge of statements.
The evidence of such statement, is therefore, the evidence of hearsay, and is specially declared to be
relevant.
(a) Production of material things (Proviso 2, Section 60): This proviso enables the Court to require
the production of a material thing for its inspection, if the oral evidence refers to the existence or
condition of that material thing.

26 Indian Evidence Act, 1872

 Power of Court to
Inspect

Section 165, the Indian Order 18, Rule 18, the Code
Evidence Act, 1872 of Civil Procedure, 1908

The Court has power to

The provision empowers the
direct the production of any
Court to inspect any property
document/thing in order to
or thing concerning which any
discover or to obtain proper
question may arise.
proof of relevant facts.

Documentary Evidence
Chapter V of the Act deals with the provisions relating to documentary evidence.
Document: Section 3 of the Act defines ‘document’ as any matter expressed or described upon any
substance, paper, stone or anything by means of figure, letter or marks or by some means for the
purpose of recording that matter.

Evidence

Oral Evidence Documentary Evidence

Q. How the contents of document are to be proved?

Documentary evidence means all the documents being produced before the Court for its inspection.
Section 61 of the act states that the contents of the documents may be either proved by primary or
by secondary evidence.
In Kripa Shankar versus Gurudas, AIR 1995 SC 2152, it was held that an ex-parte affidavit without
affording an opportunity to the other party to test the veracity of its contents by cross-examination,
cannot be a proof of its contents.
Q. Distinction between oral evidence and documentary evidence.

Oral Evidence Documentary Evidence

It means the statement which are given by the It means the document which is produced
witness before a Court. before the Court.
It is the statement of a witness in oral form. It is a statement submitted through the
documents.

The oral evidence is discussed under Section 59 The provisions related to documentary evidence
and 60 of the Act. are enshrined under Section 61 to 66 of the Act.

Indian Evidence Act, 1872 27

 The oral evidence is stated through voice, The documents are composed of words, signs,
speech or symbol for its recording before the letters and remarks before the Court.
Court.

The oral evidence is required to be direct. The contents of document need to be

supported by primary or secondary document.

Q. Distinction between primary evidence and secondary evidence.

Primary Evidence Secondary Evidence

It is the original document which is presented It is the document which is not original
for its inspection. document but those documents which are
mentioned under Section 68 of the Act.

It is the best evidence to be produced in all It is not the best evidence but evidence of
circumstances. secondary nature.

Adducing primary evidence is a general rule. Adducing secondary evidence is not as that of
primary evidence.

The value of primary evidence is the highest. The value of secondary evidence is not as that
of primary evidence.

No notice is required before giving primary Notice is required to be given before giving
evidence. secondary evidence.

Primary Evidence
It means the original document itself produced for inspection of the Court. It is considered as the
highest class of evidence. Where the document is executed in several parts, each part is primary
evidence of the document. Where a document is executed in counterpart, each counterpart is primary
evidence as against the party, executing it. Where a number of documents are made by printing,
lithography, or photography, each is primary evidence of the rest.
Tape records as primary evidence: In Vikram Singh versus State, AIR 2017 SC 3227, wherein the original
cassette recording was produced before the Court as evidence. The Apex Court held that the cassette
was primary evidence within the meaning of this Section. The Court further held that there was no
requirement to produce a certificate under Section 65B of the Act.
Similarly, in Karuppasamy versus The State of Tamil Nadu, Crl. RC (MD) No. 497 of 2016 decided on 18
May 2017, wherein the Madurai Bench of the Madras High Court held that primary evidence of electronic
record would be admissible under Section 62 of the act without the compliance of the conditions
enshrined under Section 65B of the Act.
Registered documents as primary evidence: In Maya Devi versus Lalta Prasad, AIR 2014 SC 1536,
wherein it was observed that there can be no gainsaying that when the probative value of a document
is to be assessed, especially those dealing with the creation of any interest in property or its transfer,
of a value exceeding Rs 100, obviously document its which have been duly registered regardless of
whether or not that was legally mandatory, would score over others.
Carbon copies as primary evidence: In Mohinder Singh versus Jaswant Kaur (D) through LRs, Civil Appeal
No. 6706/2013, decided on 11 September 2019, wherein the Supreme Court held that the carbon copy
was prepared in the same process as the original documents and once it is signed by both the parties,

28 Indian Evidence Act, 1872

it assumes the character of the original document. The Supreme Court relied on the Explanation 2 of
Section 62 and held that the document can be treated as primary evidence.
The following methods may be adopted to prove the contents of a document:
1. by producing the document before the Court (primary evidence),
2. by producing a copy of document before the Court (secondary evidence), or
3. by oral account of any person who has seen and read the documents (secondary document).
In Narbada Devi Gupta versus Birender Kumar Jaiswal, (2003) 8 SCC 745, it was held that mere production
and marking of a document as exhibit is not enough. Execution is to be proved by admissible evidence.
But where documents produced are admitted by the signatories there to and then marked as exhibits,
no further burden to lead additional evidence to prove the writing and its execution survives.

Secondary Evidence
It is the evidence which may be given under special circumstances, in the absence of better evidence
which the law requires to be given in the first place. In J Yashoda versus K Shobha Rani, (2007) 5 SCC
730, it was held that if the original is found to be inadmissible through failure of the party, who files
it to prove it to be valid, the same is not entitled to introduce secondary evidence of its contents. In
order to enable the party to produce secondary evidence, it is necessary for the party to prove the
existence and execution of the documents.
Secondary evidence means and includes:certified copies,
1. copies made from the original by mechanical processes and copies compared with such copies,
2. copies made from or compared with original,
3. counterparts of documents, as against the parties who did not execute them, and
4. oral accounts of the contents of a document by a person who has seen it.
a. In order to enable the party to produce secondary evidence, it is necessary for the party
to prove existence and execution of the original document. Secondary evidence cannot be
tendered without accounting for the non-production of the original.
b. Section 65 is exhaustive and the party seeking to prove the document must lay foundation by
showing that the case falls especially under one or the other of Clauses (a) to (g) mentioned in
Section 65.
c. The secondary evidence must be authenticated by foundational evidence that the alleged copy
in fact a true copy of the original.
d. If a party to an action does not object to a document being taken on record, he is estopped
and precluded from questioning the admissibility at a later stage.
Section 65

Circumstance in which Particular mode of secondary
secondary evidence is allowed evidence is which permitted
to be given to be given in proof

Indian Evidence Act, 1872 29

 Cases in Which Secondary Evidence Relating to Documents May Be Given
1. Where the original is in possession of the adversary party: In Manek Lal versus Hormasji, AIR 1950
SC 1, it was held that the secondary evidence of the contents of a document may be given is when
the original is in possession or power of the person against whom it is sought to be proved.
In Nawab Singh versus Inderjit Singh Kaur, AIR 1999 SC 1668, wherein the tenant alleged that
original rent note was in possession of landlord. The leave sought by tenant for production of copy
of rent note was rejected on the ground that said note sought to be produced was of doubtful
veracity. It was held by the Supreme Court that the rejection of tenant without affording tenant an
opportunity of adducing secondary evidence was unjustified.
2. When the original is in possession of a person out of reach or not subject to the process of the
Court: In Munni Ammalwal versus Govindaranjan, AIR 1958 Mad 393, it was held that the secondary
evidence may also be given when the original is in possession or power of any person who is out
of reach or not subject to the process of the Court.
3. Where the original is in possession of a person legally bound to produce it: It is to be noted that
every person summoned to produce a document must if it is possession or power, bring it to
Court, notwithstanding any objection which there may be to its production or its admissibility.
The validity of such Court is to be decided by the Court. When the document is in possession of
any person legally bound to produce it, and when after notice, he does not produce it, secondary
evidence can be given. In Chunilal Ojha versus Mulsankar Ojha, ILR (1961) 1 Cut 635, wherein a
witness was summoned by registered post to produce the original sale deed, the witness refused
to receive the summons, it was held that the certified copy of the sale deed was admissible.

Notice under Section 66, the Indian Evidence Act, 1872 and Order XII Rule 8, the Code of Civil
Procedure, 1908
If a person who is legally bound to produce the original document refuses to produce it, notwithstanding
the notice to do so, the existence and contents of the original documents can be proved under this
clause by proof of the authenticated copy. Before secondary evidence is allowed, notice to produce the
document must be given to the person in possession of it. Order XII, Rule 8 of the Civil Procedure Code,
1908, deals with the notice of production of documents which are relevant for the civil proceedings.
The notice is served on the party who is in the possession of the documents. But when the documents
are not available or not provided then the petitioner will be granted an opportunity to provide the
secondary evidence. It is to be notice that when no notice as required under Section 66, is given, the
secondary evidence is not admissible.

Order XII, Rule 8 vis-à-vis Order XI, Rule 16, the Code of Civil Procedure, 1908
Order XII, Rule 8 deals with the production of documents which may or may not be mentioned in
the plaint or written statement by the party. A party can issue a notice to the other party which is in
possession of the documents to produce the document, whereas, Order XI, rule 16, deals with the
production of documents which are specifically mentioned in the written statement or affidavit or
plaint by the party. A party can issue a notice to other party who is in possession of the mentioned
document to produce the document.

30 Indian Evidence Act, 1872

 Documents Demanded by Court

Document which a person Document which are those

is legally bound to produce the production of which
in evidence on receiving a may be refused on the
notice to produce ground of privilege

The person cannot refuse Secondary evidence will be

the production of document admissible upon such non-
on ground of privilege production

4. Where the existence or contents of the original have been admitted: Where the existence, condition
or contents have been proved to be admitted in writing by the person against whom it is proved, or
by his representative in interest, secondary evidence can be adduced. This clause has to be read
with Section 22 of the Act which states that oral admissions as to the contents of the documents
are not relevant unless and until the party supporting to prove them shows that he is entitled to
give the secondary evidence of the contents of the document. In Ishwar Das (D) through LRs versus
Sohandas (D) through LRs, AIR 2000 SC 428, where in there was a proof of execution of mortgage
deed was not specifically denied by the defendant. It was, therefore, not necessary to call attester
into witness box. The defendant mortgagee refused to file original deed. Thereupon, the plaintiff
filed certified copy as secondary evidence. It was sufficient proof of execution of mortgage deed.
5. When the original has been lost or destroyed or cannot be produced: Where the original has been
destroyed or lost or when the party offering the evidence of its content cannot, for any other reason
not arising from his own default, neglect produce it in reasonable time, any secondary evidence of
the contents of the document may be given. If the instrument is destroyed or lost, some evidence
to the effect that the original once existed, might be adduced and then the destruction or loss may
be proved. In PK Gupta versus Varinder Sharma, AIR 2002 P&H 342H, where the original documents
were not produced, and no function was laid for establishing the right to give secondary evidence,
the question of admitting secondary evidence would not arise. In Anantha Raghuram Arya versus
Rajah B Naga Chaya Devamma, AIR 1958 AP 418, it was held that Section 65 cannot be invoked
where a party, being in possession of the document, does not produce it. Where the document not
having produced by the party at all during the relevant periods, he cannot be permitted to produce
it from his own possession at the stage of arguments in the High Court. The reason for this is that,
if he had produced it in the Trial Court, the opposite party would have had the opportunity to put
forward his contention.

Indian Evidence Act, 1872 31

 Original Lost or Destroyed

When the original When the original

document has been document has been
destroyed or lost destroyed or lost

Secondary evidence When a party offering

can be produced evidence of its contents
cannot, for any other
reason, not arising from
his own default or neglect,
produce it in reasonable
time

6. Where the original is not easily movable: The secondary evidence is admissible on account of
great inconvenience and impracticability of production of original. Therefore, inscription on walls,
monuments, survey work are proved by oral testimony or copies.
Electronic records: Information contained in the cell phone call records is stored in an electronic
instrument is called servers, which are huge instruments and cannot be moved and produced in
the Court. Hence, it was held that the printouts taken from the computers/servers by mechanical
process and certified by the responsible official of the service providing company can be led into
evidence through a witness who can identify the signatures of certifying officers or otherwise speak
to the facts based on his personal knowledge. Irrespective of the compliance of the requirements
of Section 65B of the act which is a provision dealing with admissibility of electronic records, there
is no bar to adducing secondary evidence under the provisions of the evidence act, namely Sections
63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65B
is not filed in the instant case, but that does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the circumstances mentioned in the relevant
provisions, namely Sections 63 and 65 [State (NCT of Delhi) versus Navjot Sandhu, (2005) 11 SCC
600].
7. When the original is public document: When the original document is a public document, secondary
evidence is admissible even though the original document is still in existence and available. Public
document can only be proved by the production of certified copies, they cannot be proved by
oral evidence. [Gangaram versus Emperor, (902) PR No. 5 of 1903 (Cri)]. In Marwari Kumhar versus
Bhagwanpuri Guru Ganesh Puri, AIR 2000 SC 2629, the Supreme Court held that the ordinary copy
of judgement which is public document is admissible in Courts record and the loss of certified
copy is not disbelieved. The Supreme Court relied upon the provision prescribed under Section
65(e) of the Act where in it has been stated that the original has been lost or destroyed; secondary
evidence of document is admissible. Secondary evidence can be led even of public document, if
conditions laid down under sub-clause (c) are fulfilled. Thus, if original public document has been
lost or destroyed, the secondary evidence can be given of public document.
8. Where certified copy is permitted: Secondary evidence of contents of a document is admissible
when the original is a document of which a certified copy is permitted by this act or by any other law

32 Indian Evidence Act, 1872

 enforceable in India. In Marwari Kumhar versus Bhagwanpuri Guru Ganesh Puri, AIR 2000 SC 2629,
the Supreme Court held that secondary evidence in the form of an ordinary copy is admissible,
when both the original and certified is lost. Under Section 57(5) of the Indian Registration Act,
1908, the certified copy obtained from the Registrar’s office shall be admissible for the purpose of
proving the content of the document and no further proof is required (Pattu Kumari versus Nirmal
Kumar Singh, AIR 1939 Cal 569).

Objection to Secondary Evidence

If a copy of a document is admitted in evidence in the First Court without any objection, no objection
can be allowed to be taken in the Appellate Court as to its admissibility. It is settled law that on
objection as to the admissibility of the documents, which was received without objection at the Court
of First Instance cannot be entertained in a Court of Appeal. If an objection had been taken in the Trial
Court, it would have been possible for the opposite party to meet such objection and the proceedings
would have been regularised. But the question of relevancy of document is a question of law and can
be raised at the appellate stage as well (MS Ramsingh versus Bijoy Singh, AIR 1972 Cal 190).
In Nitu Das versus State of Tripura, 2008 Cr LJ 1434, it was observed that Order XIII, Rule 4, Code of
Civil Procedure, 1908 provides for every document admitted in evidence in the suit being endorsed by
or on behalf of the Court, which endorsement signed or initialled by the judge amounts to admission of
such document in evidence. An objection pertaining to the admissibility of such document should be
raised before such endorsement is made and the Court is obliged to form its opinion on the question
of admissibility and express the same on which opinion would depend, the document being endorsed
as admitted or not admitted in evidence.

Admissibility of Electronic Record

In RM Malkani versus State of Maharashtra, (1973) 1 SCC 471, the Supreme Court made it clear that
electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter
in issue and the voice is identified and the accuracy of recorded conversation is proved by eliminating
the possibility of erasure, addition or manipulation. Further, it was held that a contemporaneous
electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a
relevant incident and is admissible under Section 8 of the Act.
In Ram Singh versus Col. Ram Singh, AIR 1986 SC 3, the Court stipulated the principles to be followed
while considering the authenticity of the CD:
1. The voice of speaker must be duly identified by the maker of the record or by others who recognise
his voice.
2. The accuracy of the tape-recorded stamen has to be proved by the maker of the record by
satisfactory evidence direct or circumstances.
3. The statement must be relevant to the rules of the Evidence Act.
4. The voice of speaker should be clearly audible.
5. The recorded cassette/CD must be carefully sealed and kept in safe or official custody.
6. Every possibility of tampering with or erasure of a part of a tape-recorded statement must be
ruled out otherwise it may render the said statement out of context and therefore, inadmissible.

Present Legal Position of Electronic Record: Arjun Panditrao’s Case

In the light of the decision in Arjun Panditrao Khotkar versus Kailash Kushanrao Gorantyal, (2020) 7 SCC
1, the legal position on electronic record may be summed up thus:

Indian Evidence Act, 1872 33

 1. A certificate under Section 65B(4) is a condition precedent to the admissibility of electronic record.
The decision made in Anvar PV versus PK Basheer, AIR 2015 SC 180, as clarified in Arjun Panditrao’s
case, holds the field.
2. Oral evidence cannot be a substitute for a certificate under Section 65B(4).
3. As long as the trial is not over, the judge may direct the certificate to be produced at any stage.
4. Where the requisite certificate has been applied for from the person or authority concerned, and
the person or authority either refused to give the certificate or does not respond to the demand,
the party can then apply to the Court for the production of the certificate by taking recourse to the
measures under the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973.
5. Where the certificate is not produced even after an order of the Court, the production excused
by the application of the maxim lex non cogit ad impossibilia (impossibility to comply with legal
provisions) and impotentia excusat legem (inability excuses the law).
6. As the dictum in Sonu versus State of Rajasthan, (2017) 8 SCC 570, has not been touched, an
important rider is that in cases where the electronic evidence is to be allowed to come on record
without any objection, it will not be open to any party to dispute its admissibility at later stage.
Q. Whether an electronic record can be proved by oral evidence?
In Anvar PV versus PK Basheer, AIR 2015 SC 180, it was held that the Evidence Act does not contemplate
or permit the proof of an electronic record by oral evidence if the requirements under Section 65B of
the Act are not complied with. It has been further held that proof of electronic records is a special
provision introduced by Information and Technology Act, 2005 amending various provisions under the
Evidence Act. The very caption of Section 65 read-with Sections 59 and 65B of the Act is sufficient
to hold that special provisions on evidence relating to electronic records shall be governed by the
procedures prescribed under Section 65B of the Act. It was further held that Section 65B of the Act is
a complete code in itself and being a special law, the general law under Sections 63 and 65 has to yield.

Mode of Proving Genuineness of Document

In Ashiq Ali versus Yasin Mistri, 2021 SCC Online HP 735, it was observed that “besides the question
which arises as to the contents of document, there is always the question when the document is used
in the evidence – Is it what it purports to be? The evidence upon this point is dealt with in Sections 67-
73 of the Act. The nature of the evidence will depend to a large extent on the nature of the document.
If it is a mere memorandum, such an entry in a diary mentioned in Section 32(b), it must be proved
that diary was really that of the person whose statement it is said to contain. If it is a letter, it must
be shown who wrote it, or at any rate who signed it, for a signature to a document turns the whole
document into a statement by the person who signs it. If it is an agreement, it must be shown who
executed it. Where the document is written by one person and signed by another, the handwriting of
the former and the signature of the latter have both to be proved under Section 67 of the Act.”
Section 67 of the Act calls for proof of
The execution of every document produced in
signature and handwriting of a person alleged
evidence must be proved unless it is admitted under
to have signed or written the document
Section 58 or presumed under Section 90 or some
produced.
other provision of law.

Proof of Signature
In Kangabam Bira Singh versus Manipur Driver’s Union Association Ltd., AIR 1957 Mani 9, the Court has
explicitly discussed and elaborated the mode of proving a signature are as follows:By calling a person
who signed or wrote a document;

34 Indian Evidence Act, 1872

1. By calling a person in whose presence the document was signed or written;
2. By calling a handwriting expert;
3. By calling a person acquainted with handwriting of the person by whom the document is supposed
to be signed or written;
4. By comparison of the Court the disputed signature or writing with some admitted signature or
writing;
5. By proof of an admission by the person who is alleged to have signed or written the document that
he signed or wrote it;
6. By the statement of a deceased professional scribe, made in the diary in course of business, that
the signature in the document is that of a particular person.
In Venkatachala versus Thimmajamma, AIR 1959 SC 443, the Supreme Court had observed as under:
“Under Section 67, if a document is alleged to be signed by any person, the signature of said person
must be proved to be in his handwriting and, for proving such handwriting under Section 45 and
47 of the Act, the opinion of experts and of persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which must be satisfied by the party
who relies on a document in a court of law.”
Moreover, in divorce cases, marriage certificates and other correspondence must be proved as required
under Section 67 of the Act. [Chandra Leela versus P Victor Matheus, AIR 1956 Hyd 144 (FB)]. Section
67 of the Act does not provide any particular mode of proof. So, in addition to the modes of proof of
handwriting, it may also be proved by circumstantial evidence, the only requirement being that the
proof should be given to the satisfaction of the Court, either by direct or by circumstantial evidence.
Section 67 does not lay down any specific mode of proof and therefore circumstantial evidence as a
mode of proof authorship or execution of documents is not excluded. Such evidence may consist of
internal evidence contained in document itself. Oral evidence of witnesses can prove other surrounding
circumstances. The execution or authorship of a document is question of fact and may be proved like
any other fact, by direct as well as circumstantial evidence. [Krishna Biharilal versus State, AIR 1956
MB 86.
Circumstantial evidence may be:
1. Internal evidence as contained in documents
2. Oral evidence of witnesses to prove other circumstances

Proof of Execution of Document

The definition of ‘proved’ given under Section 3 of the Act must be read along-with the Section 67 of
the Act, which requires that there must be specific evidence that the signature purported to be that of
the executant is in handwriting of the executant. Until it is done, the Court cannot proceed to consider
whether execution is proved. In the other words, Section 67 makes proof of execution of document
something more difficult than proof of matter other than execution of a document.

Proof of Contents of Document

In Md. Yusuf versus D, AIR 1968 Bom 112, it was held that unless the writer of the document himself is
examined, evidence of contents of the documents is hearsay. In addition to this, it was further held

Indian Evidence Act, 1872 35

 that any attempt to prove contents by proving signature or handwriting of the author thereof is not
permissible.

Objection as to Mode of proof

Objection to the mode of proof of a document must be taken at the time when it is exhibited.

Registration and Proof

Mere registration of document is not in itself sufficient proof of its execution. The mere production
of registered deed is not sufficient to prove it. The identity of the executant has to be established by
oral evidence before the deed can be taken to have been proved [Prem Raj versus Mishrimal, (1959) 9
Raj 573].

Modes of Proving Signature and Handwriting

Evidence by way of affidavit is one of the modes of proving a question of fact, both under the Code
of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 besides the other special statues
recognising the same. The FIR was proved by the witness who was well acquainted with the signature
of author of the FIR, was held to be in law proved [Amarsingh Gond versus State of Madhya Pradesh,
2007 Cr LJ 1560].

Proof of Execution of Document Required by Law to Be Attested

Section 68 applies only where the execution of a document has to be proved. Section 68 states that
as to how the document required by law to be attested can be proved. A document required by law
to be attested shall not be used as evidence unless the attestation is proved by calling at least one
witness who is:
y alive,
y subject to the process of the Court, and
y capable of giving evidence.
The proviso to section says that in case of a will and of denial of execution of any document, it is
necessary to prove attestation even if the documents are registered. In case of a document other
than a will, it shall not be necessary to call an attesting witness in proof of its execution if it has been
registered under the provisions of the Registration Act, unless its execution by the person whom it
purports to have been executed is specifically denied. Therefore, the position is that, if any document
other than a will is registered, generally it is not necessary to call an attesting witness. But even if it is
registered, if alleged executant denied its execution, then it would become necessary to comply with
the main provision by examining at least one attesting witness.

Applicability
y This section applies to cases where an instrument required by law to be attested bears the necessary
attestation.
y The section explicitly prohibits the proof of execution of document otherwise than by the evidence
of an attesting witness if available.
y This section is not enabling or permissive. It lays down the necessary requirements which the Court
has to observe in order that a document can be held to be proved.
y This section applies only where the execution of a document has to be proved. Where, the execution
is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended
that the attesting witness has not witnessed the execution of documents.

36 Indian Evidence Act, 1872

Execution
Execution does not merely mean the signature. It means that the executant or the person who put the
signature has done so after understanding the contents of the document. Mere proof of signature of
a party to a document is not as same thing as proving due execution of the document (Narayanappa
versus Lachmakka, ILR 1958 Mys 263).

Required by Law to Be Attested

The term ‘required by law to be attested’ means that under some enactment the document has to be
attested. The following are the documents which are required by law to be attested:
y A mortgage deed where the amount secured is Rs 100 or more (Section 59, the transfer of Property
Act, 1882)
y Gift of immovable property (Section 123, the Transfer of Property Act, 1882)
y Wills executed by persons other than Hindus, Muslims or Buddhists (Sections 58 and 63, the Indian
Succession Act, 1925)
y Wills executed by Hindus, Jains, Sikhs and Buddhists (Section 57, the Indian Succession Act, 1925)

Attestation vis-à-vis Execution

Attestation and execution are two different acts, attestation follows execution. Attestation is meant to
ensure that the executant was a free agent and not under pressure or subject to fraud, while executing
the document. For the purpose, attestation is insisted upon the Transfer of Property Act. To make a
deed of mortgage or gift admissible in evidence it is enough to comply with the provisions of Section
68. The question whether the document really created a mortgage deed, gift or not, must be proved
separately by showing that the requirements of Section 59 or Section 123 of the Transfer of Property
Act, 1882 have been complied with. An unattested gift deed is not valid as the same runs contrary to
the provisions of the Transfer of Property Act, 1882 and the Evidence Act.

Exceptions to Section 68
y When the opponent by his prior conduct is estopped from denying execution. The adverse party may
be estopped from disputing the document by recital in deed to which he is party and under which
he is acquiesced some benefit on the faith of the document recited being valid.
y When although producing it, the opponent claims an interest under the same instrument in his
cause; his claim of interest predicates an admission of its validity or genuineness.
y When the document is tendered against a public officer, who is bound by law to have it executed
and who has dealt with it as a document duly executed.
y When the attesting witness has signed the instrument merely in pursuance of a rule in some court
and such court has subsequently recognised the validity of the instrument by acting upon it.

Circumstances When Attesting Witness Not to Be Required

y Where a party to a document against whom it is sought to be, admits its execution by himself
(Sections 58 and 70)
⚪ When the document is registered one and its execution is not specifically denied by the executant
against whom it is to be used (Proviso to Section 68)
⚪ When the document is not produced on notice (Section 89) and secondary evidence of its contents
is given under Section 65(a)

Indian Evidence Act, 1872 37

 ⚪ When the document is 30 years old and the Court (Section 90) presumes it to have been duly
attested and executed
⚪ When the document is a will which has been admitted to probate and is proved by probate, the
production of original having been dispensed with (second exception to Section 90)

Proof When No Attesting Witness Found

Section 69 gives the mode of proving a document required by law to be attested, when the attesting
witness cannot be found. This section would come into play when no attesting witness is found. Where
none of the attesting witnesses of document is available, this section declares that the signature of at
least one of them must be proved by a witness. Where one of the attesting witnesses of a will was not
examined and the other refused to support the will, the scribe of the will and the doctor who certified
the testator’s mental condition to execute the will could be viewed as attesting witnesses from their
testimony validating the execution of the will. Section 69 can be invoked only when the absence of
the attesting witness is sufficiently accounted for. If the attesting witness denied the signatures or
does not recollect the execution of the document, its execution may be proved by other evidence [Sita
Dakuani versus Ramchandra Nahak, ILR 1967 Cut 593]. In Babu Singh versus Ram Sahai, AIR 2008 SC
2485, the Court while dealing with application of Section 69 held that Section 69 of the Act applies to
a case where the attesting witness is either dead or out of jurisdiction by the Court or kept out of the
way by adverse party or cannot be traced out despite diligent search. It is such a case that will, may be
proved by examining witnesses who were able to prove the handwriting of the testator or executant.
The burden of proof then may be shifted to others.

“Where no such witness is found”

In V Kalyanaswamy versus L Bhakthavatsalam, 2020 SCC Online SC 584, the Supreme Court considered
the scope and meaning of the expression “where no such witness is found” occurring in Section 69.
The bench opined that:
“Though the expression used is ‘if no such attesting witness can be found’, the word ‘such’ before
‘attesting witness’ is intended to refer to the attesting witness mentioned in Section 68 of the Evidence
Act. As far as the expression ‘found’ is concerned, it would cover a wide variety of circumstances.
It would cover a case of incapacity to tender evidence on account of any physical illness. It would
certainly embrace a situation where the attesting witnesses are dead. Should the attesting witness be
insane, the word ‘found’ can comprehend such a situation as one where the attesting witness, though
physically available, is incapable of performing the task of proving the attestation under Section 68 of
the Evidence Act, and therefore, it becomes a situation where he is not found”.

Admission of Execution by Party to Attested Document

Section 70 lays down that if a document required by law to be attested, is produced in a proceeding
and if the executant admits its execution, it shall be sufficient proof of its execution against him. This
section operates where the person relying on the document has not given any evidence at all of the
due execution of the document by the executant but relies on a document has not given any evidence
at all of the due execution of the document by the executant but relies on an admission of execution
by the latter. Where it appears on the face of a document or it is positively made out by the evidence
on record that a document required by law to be attested has not been attested in accordance with the
law, this section cannot be applied in spite of the law of admission of party to an attested document
of its execution by himself for the simple reason that a Court cannot shut its eyes to obvious facts
appearing on the face of documents or on the record.

38 Indian Evidence Act, 1872

Unqualified Admission by Party
Admission of execution contemplated in Section 70 relates only to the person who has actually
executed or purported to have executed the documents. An admission by the heir of the executant
would not serve the requirement of law and the benefit of the section would not be available. The
admission to be effective under this section must be unqualified. It was held that mere admission of
thumb impression or the signatures on a blank sheet, as stated by the executant does not mean an
admission of execution which means that the executant must have signed or put his thumb impression
after the document is fully readout.
In State of Bihar versus Mithu Kewat, 2003 AIHC 3889, where a document was proved and marked as
exhibit and no objection was raised by the claimants regarding the admissibility of the document and
even no suggestion was given while examining the witness that the document was not an authentic
one it was held that the document was admissible in evidence and it would be treated as admitted
document. In Ram Nahak versus Sita Dakvani, AIR 1970 Ori 82, it was held that the admission of
execution in Section 70 means not only admission of signature but also the attestation of the signature
as required by law. Where attestation is specifically denied but the signing of document is admitted,
it is necessary to call attesting witness to prove the attestation under Section 70 of the Act. But if the
execution of the document is admitted and at the same time the attestation is denied, the attestation
as well as execution will be proved sufficiently against the party admitting.

Proof When Attesting Witness Denied the Execution

Section 71 of the Act is in the nature of safeguard to mandatory provision of Section 68 of the Evidence
Act to meet the situation where it is not possible to prove the execution of will by calling attestation
witness (Janaki Narain Bhoir versus Narayan Namdeo Kadam, AIR 2003 SC 761). This section enables the
party to prove the documents by other evidence when the attesting witness denies the execution other
evidence when the attesting witness denies the execution of the document or does not recollect its
execution. The Provision enshrined under Section 67 of the Act deals with the proof of signature or the
handwriting on the document. In case of documents not required by law to be attested, one may take
the aid of Section 67, but this section applies to all the documents, whether they require attestation, or
not, under any law. Section 71 of the Act has no application to a case where one attesting witness, who
alone had been summoned, has failed to prove the execution of will and the other witnesses though
are available to prove the execution of the will and other witnesses though are available to prove the
execution of the same, for the reasons best known, have not been summoned to the Court. Section 71
is permissive and enabling section permitting a party to lead other evidence in certain circumstances.
The Privy Council in Surendra versus Behari, AIR 1939 PC 117 settled the question, in the event of one of
two or more attesting witnesses being called and his denying the execution, or not his recollecting the
execution whether it is permissible to give other evidence without calling the other attesting witnesses,
if available. The Privy Council stated that there was no intention on the part of the legislature to depart
from the rule of English Law that other evidence should not be allowed, unless all the attesting
witnesses alive, and subject to the process of the Court, are or their absence has been satisfactorily
explained.
In Raj Kumari versus Surinder Pal Sharma, 2019 SCC Online SC 1747, where a will was attested by one
Ramesh Kumar and MN Sharma, Advocate. Attempts were made to summon Advocate MN Sharma but
of no avail. The High Court held that the will was duly proved by taking recourse to Section 71 holding
that will was registered; it should be presumed that registration was duly done after ascertaining that
it was attested by two witnesses. Reversing the judgement of the High Court, the Supreme Court held

Indian Evidence Act, 1872 39

 that the non-examination of witness Ramesh Kumar could not be circumvented by taking recourse
to Section 71. Section 71 applies only if the witness denies or does not recollect the execution of the
document, which was not case here.

Proof of Document Not Required by Law to Be Attested—An Attested Document Not Required
by Law to Be Attested May Be Proved as If It Was Unattested
Where the law does not require attestation, for the validity of a document, it may be proved by
admission or otherwise, as though no attesting witness existed. No attesting witness need to be
examined with reference to a document like a sale deed, as it does not require attestation (Buta Singh
versus Rattan Singh, SCC Online P&H 2601).

Comparison of Signature, Writing or Seal with Others Admitted or Proved

Section 73 of the Act authorises the Court to compare the disputed document with an undisputed
one for the purpose of deciding as to whether a particular document was written or signed by whom
it is supposed to be written. The rule of prudence is that comparison of signatures by the Court as
a mode of ascertaining the truth should be used with great care and caution. The writing obtained
by the Court under this section does not come within the expression ‘evidence’ (Ram Swarup versus
State, AIR 1958 All 119). Section 73 permits taking of specimen signatures/writings of accused or any
other person, whose signatures may be required for comparison with disputed signatures/writings
before an authority other than the Court which has ultimately to enquire into or try that case, during
the course of investigation. Such specimen signature/writing is then required to be proved unless they
are admitted by the accused or the person concerned during the course of trial or enquiry. The power
of the Court cannot be used as an instrument or a device for the advantage of any party, either the
prosecution or the accused; the object of the provision is to enable the Court to find out the truth and
to do the complete justice between the parties. This section enables the Court to assist itself and not
to assist the parties.
Handwriting can be proved in the following ways:
y By proof of handwriting and signature of the person alleged to have signed or written the document
(Section 67),
y By the opinion of an expert who can compare the handwritings (Section 45),
y By a witness who is acquainted with the handwriting of a person by whom it is supposed to have
been written and signed (Section 47),
y By comparison of signature, writing or seal with other admitted or proved (Section 73).

Article 20(3) of the Indian Constitution and Section 73 of the Indian Evidence Act, 1872
In State of Bombay versus Kathi Kalu Oghad, AIR 1961 SC 1808, the Supreme Court held that giving of
specimen handwriting or of signature or finger impressions by accused persons, though it may amount
to furnishing evidence in larger sense, is not included within the expression “to be a witness”. The
Bench pointed out that “to be a witness” imparting knowledge in respect of relevant facts by an oral
statement or a statement in writing, made or given in the Court or otherwise. The Court further held
that Section 73 of the Act does not infringe the fundamental right incorporated under Article 20(2)
of the Constitution of India. It was further held that mere direction by the Court to give specimen
handwriting or finger impression does not violate Article 20(3) of the Constitution, as it does not
amount to “compulsion” or “testimonial compulsion”, and as the person to whom it is directed may still
refuse to comply in which case adverse inference may be drawn under Section 114, the Indian Evidence
Act, 1872.

40 Indian Evidence Act, 1872

 Section 73

Comparison of signature, The Court is authorised to

handwriting and seal direct any person present
purporting to be of a in the Court to a sample of
person with the signature his/her writing and to make
which are comparison of the samples
(a) admitted, or with the words and figures
(b) proven to the alleged to have been
satisfaction of the written by that person.
Court to be that person
for the purpose of
ascertaining whether
they were, in fact.

Section 73
Part I Part II
The sample signature is already admitted or It is the Court that directs a person to give
proven in the present case. sample.
The first part does not specify who should make The second part authorises the Court to ask for
the comparison. sample and compare it.
The first part leaves the comparison to be made The comparison is to be made by the Court only.
by an expert, a person acquainted with particular
handwriting, or even by the Court itself.

Q. Distinction between private and public document.

Public Document Private Document

It is prepared by public servant in discharge of It is prepared by a person for his/her private

his/her public duty. interest under his/her private right.

Public documents are generally proved by public Private documents are generally proved by
document. primary evidence.

The Court of bound to presume the genuineness No presumption is made about the genuineness
of public document from their duly certified of original document from secondary of private
secondary copies. document except in some cases.

It is available for inspection to general public. It is not available for inspection to general
public.

The secondary copy of public document is to be Before proving any of the conditions being laid
admitted in judicial proceedings. down in Section 65, the secondary evidence
of original document is not to be admitted in
judicial proceedings.

Indian Evidence Act, 1872 41

 The Best Evidence Rule: Exclusion of Oral Evidence by Documentary Evidence

Hearsay evidence must Law of Evidence Evidence must be confined

not be admitted to matters in issue

The best evidence must

be given in all cases

Best Evidence Rule

Evidence to be given must Primary evidence means Exclusion of oral evidence

be direct (Section 60) the best evidence (Section by documentary evidence
64) (Sections 91 and 92)

Section 91: The rule enunciated by Section 91 can be said to be an exclusive rule in as much as it
excludes the admission of oral evidence for proving the contents of the documents except in cases
where secondary evidence is allowed to be led under the relevant provision of the Evidence Act (Bai
Hira Devi versus Official Assignee of Bombay, AIR 1958 SC 448). Section 91 of the Act excludes admission
of the oral evidence for proving the contents of a document except in cases where secondary evidence
is admissible. Section 92 of the Act excludes oral evidence to contradict the terms of a contract where
deed is proved. Section 91 mainly forbids proving of contents of a writing otherwise than by writing
itself and merely lays down the Best Evidence Rule. It, however, does not prohibit the parties to adduce
evidence in a case, the deed is capable of being construed differently to show how the parties to
deed understood the same (Tulsi versus Chandrika, (2006) 8 SCC 322). However, it is to be noted that
Sections 91 and 92 do not apply to wills/codicils.

Section 91, the Indian Evidence Act, 1872 and Section 49 of the Registration Act, 1908
In Shyam Narayan Prasad versus Krishna Prasad, AIR 2018 SC 3152, it was held that an unregistered
exchange-deed is admissible in evidence since having regard to Section 49 of the Registration Act, 1908
any document which is not registered as required under law cannot be produced and proved under
Section 91 of the Evidence Act.

Application of Section 91, the Indian Evidence Act, 1872

The principle underlying Section 91 is that oral proof cannot be substituted for the written defence.
Section 91 of the Act lays down the provision that when evidence related to contracts, grants and other
disposition of the property is reduced as document, then no evidence is required to be given for proof
of those matter except the document itself and under certain circumstances, the secondary evidence.
The provision enshrined under Section 91 applies under two conditions:
y when the terms of contract, or a grant or of any other disposition of a property have been reduced
to form of document; and
y in all cases in which any matter is required by law to be reduced to the form of a document.
In such cases, no evidence shall be given in proof of the terms of such contract, grant or disposition
of property or of such matter except:

42 Indian Evidence Act, 1872

y the document itself, or
y secondary evidence of its contents in cases in which secondary evidence is admissible.
In cases, where the parties to contract agree to substitute a written instrument for an oral contract,
the ultimate written contract is deemed to be contained in the instrument alone and no oral evidence
of its terms can be given thereafter.
In Bengal Jute Mill Co. versus Lal Chand Dugar, AIR 1963 Cal 405, it was held that an arbitration
agreement to refer a dispute to arbitration is a contract within the meaning of Section 91 of the Act. A
contract to refer disputes to arbitration is different from the proceedings of the arbitrators in respect
of the disputes. Though, the evidence act is not applicable to the arbitration proceedings but will apply
to the arbitration agreement.
In Jayalakshmi Trading Co versus Krishnamurthy, AIR 2006 Mad 179, it was suggested that Section 91
prohibits oral evidence only regarding the terms of the contract or other evidence relating to the terms
of the contract. It does not prohibit the parties to lead oral evidence in respect of the nature of the
contract as well as the oral agreement entered into between the parties simultaneously along with the
document. If there is ambiguity in the language employed and the recitals thereon, intention of parties
may be ascertained by adducing extrinsic evidence.
In Ram Singh versus Sonia, AIR 2007 SC 1218, it was held that a confession of an accused person made
to a magistrate holding an inquiry is a matter required by law to be reduced to the form of a document
within the meaning of this section, and no evidence can be given of the terms of such a confession
except the record, if any, made under Section 164.

Exceptions to Section 91, the Indian Evidence Act, 1872

y When it is required that a public officer should be appointed by some writing, and when it is shown
that any particular person has acted as such officer, the writing by which he has been appointed
need not be proved.
y When the probate has been obtained on a will and afterwards question arises about the existence
of the will, the mere production of the probate will prove the existence of the will, the original will
not be proved.
Q. Whether oral evidence is proved the debt in cases where pro-note is inadmissible not being properly
stamped or where it is withheld by the person in possession?
Where a cause of action for money is once completed, the debtor gives a hand-note to the creditor for
the payment of money at the future time, the creditor, if the note is inadmissible may always sue for
the original consideration and parol evidence can be allowed of the transaction (Damoo Khan versus
Agha Arshad Khan, AIR 1933 Pat. 577).
In Jawh & Co. versus AP Vicumsey, (1926) 26 Bom LR 432, the Bombay High Court has held that where
contract may be considered as contained wholly in the promissory note or bill of exchange, if the
plaintiff cannot sue on the promissory note, he cannot sue at all. But secondly, if the promissory note
may be regarded as a conditional payment of the amount of the loan in which case if the promissory
note is insufficiently stamped it is only a worthless piece of paper and the plaintiff can sue on loan.
It was also held that if the promissory note was passed by security of the loan, suit could be brought
on loan.

Indian Evidence Act, 1872 43

 Exclusion of Evidence of Oral Agreement
Section 92 of the Act lays down that when the terms of a contract, grant or disposition of property or
nay other matter required by law to be in writing have been proved by filing the document, the parties
to the contract or their legal representative cannot be allowed to lead oral evidence for the purpose of
contradicting, varying, adding to or subtracting from the contract.
Section 92 applies only as between the parties to a transaction and those claiming under them. A
person who is not a party to a contract can adduce to contradict, vary, add or subtract from the terms
of a contract.

Exceptions to Section 92
Facts invalidating the documents: No party to suit will be debarred from proving a fact, which will
invalidate the contract. Section 92 presupposes the validity of the transaction but if the validity of
the document is in question, the proviso declares that any fact may be proved which would invalidate
any document, and in such a case one cannot claim protection from inquiry under a rule which exists
against the contradiction and variance of the terms only of those instruments the validity of which is
not in question. A contract created by fraud, undue influence is invalid and unenforceable, so in such
case where evidence is admitted to show that a document is rendered void or voidable or when it is
shown at the parties entitled to a decree or order for rectification of document or recession of contract
on the grounds of fraud, illegality, want of consideration, etc.
y Matter on which document is silent: When there is prior contemporaneous oral agreement about a
matter on which document is silent, proof of it can only be given when such oral agreement is not
inconsistent with or does not contradict the terms of the contract. The conditions to be fulfilled for
the application of this exception are as follows:
⚪ separate oral agreement should relate to a matter on which document is silent;
⚪ such oral agreement is not inconsistent with the terms.
y Separate oral agreement as condition precedent: In Balram versus Ramesh Chandra, AIR 1973 Ori 13,
it was categorically held that there is separate agreement to the effect that the terms of a written
contract will not take effect or will be no force until a condition precedent has been fulfilled or a
certain event has happened, oral evidence is admissible to show that the condition not having been
performed the contact did not mature and so was not enforceable. It was further held that under
this clause the evidence of that oral agreement is admissible which does not vary the terms of the
contract but only postpones its operation that the happening of certain events.
y Distinct oral subsequent agreement to rescind, to modify or renew the contract: Where a transaction
has been reduced into writing not because the law requires to so done but by the agreement for the
convenience of the parties, oral evidence or any subsequent oral agreement modifying or rescinding
it all together is admissible. In Kochi Gowder versus Bheema Gowder, AIR 1960 Mad 33, it was held
that the second part of proviso 4 to Section 92 does not permit leading a part (oral) evidence for
producing a subsequent oral agreement modifying or residing the registered document the terms of
a registered document can be altered designed or modified only by subsequent registered document
and not otherwise.
y Any usage or customs by which incidents not mentioned in any contract are usually annexed to
contract: Parol evidence of usage or custom is always admissible where the object is to make
intelligible to the Court the meaning in which the parties have used the language. The parol evidence
may be given to prove any local custom of the general application so that it may be applied to the

44 Indian Evidence Act, 1872

 subject matter and bind the parties to a written contract unless it is inconsistent with the writing. It
is based on the legal maxim consuetudo loci est observanda which means the custom of the place
is to be observed.
y Expensive evidence of surrounding circumstances: The provisos stipulates that any fact may be
proved which shows in what manner the language of a document is related to existing fact this
provides always down that the law relating to the admissibility of the extrinsic evidence as an aid
to the construction of a document in cases in which it is necessary to find out how the document
is related to the existing facts.
Q. Difference between patent and latent ambiguity.

Patent Ambiguity Latent ambiguity

Patent ambiguity is where the language of a Latent ambiguity is such where the language
document is so uncertain and ineffective that of a document is certain and meaningful but
no meaning can be given to a document. the language of document is not applied to the
present case.

It is personal and is related to a person who It is objective in nature and is related to subject
executes the document. matter and the object of the document.

Oral evidence is allowed to remove patent Oral evidence is permitted to remove latent
ambiguity. ambiguity.

Patent ambiguity is based on the rule that The rule of giving oral evidence in case of latent
patent ambiguity makes document useless. ambiguity is based on principle that latent
ambiguity does not make the document useless.

It is on the face of a document and is evident It is not evidence from prima facie inspection
from inspection of document itself. of a document but becomes apparent when
the language of document is applied to existing
circumstances.

Patent and Latent Ambiguity

Section 93 to 100 lays down the rules for the interpretation or construction of document by the aid of
extrinsic evidence, i.e., oral evidence. These provisions follow from proviso (6) to Section 92 which lay
down that any fact may be proof which tends to clear any ambiguity in a document.
Types of Ambiguity

Patent ambiguity Latent ambiguity

(Sections 93 and 94) (Sections 95 to 98)

Section 93: Exclusion of Evidence to Explain or Amend Ambiguous Documents

Section 93 deals with patent ambiguity. No oral evidence can be given to remove a patent ambiguity.
When the language used in a document in ambiguous on its very face and no definite meaning can be
given to it, no evidence can be given of facts which would make its meaning clear. Where the words
and phrases of a document are in themselves in-determinative as where a device is made of ‘one of
my seven houses’, the document is ineffective and void for uncertainty.

Indian Evidence Act, 1872 45

 In Food Corporation of India versus Birendra Nath Dhar, AIR 1989 NOC Cal 119, where in there was
document of contract. This document contained a contract for transportation of food grains for two
years. That the place where the amount for transportation of food grains to be mentioned was left
blank. The minimum wage to be paid was not mentioned in the blank space where it should have been
mentioned. Contractor was giving different amount. It was held that under Section 93 of the Evidence
Act, no oral evidence was allowed to fill up the blanks in the document.

Section 94: Exclusion of Evidence against Application of Document to Existing Facts

The provision enshrined under Section 94 of the Act applies when there is neither patent nor latent
ambiguity. Evidence cannot be given to contradict this when the language used in a document is quite
clear and it also applies correctly to the fact stated but an attempt is made to show that it was meant
to apply to some other fact, such evidence is not allowed.

Section 95: Evidence as to Document on Meaning in Reference to Existing Facts

Section 95 is based on the maxim falsa demonstratio non nocet which means that a fault description
does not vitiate the document. When the description is incomplete or partly incorrect, oral evidence
may be given to explain the meaning. Section 95 is based on the principle that oral evidence can be
given to remove latent ambiguity of a document.

Section 96: Evidence as to Application of Language Which Can Apply to One Only of Several
Persons
Section 96 of the Act states that where the language of a document is plain but it turns out that there
are more than one person or things to which the description applies, oral evidence can be given of
facts which shows, which thing or person it was intended to apply. Parol/oral evidence may be given to
the Court to explain the nature and qualities of the subject matter of the instrument or in other words,
to identify the person and things to which the instrument refers.

Section 97: Evidence as to Application of Language to One of the Two Sets of the Facts, to
Neither of Which the Whole Correctly Applies

Section 95 Section 97

Under Section 95, the Indian Evidence Act, 1872, Under Section 97, the Indian Evidence Act, 1872,
there is only one person or thing to which the there are two or more persons or things in
language of a document is partially applicable, competition, part of description applying to one
no other thing or being in competition. and part to other, while not wholly applicable to
either.

Section 98: Evidence Act to the Meaning of Illegible Character, etc.

Section 98 of the Act lays down the principle dealing with miscellaneous ambiguity. A document maybe
couched in a language which is not intelligible to ordinary people on account of the use of illegible or
not commonly intelligible characters or when the writing is such that it is not possible to decipher it
without the help of experts or a person who is especially familiar with the writing or when it is written
in short hand or cipher. Such document cannot be rejected as ambiguous only because the Court has
no particular knowledge or skill which is necessary to ascertain their true meaning. Experts or persons
processing the requisite knowledge may be called upon to explain the meaning of such terms.

46 Indian Evidence Act, 1872

Section 99: Who May Give Evidence of Agreement Varying Terms of a Document
Section 99 of the Act lays down that a person who is neither a party to a document nor representative-
in-interest of a party to a document, who may give evidence of any facts tending to show contemptuous
agreement varying the terms of the contract. In Bai Hira Devi versus Official Assignee of Bombay, AIR
1958 SC 448, the Court differentiated the provisions laid down in the provisions enshrined under
Sections 92 and 99 of the Indian Evidence Act. It was held at Section 92 speaks only of contracts
grants or other disposition of property where as Section 99 deals with all the documents whether they
are contracts or not, whereas, Section 99 speaks only of the varying terms of a document.

Presumptions
A presumption is a legal or factual assumption drawn from the existence of certain facts. Presumption
raised under a statute has only an evidentiary value [MS Narayana Menon versus State, (2006) 6
SCC 39]. It is worthy to mention that presumption is an inference of a certain fact drawn from other
proved facts. While inferring the existence of a fact from another, the Court by a process of intelligent
reasoning which the mind of a prudent man would do under similar circumstances. Unless presumption
is disproved or dispelled or rebutted, one can treat the presumption as tantamounting to proof [State
versus K Vasudeva, (2004) 9 SCC 319].
Section 4

May presume Shall presume Conclusive proof

Presumption is not in itself evidence,

In law of evidence, the word ‘presumption’ is used to
but only makes a prima facie case
designate an inference, affirmative or negative, the
for a party for whose benefit it exists
existence of some facts drawn by a judicial tribunal
and relieves the party of the duty of
process of probable reasoning from some matter of facts
presenting evidence until his opponent
either judicially noticed or admitted or established by
has introduced evidence to rebut the
legal evidence to the satisfaction of tribunal.
presumption.

Proof vis-à-vis Presumption

Proof is a mental process by which one arrives at the conclusion that facts exist or does not exist on
the basis of evidence. It is considered as the establishment of material fact in each particular case by
proper and legal means to satisfaction of the Court is affected by:
y evidence for statement of facts, admission or confession of the party as also the production of the
document,
y presumption, and
y judicial notice and inspection.
However, presumption means a thing taken for granted. Presumption, basically, is one of the means of
affecting proof. Proof is the final stage in a proceeding which is arrived by evidence for presumption.

Indian Evidence Act, 1872 47

 Presumption

Presumption of fact Presumption of law Mixed presumption

(May presume)

Rebuttable presumption Irrebuttable presumption
(Shall presume) (Conclusive proof)

Presumption of Fact: May Presume

These are the inferences which are drawn naturally from the observation of the course of nature and
the constitution of human mind. According to Section 4, whenever it is provided that the 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, that is, the Court may take notice of the fact without calling of its proof or may call upon
a party to prove that fact. Presumptions of facts are discretionary and permissive in nature, that is,
not only they are always rebuttable, but the Court may refuse to draw the usual or natural inference
notwithstanding that there is no rebutting evidence. Sections 86 to 88A, 90, 90A, 113A and 114 are
related to presumptions of facts.

Presumption of Law
It is based upon the provisions of law. Presumption of law can be classified into two heads:
y Rebuttable presumption of law, i.e., shall presume, and
y Irrebuttable presumption of law, i.e., conclusive proof .

Q. Distinguish between rebuttable and irrebuttable presumption of law.

Rebuttable Presumption of Law Irrebuttable Presumption of Law

Presumption which can be overthrown by It is drawn so conclusively that contrary

contrary evidence. evidence is not allowed. It is juris et de jure, i.e.,
in capable of rebuttal.

The Court regards such fact as proved unless The Court shall on proof of one fact regard
and until it is disproved. The Court here the other has proved and shall not allow the
dispenses with the necessity of formal proof. evidence to disprove it.

Provision enshrined under Sections 79 to The Act mentions of only three instances of
85, 89 and 105 are examples of rebuttable irrebuttable presumption of law, i.e., Sections
presumptions. 41, 112 and 113.
Q. Distinguish between presumption of fact and presumption of law.

Presumption of Fact Presumption of Law

This is based on logic, human experience and This is based on provision of law.
law of nature.

48 Indian Evidence Act, 1872

 It is uncertain and transitory in nature. It is certain and uniform in nature.

The Court can ignore the presumption of fact The Court cannot ignore presumption of law.
how strong it is.

They are always rebuttable and away when This is conclusive unless rebutted as provided
explained or rebutted by establishment of under rule giving rise to presumption.
positive proof.

These are derived on the basis of law of nature, These are derived on established judicial norms
prevalent customs and human experience. and they have become part of legal rules.

It has discretionary presumption. It is mandatory in nature.

Presumption of Law

Rebuttable presumption Irrebuttable presumption
(Shall presume) (Conclusive proof)

Shall Presume
When there is provision to the effect that ‘the Court shall presume a fact’, the Court is bound not to
exercise its discretion. The Court is compelled to take the fact as proved, i.e., it shall have to presume
the fact. But in this case, the Court will be at liberty to allow the opposite party to adduce evidence
to disprove the fact so presumed and if the opposite party is successful in disproving it, the fact the
Court shall not presume the fact.

Conclusive Proof
Those rules which are not overcome by any evidence that fact is otherwise. It is to be noted that whenever
it is mentioned that a fact is the ‘conclusive proof’ of another fact, the Court has no discretion at all.
In Gopal Krishna versus Secretary Board of Revenue, AIR 1954 Mad 362, it was settled that conclusive
proof in Section 4 of the Evidence Act shows that by declaring certain fact to be conclusive proof of
another and artificial probative effect is given by the law to certain facts and no evidence is allowed
to be produced with a view to combating in that effect. These cases generally occur when it is against
the policy of government or the interest of society that a matter may be further open to dispute.

Presumption of Fact—May Presume

Sections 86 to 88A, 90, 90A, 113A and 114 are related to presumptions of facts.

Presumption as to Certified Copies of Foreign Record: Section 86

Section 14 of the Code of Civil Procedure, 1908 lays down that where a foreign judgement is relied upon,
the production of the judgement duly authenticated, is presumptive evidence that the Court which
made it had competent jurisdiction (Kassim versus Isaf Md, ILR 29 Cal 509). It is to be noted that a
foreign judgement is inadmissible in evidence in absence of certificate.

Presumption as to Documents 30 Years Old: Section 90

Section 90 provides that when any document:

Indian Evidence Act, 1872 49

 y purporting and proved to be 30 years;
y is produced in Court;
y from the custody which is in the opinion of the Court is proper.
The Court may presume:
y that the signature and every other part of document which purports to be in the handwriting of any
particular person is in that person’s handwriting;
y that it was duly executed and attested by the person by whom it purports to be executed and
attested.

Presumption as to Abetment of Suicide of a Married Woman: Section 113A

Section 113A was inserted by the Criminal Law (Amendment) Act, 1983 and has retrospective effect.

Section 113A relates to offence under Section 306, the Indian Penal Code 1860 and deals with the
question of abetment of woman’s suicide by her husband or any of his relatives. In such cases,
presumption arises (the may presume) that a suicide has been abetted by the husband or his relatives,
if the following three conditions are satisfied:
y the woman has committed;
y such suicide has been committed within a period of seven years from the date of her marriage;
y the husband, or his relatives, who are charged that subjected her to cruelty.
On existence and availability of the above-said circumstances, the Court may presume that such
suicide had been abetted by her husband or by such relatives of her husband [Ramesh Kumar versus
State of Chhattisgarh, (2001) 9 SCC 618]

Scope and Application

y Firstly, the presumption is not mandatory, it is not permissive as the employment of expression “may
presume” suggests.
y Secondly, the existence and availability of the above three circumstances shall not, like a formula,
enable the presumption being drawn, before the presumption may be drawn, the Court shall have
regard to all the other circumstances of the case.
y The expression ‘the other circumstances of the case’ used in Section 113A suggests the need to
reach a cause and effect of relationship between the cruelty and the suicide for the presumption of
purpose of raising a presumption.
y The presumption is not an irrebuttable presumption.

Section 113A, If Violative of Articles 20(3) and 21 of the Constitution?

In Krishan Lal versus Union of India, 1994 Cri LJ 3472 (P&H), the Bench categorically uphold the sanctity
of the provision enshrined under Section 113A, the Indian Evidence Act, 1872 and held that the words
“having regard to all the circumstances of the case” give wide powers to the Court to appraise the
evidence and come to the conclusion whether there was some other extraneous cause to commit
suicide.

Cruelty as Envisaged in Section 113A

In the explanation to Section 113A, it has also been indicated that for the purpose of the said section,
the expression ‘cruelty’ would have the same meaning as in Section 498A, the Indian Penal Code, 1860.

50 Indian Evidence Act, 1872

Accordingly, if the degree of cruelty is such as to warrant a conviction under Section 498A of the penal
code, the same way may be sufficient for a presumption to be drawn under Section 113A of the Indian
Evidence Act, 1872 in harmony with the provisions of Section 107, the Indian Penal Code, 1860 (Thanu
Ram versus State of MP, (2010) 10 SCC 353).

Court May Presume Existence of Certain Facts: Section 114

This section incorporates the rule of legal
Section 114 is residuary section dealing with
presumptions. Under this Section, the Court
the presumption of facts which have not been
has unfettered discretions to presume a fact,
specifically dealt with elsewhere in the act.
as proved until it is disproved, or ignore such a
presumption and call for a proof of it.
Section 114 merely recognises the general power of the Court to raise inference as to the existence or
non-existence of unknown facts, or proof or admission of other facts.

Source of
Human conduct Natural events
Presumptions

Public or private
business

Presumptions arising under Section 114 are:

y Not exhaustive
y Rebuttable presumption
y Not conclusive
y Discretionary

Common Course of Natural Events

The course of conduct which this Section terms as ‘common’ that which is most common in the
experience of the judge who has to decide the point. There exists presumption of existence from
previous and subsequent existence:
Illustration (d): “If it is proved that a river ran in a certain course five years ago, but it is known that
there have been floods since that time which might change its course.”
This illustration is founded on presumption in favour of continuance. Section 107 to Section 109, the
Indian Evidence Act, 1872 deals with specific application of the general principle in illustration (d).
According to the illustration (d), if it is proved that a thing or state of things existed within a period
shorter than that which such things or state of things usually ceased to exist, the Court may presume
that the thing or state of things at the time of trial.
For example: Where a person is shown to be a member of a joint family, his continuity in that position
will be presumed unless the contrary is shown.

Indian Evidence Act, 1872 51

 Common Course of Human Conduct
It means the behavioural norms of human beings who can judge what is wrong and what is right.
For example: that a man and woman lived together for a number of years, under the same roof, a
presumption may be drawn that they lived as husband and wife and their children are legitimate. Such
presumption can be repelled only by evidence of clearest character.
Illustration (a): “A shopkeeper has in his till a marked rupee soon after was stolen, and cannot account
for its possession specifically but is continually receiving rupees in the course of business.”
In a criminal case the burden of proof always lies on the prosecution, for the accused is to be presumed
to be innocent. But the presumption permitted by illustration (a) does not arise until the prosecution
has established the following facts:
y the ownership of articles in question,
y their theft, and
y their recent possession by the accused.
In Limbaji versus State of Maharashtra, AIR 2002 SC 491, it was held by the Supreme Court that in
circumstances of recovery of incriminating articles, within reasonable time after incident at the places
pointed out by the accused, the presumption as to commission of offence by the accused can be
drawn.
For the application of Section 114, the following circumstances need to be considered as held in Wasim
Khan versus State of UP, AIR 1956 SC 400:nature of recovery,
y matter of acquisition by the owner,
y the manner in which the articles were dealt by the accused,
y the place of recovery,
y the length of recovery, and
y the explanation of accused.

Common Course of Public and Private Business

If a fact is likely to have happened in the common course of natural events according to public and
private business, the Court may presume the existence of such fact. The Court may presume that the
common course of business has been followed in particular cases, provided the existence of course of
business is proved or admitted.
Illustration (c): “A, the drawer of bill of exchange, was a man of business. B, the acceptor was a young
and ignorant person, completely under A’s influence.”
The illustration says that the court may presume that a bill of exchange accepted or endorsed was for
good consideration. Though this illustration talks only of negotiable instruments, Section 118 of the
Negotiable Instruments Act, 1881 extends the presumption to all kind of negotiable instruments. Bill
of exchange and promissory notes enjoy the privilege of being presumed prima facie to be drawn for
valuable consideration. But if the drawer of bill of exchange is a man of business and acceptor is young
and ignorant man completely under the drawer’s influence, then there shall be no presumption that
the bill was drawn for valuable consideration.
In N Parameswaran Unni versus G Kannan, AIR 2017 SC 1681, it was settled that Section 27 of the
General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872 make it clear that once the
notice is sent by the Registered Post by correctly addressing to the drawer of cheque, the service of the

52 Indian Evidence Act, 1872

notice is deemed to have been effected and the requirements under proviso (b) of Section 138 stands
complied, if notice is sent in the proper form but the drawer is at liberty to rebut the presumption.

Section 114 of the Indian Evidence Act, 1872 and Section 6 of the Dowry Prohibition Act, 1961
In Bobbili Ramakrishna Raju Yadav versus State of Andhra Pradesh, AIR 2016 SC 442, it was held that
giving of dowry and traditional presents at or about the time of wedding does not raise presumption
of entrustment of property under dominion of parents-in-law of bride or other close relations so as to
attract ingredients of Section 6 of the Dowry Prohibition Act, 1961.

Irrebuttable Presumption—Conclusive Proof

According to Section 4, when one fact is declared by this Act to be conclusive of another, the court
shall, on the proof of one fact, regard the other as proved and shall not allow evidence to be given
for the purpose of disproving it. Thus, whenever it is mentioned that a fact is a ‘conclusive proof of
another fact’, the court has no discretion at all. The Act mentions only three instances of irrebuttable
presumptions of law, i.e., Sections 113,112 and 41.
Q. “There is no difference between conclusive proof and conclusive evidence.” Elaborate.
The Supreme Court in Smt Somavati versus The State of Punjab, AIR 1963 SC 151: (1963) 3 SCR 774,
the Bench held the opinion that “there is no difference between the expression conclusive evidence
and conclusive proof, the aim of both being to give finality to the establishment of the existence of a
fact from the proof of another. The Bench further stated that where a law declares that a fact shall
be conclusive proof of another, the Court is precluded from considering other evidence once such
fact is established. Moreover, evidence means and included all statement which the court permits or
requires to be made, when the law says that a particular kind of evidence would be conclusive as to
the existence of the particular fact it implies that fact can be improved either by evidence or by some
other evidence which the court permits or requires to be advanced. Where such other evidence is
adduced, it would be open to the court to consider whether upon that evidence the fact exists or not.
Where, on the other hand, evidence which is made conclusive is adduced, the Court has no option but
to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of
evidence as conclusive evidence. Once the law says that certain evidence is conclusive, it shuts out
any other evidence which would detract from the conclusiveness of that evidence.”
Judgements In Rem Are Conclusive Proof of Certain Matters: Section 41
The general rule is that a person is not bound by transaction to which he was not a party. It is based on
the maxim res inter alios acta alteri nocere non debet meaning that a matter transacted between one
set of persons ought not to injure or affect another person. However, the provision enshrined under
Section 41, speaking of judgement in rem are one exception to this rule. This section deals with the
judgements which are conclusive not only against the parties to them, but against the whole world.

Analysis of Section 41
Section 41 consists of two parts:
y Firstly, with the reference to the judgement alleged to fall under Section 41, it must be:
⚪ of a competent court in the exercise of probate, matrimonial, admiralty or insolvency proceedings.
⚪ it must confer upon or take away from any person any legal character or declare any person to be
entitled or to be entitled to any specific thing, not as against any specified person, but absolutely.
y Secondly, with regard to the proceedings in which the said judgement is sought to be relied upon as
a piece of evidence, the existence to any such legal character or the title of any such person to any
such thing must be relevant.

Indian Evidence Act, 1872 53

 Conclusive Proof of Legitimacy: Section 112
The rule contained in Section 112 of the Indian Evidence Act, 1872 raises a conclusive presumption that
a child born during wedlock is the legitimate issue of the husband of mother, no matter when the child
was begotten.
Section 112 is an example of social legislation
Section 112 is based on maxim pater estquem
and derives its object from legal maxim semper
nuptiae demonstant, i.e., he is the father whom
praesumiter prolegitim anti one puerorum, i.e., it
the marriage indicates.
is presumed that the children are legitimate.

Essential Conditions Requisite for Application of Section 112

For the application of drawing a conclusive presumption as to legitimacy, the following conditions have
to be fulfilled:
y The child should have born during the continuance of valid marriage, or if the marriage was dissolved,
within 280 days after its dissolution, the mother remains unmarried,
y The parties to marriage should have had access to each other at any time when the child could have
been begotten.
Access and non-access: It means the existence
A conclusive presumption of legitimacy arises
or non-existence of opportunities for sexual inter-
from birth in wedlock and not from conception
course, it does not mean actual co-habitation.

The Supreme Court in Kamti Devi versus Poshi Ram, AIR 2001 SC 226, observed that the party who
wants to dislodge the conclusiveness has the burden to show a negative, not merely that she too did
not has the opportunity of approaching him during the relevant time.
In Shyamlal versus Sanjeev Kumar, AIR 2009 SC 3115, wherein the plaintiff and defendant were born
during the continuance of valid marriage of her mother with the deceased. There was no evidence
on record that the deceased at any point of time did not have access to her. It was held that there
was strong presumption about the legitimacy of children. In this case, the Supreme Court held that
“on the proof of legitimacy of marriage born out of that wedlock, there is strong presumption about
the legitimacy of child born out of that wedlock. The presumption can only be rebutted by strong,
clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of
probabilities or any circumstances creating doubt.”

Presumption as to Valid Marriage

In Raghunath Parmeshwar Pandit Rao versus Eknath Gajanan Kulkarni, AIR 1996 SC 1290, the Supreme
Court laid down a very important preposition that in certain circumstances that valid marriage can be
presumed. The Supreme Court held that where there was evidence on record to prove staying together
as husband and wife for continuous long period, there is presumption of valid marriage.

Relevancy of DNA Test

It is rebuttable presumption of law that under Section 112 that a child born during the lawful wedlock
is legitimate, and the access occurred between the parents. This presumption can only be displaced
by a strong preponderance of evidence and not by a mere balance of probabilities. Thus, the following
is position as to permissibility of blood test to prove paternity:
y The courts in India cannot order blood test as a matter of course.
y Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood
test cannot be entertained.

54 Indian Evidence Act, 1872

y There must be a strong prima facie case that the husband must establish non-access in order to
dispel the presumption arising under Section 112.
y The court must carefully examine as to what would be the consequence of ordering the blood test,
whether it will have the effect of branding the child as a bastard and the woman as an unchaste
woman.
y No one can be compelled to give sample of blood for analysis (Gautam Kundu versus State of West
Bengal, AIR 1993 SC 2295).
Q. What is the ‘standard of proof’ required to displace the conclusive presumption in favour of paternity
of a child born during the subsistence of a valid marriage?
The standard of proof in such cases must at least be of the degree in between the two as to ensure
that there was no possibility of child being conceived through the plaintiff’s husband (Kamti Devi
versus Poshi Ram, AIR 2001 SC 226). In Dukhtar Jahan versus Mohd. Farooq, AIR 1987 SC 1049, it was
held that the presumption under Section 112 can be displaced only by a stronger preponderance of
evidence and not mere balance of probabilities.

Shall Prove—Rebuttable Presumption

This kind of presumption arises when presumption of law are certain legal rules, defining the amount
of evidence requisite to support a particular allegation, which facts being proved, may either explained
away or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Legal
presumptions of this kind are definitions of the quantity of evidence sufficient to make a prima facie
case, in other words of the circumstances under which the burden of proof lies on the opposite party.
Whenever there is a provision to the effect that ‘the court shall presume a fact’ the court cannot
exercise its discretion. It is compelled to take the fact proved, i.e., the court shall have to presume
the fact. But in this case the court will be at liberty to allow the opposite party to adduce evidence to
rebut the presumption or to disprove the fact so presumed and if the opposite party is successful in
disproving it, the court shall not presume the fact.

Section 79: Presumption as to Genuineness of Certified Copies

This section is based on the maxim omnia proesumuntur rite esse acta, i.e., all acts are presumed to
be rightly done. Section 79 states that when a document purporting to be a certified copy or certificate
is produced with the certificate mentioned in Section 76, the court shall presume that the copy is
genuine copy and cannot be contended that there may be mistake in the copy.
Under Section 79, a court is bound to draw the presumption that the certified copy of a document is
genuine and that the officer signed in official character which he claimed in the said document. But
a presumption is permissible only if the certified copy is substantially in the form and purports to be
executed in the manner provided by law in that behalf (Bhinka versus Charan Singh, AIR 1959 SC 966).
The word ‘shall presume’ indicates that if no evidence is given, the court is bound to find that the facts
mentioned in the section exist. They occur in Sections 79 to 85 and 89 of the Act. These Sections are,
therefore, mandatory.
In Bahadur Ram versus Sant Ram, 2002 AIHC 2307, it was held that “unless contrary is proved, the
government records produced in evidence shall be presumed under Section 79 of the Act to correct
and genuine.” However, where the certified copy of a judgement bore no date and signature of the judge
and its final portion is missing, the said document, being incomplete, its certified copy was held to be
inadmissible in evidence (Mohmedbhai Rasulbhai Malek versus Amir Bhai Rahimbhai Malek, AIR 2001
Guj 37).

Indian Evidence Act, 1872 55

 Section 80: Presumption as to Document Produced as Evidence in Record
This section makes it obligatory on the part of a court to draw a presumption of genuineness in
respect of judicial documents, i.e., disposition of witnesses in judicial proceedings, or before any officer
authorised by law to take such evidence, or statement or confessions by a prisoner or an accused
person which are recorded in accordance with provision of law.
y The first part deals with depositions recorded in judicial proceedings.
y The second part deals with depositions recorded by officers authorised by law to record depositions.
There is no general presumption that every officer is authorised by law to record evidence.
y The third part deals with statements or confessions of prisoners or accused persons recorded in
accordance with law, purporting to be signed by a judge or magistrate or any other officer who is
authorised by law to so record.
y The presumptions to be raised under this section are considerably wider than those of under Section
79. They embrace not only the genuineness of the document, but that it was duly taken and given
under the circumstances recorded in the document.
y The presumptions under this section are not conclusive, they may be rebutted.
In Emperor versus Thakur Das Malo, AIR 1943 Cal 626, it was held that the court will presume that a
confession was duly recorded and the circumstances under which the confession was recorded were
such as had been set down in the record made by the magistrate. It says nothing about there being
any presumption regarding the voluntariness of the confession.

Section 81: Presumption as to Gazette, Newspaper, Private Act of Parliament and Other
Documents
In SK Networks Co Ltd versus Amulya Exports Ltd, AIR 2007 Bom 15, where in case of carriage of goods
by sea, the bill of lading is evidence to establish the fact that the goods were actually put on board by
the master of the ship. Unless proved otherwise, the contents of and details mentioned in the Bill of
Lading is presumed to be true.
This Section deals with four sets of documents which shall be presumed to be genuine. They are:
1. Gazettes,
2. Newspaper or journals,
3. Gazetteers,
4. Every document, directed by any law to be kept by any person, if that document is kept substantially
in the form required by law and is produced from proper custody.
Internals circular issued by Government: There is no such presumption as to correctness of such
circulars [Bharat Sanchar Nigam Ltd. versus BPL Mobile Cellular Ltd, (2008) 13 SCC 597].

Section 81A: Presumptions as to Gazettes in Electronic Forms

The genuineness of the electronic records purporting to be the official gazette or purporting to be
the electronic record directed by any law to be kept by a person shall be presumed, provided that is
substantially kept in accordance with the form required by law and is produced from proper custody.

Section 82: Presumption as to Document Admissible in England without Proof of Seal or

Signature
This Section enables the Courts to recognise presumptions with regard to certain classes of documents
which are recognised in English Courts. The Court must presume:

56 Indian Evidence Act, 1872

y that the seal or stamp or signature is genuine, and
y that the person signing the document held, at the time when he/she signed, the judicial or official
character he/she claims.
Thus, documents which, without proof of the seal or signature, or of the official character of the person
by whom they purport to have been signed, are admissible in England, will be admissible in a Court in
India.

Section 83: Presumptions as to Maps or Plans Made by Authority of Government

According to this Section, maps and plans purporting to have been made by the authority of the central
or state government shall be presumed to have been so made and be accurate. Other maps and plans
which are made for the purpose of any cause or by any other agency must be proved to be accurate
examining the person who actually prepared it. It is to overcome the instances where apart from
playing; there is tendency to exaggerate, while preparing the maps or survey report.
In Ram Kishore Sen versus Union of India, AIR 1965 Cal 282, it was held that there is distinction between
relevancy and accuracy of maps and plans. According to Section 36 of this Act, the statement of fact
made in map or chart published and generally offered for sale and in maps or plans made under the
authority of government (state or central) are by themselves relevant facts. Unless the statement of
fact made in maps or plans are held to be relevant for a decision of a fact in issue before the court,
no question of drawing a presumption under Section 83 would arise. Under Section 36, there is no
mention of presumption as to the accuracy of the statement of facts made in maps or plans.

Section 84: Presumption as to Collection of Laws and Reports of Decisions

This section should be read along with Section 38, which makes relevant statement as to any law and
rulings content officially in printed books of any country. It dispenses with the proof of the genuineness
of the authorised books of any country containing laws and reports of decision of court. Section 57
authorises the court to take judicial notice of the existence of all laws and statutes in India and in the
United Kingdom. Section 74 recognises statutory records and the public records. Section 78 lays down
the method of proving the statute passed by the legislature. In Kumar Jagadish Chandra Sinha versus
CIT, West Bengal, AIR 1956 Cal 48, it was held that only effect of Section 38 and 84 read together is
that the court may take judicial notice of the publication containing foreign law, if it is issued under the
authority of foreign government concerned and may accept the law as set out in the publication law in
force in a particular foreign country at the relevant time. But such a publication cannot be considered
as evidence, what is contained in it, is the whole law, which can only be proved by calling an expert
as provided by Section 45. It is to be noted that the report of a case in a newspaper does not come
under the purview of this section as the newspaper cannot be considered to be a book purporting to
contain reports of decision.

Section 85: Presumption as to Power of Attorney

This section deals with the presumption in respect of a power of attorney regarding its execution
and authentication by a notary public, or any court, judge, magistrate, Indian consul or vice consul or
representative of the Central Government. The above-named persons are the authorities before whom
the power of attorney is to be executed and who would authenticate them. When power of attorney
is so executed or authenticated and tendered in evidence, the court shall presume the due execution
and authentication.

Indian Evidence Act, 1872 57

 In Electric Construction Equipment Co Ltd versus Jagjit Electric Works, Sirsa, AIR 1984 Del 363, the
Court held at two conditions have to be satisfied in respect of the execution of a power of attorney:
y It must be executed before a notary public, or any other person referred to in Section 85.
y It must be authenticated by notary public, or any person mentioned in the Section 85. If any of the
conditions is not satisfied, Section 85 does not apply to raise any presumption in favour of that
power of attorney.
In Rajesh Wadhwa versus Sushma Govil, AIR 1989 Del 144, it was held that Section 85 is mandatory
though it is not exhaustive. Under Section 57(6) of this Act, the court shall take judicial notice of the
seals of the notary public. Where the notary public, put the seal on the document, a presumption
under Section 57(6) can be raised regarding the genuineness of the seal of the said notary.

Estoppel
It is to be noted that the burden of proof is often lightened by:
y presumptions,
y admissions, and
y estoppel.
The rule of estoppel is based on the maxim allegans contraria non est audiendus, i.e., a person alleging
contrary facts should not be heard. The principle is that it would promote fraud and litigation, if a man
is allowed to speak against his own act or representation of facts, basis on which another person was
induced to alter his position.
Kinds of Estoppel

By matter of record By deed By election By conduct

Estoppel by Record
In India, estoppel by record is covered by res-judicata under Section 11, the Code of Civil Procedure,
1908, Section 300, the Code of Criminal Procedure, 1973 and Sections 40–44, the Indian Evidence Act,
1872. This is also called estoppel by judgement.

y Estoppel by Record Arises

⚪ When an issue of fact has been judicially determined in a final manner between the parties by
a tribunal having jurisdiction concurrent or exclusive in the matter, and the same issue comes
directly in question in subsequent proceedings between the same parties;
⚪ where the first determination was by a court having exclusive jurisdiction and the same issue
comes incidentally as a question in subsequent proceedings between the same parties;
⚪ in some cases, where an issue of fact affecting the status of a person or thing has been necessarily
determined in final manner as a substantive part of a ‘judgement in rem’ of a tribunal having
jurisdiction to determine the status, and the same issue come strictly in question in subsequent
civil proceedings between any party whatever.
In Dayaras Bamanshah Medhora versus Nariman Bamanshah Medhora, AIR 2002 Guj 166, it was held
that where there were cross suits between the same parties relating to the same property involving the

58 Indian Evidence Act, 1872

same issues and they were disposed of by a common judgement involving the passing of two decrees,
it was held at an appeal against only one decree was not maintainable. A general principle that runs
through the doctrine of estoppel by record is that a decree is an order of the court and the judgement
debtor must when it has once been completed, obey it unless and until he can get it set aside in
proceedings duly constituted for purpose.

Estoppel by Deed
y When a party has entered into a solemn engagement by deed as to certain facts, neither he nor
anyone claiming through or under him is permitted to deny facts. There will be no estoppel where
the deed is affected by fraud or illegality. It is a rule of evidence according to which certain evidence
is taken to be of high and conclusive a nature as to admit of no contradictory proof. In so far as a
deed is void on the ground that it was obtained by fraud, force or other foul practice, or a forgery, no
estoppel can raise.

Estoppel In Pais by Conduct

y Estoppel in pais arises:
⚪ from contract or agreement, or
⚪ from act or conduct of misrepresentation which has induced a change of position in accordance
with the intention of parties against whom the estoppel is alleged.
In order to raise an estoppel by conduct, a person must by word or conduct induce another to believe
that a certain state of things exists, and to cause that other to act on that belief in a way he would
not have done had he known the facts, so that, if in an action between them the persons making a
representation were allowed to prove the true facts—to tell the truth—the other person would be
prejudiced.
If these two conditions are fulfilled, then the person making the representation will not be allowed to
deny its truth in any action between him and the person to whom he made it or the person who claim
in the same right.

Estoppel by Election
y Where the terms and conditions incorporated in the lease deed revealed that the allotment was
on ‘as-is-as-where’ basis which was accepted by the respondent-company without any protest,
whatsoever and the lease deed further enabled the appellant to collect charges in case it decided to
provide the approach road otherwise, it would be the obligation of respondent company to develop
its own infrastructure and the same would include development of the access road, the appellant
was not under any obligation to access the road. The Supreme Court held that “a party cannot ‘blow
hot-blow cold’, ‘fast or loose’ or ‘approbate and reprobate’. Where one knowingly accepts the benefit
of contract, or conveyance or order upon himself. The doctrine of estoppel by election is one among
the species of estoppel in pias which is a rule of equity. By this law, a person may be precluded by
way of his actions or conduct or silence when it duty to speak, from asserting a right which he would
have otherwise had” (The Rajasthan State Industrial Development and Investment Corporation versus
Diamond and Gem Development Corporation Ltd., AIR 2013 SC 1241).

Indian Evidence Act, 1872 59

 Q. Distinction between estoppel and res-judicata.

Estoppel Res-Judicata

Rule of equity Rule of procedure

Based on rule of justice, equity and good Based on the rule of public policy
consigns

Originates from the conduct or representation of Originates from decision of court

parties

Shuts the mouth of parties Shuts the jurisdiction of courts

Rules of estoppel laid down in Sections 115 to Rules regarding res-judicata laid down in
118, the Indian Evidence Act, 1872 Section 11, the Code of Civil Procedure, 1908

Q. Distinction between estoppel and admission.

Estoppel Admission

Doctrine of estoppel applies only in civil cases. Doctrine of admission is applicable to both the
civil and criminal proceedings.

Estoppel are conclusive and create absolute Admissions, do not operate by way of estoppel,
bar to the pleadings of a contention denying the constitutes a kind of evidence, which can
former assertion. be rebutted against their makers and those
claiming under them.

An estoppel is a rule of evidence/law, which An admission is a statement which suggests an

precludes a party from contradicting his former interference as to any fact in issue or relevant
representation or conduct. fact.

An action cannot be founded on estoppel. An admission may form the basis of judicial
pronouncement.

Doctrine of estoppel does not operate against a Rule of admission operates against a person
person who was non-existent at that time when who was non-existent at the time when the
transaction took place. transaction took place.

Q. Distinction between estoppel and waiver.

Estoppel Waiver

Rule of evidence and does not form basis for Waiver originates from contractual relationship
instituting a suit and may give birth to cause of action

The knowledge of reality or truth is not a factor In case of waiver, real facts or truth is known to
or essential condition for claiming estoppel both the parties

Estoppel is used as defence and not cause for Waiver may give rise to a right of cause of action
bringing a suit

In some circumstances, the acquiescence In case of waiver, some act or conduct is

amount to estoppel necessary together with acquiescence

60 Indian Evidence Act, 1872

Section 115: Applicability of Doctrine of Estoppel
Section 115 of the Act is founded upon the doctrine laid down in Pickard versus Sears, (1837) 6 AD &
EL 469, that where a person by his conducts or words wilfully causes another to believe the existence
of a certain state of things, and induces him to act on that belief, so as to alter his own previous
position, the former is precluded from averring against the latter a different state of things as existing
at the same time. It can be said that the rule of estoppel is a rule of evidence and it should clearly be
pleaded. A person intending to invoke the plea of estoppel must very clearly state the fact in his plaint
or written statement which led him to act upon certain representation. Where the plea of estoppel is
not set up in the pleading, it cannot be availed of later (Md. Ahmed versus Rourffie, AIR 1960 Cal 146).
In order to bring a case with in the scope of Section 115, the following things are necessary:
y one party should make a representation to the other party about an existing fact as distinct from a
mere promise de future,
y the representation must be made with the intention to be acted upon,
y the other party should accept and rely upon the aforesaid factual representation, i.e., there must
have been belief on the part of that other, and
y there must have been action arising out of the belief, i.e., the representation must have been acted
upon.
For estoppel to arise, there are (a) subjective and (b) objective conditions to be fulfilled by both the
parties:
y The maker of statement must have made it ‘intentionally’ and there must be his statement, act or
omission;
y The other party must have believed that ‘the statement must be true’ and must have been acted
upon that belief and altered his position.
y Representation: the main ingredients of estoppel as defined under Section 115:
⚪ there must be some representation,
⚪ the representation must be made with the intention to be acted upon,
⚪ the representation must have been acted upon.
It is to be noted that the representation to form the basis of an estoppel may be made either by:
1. statement, or
2. by conduct and conduct includes negligence.
In Sarat Chandra Dey versus Gopal Chandra Laha, ILR 22 Cal 296 (PC), wherein the main question, in
determining whether estoppel has been occasioned, is whether the representation has caused the
person to whom it has been made to act upon the faith of it. The existence of the estoppel does
not depend on the motive, or on the knowledge of the matter, on the part of the person making the
representation. It is not essential that the act or to abstain from acting should have been fraudulent,
or that he should not have been under a mistake, or misapprehension.
In State of Madras versus Madras Tramway Co., AIR 1957 Mad 69, it was held that only the person to
whom the representation was made or for whom it was intended can make use of it. A person, who
receives statement as second hand not meant for him, has no right to act upon such representation.
If, however, the declaration was intended to be general, anybody may act upon it. The principle of
estoppel must be confined to the relief claimed in respect of same transaction and to the persons
who are the parties thereto.

Indian Evidence Act, 1872 61

 To Invoke the Benefit of Estoppel
It has to be proved that the representation has been acted upon.
y The representation must have been acted upon taking it to be true by the party to whom it was
made.
y It is not necessary that the representation should be false to the knowledge of the party making it,
provided that:
⚪ it is intended to be acted upon in the manner in which it was acted upon, or
⚪ the person who makes it so conduct himself that a reasonable man would take the representation
to be true and believe it was meant that he should act upon in that manner.

Section 116: Tenant Cannot Deny the Title of Landlord

Section 116 deals with estoppel between:
y a tenant and his landlord, and
y licensor and licensee.
The underlying principle of Section 116 of the Act is that the tenant/licensee obtaining possession is
deemed to obtain it upon the terms that he will not dispute the title of the owner/licensor who gave it
to him and without whose permission he would not have got it. The rule is founded on the principle of
public policy and consigns. The estoppel under this section is against the denial of landlord’s title “at
the commencement of tenancy”. This section provides only that a tenant cannot be permitted to deny
that a landlord at the beginning of tenancy had a title to property. This section is no bar to a tenant
showing that his landlord has no title at a date previous to the commencement of tenancy.
Estoppel of tenant: A tenant cannot dispute the right of his landlord by saying that he had nothing in
the property. The tenant is not allowed to setup that the landlord had no legal title. A tenant put into
possession of land by one person cannot alter the character of his possession and make it adverse to
the landlord by going to another person and paying rent to him.
In Motilal versus Yar Md., AIR 1925 All 275, wherein it was held that where a landlord files a suit for
ejectment and for arrears of rent the tenant who has been put into possession of the property in suit
by the landlord had no interest in the property of the suit.

Section 117: Estoppel by Acceptor of Bill of Exchange, Bailee or Licensee

Under this section, an acceptor of a bill of exchange cannot deny that the drawer had authority to
draw such bill or to endorse it but he may deny that the bill was really drawn by the person by whom
it purports to have been drawn.
A bailee or licensee cannot deny that his bailor or licensor had at the commencement of bailment or
license, authority to make the bailment or grant the license but a bailee, if he delivers the goods bailed
to a third person, may prove that such person had a right to them as against the bailor.

Witness—Cross-Examination

Witness—Competency
Section 118 to 121 and Section 133 of the Act deal with the competency of persons who can appear
as witnesses. A witness is said to be competent when there is nothing in law to prevent him from
appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to
understand the question put to him and the capacity to give rational answers thereto.

62 Indian Evidence Act, 1872

 Competent

Compellable
Witnesses
Privilege

Who May Testify?

Section 118 of the Act speaks of the persons who shall be competent to testify. Under this Section, all
persons are competent to testify unless they are incapable of giving evidence or understanding the
questions put to them because of tender years, extreme old age, disease or any other cause of same
kind. It is to be noted that even lunatic is competent to testify provided he is capable of understanding
questions put to him and giving rational answers.
Prosecutrix as witness: In Ganga Singh versus State of MP, AIR 2008 SC 3008, it was observed that in
a sexual offence, the prosecutrix is a victim and not accomplice. There is no provision in the evidence
act requiring corroboration in material particulars of the evidence of then prosecutrix. Prosecutrix is a
competent witness under Section 118 of the Act and her evidence must receive the same weight as is
attached to an injured witness in case of physical violence.
Child witness—credibility: If the testimony of a child witness is credible, truthful and corroborated
by other evidence, the conviction can be based on it. The corroboration is not a must to record a
conviction but as a rule of prudence, the court thinks it desirable that there is corroboration from other
reliable evidence placed on record.
Value of child witness: In Yogesh Singh versus Mahabeer Singh, AIR 2016 SC 5160, it was held that it
is a rule of practical wisdom than the law that the evidence of a child witness must find adequate
corroboration before it is relied upon. But it is not law that if a witness is child, his evidence shall be
rejected even if it is found reliable. The evidence of child witness must be evaluated more carefully
and with greater circumspection because a child is susceptible to be swayed by what others tell him
and thus a child witness is easy prey to tutoring.
In Golla Yelugu Govindu versus State of AP, AIR 2008 SC 1842 it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaped and
moulded, yet it is also an accepted norm that if after careful scrutiny of their evidence, the court
comes to conclusion that there is an impress of truth in it, there is an obstacle in a way of accepting
the evidence of child witness.
In Rahul Ganpat Shedge versus Sheetal Rahul Shedge, (2018) 1 Mah LJ 426, in a case before Bombay
High Court, where a child was sought to be called give evidence against her mother in a matrimonial
dispute between her parents. The High Court held that summoning the child in order to give evidence
in relation to incidents which might have occurred when she was two or three years of age would inflict
trauma on the child. A child could not be treated as pawn in the chess board of matrimonial battle
between the parents.
Corroboration with child witness—rule of prudence: In Varkey Joseph versus State of Kerala, AIR 1960
Ker 301, the general principle is that a person should not be convicted of a crime when the court is
satisfied that the guilt has been established. When the conviction is to be based on the evidence

Indian Evidence Act, 1872 63

 of child witness, what should be the nature of corroboration and to what extent there should be
corroboration will depend upon the facts and circumstances of each case. It would be prudent to seek
corroboration to the evidence of the child witness.
In Inder Singh Bagga Singh versus State of Pepsu, AIR 1953 Pepsu 193, it was held that the competency
of child to give evidence is not regulated by the age but the degree of understanding he appears to
possess. The question depends upon the number of circumstances like possibility of tutoring, the
consistency of evidence and how far the child stood the test of cross-examination.
In Sanjay versus State, 1996 Cri LJ 3347, when the child was found to be tutored no reliance can be
placed on such evidence, but where the testimony of child was not challenged in the cross-examination
and remained uncontroverted, the fact of her admission of being tutored by her father, would not ispo-
facto wash her evidence on record.

Prosecutrix—Testimony of Rape Victim

It is undoubtedly a competent witness and her evidence must receive the same weight as is attached
to an injured in a case of physical violence. The degree of care/caution must attach in the evaluation
of the evidence as in the case of an injured complainant or witness and no more. What is necessary
is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge leveller by her. In Suresh Chand versus State
of Haryana, (1976) Cri LJ 425 (P&H), it was held that the rule of prudence requires that the court to
examine the evidence of a child witness with caution. However, where a child witness was herself a
victim of rape and gave evidence in a natural manner and where there was no strained relationship
or enmity with the family of the accused, it was held that there were no circumstances to doubt her
evidence.
Person of unsound mind: The explanation to Section 118 makes it clear that the evidence of mentally
abnormal person is not necessarily inadmissible unless he is prevented by the disease of mind from
rationally understanding or answering the questions. All lunatic may completely recover or may have
intervals in which he is quite sane, and in those lucid intervals his evidence may be allowed. However,
it is duty of the court to first examine such a lunatic witness at lucid intervals and it must satisfy that
he possesses the requisite amount of intelligence and that he understands the nature of an oath and
the question asked and that he can give rational answers to them.
In Namdeo versus State of Maharashtra, (2007) 14 SCC 150, it was observed that a “close relative cannot
be considered as ‘interested witness’”. He comes under the purview of ‘natural witness’. His evidence,
however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically
reliable, inherently probable and wholly trustworthy, conviction can be based on sole testimony of
such witness.

Competency of Dumb Person: Section 119

This section applies to the cases of persons who are unable to speak due to physical deformity or also
to the cases of witnesses who have taken vow of silence (Lakhan versus Emperor, AIR 1942 Pat 183).
When a deaf–mute is a witness, the Court will ascertain before he is examined that he possesses the
requisite amount of intelligence and that he understands the nature of an oath.
A deaf–mute’s evidence may be taken:
y by written questions to which he may reply in writing, or
y by means of signs made in open court.

64 Indian Evidence Act, 1872

The reason for insisting on the signs or writing to be made in open court, i.e., only the Court that should
interpret the signs and see if the witness has properly understood the question before he puts down
his answer in writing.
This Section has been substituted vide criminal law (amendment), 2013 on the basis of recommendation
given by the Justice JS Verma Committee, constituted in the aftermath of the December 2012 Nirbhaya
Rape incident.
The effect of this Section is that all such victims of sexual offences or any other offences who are
having problem in communicating verbally can be witness, and the court can record their statements
during trial. The proviso has also been added to the Section where the Court has been obliged to take
the assistance of an interpreter or a special educator in recording the statement and get the recording
of such statement video graphed, if the witness is unable to communicate verbally. In DA Jakati versus
State of Karnataka, (2005) Cr LJ 2687, where in the case of dumb and deaf witness the interpreter as
well as the witness have to be administered oath before recording the evidence of dumb witness and
the court while recording evidence of such witness must record both signs as well as the interpretation
of the interpreter for making the evidence of such witness to be admissible under this section.

Examination of Witness

Order of Production of Examination of Witnesses: Section 135

Section 135 lays down that the order in which the witnesses are to be produced shall be regulated by
the law and practice for the time being relating to civil and criminal procedures respectively. The order
of examination involves two things:
y which party is to examine his witnesses first;
y in what order the witnesses are to be examined by the party.
In civil cases, the party who has the right to begin, i.e., on whom the burden of proof lies examines
his witnesses. Since the Court has the power to prescribe the order in which witnesses are to be
examined, where a party is also a witness, the court can require him to give evidence before he
examines his other witnesses. If he is not willing to do so, the court can order him out of the court hall
when his other witnesses are giving evidence. In Shubh Karan versus Kedarnath, AIR 1941 All 314, it was
held that where a witness disobeys the order to be out of the court hall, he is guilty of contempt, but
his evidence cannot be excluded though the weight to be attached to his testimony will be a matter
of consideration.

Judge Has to Decide the Admissibility of Admission of Evidence

The first paragraph of Section 136 deals with relevancy and leaves it to the Court to decide its question.
Though confined to relevancy, the Judge is undoubtedly competent to rule on other objections. In
R versus Mona Puna, ILR 16 Bom 661, it was settled that the admissibility is rule and exclusion is
exception. The circumstances under which the other rules might operate to exclude the admissibility
under the Act have to be taken into consideration only in judging the values to be attached to evidence,
when admitted.
The second paragraph embodies the second principle of Section 136 which makes certain facts
conditionally admissible. In other words, proof of a fact is one which is admissible only upon proof of
some other fact.
The third principle, set out in the third paragraph of Section 136, where under the court may, in its
discretion, allow the first fact to be proved before the second fact and vice versa, when the relevancy
of the two facts is interdependent.

Indian Evidence Act, 1872 65

 Q. Difference between examination-in-chief, cross-examination and re-examination.

Section 137

Examination-In-Chief Cross-Examination Re-examination

The order of examination-in- The order of cross-examination The order of re-examination is

chief is first. is second. third.

It is examination of witness by a Examination of witness by Examination of witness to

person calling him. opposite party. remove inconsistency which
may have arisen during
examination-in-chief.

It is part and parcel of judicial It is most essential for It is not an essential part of
proceedings. extracting truth and is essential judicial proceedings.
part of judicial proceedings.

No leading questions can be Leading questions can be Leading questions cannot

asked. asked. be asked and no new matter
should be introduced without
permission of the Court.

Purpose of examination-in- Purpose of cross-examination Purpose of re-examination is

chief is to take such testimony is to test the veracity of witness to remove inconsistency, if any,
for which he is called by party. by impeaching his credit. which may have arisen during
the examination-in-chief.
In Banwari Lal versus State, AIR 1956 All 385, it was held that Section 137 and 138 are so connected
together that it would be convenient to deal with them together. Section 137 defines examination-
in-chief, cross-examination and re-examination. The mere reading of the section shows that the
examination of witnesses includes examination-in-chief, cross-examination and re-examination. This
was held to be a routine sequence in the examination of witness.

Examination-In-Chief
This is also known as direct examination. This examination of a witness is conducted by a party who
calls him in his examination-in-chief. Its objective is to elicit the truth, to prove the facts which bear
upon the issue in favour of the party calling the witness. The witness can give evidence of facts only
and no evidence of law. In civil cases, Order XVIII, Rule 4, the Code of Civil Procedure, 1908 provides
that in case, examination-in-chief of a witness shall be on affidavit. Though the examination-in-chief
is permissible to be produced in the form of affidavit, such affidavit cannot be treated as a part of
evidence unless the deponent enters the witness box and confirms that the contents of the affidavit
are as per his say and affidavit are under his signature. Such examination-in-chief is legal evidence.

Cross-Examination
The main objective of cross-examination is to find out the truth of detection of falsehood in human
testimony. It is designed either to destroy or weaken the force of evidence of a witness who has
already given evidence in person or to elicit something in favour of the party which he has not stated
or to discredit him by showing from his past history and present demeanour that he is untrustworthy
of credit. It is the most efficacious test to discover the truth. In Anita Sharma versus New India

66 Indian Evidence Act, 1872

Assurance Co, (2021) 1 SCC 171, it was held that the object of cross-examination is to impeach the
accuracy, credibility and general value of the evidence given in examination-in-chief, to sift the fact
already stated by the witnesses, to detect and expose discrepancies or to elicit the suppressed facts
which will support the case of cross-examining party. Section 138 of the Act does not mandate that
the cross-examination should be confined to the facts spoken examination-in-chief. The parties have
liberty to elicit everything from the witness as long as it is related to relevant facts.

Power of Court to Put Questions (Chapter X of the Indian Evidence Act, 1872)
In Ram Chander versus State of Haryana, AIR 1981 SC 1036, it was held that the court has the power to
put questions at any stage during the trial. When the court finds that the witnesses were not sticking
to the statement made by the under Section 161 or Section 164, the Code of Criminal Procedure, 1973
and were probably giving false evidence, they should not be rebuked or threatened that they would be
prosecuted for perjury, the court should always adopt the principle of fair trial. It was further held that
when a judge rebuked a witness and threatened him with prosecution of perjury, the whole trial was
held to be vitiated.

Leading Questions
Section 141 of the Act defined leading questions. Section 142 of the Act says that leading questions
must not be asked in examination in chief, if objected by the adverse party, unless the court grants
permission. In Gura Singh versus State of Rajasthan, AIR 2001 SC 330, it was held that a court can
permit a leading question as to matter which are introductory or undisputed or which have, in its
opinion, already been sufficiently proved.
Section 143 permits leading question in cross-examination of a witness. James Fitzjames Stephen in
his A Digest of the Law of Evidence (12th edition, Article 140) states “Leading questions is one which
either
1. suggests the answer desired,
2. or assumes the existence of disputed facts as to which the witness is to testify.”
In Varkey Joseph versus State of Kerela, AIR 1993 SC 1892, it was held that in criminal proceedings,
leading questions to prosecution witnesses in order to elicit suitable answers should not be allowed.
The prosecutor cannot put leading questions on the material part of the evidence which he intends
that the witness should give against the accused. Such leading questions offend the right of accused
of fair trial enshrined under Article 21 of the Indian Constitution.

Sections 142 and 154, the Indian Evidence Act, 1872

In Profulla Kumar versus Emperor, AIR 1931 Cal 401 (FB), the Calcutta High Court held that even without
granting permission under Section 154 to cross-examine the witness, the court can permit leading
questions to be put under Section 142 to his witness who turns hostile.

When Leading Questions May Not Be Asked?

Section 142 of the Act lays down that the leading questions should not be put in examination-in-chief
or re-examination, if they are objected to. The section provides exception to the general rule, thereby
allowing the parties to put examination-in-chief or re-examination by the court:
y as to the matter of introductory,
y which are undisputed, or
y which is in the opinion of the court have already been proved.

Indian Evidence Act, 1872 67

 In State of Kerala versus Vijayan Rajan, (1992) 1 KLT 878, it was held that there is no legal hurdle in
putting leading questions during examination-in-chief, without permission of court, if the opposite side
does not object to it. Need to obtain permission of court to put leading questions would arise only if in
the contingency where the opposite side taken objection. Even if the opposite side objects, the court
has wide discretion in allowing leading questions to be put. The second para to Section 142 of the Act
shows that the court has no discretion to disallow a leading question if it relates to undisputed matters
or introductory matters or matters already proved. The discretion to disallow or allow leading question
relates to matters other than those enumerated above.

Statement Recorded under Section 164, Code of Criminal Procedure, 1973

A previous statement of witness recorded under Section 164, Code of Criminal Procedure, 1973 can be
used as provided for by this section along with Section 155, but it cannot be used substantive evidence
of facts deposed to therein. In Krishna Bardola versus State of Assam, 2012 Cri LJ 4099, where it was
contended by the defence that there were contradictions between statements of prosecution, the
prosecutrix, recorded under Section 164 Code of Criminal Procedure, 1973 and her evidence in court
but while cross-examining the prosecution, the defence did not draw her attention to the contents of
her previous statement and she was not given any opportunity to have her say. It was held that the
plea of contradiction was not tenable and could not be used in favour of Accused.

Sections 145, 146, 155 and 157 Are Complementary to Each Other
In Kehar Singh versus State (Delhi Administration), AIR 1988 SC 1883, it was held that a bare perusal of
Sections 145, 155 and 157 of the Evidence Act clearly indicates that there are two purposes for which a
previous statement can be used. One is for cross-examination and contradiction, and the other is for
corroboration. When the defence wants to use the previous statement a witness, it could be used only
to contradict and not to corroborate.

Questions Lawful in Cross-Examination

Section 146 enables the cross-examiner to put certain questions, in addition to questions referred to
in earlier sections:
y to test his veracity,
y to discover who the witness is and what is his position in his life, or
y to shake his credit by injuring his character, although the answer to such questions might tend
directly or indirectly to criminate him. This section gives very wide powers to the cross-examiner
in addition to those given by Section 138. This section extends the power of cross examination far
beyond the limits of Section 138, Paragraph 2, which confines, facts, including fact-in-issue.
To test his veracity: A witness may be cross-examined not only as to the relevant facts but also
as to all facts which reasonably tend to affect the credibility of his testimony. The statements of a
witness being testimonial of their nature, it is right to subject them, to impeachment in the appropriate
ways. A witness may always be subjected to a strict cross-examination as a test of his accuracy, his
understanding, his integrity, his basis and his means of judging. In Ibrahim Husen versus State of Goa,
1989 Cri LJ 739, it was held that Section 133, 114 (illustration b) and 146 are to be read together, in
respect of evidence of an accomplice witness, as an accomplice is unworthy of credit, under Section
114 illustration (b), as a rule of prudence, corroboration in material particulars is required. Section 146
can properly be invoked to test his veracity and discover who is who and what his position in life and

68 Indian Evidence Act, 1872

to shake his is credit by injuring his character, as conduct of the accused and may also be capable of
supplying corroboration.
To discover who he is: It is common practice to make inquiry into the relationship of the witness with
the party on whose behalf he is called, business, social and family, and also to inquire as to his feeling
towards the party against whom his testimony is one party giving. This is permissible in order in a
proper light to place his testimony in a with reference to bias in favour of prejudice against the other.
To shake his credit: Clause (3) of Section 146 permits question in cross-examination to shake the credit
of a witness is for this purpose his character may be injured. The assault on character witness must be
directed only for the purpose of shaking his credit. The questions must relate to attack the credibility
witness in relation to the matter which involve and are relevant under one or other provisions of the
Evidence Act. It is to be noted that questions should not be directed towards laying bear with private
life of witness (Babu Rao Patel versus Bal Thackeray, 1978 Cr LJ 1937).
The object of law is to show the character of witness as to telling the truth. The credit of a witness
can be said to have been shaken only if it can be shown that he is not a man of veracity and that he
is of bad moral character.

When Witnesses to Be Compelled to Answer

According to Section 147, if any witness, is asked a question in cross-examination regarding his character
is that character is directly relevant in the proceedings, the witness is not protected from answering.
He will have to answer the question notwithstanding that the answer may criminate him, because
Section 132 is, made applicable to this case. A witness is compellable to answer every question put
to him in cross examination which is Section 147 empowers a court to compel a witness to reply to a
relevant question. If he refuses to answer a question, immediate action should be taken against him
in interest of fair trial. If the Court fails in its duty, it hangers the course of justice and brings it into
disrepute.
According to the observations made in the Law Commission of India, 185th Report on the Law of
Evidence, it can be said that a witness is compellable to answer every question put to him in cross-
examination which is relevant to the issue, unless protected by public policy, or privileged, or unless
the case in which oral evidence is excluded by documentary evidence. All cross-examination must be
relevant to the issues or to the witnesses’ credit.

Indecent and Scandalous Questions

Section 151 empowers the court to forbid indecent any question which are scandalous, unless they are
related to facts in issue or matters necessary to be known, to determine whether or not the facts in
issue existed, though such questions may have some bearing on the questions before the court. It is
important to take note that “What is relevant cannot be said to be scandalous”.
In Ashutosh versus Arun Jaitley, (2017) 165 DRJ 447, it was held that the principle that every litigation
party in a case, as well as every witness in a trial, civil or criminal, in court, is entitled to be treated with
regard and respect, and not subjected to insults, insinuation, and injury, is a preposition so elementary
as to obviate the necessity of reference to any further judicial authority in its support.
In Prakash Raja Ram versus State of Maharashtra, 1975 Cri LJ 1297 (Bom), it was held that indecent and
scandalous are questions can be allowed if they are of such nature that the truth of the imputation
conveyed by them would seriously affect the opinion of court as to the credibility of witness on the
matter to which witness testifies, but there must be necessity and foundation for such questions.

Indian Evidence Act, 1872 69

 Power to disallow questions should be effectively exercised by reference to Sections 146, 148, 150, 151
and 152 of the Act by excluding improper and impermissible questions. The examination of witnesses
should not be protracted, and the witness should not feel harassed. The cross-examiner must not
be allowed to bully or take unfair advantage of witness as the witness attends the court to discharge
sacred duty of rendering aid to justice. They are entitled to be treated with respect and it is the
foremost duty of the judge to see that they feel confident in the Court.

Questions Intended to Insult or Annoy

Section 152 empowers the court to forbid questions intended to insult, annoy or which proper in itself,
appears to the Court needlessly offensive in form. The difference between the two sections lies in the
fact that under Section 151, the Court cannot forbid indecent scandalous questions if they were related
to fact in issue however, under Section 152, though it appears to the Court that question is proper, but
it is offensive in form, the Court shall have to forbid it.

Hostile Witness—Question by Party to His Own Witness

Section 154 states that the Court in its discretion can allow a party to put any question to its own
witness which might be put in cross-examination by the opposite party. The Court is expected to find
out that the truth of the case put forward by both the parties. With that object this precision is made
empowering the court to use its discretion to allow a party to put questions to his own witness which
might be put in the cross-examination by the opposite party.
Thus, the witness can be asked:
y leading questions under Section 143 of the Act,
y questions relating to his previous statement under Section 145; and
y questions which tend to shake his veracity under Section 146.
In Bikram Ali versus Emperor, AIR 1950 Cal 139, it was held that a party not only may cross-examine
his own witness but with permission of the Court, may ask him leading questions. This is not the
same thing as cross-examination. Rankin, CJ, said “upon this I would make two observations first, the
reason why Section 154 does not say with the permission of court a party may cross-examine his own
witness is simply that this would in strictness be a contradiction in terms. Cross-examination means
an examination by the adverse party as distinct from the party who calls him. This I think is the whole
explanations of the use of phrase ‘put any question to him which might be put in cross examination
by adverse party’. The second observation is that while putting a question in leading form is not
necessarily tantamount to cross-examination, there is no doubt as to the power of a judge to give leave
to put leading a question to one’s own witness. This power is simply derived from the provision under
Section 142, (Second part)”.
In Re Vengala Reddyi, AIR 1956 AP 26, it was settled that it is not a legal procedure to declare a witness
hostile on the report of Public Prosecutor to the effect that he has been informed that the witness has
turned hostile. The inference of hostility of witness would be drawn from answer given by him and to
some extent from his demeanour.
In Khijuruddin versus Emperor, AIR 1926 Cal 139, it was held that before the party calling the witness
can cross-examine him, he must obtain the permission from the Court. The granting of permission is
entirely the discretion of the Court. The discretion must be exercised with caution and should not be
exercised without sufficient reason.

70 Indian Evidence Act, 1872

Value of Evidence of Hostile Witness
In Mohan Lal versus State of Punjab, AIR 2013 SC 2408, it is settled law that evidence of hostile witness
also can be relied upon to the extent to which it supports the prosecution version. Evidence of such
witness cannot be treated as waste of records. It remains admissible in the trial and there is no bar to
base his conviction, upon his testimony if corroborated by other reliable evidence.
In Javed Masood versus State of Rajasthan, AIR 2010 SC 979, it was held that when the prosecution
failed to seek permission of the Court to declare his witness hostile, his evidence instead of supporting
the prosecution supported the defence, there was nothing in law to preclude the defence to rely on
the evidence of such witness and his evidence was binding on the prosecution.

Impeaching Credit of Witness

Section 155 prescribes manner of impeaching the credit of witness. This section enables the practice
to give independent testimony as the characters of witness in order to indicate that he is unworthy of
belief by court. Its provision applies to both civil and criminal cases.
This section indicates four ways in which the credit of witness may be impeached by:
y by the adverse party, or
y with consent of the court by the party who calls him.
They are:
y evidence of person that witness is unworthy of credit,
y proof that witness:
⚪ has been bribed,
⚪ has accepted the offer of a bribe,
⚪ has received any other corruption inducement;
y former statement inconsistent with present evidence, and
y general immoral character of prosecutrix in case of rape or attempt to ravish.

Former Statement of Witness May Be Proved to Corroborate Later Testimony as to Same Fact
Section 157:
y A witness should have given testimony with respect to some fact.
y He should have made a statement earlier with respect to same fact at or about the time when the
fact took place or before any authority legally competent to investigate fact.
In Ram Prasad versus State of Maharashtra, AIR 1999 SC 1969, the Supreme Court said that Section
157 of Indian Evidence Act permits of proof of any former statement by a witness relating to same fact
before any authority legally competent to investigate the fact but the use is limited to corroboration
of the testimony of witness. The Court further held that the police is legally competent to investigate
any statement made to him during such investigation. It cannot be used to corroborate the testimony
of witness because of clear interdict contained in Section 162 of the Code.

Admission and Confession

An admission is a statement of fact waives or dispenses with the production of evidence by conceding
that the fact asserted by the opponent is true. If one party to a suit or any other proceeding process
that the other party has admitted his case, the work of court becomes easier.

Indian Evidence Act, 1872 71

 Value of Admission
y An admission constitutes a substantive piece of evidence in the case and for the reason can be
relied upon for proving the truth of the facts incorporated therein.
y An admission has the effect of shifting the burden of proof to the contrary on the party against whom
it is produced with the result that it casts an imperative duty on such party to explain it.
y Admissions are not conclusive proof of matters admitted, but they may operate as estoppel (Section
31).
In Ahmed Saheb versus Sayed Ismail, (2012) 8 SCC 516, admission of a party in the proceedings either
in the pleadings of oral is the best evidence and the same does not need any further corroboration.

Statement (genus)
Sub-species Admission (species)
Confession

Judicial and Extra-Judicial Admission

Judicial confessions are formal admissions made by a party during the proceedings of a case. Extra-
judicial admissions are informal admissions not appearing on the record of the case. Judicial admissions
are fully binding on the parties that make them. They constitute a waiver of proof. In Mritunjoy Sett
versus Jadunath Basak, AIR 2011 SC 2496, wherein it was held that an admission made in the court of
law is a valid and relevant piece of evidence to be used in other legal proceedings. Since an admission
originates (either orally or in written form) from the person against whom it is sought to be produced,
it is the best possible form of evidence.
In Ajodhya Prasad Bhargava versus Bhawani Shankar
Bhargawa, AIR 1957 All 1 (FB), it was held that extra-judicial
or informal admissions are also binding on the parties against
Admission by one defendant cannot
whom they are set-up. Unlike judicial admissions, however,
bind other co-defendant nor can it
they are binding only partially and not fully, except in cases
be evidence against them.
where they operate as or have the effect of estoppel; in
which case again, they are fully binding and may constitute
the foundation of the rights of the parties.
In Govindan Asari Kesavan Asari versus Sankaran Asari Balakrishnan Asari, AIR 1958 Ker 203, where a
defendant remained ex-parte in a suit, it was held that he cannot be deemed to have admitted the
claim. An admission to be binding person on a must be very specific and should not be vague and
secondly, an admission on a question of fact is binding party unless it is proved to be contrary been
successfully withdrawn.
Admission can be disproved: In Harikrishna Mandir Trust versus State of Maharashtra, AIR 2020 SC
3969, it was held that admission can be used against the maker it but it is open to the maker of
the admission to prove the admission as erroneous. A mistaken admission on law cannot operate as
estoppel as there can be no estoppel against a statute.
Admission to be taken as whole: Admission must be taken as a whole and not in part, or rejected as
whole. Statements in pleadings are admissions against them. A person cannot be the party making

72 Indian Evidence Act, 1872

heard to rely upon favourable parts and overthrow the rest of oral evidence. In Nishikant versus State
of Bihar, AIR 1969 SC 422, it was held by the Supreme Court that the Court has got power to reject
the exculpatory part of the confession, and it is not bound to believe or disbelieve the admission as a
whole, when there is other evidence is reliable.
In V Anantha Raju versus TM Narasimhan, 2021 SCC Online SC 696, it was held that an admission
made in the written statement about the execution of a dead would attract the principle contained in
Sections 91 and 92 of the Evidence Act, thereby barring oral evidence as to its contents.

Section 18: Admission by a Party to Proceedings or His Agent by Suitor in Representative

Character by Party Interested in Subject Matter by Person from Whom Interest Derived
Section 18 lays down five classes of persons who can make admission:
y party to the proceedings,
y agent authorised by such party,
y party suing or sued in representatives character, making admissions while holding such character,
y person who has any proprietary or pecuniary interest in the subject matter proceedings, during the
continuance of such interest?
y person from whom the parties to suit have derived their interest in the subject matter of the suit,
during the continuance of such interest.
In CREF Finance Ltd versus Shanthi Homes Pvt. Ltd Co., AIR 2006 Kant 54, it was held that under
Section 18 of the Evidence Act, an opportunity is given to the defendants to explain the admission if in
what situations those admissions were made. But however, this is a matter to be decided during the
course of trial if not at a stage, when the application is being considered under Order XII, Rule 6, the
Code of Civil Procedure, 1908.

Statement Made in Representative Character

Where the party sues or is sued in a representative character, i.e., trustee, executor, administrator, the
representative is different form the ordinary capacity and not only admissions made in former quality
are receivable.

Persons Having Proprietary or Pecuniary Interest

The rule is founded on the legal principle that persons seized jointly are seized of the whole. The
admission of one is the admission of another. In Azizullah Khan versus Ahmad Ali Khan, 7 All 343, it
was held that in general the statement of defence made by one defendant cannot be read in evidence
against his co-defendant. If it were allowed, the plaintiff might make one his friends a defendant
and thus may gain the most unfair advantage. It is plain, therefore, on principle and policy that the
statement of a co-party (while useable against him) is not useable against a co-party.

Admission of Persons Having Joint Interest

In Shri chand Gupta versus Guljar Singh, AIR 1992 SC 123, it was ordinarily settled that an admission
is evidence against party the making it. But admission of one party may be given in evidence against
another, when the admission is sought to be used has a joint interest with the party making the
admission, in the subject matter of the thing to which his admission relates the statement by a person
who has any proprietary or pecuniary interest in the subject matter of the proceedings or persons
having derivative interest during the continuance of admission or interest.

Indian Evidence Act, 1872 73

 Parties from Whom Title Derives
It must be borne in mind that the statement of one person is binding upon the other only when the
latter derives his title through the former.
For instance: A admits in a judicial proceeding that his deceased brother’s widow adopted C and C was
entitled to property left by A’s brother. After the death of widow of A’s brother, A’s sons filed a suit for
declaration that their uncle died leaving no son and that they were the reversioners. At the trial C tried
to prove the admission of A. It was held that the admission of A was not binding on the plaintiffs since
they claim in their own right and not through their father.

Section 19: Admission by a Person Whose Position Must Be Proved as against a Party to Suit
Under Section 19, the party to a suit can use the statement of even a third party, if that statement
of the third party contained an admission against the interest of third person and could have been
used against the third person if sued or was sued in connection with a matter involving the position of
liability affected by that admission.
For instance: The liability of A to pay B arises from the liability of C to B. Therefore if A states that
he owed rent to B will be admissible as against A, provided that the statement was made while the
liability against C was existing. If at the time when C admitted the liability when the debt against him
was time barred.

Section 20: Admission by Persons Expressly Referred by a Party to Suit

Section 20 is the second exception to the general rule laid down in Section 18. It deals with one class
of vicarious admission that demand of persons other that the parties where a party refer to a third
person for some information an opinion on a matter in dispute, the statements made by the third
persons as admission are receivable against person referring.
For instance: A says to B, “I will pay you sum of Rs 200”. If C says I owe it you, on reference C says, “A
owes Rs 200 to B”. This statement of C will be proved against as his admission under Section 20.

Section 21: Proof of Admission against Person Making Them, and by or on Their Behalf
Section 21 lays down the general rule that an admin may be used against a person who makes them
of his representative in interest, but admission cannot be proved by or on the behalf of the person
making it. In CBI versus VC Shukla, (1998) 3 SCC 410, the Supreme Court observed that “an admission is
not as evidence against others. An admission may become evidence against others only if amounts to
a confession. It may then be used evidence under Section 10 against co-conspirators or under Section
30 as the confession of a co-accused. The statement in a man’s diary implicating others also do not
amount to a confession unless there is a prima facie ground to believe that the diary keeper was in
conspiracy with others. It is only to be noted that the statement admission and can be proved against
the makers and not against others”.

Exceptions to Section 21
y First Exception: Statements Relevant under Section 32
Section 32 deals with relevancy of statements made by persons who cannot be called as witnesses.
This exception enables a person to prove his own statement where the circumstances are such that
if he were dead, the statement would have been relevant in a dispute between third parties under
Section 32.

74 Indian Evidence Act, 1872

y Second Exception: Statement as to Existence of Mind or Body
This clause shows that such facts or statements may be proved on behalf of the persons making
them, notwithstanding the general rule that person cannot make evidence for themselves by what
they choose to say.
The conditions for admissibility of such statements are:
⚪ The statement should have been made at or about the time when state of mind which is described
by the statement still existed.
⚪ The statement should be accompanied by conduct which renders the falsehood of the statement
improbable.
y Third Exception: Statement Relevant Otherwise than as Admission
A self-serving statement/admission may be proved by its maker if it is relevant under Sections 6
to 13, 32 and 34 otherwise than as an admission. A person may prove his own statement when it is
relevant under any of the provision relating to relevancy. A statement may be relevant either as an
admission of a relevant fact or as a proof of existence of fact.

Section 22, 22A and 23—Irrelevant Admissions

Section 22 states that oral admission as to the contents of a document are irrelevant. In Jai Gopal
Singh versus Divisional Forest Officer, AIR 1952 Pat 310, it was held that under Section 22, a party can
prove oral admission of contents of the documents when he proves that the document has been lost,
destroyed or that is in possession of the opposite party. Oral evidence of admission can also be given
when a document is produced and its genuineness is disputed.

Exceptions
y When a person is entitled to give secondary evidence of the contents of some documents, he will be
entitled to rely on an oral admission.
y Under Section 65, secondary evidence of contents of a document can be given where the original is
lost or when it is in possession of the opposite party and so on.

Admission in Civil Cases, When Relevant

The provision of Section 23 is applicable to civil cases only.
Admission

Sections 17–22A Section 23

Applies to both civil and Applies to civil proceedings only

criminal proceedings
It lays down that in civil cases if a person admits the liability upon an express condition that evidence
of such admission should not be given or if it is made in such circumstances that the court can infer
that there was some sort of agreement that the admission will not be proved in evidence in a case,
such admission will not be relevant and will not be allowed to be proved.

Indian Evidence Act, 1872 75

 Section 31: Admissions Not Conclusive Proof, but May Estop
Section 31 declares that admissions are not conclusive proof of matters admitted, but they may operate
as estoppel. An admission shifts the onus on the admitting the principle that what a party be presumed
to be true. Admissions are not conclusive and unless they constitute estoppel. The maker is at liberty
to prove that they are untrue or mistaken.
Q. Difference between admission and estoppel.

Admission Estoppel
It is statement oral or documentary or contained It is a rule of evidence which prevents a person
in electronic form which suggests any inference from retracting his earlier representation.
as to fact in issue or relevant fact.
It is not conclusive evidence. It is conclusive evidence.
It is the weakest kind of evidence. It is regarded as decisive evidence of high
quality.
The rules regarding admission are laid down The rules regarding estoppel are laid down under
under Section 17 to 23 and 31 of the Act. Sections 115 to 117 of the Act.
In some circumstances, the admission of third It operates only against person making
person binds the parties to suit (Sections 19 and representation and his legal heirs.
20).

Confession
The word ‘confession’ appears for the first time in Section 24 of the Indian Evidence Act. This section
comes under the heading of admission so it is clear that the confessions are merely one species of
admission. Confession is not defined in the Act. Justice Stephen in his A Digest of the Law of Evidence
defines confession as “confession is an admission made at any time by a person charged with a crime
stating or suggesting the inference that he committed that crime”.
In Pakala Narayana Swami versus King Emperor, AIR 1939 PC 47, Lord Atkin observed “A confession
must either admit in terms the offence or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in
itself a confession”.
In the case of Palvinder Kaur versus State of Punjab, AIR 1952 SC 354 the Supreme Court approved the
Privy Council decision in Pakala Narayan Swami case over two scores.
Firstly, that the definitions if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed-up statement which
even though contains some confessional statement will still lead to acquittal, is no confession. Thus,
a statement that contains self-exculpatory matter which if true would negate the matter or offence,
cannot amount to confession.

Admission and Confession

Sections 17 to 31 deals with admission generally and include Sections 24 to 30 which deal with
confession as distinguished from admission.

76 Indian Evidence Act, 1872

 Confession Admission

Confession is a statement made by an accused Admission usually relates to both civil and
person which is sought to be proved against criminal transactions and comprises all
him in criminal proceeding to establish the statements amounting to admission defined
commission of an offence by him. under Section 17 and made by person mentioned
under Sections 18, 19 and 20.

Confession if deliberately and voluntarily made Admissions are not conclusive as to the matters
may be accepted as conclusive of the matters admitted it may operate as an estoppel.
confessed.

Confessions always go against the person making Admissions may be used on behalf of the person
it. making it under the exception of Section 21 of
the Evidence Act.

Confessions made by one or two or more Admission by one of the several defendants in
accused jointly tried for the same offence can be suit is no evidence against other defendants.
taken into consideration against the co-accused
(Section 30).

Confession is statement written or oral which is Admission is statement oral or written which
direct admission of suit. gives inference about the liability of person
making admission.

Difference between Judicial and Extra-Judicial Confession

Judicial Confession Extra-Judicial Confession

Judicial confessions are those which are made Extra-judicial confessions are those which are
to a judicial magistrate under Section 164 of made to any person other than those authorised
the Code or before the court during committal by law to take confession. It may be made to
proceeding or during trial. any person or to police during investigation of
an offence.

To prove judicial confession the person to whom Extra-judicial confessions are proved by calling
judicial confession is made need not be called the person as witness before whom the extra-
as witness. judicial confession is made.

Judicial confession can be relied as proof of Extra-judicial confession alone cannot be relied
guilt against the accused person if it appears to it needs support of other supporting evidence.
the court to be voluntary and true.

A conviction may be based on judicial It is unsafe to base conviction on extra-judicial

confession. confession.

Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:
y that the statement in question is a confession,
y that such confession has been made by the accused,

Indian Evidence Act, 1872 77

 y that it has been made to a person in authority,
y that the confession has been obtained by reason of any inducement, threat or promise, proceeding
from a person in authority,
y such inducement, threat or promise must have reference to the charge against the accused, and
y the inducement, threat or promise must in the opinion of the court be sufficient to give the accused
ground, which would appear to him reasonable, for supporting that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Relevancy of Facts
Section 5 declares that in a suit or proceedings evidence may be given of the existence or non-
existence of:
y facts in issue, and
y of such facts as are declared to be relevant in the Sections 6 to 55 of the Act.
In Dwijesh versus Naresh, AIR 1945 Cal 492, it was held that a party trying to adduce particular evidence
has to show that the evidence desired adduced is to be relevant under one or more of the Sections 6 to
55 of the Act. However, a Court cannot on the ground of public policy, evidence relevant under this Act.
In Ram Bihari Yadav versus State of Bihar, AIR 1998 SC 1850, the Supreme Court held that more than
often, expression relevancy are used as synonyms and admissibility but their legal implications are
different which are relevant may not be admissible for instance, the communications made by spouse
during marriage, though relevant are not admissible.

Relevancy Admissibility

Based on probability and logic Not based on logic but on strict rules of law

Rules of relevancy are described under Sections Rules of admissibility are not described under
5–55 of the Act Sections 5–55 of the Act

Rule of relevancy declare what is relevant to be Rule of admissibly means that a Court can
proved permit the evidence to be given of a fact only if
it is relevant.

Facts which are relevant are not necessarily Facts which are admissible are necessarily
admissible relevant.

Rule of relevancy means relevant evidence. They Admissibility is the means and method to prove
may be admissible or not the relevant fact and to keep the evidence
limited to the relevant fact

Object: The object of Section 5 is to restrict the investigation made by courts within the bounds
prescribed by general convenience.

Admissibility of Evidence—Section 5 Read with Section 136

The Court is to decide the question of admissibility of evidence. It should be decided at it arises and
should not be reserved until judgement in the case is given. The moment a witness commences giving
evidence which is inadmissible; he should be stopped by the Court. A party objecting to a question
must do as soon as it is stated and before the answer is given. When an irrelevant document is
tendered, an objection should be made at that time. If, it is not taken in time, it is considered to be

78 Indian Evidence Act, 1872

waived. In Amarendra Komalam versus Usha Sinha, (2005) II SCC 25, it was held that an issue which
has been finally settled and therefore, attracts the bar of res-judicata, the evidence led on such issue
in a later part of the proceedings has been held to be not admissible.

Res gestae

Relevancy of Facts Forming Part of Some Transaction

Section 6 of the Act lays down that under any the definition of the word ‘relevant’ in Section 3, one fact
is said to be relevant to another when one is connected with the other in any of the ways referred to in
the provisions of the Act relating to the relevancy of fact. These particular ways which the law regards
as relevancy have been described under Sections 6 to 55 which deal with the relevant facts which are
not themselves in issue may affect the probability of the existence of facts in issue and be used as the
foundation of inferences respecting them; such facts are described in the Act as relevant facts. Even
hearsay statements are admissible under this section if they form part the transaction.
The test of admissibility of evidence as part res gestae is
whether the Act, declaration or exclamation is so intimately
Res gestae: “things done” or the interwoven or connected with the principal facts or even which
subject matter is characterised as to be regarded as a part of the transaction
itself and also whether it negatives any pre-meditation or
purpose manufacture testimony.
In Sukhar versus State, (1999) 9 SCC 507, it was held that Section 6 of the Act is an exception to the
general rule where under the hearsay evidence is admissible. For bringing hearsay evidence under
Section 6, it has to be established that it must be almost contemporaneous with the Acts and there
should not be an interval which would allow fabrication. The statements sought to be admitted,
therefore, as a forming part of res gestae, must made have been made contemporaneously with the
acts or immediately thereafter.
In Gentela Vijay Vardhan Rao versus State of Andhra Pradesh, AIR 1996 SC 2791, the accused sneaked
in to passenger bus with most inflammable liquid, petrol and match-box and then set it at blaze
as a result 23 passengers were roasted to death. The Magistrate recorded the statement of victim
under expectation death. In view of appreciable interval between act of carnage and the magistrates
recording of statement, the statement recorded by magistrate did not form part of res gestae.
As to form the part of same transactions: In order that different acts may constitute the same
transactions, they must be connected by proximity of time, proximity of unity of place, continuity of
action of community of purpose of design. It is essential to see whether they are so related to one
another in point of purpose, or as cause and effect, or as probable and subsidiary acts as to constitute
one continuous action.
Acts/omission as res gestae: whether in any case constitutes a transaction depends wholly on the
character of the act of circumstances of the case. Where the transaction consists of several physical
acts, in order that the claim of such acts may constitute the same transaction they may be connected
together by proximity of time/place, continuity of purpose.

Psychological Acts Forming Part of a Transaction

Psychological acts forming part of transaction or words accompanying physical acts may form the part
of the same transaction. The words spoken by the person doing the act, or by the person to whom they
done or by the bystanders were the bystanders are relevant as a part of same transaction.

Indian Evidence Act, 1872 79

 In Basanti versus State of HP, (1987) 3 SCC 227, where shortly after a murder, the person suspected of
the murder described the absence of the deceased by saying that he had left the village, the court held
that statement as a part of same transactions and thus relevant.

FIR When Res Gestae

The statement of an informant in an FIR is not substantive evidence and is admissible only to corroborate
(Section 157) or contradict (Section 155) the testimony of informant given in Court. An FIR may, however,
be admissible as part of the informant’s conduct (Section 8) or one of the Res Gestae (Section 6). In
Chander Kala versus Rai Kishan, AIR 1985 SC 1268, where the complainant narrated the incident to her
three colleagues next day of the occurrence, it was held that assuming that the complainant’s conduct
in narrating the occurrence to her three Colleagues is not res gestae and, hence, inadmissible under
Section 6, but the same when corroborated by other witnesses, is clearly admissible under Section 157.
In Meena versus State, (2020) 1 Mad WN Cri 305, where in the deceased had jumped off a moving train,
the Loco-Pilot and Grand testified that the chair was pulled while the train was proceeding to St.
Thomas Mount Railway Station and they were alighted to find out what had happened, the people who
had gathered there had told them a lady jumped out of the train. The Madras High Court concluded
that this would dearly fall within the meaning of res gestae evidence relevant under Illustration (a) to
Section 6 of the Evidence Act.

Facts Which Are the Occasion, Cause or Effect of Fact in Issue

Section 7 provides for the admission of several classes of facts which are connected with the transaction
under inquiry in particular modes, viz:
y as or cause of a fact; being the occasion, or cause of fact;
y as being its effects;
y as giving opportunity for its occurrence, and
y as constituting the state of things under which it happened.
A fact cannot be proved by showing that facts similar to it, but not part of same transaction, have
occurred at other times. Thus, when the question is, whether a person has committed a crime, the fact
that he had committed a similar crime before; is irrelevant. In Yusuf Ali versus State, AIR 1968 SC 147, it
was held that a contemporaneous tape record of a relevant fact and is Admissible under this section,
but such evidence must be received with caution.
In Vikram Singh versus State of Punjab, AIR 2017 SC 3227, it was held that if electronic record is used
as primary evidence the same is admissible-- in evidence, without compliance with the conditions of
Section 65B; the tape-recorded conversation recorded by the complainant contains ransom calls was
relevant under Section 7, and was primary evidence which was relied on by the complainant.

Motive, Preparation and Previous or Subsequent Conduct

Wharton states “Motive and intent are not synonyms. Motive is the inducing cause, while intent is
the purpose or mental state with which the criminal act is committed evidence of motive is always
relevant admissible although it is not necessary for the prosecution to offer evidence of Motive”.
In Darbara Singh versus State of Punjab, AIR 2013 SC 840, it was held that existence of motive for
committing a crime is not an absolute requirement of law, but is always a relevant factor, which will
be taken into consideration by courts as it will sender assistance to the courts while analysing the

80 Indian Evidence Act, 1872

prosecution evidence and determining the guilt of accused. Motive behind a crime is relevant fact
regarding which evidence maybe led.
In Mohan Ranganathan versus State of Maharashtra, 2011 Cri LJ 2725, it was held that existence of
probable motive and sufficiency of motive are altogether different aspects and particular reasons
offering/affording sufficient motives or otherwise would be differing from person to person and
for relationship between the victim and the offender, the prosecution in such a case governed by
circumstantial evidence is expected/required only to establish probable motive and not sufficiency of
the motive.
In R versus Palmer, (1856) 5 E&B 1024, it was held facts, such as the purchase of poison by someone
who is accused of murder, which suggest existence of plan or design, or preparation for a given course
of action may always be proved, and this evidence is of considerable weight because it calls for an
explanation of his conduct from the person against whom it is given.

Intention (Stage I)
↑
A completed act (Stage IV) ← Offence → Preparation (Stage II)
↓
Attempt (Stage III)
In State of Bihar versus Jagdish Narain, AIR 1959 Pat 379, it was observed that under the Indian
Penal Code, 1860 only the third and fourth stages are punishable. The first and second stages are not
punishable because the law allows locus poenitentiae only up to the second stage. An attempt is a
direct movement towards the commission, after preparation. There is greater degree of determination
in an attempt as compared with preparations.
In Kesavananda versus State of Kerala, AIR 1973 SC 1461, it was held that a person “commits the
offence” or “attempts to commit a particular offence”, when
y he intends to commit that particular offence, and
y he, having made preparations and with intentions to commit the offence does not act towards the
commission. Such an act need not be the penultimate Act towards the commission of that offence
but must be an Act during the course of committing that offence.
Conduct: The conduct of any party or his agent with respect to suit or proceedings will be scanned
under this section. A fact can be proved by this section. A fact can be proved by conduct of a party by
surrounding and circumstances. Statements accompanying or explaining conduct are also relevant as
explaining part of the conduct itself. Conduct to be relevant must directly influence or be influenced
by a fact in issue or relevant fact. It would not include actions resulting from some other intermediary
cause or circumstances [R versus Abdulla, ILR (1885) 7 All 385 (FB)]. In Kaniyan versus State, (2019) SCC
online Mad 16079, it was held that the complaint made by the deceased to her parents is relevant under
Section 8 of the Evidence Act, 1872, and her statement to them that the accused were demanding 40
sovereign of gold is relevant under Section 32, as dying declaration.

Section 8 vis-a-vis Section 27 and 162, the Code of Criminal Procedure, 1973
In Pankaj versus State of Rajasthan, (2016) 16 SCC 192, where the accused led the police and pointed
out the place where stolen articles or weapons, which might have been used in the commission of the
offence, and they were found hidden, it was held that the conduct of the accused is admissible under
this section, irrespective of the fact whether any statement by the accused contemporaneously with
or ante cede out to such conduct falls within the purview of Section 27 of the Act. In State of NCT of

Indian Evidence Act, 1872 81

 Delhi versus Navjot Sandhu, (2005) 11 SCC 660, the statement of accused made to police officer in
the course of investigation, is hit by 162, the Code of Criminal Procedure, 1973. What is excluded by
Section 162, the Code of Criminal Procedure, 1973, is the statement, and not the evidence relating to
the conduct when questioned by police officer. The conduct focused is not dealt by Section 27, but is
this section only relevant under this section.

Facts Necessary to Explain or Introduce Relevant Facts

In State of Bombay versus Kathi Kalu, AIR 1961 SC 1808, it was observed that when we deal with the
fact to expose to establish the identity of any person, at times it may be necessary the parts of body,
in which case the question would arise whether a person suspected of an offence can be compelled
to expose his body, and whether the right the suspect under the constitution would be violated. It
was held by the Supreme Court, that exposing parts of the body for purpose of identification does not
offend Article 20(3) of the Constitution.
In Heera versus State of Rajasthan, (2007) 10 SCC 175, the identification parades belong to the stage
of investigation, and there is no provision in the Code of Criminal Procedure, 1973 which obliges the
investigation agency to hold or confers a right upon the accused to claim, a Test Identification Parade
constituting no substantive evidence, these parades are essentially governed by Section 162, the Code
of Criminal Procedure, 1973. Failure to hold Identification Parade would not make inadmissible the
evidence of identification in the Court. The weight to be attached to such identification should be a
matter for the Courts of Fact. In appropriate cases it may accept the evidence of identification even
without insisting on corroboration.

Test Identification Parade

In Shyamal Ghosh versus State of West Bengal, AIR 2012 SC 3539, it was held that Test Identification
Parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard
to Test Identification Parade may be used the court for the purpose of corroboration. The purpose of
Test Identification Parade is to test and strengthen trust worthiness of the substantive evidence of
a witness in court. It is for that reason the Test Identification Parade is held under the supervision
of a magistrate to eliminate any suspicion or fairness and to reduce the chance of testimonial error
as the Magistrate is expected to take all possible precautions. Test Identification Parade is primarily
meant for the purpose of helping the investigation agency with an assurance that their progress with
the investigating is proceeding on the right lines. It is a tool of investigation and used primarily to
strengthen the case of the prosecution on the one hand and make double sure that the person
accused in the case are actually the culprits. Test Identification Parade conducted by magistrate is
preferred to identification conducted by any other person; the Magistrate’s identification memo is a
record of his statement which the identifier expressly or impliedly made before him. The statement is
a formal statement of the identifier, and it is usable normally for contradicting him under Section 145
or Section 155 of this Act, and also for corroborating him under Section 157. If it was made before the
police, it would be hit by Section 162 of the Code of Criminal Procedure, 1973 and would, therefore, not
be admissible for purposes of corroboration.
In Yakub Memon versus State of Maharashtra, (2013) 13 SCC 1, it was held that the evidence of Test
Identification Parade is not substantive evidence, but can be used for corroboration or contradiction.
The value of identifications very poor and it would be unsafe to rely on it solely for upholding the
conviction. It was further held that evidence of identification is weak evidence, and such it requires
corroboration from other evidence.

82 Indian Evidence Act, 1872

In Md. Kalam versus State of Rajasthan, AIR 2008 SC 1813, the court held that the identification should
be held as early as possible after arrest of accused, because the impression in the mind of witness
may fade in course of time. In the following cases, it was held that identification was valueless on
account of unreasonable delay. Whenever, there is delay in holding test identification, the prosecution
should explain it, and the absence of a reasonable explanation will detract from the value of the test.
If, however, circumstances are beyond control and there is some delay, it cannot be said to be is fatal
to the prosecution. There is no hard-and-fast rule about the period within which the test identification
parade must be held from the arrest of the accused.
In KC Peter versus State of Kerela, 2011 Cri LJ 3488, wherein it was held that non-conduct Test
Identification Parade is not a ground to discharge the accused at a premature stage. However, in the
instant case, in spite of the legal notice issued by the Investigation Officer, the accused did not care to
attend the Test Identification Parade. Therefore, it could not be said that no Test Identification Parade
was conducted.

Introductory or
explanatory facts

Facts which fix time and Section 9 Facts establishing identity

place of happening of anything or person

Support or rebut
inferences
Introductory Facts
Evidence is allowed to facts which are introductory of relevant facts are often of a great help in
understanding the real nature of the transactions, and in supplying missing link.

Illustrations (a)
The question is, whether a given document is the will of A. The state of A’s of property is of his family
at the date of alleged fact will may be a relevant.

Explanatory Facts
There is a kind of evidence which if considered separately and alone from other evidence would not
amount to anything; but if it is taken into consideration in connection with some other facts, proved in
the case it explains and illustrates them. Facts relevant which are necessary to explain a fact or fact
in issue are relevant under Section 9, Indian Evidence Act.

Illustration (f)
A is tried for a riot and is tried for riot is proved to have marched at the head of a mob. The cries of
the mob are relevant as explanatory of the nature of transaction.

Facts which Rebut and Support Inferences

Facts which support or rebut an inference suggested by a fact in issue or relevant fact are provable
under Section 9 though they are neither relevant as a fact in issue or relevant fact individually.

Indian Evidence Act, 1872 83

 Illustration (c)
A is accused crime, The fact that, soon after the commit of crime, A absconded from his house, is
relevant as conduct under Section 8, as subsequent to and affected by fact in issue. The fact at that
time when he left home he had sudden and urgent business at the place which he went, is relevant,
as tending to explain the fact that he left home suddenly.

Facts which Fix Time or Place of Happening

Under this section fact which are necessary to fix time of place of the occurrence are relevant. The fact
time or place becomes very important when the accused pleads alibi.
In Dudh Nath Pandey versus State of UP, (1981) 2 SCC 166, the Supreme Court has held that, the plea
of alibi postulates the physical impossibility of the presence of accused at the scene of the offence by
reason of his presence at another place. The plea can, therefore, succeed only if it is shown that the
accused was so far away at the relevant time that he could not be present at the place where crime
was committed.

Section 9 and Section 11, IEA

Section 11 states that “When facts not otherwise relevant becomes relevant are facts not otherwise
relevant:
y if they are inconsistent with fact in issue or relevant facts,
y if by themselves of in connection with other facts they make the existence or non-existence of any
fact in issue or relevant fact highly probable on improbable.”

Clause 1: Facts Inconsistent with Any Fact in Issue or Relevant Facts

One fact is said to be inconsistent with the other when it cannot co-exist with the other. For example,
the question is, whether A committed crime at Calcutta at a certain day. The fact that A was at Lahore
on that day is relevant as they cannot co-exist. It can be concluded that under first clause of Section
11 facts relevant only because they cannot exist with the relevant facts in issue. If their existence is
proved the existence of fact in issue or relevant facts are negatived.

Burden of Proof
In Mukesh versus State of NCT of Delhi, AIR 2017 SC 2161, where in a case of gang rape, one of the
accused took plea that he was attending the musical programme at park with his family on the date
of incident. The plea of alibi contradicted against evidence of injured informant, the dying evidence
declaration of prosecution, DNA analysis and finger print analysis. The evidence of the park authority
revealed that no permission by any authority to organise musical programme in the park and no such
programme was organised on the date of incident. The court held that the accused failed to establish
the plea of alibi. The burden squarely lies upon the accused person to establish the plea convincingly
by adducing cogent evidence.

Clause 2: Facts Making the Existence or Non-existence of My Fact in Issue or Relevant Fact,
Highly Probable or Improbable
This section makes admissible only those facts which are of great weight in bringing the court to a
conclusion one way or the other, as regards the existence or non-existence of the facts to be proved.
The admissibility under this section must, in each case, depend on how near the connection of the

84 Indian Evidence Act, 1872

facts is sought to be proved with the facts in issue and to what degree do they render facts in issue
probable or improbable when taken with other facts in the case.

Highly Probable
The term ‘highly probable’ is of great importance. Whether a fact is to be admitted under the clause
or not depends upon the weight to be given to such evidence. The term ‘highly probable’ means more
than normal standard of probability (B Choukhani versus WI Threatre, AIR 1957 Cal 709). For instance,
A is charged for forgery. It is tried to prove that the accused possessed many other forged documents.
The evidence is admissible.

Facts Showing Relation of Parties: Section 9 Read-with Section 50 and Section 32(5)
Facts showing relationship of parties by whom such facts are transacted are relevant.
Illustration (b): To prove whether a contract was made under undue influence or on free consent, the
facts showing that the relationship subsisting between the parties is of such a nature that one of them
is in a position to dominate over the will of another is relevant.

Section 50: Opinion on Relationship When Relevant

In order to admit the evidence under Section 50, following conditions must be fulfilled:
y There must be a case where the court has to form an opinion as to relationship of one person to
another.
y In such a case the opinion as to existence of such relationship is a relevant fact.
y The person/witness whose opinion is relevant must be able to give his opinion as expressed by
conduct only to not merely statements/words.
y The witness/person whose opinion expressed by conduct is relevant must be a person who as a
member of the family or otherwise has special means of knowledge on the particular subject of
relationship.

Section 32(5), Indian Evidence Act Section 50, Indian Evidence Act

What is admissible under Section 32(5) is the Under Section 50, the relevant fact is the
statement of a deceased person. opinion of alive person, expressed by conduct,
the qualification of special means of knowledge
being common to both these provisions.

Under Section 32(5), the statement must have Under Section 50, it is immaterial whether
been made before the question in dispute was the opinion was expressed before or after the
raised. controversy arose.

Section 10: Things Said or Done by Conspirator in Reference to Common Which Design
The basic principle which is underlined under Section 10 is the theory of agency and hence every
conspirator is agent of this association in carrying out the object of conspiracy. Section 10 renders
anything said or done or written by any one of the conspirators in reference to their common intention
as relevant fact not only as against each of the conspirators but proving the conspiracy itself. The only
condition for the application of the rule enshrined under Section 10 is that there must be reasonable
ground to believe that two or more persons have conspired together to commit an offence.

Indian Evidence Act, 1872 85

 Analysis of Section 10
The provision enshrined under Section 10 can be analysed as follows:
y there shall be prima facie evidence affording a reasonable ground for a court to believe that two or
more persons are members of a conspiracy;
y if the said condition is fulfilled, anything said, done or written by any of them in reference to their
common intention will be evidence against the others;
y anything said, done or written by him after the intention was by anyone of them;
y it would also be relevant for the said purpose against another, who entered the conspiracy, whether
it was said, done or written before he entered the conspiracy or after he left, and it can be used only
against a conspirator and not in his favour (Bhagwan Swarup versus State, AIR 1965 SC 682).
In Mirza Akbar versus Emperor, AIR 1940 PC 176, it was held that
the principle underlying the reception of evidence under Section
l0 of the Evidence Act of the statement, act and writing of one co-
Evidence of co-conspirators conspirator as against the other is one the theory of agency. The
outside the period of conspiracy rule in Section 10 of the Act confines that the principle of agency
is not receivable in evidence in criminal matters to the acts of co-conspirator confines that
(Sardul Singh versus State of principle of agency in criminal matters to the Act of co-conspirator
Bombay, AIR 1957 SC 747). within the period during which it can be said that acts were in
reference to their common intention that is to say, “things said,
done or written, while the conspiracy was on foot and in carrying
out the conspiracy”.

Section 12: In Suits for Damages, Facts Tending to Enable Count to Determine Amount Are
Relevant
Section 12 of the Act lays down that evidence tending to determine, i.e., to increase or diminish the
damages is admissible. This section enables the court to admit any facts which will help it to determine
the amount of damages which ought to be awarded to a party. Damages are the pecuniary satisfaction
which the plaintiff may obtain by success in an action.

Section 73, Indian Contract Act

It states the rules governing damages in actions in contract.

Section 55, Indian Evidence Act

It states the conditions under which evidence of character may be given in civil cases with a view to
award of damages.

Section 13: Facts Relevant When Custom or Right Is in Question

Section 13 states as to what facts are relevant and may be proved when the question at issue is
whether any right or customs exist.

Section 13, Clause (a)—Transaction Section 13, Clause (b) —Instances

Whether the question is as to whether a certain Whether the question is as to whether a certain
right or custom exists, any transaction by which right or custom exists, the particular instances
the right or custom in question was created, in which that right or custom was claimed,
claimed, modified, asserted or denied or which exercised, or in which its existence was disputed,
was inconsistent within its existence may be asserted, for departed from, may be proved.
proved.

86 Indian Evidence Act, 1872

Section 14: Facts Showing Existence of State of Mind, or of Body or Bodily Feeling
This section declares that facts which show the existence of any state of mind, such as intention,
knowledge, good faith, negligence, ill will, rashness, goodwill or body or bodily feelings are relevant
such state of mind or body or bodily feeling is in issue or relevant.

Section 15: Facts Bearing On Question Whether Act Was Accidental or Intentional
In Raghunath versus R, AIR 1919 Cal 1084, it was settled that Section 15 lays down rules as to admissibility
of evidence in cases where the question is whether a particular act was accidental or was done with a
particular intention of knowledge.

Section 16: Existence of Course Business When Relevant

Under Section 16, it has been laid down that when the existence of any of business is natural to
produce course a certain result, the mere proof of such existence of the course of business will give
a presumption that the result was produced. It is based upon the maxim omnia proesumuntur set
solemniser esse actus, i.e., all acts are presumed to have been done rightly and regularly.

Section 16 Read-with Section 32(2), Indian Evidence Act

Section 32(2): Statement Made in the Course Business

It deals with the relevancy of statements made in course of business by a person who is dead or
who cannot be found or has become incapable of giving evidence or whose attendance cannot be
procured without any amount of delay or expense which is unreasonable. This clause declares that
the statement made in the course of business is a better piece of evidence when it consists an entry
or memorandum made by such person in a book kept in ordinary course of business or in discharge
of professional duty or when it is an acknowledgment written or signed by such person of the receipt
of money, goods, securities or property of any kind or when this statement is about a date of letter or
other document usually dated, signed or written by him.

Opinion of Experts—Relevancy of Opinion of Third Persons

Section 45 of the Act is an exception to the rule as regards the exclusion of opinion evidence.
Opinion means something mere retaining of gossip or of hearsay, it means judgement or belief or
conviction resulting from what one thinks on a particular issue/question after researching on that
matter. Sections 45 to 51 lay down the principles and procedures about “opinion of third persons”,
when relevant.
Foreign law

Science or art Opinion of Experts Identity of finger

Relevant expression

Identity of
handwriting
Section 45: Opinion of Experts
Under Section 45, when the Court has to form an opinion upon a point of foreign law, or of science or
art as to identity of handwriting or finger impression, the opinion of persons especially skilled therein,
i.e., expert therein are relevant facts.

Indian Evidence Act, 1872 87

 Conditions for admissibility of expert evidence:
y the subject is such that Expert opinion is necessary, and
y that the witness in question is really an expert and that he is a truthful witness.
In Ramesh Chandra Agrawal versus Regency Hospital Ltd, AIR 2010 SC 806, it was held that opinion
of expert may not have any binding effect on the Court. The Court does not become functus officio
because of an expert opinion. It is not the province of the expert to Act as judge or jury. The ultimate
opinion has to be formulated by the court.
In Grid Corporation of Orissa Ltd versus Eastern Metals and Ferro Alloys, (2011) 11 SCC 334, it was settled
that the duty of expert is to depose and not to decide. The only function of the expert is to furnish the
date with necessary scientific criteria so as to enable the judge to come to independent conclusion.
Medical evidence vis-a-vis oral evidence: In Yogesh Singh versus Mahabeer Singh, 2017 Cri LJ 291,
it was held that evidentiary value of medical evidence is only corroborative and not conclusive and
hence, in case of conflict between the oral evidence and medical evidence, the former is said to be
preferred unless the medical evidence completely rules out the oral evidence.

Section 45A: Opinion of Examiner of Electronic Evidence

The explanation to this section explains the purpose behind the insertion of this Section, i.e., to extend
the status of an expert to the statutory office of Examiner of Electronic Evidence, created under
Section 79, Information Technology Act, 2000. In Anvar PV versus PK Basheer, (2014) 10 SCC 473, it was
held that only if the electronic record is duly produced in terms of Section 65B of the Act, would the
question arise as to the genius there of and in that situation, resort can be made to Section 45A, i.e.,
the opinion of examiner of electronic evidence.

Section 46: Facts Bearing upon Opinion of Experts

The opinion of an expert is open to corroboration or rebuttal. An exception to the general rule, which
lays down that evidence of collateral facts cannot be received, arises “where the question is a matter
of science, and where the facts proved, though not directly in issue, tend to illustrate the opinions of
scientific witnesses. Section 46 adopts a roundabout way of stating that the opinion of an expert to
corroboration or rebuttal and is based on the same principle as that of Section 11. Facts consistent or
inconsistent with expert opinion are admissible. The effect of Section 46 is that when the opinion of
an expert is relevant and any facts which will either support his opinion of contract it will also become
relevant.
Illustration (a): The question is, whether A was poisoned by a certain poison. The fact that other
persons who were poisoned by the poison, exhibited certain symptoms which experts affirms or deny
to be the symptoms of poison, is relevant.

Section 47: Opinion When Relevant as to Handwriting

Section 47 deals with the opinion of persons who are not experts, but the opinion of such person
is made admissible. Section 47 deals with identifications of handwriting under which an ordinary
witness who is acquainted with the handwriting of another may give his opinion as to the identity of
handwriting viz. its authorship.

88 Indian Evidence Act, 1872

 Section 45, Indian Evidence Act Section 47, Indian Evidence Act
It deals with opinion of an expert who is Under Section 47, Indian Evidence Act, opinion
especially skilled and trained in the science of of a person who is not an expert and skilled in
handwriting is made admissible. the science of handwriting is made admissible by
virtue of his acquaintance with the handwriting
or signature of the person by whom the
documents are supposed to have been signed or
written.

Section 47A: Opinion as to Electronic Signature When Relevant

This new section has been added so as to provide for relevancy of expert opinion on the genuineness
of an electronic signature. The purpose behind the insertion of this section is to extend the status of
an expert to the statutory office of the Certifying Authority which has issued the Electronic Signature
Certificate.

Section 48: Opinion as to Existence of Right or Custom When Relevant

Section 48 provides one of the modes of proving a custom and that is through the opinion of a person
likely to know of its existence.

Section 13 vis-a-vis Section 48

Section 13, Indian Evidence Act Section 48, Indian Evidence Act

It includes all kinds of rights/customs, public, It is limited to general rights and customs.
general and private.

It refers to particular facts which are relied on in It refers to the opinion of a person as to
support of the existence of right/custom. existence of general right/custom.

Landmark Judgements

Best Bakery Case—Protection of Witnesses

Zahira Habibulla H. Sheikh versus State of Gujarat
AIR 2004 SC 3114: 2004 (4) SCC 158: 2004 Cri LJ 2050: 2004 (4) SCALE 375
Decided on: 12-04-2004
Bench: Doraiswamy Raju and Arijit Pasayat
Facts: Unruly mob burnt down business concern known as “Best Bakery” at Vadodara between 8:30
p.m. on 01-03-2002 and 11 a.m. of 02-03-2002, wherein 14 persons died. Appellant was eyewitness
who lost her family members, helpless women and innocent children. Attacks were part of retaliatory
action to avenge killing of 56 persons burnt to death in Sabarmati Express near Godhra in Gujarat.
Many other people were eyewitnesses. After investigation charge sheet filed. Purported eyewitnesses
resiled from statements made during investigation. Trial court directed acquittal of accused persons.
Appellant appeared before NHRC stating she was threatened by powerful politicians, not to depose
against accused persons. State filed appeal against judgment of acquittal before Gujarat HC which
upheld acquittal of respondent accused.

Indian Evidence Act, 1872 89

 Appellant and one organisation, “Citizen for Justice and Peace” filed SLP challenging judgement of
acquittal affirmed by HC. NHRC moved SC and its SLP treated as petition under the Constitution.
Issue: Correctness of HC decision in acquitting accused and dismissing petition for adducing additional
evidence under Section 391 CrPC and direction for retrial of case.
Held: In the background of nature of additional evidence sought to be adduced and perfunctory manner
of trial conducted on basis of tainted investigation, fit and proper case where retrial is must and
essentially called for in order to save and preserve justice delivery system unsullied and unscathed by
vested interests.
—————

Polygraph Test: Medical Examination of Accused

Deepak Bajaj versus State of Maharashtra
AIR 2009 SC 628: 2008 (16) SCC 14: 2008 (14) SCALE 62: 2009 (3) MLJ 709
Decided on: 12-11-2008
Bench: Altamas Kabir and Markandey Katju
Facts: Legal question relates to involuntary administration of certain scientific techniques, viz,
narcoanalysis, polygraph examination and BEAP test for purpose of improving investigation efforts
in criminal cases. The involuntary administration of impugned techniques prompts questions about
protective scope of right against self-incrimination which finds place in Article 20(3) of the Indian
Constitution. These techniques are essentially confirmatory in nature, wherein inferences are drawn
from physiological responses of subject. In the context of criminal cases, reliability of scientific evidence
bears causal link with several dimensions of right to fair trial such as requisite standard of proving guilt
beyond reasonable doubt and right of accused to present defiance. The court must be mindful of fact
that these requirements have long been recognised as components of personal liberty under Article 21
of the Constitution.
Issue: Whether polygraph tests’ investigative use is justifiable and this test to accused amounts to
seemingly disproportionate intrusion into personal liberty.
Held: The Court highlights some practical concerns that strengthens case against involuntary
administration of tests in question. The claim that results obtained from these techniques will help
in extraordinary situation is questionable. All tests in question need to be patiently administered
and forensic psychologist has to be very skillful and thorough while interpreting results. If forcible
administration of these techniques permitted, it could be first step on very slippery slope as far as
standards of police behaviour are concerned. Claim that use of these techniques will only be sought in
cases involving heinous offences rings hollow since there will no principled basis for restricting their
use once investigations are given discretion to do so. This court has no authority to permit qualified
use of these techniques by way of enumerating offences which warrant their use. Permitting qualified
use by itself would amount to law, making function which is clearly outside judicial domain.
—————

90 Indian Evidence Act, 1872

 Admissibility of Electronically Recorded Evidence
RM Malkani versus State of Maharashtra
(1973) 1 SCC 47: AIR 1973 SC 157: 1973 (2) SCR 417
Decided on: 22-09-1972
Bench: AN Ray
Facts: The appellant was charged under Section 420/161/385/420/511 IPC for attempt to obtain from
Dr Adatia through Dr Motwani illegal gratification for doing or forbearing to do official acts by putting
him in fear of injury of body, mind, and reputation and attempted dishonestly to induce them to pay
the sum of money.
Issues: Admissibility of tape-recorded conversation obtained illegally. Whether the conversation
exchanged during investigation hit by Section 162 CrPC?
Held: Electronically recorded evidence is relevant therefore can be admissible in court.
Tape recorded conversation is admissible, provided: firstly, the conversation is relevant to the matters
in issue, secondly, there is identification of the voice and thirdly, the accuracy of the tape-recorded
conversation is proved by eliminating the possibility of erasing the tape recorder.
The tape-recorded conversation is, therefore, a relevant fact under Section 8 of the Evidence Act
and is admissible under Section 7 of the Evidence Act. It was further held that the tape-recorded
conversation is not within the vice of Section 162 of CrPC. It was said that the tape-recording was
during investigation. Sections 161 and 162 of the CrPC indicate that there is investigation when the
police officer orally examines a person. The telephonic conversation was between Dr Motwani and the
appellant, where each spoke to the other. Neither made a statement to the police officer. Therefore,
there was no mischief of Section 162 CrPC.
—————

Plea of Alibi – The Burden of Proof Lies upon Accused

to Prove Plea of Alibi
Dudh Nath Pandey versus State of UP
(1981) 2 SCC 166: AIR 1981 SC 911: 1981 (2) SCR 771
Decided on: 11-02-1981
Bench: YV Chandrachud
Facts: It was alleged by the prosecution that when the appellant, who was living as a tenant in out-
house of the bungalow belonging to the family of the deceased, developed a fancy for the sister of
the deceased. His overtures created resentment in the family and the deceased decided to prevent
the appellant from pursuing his sister. Prior to the day of the occurrence the appellant was alleged to
have threatened to kill the deceased if he opposed his marriage with deceased’s sister. It was further
alleged that while the deceased was returning home on his scooter after leaving his sister in the school
where she was working as a teacher, the appellant fired a shot at him with a pistol and he died on the
spot. The appellant was booked under Section 302 IPC for committing murder.
Issues: Whether the appellant is discharged from onus to prove his defence beyond reasonable doubt?
Held: Alibi is a Latin term which means elsewhere. The plea of alibi postulates the physical impossibility
of the presence of the accused at the scene of offence by reason of his presence at another place. The

Indian Evidence Act, 1872 91

 plea can therefore succeed only if it is shown that the accused was so far away at the relevant time
that he could not be present at the place where the crime was committed.
—————

Admissibility and Credibility of Test Identification Parade

Raju Manjhi versus State of Bihar
SCC OnLine SC 778, 2018
Decided on: 02-08-2018
Bench: NV Ramana
Facts: As it was alleged that appellant along with a group of assailants attacked the house of X and
decamped with jewellery, cash and gold. When the inmates of the house tried to protest, injuries were
caused to them and one of the inmates succumbed to the injuries. Assailants stole all the cash and
jewellery kept at the house.
Issue: Whether the non-identification of appellant/accused vitiates the entire case of prosecution?
Held: Test Identification Parade (TIP) is a process to examine the credibility of witness to identify
the unknown person. Identification tests do not constitute substantive evidence. The purpose of
identification test is only to help the investigating agency as to whether the investigation into the
offence is proceeding in the right direction or not. It was held that non-identification of the appellant
by any prosecution witness would not vitiate the prosecution case.
—————

Golden Principles of Circumstantial Evidence

Gagan Kumar Kanojia versus State of Punjab
(2006) 13 SCC 516
Decided on: 24-11-2006
Bench: SB Sinha, Markandey Katju
Facts: The appellants were booked under Section 364/201/302/34 IPC for kidnapping and murdering
two children, while one of the appellants made extra-judicial confession to his father.
Issues: Whether the investigation agency and prosecution can prove the commission of an offence
with no direct evidence.
Held: As far as ‘circumstantial evidence’ is concerned some golden principles have been stated by the
court are as follows:
1. There must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.
2. Circumstantial evidence can be reasonably made the basis of an accused person’s conviction
if it is of such character that it is wholly inconsistent with the innocence of the accused and is
consistent only with his guilt.
3. There should be no missing links but it is not that every one of the links must appear on the
surface of the evidence, since some of these links may only be inferred from the proven facts.
4. On the availability of two inferences, the one in favour of the accused must be accepted.

92 Indian Evidence Act, 1872

5. It cannot be said that prosecution must meet any and every hypothesis put forward by the accused
however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be
rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and
not otherwise.
—————

Relevancy of Extra-Judicial Confession

Sahadevan versus State of Tamil Nadu
(2012) 3 SCC (Cri )146
Decided on: 08-05-2012
Bench: AK Patnaik, Swatanter Kumar
Facts: X hatched a conspiracy in darkness with Y & Z in order to commit murder of X’s sister’s husband.
The assailants were booked under Section 302/120B IPC and one of them made an extra-judicial
confession.
Issue: Can extra-judicial confession be the sole basis of conviction?
Held: The Court was of the view that extra-judicial confession is a weak type of evidence and the
authority must ensure that the same inspires confidence and is corroborated by other prosecution
evidence. It must be established to be true and made voluntarily and in a fit state of mind. The words
of the witnesses must be clear, unambiguous and should clearly convey that the accused is the
perpetrator of the crime. The value of evidence as to confession, like any other evidence, depends upon
the veracity of the witness to whom it has been made.
—————

Last Seen Theory

Nizam versus State of Rajasthan
(2016) 1 SCC 550
Decided on: 04-09-2015;
Bench: Dipak Misra, R Banumathi
Facts: A, (victim/deceased) a truck helper had gone for supply along with B in truck-1 and C & D
(appellants on the present case) were truck driver and helper for the truck-2. Meanwhile, B was
detained by police due to his involvement in some quarrel with locals and thus instructed A to move
along C and D and handover a sum of Rs 20000/- to the truck owner. Later A was found dead, and C &
D were booked under Section 302/201 IPC for committing murder and destroying evidence.
Issue: Whether the burden to prove “last seen alive” casted upon prosecution?
Held: Onus to prove a particular fact is on the accused under Section 106 of IEA, especially to the facts
within his/her knowledge. The provisions of Section 106 of the Evidence Act itself are unambiguous
and categorical in lying down that when any fact is especially within the knowledge of a person, the
burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must
offer an explanation as to how and when he parted company. He must furnish an explanation which
appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged
his burden. If he fails to offer an explanation based on facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of the Evidence Act.
—————

Indian Evidence Act, 1872 93

 Supreme Court Guidelines

Trial of Sexual Abuse/Assault/Rape Cases

Sakshi versus Union of India
AIR 2004 SC 3566: 2004 (2) ALD Cri 504: 2004 (5) SCC 518: 2004 (6) SCALE 15
Dated: 26-05-2004
Bench: Justices Rajendra Babu and GP Mathur
Guidelines were issued regarding trial of sexual abuse/assault/rape cases:
1. The provisions of sub-section (2) of Section 327 CrPC shall in addition to the offences mentioned
in the sub-section would also apply in inquiry or trial offences under Sections 354 and 377 IPC.
2. In holding trial of child sex abuse or rape:
a. A screen or some such arrangements may be made where the victim or witnesses (who may
be equally vulnerable like the victim) do not see the body or face of the accused.
b. The questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident, should be given in writing to the Presiding Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not embarrassing.
c. The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient
breaks as and when required.
—————

Trial of Rape Cases in Camera

State of Punjab versus Gurmit Singh
(1996) 2 SCC 384: AIR 1996 SC 1393: 1996 Cri LJ 1728: 1996 (1) SCR 532
Dated: 16-01-1996
Bench: AS Anand and S Saghir Ahmad
Enquiry and trial of a rape case is to be conducted by the court in camera. Directions are as follows:
“Trial of rape cases in camera should be the rule and an open trial in such cases an exception.”
Duty of the Court to Conduct the Trial of Rape Case In-Camera: The expression that the inquiry into
and trial of rape “shall be conducted in-camera” as occurring in sub-Section (2) of Section 327 CrPC is
not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases,
etc., invariably “in-camera”. The Courts are obliged to act in furtherance of the intention expressed by
the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of
Section 327(2) and (3) CrPC and hold the trial of rape cases in-camera. It would enable the victim of
crime to be a little more comfortable and answer the questions with greater ease in not too familiar
surroundings.
Trial In-Camera to Assist the Court: Trial in-camera would not only be in keeping with the self-respect
of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of
the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she
may be in an open court, under the gaze of public. The improved quality of her evidence would assist
the courts in arriving at the truth and sifting truth from falsehood.
Trail In-Camera Not to Get Published: The High Courts would therefore be well advised to draw the
attention of the trial courts to the amended provisions of Section 327 CrPC. When trials are held

94 Indian Evidence Act, 1872

in camera, it would not be lawful for any person to print or publish any matter in relation to the
proceedings in the case, except with the previous permission of the Court as envisaged by Section
327(3) CrPC. This would save any further embarrassment being caused to the victim of sex crime.
Trials to Be Conducted by Lady Judges: Wherever possible it may also be worth considering whether it
would not be more desirable that the cases of sexual assaults on the females are tried by lady judges,
wherever available, so that the prosecutrix can make her statement with greater ease and assist the
Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid
technicalities while appreciating evidence in such cases.
Avoid Disclosing the Name of the Prosecutrix: The Courts should, as far as possible, avoid disclosing
the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime.
The anonymity of the victim of the crime must be maintained as far as possible throughout.
—————

Trial of Rape Cases

Delhi Domestic Working Women’s Forum versus Union of India
(1995) 1 SCC 14: JT 1994 (7) 183: 1994 (4) SCALE 608: 1995 (1) BLJR 1
Dated: 19-10-1994
Bench: S Mohan, MN Venkatachalliah, SB Majmudar
Parameters in assisting the victims of rape:
1. The complainants of sexual assault cases should be provided with legal representation. It is
important to have someone who is well-acquainted with the criminal justice system. The role of
the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to
prepare her for the case and to assist her in the police station and in court but to provide her with
guidance as to how she might obtain help of a different nature from other agencies, for example,
mind counselling or medical assistance. It is important to secure continuity of assistance by
ensuring that the same person who looked after the complainant’s interests in the police station
represents her till the end of the case.
2. Legal assistance will have to be provided at the police station since the victim of sexual assault
might very well be in a distressed state upon arrival at the police station, the guidance and support
of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
3. The police should be under a duty to inform the victim of her right to representation before
any questions were asked of her and that the police report should state that the victim was so
informed.
4. A list of advocates willing to act in these cases should be kept at the police station for victims who
did not have a particular lawyer in mind or whose own lawyer was unavailable.
5. The advocate shall be appointed by the court, upon application by the police at the earliest
convenient moment, but to ensure that victims were questioned without undue delay, advocates
would be authorised to act at the police station before leave of the court was sought or obtained.
6. In all rape trials anonymity of the victim must be maintained, as far as necessary.
7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatised to continue in employment.

Indian Evidence Act, 1872 95

 8. Compensation for victims shall be awarded by the court on conviction of the offender and by
the Criminal Injuries Compensation Board whether a conviction has taken place. The Board will
take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the
expenses of child birth if this occurred as a result of the rape.
—————

Admissibility of an Un-registered Document

M/s KB Saha and Sons Pvt. Ltd. versus M/s Development Consultant Ltd.
(2008) 8 SCC 564: 2008 (9) SCALE 490: 2008 (8) SCR 290: 2008 (68) AIC 78
Civil Appeal Nos. 5659-5660 of 2002
Dated: 12-05-2008
Bench: AK Mathur and Tarun Chatterjee
1. A document required to be registered is not admissible in evidence under Section 49 of the
Registration Act.
2. Such unregistered documents can however be used as evidence of collateral purpose as provided
in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which
the law required registration.
4. A collateral transaction must be a transaction not itself required to be affected by a registered
document, that is, a transaction creating, etc. any right, title or interest in immoveable property of
the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be
admitted in evidence and that to use a document for the purpose of proving an important clause
would not be using it as a collateral purpose.
6. That a document required to be registered, if unregistered, can be admitted in evidence as evidence
of a contract in a suit for specific performance.
Note: Principle stated in clause (6) has been added in the case of S Kaladevi versus VR Somasundaram,
AIR 2010 SC 1645.
—————

Blood Test Determining Paternity

Goutam Kundu versus State of West Bengal
AIR 1993 SC 2295: 1993 (3) SCR 917: 1993 Cri LJ 3233: 1993 (3) SCC 418
Dated: 14-05-1993
Bench: S Mohan and AM Ahmadi
Issues: Whether blood group test is a useful test to determine the question of disputed paternity?
“Blood grouping test have their limitation; they cannot possibly establish paternity however they can
only indicate its possibilities.”
Court clearly states that:
1. That Courts in India cannot order blood test as matter of course.
2. Wherever applications are made for such prayers in order to have roving inquiry, the prayer for
blood test cannot be entertained.

96 Indian Evidence Act, 1872

3. There must be a strong prima facie case in that the husband must establish non-access in order
to dispel the presumption arising under Section 112 of the Evidence Act.
4. The Court must carefully examine as to what would be the consequence of ordering the blood
test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste
woman.
5. No one can be compelled to give a sample of blood for analysis.
—————

Circumstantial Evidence—Golden Principles

Sharad Birdhichand Sarda versus State of Maharashtra
AIR 1984 SC 1622: 1985 (1) SCR 88: 1984 (4) SCC 116: 1984 Cri LJ 1738
Dated: 17-07-1984
Bench: SM Fazalali, Syed Murtaza, A Varadarajan
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based
on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must or should’
and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may
be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade
and Anr. versus State of Maharashtra where the following observations were made:
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before
a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides
vague conjectures from sure conclusions.”
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused.
They should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
—————

Circumstantial Evidence—Test
Padala Veera Reddy versus State of Andhra Pradesh
AIR 1990 SC 79: 1990 (1) UJ 137 SC: 1990 Cri LJ 605: 1989 (2) SCALE 906
Dated: 26-10-1989
Bench: M Dutt, S Pandian, V Ramaswamy
This Court in a series of decisions has consistently held that when a case rests upon circumstantial
evidence such evidence must satisfy the following tests:
1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established.
2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused.

Indian Evidence Act, 1872 97

 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused
and no one else.
4. The circumstantial evidence to sustain conviction must be complete and incapable of explanation
of any other hypothesis than that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent with his innocence.
Relevant cases: Gambhir versus State of Maharashtra, (1982) 2 SCC 351: AIR 1982 SC 1157; Rama Nand
versus State of Himachal Pradesh, (1981) 1 SCC 511: AIR 1981 SC 738; Prem Thakur versus State of
Punjab, (1982) 3 SCC 462: AIR 1983 SC 61; Earabhadrappa versus State of Karnataka, (1983) 2 SCC 330;
Balvinder Singh versus State of Punjab, (1987) 1 SCC 1; Chandrakant Ganpat Sovitkar versus State of
Maharashtra, AIR 1974 SC 1290.
“It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may
be.”
—————

Judicial and Extra Judicial Confession

Chattar Singh versus State of Haryana
AIR 2009 SC 378: (2008) 14 SCC 667: 2009 Cri LJ 319: 2008 (11) SCALE 674
Criminal Appeal No. 180 of 2001
Dated: 26-08-2008
Bench: Arijit Pasayat and Mukundakam Sharma
Confessions may be divided into two classes, i.e., judicial and extra-judicial.
Judicial Confession: Judicial confessions are those which are made before a Magistrate or a Court in
the course of judicial proceedings. Extra-judicial confessions are those which are made by the party
elsewhere than before a Magistrate or a Court. Extra-judicial confessions are generally those that are
made by a party to or before a private individual which includes even a judicial officer in his private
capacity. It also includes a Magistrate who is not especially empowered to record confessions under
Section 164 of the Code of Criminal Procedure, 1973 (for short the ‘Code’) or a Magistrate so empowered
but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-
judicial confessions, two questions arise:
1. Were they made voluntarily?, and
2. Are they true? As the Section enacts, a confession made by an accused person is irrelevant in
criminal proceedings, if the making of the confession appears to the court to have been caused by
any inducement, threat or promise,
a. Having reference to the charge against the accused person,
b. Proceeding from a person in authority, and
c. Sufficient, in the opinion of the court to give the accused person grounds which would appear
to him reasonable for supposing that by making it he would gain any advantage or avoid any evil
of a temporal nature in reference to the proceedings against him. It follows that a confession
would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by
any inducement, threat or promise which has reference to the charge against him, proceeding
from a person in authority. It would not be involuntary, if the inducement,

98 Indian Evidence Act, 1872

 i. Does not have reference to the charge against the accused person; or
ii. It does not proceed from a person in authority; or
iii. It is not sufficient, in the opinion of the court to give the accused person grounds which
would appear to him reasonable for supposing that, by making it, he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against
him.
Whether or not the confession was voluntary would depend upon the facts and circumstances of
each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’).
The law is clear that a confession cannot be used against an accused person unless the court is
satisfied that it was voluntary and at that stage the question whether it is true or false does not arise.
If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the
veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if
it is admissible in evidence. One important question, in regard to which the court has to be satisfied
with is, whether when the accused made the confession, he was a free man, or his movements were
controlled by the police either by themselves or through some other agency employed by them for the
purpose of securing such a confession. The question of whether a confession is voluntary or not is
always a question of fact. All the factors and all the circumstances of the case, including the important
factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement
or promise, must be considered before deciding whether the court is satisfied that in its opinion the
impression caused by the inducement, threat or promise, if any, has been fully removed. A free and
voluntary confession is deserving of the highest credit because it is presumed to flow from the highest
sense of guilt (see R versus Warickshall). It is not to be conceived that a man would be induced to
make a free and voluntary confession of guilt, so contrary to the feelings and principles of human
nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly
proved, are among the most effectual proofs in law. An involuntary confession is one which is not the
result of the free will of the maker of it. So, where the statement is made because of harassment and
continuous interrogation for several hours after the person is treated as an offender and accused,
such statement must be regarded as involuntary. The inducement may take the form of a promise or
of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if
disclosure is made and threat of prosecution if it is not (see Woodroffe’s Evidence, 9th Edn., p. 284).
A promise is always attached to the confession alternative while a threat is always attached to the
silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise,
minus the general undesirability of a false confession, as against the present unsatisfactory situation;
while in the other case he is measuring the net advantages of the present satisfactory situation, minus
the general undesirability of the confession against the threatened harm. It must be borne in mind
that every inducement, threat, or promise does not vitiate a confession. Since the object of the rule
is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or
promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the
court is to determine the absence or presence of an inducement, promise, etc., or its sufficiency and
how or in what measure it worked on the mind of the accused. If the inducement, promise, or threat
is sufficient in the opinion of the court, to give the accused person grounds which would appear to
him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is
enough to exclude the confession. The words “appear to him” in the last part of the Section refer to
the mentality of the accused.

Indian Evidence Act, 1872 99

 Extra-Judicial Confession: An extra-judicial confession, if voluntary and true and made in a fit state
of mind, can be relied upon by the court. The confession will have to be proved like any other fact.
The value of the evidence as to confession, like any other evidence, depends upon the veracity of
the witness to whom it has been made. The value of the evidence as to the confession depends
on the reliability of the witness who gives the evidence. It is not open to any court to start with a
presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature
of the circumstances, the time when the confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can be relied upon and conviction can be founded
thereon if the evidence about the confession comes from the mouth of witnesses who appear to
be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought
out which may tend to indicate that he may have a motive of attributing an untruthful statement to
the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey
that the accused is the perpetrator of the crime and nothing is omitted by the witness which may
militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone
of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it
passes the test of credibility.
—————

Criminal Conspiracy
Saju versus State of Kerala
AIR 2001 SC 175: (2001) 1 SCC 378: 2001 Cri LJ 102: 2000 SCR 621
Appeal (Crl.) 699 1998
Dated: 15-11-2000
Bench: KT Thomas and RP Sethi
Issue: Offence of conspiracy: Charge of criminal conspiracy-abetment or criminal conspiracy;
1. To prove the charge of criminal conspiracy the prosecution is required to establish that two or
more persons had agreed to do or caused to be done, an illegal act or an act which is not illegal,
by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or
is merely incidental to that object. To attract the applicability of Section 120B it has to be proved
that all the accused had the intention and they had agreed to commit the crime. There is no doubt
that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be
available. It is also not necessary that each member to a conspiracy must know all the details of
the conspiracy.
2. The offence of criminal conspiracy under Section 120A is a distinct offence introduced for the
first time in 1913 in Chapter VA of the Penal Code. The very agreement, concert or league is the
ingredient of the offence. It is not necessary that all the conspirators must know each detail of
the conspiracy as long as they are co-conspirators in the main object of the conspiracy. There may
be so many devices and techniques adopted to achieve the common goal of the conspiracy and
there may be division of performances in the chain of actions with one object to achieve the real
end of which every collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means sometimes even
unknown to one another, amongst the conspirators. In achieving the goal several offences may be
committed by some of the conspirators, even unknown to the others. The only relevant factor is
that all means adopted, and illegal acts done must be and purported to be in furtherance of the

100 Indian Evidence Act, 1872

 object of the conspiracy even though there may be sometimes misfire or overshooting by some of
the conspirators. Even if some steps are resorted to by one or two of the conspirators without the
knowledge of the others it will not affect the culpability of those others when they are associated
with the object of the conspiracy.
3. The gist of the offence is an agreement to break the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal act, agreed to be done has not been done. So too,
it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It
may comprise the commission of several acts. Under Section 43 of the Indian Penal Code, an act,
would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused
are charged with having conspired to do three categories of illegal acts, and the mere fact that
all of them could not be convicted separately in respect of each of the offences has no relevancy
in considering the question whether the offence of conspiracy has been committed. They are all
guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may
be liable.
4. In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was
directly and personally connected with the acts or omissions attributable to the crime committed
by him. It is a settled position of law that act, or action of one of the accused cannot be used
as evidence against other. However, an exception has been carved out under Section 10 of the
Evidence Act, in the case of conspiracy. To attract the applicability of Section 10 of the Evidence
Act, the Court must have reasonable ground to believe that two or more persons had conspired
together for committing an offence. It is only then that the evidence of action or statement made
by one of the accused could be used as evidence against the other.
5. This Section mainly could be divided into two: the first part talks of where there is reasonable
ground to believe that two or more persons have conspired to commit an offence or an actionable
wrong, and it is only when this condition precedent is satisfied that the subsequent part of the
Section comes into operation and it is material to note that this part of the Section talks of
reasonable grounds to believe that two or more persons have conspired together and this evidently
has reference to Section 120A where it is provided “when two or more persons agree to do, or
cause to be done”. This further has been safeguarded by providing a proviso that no agreement
except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore
necessary that a prima facie case of conspiracy must be established for application of Section 10.
The second part of Section talks of anything said, done or written by any one of such persons in
reference to the common intention after the time when such intention was first entertained by
any one of them is relevant fact against each of the persons believed to be so conspiring as well
for the purpose for proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it. This second part permits the use of evidence which otherwise
could not be used against the accused person. It is well settled that act or action of one of the
accused could not be used as evidence against the other. But an exception has been carved out in
Section 10 in cases of conspiracy. The second part operates only when the first part of the Section
is clearly established, i.e., there must be reasonable grounds to believe that two or more persons
have conspired together in the light of the language of Section 120A. It is only then the evidence of
action or statements made by one of the accused could be used as evidence against the other.
6. This Section, as the opening words indicate will come into play when the Court is satisfied that
there is reasonable ground to believe that two or more persons have conspired together to commit
an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person

Indian Evidence Act, 1872 101

 was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a
reasonable ground exists, anything said, done or written by one of the conspirators in reference to the
common intention, after the said intention was entertained, is relevant against the others, not only for
the purpose of proving the existence of the conspiracy but also for proving that the other person was
a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the
acts shall have reference to their common intention and in respect of a period after such intention
was entertained by any one of them. The expression in reference to their common intention is very
comprehensive and it appears to have been designedly used to give it a wider scope than the words “in
furtherance of in the English law” with the result, anything said, done or written by a co-conspirator,
after the conspiracy was formed, will be evidence against the other before he entered the field of
conspiracy or after he left it. Another important limitation implicit in the language is indicated by the
expressed scope of its relevancy. Anything so said, done or written is a relevant fact only ‘as against
each of the person believed to be so conspiring as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it’. It can be used only
for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It
cannot be said in favour of the other party or for the purpose of showing that such a person was not a
party to the conspiracy. In short, the Section can be analysed as follows:
1. There shall be prima facie evidence affording a reasonable ground for a court to believe that two
or more persons are members of a conspiracy;
2. If the said condition is fulfilled, anything said, done or written by any one of them in reference to
their common intention will be evidence against the other.
3. Anything said, done or written by him should have been said, done or written by him after the
intention was formed by any one of them;
4. It would also be relevant for the said purpose against another who entered the conspiracy whether
it was said, done or written before he entered the conspiracy or after he left it;
5. It can only be used against a co-conspirator and not in his favour.
—————

Crime Against Women—Rape and Abduction

The State of Punjab versus Gurmit Singh
AIR 1996 SC 1393: (1996) 2 SCC 384: 1996 Cri LJ 1728: 1996 (1) SCR 532
Dated: 16-01-1996
Bench: AS Anand and SS Ahmad
Crime against women in general and rape in particular is on the increase, further held that:
1. Of late, crime against women in general and rape in particular is on the increase. It is an irony
that while we are celebrating women’s rights in all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of indifference of the society towards the violation
of human dignity of the victims of sex crimes. We must remember that a rapist not only violates
the victim’s privacy and personal integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical assault—it is often destructive
of the whole personality of the victim. A murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They must deal with such cases with
utmost sensitivity. The Courts should examine the broader probabilities of a case and not get

102 Indian Evidence Act, 1872

 swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix,
which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of
the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her
statement in material particulars. If for some reason the Court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which may lend assurance to her testimony,
short of corroboration required in the case of an accomplice. The testimony of the prosecutrix
must be appreciated in the background of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases involving sexual molestations.
2. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the
court during their cross-examination. The provisions of the Evidence Act regarding relevancy of
facts notwithstanding, some defense counsel adopt the strategy of continual questioning of the
prosecutrix as to the details of the rape. The victim is required to repeat again and again the
details of the rape incident not so much as to bring out the facts on record or to test her credibility
but to test her story for inconsistencies with a view to attempt to twist the interpretation of events
given by her to make them appear inconsistent with her allegations. The Court, therefore, should
not sit as the silent spectators while the victim of crime is being cross-examined by the defense.
It must effectively control the recording of evidence in the Court. While every latitude should
be given to the accused to test the veracity of the prosecutrix and the credibility of her version
through cross-examination, the court must also ensure that cross-examination is not made a
means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be
remembered, has already undergone a traumatic experience and if she is made to repeat again and
again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and
even nervous or confused to speak and her silence or a confused stray sentence may be wrongly
interpreted as “discrepancies and contradictions” in her evidence.
3. The alarming frequency of crime against women led the Parliament to enact Criminal Law
(Amendment) Act, 1983 [Act 43 of 1983] to make the law of rape more realistic. By the Amendment
Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for
punishing such custodians who molest a woman under their custody or care. Section 114-A was
also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent
in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal
Procedure which deals with the right of an accused to an open trial was also amended by addition
of sub-sections 2 and 3 after re- numbering the old section as sub-section (1). Sub-sections 2 and
3 of Section 327 CrPC provide as follows:
Section 327 of the Act - Court to be open - (2) Notwithstanding anything contained in sub-Section
(1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B,
Section 376-C or Section 376-D of the Indian Penal Code shall be conducted in-camera:
Provided that the presiding judge may, if he thinks fit, or on an application made by either of the
parties, allow any particular person to have access to, or be or remain in, the room or building
used by the Court. (3) Where any proceedings are held under sub-section (2), it shall not be lawful
for any person to print or publish any matter in relation to any such proceedings, except with the
previous permission of the Court.
4. These two provisions are exception to the general rule of an open trial. In spite of the amendment,
however, it is seen that the trial courts either are not conscious of the amendment or do not
realise its importance for hardly does one come across a case where the enquiry and trial of a rape

Indian Evidence Act, 1872 103

 case has been conducted by the court in camera. The expression that the inquiry into and trial of
rape “shall be conducted in camera” as occurring in sub-section (2) of Section 327 CrPC is not only
significant but very important. It casts a duty on the Court to conduct the trial of rape cases, etc.,
invariably “in-camera”. The Courts are obliged to act in furtherance of the intention expressed by
the Legislature and not to ignore its mandate and must invariably take recourse to the provisions
of Section 327 (2) and (3) CrPC and hold the trial of rape cases in camera. It would enable the
victim of crime to be a little more comfortable and answer the questions with greater ease in
not too familiar the surroundings. Trial in-camera would not only be in keeping with the self-
respect of the victim of crime and in tune with the legislative intent but is also likely to improve
the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to
depose frankly as she may be in an open court, under the gaze of public. The improved quality of
her evidence would assist the courts in arriving at the truth and sifting the truth from falsehood.
The High Courts would therefore be well advised to draw the attention of the trial courts to the
amended provisions of Section 327 CrPC. When trials are held in-camera, it would not be lawful
for any person to print or publish any matter in relation to the proceedings in the case, except
with the previous permission of the Court as envisaged by Section 327(3) CrPC. This would save
any further embarrassment being caused to the victim of sex crime. Wherever possible it may also
be worth considering whether it would not be more desirable that the cases of sexual assaults
on the females are tried by lady judges, wherever available, so that the prosecutrix can make her
statement with greater ease and assist the Courts to properly discharge their duties, without
allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence
in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix
in their orders to save further embarrassment to the victim of sex crime. The anonymity of the
victim of the crime must be maintained as far as possible throughout. In the present case, the Trial
Court has repeatedly used the name of the victim in its order under appeal, when it could have
just referred to her as the prosecutrix. We need say no more on this aspect and hope that the Trial
Courts would take recourse to the provisions of Sections 327 (2) and (3) CrPC liberally. Trial of rape
cases in camera should be the rule and an open trial in such cases an exception.
—————

Dowry Death
Shanti versus State of Haryana
AIR 1991 SC 1226: 1990 SCR Supl (2) 675: 1991 Cri LJ 1713: 1991 (1) SCC 371
Dated: 13-11-1990
Bench: K Jayachandra Reddy and SR Pandian
A careful analysis of Section 304B shows that this Section has the following essentials:
1. Death of a woman should be caused by burns or bodily injury or otherwise than under normal
circumstances.
2. Such death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her
husband.
4. Such cruelty or harassment should be for or in connection with demand for dowry. Section 113B
of the Evidence Act, lays down that if soon before the death such woman has been subjected
to cruelty or harassment for or in connection with any demand for dowry, then the Court shall

104 Indian Evidence Act, 1872

 presume that such person has committed the dowry death. The meaning of “cruelty” for the
purposes of these Sections has to be gathered from the language as found in Section 498A and
as per that Section “cruelty” means “any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or danger to life, etc., or harassment
to coerce her or any other person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related to her to meet such
demand.” As per the definition of “dowry” any property or valuable security given or agreed to be
given either at or before or any time after the marriage, comes within the meaning of “dowry”.
—————

Dying Declaration
Sudhakar versus State of Maharashtra
AIR 2000 SC 2602: (2000) 6 SCC 671: 2000 Cri LJ 3490: 2000 (5) SCALE 157
Dated: 17-07-2000
Bench: GB Pattanaik, RP Sethi, Shivaraj V Patil
Issue: Law on the question of the nature and scope of dying declaration.
The clear language of Section 32(1) of the Evidence Act:
(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person
who dies, whether the death is a homicide or a suicide, provided the statement relates to the
cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above,
the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid
injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-
dried formula of universal application so as to be confined in a straitjacket. Distance of time
would depend or vary with the circumstances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is, as it were, a finale of the story, the
statement regarding each step directly connected with the end of the drama would be admissible
because the entire statement would have to be read as an organic whole and not torn from
the context. Sometimes statements relevant to or furnishing an immediate motive may also be
admissible as being a part of the transaction of death. It is manifest that all these statements
come to light only after the death of the deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage, or the distance of time is not spread
over more than three to four months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is year another exception to the rule that in criminal law
the evidence of a person who was not being subjected to or given an opportunity of being cross-
examined by the accused, would be valueless because the place of cross-examination is taken by
the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not
likely to make a false statement unless there is strong evidence to show that the statement was
secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide
also, hence all the circumstances which may be relevant to prove a case of homicide would be
equally relevant to prove a case of suicide.

Indian Evidence Act, 1872 105

 (5) Where the main evidence consists of statements and letters written by the deceased which are
directly connected with or related to her death and which reveal a tell-tale story, the said statement
would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of
time alone in such cases would not make the statement irrelevant.
—————

Dying Declaration
Smt. Paniben versus State of Gujarat
AIR 1992 SC 1817: (1992) 2 SCC 474: 1992 (2) SCR 197: 1992 Cri LJ 2919
Dated: 13-03-1992
Bench: S Mohan and GN Ray
1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without
corroboration; Mannu Raja versus State of Uttar Pradesh, (1976) 2 SCR 764: AIR 1976 SC 2199.
2. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it,
without corroboration; State of Uttar Pradesh versus Ram Sagar Yadav, AIR 1985 SC 416; Ramawati
Devi versus State of Bihar, AIR 1983 SC 164.
3. This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is
not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and
identify the assailants and was in a fit state to make the declaration; Rama Chandra Reddy versus
Public Prosecutor, AIR 1976 SC 1994.
4. Where dying declaration is suspicious it should not be acted upon without corroborative evidence;
Rasheed Beg versus State of Madhya Pradesh, (1974) 4 SCC 264: AIR 1974 SC 332.
5. Where the deceased was unconscious and could never make any dying declaration the evidence
with regard to it is to be rejected; Kake Singh versus State of Madhya Pradesh, AIR 1982 SC 1021.
6. A dying declaration which suffers from infirmity cannot form the basis of conviction; Ram Manorath
versus State of Uttar Pradesh, 1981 SCC (Cri) 581.
7. Merely because a dying declaration does not contain the details as to the occurrence, it is not to
be rejected; State of Maharashtra versus Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617.
8. Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness
of the statement itself guarantees truth; Surajdeo Oza versus State of Bihar, AIR 1979 SC 1505.
9. Normally the Court in order to satisfy whether deceased was in a fit mental condition to make
the dying declaration look up to the medical opinion. But where the eyewitness has said that the
deceased was in a fit and conscious state to make this dying declaration, the medical opinion
cannot prevail; Nanhau Ram versus State, AIR 1988 SC 912.
10. Where the prosecution version differs from the version as given in the dying declaration, the said
declaration cannot be acted upon; State of Uttar Pradesh versus Madan Mohan, AIR 1989 SC 1519.
—————

106 Indian Evidence Act, 1872

 Exclusion of Oral by Documentary Evidence
R Janakiraman versus State of Tamil Nadu, Through CBI, SPE, Madras
AIR 2006 SC 1106: (2006) 1 SCC 697: 2006 (1) SCALE 167: 2006 Cri LJ 1232
Appeal (Crl.) 773 of 2000
Dated: 04-01-2006
Bench: SB Sinha and RV Raveendran
Principles relating to Section 92 of the Evidence Act:
1. Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91.
2. The rule contained in Section 92 will apply only to the parties to the instrument or their successors-
in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding)
are not barred from establishing a contemporaneous oral agreement contradicting or varying the
terms of the instrument. On the other hand, Section 91 may apply to strangers also.
3. The bar under Section 92 would apply when a party to the instrument, relying on the instrument,
seeks to prove that the terms of the transaction covered by the instrument are different from what
is contained in the instrument. It will not apply where anyone, including a party to the instrument,
seeks to establish that the transaction itself is different from what it purports to be. To put it
differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove
the contract itself, or to prove that the document was not intended to be acted upon and that
intention was totally different. Applying the aforesaid principles, the bar with Section 92 will apply
to a proceeding inter-party to a document and not to a criminal proceeding, where the prosecution
is trying to prove that a particular document or set of documents are fictitious documents created
to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that
a transaction under a particular document or set of documents is sham or fictitious or nominal,
not intended to be acted upon.
—————

Expunging of Remarks
In the Matter of ‘K’ A Judicial Officer versus In the Matter of ‘K’ A Judicial Officer
AIR 2001 SC 972: (2001) 3 SCC 54: 2001 (1) SCALE 685: 2001 Cri LJ 1157
Appeal (Crl.) 165 of 2001
Dated: 08-02-2001
Bench: RC Lahoti and AS Anand
Any passage from an order or judgment may be expunged or directed to be expunged subject to
satisfying the following tests:
1. That the passage complained of is wholly irrelevant and unjustifiable.
2. That its retention on the records will cause serious harm to the persons to whom it refers;
3. That its expunction will not affect the reasons for the judgment or order. In para 12, it was further
held that though the power to make remarks or observations is there but on being questioned, the
exercise of power must withstand judicial scrutiny on the touchstone of following tests:
a. Whether the party whose conduct is in question is before the court or has an opportunity of
explaining or defending himself.

Indian Evidence Act, 1872 107

 b. Whether there is evidence on record bearing on that conduct justifying the remarks; and
c. Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert
on that conduct. The overall test is that the criticism or observation must be judicial in nature
and should not formally depart from sobriety, moderation and reserve.
—————

Admission and Estoppel

Chhaganlal Keshavlal Mehta versus Patel Narandas Haribhai
AIR 1982 SC 121: (1982) 2 SCR 166: 1982 (1) SCC 223: 1981 (3) SCALE 1861
Dated: 11-12-1981
Bench: RB Misra and VB Eradi
The difference between an admission and estoppel is a marked one. Admissions being declarations
against an interest are good evidence, but they are not conclusive, and a party is always at liberty
to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an
absolute bar. It may be pointed out that estoppel deals with questions of facts and not of rights. A man
is not estopped from asserting a right which he had said that he will not assert. It is also a well-known
principle that there can be no estoppel against a statute.
To bring the case within the scope of estoppel as defined in Section 115 of the Evidence Act:
1. There must be a representation by a person or his authorised agent to another in any form a
declaration, act or omission.
2. The representation must have been of the existence of a fact and not of promises; future or
intention which might or might not be enforceable in contract.
3. The representation must have been meant to be relied upon.
4. There must have been belief on the part of the other party in its truth.
5. There must have been action on the faith of that declaration, act or omission, that is to say, the
declaration, act or omission must have actually caused another to act on the faith of it, and to
alter his former position to his prejudice or detriment.
6. The misrepresentation or conduct or omission must have been the proximate cause of leading the
other party to act to his prejudice.
7. The person claiming the benefit of an estoppel must show that he was not aware of the true state
of things. If he was aware of the real state of affairs or had means of knowledge, there can be no
estoppel.
8. Only the person to whom representation was made or for whom it was designed can avail himself of
it. A person is entitled to plead estoppel in his own individual character and not as a representative
of his assignee.
—————

108 Indian Evidence Act, 1872

 Recording of Objection
Bipin Shantilal Panchal versus State of Gujarat
AIR 2001 SC 1158: (2001) 3 SCC 1: 2001 Cri LJ 1254: 2001 (2) SCALE 167
Miscellaneous Petition (Crl.) 862 of 2001 Special Leave Petition (Crl.) 223 of 2000
Dated: 22-02-2001
Bench: KT Thomas, RP Sethi and BN Agarwal
1. Whenever an objection is raised during evidence taking stage regarding the admissibility of any
material or item of oral evidence the trial court can make a note of such objection and mark the
objected document tentatively as an exhibit in the case (or record the objected part of the oral
evidence) subject to such objections to be decided at the last stage in the final judgment. If the
court finds at the final stage that the objection so raised is sustainable the judge or magistrate can
keep such evidence excluded from consideration. In our view there is no illegality in adopting such
a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a
document the court has to decide the objection before proceeding further. For all other objections
the procedure suggested above can be followed.)
2. The above procedure, if followed, will have two advantages. First is that the time in the trial court,
during evidence taking stage, would not be wasted on account of raising such objections and the
court can continue to examine the witnesses. The witnesses need not wait for long hours, if not
days. Second is that the superior court, when the same objection is re-canvassed and reconsidered
in appeal or revision against the final judgement of the trial court, can determine the correctness
of the view taken by the trial court regarding that objection, without bothering to remit the case to
the trial court again for fresh disposal. We may also point out that this measure would not cause
any prejudice to the parties to the litigation and would not add to their misery or expenses.
3. We, therefore, make the above as a procedure to be followed by the trial courts whenever an
objection is raised regarding the admissibility of any material or any item of oral evidence.
—————

Words and Phrases: Legally Defined

Books of accounts
True Section 34 contains the rider that such statement shall not alone be sufficient evidence to charge
any person with liability. In the first place the provision deals only with books of accounts. It primarily
pertains to pecuniary transactions. The expression books of accounts mean books in which merchants,
traders or businessmen generally keep their accounts, i.e., statements of debits and credits or receipts
and payments. A register kept at the counter of a hotel need not contain any statement of account.
So, until it is shown that such register also pertained to the pecuniary transactions involving the
customers of the hotel the same cannot be treated as a book of accounts. In the second place, even
if it is assumed that a register kept in a hotel can be treated as a book of accounts, the entry therein
cannot become the sole premise to charge a person with liability; Manish Dixit and Ors. versus State
of Rajasthan, (2001) 1 SCC 596 (601, 602): 2000 (7) Supreme 364: AIR 2001 SC 93.

Confession
A confession must either admit in terms the offence, or at any rate substantially all the facts which
constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating

Indian Evidence Act, 1872 109

 fact is not of itself a confession; P Narayana Swami versus Emperor, AIR 1939 PC 47. Also see, State
(NCT of Delhi) versus Navjot Sandhu @ Afsan Guru, Appeal (Crl.) 373–375 of 2004.

Contradict and Contradiction

The word ‘contradiction’ is of such wide connotation that it takes in all material omissions and a Court
can decide whether there is one such omission as to amount to contradiction only after the question,
is put, answered and the relevant statement or part of it is marked, and, therefore, no attempt should
be made to evolve a workable principle, but the question must be left at large to be decided by the
Judge concerned on the facts of each case.
The High Court erred in holding that only two questions were intended to be put in cross-examination
to the prosecution witnesses whereas the Advocate for the accused intended to put to the witnesses
many other omissions to establish that there was development in the prosecution case from time to
time but refrained from doing so in obedience to the considered order made by the learned Sessions
Judge.
Even if only two questions were illegally disallowed, as it was not possible to predicate the possible
effect of the cross-examination of the witnesses on the basis of their answers to the said questions
on their reliability, it should be held that the accused had no opportunity to have an effective cross-
examination of the witnesses and therefore they had no fair trial.
The learned Judges committed an illegality in testing the credibility of the witnesses other than the
witness who gave the first information report by the contents of the said report. The arguments of the
learned Counsel for the respondent in respect of each of the said contentions will be considered in
their appropriate places.
The word ‘contradict’ has various meanings, and in the Oxford English Dictionary it is stated as “To be
contrary to in effect, character, etc.; to be directly opposed to go counter to, go against” as also “to
affirm the contrary of; to declare untrue or erroneous; to deny categorically” and the word ‘contradiction’
to mean “A state or condition of opposition in things compared; variance; inconsistency, contrariety”.
In Shorter Oxford English Dictionary, ‘contradict’ is said to mean “To speak against; to oppose in
speech; to forbid; to oppose; to affirm the contrary of; to declare untrue or erroneous; to deny being
contrary to go counter to and going against” and ‘contradiction’ to mean “A state of opposition in things
compared; variance; inconsistency”. The meaning given to the words, ‘contradict’ and ‘contradiction’
in these dictionaries must at least include the case of an omission in a previous statement which by
implication amounts to contradiction and therefore such an omission is a matter which is covered by
the first proviso to Section 162 and questions in cross-examination can be put with respect to it in
over to contradict the witness. It is difficult to say as an inflexible rule that any other kind of omission
cannot be put to a witness in order to contradict him, when the proper foundation had been laid for
putting such questions. The words ‘to contradict him’ appearing in Section 145 of the Evidence Act
must carry the same meaning as the words “to contradict such witness” in Section 162 of the Code;
Tahsildar Singh and Another versus The State of Uttar Pradesh, AIR 1959 SC 1012: 1959 SCR Supl (2) 875.

Corroboration
The word ‘corroboration’ means not mere evidence tending to confirm other evidence.
Lord Morris said, the purpose of corroboration is not to give validity or credence to evidence which is
deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient
and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely
credible.

110 Indian Evidence Act, 1872

“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life, one is
doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in
with other statements or circumstances relating to the particular matter; the better it fits in the more
one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the
other statements or circumstances with which it fits in”; DPP versus Hester, (1972) 3 All ER 1056; DPP
versus Kilbourne, (1973) 1 All ER 440; K Hashim versus State of Tamil Nadu, Appeal (Crl.) 185 of 2004:
187 of 2004.

Court
The word ‘court’ was not defined in the Act and the expression ‘Courts subordinate to the High Courts’
would prima facie mean the Courts of Law subordinate to the High Courts in the hierarchy of Courts
established for the purpose of administration of justice throughout the Union. It would be relevant,
however, to notice the definitions of ‘court’ available elsewhere.
Coke on Littleton and Stroud defined the word ‘court’ as the place where justice is judicially administered.
According to Stephen, “In every Court, there must be at least three constituent parts—the actor, reus
and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called
upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the
fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to
ascertain, and by its officers to apply, the remedy”.
The word ‘court’ is not defined in the Contempt of Courts Act and the expression ‘Courts subordinate
to the High Courts’ in Section 3(1) would prima facie mean the Courts of Law subordinate to the High
Courts in hierarchy of Courts established for the purpose of administration of justice throughout the
Union. The definition of ‘court’ in Section 3 of the Evidence Act is not exhaustive but framed only
for the purpose of that Act and is not to be extended where such an extension is not warranted;
Brajnandan Sinha versus Jyoti Narain, AIR 1956 SC 66: 1955 (2) SCR 955.
Court, according to Halsbury’s Laws of England (Third Edition Vol. 9) at p. 342, “Originally the term
‘court’ meant, among other meanings, the Sovereign’s palace; it has acquired the meaning of the
place where justice is administered and, further, has come to mean the persons who exercise judicial
functions under authority derived either immediately or mediately from the Sovereign. All tribunals,
however, are not courts, in the sense in which the term is here employed, namely, to denote such
tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely
by reason of voluntary submission to their jurisdiction”; Thakur Jugal Kishore Sinha versus Sitamarhi
Central Co-operative, AIR 1967 SC 1494: 1967 (3) SCR 163.

Custody
(a) The term ‘custody’ appears in several enactments. However, we are not giving an exhaustive list of
the provisions of enactments containing the said expression ‘custody’. In Sections 439, 442 (heading
alone of the Section) and Section 451 of the Criminal Procedure Code, Section 223 of the Indian Penal
Code, Sections 26 and 27 of the Indian Evidence Act, Section 45 of the Customs Act, 1962 and Sections
19(c), 25(b) and (c), 29(2) and (3) and 40 of the Tamil Nadu Children Act, etc., the said term is used.
However, it may be noted that the said word is not defined in any of these enactments.
(b) The meaning of the term ‘custody’ is given in the Shorter Oxford English Dictionary, as follows:
“1. Safe-keeping, protection, charge, care, guardianship.
2. The keeping of an officer of justice, confinement, imprisonment, durance.
3. Guardianship”

Indian Evidence Act, 1872 111

 (c) In Webster’s Third International Dictionary, Vol. I, at page 559, the word ‘custody’ is given the
following meanings:
1. a. The act or duty of guarding and preserving, safe-keeping, b. Judicial or penal safe-keeping, control
of a thing or person with such actual or constructive possession as fulfils the purpose of the law or
duty requiring it; imprisonment or durance of persons or charge of things. ... The term ‘custody’ implies
and signifies various meanings dependent upon the context in which the term is used. (d) The Corpus
Juris Secundum, Vol. 25, at page 69 when it is applied to persons, it implies restraint and may or may
not imply physical force sufficient to restrain depending on the circumstances and with reference to
persons charged with crime, it has been defined as meaning on actual confinement or the present
means of enforcing it, the detention of the person contrary to his will. Applied to things, it means to
have a charge or safe-keeping, and connotes control and includes as well, although it does not require,
the element of physical or manual possession, implying a temporary physical control merely and
responsibility for the protection and preservation of the thing in custody. So used, the word does not
connote dominion or supremacy of authority. The said term has been defined as meaning the keeping,
guarding, care, watch, inspection, preservation or security of a thing, and carries with it the idea of
the thing being within the immediate personal care and control of the prisoner to whose custody it is
subjected; charge; charge to keep, subject to order or direction; immediate charge and control and not
the final absolute control of ownership.
Therefore, it is clear that we have to take the meaning of the term ‘custody’ with reference to the
context in which it is used.
Black’s Law Dictionary also defines ‘custody’ as the care and control of a thing or person. The keeping,
guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the
thing being within the immediate personal care and control of the person to whose custody it is
subjected immediate charge and control, and not the final, absolute control of ownership, implying
responsibility for the protection and preservation of the thing in custody; Roxann Sharma versus Arun
Sharma, 2015 (8) SCC 318.
In Black’s Law Dictionary by Henry Campbell Black, MA (Sixth Edn), the expression ‘custody’ has been
explained in the following manner:
The term is very elastic and may mean actual imprisonment or physical detention within statute requiring
that petitioner be ‘in custody’ to be entitled to federal habeas corpus relief does not necessarily man
actual physical detention in jail or prison but rather is synonymous with restraint of liberty.
In Black’s Law Dictionary the said expression has been explained as follows: Move: to make an
application to a Court for a rule or order, or to take action in any matter. The term comprehends all
things necessary to be done by a litigant to obtain an order of the Court directing the relief sought;
Sunita Devi versus State of Bihar and Ors., 2004 Supp (6) SCR 707.
The terms ‘custody’, ‘detention’ or ‘arrest’ have not been defined in the CrPC, and we must resort to
few dictionaries to appreciate their contours in ordinary and legal parlance.
The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration,
internment, captivity, remand, duress, and durance. The Cambridge Dictionary (online) explains ‘custody’
as the state of being kept in prison, especially while waiting to go to Court for trial.
Longman Dictionary (online) defines ‘custody’ as “when someone is kept in prison until they go to
court, because the police think they have committed a crime”.

112 Indian Evidence Act, 1872

Chambers Dictionary (online) clarifies that custody is “the condition of being held by the police; arrest
or imprisonment; to take someone into custody to arrest them”. Chambers’ Thesaurus supplies several
synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration.
The Collins English Dictionary for Advance Learners states in terms of that someone who is in custody
or has been taken into custody or has been arrested and is being kept in prison until they get tried in
a court or if someone is being held in a particular type of custody, they are being kept in a place that
is similar to a prison.
The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance,
and this feature is totally absent in the factual matrix before us.
The Corpus Juris Secundum under the topic of ‘Escape & Related Offenses; Rescue’ adumbrates that
‘Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of
a person against his or her will, or of the exercise of control over another to confine the other person
within certain physical limits or a restriction of ability or freedom of movement.’
This is how ‘custody’ is dealt with in Black’s Law Dictionary, (9th Ed. 2009): Custody- The care and
control of a thing or person. The keeping, guarding, care, watch, inspection, preservation, or security
of a thing, carrying with it the idea of the thing being within the immediate personal care and control
of the person to whose custody it is subjected. Immediate charge and control, and not the final,
absolute control of ownership, implying responsibility for the protection and preservation of the thing
in custody. Also, the detainer of a man’s person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal
or physical, of imprisoning or of taking manual possession. The term ‘custody’ within statute requiring
that petitioner be ‘in custody’ to be entitled to federal habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but rather is synonymous with restraint of liberty. US ex
rel. Wirtz versus Sheehan, DC Wis, 319 F Supp 146, 147. Accordingly, persons on probation or released
on own recognizance have been held to be ‘in custody’ for purposes of habeas corpus proceedings;
Sundeep Kumar Bafna versus State of Maharashtra & Anr., 2014 AIOL 181: 2014 (2) Crimes 161 (SC).

Doctrine of Promissory Estoppel

‘Estoppel’ in Black’s Law Dictionary, is indicated to mean that a party is prevented by his own acts
from claiming a right to the detriment of other party who was entitled to rely on such conduct and has
acted accordingly. Section 115 of the Indian Evidence Act is also couched in a language which conveys
the same expression.
‘Promissory estoppel’ is defined as in Black’s Law Dictionary as “an estoppel which arises when there is
a promise which promisor should reasonably expect to induce action or forbearance of a definite and
substantial character on the part of promise, and which does induce such action or forbearance, and
such promise is binding if injustice can be avoided only by enforcement of promise”.
These definitions in Black’s Law Dictionary which are based on decided cases, indicate that before the
Rule of Promissory Estoppel can be invoked, it must be shown that there was a declaration or promise
made which induced the party to whom the promise was made to alter its position to its disadvantage.
In this backdrop, let us travel a little distance into the past to understand the evolution of the Doctrine
of Promissory Estoppel.
J Dixon, as an Australian jurist, defined ‘estoppel’ as, “It is often said simply that the party asserting
the estoppel must have been induced to act to his detriment. Although substantially such a statement
is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the

Indian Evidence Act, 1872 113

 doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by
compelling the opposite party to adhere to the assumption upon which the former acted or abstained
from acting. This means that the real detriment or harm from which the law seeks to give protection
is that which would flow from the change of position if the assumption were deserted that led to it”;
Grundt & Ors. versus The Great Boulder Proprietary Gold Mines Ltd., 1938 (59) CLR 641 also see M/s.
Sharma Transport Rep. by Shri versus Government of AP & Ors., 2001 INSC 631.

May Presume and Shall Presume

It is true that the legislature used two different phraseologies ‘shall be presumed’ and ‘may be
presumed’ in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the
mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to
be vested in the Government vis-a-vis the absence thereof in relation to the lands presumed to be
retained by the landowners but the same would not mean that the words ‘shall presume’ would be
conclusive. The meaning of the expressions ‘may presume’ and ‘shall presume’ have been explained
in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it
is directed that the court shall presume a fact it shall regard such fact as proved unless disproved.
In terms of the said provision, thus, the expression ‘shall presume’ cannot be held to be synonymous
with ‘conclusive proof’.
Proved and disproved: In terms of Section 4 of the Evidence Act whenever it is provided by the Act that
the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The
words ‘proved’ and ‘disproved’ have been defined in Section 3 of the Evidence Act (the interpretation
clause) to mean:
Proved: 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 case, to act upon the supposition that it exists.
Disproved: 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.
Applying the said definitions of ‘proved’ or ‘disproved’ to principle behind Section 118(a) of the Act, the
Court shall presume a negotiable instrument to be for consideration unless and until after considering
the matter before it, it either believes that the consideration does not exist or considers the non-
existence of the consideration so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that the consideration does not exist. For rebutting such
presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence
given on behalf of the complainant could be relied upon.

Science
The meaning of the word ‘science’ as understood ordinarily with reference to its dictionary meaning
must be attributed to the word as used in Section 45 of the Indian Evidence Act.As per the Oxford
Encyclopedic English Dictionary, “Science... a. systematic and formulated knowledge, esp. of a specified
type or on a specified subject (political science). b. the pursuit or principles of this...”.
As per the New Shorter Oxford English Dictionary, Vol. 2, “Science... 2a. Knowledge acquired by study;
acquaintance with or mastery of a department of learning 3a. A particular branch of knowledge or
study; a recognised department of learning...”.

114 Indian Evidence Act, 1872

As per Collins Dictionary of the English Language, “Science n. 1. the systematic study of the nature and
behaviour of the material and physical universe, based on observation, experiment, and measurement,
and the formulation of laws to describe these facts in general terms. 2. the knowledge so obtained or
the practice of obtaining it. 3. any particular branch of this knowledge: the pure and applied sciences.
4. anybody of knowledge organized in a systematic manner. 5. skill or technique...”; State (Through CBI/
New Delhi) versus SJ Choudhary, AIR 1996 SC 1491: 1996 (2) SCC 428.

“Soon Before” or “Soon Before Her Death”

A conjoint reading of Section 113B of the Evidence Act and Section 304B, IPC shows that there must
be material to show that soon before her death the victim was subjected to cruelty or harassment.
The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within
the purview of the ‘death occurring otherwise than in normal circumstances”. The expression “soon
before” is very relevant where Section 113B of the Evidence Act and Section 304B, IPC are pressed
into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates. Evidence in that regard has to be led in by
the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each
case and no straitjacket formula can be laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance
of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption
under Section 113B of the Evidence Act. The expression “soon before her death” used in the substantive
Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression “soon before” is not defined.
The determination of the period which can come within the term “soon before” is left to be determined
by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that
the expression “soon before” would normally imply that the interval should not be much between the
cruelty or harassment concerned and the death in question. There must be existence of a proximate
and live link between the effect of cruelty based on dowry demand and the death concerned. If the
alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental
equilibrium of the woman concerned, it would be of no consequence; Raman Kumar versus State of
Punjab, 2009 (16) SCC 35.

Substantive Evidence
Substantive evidence does not necessarily mean substantial evidence. It is the quality of evidence that
matters. As to what value is to be attached to a confession will fall within the domain of appreciation
of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be
used against a co-accused though that will again be within the sphere of appraisal of evidence; State
(NCT of Delhi) versus Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 (767, 768, 769, 770).
—————

Legal Maxims
y Lex loci is the law applied in the place of an event or the law of the place.
y Lex fori means the law of the country or evidence is one of those matters which are governed by the
law of the country in which the proceedings take place.
y Res gestae means things done or things said and done.

Indian Evidence Act, 1872 115

 y Alibi means elsewhere.
y Res Judicata means a thing adjudged or a matter judged.
y Omnia proesumuntur rite esse acta means all things are presumed to be rightly done or all acts are
presumed to be rightly done.
y Nemo moriturus praesumitur mentire means a man will not meet his maker with a lie in his mouth
or no one at the point of death is presumed to lie.

Objective Type Questions

1. The Indian Evidence Act was drafted by: (D) can be cross-examined by another co-
(A) Lord Macaulay defendant as a matter of right.
(B) Sir James F Stephen Ans. (C)
(C) Aldous Huxley A co-defendant in a case can be cross-examined
(D) Sir DF Mulla by another co-defendant when their interests are
Ans. (B) adverse to each other.
The Indian Evidence Act was drafted by Sir James 5. Which of the following has not been included
F Stephen. in the definition of ‘court’ under the Indian
He is known as the founding father of this Evidence Act, 1872?
comprehensive legislation. (A) All Judges
2. How many Sections and Chapters are there (B) All Magistrates
in the Indian Evidence Act, 1872? (C) All persons legally authorised to take
(A) 167 Sections and 11 Chapters evidence
(B) 172 Sections and 16 Chapters (D) Arbitrator
(C) 160 Sections and 10 Chapters Ans. (D)
(D) 180 Sections and 15 Chapters Arbitrator has not been included in the definition
Ans. (A) of ‘court’ under the Indian Evidence Act, 1872.
Indian Evidence Act, 1872 has 167 Sections, 11 6. Fact in issue means:
Chapters and 3 Parts. (A) fact, existence or non-existence of which
3. Where A is accused of the offence of rape is admitted by the parties.
and murder of a girl child. Which of the tests (B) fact, existence or non-existence of which
can A be subjected to without his consent is disputed by the parties.
for the purposes of investigation? (C) fact, which is attached with other facts
(A) Brain Electrical Activation Profile Test alleged by of plaintiff.
(B) Narco Analysis Test (D) fact, which is attached with other facts
(C) Polygraph Test alleged of defendant.
(D) None of the above (E) None of the above
Ans. (D) Ans. (B)
Fact in issue means fact, existence or non-
4. A co-defendant in a case:
existence of which is disputed by the parties.
(A) cannot be cross-examined by another
The expression ‘facts in issue’ means and
co-defendant under any circumstances.
includes any fact from which, either by itself or in
(B) can be cross-examined by another co-
connection with other facts, the existence, non-
defendant if their interests are identical.
existence, nature or extent of any right, liability,
(C) can be cross-examined by another co-
or disability, asserted or denied in any suit or
defendant when their interests are
proceeding, necessarily follows.
adverse to each other.

116 Indian Evidence Act, 1872

7. According to the Evidence Act, a fact is said Facts necessary to explain or introduce a fact in
to be ‘not proved’, when the: issue or relevant fact, or which support or rebut an
(A) Court believes that the fact does not inference suggested by a fact in issue or relevant
exist. fact, or which establish the identity of anything or
(B) fact is vague. person whose identity is relevant, or fix the time
(C) fact is neither proved nor disproved. or place at which any fact in issue or relevant
(D) All of the above fact happened, or which show the relation of
Ans. (C) parties by whom any such fact was transacted,
A fact is said to be ‘not proved’, when the fact is are relevant in so far as they are necessary for
neither proved nor disproved (Section 3). that purpose.
8. Under the Indian Evidence Act, 1872, the Rule 11. Under which of the following provisions of
of res gestae is applicable in: the Indian Evidence Act, 1872 are the words,
(A) civil cases only. “When facts not otherwise relevant become
(B) criminal cases only. relevant occurs”?
(C) civil as well as criminal cases. (A) Section 14
(D) None of the above (B) Section 11
Ans. (C) (C) Section 7
The Rule of res gestae is applicable in civil as well (D) Section 10
as criminal cases. Ans. (B)
9. Which among the following Sections of the Section 11 of the Act deals with “When facts not
Indian Evidence Act, 1872 is an exception otherwise relevant become relevant”.
to the general rule ‘hearsay evidence is no Facts not otherwise relevant are relevant—(1) if
evidence’? they are inconsistent with any fact in issue or
relevant fact;
(A) Section 6
(2) if by themselves or in connection with other
(B) Section 11
facts they make the existence or non-existence of
(C) Section 17
any fact in issue or relevant fact highly probable
(D) Section 25
or improbable.
Ans. (A)
Section 6 is an exception to the general rule 12. The question is whether a horse sold by A
‘hearsay evidence is no evidence’. to B is sound. A says to B “Go and ask C. C
Res Gestae is allowed as an exception to hearsay knows all about it.” C’s statement is a/an:
evidence. (A) confession.
Hearsay evidence is not admissible in the Court (B) admission.
of Law. (C) presumption.
10. Identification of a suspect by photo is: (D) reference.
(A) not admissible in evidence. Ans. (B)
(B) admissible in evidence. Illustrations of Section 20, the question is,
(C) the suspect must be present. whether a horse sold by A to B is sound. A says
(D) Both, not admissible in evidence and the to B, “Go and ask C, C knows all about it.” C’s
suspect must be present statement is an admission.
Ans. (B) 13. Communications “without prejudice” are
Identification of a suspect by photo is admissible protected by:
in evidence. (A) Section 21 of the Indian Evidence Act.
Section 9 of the Act makes it clears that (B) Section 22 of the Indian Evidence Act.
identifications become admissible in Court.

Indian Evidence Act, 1872 117

 (C) Section 23 of the Indian Evidence Act. (C) under Section 30 of the Evidence Act.
(D) Section 24 of the Indian Evidence Act. (D) under Section 31 of the Evidence Act.
Ans. (C) Ans. (C)
Communications “without prejudice” are The confession of an accused is admissible against
protected by Section 23. the other co-accused when more persons than
In civil cases no admission is relevant, if it is made one are being tried jointly for the same offence,
either upon an express condition that evidence of and a confession made by one of such persons
it is not to be given, or under circumstances from affecting himself and some other of such persons
which the Court can infer that the parties agreed is proved, the Court may take into consideration
together that evidence of it should not be given. such confession as against such other person
14. A confession made by a person while in as well as against the person who makes such
police custody is inadmissible under: confession (Section 30).
(A) Section 29 of the Evidence Act. 17. Admissions are not conclusive proof of the
(B) Section 26 of the Evidence Act. facts admitted but they may operate as:
(C) Section 25 of the Evidence Act. (A) res judicata.
(D) Section 27 of the Evidence Act. (B) estoppel.
Ans. (B) (C) res gestae.
No confession made by any person whilst he/ (D) All of the above
she is in the custody of a police officer, unless it Ans. (B)
made in the immediate presence of a Magistrate, Admissions are not conclusive proof of the
shall be proved as against such person (Section matters admitted, but they may operate as
26). estoppels under the provisions hereinafter
15. A is arrested by police and accused of murder contained (Section 31).
of B. During investigation A voluntarily agrees 18. Declaration by a person, not able to be
to undergo narco analysis and therein he called as witness, in the course of business
confesses to have murdered B. is admissible under:
(A) The confession is relevant and can be (A) Section 32(1) of the Indian Evidence Act,
sole basis of conviction 1872.
(B) The confession is irrelevant (B) Section 32(2) of the Indian Evidence Act,
(C) The confession is relevant but requires 1872.
corroboration (C) Section 32(4) of the Indian Evidence Act,
(D) Only that much of A’s statement can be 1872.
used as leads to discovery of a fact (D) Section 32(7) of the Indian Evidence Act,
(E) None of the above 1872.
Ans. (D) Ans. (B)
A is arrested by police and accused of murder Declaration by a person, not able to be called as
of B. During investigation A voluntarily agrees to witness, in the course of business is admissible
undergo narco-analysis and therein he confesses under Section 32(2) of the Act.
to have murdered B. Only that much of A’s When a statement is made by such person in
statement can be used as leads to discovery of the ordinary course of business, and in particular
a fact. when it consists of any entry or memorandum
16. Confession of an accused is admissible made by him in books kept in the ordinary course
against the other co-accused: of business, or in the discharge of professional
(A) under Section 28 of the Evidence Act. duty; or of an acknowledgement written or signed
(B) under Section 29 of the Evidence Act. by him of the receipt of money, goods, securities

118 Indian Evidence Act, 1872

or property of any kind; or of a document used In civil cases, the fact that the character of any
in commerce written or signed by him; or of the person concerned is such as to render probable
date of a letter or other document usually dated, or improbable any conduct imputed to him, is
written or signed by him. irrelevant, except in so far as such character
19. Statement of relevant fact by person who is appears from facts otherwise relevant (Section
dead or cannot be found is relevant in: 52).
(A) civil proceedings only. 22. The previous sexual experience of a
(B) criminal proceedings only. prosecutrix in a case of rape where the
(C) neither civil nor criminal proceedings. question of consent is an issue:
(D) both civil as well as criminal proceedings. (A) can be used to impeach the
Ans. (D) creditworthiness of the prosecutrix,
Statement of relevant fact by person who is dead under Section 155 of the Indian Evidence
or cannot be found is relevant in civil as well as Act.
criminal proceedings. (B) is irrelevant.
Section 32 states that statements, written or (C) is relevant, only if the accused is a person
verbal, of relevant facts made by a person who known to the prosecutrix.
is dead, or who cannot be found, or who has (D) is relevant to prove consent.
become incapable of giving evidence, or whose Ans. (B)
attendance cannot be procured without an The previous sexual experience of a prosecutrix
amount of delay or expense which under the in a case of rape where the question of consent
circumstances of the case appears to the Court is an issue is irrelevant.
unreasonable, are themselves relevant facts in all 23. The facts of which the Court must take
the situations provided from under sub-sections judicial notice include the:
1 to 8. (A) gazetted holidays observed by the
20. The opinion of an expert is relevant under: Government of India.
(A) Section 45 of the Indian Evidence Act. (B) rules of road.
(B) Section 46 of the Indian Evidence Act. (C) Neither (A) nor (B)
(C) Section 47 of the Indian Evidence Act. (D) Both (A) and (B)
(D) Section 48 of the Indian Evidence Act. Ans. (D)
Ans. (A) The facts of which the Court must take judicial
The opinion of an expert is relevant under Section notice include the gazetted holidays observed by
45 of the Indian Evidence Act, 1872. the Government of India, rules of road, etc. (Entry
21. Which of the following cases character is not number 9 and 13 under Section 57).
relevant under Law of Evidence? 24. Contents of a document under Section 59 of
(A) In civil cases, the fact that character is the Indian Evidence Act, 1872 may be proved
such as to render probable or improbable by:
any conduct imputed to him (A) oral evidence.
(B) Previous good character in criminal (B) circumstantial evidence.
cases (C) primary or secondary evidence.
(C) Previous bad character in criminal cases (D) None of the above
in reply to evidence of good character Ans. (C)
(D) In a civil case, character is such as to Contents of a document under Section 59 of
affect the damages he ought to receive the Indian Evidence Act, 1872 may be proved by
Ans. (A) primary or secondary evidence.

Indian Evidence Act, 1872 119

 25. Which of the following statement with ⚪ counterparts of documents as against the
reference to Indian Evidence Act, 1872 is not parties who did not execute them,
correct? ⚪ oral accounts of the contents of a document
(A) The contents of documents may be given by some person who has himself seen
proved either by primary or by secondary it (Section 63).
evidence.
26. Which of the following Sections of the Indian
(B) Primary evidence means the document
Evidence Act provides for the admissibility of
itself produced for the inspection of the
the secondary evidence?
Court.
(A) Section 60
(C) Counterparts of documents as against
(B) Section 61
the parties who execute them, comes
(C) Section 63
under secondary evidence.
(D) Section 65
(D) Oral evidence must be direct.
Ans. (D)
Ans. (C)
Section 65 provides, “Cases in which secondary
y The contents of documents may be proved
evidence relating to documents may be given”.
either by primary or by secondary evidence
(Section 61). 27. Special provisions as to evidence relating to
electronic record were inserted in the Indian
y Primary evidence means the document itself
Evidence Act, 1872:
produced for the inspection of the Court.
(A) in the form of Section 65B w.e.f.
⚪ Explanation 1: Where a document is
17-10-2000.
executed in several parts, each part is
(B) in the form of Section 68B w.e.f.
primary evidence of the document. Where
17-10-2000.
a document is executed in counterpart,
(C) in the form of Section 65B w.e.f.
each counterpart being executed by one or
12-08-2002.
some of the parties only, each counterpart
(D) in the form of Section 68B w.e.f.
is primary evidence as against the parties
12-08-2002.
executing it.
Ans. (A)
⚪ Explanation 2: Where a number of Special provisions as to evidence relating to
documents are all made by one uniform electronic record were inserted in the Indian
process, as in the case of printing, Evidence Act, 1872, by Act 21 of 2000, in the form
lithography or photography, each is primary of Section 65B w.e.f. 17-10-2000.
evidence of the contents of the rest; but,
28. A document claimed to be a Will shall not be
where they are all copies of a common
used as evidence until:
original, they are not primary evidence of
(A) all attesting witnesses have been called
the contents of the original [Section 62].
for the purpose of proving its execution.
y Secondary evidence means and includes:
(B) all attesting witnesses alive and subject
⚪ certified copies given under the provisions to the process of the Court and capable
hereinafter contained, of giving evidence have been called for
⚪ copies made from the original by mechanical the purpose of proving its execution.
processes which in themselves insure the (C) one attesting witness at least has been
accuracy of the copy, and copies compared called for the purpose of proving its
with such copies, execution, if there be an attesting witness
⚪ copies made from or compared with the alive, and subject to the process of the
original, Court and capable of giving evidence.

120 Indian Evidence Act, 1872

 (D) it has been registered in accordance with (C) The record of proceedings of the House
the provisions of the Indian Registration of the People maintained in the Lok
Act, 1908. Sabha Secretariat.
Ans. (C) (D) Pronote executed by A while taking loan
A document claimed to be a Will shall not be from a money lender.
used as evidence until one attesting witness at Ans. (D)
least has been called for the purpose of proving Pronote executed by A while taking loan from a
its execution, if there be an attesting witness money lender is not public document.
alive, and subject to the process of the Court and 30. Under which Section of the Indian Evidence
capable of giving evidence. Act, provisions for presumption as to gazettes
29. Mark what is not a public document within in electronic form has been made?
the meaning of the expression used in the (A) Section 85C
Evidence Act? (B) Section 81A
(A) The records of Motor Accident Claims (C) Section 88A
Tribunal (D) Section 90A
(B) The register of private documents Ans. (B)
maintained in the office of sub-registrar y Section 81A provides for presumption as to
under the Registration Act. gazettes in electronic forms.
y Inserted by Act 21 of 2000, s. 92, and the
Second Schedule (w.e.f. 17-10-2000).

Previous Years’ Questions

31. In respect of a certified copy, 30 years old, 33. The burden of proving that the case of the
which fulfils all the conditions laid under accused comes within any of the General
Section 90 of the Indian Evidence Act, the Exceptions in the Indian Penal Code is upon
Court: the:
[Jharkhand Judicial Services (Pre.), 2014] [DJS (Pre.), 2014]
(A) prosecution.
(A) shall presume.
(B) Court.
(B) may presume.
(C) will not presume. (C) accused.
(D) Investigating Police Officer.
(D) None of the above
Ans. (C)
Ans. (B)
As per Section 105 of the Act, the burden of proving
In respect of a certified copy, 30 years old, which
that the case of the accused comes within any of
fulfils all the conditions laid under Section 90 of
the General Exceptions in the Indian Penal Code
the Indian Evidence Act, the court may presume.
is upon the accused.
32. Burden of proof is lightened by:
34. A is charged with travelling on a railway
[HJS (Pre.), 2011; DJS Set A (Pre.), 2019]
without ticket. The burden of proof is on him
(A) presumptions. according to Indian Evidence Act, 1872 under:
(B) admissions.
[Uttarakhand JS (Pre.), 2017]
(C) estoppel.
(A) Section 102.
(D) All the above
(B) Section 106.
Ans. (D)
(C) Section 107.
Burden of proof is lightened by presumptions,
(D) Section 108.
admissions, estoppel, etc.
Ans. (B)

Indian Evidence Act, 1872 121

 A is charged with travelling on a railway without to answer a question which he is not
ticket. The burden of proof is on him according to compelled to answer by law, the answer,
Indian Evidence Act, 1872 under Section 106. if given would be unfavourable to him.
35. ‘Presumption of life’ is contained in: (D) All of the above

[Bihar APO (Pre.) Advt. 39/2009] Ans. (D)

Illustrations of Section 114, the Court may
(A) Section 106.
presume:
(B) Section 107.
y that a man who is in possession of stolen
(C) Section 108.
goods soon after the theft is either the thief
(D) Section 109.
or has received the goods knowing them
Ans. (B)
to be stolen, unless he can account for his
Section 107 deals with ‘Presumption of Life.’
possession;
Section 108 deals with ‘Presumption of Death.’
36. Under Section 113A of the Evidence Act, the y that an accomplice is unworthy of credit, unless
Court ______ presume and under Section he is corroborated in material particulars;
113B of the Evidence Act, the Court ______ y that a bill of exchange, accepted or endorsed,
presume. was accepted or endorsed for good
[PJS (Pre.), 2013] consideration;

(A) may, shall y that a thing or state of things which has been
(B) may, may shown to be in existence within a period
(C) shall, shall shorter than that within which such things or
(D) shall, may states of things usually cease to exist, is still
Ans. (A) in existence;
Court may presume, Section 113A. y that judicial and official acts have been
Court shall presume, Section 113B. regularly performed;
37. The Court may presume: y that the common course of business has been
[ DJS Set-A (Pre.), 2018-2019] followed in particular cases;
(A) that when a document creating an y that evidence which could be and is not
obligation is in the hands of the obligor, produced would, if produced, be unfavourable
the obligation has been discharged. to the person who withholds it;
(B) that an accomplice is unworthy of credit
y that if a man refuses to answer a question
unless he is corroborated in material
which he is not compelled to answer by law,
particulars.
the answer, if given, would be unfavourable to
(C) that judicial and official acts have
him;
been regularly performed and that a
y that when a document creating an obligation
bill of exchange, accepted or endorsed
is in the hands of the obligor, the obligation
was accepted or endorsed for good
has been discharged.
consideration and that judicial and official
acts have been regularly performed and 38. Promissory estoppel is the extension of
that the common course of business principle contained in which provision of the
have been followed in particular cases Evidence Act:
and that evidence which could be and
[RJS (Pre.), 2018]
is not produced would, if produced,
(A) Section 65
be unfavourable to the person who
(B) Section 110
withholds it and that if a man refuses

122 Indian Evidence Act, 1872

 (C) Section 115 (A) Deaf
(D) Section 150 (B) Minor
Ans. (C) (C) Mentally retarded
Promissory estoppel is the extension of principle (D) Dumb
contained in Section 115 of the Act. Ans. (C)
39. All persons shall be competent to testify Mentally retarded cannot be a competent witness.
unless the Court considers that they are y Minor, deaf and dumb can be the competent
prevented from ____ the questions put to witness if they satisfy the Court.
them. y All persons shall be competent to testify
[PJS (Pre.), 2013] unless the Court considers that they are
(A) understanding prevented from understanding the questions
(B) properly understanding put to them, or from giving rational answers to
(C) rationally understanding those questions, by tender years, extreme old
(D) comprehending age, disease, whether of body or mind, or any
Ans. (A) other cause of the same kind.
All persons shall be competent to testify unless y A lunatic is not incompetent to testify,
the Court considers that they are prevented from unless he is prevented by his lunacy from
understanding the questions put to them. understanding the questions put to him and
All persons shall be competent to testify unless giving rational answers to them.
the Court considers that they are prevented from
42. No revenue officer shall be compelled to
understanding the questions put to them, or from
say whence he got any information as to the
giving rational answers to those questions, by
commission of any offence against the public
tender years, extreme old age, disease, whether
revenue. This provision is contained in:
of body or mind, or any other cause of the same
[Jharkhand Judicial Services (Pre.), 2008]
kind (Section 118).
(A) Section 125, the Evidence Act.
40. Evidence given by dumb witness according to
(B) Section 124, the Evidence Act.
Section 119, shall be treated to be:
(C) Section 123, the Evidence Act.
[Chhattisgarh PSC CJ (Pre.), 2014]
(D) Section 126, the Evidence Act.
(A) oral evidence. Ans. (A)
(B) documentary evidence. No Magistrate or police officer shall be compelled
(C) hearsay evidence. to say whence he got any information as to the
(D) circumstantial evidence. commission of any offence, and no revenue
Ans. (A) officer shall be compelled to say whence he got
Evidence given by dumb witness according to any information as to the commission of any
Section 119, shall be treated to be oral evidence offence against the public revenue.
(Section 119). Revenue officer in this Section means any officer
If the witness is unable to communicate employed in or about the business of any branch
verbally, the Court shall take the assistance of of the public revenue (Section 125).
an interpreter or a special educator in recording
43. Which of the following Sections of the Indian
the statement, and such statement shall be
Evidence Act applies to the pleaders relating
videographed.
to professional communications?
41. Which of the following is not a competent
[Uttarakhand JS (Pre.), 2018]
witness?
(A) Sections 128 and 125
[MPJS Class 2 Entry-Level (Pre.)
(B) Sections 129 and 130
(Shift 1), 2018]

Indian Evidence Act, 1872 123

 (C) Sections 126 and 127 (D) Both (A) and (B)
(D) Sections 131 and 132 Ans. (D)
Ans. (C) Leading questions must not, if objected to by
Sections 126 and 127 of the Indian Evidence Act the adverse party be asked in an examination-
apply to the pleaders relating to professional in-chief, or in a re-examination, except with the
communications. permission of the Court. The Court shall permit
44. The provisions of Section 126 of the leading questions as to matters which are
Evidence Act dealing with confidentiality of introductory or undisputed, or which have, in its
professional communication shall apply to: opinion, been already sufficiently proved (Section
[HJS (Pre.), 2013] 142).
Leading questions may generally be asked in
(A) clerks of barristers
cross-examination.
(B) servants of pleaders
(C) interpreters of barristers 47. Leading questions are not permissible:
(D) All of the above I. in cross-examination.
Ans. (D) II.in examination-in-chief, without
No barrister, attorney, pleader or vakil shall at permission of the Court.
any time be permitted, unless with his client’s Choose the correct option.
express consent, to disclose any communication [Maharashtra JS (Pre.), 2019]
made to him in the course and for the purpose (A) I is correct and II is incorrect
of his employment as such barrister, pleader, (B) I is incorrect and II is correct
attorney or vakil, by or on behalf of his client, or to (C) Both are correct
state the contents or condition of any document (D) Both are incorrect
with which he has become acquainted in the Ans. (B)
course and for the purpose of his professional Leading questions are not permissible in
employment or to disclose any advice given by examination-in-chief, without permission of the
him to his client in the course and for the purpose Court.
of such employment (Section 126). Leading questions must not, if objected to by
45. The term ‘examination-in-chief’ has been the adverse party be asked in an examination-
defined in the Indian Evidence Act, 1872 in: in-chief, or in a re-examination, except with the
[Odisha JS (Pre.), 2011] permission of the Court. The Court shall permit
leading questions as to matters which are
(A) Section 137.
introductory or undisputed, or which have, in its
(B) Section 138.
opinion, been already sufficiently proved (Section
(C) Section 139.
142).
(D) Section 140.
Leading questions may be asked in cross-
Ans. (A)
examination (Section 143).
Section 137 deals with examination-in-chief.
48. Statement recorded during investigation
46. Leading questions may be asked in
under Section 161 of CrPC can be used during
examination-in-chief:
trial:
[DJS (Pre.), 2014]
[HJS (Pre.), 2021]
(A) with permission of the Court as to
(A) for corroborating the witness.
matters which are introductory.
(B) for contradicting the witness.
(B) if in the opinion of the Court the matter
(C) Both (A) and (B)
involved has been already sufficiently
(D) Neither (A) nor (B)
proved.
Ans. (B)
(C) Neither (A) nor (B)

124 Indian Evidence Act, 1872

Statement recorded during investigation under (C) Section 159
Section 161 of CrPC can be used during trial for (D) Section 162
contradicting the witness. Ans. (C)
Cross-examination as to previous statements Section 159 of the Indian Evidence Act deals with
in writing. A witness may be cross-examined as “refreshing memory”.
to previous statements made by him in writing A witness may, while under examination, refresh
or reduced into writing, and relevant to matters his memory by referring to any writing made by
in question, without such writing being shown himself at the time of the transaction concerning
to him, or being proved; but, if it is intended to which he is questioned, or so soon afterwards that
contradict him by the writing, his attention must, the Court considers it likely that the transaction
before the writing can be proved, be called to was at that time fresh in his memory.
those parts of it which are to be used for the The witness may also refer to any such writing
purpose of contradicting him (Section 145). made by any other person, and read by the witness
within the time aforesaid, if when he read it, he
49. Which Section of Indian Evidence Act, 1872
knew it to be correct (Section 159).
provides about hostile witness?
52. Under the Indian Evidence Act, power of
[Jharkhand APO (Pre.), 2019]
the Judge to put questions and order of
(A) Section 133
production of document or thing in the Court
(B) Section 145
has been provided in:
(C) Section 154
(D) Section 161 [Uttarakhand JS (Pre.), 2018]
Ans. (C) (A) Section 162
Section 154 provides about hostile witness. (B) Section 163
50. Under the Indian Evidence Act, 1872, evidence (C) Section 164
of “hostile witness”: (D) Section 165

[MPJS (Pre.), 2015; MPJS Class 2 Ans. (D)

Entry-Level (Pre.) (Shift 2), 2018)] Power of the Judge to put questions and order of
(A) cannot be taken into consideration for production of document or thing in the court has
any purpose. been provided in Section 165.
(B) cannot be relied on by the prosecution. 53. Which of the following means ‘a fact to be
(C) can be relied only by the defence. proved’?
(D) can be relied on by the prosecution as
[Uttarakhand JS (Pre.), 2017]
well as the defence.
(A) Quid probandum
Ans. (D)
Hostile witnesses mean “advance” or unfavourable (B) Modus probandi
witnesses. (C) Both (A) and (B)
Evidence of “hostile witness” can be relied on by (D) None of the above
the prosecution as well as the defence. Ans. (A)
51. Under which Section of Indian Evidence Act, Quid probandum means a fact to be proved.
provision regarding right to refresh memory
54. The maxim ‘falsus in uno, falsus in omnibus’
has been provided?
is ______.
[UK APO (LAW), 2021]
[PJS (Pre.), 2019]
(A) Section 154
(A) a sound rule of evidence
(B) Section 156
(B) a sound rule of law

Indian Evidence Act, 1872 125

 (C) Both (A) and (B) Case reference: Pawan Kumar versus State of
(D) None of the above Haryana, AIR 2001 SC 1324.
Ans. (A) This case relates to presumption as to abetment
The maxim ‘falsus in uno, falsus in omnibus’ is a of suicide by a married woman.
sound rule of evidence. 57. In which of the following cases the Supreme
Falsus in uno, falsus in omnibus is a Latin phrase Court held that “any information or material
meaning false in one thing, false in everything. that is subsequently discovered with the
55. Under the Indian Evidence Act, the evidence help of voluntarily administered test result
given by dog squad is: can be admitted, in accordance with Section
[MPJS (Pre.) 2017; MPJS Class-2 Entry Level 27 of the Indian Evidence Act, 1872.”?
(Pre) 2018 (Shift - II)] [Uttarakhand JS (Pre.), 2016]
(A) not admissible. (A) Selvi versus State of Karnataka
(B) not admissible because dependent on (B) C Muniappam versus State of Tamil Nadu
the canine inference. (C) Sunderlal Kanaiyalal versus State of
(C) dogs cannot give evidence on oath. Maharashtra
(D) admissible. (D) C Mangesh versus State of Karnataka
Ans. (D) Ans. (A)
Case reference: State of UP versus Ram Balak, Case reference: Selvi versus State of Karnataka,
2008 INSC 1702. 2010.
There are three objections which are usually The Supreme Court held that “any information or
advanced against the reception of such evidence. material that is subsequently discovered with the
First, since it is manifest that the dog cannot help of voluntarily administered test result can
go into the box and give his evidence on oath, be admitted, in accordance with Section 27 of the
and consequently submit himself to cross- Indian Evidence Act, 1872.”
examination, the dog’s human companion must
58. It has been held by the Supreme Court in RM
go into the box and report the dog’s evidence,
Malkani versus State of Maharashtra that a
and this is clearly hearsay.
contemporaneous tape-record of a relevant
Secondly, there is a feeling that in criminal cases
conversation is a relevant fact. It is:
the life and liberty of a human being should not
[Jharkhand Judicial Services (Pre.), 2016]
be dependent on canine inferences.
(A) relevant.
Thirdly, it is suggested that even if such evidence (B) res gestae.
is strictly admissible under the rules of evidence (C) admissible.
it should be excluded because it is likely to have (D) documents.
a dramatic impact on the jury out of proportion Ans. (B)
to its value. Case reference: RM Malkani versus State of
Evidence of dog tracking, even if admissible, is Maharashtra, AIR 1973 SC 157: 1973 SCR (2) 417.
not ordinarily of much weight. A contemporaneous tape record of a relevant
56. Pawan Kumar versus State of Haryana, AIR conversation is a relevant fact and is admissible
2001 SC 1324 relates to: under Section 8 of the Evidence Act. It is res
[Uttarakhand JS (Pre.), 2017] gestae.
(A) presumption as to dowry death.
59. The “test identification parade is only an aid
(B) presumption as to legitimacy.
to investigation. The practice is not born out
(C) presumption as to rape.
of prudence” was held by Supreme Court of
(D) presumption as to abetment of suicide
India in:
by a married woman.
[HPJS (Pre.), 2018]
Ans. (D)

126 Indian Evidence Act, 1872

 (A) Sidhartha Vashisht @ Manu Sharma the IO conducts a TIP to ensure that he has got
versus State (NCT of Delhi), AIR 2010 SC the right person as an accused. The practice is
2352. not born out of procedure, but out of prudence.
(B) Shivaji versus Nagendra, AIR 2010 SC 60. The case of Palvinder Kaur versus State of
2261. Punjab is related to which of the following?
(C) S Jaiswal versus Alok, AIR 2010 SC (NOC)
[UK APO (LAW), 2021]
805.
(A) Admission
(D) Sujata versus SK Bahera, AIR 2010 (NOC)
(B) Secondary evidence
812.
(C) Confession
Ans. (A)
(D) Estoppel
Case reference: Sidhartha Vashisht @ Manu
Ans. (C)
Sharma versus State (NCT of Delhi), AIR 2010 SC
Case reference: Palvinder Kaur versus State of
2352.
Punjab, 1952.
It is only by virtue of Section 9 of the Evidence
It is related to confession.
Act that the same, i.e., the act of identification
A statement that contains self-exculpatory matter
becomes admissible in Court. The logic behind
cannot amount to a confession, if the exculpatory
TIP, which will include photo identification lies
statement is of some fact, which if true, would
in the fact that it is only an aid to investigation,
negative the offence alleged to be confessed.
where an accused is not known to the witnesses,

Recent and Relevant Cases

Satye Singh versus State of Uttarakhand, (2022) 5 SCC 438; also see, Shambu Nath Mehra versus The
State of Ajmer, AIR 1956 SC 404
Point/s to note: Section 106, scope of Section 106; burden of proof; accused.
Scope of Section 106 of the Evidence Act in Criminal Trial
“When any fact is especially within the knowledge of any person, the burden of proving that fact is on
him”. The stress, in our opinion, is on the word “especially”. Section 106 is an exception to Section 101.
Section 101 lays down the general rule about the burden of proof. “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”. Illustration (a) says, “‘A’ desires a Court to give judgment that ‘B’ shall be
punished for a crime which ‘A’ says ‘B’ has committed. ‘A’ must prove that ‘B’ has committed the crime”.
This lays down the general rule that in a criminal case the burden of proof is on the prosecution and
Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for
the prosecution to establish facts which are especially within the knowledge of the accused and which
he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts
that are pre-eminently or exceptionally within his knowledge. If the Section were to be interpreted
otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the
accused to prove that he did not commit the murder because who could know better than he whether
he did or did not.
——————

Indian Evidence Act, 1872 127

 Iqbal Basith versus N Subbalakshmi, (2021) 2 SCC 718
Point/s to note: Section 90; admissibility in evidence; execution of old documents; 30 years.
Admissibility in Evidence
Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely
difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of
old documents after lapse of 30 years. In order to obviate such difficulties or improbabilities to prove
execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does
away with the strict rule of proof of private documents. Presumption of genuineness may be raised
if the documents in question are produced from proper custody. It is, however, the discretion of the
court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that
judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by
reasons.
——————
Venkatesh @ Chandra versus State of Karnataka, 2022 LiveLaw (SC) 387
Point/s to note: Section 27; disclosure of information; consequence of information given; confession
of an accused.
Parameters of Section 27
y Simultaneous or identical disclosures are not an anathema to Section 27 of the Evidence Act.
y Section 27 states that only so much of information which relates distinctly to the facts thereby
discovered can be stated to have been proved. The condition necessary to bring the Section 27 into
operation is that discovery of a fact in consequence of information received from a person accused
of any offence in the custody of a police officer must be deposed to, and thereupon so much of the
information as relates distinctly to the fact thereby discovered may be proved. The Section seems to
be based on the view that if a fact is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to
be given in evidence; but clearly the extent of the information admissible must depend on the exact
nature of the fact discovered to which such information is required to relate.
y In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act
finds its place on record. Such kind of statements may have a direct tendency to influence and
prejudice the mind of the Court.
y If at all the accused were desirous of making confessions, the investigating machinery could have
facilitated recording of confession by producing them before a Magistrate for appropriate action in
terms of Section 164 of the Code. Any departure from that course is not acceptable and cannot be
recognised and taken on record as evidence.
——————
Jafarudheen versus State of Kerala, 2022 8 SCC 440
Point/s to note: Section 27; exception to Section 25 and 26; admissibility under Section 27; fact
discovered.
Section is an Exception to Sections 25 and 26
y Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27
is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof
of a fact discovered in consequence of information received from a person in custody, accused of

128 Indian Evidence Act, 1872

 an offense. Thus, it incorporates the theory of “confirmation by subsequent facts” facilitating a link
to the chain of events. It is for the prosecution to prove that the information received from the
accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it
ultimately touches upon the issue pertaining to the discovery of a new fact through the information
furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a
specific purpose and thus be construed as a proviso.
y The onus is on the prosecution to prove the fact discovered from the information obtained from
the accused. This is also for the reason that the information has been obtained while the accused
is still in the custody of the police. Having understood the aforesaid object behind the provision,
any recovery under Section 27 will have to satisfy the Court’s conscience. One cannot lose sight of
the fact that the prosecution may at times take advantage of the custody of the accused, by other
means. The Court will have to be conscious of the witness’s credibility and the other evidence
produced when dealing with a recovery under Section 27 of the Evidence Act.
y This Section is an exception to Sections 25 and 26, which prohibit the proof of a confession made
to a police officer or a confession made while a person is in police custody, unless it is made in
immediate presence of a Magistrate. Section 27 allows that part of the statement made by the
accused to the police “whether it amounts to a confession or not” which relates distinctly to the
fact thereby discovered to be proved. Thus, even a confessional statement before the police which
distinctly relates to the discovery of a fact may be proved under Section 27.
——————
Surendran versus State of Kerala, 2022 LiveLaw (SC) 482
Point/s to note: Dying declaration; Section 32; admissibility of statements; relevant statement; test for
admissibility.
y Section 32 relates to the admissibility of statements made by a person who cannot be called as
witness. The Section itself specifies the circumstances under which such statements become
relevant.
y Test for admissibility under the said Section is not that the evidence to be admitted should directly
relate to a charge pertaining to the death of the individual, or that the charge relating to death could
not be proved. Rather, the test appears to be that the cause of death must come into question in
that case, regardless of the nature of the proceeding, and that the purpose for which such evidence
is being sought to be admitted should be a part of the ‘circumstances of the transaction’ relating to
the death.
y In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible
in a trial for a charge under Section 498 A of the IPC under Section 32(1) of the Evidence Act. There
are, however, certain necessary pre-conditions that must be met before the evidence is admitted.
The first condition is that her cause of death must come into question in the matter. This would
include, for instance, matters where along with the charge under Section 498A of the IPC, the
prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC. It must be
noted however that as long as the cause of her death has come into question, whether the charge
relating to death is proved or not is immaterial with respect to admissibility. The second condition
is that the prosecution will have to show that the evidence that is sought to be admitted with
respect to Section 498A of the IPC must also relate to the circumstances of the transaction of
the death. How far back the evidence can be, and how connected the evidence is to the cause of
death of the deceased would necessarily depend on the facts and circumstances of each case. No

Indian Evidence Act, 1872 129

 specific straitjacket formula or rule can be given with respect to this. The judgments of this Court
in Gananath Pattnaik versus State of Orissa, (2002) 2 SCC 619, Inderpal versus State of MP, (2001) 10
SCC 736, Bhairon Singh versus State of Madhya Pradesh, (2009) 13 SCC 80 and Kantilal Martaji Pandor
versus State of Gujarat, (2013) 8 SCC 781,wherein it has been held that the evidence of the deceased
cannot be admitted under Section 32(1) of the Evidence Act to prove the charge under Section 498A
of the IPC only because the accused stands acquitted of the charge relating to the death of the
deceased, may not be correct. These judgments stand overruled to that limited extent. Same line of
reasoning held in above-stated cases, i.e., once the Court has acquitted an accused of the charge
relating to the death of an individual, the evidence of the deceased would not be admissible to prove
the charge under Section 498A of the IPC simpliciter as then the case would no longer relate to the
death of the deceased.
——————
Arjun P Khotkar versus Kailash K Gorantyal, (2020) 7 SCC 1
Point/s to note: Section 65B; Section 136; similar provisions; interpretation of Section 65B.
What is laid down in Section 65B as a precondition for the admission of an electronic record, resembles
what is provided in the second part of Section 136?
y There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the
evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136
states that if the fact proposed to be proved is one, of which evidence is admissible only upon proof
of some other fact, such last mentioned fact must be proved before evidence is given of the fact
first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to
produce proof of the last-mentioned fact later and the Court is satisfied about such undertaking, the
Court may proceed to admit evidence of the first mentioned fact. The third part of Section 136 deals
with the relevancy of one alleged fact, which depends upon another alleged fact being first proved.
The third part of Section 136 has no relevance for our present purpose.
y What is laid down in Section 65B as a precondition for the admission of an electronic record,
resembles what is provided in the second part of Section 136. For example, if a fact is sought to
be proved through the contents of an electronic record (or information contained in an electronic
record), the Judge is first required to see if it is relevant, if the first part of Section 136 is taken to
be applicable.
y Section 65B makes the admissibility of the information contained in the electronic record subject
to certain conditions, including certification. The certification is for the purpose of proving that the
information which constitutes the computer output was produced by a computer which was used
regularly to store or process information and that the information so derived was regularly fed into
the computer in the ordinary course of the said activities.
y Sub-section (1) of Section 65B starts with a non-obstante clause excluding the application of the
other provisions and it makes the certification, a precondition for admissibility. While doing so, it
does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mix-up both proof
and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in
Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks
entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as
the first or the outermost check post, capable of turning away even at the border, any electronic
evidence, without any enquiry, if the conditions stipulated therein are not fulfilled.
——————

130 Indian Evidence Act, 1872

Uttam versus State of Maharashtra, (2022) 8 SCC 576
Point/s to note: Section 32; dying declaration; significance of a dying declaration; exception.
Significance of a Dying Declaration
y Sub-section (1) of Section 32 of the Evidence Act is an exception to the general rule that hearsay
evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not
creditworthy.
y Dying declaration is the last statement that is made by a person as to the cause of his imminent
death or the circumstances that had resulted in that situation, at a stage when the declarant is
conscious of the fact that there are virtually nil chances of his survival. On an assumption that at
such a critical stage, a person would be expected to speak the truth, courts have attached great
value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872, states that
when a statement is made by a person as to the cause of death, or as to any of the circumstances
which resulted in his death, in cases in which the cause of that person’s death comes into question,
such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact
and is admissible in evidence. It is noteworthy that the said provision is an exception to the general
rule contained in Section 60 of the Evidence Act that ‘hearsay evidence is inadmissible’ and only
when such an evidence is direct and is validated through cross-examination, is it considered to be
trustworthy [Shudhakar versus State Of MP, (2012) 7 SCC 569].
y The doctrine of dying declaration is enshrined in the legal maxim nemo moritur us praesumitur
mentire, which means “a man will not meet his Maker with a lie in his mouth”. The doctrine of dying
declaration is enshrined in Section 32 of the Evidence Act, 1872 as an exception to the general rule
contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must
be direct, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in
fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-
examined. Such statements themselves are relevant facts in certain cases [Lakhan versus State of
MP, (2010) 8 SCC 514].
——————
Nagendra Sah versus State of Bihar, (2021) 10 SCC 725
Point/s to note: Section 106; Section 101; burden of proof; beyond reasonable doubt; circumstantial
evidence.
Section 106 Constitutes an Exception to Section 101
y Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability
dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is
always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus,
Section 106 constitutes an exception to Section 101.
y Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in
establishing the facts from which a reasonable inference can be drawn regarding the existence of
certain other facts which are within the special knowledge of the accused. When the accused fails
to offer proper explanation about the existence of said other facts, the Court can always draw an
appropriate inference.
y When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation
in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure
may provide an additional link to the chain of circumstances. In a case governed by circumstantial

Indian Evidence Act, 1872 131

 evidence, if the chain of circumstances which is required to be established by the prosecution is not
established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act
is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict
the accused.
——————
Anglo American Metallurgical Coal Pty. Ltd. versus MMTC Ltd., (2021) 3 SCC 308
Point/s to note: Section 94; patent ambiguity; plain language; plain in itself.
Patent Ambiguity
y Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document
when it is plain and applies accurately to existing facts. It says that evidence may be given to show
that it was not meant to apply to such facts.
y When Sections 92, 94 and 95 of the Evidence Act are applied to a string of correspondence between
parties, it is important to remember that each document must be taken to be part of a coherent
whole, which happens only when the ‘plain’ language of the document is first applied accurately to
existing facts.
y The picture that emerges, therefore, is that a ‘patent ambiguity’ provision, as contained in Section 94
of the Evidence Act, is only applicable when a document applies accurately to existing facts, which
includes how a particular word is used in a particular sense.
y The principle contained in Section 94 of the Evidence Act, as to extrinsic evidence being inadmissible
in cases of ‘patent ambiguity’, is fundamental to Indian jurisprudence.
y Section 94 of the Evidence Act, speaks of language being used in a document being “plain in itself”.
It is only when such document “applies accurately to existing facts”, that evidence may not be given
to show that it was not meant to apply to such facts.
——————
Neeraj Dutta versus State (GNCTD), 2022 LiveLaw (SC) 1029
Point/s to note: Section 154; hostile witness; witness is treated as hostile.
Hostile Witness
y The expression ‘hostile witness’ must be read in the context of Section 154 of the Evidence Act.
Section 154 states that the Court may, in its discretion, permit the person who calls a witness to put
any question to him which might be put in cross-examination by the adverse party. It further states
that the Section does not disentitle the person so permitted to rely on any part of the evidence of
such witness.
y A ‘hostile witness’ is described as one who is not desirous of telling the truth at the instance of the
party calling him, and an ‘unfavourable witness’ is one called by a party to prove a particular fact in
issue or relevant to the issue who fails to prove such fact, or proves an opposite fact.
y Even if a witness is treated as hostile and is cross-examined, his evidence cannot be written off
altogether but must be considered with due care and circumspection and that part of the testimony
which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence
to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other
words, the fact that a witness has been declared hostile does not result in an automatic rejection of
his evidence. Even, the evidence of a ‘hostile witness’ if it finds corroboration from the facts of the

132 Indian Evidence Act, 1872

 case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to
raise a conviction upon a ‘hostile witness’ testimony if corroborated by other reliable evidence.
——————
Gireesan Nair versus State of Kerala, 2022 LiveLaw (SC) 955: 2022 SCC OnLine SC 1558
Point/s to note: Test identification parade; Section 9 Evidence Act; Section 162 CrPC; TIP in presence
of police.
Test Identification Parade
y Test identification parades (TIPs) belong to the stage of investigation by the police. It assures that
investigation is proceeding in the right direction. It is a rule of prudence which is required to be
followed in cases where the accused is not known to the witness or the complainant. The evidence
of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive
piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court
of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as
trustworthy evidence on which the conviction of an accused can be sustained.
y Accused had objected to how the TIP was conducted and the events preceding it which included:the
accused being shown to the witnesses from the cabin of the IO (PW-84);
⚪ the accused being photographed, and video graphed while they were in police custody;
⚪ securing the presence of the witnesses in court while the accused were produced for extension
of their remand; and
⚪ the accused wearing the same dress straight from their arrest till the date of the TIP.
y The Apex Court was of the opinion that the conduct of the TIP, coupled with the hovering presence
of the police during the conduct of the TIP vitiated the entire process. TIP conducted in the presence
of a police officer is inadmissible.
——————
State of Jharkhand versus Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890: 2022 SCC
OnLine SC 1494
Point/s to note: Dying declaration; DD to police; recording of DD; Section 32.
No Bar to a Police Officer Recording a Dying Declaration
y Dying declaration (DD) does not become inadmissible merely because it was recorded by police
officer.
y Section 32 of the Evidence Act provides that in certain cases, statements by persons who cannot be
called as witnesses (and are therefore unable to give direct evidence) are relevant.
y There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a
police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by
a Magistrate, if possible, it cannot be said that dying declarations recorded by police personnel are
inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police
is admissible must be decided after considering the facts and circumstances of each case [State of
Karnataka versus Shariff, (2003) 2 SCC 473].
——————

Indian Evidence Act, 1872 133

 Subramanya versus State of Karnataka, 2022 LiveLaw (SC) 887: 2022 SCC OnLine SC 996
Point/s to note: Section 30; confession of co-accused; interpretation.
Interpretation of Section 30
y Under Section 30 of the Evidence Act, the Court might take into consideration the confession and
thereby no doubt made it evidence on which the Court could act, but the Section did not say that
the confession was to amount to proof. Clearly, there must be other evidence and confession was
only one element in the consideration of all the facts proved in the case, which can be put into the
scale and weighed with other evidence.
y Under Section 30, the confession of a co-accused can only be taken into consideration but is not in
itself substantive evidence.
y The case in hand is not one of a confession recorded under Section 15 of the TADA Act. On the language
of Section 15(1), a confession of an accused is made admissible evidence as against all those tried
jointly with him. So, it is implicit that the same can be considered against all those, tried together.
In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration
of confession of an accused against the co-accused, abettor or conspirator charged and tried in the
same case along with the accused. The accepted principle in law is that the confessional statement
of an accused recorded under Section 15 of the TADA Act is a substantive piece of evidence against his
co-accused, provided the accused concerned are tried together. This is the fine distinction between
an extra judicial confession being a corroborative piece of evidence and a confession recorded under
Section 15 of the TADA Act being treated as a substantive piece of evidence.
——————
Inayath Ali versus State of Telangana, 2022 LiveLaw (SC) 869; also see Ashok Kumar versus Raj Gupta
and Ors., (2022) 1 SCC 20
Point/s to note: Section 112; “est quem nuptiae demonstrant”; presumption of legitimacy; protective
cover to children; conclusiveness of Section 112; irrebuttable presumption.
Section 112 of the Evidence Act is based on the well-known maxim pater is est quem nuptiae demonstrant
(he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born
of a married woman is deemed to be legitimate, it throws on the person who is interested in making
out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony
is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law
in general presuming against vice and immorality.
Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with
deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation
of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that
is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife
were living together during the time of conception but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from
the point of view of the husband who would be compelled to bear the fatherhood of a child of which
he may be innocent. But even in such a case the law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living together during the time of conception. Hence
the question regarding the degree of proof of non-access for rebutting the conclusiveness must be
answered in the light of what is meant by access or non-access as delineated above.

134 Indian Evidence Act, 1872

Section 112 of the Evidence Act, gives a protective cover to children from allegations of this nature. The
presumption of legitimacy of a child can only be displaced by strong preponderance of evidence, and
not merely by balance of probabilities.
——————
Makhan Singh versus The State of Haryana, 2022 Livelaw (SC) 677
Point/s to note: Section 32; dying declaration; admissibility of statements; relevant statement; sole
basis of conviction; corroborative or contradicted.
Law with Regard to Dying Declaration
y Law on the issue of dying declaration can be summarised to the effect that in case the court comes
to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a
time when the deceased was fit physically and mentally to make the declaration and it has not been
made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such
an eventuality no corroboration is required. In case there are multiple dying declarations and there
are inconsistencies between them, generally, the dying declaration recorded by the higher officer like
a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion
about its truthfulness. In case there are circumstances wherein the declaration had been made, not
voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise
the facts of an individual case very carefully and take a decision as to which of the declarations is
worth reliance.
y Dying declaration (DD) can be the sole basis for recording conviction and if it is found reliable and
trustworthy, no corroboration is required. In case there are multiple dying declarations and there are
inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate
can be relied upon. However, this is with the condition that there is no circumstance giving rise to
any suspicion about its truthfulness. In case there are circumstances wherein the declaration has
not been found to be made voluntarily and is not supported by any other evidence, the Court is
required to scrutinize the facts of an individual case very carefully and take a decision as to which
of the declarations is worth reliance.
——————

Practice Questions
1. What is meant by ‘relevancy of facts’? What 5. Write short note on relevancy of admission
are opinions of third persons relevant? in civil cases. [Delhi Judicial Services
Discuss in brief. [Uttar Pradesh Judicial Examination, 2014]
Services Examination, 2015] 6. Write short note on confession by accused
2. Discuss the essential elements of ‘dying before the police officer. [Delhi Judicial
declaration’. When is dying declaration Services Examination, 2014; Uttar Pradesh
relevant? Can dying declaration form the sole Judicial Services Examination, 1987]
basis of conviction? [Uttar Pradesh Judicial 7. Discuss the provision of the Evidence Act
Services Examination, 2015 and 2003] under which a confession of one accused can
3. Distinguish between ‘disproved’ and be used against another co-accused. [Madhya
‘not proved’. [Haryana Judicial Services Pradesh Judicial Services Examination, 2013]
Examination, 2015 and 1999] 8. Write short note on ‘evidentiary value of FIR’
4. When the opinion as to electronic signature lodged by accused. [Madhya Pradesh Judicial
is relevant? [Rajasthan Judicial Services Services Examination, 2012]
Examination, 2015]

Indian Evidence Act, 1872 135

 9. Write short note on evidence of co-accused. 18. What are the essential conditions of valid
[Uttar Pradesh Judicial Services Examination, dying declaration? When a dying declaration
2012] is considered as not admissible? [Haryana
10. What do you mean by presumption? Discuss Judicial Services Examination, 2010]
the kinds of presumption. [Uttar Pradesh 19. What is dying declaration? Can it be sole
Judicial Services Examination, 2012] basis of conviction? Discuss with reference
11. What is fact in issue? Illustrate your answer. to case law. [Delhi Judicial Services
[Uttar Pradesh Judicial Services Examination, Examination, 2008]
2012 and 2000] 20. Write brief note on approvers and accomplice.
12. Discuss the “admissibility of fingerprint [Haryana Judicial Services Examination,
evidence”. [Uttar Pradesh Judicial Services 2007]
Examination, 2011]
21. Write note on expert evidence. [Uttar Pradesh
13. What is the evidentiary value of FIR and in Judicial Services Examination, 2006; Delhi
what cases FIR may become substantive Judicial Services Examination, 2005]
evidence? [Haryana Judicial Services
22. Distinguish between ‘admission’ and
Examination, 2011]
‘confession’? [Haryana Judicial Services
14. Explain an accomplice. How far and to what
Examination, 2006; Uttar Pradesh Judicial
extent the testimony of an accomplice can
Services Examination, 1984]
be relied upon? [Bihar and Jharkhand Judicial
23. What is the relevance and credibility of
Services Examination, 2011 and 2000]
evidence of an accomplice? Whether its
15. What are the provisions relating to the
corroboration is necessary? [Haryana Judicial
relevancy of character of the accused in a
Services Examination, 2003]
criminal case? [Rajasthan Judicial Services
Examination, 2011] 24. Discuss the evidentiary value of retracted
16. Discuss the evidentiary value of ‘dying confession. Illustrate your answer.[Uttar
declaration’. [Haryana Judicial Services Pradesh Judicial Services Examination, 2000]
Examination, 2006 and 1984; Rajasthan 25. ‘A’ and ‘B’ are jointly tried for the murder
Judicial Services Examination, 2011] of ‘C’. It is proved that ‘A’ said ––“‘B’ and I
17. What is “dying declaration”? Whether the murdered ‘C’”. The Court may consider the
dying declaration by itself can be the basis effect of this confession as against ‘B’. [Uttar
for conviction? Give an example with case Pradesh Judicial Services Examination, 1988
law. [Madhya Pradesh Judicial Services and 1992]
Examination, 2011]

Solved Questions
Q. Discuss the essential elements of ‘dying declaration’. When is dying declaration relevant? Can dying
declaration form the sole basis of conviction?
Discuss the evidentiary value of ‘dying declaration’.
What is Dying declaration? Can it be sole basis of conviction? Discuss with reference to case law.
Ans. Dying Declaration
‘Dying declaration’ is a statement, written or verbal, of relevant facts made by a person, who is dead.
It is the declaration of a person who had died explaining the circumstances of his own death. This is
based on the maxim nemo mariturus presumuntur mentri, i.e., a man will not meet his maker with lie on
his mouth. Our Indian law recognises the fact that ‘a dying man seldom lies’ or ‘truth sits upon the lips

136 Indian Evidence Act, 1872

of a dying man’. Section 32(1) of the Act makes relevant what is generally described as dying declaration,
though such an expression has not been used in any statute. It essentially means statements made by
person as to the cause of his death or as to the circumstances of the transaction resulting in his death.
The grounds of admission are: firstly, necessity for the victim being generally the only principal eye
witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly,
the sense of impending death, which creates a sanction equal to the obligation of an oath. The general
principle on which this species of evidence is admitted is that they are declarations made in extremity,
when the party is at the point of death and when every hope of his world is gone, when every motive
to falsehood is silenced, and the mind is induced to the most powerful considerations to speak the
truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to
that which is imposed by a positive oath administered in a Court of Justice.
Q. The dying declaration is considered to be credible and trustworthy based upon the general belief
that most people who know that they are about to die, do not lie. Whether dying declaration form the
sole basis of conviction?
Ans. Evidentiary value of the dying declaration necessarily depends on the facts and circumstances of
each case. There can be no set rules or a formula for testing veracity of a dying declaration. However,
as the dying declaration is an untested piece of evidence, it is the duty of the Court to carefully
scrutinise the dying declaration and to satisfy itself that the statement made by the deceased is free
from tutoring, prompting or animosity. The dying declaration is to be treated as any other species
of evidence. Its credibility is to be decided by the application of the rules governing appreciation of
evidence.
The Apex Court in the case of Laltu Ghosh versus State of West Bengal, (MANU/SC/0236/2019), it
cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of
conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is
not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely
relied upon by the courts and can form the basis of conviction.
The Apex Court in the case of Naresh Kumar versus Kalawati, (MANU/SC/0218/2021), a dying declaration
is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the
basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions,
variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying
declaration is suspect, or the accused is able to create a doubt not only with regard to the dying
declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to
be given to the accused. Therefore, much shall depend on the facts of a case. There can be no rigid
standard or yardstick for acceptance or rejection of a dying declaration.
The Apex Court in the case of Makhan Singh versus The State of Haryana, (2022/LL/SC/677), the law
on the issue of dying declaration can be summarised to the effect that in case the court comes to
the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time
when the deceased was fit physically and mentally to make the declaration and it has not been made
under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an
eventuality no corroboration is required.

Admissibility of Dying Declaration

Admissibility of dying declaration was first decided in the Kushal Rao case (Kushal Rao versus State of
Bombay, AIR1958 SC 22: 1958 SCR 552). In that case, the accused was convicted by the Court relying
on three dying declarations recorded by the attending doctor, sub-inspector of police and First-Class

Indian Evidence Act, 1872 137

 Magistrate. It was contended before this Court on behalf of the accused relying on conflicting views
expressed by various High Courts that no conviction can be recorded solely based on dying declaration.
The Apex Court in the case of Kushal Rao versus State of Bombay, AIR 1958 SC 22; 1958 SCR 552,
laid down the following principles as to the circumstances under which a dying declaration may be
accepted, without corroboration:
y that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole
basis of conviction unless it is corroborated;
y that each case must be determined on its own facts keeping in view the circumstances in which the
dying declaration was made;
y that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of
evidence than other pieces of evidence;
y that a dying declaration stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principles governing the
weighing of evidence;
y that a dying declaration which has been recorded by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers, and, as far as practicable, in the words of
the maker of the declaration, stands on a much higher footing than a dying declaration which
depends upon oral testimony which may suffer from all the infirmities of human memory and human
character; and
y that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances
like the opportunity of the dying man for observation, for example, whether there was sufficient
light if the crime was committed at night; whether the capacity of the man to remember the facts
stated, had not been impaired at the time he was making the statement, by circumstances beyond
his control; that the statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the official record of it; and that the statement had been
made at the earliest opportunity and was not the result of tutoring by interested parties.

138 Indian Evidence Act, 1872