Evidence Law Notes

Contents
Module 1 – History And Development Of Evidence Law........................................................10
Object And Scope Of Evidence Law.........................................................................................10
Best Evidence Rule....................................................................................................................10
History Of Evidence Law..........................................................................................................11
Indian Evidence Act 1872.........................................................................................................13
Meaning Of Evidence................................................................................................................13
Evidence, Proof And Testimony................................................................................................14
Module 2 – Types of Evidence, Witnesses and Evidence Appreciation..................................14
Evidence Appreciation...............................................................................................................14
Types Of Evidences...................................................................................................................15
Types Of Witnesses...................................................................................................................16
Module 3: Relevancy / Presumption Of Facts (Section 3 to Section 16).................................19
Presumptions– Section 3...........................................................................................................19
May Presume, Shall Presume And Conclusive Proof – Section 4........................................21
Relevancy Of Facts – Section 3................................................................................................22
Test of Relevancy of Facts....................................................................................................23
Distinctions Between Relevancy And Admissibility – Section 5.........................................24
Doctrine Of Res Gestae – Section 6..........................................................................................24
Res Gestae As An Exception To Hearsay Evidence.............................................................26
Statements Made In Answer To A Question.........................................................................26
Res Gestae In Case Of Rape..................................................................................................26
Statements Of Bystanders......................................................................................................27
FIR When Res Gestae............................................................................................................27
Cause And Effect Of Fact In Issue – Section 7.........................................................................27
Similar Facts..........................................................................................................................28
Tape Recorded Conversations...............................................................................................28
Motive And Conduct Of The Accused- Section 8.....................................................................29
Motive....................................................................................................................................29
Importance Of Motive In Circumstantial Evidence...............................................................30
Conduct..................................................................................................................................30

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 Preparation.............................................................................................................................31
Explanations Under Section 8...............................................................................................31
Facts Necessary To Introduce Or Explain Facts (Section 9).....................................................32
Introductory or Explanatory Facts.........................................................................................32
Facts which support or rebut evidences.................................................................................32
Facts Establishing the Identity of the Accused......................................................................33
Facts Which Establish The Relations Of The Parties............................................................35
Facts Which Establish The Time or Place of the Fact In Issue.............................................35
Evidences Relating To Conspiracies and Common Intentions (Section 10).............................35
Section 10 As A Necessary Evil............................................................................................36
Key Cases..............................................................................................................................36
Evidences Of Facts Not Otherwise Relevant Becoming Relevant (Section 11).......................37
Fact Inconsistent With Fact In Issue......................................................................................37
Probability Of Facts...............................................................................................................38
Facts Relating To Claims For Damages (Section 12)...............................................................39
Facts Relevant When Rights Or Customs Are In Question (Section 13)..................................39
Custom...................................................................................................................................39
Rights.....................................................................................................................................40
Proof of customs....................................................................................................................40
Facts Showing State Of Mind Or Body (Section 14)................................................................40
Evidences Of Similar Facts...................................................................................................41
Facts On Question If Act Was Accidental Or Intentional (Section 15)....................................41
Existence Of Course of Business When Relevant (Section 16)................................................41
Module 4 – Admissions And Confessions (Section 17 to Section 31)......................................42
Definition of Admission (Section 17)........................................................................................42
Admission As Statement Against Interests............................................................................42
Forms Of Admissions............................................................................................................42
Admission By Conduct..........................................................................................................43
Admissions Are Substantive Evidences................................................................................43
Admission By Party To His Agent (Section 18).......................................................................43
Admission By Person’s Whose Position Must Be Proven (Section 19)....................................44
Admissions By Persons Expressly Referred To By A Party (Section 20)................................44

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 Against Whom Can Admissions Be Proven (Section 21).........................................................44
When Oral Admissions As To Documents Are Relevant (Section 22).....................................45
Oral Admissions As To Contents Of Electronic Records (Section 22A)..................................45
Admissions In Civil Cases (Section 23)....................................................................................45
Evidentiary Value Of Admissions.........................................................................................46
Confessions (Section 24 to Section 30).....................................................................................47
Difference Between Confession And Admission..................................................................47
Types of Confessions.............................................................................................................48
Confessions caused by threat, inducement or promise when irrelevant (Section 24)...............48
Confessions Made To The Police (Section 25).........................................................................49
Effects Of Police Presence.....................................................................................................50
Confessional FIR...................................................................................................................50
Confessions Made In Police Custody (Section 26)...................................................................50
Presence of Magistrate...........................................................................................................51
Confessions When Relevant And How Much Can Be Proven (Section 27).............................51
Confessions Made After Removal Of Threat, Inducements Etc. (Section 28)..........................52
Confessions Otherwise Relevant Not to Become Irrelevant Due To Promise Of Secrecy
(Section 29)................................................................................................................................53
Consideration Of A Proven Confession Against Persons Jointly Tried For The Same Offense
(Section 30)................................................................................................................................53
Circumstances Where The Co-Accused Confession is Retracted.........................................54
Evidentiary Value Of Co-Accused........................................................................................54
Admissions Not Conclusive Proof But Can Estop (Section 31)................................................54
Evidentiary Value Of A Confession..........................................................................................55
Module 5 – Statements Made By Persons Who Cannot Be Called As Witnesses (Dying
Declarations)................................................................................................................................55
Statements Made By Persons Missing Or Dead When Relevant (Section 32)..........................55
Statement Relating To Cause of Death..................................................................................56
Evidentiary Value Of Dying Declaration..............................................................................57
Statements Made In The Course Of Business.......................................................................58
Statements Against Interests..................................................................................................58
Statements As To Public Rights And Customs.....................................................................58
Declaration As To Relationships...........................................................................................58

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 Statements in Documents as to Custom or Rights.................................................................59
Statements Of People, Expressing Feelings And Emotions..................................................59
Relevancy Of Evidences In Prior Judicial Proceedings (Section 33)........................................59
Module 6 - Statements Made In Special Circumstances.........................................................59
Statements Which Are Entered Into Books of Accounts (Section 34)......................................59
Relevancy Of Entries In Public Or Electronic Records (Section 35)........................................60
Statements Made In Maps, Charts Etc. (Section 36).................................................................60
Statements Made In Acts of Parliament And Relevancy (Section 37)......................................60
Relevancy Of Statements Made or Recorded as to Law in Law Books of Foreign Nations
(Section 38)................................................................................................................................61
Statements Forming Part Of Conversations Or Documents (Section 39).................................61
Module 7 – Judgements Of Courts When Relevant.................................................................61
Previous Judgements Relevant To Bar a Second Suit or Trial (Second)..................................61
Relevancy of Judgments In Probate And Etc (Section 41)........................................................62
Relevancy of judgments other than those in Section 41 (Section 42).......................................62
Relevancy of Judgements Other Than Judgements In Rem and Judgement In Personam
(Section 43)................................................................................................................................62
Relevancy of Judgements Passed Due To Fraud / Court Incompetence (Section 44)...............63
Module 8 – Expert Evidences And Opinions............................................................................63
Evidentiary Values of Expert Opinions (Section 45)................................................................64
Differences Between Expert And Ordinary Witnesses.........................................................64
Value of the Expert Opinion..................................................................................................65
Facts Relevant Upon The Expert Witness Testimony (Section 46)..........................................66
Handwriting Expert’s Testimony When Relevant (Section 47)................................................66
Opinions As To Digital Signatures When Relevant (Section 47A)..........................................67
Opinions As to Existence of Custom or Rights (Section 48)....................................................67
Opinions As To Usages And Tennent’s When Relevant (Section 49)......................................67
Opinions As To Relationships (Section 50)..............................................................................67
Grounds of Opinion When Relevant (Section 51).....................................................................67
Module 9 – Characters When Relevant.....................................................................................68
Character Not Relevant To Prove Conduct In Civil Suits (Section 52)....................................68
Relevancy of Character in Criminal Proceedings (Section 53).................................................68
Relevancy of Bad Character in Criminal Cases (Section 54)....................................................69

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 Characters Affecting Damages (Section 55).............................................................................69
Module 10 – Facts Requiring No Proof.....................................................................................69
Facts Which Need Not Be Proven Due to Judicial Notice (Section 56 And Section 57)..........70
Admitted Facts (Section 58)......................................................................................................71
Module 11 – Oral Evidences.......................................................................................................71
Proof By Oral Evidence (Section 59)........................................................................................71
Oral Evidence To Be Direct (Section 60)..................................................................................71
Hearsay Evidences.................................................................................................................72
Exceptions To Hearsay Evidence..........................................................................................72
Module 12 – Documentary Evidences, Documents, Presumptions As To Documents..........72
Proof of Contents of Documents (Section 61)...........................................................................73
Primary Evidence (Section 62)..................................................................................................73
Secondary Evidences (Section 63)............................................................................................73
Proof By Primary Evidence (Section 64)..................................................................................74
When Secondary Evidence As To Documents Can Be Given (Section 65)..............................74
Admissibility of Electronic Evidences (Section 65A and Section 65B)...................................75
Rules as to Notice to Produce (Section 66)...............................................................................76
Proof of Signature or Handwriting Of A Person Alleged To Have Signed Or Written The
Document (Section 67)..............................................................................................................76
Proof Of Execution Of Documents Required To Be Attested By Law (Section 68)................76
Proof of Wills........................................................................................................................77
Proof Where No Attesting Witness Is Found (Section 69)........................................................77
Admission of Execution By Party To Attested Documents (Section 70)..................................77
Proof Where The Attesting Witness Denies The Execution (Section 71).................................77
Proof Of Documents Not Required To Be Attested By Law (Section 72)................................78
Comparison Of Signatures Or Handwriting By Courts (Section 73)........................................78
Proof of Verification of Digital Signature (Section 73A).........................................................79
Public Documents (Section 74).................................................................................................79
Private Documents (Section 75)................................................................................................79
Certified Copies Of Public Documents (Section 76).................................................................80
Proof of Public Documents By Certified Copies (Section 77)..................................................80
Proof of Other Official Documents (Section 78).......................................................................80
Presumptions As To Documents...............................................................................................80

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 Presumption As To Genuineness Of Documents (Section 79)..................................................80
Presumption Of Documents Produced As Records of Evidence (Section 80)..........................81
Presumption As To Gazettes, Newspaper and Private Acts of Parliament (Section 81)...........81
Presumption Of Gazettes In Electronic Forms (Section 81A)...................................................81
Presumptions As To Documents Admissible In England Without Proof Or Seal Of Signatures
(Section 82)................................................................................................................................81
Presumptions As To Maps Or Plans (Section 83).....................................................................82
Presumptions As To Collection Of Laws, Reports of Decisions (Section 84)..........................82
Presumptions As To Powers Of Attorney (Section 85).............................................................82
Presumptions As To Certified Copies of Foreign Judicial Records (Section 86).....................82
Presumptions As To Books, Maps And Charts (Section 87).....................................................82
Presumption As To Telegraphic Messages (Section 88)...........................................................82
Presumption As To Documents Not Produced (Section 89).....................................................82
Presumptions Of Documents That Are 30 Years Old, Or Ancient Documents (Section 90)....83
Presumptions Of Electronic Records Five Years Old (Section 90A)........................................83
Module 13 – Exclusion Of Oral Evidence By Documentary Evidence (Sections 91 – Section
100)................................................................................................................................................84
Best Evidence Rule....................................................................................................................84
Evidence Of Terms Of Contracts or Grants Reduced To Documents (Section 91)..................84
Exclusion of Evidences Of Oral Agreements (Section 92).......................................................85
Exceptions..............................................................................................................................86
Nature Of Ambiguous Documents In Evidence Law................................................................87
Exclusion Of Evidences To Explain Or Amend Ambiguous Documents (Section 93)............87
Exclusion of Evidence Against The Application Of Documents To Existing Facts (Section 94)
...................................................................................................................................................88
Evidence As To Documents That Are Unmeaning In Reference To Existing Facts (Section 95)
...................................................................................................................................................88
Evidence As To The Application Of Language To Either A Single Person Or Group Of
Persons (Section 96)..................................................................................................................88
Evidence As To The Application Of Language To A Set Of Facts (Section 97)......................88
Evidences As To Meanings of Illegible Characters / Abbreviations (Section 98)....................89
Evidences By Non-Parties (Section 99)....................................................................................89
Saving Provisions Of The Indian Succession Act (Section 100)..............................................89
Module 14 – Burden of Proof.....................................................................................................89

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 Burden Of Proof And Onus Of Proof....................................................................................89
Burden of Proof (Section 101)...................................................................................................90
Reverse Burdens....................................................................................................................91
On Whom The Burden Of Proof Lies (Section 102).................................................................91
Burden of Proof As To A Particular Fact (Section 103)...........................................................91
Burden Of Proving Facts To Be Proven To Make Evidence Admissible (Section 104)...........92
Burden of Proving Exceptions In Criminal Cases (Section 105)..............................................92
Burden Of Proving Fact Within Knowledge (Section 106).......................................................93
Burden of Proving Death (Section 107)....................................................................................93
Burden Of Proving The Person Is Alive Who Is Unheard Of For 7 Years (Section 108).........93
Burden Of Proof As To Relationship of Certain Kind (Section 109)........................................94
Burden of Proof As To Ownership (Section 110).....................................................................94
Proof Of Good Faith (Section 111)...........................................................................................94
Module 15 – Presumptions..........................................................................................................94
Presumption As To Offenses In Disturbed Areas (Section 111A)............................................95
Presumption of Legitimacy (Section 112).................................................................................95
Proof Of Cession Of Territory (Section 113)............................................................................96
Presumption As To Abatement of Suicide By A Married Woman (Section 113A)..................96
Presumption As To Dowry Death (Section 113B)....................................................................96
Presumption As To Existence Of Certain Facts (Section 114)..................................................97
Presumption As To Marriage.................................................................................................98
Presumptions As To Rape Cases (Section 114A)......................................................................98
Module 16 – Estoppel..................................................................................................................99
Doctrine Of Estoppel (Section 115)..........................................................................................99
Representation.......................................................................................................................99
Reliance...............................................................................................................................100
Promissory Estoppel............................................................................................................100
Exceptions............................................................................................................................100
Estoppel of Tenant And Licensee Of Person In Possession (Section 116).............................101
Estoppel Of Acceptor OF Bills Of Exchange (Section 117)...................................................101
Module 17 - Witnesses and Examination................................................................................102
Who May Testify And Witness Competency (Section 118)...................................................102

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 Dumb Witnesses (Section 119)...............................................................................................102
Witnesses Being Parties To The Suit, Husbands Or Wives (Section 120)..............................102
Witness Testimony Of Judges And Magistrates (Section 121)...............................................103
Privileged Communications.....................................................................................................103
Communications In The Course Of Marriage (Section 122)...................................................103
Evidences As To State Affairs (Section 123)..........................................................................104
Official Communications (Section 124)..................................................................................105
Information As To The Commission of Offenses (Section 125).............................................105
Professional Communications Made To Pleader (Section 126) – Client Confidentiality.......105
Application Of Section 126 To All Interpreters (Section 127)................................................106
Privilege Not Waived By Volunteering Evidence (Section 128)............................................106
Confidential Communications With Legal Experts (Section 129)..........................................106
Production Of Title Deeds Of Witness Not Parties To Suit (Section 130).............................106
Production Of Documents Or Electronic Records (Section 131)............................................106
Witness Not Excused From Answering Incriminating Material (Section 132).......................107
Accomplice As A Witness (Section 133)................................................................................107
Evidentiary Value Of The Accomplice...............................................................................108
Module 18 – Witness Examinations.........................................................................................109
Number Of Witnesses To Be Examined (Section 134)...........................................................109
Order Of Production And Examination Of Witnesses (Section 135)......................................110
Judge To Decide The Admissibility Of Evidences (Section 136)...........................................111
Chief Examination, Cross Examination And Re-Examination (Section 137).........................111
Order Of Examination (Section 138).......................................................................................112
Cross Examination Of Witness Called To Produce Documents (Section 139).......................113
Witness As To Character (Section 140)..................................................................................113
Leading Questions (Section 141).............................................................................................113
When They Must Not Be Asked (Section 142).......................................................................113
When Leading Questions To Be Asked (Section 143)............................................................113
Evidence As To Matters In Writing (Section 144)..................................................................114
Cross Examination As To Written Statements (Section 145).................................................114
Section 145 And Criminal Proceedings...............................................................................114
Section 145 and Admissions................................................................................................115

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 Questions That Are Lawful In The Cross Examination (Section 146)....................................115
When The Witness Is Compelled To Answer (Section 147)...................................................115
Court To Decide When And What Question To Be Asked, And When The Witness Is
Compelled To Answer (Section 148)......................................................................................115
Questions Not To Be Asked Without Reasonable Grounds (Section 149).............................116
Procedures Of The Court In Case of Reckless Questions (Section 150).................................116
Indecent Questions (Section 151)............................................................................................117
Questions Which May Insult Or Annoy (Section 152)...........................................................117
Exclusion Of Evidences To Contradict Answers As To Character / Veracity (Section 153). 117
Hostile Witness And Questions By Own Party (Section 154)................................................117
Hostile Witness....................................................................................................................118
Permission Of The Court.....................................................................................................118
Evidentiary Value of A Hostile Witness.............................................................................118
Impeaching Credit Of The Witness (Section 155)..................................................................119
Module 19 – Rules Relating To Corroboration......................................................................119
Questions Tending To Corroborate Evidences As To Relevant Facts Admissible (Section 156)
.................................................................................................................................................119
Former Statements As Corroboration (Section 157)...............................................................120
Statements At Or About The Time Of Occurrence.............................................................120
Corroboration Or Contradiction Of Statements Of Missing Persons (Section 158)...............120
Rules As To Refreshing Memories (Sections 159 To Section 161)........................................121
Refreshing Memory Using Documents Or Writings (Section 159)........................................121
Testimony To Facts Stated In Documents Used In Section 159 (Section 160).......................121
Rights Of The Adverse Party As To Writing Used To Refresh Memories (Section 161)......121
Module 20 – Rules As To Production Of Documents / Power Of Courts To Put Questions
.....................................................................................................................................................121
Production Of Documents Mandatory (Section 162)..............................................................121
Affairs Of State....................................................................................................................122
Giving Any Document Called For And Produced On Notice As Evidence (Section 163).....122
Uses Of Document Not Produced On Notice And Bar (Section 164).....................................123
Power of the Judge to Put Questions Or Order Production Of Documents (Section 165)......123
Power Of The Jury to Put Questions (Section 166).................................................................124
No New Trial For Improper Admission Or Rejection Of Evidence (Section 167).................124

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 Objection In Appeal to Documents Admitted By Evidence................................................125

Module 1 – History And Development Of Evidence Law

 Evidence as a word is derived from the Latin word Evidere – to show clearly, or to
ascertain or prove.
 The law of evidence inquires into controverted questions of facts. Evidence law is a branch
of procedural law, as to how a fact is proven. It bears similar relations towards judicial
investigations.
 Law of evidence has the same rules by and large with reference to both civil and criminal
proceedings. There is however a difference with reference to the weight of evidence in civil
and criminal proceedings.
o This is because of the fact that in a criminal proceeding it is necessary to establish
beyond reasonable doubt that the accused is guilty.
 Blackstone has defined evidence to mean “that which demonstrates, makes dear, or
ascertains the truth of the facts, or points in issue either in one side or the other”
 Taylor has defined evidence to mean “all means which tend to prove or disprove any
matter, fact, the truth of which is submitted to judicial investigations”
 Stephen has defined evidence as “the facts proved to exist by those words or things and
regarded as a grand work as to facts not so proved”.
 It can be understood that Evidence in general is anything that ascertains the truth of facts, and
proves the truth which has been submitted to the judiciary for evidences.
Object And Scope Of Evidence Law
 The object of rules of evidence is to ultimately aid courts in ascertaining the truth by either
proving or disproving of facts.
 Evidence is said to prove what is the truth. The truth must be ascertained from the facts of the
case and the evidences that have been presented before the court.
 The facts alleged in a case brought before the Court may be either proved or disproved. The
Court has to find out the truth on the basis of the facts brought before the Court by the
parties.
o In a civil case, the right of the plaintiff or the liability/ obligation of the defendant is
decided and in a criminal case, the guilt or innocence of the accused is pronounced
taking into consideration of such facts. Such facts are called evidence.
 The law of evidence restricts the parties to those facts which can be brought before the Court
in support of the disputed facts. The object is to limit the investigations made by the court
within the limits of general convenience.
 Evidence law follows three rules. They are:
o What facts may be used in evidence to decide a disputed fact
o How is a disputed fact proven?
o What weight is to be attached to facts adduced as evidence.
 There are three main principles which underlie the law of evidence

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 o Evidence must be constrained to the matters at issue.
o Hersey evidence cannot be admitted
o Best evidence to be given in all cases.
Best Evidence Rule
 In India the Best Evidence Rule is followed and is regarded as a fundamental principle of
evidence law. It draws its basis from Section 91 and Section 92 of the Evidence Act.
 Section 91 of the Act lays down the provision that when evidence related to contracts or
grants or other depositions of the property is reduced as a document, then no evidence is
required to be given for proof of those matters except the document itself. The document
constitutes sufficient evidence. There are two exceptions to these provisions:
o When a public officer is required by law to be appointed in writing; and any officer
has acted as such, the writing need not be proved;
o Will admitted to probate in India may be proved by the probate.
 Tulsi V. Chandrika Prasad AIR 2006 SC 3359 – The court has held that Section 91 of the
Act stipulates that the original document must be produced to prove the contents of the same.
It however doesn’t prevent parties to adduce evidence, if a deed may be construed or
interpreted differently.
 Section 92 of the Act states that evidence of oral agreements are excluded. This comes after
the provisions of Section 91 are triggered, leading to exclusion of evidence of any oral
agreement or statements.

History Of Evidence Law

Evidence law in India has its historical origins from Hindu Law, Muslim Law and the Colonial
Period.
Hindu Law
Evidence law in the Hindu Period can be traced to the Dharmashastras. The object of the trial
was to ascertain the truth from what was false. The Dharmashastras recognized 4 types of
evidences. They were
 Lekhya (documentary evidence)
o Lekhya constituted three types
 Rajya Sakshayak which was a document written in the court by the clerks of
the King,
 Sakhshyak – which was a document written by a private person and attested
by witnesses.
 Asakhshyak – which was a document written by parties in their own hands.
o Generally Lekhya (documentary evidence) was preferred over Sakshi (oral evidence).
o It may be construed that there was a rudimentary application of the best evidence rule
– written documentary evidence is superior to oral evidences.

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 o Great weightage was placed on original documents. The Vishnu Dharmashastra states
that documentary evidences is treated as proven, which is written beyond doubt and is
meaningful.
o This can be compared to primary evidence under Section 62 of the Evidence Act,
which stipulates that original documents constitute primary evidence.
 Sakshi (oral evidence)
o Oral evidence had different rules with respect to civil and criminal matters. Strict
rules of capacity of witnesses were relaxed in criminal cases. This comes from the
fact that crimes could take place anywhere.
o Statements of witnesses were taken by commissions
o The judge (Nyayadhish) took note of the demeanor and personality of the witnesses
when putting forward questions, and took decisions based on the credibility of
witnesses.
 Bhukti / Bhog – Usage
o Bhukti referred to the disputes pertaining to possessions of land. The law of evidence
was well settled with respect to disputes involving possession of land.
 Divya (Divine Tests)
o Divine tests were used when normal evidences couldn’t help the court to come to a
decision. The test existed with appeals made to the supernatural forces to prove
innocence or guilt.
o If a person entered deep water / fires without any harm, it was considered as an
indication of innocence of the person.
o Other forms included holding a red hot iron, and determination if the person would be
burnt or not.
o Divine evidences were gradually phased out and used in the rarest scenarios where
common evidences weren’t available.
Muslim Law
Muslim law gave emphasis primarily to both Oral Evidences and Documentary Evidences. Oral
Evidence was further divided into Direct Evidence and Hearsay Evidence. During
considerations, the demeanor of the witnesses and the parties were taken into account by
the adjudicating person.
As part of witness examination, the witnesses were cross examined separately to ensure that the
testimony wasn’t audible to other witnesses. The aspect of cross examination can be seen in the
modern system used today. Furthermore, Islamic Law considered the competency of witnesses as
essential. The following persons weren’t deemed competent
 Children
 Near Relatives / Partners
 Persons of unsound mind
 Blind persons

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Circumstantial evidence was accepted. In a criminal case, on difference of opinion amongst
the witnesses, the benefit of doubt was given to the accused person. The evidence was also taken
by issuing a Commission. The witnesses were administered on oath-Hindus of Go Mata,
Muslims of Khoda and Christians of Bible.
Colonial Period And Common Law
Evidence law as it is today has developed primarily from the colonial period.
 English common law was introduced in India by the Charter of 1726 in the Presidency towns
of Bombay, Madras and Calcutta. Courts established followed English Law.
 Outside of the presidencies, there was no definitive laws of evidence, but evidence law was
governed by regional customs.
 In 1835 the first uniform Evidence Act was enacted by the Governor-General. Several
successive acts were introduced between 1835 and 1855.
 In 1868 the Maine Commission was enacted to codify Evidence Law. The Commission
was formed under Sir Henry Maine, to draft the bill. The bill however was rejected.
 In 1871, the Stephen Commission was constituted to draft the bills governing evidence
law. The draft bill was presented to local governments, High Courts for their consideration.
In 1872, the Privy Council gave its assent to the Act, forming the Indian Evidence Act 1872
 The Indian Evidence Act 1872 is still in force today and is the primary law of evidence
in force in India.
Indian Evidence Act 1872
 In India the governing legislation on evidence is the Indian Evidence Act 1872. It is based
on English Law, and was drafted by Sir James Stephen. It isn’t an exhaustive law.
 The Evidence Act applies to all judicial proceedings before any court except under the Army
Act, Naval Discipline Act, or Air Force Act. It doesn’t apply to affidavits presented to any
court or officer, or arbitration proceedings.
 Arbitrators are to follow the principles of natural justice, but aren’t bound by the Evidence
Act (as held in Municipal Corporation Delhi V. Jagan Nath Singh AIR 1987 SC 2316)
 A judicial proceeding is any proceeding wherein evidence is legally taken on oath, as per
Section 2(i) of the CRPC. Income tax proceedings don’t fall under the scope of judicial
proceedings.
 An inquiry is said to be judicial if it takes evidences from both sides, and forms a judgement
based on use of discretion.
 Rule of Lex Fori – Evidence Law is the lex fori (law of the forum) where a case is tried. The
competency of a witness, proving of a fact by evidence is to be determined by the laws of the
land where the question has arisen. It is the law of the location where the proceeding is
taking place.
 Praful B Desai Case (2003) 4 SCC 60 – The court has held that where evidence is taken in a
country, for a suit in another country, the law of evidence applicable would be the law of the
country where the proceeding is taking place.

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 o Eg. Proceedings are initiated in the United States, and the evidence is collected in
India. As the proceedings are taking place in the US, United States law of evidence
will apply.
Meaning Of Evidence
 Section 3 of the Indian Evidence Act defines evidence. It means and includes the following
o All statements permitted by the court or required to be made by witnesses with
relation to facts of matter under inquiry. This is oral evidences.
o All documents including electronic records which are produced for inspection of the
court. This is known as documentary evidences.
 Section 3 of the Evidence Act gives an idea as to what may be constituted and included under
the term “evidence”. It applies to that which renders proof of fact, or generates evidence.
While Section 3 indicates only oral and documentary evidences, there can be other forms of
evidences such as presumptions and expert opinions.
 It may be criticized that the definition of evidence under Section 3 is incomplete. This comes
from the fact that it excludes statements and admissions of parties, conduct of parties and
circumstances under the purview of the court.
o For example confession of the accused isn’t considered as evidence as per Section 3.
 Haricharan Kurmi V. State Of Bihar AIR 1964 SC 1184 – The court has held that
circumstances considered by the court and probabilities can amount to evidence in a generic
sense.
 Hardip Singh V. State of Punjab – The Supreme Court held that the meaning of the word
evidence under the Evidence Act (Section 3) is exhaustive.
 Kalyan Kumar Gogoi V. Ashutosh Agnihotri – The Supreme Court held that evidence as a
word is used in different phrases such as circumstantial evidence, primary evidence etc. The
definition under Section 3 is not exhaustive but is inclusive of different kinds of evidence.
 Material evidence cannot be seen as part with paper or documentary evidences. The modern
world has forced evolution of evidence in the form of a need for a third category of
evidences.
Evidence, Proof And Testimony
 Evidence is not the same as proof. Evidence is a means to reach to the proof. The proof is
the end result
 Jeremy Bentham had defined proof as a fact which is meant to be true
 A testimony is anything documentary or oral which can legally be received. Mostly it refers
to a verbal recollection, as an oral statement
 Proof cannot be fixed in a form of legal calculation. It must be fitting with the materials
provided before the court, such that a prudent man can accept it as a means to reach a
conclusion.
 An eyewitness is direct evidence. Such evidence will be appreciated as the best witness.
Minor discrepancies in the statement may not prompt the court to reject the witness
testimony as a whole.

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 Evidence includes all legal means exclusive of argument which tend to prove or disprove any
matter or fact, the truth of which is submitted for judicial investigation. Proof however is the
establishment of fact by legal means to the satisfaction of the court.
 Proof is a result of evidence. Evidence is a medium of proof.

Module 2 – Types of Evidence, Witnesses and Evidence Appreciation

Evidence Appreciation
 Evidence in any form such as being reported as facts via witness, documents, etc. the court
has to examine the reliability of the evidence. This is known as appreciation of evidence.
 Evidence must be appreciated to determine what extent of it is represented as true, as held in
Ganesh K Gulve V. State Of Maharashtra.
 Evidence must be tested by inherent consistency and probability of the story told by the
prosecution.
 If a party to a suit doesn’t give evidence, and doesn’t present themselves for cross
examination, there is a presumption that the case set up by said party is incorrect / false
(Vidhyadhar V. Manikrao AIR 1999 SC 1441)
Types Of Evidences
There are various forms of evidence which exist. Each evidence has its own advantages and
flaws, with respect to acceptance by the court. The major evidences are as follows:
 Oral Evidence - The oral evidence means statement made by a witness before a court in
relation to matter of fact under inquiry. Thus the oral evidence is the evidence that is given
before the Court
 Documentary Evidence - When a document is produced in a case in support of the case of
the party producing it, the document becomes the documentary evidence in the case. By the
Information Technology Act, 2000, all the electronic records produced. for the inspection of
the Court are included in the document and therefore they are also documentary evidence
 Direct Evidence -Where the testimony of the witness as to a principal fact to be proven. It
also includes the production of original documents. Any fact which without intervention of
any other fact, proves the existence of fact in issue is direct evidence. It is to prove the fact
in issue.
 Circumstantial Evidence – Where the testimony of the witness is given to other relevant
facts, from which the fact in issue may be inferred is circumstantial evidence. The
circumstantial evidence must be strong to unmistaken ably point to the guilt of the accused. It
is not secondary evidence. Circumstantial Evidence is Direct Evidence applied indirectly.
It establishes collateral facts.
o The inference drawn and scope is wider than that of direct evidences. This is because
of taking into account other facts, surrounding the fact in issue. Based on different
and wider inference, a person may be discharged from liability.
o Sharat Birdi Chand Sarda V. State Of Maharashtra 1984 (4) SCC 116. The court
elaborated on the 5 golden rule principle with reference to circumstantial evidences.

15
 The circumstances from which conclusion of guilt is drawn must be fully
established. It isn’t “may”.
 The facts established should be consistent only with the hypothesis of the guilt
of the accused
 The circumstances must be of a conclusive nature
 The circumstances must exclude every possible hypothesis except that which
is to be proven.
 There must be a chain of events so complete as not to leave any reasonable
ground for conclusion, consistent with innocence of the accused, and must
show that in all human probability, the act was done by the accused.
o State Of Uttar Pradesh V. Ravindra Prakash Mittal (AIR 1992 SC 2045) – The
Supreme Court has given the following guidelines with respect to circumstantial
evidences.
 The circumstances from which conclusion is drawn must be fully established
 The circumstances must be conclusive in nature. (There must be a
conclusive chain of events and circumstances)
 All facts established must be consistent only with the hypothesis of guilt and
inconsistent with innocence.
 The circumstances must to a moral certainty, exclude the possibilities of guilt
of any other person than the accused.
In the matter of preference of direct or circumstantial evidences, it depends on the
circumstances. Both direct and circumstantial evidence are given equal weightage by the
court. Both have to be looked in a manner where both can draw light on facts.
 Heresy Evidence – It is known as derivative or second-hand evidences. It is the testimony of
a witness as to statements made out of court, which are offered as evidence of their own
truth.
o R. V. Rial – The UK Supreme Court has held that heresy evidence can be admitted
however it must be admitted and considered with caution by the court. There must be
a careful and cautious scrutiny of the court.
o It is generally considered as unreliable as it can be fabricated by the person giving the
evidence.
o The weight of the evidence given is difficult to appreciate than evidence put forth by
a person giving the evidence face to face.
 Real / Personal Evidence – Real evidence is that which is addressed to the sense of the
tribunal, as where the object is presented for the inspection of the court. The seriousness of
injuries may well be appreciated by the court seeing the injured man, as an example.
Personal evidence is that which is afforded by human agency
 Secondary Evidence – It is indirect evidence
 Conclusive Evidence – Where the connection between principal and evidentiary fact is a
necessary conclusion.

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 Positive and negative Evidence. Positive evidence tends to prove the existence of a fact
whereas by a negative evidence non-existence of a fact is proved. But it should be borne in
mind that negative evidence is ordinarily no good evidence.
 Original Evidence.- By original evidence is meant the production of the thing proved in its
original form
 Character Evidence
 Opinion Evidence
Types Of Witnesses
Biased Witness
 A biased witness is any witness who is said to be biased, such that he may give a false color
or exaggerate his statements, or state something with respect to relation to the cause or the
parties.
 Bias is that which excites “a disposition to see and report matters as they are wished for
rather, than as they are”.
Interested Witness / Partisan Witness
 An interested witness is a witness who wishes to see the accused party in a trial as convicted.
This may be because of his own views. A police officer generally falls in this category.
 If evidence on record is otherwise trustworthy, rejection of evidence of witness on the ground
of being interested witness is not proper.
 In case all the witnesses are relatives of the deceased, their evidence ought not be discarded
on that ground.
 The Court should however be sensitive in scrutinizing as to the acceptability of such
evidences.
 Bhagtoan Singh V. State of U.P - the Supreme Court that the evidence of related witness
cannot be disregarded on the ground of being related to the victim. · The testimony of the
witness was in accordance with first information report. The eye witness was injured during
the incidence. Accused had accepted the presence of eye witness. His testimony cannot be
rejected only because he was interested witness
Police As A Witness
 In some cases, the police themselves may act as a witness. The presumption exists that every
person acts honestly, including a police officer. However the testimony of a police officer is
generally viewed with greater scrutiny
 Ram Kumar V. State of Delhi – Where no independent witness was present at the scene of
the crime, the evidence of the police officer was found reliable and could not be discarded on
grounds of absence of independent witness.
Stock Witness

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 A stock witness is any witness who is at the beck and call of the police. He gives a tailored
testimony in favor of the police. Such testimony is generally not considered credible by the
court.
 However if the evidence fully supports a fact of offense truly, then such witness may be
accepted. In such cases, the witness need not be rejected.
Dumb Witness
 Section 119 of the Evidence Act addresses dumb witnesses. Any person who is unable to
speak by reason of dumbness, can give evidence by any means by which he can make
himself intelligible.
 This may be via writing or sign language. Such evidence would be deemed as oral evidence.
Chance Witness
 A person is said to be a chance witness if by some coincidence the person is said to be at the
place of occurrence when the incident takes place.
 A lack of a compelling reason for the witness to be at the scene of occurrence is no bar to
mean that the evidence of such person must be rejected.
 The evidence of a chance witness must be deemed with scrutiny if said witness had any
relation to any of the parties in the dispute. This doesn’t mean the evidence must be rejected.
 Jamail Singh V. State of Punjab AIR 2010 SC 3699 – The apex court has held that
evidence of a chance witness must be cautiously examined, and the witness must explain his
presence at the scene of offense.
 State of Uttar Pradesh V. Anil Singh – An eyewitness cannot be categorized as a chance
witness.
Child Witness
 A child is considered to be a competent witness.
 A competent witness is any person who is able to understand the nature of the incident, is
able to understand the questions posed to them, and can answer them.
 A witness is competent only when the witness can understand the subject matter as to why
the witness is called to testify. In the case of a child however, there may be certain situations
where the child may not understand a situation.
 A child will be considered to be a competent witness, provided that the statement of the child
is reliable, truthful and can be corroborated with other evidences.
 While hearing the testimony of a child witness, courts are cautious in that the witness must
be deemed reliable, and that the demeanor of the witness must be no different to any other
witness. It is also mandated that the witness mustn’t be tutored.
 Baby Kandayanathil V. State of Kerala – The court held that where the child was able to
intelligently answer questions posed to them, and withstand the test of the cross examination,
their testimony was acceptable. Failure to hold preliminary exams will not fatally infirm the
evidence.

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 Ratansingh Dalsukhbhai V. State of Gujarat (2004) 1 SCC 64 – the court has held that a
child can be allowed to testify if he has the intellectual ability to understand questions and
give rational answers thereto. The decision to decide the competency of the child rests on the
judge,
Trap Witness
A trap witness is any witness who lays down a trap and wishes the trap to be successful. Such a
witness isn’t an interested witness.
Hostile Witness
 A witness is said to be hostile if the witness is called upon by a party to depose in their favor,
however the witness deposes against the party. This arises when the witness does not give
facts in favor of the party calling the witness. The court then declares the witness as hostile.
 Even if a witness is declared as hostile, the evidence need not be rejected outright. The
evidence can be accepted to the extent that it supports the facts of the party calling the
witness.
 The evidence of a person is not affected on record due to becoming hostile. However the
deposition of a hostile witness must be examined with caution to determine the extent of
support to the prosecution.
 State Tr PS. Lodhi Colony v. Sanjeev Nanda – The apex court has held that where the
witness is hostile, the court must take cognizance. If the witness is hostile to subvert process
of the court, then the court cannot be a mute spectator.
Rustic witness
 Where a rustic witness is subjected to fatiguing, taxing and tiring cross-examination for days
together, he is bound to get confused and to make some inconsistent statements.
 The basic principle of appreciation of evidence of a rustic witness who is not educated and
comes from a poor society is that his evidence should be appreciated as a whole.
 The discrepancies noticed should not be blown out of proportion ignoring hard realities of
village life and give undeserved benefit to the accused who perpetrate heinous crime.

Module 3: Relevancy / Presumption Of Facts (Section 3 to Section 16)

 If any evidence is produced, and the court is satisfied that the fact is in existence, it means
that the fact is proven. The word proof is anything that serves to convince the mind of truth
or false fullness of a proposition.
o The court will come to conclusion of existence of a fact after examination of
evidences and witnesses.
 Proving if a person is present at a place of occurrence cannot however prove if a person has
committed a crime. In criminal law, it must be proven beyond all reasonable doubt that said
person has indeed committed an act.
 Fact means and includes

19
 o Anything, state of things or relation of things capable of being perceived by senses
and illustrations
o Any mental condition of which any person is conscious.
 Intention, fraud, good faith or negligence etc. fall under the category of facts. The state of a
person’s health is considered as a fact. Psychological facts can only be proven by
circumstances.
Presumptions– Section 3
 Stephen has defined presumption to mean “an inference”.
 Presumption.-Every fact, on the basis of which a party to a proceeding wants to take
judgment, must be proved. No court can while deciding a case, place reliance on a fact unless
and until it has been proved according to the rules laid down in the Evidence Act.
 Law of Evidence has provided that a court can take into consideration certain facts even
without calling for proof of them, i.e., the court may presume certain things. The word
'presumption' means things taken for granted.
 A presumption is said to occur when the court presumes the existence of a fact.
 State of Andhra Pradesh V. Vasudeva Rao – The court noted that presumption was a rule
of law that courts and judges were to draw a particular inference from a particular fact or
evidence, until and unless the truth in such inference is disproven.
 The effect of presumption is that the party in whose favor the fact is presumed, is
relieved of the initial burdens of proof due to a presumption of prima facia evidence of
the matter.
 A presumption is an aid to the reasoning and argumentation which assumes the truth on
certain matters for the purpose of some given inquiry.
 Under Law of Evidence the word 'presumption' is used to designate an inference,
affirmative or negative, of the existence of some fact, drawn by a judicial tribunal by a
process of probable reasoning from some matter of fact either judicially noticed or admitted
or established by legal evidence to the satisfaction of the tribunal.
o The inferences or presumptions are based upon the wide experience of a connection
existing between two facts
 There are two types or presumptions that exists.
o Presumption of fact.- Presumptions of fact are inferences which are naturally drawn
from the observation of the course of nature and the constitution of human mind.
 The examples given above are the examples of the presumption of fact.
Section 114 of the Act and the illustrations under the section are examples of
presumption of facts. Sections 86, 87, 88 and 90 also deal with the
presumption of fact. These presumptions are generally rebuttable.
 Chamanlal V. State of Uttarakhand – Presumption of fact
o Presumption of law.- It is an arbitrary presumption of the law and the position of the
law. Here there is no requirement to address logic, but to follow the law. By the force
of law, the court is to drawn an arbitrary inference.

20
  Section 82 of IPC as an example states that nothing is an offense done by
a child under 7 years. This is the position of law. The court cannot apply
logic to determine if the child had maturity or not, and makes the
presumption by the force of law.
 As mentioned above the presumptions of Law are of two kinds :
 (i) irrebuttable or conclusive
o The conclusive or irrebuttable presumptions of law are those
legal rules which are not overcome by any evidence that the
fact is otherwise.
o A well-known instance of an irrebuttable presumption of law
can be found in Section 82 of the Indian Penal Code, wherein it
is laid down that "Nothing is an offence which is done by a
child under seven years of age".
o Estoppel is another example of irrebuttable presumption.
o Sections 115, 116 and 117 of the Act deal with the estoppel.
There is said to be an estoppel where a party is not allowed to
say that a certain statement of fact in nature whether in reality
it is true or not.
 (ii) the rebuttable presumption of law
o This kind of presumption arises when presumptions of law are
certain legal rules, defining the amount of evidence requisite to
support a particular allegation, which facts being proved, may
be either explained away or rebutted by evidence to the
contrary.
o Such evidences are conclusive in absence of the contrary
evidence.
o 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
 Presumption of fact applies to individual cases, and is based on logic, while presumption of
law applies to all cases based on the position of the law. Presumption of fact is discretionary
in nature.
 Presumption of fact is rebuttable. Presumption of law is considered as conclusive unless
rebutted.
 Presumption of fact is derived from law of nature.
May Presume, Shall Presume And Conclusive Proof – Section 4
 Section 4 of the Evidence Act addresses the differences between the terms “May
Presume”, “Shall Presume” and “Conclusive Proof”.
 Section 4 states the following
o May Presume - Whenever it is provided by this Act that Court may presume a fact,
it may either regard such fact as proved, unless and until it is disproved, or may call
21
 for proof of it. A fact may be considered proven until it has been disproved. The
court has a discretion to make a presumption of fact. \
 Presumptions of fact are inferences that the mind logically draws from given
facts, irrespective of legal effects.
 The sources of such presumptions are common course of natural events,
common course of human conduct and common course of public and private
businesses.
 Where the court may presume, the right to presume is at the discretion at the
court. It may or may not presume the existence of the fact in question.
 Such presumptions are also rebuttable as their evidentiary value can be
diminished by proof to the contrary. If the court refuses to exercise
discretion in presuming a fact, it can call on the parties to prove the fact by
leading evidences.
 Section 90 of the Evidence Act provides that when a document purporting to
be thirty years old is produced from a proper custody, the court may presume
that the document was signed and written by the person by whom it purported
and is said to have been written
o Shall Presume - Whenever it is directed by this Act that the Court shall presume a
fact, it shall regard such fact as proved, unless and until it is disproved. Shall
presume is directed by statutory authority that the court must presume a fact,
until said fact is proven. The court has no discretion. It is bound by the law.
 In the Indian Evidence Act the words "shall presume" indicate that
presumption therein is unrebuttably.
 Presumptions that the court is mandatorily required to make, are arbitrary
inferences that the law directs the judge to draw from the facts of a case.
 These presumptions are nothing but deductions drawn from human
experiences, and observation, expressed in the form of rules and regulations.
o Conclusive proof - When one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it. Conclusive proof is
declared by statutory law that if one fact leads to another, and has been proven,
then no evidence to the contrary can be accepted.
 Eg. A is conclusive proof that B has occurred. On A being proven to
satisfaction, the court will not allow any evidence to show to the contrary that
B has not occurred.
 The court has no discretionary powers to call the party to prove said fact,
or call upon the opposite party to disprove the fact in question.
 Conclusive proof is drawn so conclusively that no contrary evidences can be
allowed. It is deemed as juris et de jure (incapable of rebuttal)
 Examples include Section 41, Section 112 and Section 113 of the Evidence
Act.
 Every fact on which judicial judgment may be given must be proved.

22
 But the Law of Evidence has provided that court can take into consideration certain facts
without calling for proof of them, i.e., the court may presume certain things. The word
presumption means a thing taken for granted.
Relevancy Of Facts – Section 3
 Section 3 of the Evidence Act defines Fact. It states that “Fact” means and includes ––
o (1) anything, state of things, or relation of things, capable of being perceived by the
senses;
o (2) any mental condition of which any person is conscious.
 A “fact” in general can by anything. It may be also be true or false. Fact also includes
anything of a mental condition which is communicated by a person.
o An opinion of a person, a person acting in good faith, a person having intention, an
action taking place is a fact.
 Facts can be classed as positive facts and negative facts.
o What can be easily proven are positive facts. Presence of fact makes it positive.
o What is not in existence, or difficult to prove is a negative fact. Absence of a fact
makes it negative.
 Section 3 of the Evidence Act defines Fact in Issue. It states that “Facts in issue”.–– The
expression “facts in issue” means and includes ––
o any fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature or extent of any right, liability, or disability, asserted or denied
in any suit or proceeding, necessarily follows.
 Chapter 2 of the Evidence Act deals with Relevancy of Facts. This chapter is the most
important of the Act, as the scheme and role of the Act functions on Chapter 2.
 Chapter 2 of the Evidence Act prescribes the rules and regulations that courts are to
follow with respect to the relevancy of facts
 Section 5 of the Evidence Act addresses of what fact may evidence be given. It reads
“Evidence may be given of the existence or non-existence of every fact in issue, and of
relevant facts and of no others”
 As per Section 5, on a reading, only the fact in issue, and relevant facts deemed important to
be decided may be given evidence for. Evidence can only be given for facts that have
probative value and is deemed important to the case.
 Courts and parties must take notice of relevant facts, and parties must place emphasis on
important facts, to get the verdict in their favor.
 Sir James Stephens has stated that the universal rule of evidence is that the evidence must
be directed and confined to the matter in dispute.
Test of Relevancy of Facts
 There is a test of relevancy that determines how the fact is relevant. All relevant facts are
admissible unless they are expressly excluded from law of evidence.
 The Thear doctrine states that evidences only with high value evidences must be
considered.

23
 o The evidence must lead to determination of action and must have probative value.
 Stephen’s Doctrine states that under the Evidence Act, the rule is that no fact is relevant
unless they are expressly declared to be relevant under one or any of the provisions under
Chapter 2.
 Queen V. Abdullah – The court has stated that the Evidence Act prohibits any kind of
evidence not authorized by the Act itself. Whatever is unauthorized is excluded as
evidence from the Evidence Act.
 Section 3 addresses Relevancy. Under it, one fact is relevant to the other when the one is
connected with the other in any of the ways referred to in the provisions of this Act relating
to the relevancy of facts. One act must be connected with another fact in manners
accepted by the Evidence Act under Chapter 2 (relevancy of facts).
 It may be stated that relevancy is of two types – logical relevancy and legal relevancy.
Logically relevant facts with high probative value must be considered as evidence. The
question arises as to what facts may be logically relevant. Issue of cause and effect is
something that would be under the relevancy of facts.
o To determine the cause of an incident occurring
o What is the consequence of the effect that occurred or not.
 The other fact is Legally Relevant Facts. A fact is legally relevant when the fact is
connected with another in the ways specified between Section 6 to Section 55 of the
Evidence Act.
 All Legally Relevant Facts are Logically Relevant Facts. Only legally relevant facts are
considered by the court as relevant facts.
 Confessions made to the police may be logically relevant, however they are not legally
relevant, as Section 25 of the Evidence Act states that confessions cannot be used as evidence
by against the person making it.
 Question of relevancy of facts is a question of law to be determined by the court. If irrelevant
evidences are mixed up, then the whole evidence must be rejected.
 Section 5 of the Evidence Act addresses the Relevancy Of Facts –– Evidence may be
given in any suit or proceeding of the existence or non-existence of every fact in issue and of
such other facts as are hereinafter declared to be relevant, and of no others.
o The court will only allow the evidence for a fact which is being considered before
it in a court of law.
Distinctions Between Relevancy And Admissibility – Section 5
 There exists a distinction between relevancy and admissibility of facts. Relevancy refers to
what is logically probative. Admissibility however, is not based on logic, but on the law and
strict rules.
 The rules governing relevancy of fact are governed under Section 5 to Section 55 of the
Evidence Act. Admissibility is governed under Section 56 of the Evidence Act.
 Section 5 is a pathway to understand Section 6 to Section 55.
 Relevancy means what facts may be proven before a court. Those facts which are allowed to
be proven before the court are deemed as relevant facts.

24
 Admissibility is the means by which the relevant facts may be proven.
 Ram Bihari Yadav V. State of Bihar AIR 1998 SC 1850 – The Supreme court elaborated
on the difference between relevancy and admissibility. It noted that both are used as
synonyms, however have different legal implications. Facts which are relevant may not be
admissible, and facts which are admissible may not be relevant.
Determination Of Relevancy
 The determination of relevancy of facts is a question of law that must be determined and
decided by the judge in trial. The question of relevancy must be answered when raised, and
not brought up at the time of judgement.
 When the judge is in doubt as to the relevancy or irrelevancy of fact, he must allow the fact
to be admitted, leaning in favor of relevancy of the fact in question. Courts are bound to
exclude evidence of irrelevant facts.
 When the facts are both relevant and irrelevant, with irrelevant facts mixed up, ordinarily the
entire evidence in question must be rejected by the court. However, where the relevant and
irrelevant facts may be separated, the relevant facts only may be admitted.
Doctrine Of Res Gestae – Section 6
 Section 6 addresses relevancy of facts forming parts of the same transaction (Res
Gestae)
 The principle of Section 6 is that whenever a transaction is a fact in issue, evidence may be
given with respect to every fact, which forms part of the same transaction.
 A transaction itself may be described as any physical act, or series of connected physical acts
together with words accompanying such acts.
 Both American and English jurists describe facts forming part of the same transaction, as part
of Res Gestae.
 Res Gestae refers to actions which are committed as part of a transaction. Res Gestae is
also used as equivalence to a fact in issue.
 Res Gestae are those circumstances which are instinctive incidents of a particular act.
 These incidents may be separated from the act by a lapse of time more or less appreciable. A
transaction may last for weeks.
 The incident may consist of sayings and doings; they may comprise things left undone as
well as the things done.
 They must be necessary incidents of the litigated act in the sense that they are not produced
by the calculated policy of the actors.
Statements Under Res Gestae
 Gentela Vijaywardhan Rao V. State of Andhra Pradesh – The Supreme Court laid down
the essential conditions for Res Gestae to apply. It stated that under Section 6 of the Evidence
Act, maintaining that the statement of the person must have been made immediately
thereafter the incident.

25
 o It held that it is necessary that such fact or statement must be a part of the same
transaction. In other words, such statement must have been made contemporaneous
with the acts which constitute the offence or at least immediately thereafter.
 Section 6 of Evidence Act is an exception to the general rule whereunder 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 forming part of res geetae, must have
been made contemporaneously with the acts or immediately thereafter.
 No uniformity exists in the length of time over which the transaction · shall properly be held
to extend.
o The act or transaction may be completed in a moment of time, or, if there are
connecting circumstances it may extend, through a period of days, or weeks or even
months.
 No limitation can be imposed as to the territorial boundaries within which the transaction
must occur
 Psychological acts, or words accompanying physical acts, forming part of the same
transaction are admissible under Section 6 as Res Gestae. This is subject to the fact being
contemporaneous with the transactions in issue, and that the time interval should be such that
there is no possibility for fabrication.
 Statements will be admitted when they appear to have been made under immediate influence
of principle transaction, relevant to the issue. Bare statements are not admissible however,
and it is the power of perception of the statement which is adhered to.
 It is an essential that the Statement must be considered as part of the same transaction.
All spontaneous instances and statements connected with the transaction are not
admissible.
 R V. Bedingfield – Where a woman was cut with a throat, and screamed to the witness, it
was held not as Res Gestae as it took place after the incident of assault was finished.
 R V. Christie – Where a statement was made by the child to the mother after indecent
assault upon him, such statement was considered not admissible as res gestae due to
separation of time.
 The fact that is apparent with reference to the above cases, is the point of spontaneity of
the statement with reference to the incident, that it must be made contemporaneous
with the event with no time gaps.
 Rutten V. Regina – Where the woman was in distress, and called on the phone, which ended
suddenly, the statement that she made was in the very same instance, spontaneously, and thus
admitted as res gestae.
Res Gestae As An Exception To Hearsay Evidence
 The doctrine of Res Gestae acts as an exception to the point of hearsay evidence. Normally,
hearsay evidence is considered as unreliable and not admissible in a court of law.

26
 R V. Foster – Where the deceased was killed in an accident by a truck, and the witness only
saw the truck speeding. The deceased disclosed the incident occurred. The court held that
such statement was admissible under Res Gestae.
 There are no exact limits as to Res Gestae. Facts differ so greatly that no fixed principle can
be laid down as to the matters that may form part of a transaction.
 Sukhar V. State of Uttar Pradesh [1999) 9 SCC 507] – The Supreme Court has held that
Section 6 of the Evidence Act is an exception to the rule of inadmissibility of hearsay
evidence. To bring such evidence under Section 6, the evidence must be contemporaneous
with the fact in issue, with no interval to allow for fabrication.
 No uniformity exists in the length of time over which the transaction · shall properly be held
to extend. The act or transaction may be completed in a moment of time, or, if there are
connecting circumstances it may extend, through a period of days, or weeks or even months.
Statements Made In Answer To A Question
 It is an established principle of Res Gestae that the statement must have been made
spontaneously, in such a manner that there is no time gap between the statement given.
 Where the statement is made as an answer for a question or query, the same principle applies,
in that where the statement was made after a period of time, and not spontaneously, such a
statement cannot be accepted or admitted as res gestae.
 Noor Mohammad V. Imtiaz Ahmad – Fraud was committed by the accused upon the
victim causing loss of Rs. 8000. The victim filed a complaint for the same. The prosecution
witness stated that the victim told that no report was filed against the accused. The victim
further stated that the accused made his life miserable. The court held the statement
inadmissible as it was a narrative of a past occurrence. Furthermore, the statement was not
said spontaneously.
Res Gestae In Case Of Rape
 In a case of rape, it cannot be expected that one will instantly go to the police station or
report it. There is a possibility of time gap. The question is if such instance must be
considered as res gestate.
 Rameshwar Sone of Kayan Singh V. State of Rajasthan – Conduct of an 8-year-old rape
victim. Child narrated what took place to her mother. This may be considered as res gestae.
 In another case, the girl was abducted to another place. No cry was raised. She was raped,
she gave a complaint for the same. The trustworthiness must be understood. The other
question will be related to how credible is the evidence and to be considered by the court.
 It is hearsay and inadmissible when the object of evidence is to establish the truth. What must
be considered is who made the statement and to whom.
 Hadu V. State – The court held that hearsay evidence must be accepted as part of the same
transaction and not only to be spontaneous.
Statements Of Bystanders
 The statement of bystanders falls under the ambit of res gestae under Section 6 of the
Evidence Act. This is because the statement of the bystander is both spontaneous, and relates
to the fact in issue.

27
 Such statement is relevant only if is that of a person who has seen the actual occurrence and
who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably
certain that the speaker is still under the stress of excitement caused by his having seen the
incident.
 Nassiruddin V. Emperor – Where the victim was murdered in a crowd, the witness stated
that she wasn’t there at the scene of offense, but heard what was being said by the crowd as
to the accused. The court held her statement to be not admissible as she wasn’t a bystander,
nor was her statement spontaneous.
 Mahindra Pal V. The State – The murder was committed in the house of the deceased. The
relatives immediately reached the scene of the crime upon hearing cries. Immediately the eye
witnesses informed as to who was the culprit. In such circumstances, the statement was
admissible.
FIR When Res Gestae
 If a witness to a crime has seen the offence from beginning to end, and makes a cry about the
same, following which goes to the police and makes an FIR, such FIR will be constituted as
part of the same transaction.
 FIR in such cases amounts to res gestae. The elapsing of time in such circumstances is
immaterial.
 FIR being under Res Gestae is a general exception to the point that statements not
made spontaneously do not fall under Res Gestae.
Cause And Effect Of Fact In Issue – Section 7
 Section 7 of the Evidence Act stipulates that any fact which is of occasion, or related to
the fact in issue is a relevant fact. Any occasion which allows an opportunity for the fact
in issue to occur is deemed to be a relevant fact.
 The relevancy of facts under the ambit of Section 7 is largely based on human experience.
 The effect of a particular cause, and what is a constant cause of effect in the past will be
considered to be the same in the future.
 Addressing the scope of Section 7 against Section 6, it may be seen that Section 6 is
restrictive in it’s approach, as it only relates to facts which are spontaneous and are related
to the fact in issue.
o Section 7 grants a wider ambit as to facts as it provides for the admission of facts
which don’t form part of the transaction, but are connected with the transaction in
question. This connection makes such fact relevant under Section 7
 The following facts which are connected with the fact in issue are considered as relevant and
admissible under Section 7 of the Evidence Act
o Fact being the cause, or fact being an occasion
o Fact being the effect
o Fact giving opportunity for occurrence of the fact in issue
o Fact constituting the state of things.

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 With respect of the aspects of occasion, cause and effect, the facts of occasion must relate to
the fact in issue such that it will be convenient to take them together.
 Examples of facts in occasion or causation include:
o Footprints – The evidence of presence of footprints at the scene of offense, is
evidence as to the presence of the accused at the scene of the crime. (Sidik Sumar V.
Emperor AIR 1942 Sind 11)
o Injuries of the accused – The evidence that the accused bore injuries in a riot case
will be deemed relevant as an effect to prove the presence of the accused at the scene
of riot. (Chandra Copal V. State, AIR 1955 NOC ~845. )
o The state of things and condition of the environment when a crime took place will be
considered as a fact in occasion or cause, as it points to the circumstances facilitating
the occurrence of the crime.
Similar Facts
 In general, a fact in issue cannot be proven cannot be proven by showing of facts which are
similar to the fact in issue. This stands to reason that each similar instance while similar, does
not show competence to adduce evidence to show that the accused has been guilty of
criminal acts.
 Exceptions to this rule of inadmissibility of similar facts exist. If it is such that the similar
fact are related to the main act, to show the identity of the party, then they would be
admissible.
 For example if a case of robbery is being tried, with “A” as the accused. A similar fact of
robbery or another offense may be admissible if it is being stated that the same accused “A”
was involved in such offense.
Tape Recorded Conversations
 A tape-recorded conversation will be considered relevant under Section 6, 7 and 8 of the
Evidence Act.
 The tape-recorded conversation will fall under the ambit of Res Gestae.
 The tape-recorded conversation will be deemed relevant subject to certain conditions being
met. The conditions were given in various cases such as R.M. Malkani v. State of
Maharashtra by the Supreme Court and Pratap Singh V. State of Punjab. Such conditions
are:
o That the conversation recorded is relevant to the matter in issue
o That there has been a proper identification of voices in the recording
o That the tape-recorded conversation is accurate, with proof that there is no possibility
of erasing the tape-recorded conversation. There must be no possibility of tampering
of the statement.
Motive And Conduct Of The Accused- Section 8
 Section 8 of the Act addresses Motive, Preparation and Previous or Subsequent
Conduct

29
 Section 8 stipulates that any fact is relevant, which constitutes or shows a motive, or
preparation for a fact in issue, or a relevant fact.
 Furthermore, the conduct of a party or agent of the party, either prior or subsequent, with
reference to the fact in issue, will be deemed relevant. The conduct must be such that it
influences the fact in issue, or is influenced by the fact in issue.
 The previous or subsequent conduct of any person, against whom an offense is being tried,
will be relevant, subject to such conduct influencing or being influenced by any fact in issue
or relevant fact.
Motive
 Motive is what compels a person to commit an act. It is the inducement for doing an act.
 The absence or presence of a motive and evidence of preparation, previous attempt,
previous or subsequent conduct of the parties are relevant as they help in proving or
disproving a fact in controversy.
 In order to prove an offense against the accused, it is necessary to examine if the accused had
reasons compelling him to do the act, and to examine the prior preparations that were
undertaken if any for the act.
 The conduct of the accused, both prior and subsequent to the offense will be helpful in
determining if the accused did indeed commit the offense.
 Motive is considered as relevant, and can be proven in a case, as it is important to
understand if there was a motive for committing a crime or not.
o A lack of motive however is an argument which can be taken by the defense counsel
in a criminal trial, for committing of a crime by the accused.
 It must be understood that while motive is indeed relevant, is not an absolute requirement
under law. However, the absence of motive will always lean in favor of the accused as held
by the Supreme Court in R Shahji V. State of Kerala (AIR 2013 SC 651).
 The motive in cases involving direct evidence is not important. However, where the case is
built on circumstantial evidences, then the evidence of motive becomes important. In cases of
circumstantial evidence, motive is tied into the circumstances leading to the crime, as held in
Tasneem Kumar V. Delhi Administration (AIR 1994 SC 2585) by the Supreme Court.
 In the absence of eye-witnesses to the commission of an offense, the motive to commit the
crime must be established.
 Motive is not substantive evidence. Proof of motive is insufficient to convict the accused,
and is only corroborative in nature.
Proof of Motive
 The proving of motive is helpful in a case of murder or other crimes, however is
acknowledged as difficult to prove. As such, courts have maintained the position that it is not
necessary to prove motive
 The absence of motive is of no consequence in the presence of established, and cogent
evidence as to the committing of a crime by a particular person as held by the Supreme Court
in Narayan V. State of Maharashtra, AIR 1971 SC 1656.

30
 If there is no direct evidence of an offence but the court has to infer about the guilt from the
circumstances, the question of motive becomes vital.
 If the motive is displaced or even made reasonably doubtful, it is in favor of the accused.
 Where the prosecution falls completely to prove motive and evidence regarding commission
of offence is not clear and definite, the accused cannot be convicted
Importance Of Motive In Circumstantial Evidence
While in ordinary cases, motive is not necessary to prove in the presence of cogent evidence, it is
required to prove motive where the case is dependent on circumstantial evidences.
 State Of UP V. Babu Ram – The Supreme Court observed that motive is very much
material in cases depending upon circumstantial evidence. Motive was a relevant factor in all
criminal cases, including both eye witness testimony, and circumstantial evidence. It noted
that existence of motive in a case of circumstantial evidence will be counted as one of
the circumstances
 Yunnus V. Kariya – The Supreme Court held that where an eye witness was clear and
continuing, the role of the accused stood as clearly established. Failure to prove motive in
view of direct eye witness testimony was of no consequence.
Conduct
Section 8 of the Evidence Act makes the conduct of a person who is party to the suit, with
reference to facts in issue, as relevant. The conduct of persons interested in a proceeding at the
time when the fact in question has taken place is also considered as relevant.
 Conduct refers to the behavior of quality or condition of operating to produce efforts
intended.
 A person’s conduct will include what a person does and what a person omits to do. Conduct
can also include statements in certain circumstances.
 It must be understood that the conduct of only the parties alone is admissible. The conduct of
those persons who are not parties to the suit are not admissible.
 The conduct of a person is only admissible against himself. The conduct of an accused isn't
relevant to the co-accused.
 The conduct of the accused in an offense is considered as relevant. This inludes both the
prior conduct and subsequent conduct of the accused. The immediate reaction of the accused
is considered as a relevant fact
 A threat to do a criminal act given by the accused will be considered as relevant.
o Vinayak Datta V. State - The accused killed the deceased. There was evidence that
the accused threatened to kill the deceased. The threat to kill and the evidence of
intention to kill were held to be relevant.
 A prior attempt to commit an offense by the accused will be considered as relevant.
 An FIR by the accused himself will be admissible as evidence of his conduct.
 Absconding of the accused will be considered as evidence against the accused. However,
absconding does not prove the guilt of the accused. Mere abscondence of the accused cannot

31
 form the basis of guilty mind, but is relevant and must be considered in view of other
evidences. The value of absconding depends on the facts and circumstances of the case.
o Bhamara V. State Of UP – The accused called the deceased party for a chat where
tempers flared up. The accused struck a stone against the victim. Other parties ran to
the spot. On seeing others, the accused ran away but was caught. This conduct of
absconding was considered as admissible.
 Matru Alias Girish Chandra vs State Of Uttar Pradesh – The Supreme Court held that
the appellant's conduct in absconding does not necessarily lead to the inference of a
guilty mind. Even an innocent person may feel panicky and try to evade arrest when
wrongly suspected of a grave crime. Identification tests do not constitute substantive
evidence
Preparation
 The evidences of preparation to commit the offense is the most important. As such,
preparation to commit an offense and the modes of preparation to commit an offense are
deemed as part of conduct of the accused as a relevant fact under Section 8.
Explanations Under Section 8
Explanation 1 provides that mere statements don’t constitute conduct, and that they must
accompany and explain other acts or statements.
 The act of an injured person making a complaint of the offense done upon him will be
considered as conduct. The complainant has done an action, along with giving a statement of
making a complaint.
 There exists a difference between a statement and a complaint. A complaint is made with a
view to seek punishment, and is given to some authority. A statement however is given even
if a question was not asked.
Explanation 2 provides that where the conduct of a person is relevant, then any statement
made to such person, which affects the conduct will be considered relevant. Any statement
which causes a reaction visible in the conduct of the concerned person, will be relevant.
 Such statements are considered as admissible as the conduct may not be understood, without
such statement’s existence. If a person is silent, his conduct will be coupled with the
statement in nature of admission and will be considered as an evidence against himself.
 The statement is admissible as it helps to frame an understanding of the court of the possible
reasons and justifications of the conduct of a person.
 Queen Empress V. Abdullah - Where the victim was attacked with her throat slit, she
could not verbally say anything. She made gestures using her hand, and affirmed the name of
the accused via actions. The court majority held that such hand movements did not constitute
a statement under Section 8. The majority view stated that the conduct must be influenced by
the facts in issue, and not by interposition of words by a third party.
Facts Necessary To Introduce Or Explain Facts (Section 9)

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Section 9 of the Evidence Act deals with facts necessary to explain or introduce facts. It states
that the following facts are considered as relevant in evidence law:
 Facts necessary to introduce or explain a fact in issue or relevant fact
 Facts which support or rebut any inference suggested by a fact in issue or relevant fact
 Facts which establish the identity of anything or any person who is relevant
 Facts which show the relationship of parties by whom the fact was transacted
 Facts which fix the time and place at which the alleged fact in issue has taken place.
Introductory or Explanatory Facts
 Any fact which introduces a fact in issue, or explains a fact in issue is considered as relevant
under Section 9 of the Evidence Act.
 For example, if the question is to determine if a document is a will made by a person,
evidences regarding the state of said person's property and assets, and of his family members
shall be considered as relevant to introduce circumstances where the will was necessary.
 In case of a suit for libel, evidence of the relations of the parties may be relevant, as it
introduces circumstances leading to alleged libel.
 In situations of explanatory facts, the explanation itself may not be relevant independently,
however it gains relevancy upon connection and continuity with the fact in issue. This
connectivity is what makes the explanatory evidences as relevant.
 Independently, the explanatory evidence does not have any probative value, nor does it fall
under the ambit of res gestae.
 Rahan Lalu V. Emperor – The accused committed murder upon his wife with an axe. His 5
year old son saw the deed, and cried. On hearing the cry, villagers gathered to see the
accused holding the weapon, and the deceased body of the wife. The witnesses deposed what
the child said. Held that the witnesses spoke to the nature of the cry and what the child said
explained their conduct.
o The cry of the child and what was told to the villagers was the circumstances.
Had the child not cried, the witnesses would have not gone there. The cry was a
fact that ultimately introduced the fact in issue in this case.
Facts which support or rebut evidences
 Any fact which supports or rebuts an inference that has been suggested by the fact in issue, is
considered as a relevant fact.
 For example, if a person is accused of a crime, and said person absconds, then the
absconding will support an inference drawn by the court that the person has indeed
committed the offense charged with. The absconding of the accused is a conduct, after the
commission of the crime.
 Any fact which contradicts the inference drawn will also be relevant.
 Emperor V. Wahiuddin – The accused were charged with dacoity. The fact that the accused
were associating with the approver, is evidence to support the statement that there was a
conspiracy to commit dacoity. An inference was drawn in favor of conspiracy to commit
dacoity by the court.

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Facts Establishing the Identity of the Accused
 Any fact which establishes the identity of the accused will be considered as relevant.
 It is necessary in any case involving parties, be it civil or criminal to establish the identity of
a person by the court.
 Section 9 does not deal with testimonial identity, but rather circumstantial identity, and
depends upon the ability of a party to physically identify a person so named or alleged
by way of personal characteristics such as height, weight, voice, handwriting etc.
Test Identification Parade (TIP)
 Section 54A of the CRPC provides for the conducting of a TIP. It stipulates that after a
person has been arrested on any charge, his identification by any other person is necessary
for investigative purposes.
o The court having appropriate jurisdiction can order the person to be subjected to
identification by any person as the court may deem fit.
 The order of a magistrate to subject a person to a TIP has been held to be
constitutionally valid. It does not violate Article 20(3) of the Constitution
 The TIP is considered as vital during the stage of investigation, as it tests the veracity of the
witness, and the memory of the witness.
 Where the witnesses state that they are familiar with the accused, and know of the accused
personally, no TIP will be required. The TIP is only required if they are unfamiliar with the
accused.
 Rameshwar Singh V. State of Kashmir – The Supreme Court has held in this case, that
where the accused is not known previously to the witness, the identification by the witness
was of vital importance. The TIP serves to assure the investigating agencies, that the
investigation is proceeding on the correct lines.
 If adequate and sufficient precautions are taken, then the results of the TIP may be used by
the court as corroborative evidences.
 State of Himachal Pradesh V. Lekh Raj – The Supreme Court held that the purpose of the
TIP is to look for corroboration of sworn testimony of a witness with regard to the identity of
any person unknown to them.
o The court did note an exception if a court was impressed by a particular witness, who
could be relied upon without any further corroboration.
 The TIP is also conducted to strengthen the scope of substantive evidences presented.
Failure to hold the TIP
 The failure to conduct a TIP on part of the prosecution, will not weaken the evidences of
identification before the court of law.
 Malkhan Singh V. State of Madhya Pradesh – It was held that a failure to conduct the TIP,
will not make inadmissible the evidence of identification before the court.
 The weight given to the TIP must be weighed on the facts and circumstances of the case.
There is no uniform weightage of the TIP in a court of law.

34
 The investigative agency is not obligated to conduct a TIP, nor does the accused have the
right to demand a TIP to be conducted by the Magistrate, as held in Simon V. State of
Karnataka by the Supreme Court.
Delays In Holding Of The TIP
 The holding of the TIP is indeed an important part of the investigation, as it tests the veracity
and the memory of the witness.
 Generally, there is no fixed uniform standard as to when a TIP must be conducted by the
prosecution. Whether a delay in the conducting of TIP occurs or not, depends upon the facts
and circumstances of the case.
 It is expected that the TIP will be conducted within a reasonable time after the arrest of the
accused person. It is at the discretion of the court to accept the evidence of identification, and
determine if a delay has occurred.
 Brij Mohan Singh V. State of Rajasthan – The court held that the test to determine if there
was a delay in holding of a TIP was the test of promptness of holding of the TIP after the
arrest of the accused. The accused was held before a TIP within 24 hours of arrest. The
evidence of identification was held to be valid.
 In another case, involving robbery, the TIP was conducted on the accused 3 months after
arrest. The evidences of the TIP were accepted by the court.
 The power of perceptions differs from person to person in a TIP. The determination of
reliability of the identification stands at the discretion of the court, based on the memory of
the witness, and the trustworthiness of the witness towards the accused.
 Generally, it is preferred that the TIP of the accused be conducted as soon as possible after
the arrest of the accused.
Joint TIP
 There is no provision of law that prevents the conducting of a joint test identification parade.
 A joint Test Identification Parade will not affect the validity of the test identification parade.
 All that the TIP serves, is to ensure that the investigation is proceeding on the correct path,
and that there is a successful establishment of the identity of the accused.
Conviction or Non-Conviction On The Basis Of TIP
Whether the accused may be convicted or not on the basis of the test identification parade, by a
court of law, depends on the facts and circumstances of each case. There are no uniform
guidelines as to if the accused may be convicted on the basis of the TIP.
 Ram Nath V. State of Bihar – The Supreme Court was examining the credibility of the
evidence of identification. The accused was charged with dacoity. The prosecution witness
identified the accused at the TIP conducted by the Magistrate, however refused to identify
the accused in the court. It was noted that the witness was in fear of the accused.
o The court, on the testimony of the magistrate that the TIP was conducted
successfully, and on missives from the Trial Court noting the fear of the witness, held

35
 that the conviction of the accused could be made. In this circumstance, the TIP
strengthened the substantive evidences presented by the prosecution.
 Surendra Nath Rahtela V. State of Bihar – Where the accused fired shots at a car, injuring
the eye witnesses. The eye witnesses deposed in the FIR that no identification of the accused
could be made. However they successfully identified the accused in the TIP. It was held that
the identification was doubtful, and the accused conviction was liable to be set aside.
Facts Which Establish The Relations Of The Parties
 Any fact, which shows or establishes the relations of the parties in dispute is a relevant fact.
 Examples of cases, which depend upon establishment of relations of parties, include cases of
libel, slander, undue influence, family matters such as wills and property disputes.
Facts Which Establish The Time or Place of the Fact In Issue
 Any fact which establishes the time or place of the fact in issue is admissible as evidence.
 It is necessary to prove the timing of the occurrence involving the victim, and it is necessary
to prove that the accused was near the place of occurrence at the time of the alleged offense.
 The opinions of experts are relevant in cases of murder, to fix the time of murder. Signs of
scuffle are relevant to establish the place of occurrence of a crime.
 Bhim Singh V. State of Haryana – The question was of the time of death of the victim. The
prosecution witness testimony was corroborated of the stomach contents of the victim as per
post-mortem report. The court held that such evidence was admissible to establish the time
of death of the victim, in the absence of any other evidences to suggest when the last meal of
the victim was eaten.
Evidences Relating To Conspiracies and Common Intentions (Section 10)
Section 10 of the Evidence Act addresses evidences to prove conspiracies. It stipulates that if,
there is reasonable grounds to believe that two or more persons have conspired to commit an
offense or actionable wrongs, in furtherance of common intention, anything said, or done, or
written, by any such persons is a relevant fact. This exists against each and every person
involved in conspiring, and serves to prove the existence of a conspiracy.
 The essentials are as follows:
1. There must be reasonable grounds to believe that a conspiracy has taken place by two or
more people to commit an offense. (A prima facie case of conspiracy must be made
out)
2. The conspiracy must be in furtherance of common intention
3. There must have been something done, spoken or written by any conspirers with relation
to the conspiracy.
4. The act or statement can only be used to prove the existence of a conspiracy. It cannot be
used to prove that such person was not a party to conspiracy.
 Section 10 functions on the principles of agency. It stipulates that each and every conspirer
to an offense in furtherance of common intention, is an agent to one another, and thus,
equally liable.

36
 Section 10 places liability on every person who joined or left before anything was spoken or
written in relation to the conspiracy, as held in Sardar Sardul Singh V. State of
Maharashtra by the Supreme Court.
 Thus, Section 10 stipulates that by virtue of principle of agency, anything said or done by one
member of conspiracy is relevant against other members, even if other members had no
common knowledge, or such thing was written in their absence.
o Mere common intention is sufficient to attract Section 10.
 Kehar Singh V. Delhi Administration – The Supreme Court has stated that there must be a
prima facie case of conspiracy made out, to attract the provisions of Section 10 of the
Evidence Act.
Section 10 As A Necessary Evil
 Section 10 is considered as a necessary evil. It is considered as evil as it has the potential to
bring in the innocent, as well as the guilty on charges of conspiracy.
 It must be kept in mind however, that Section 10 only admits evidences which suggest or
draw inferences of the existence of a conspiracy in furtherance of common intention. If such
evidence has been rebutted, then such evidence may be struck down.
 Badri Rai V. State Of Bihar – The Supreme Court explained the rationale behind Section
10 of the Evidence Act. It stated the following:
o Section 10 was enacted against all persons involved in a conspiracy due to the nature
of the offense.
o A conspiracy was always hatched in secret and executed in darkness. As such it is not
feasible for the prosecution to connect each isolated statement with the accused.
o There was a common intent and common bond linking them accused persons
together.
Key Cases
 Mirza Akbar V. Emperor – The wife (W) conspired with her paramour (B) to murder her
husband(H). The accused parties hired a third party “C” to commit the deed of murder. C
was caught.
o The prosecution relied upon letters between W and B indicating love and affection,
referring to money and means. The letters and statements before the magistrate were
admitted as evidence against W and B.
o The court held that such letters were relevant under Section 10, as they were
consisted with the conspiracy to murder the husband and were written at a time when
the conspiracy was taking place.
 CBI V. VC Shukla - The accused were charged with conspiracy to receive unaccounted
money, and to distribute said money amongst their companies, family, friends, and public
servants.
o The issue was if a diary entry of a person showing names of parties to whom
payments could be made, constituted evidence of conspiracy or not. The court held
that such evidences were not sufficient to create a reasonable doubt to believe that a
conspiracy existed between persons named, and the owner of the diary.

37
 Evidences Of Facts Not Otherwise Relevant Becoming Relevant (Section 11)
Section 11 of the Evidence Act deals with facts which are not relevant otherwise, but become
relevant.
 Section 11 stipulates that, those facts which are ordinarily not relevant, become relevant in
the following circumstances
o Where the fact is inconsistent with the fact in issue
o Where the fact in itself is not relevant, but in connection with other facts, establishes
the existence or nonexistence of a fact, or relevant facts as probable or improbable.
 Section 11 of the Evidence Act is given a wide scope of interpretation, however it is guided
by other provisions of the Evidence Act. The interpretations of Section 11 must be done vis-
à-vis the provisions of the Evidence Act.
Fact Inconsistent With Fact In Issue
As per Section 11, any fact which is inconsistent with the fact in issue, will be considered as a
relevant fact. The fact in question should be of such nature, that cannot possible co-exist with the
fact in issue. The prospects of facts inconsistent with the fact in issue as such can be used for the
following:
 Alibi
 Non-access of husband to prove illegitimacy
 Survival of alleged deceased
 Commission of offense by a third person
 Self-infliction of harm
Alibi
 The most important significance of Section 11 is that it allows for an accused to take the plea
of an alibi in their defense.
 When an accused takes the plea of alibi, the burden of proof falls upon him to prove the
existence of alibi, by production of evidences for the same.
 Binay Kumar V. State Of Bihar – The court stated that a strict burden of proof was
required to establish the plea of alibi taken by the accused. It acknowledged that the burden
upon the accused was heavy, stating however that such burden only arose where the
prosecution successfully discharged its burdens.
 The plea of alibi is such that it would be inconsistent with the fact that the accused was
present at the scene of the crime.
 Where the alibi is proven by the accused to the satisfaction of the court, he would be entitled
to an acquittal.
 Failure to prove the alibi however does not aid the case of the prosecution. A failure to
establish alibi does not mean that the accused was present at the scene of the crime.
 Plea of alibi however cannot be taken in cases of furtherance of common intent, as all parties
would equally liable.
 Jayantibhai Bhenkarbhai V. State of Gujarat

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 o The Supreme Court elaborated on the origins of the term abili, stating that it meant
“elsewhere”
o It was held that the plea of alibi was not recognized as an exception under the IPC, but
existed under the rules of evidence law via Section 11.
o The court stated that the plea of alibi must only be considered where the prosecution has
successfully discharged its burden of proving the guilt of the accused. Where the
prosecution failed to prove beyond all reasonable doubt, the plea of alibi does not need to
be considered. However where the prosecution succeeded in its burden, the accused must
prove using alibi all possibilities to exclude him from the crime.
o Further it was held that the defense of alibi on part of the accused will not discharge the
burdens placed upon the prosecution.
 Munshi Prasad V. State Of Bihar – The Court held that the term alibi was based on
physical impossibility of being at the scene of the crime. Stating that a person was 400 yards
away from the crime scene did not constitute as presence elsewhere.
Non-Access Of Husband To Prove Illegitimacy
 Legitimacy of a child implies begetting by the husband.
 In disproving legitimacy it is relevant to probe the fact that the husband had no access to the
child at the time of begetting.
Survival of the Alleged Deceased
 The survival of the alleged deceased will be taken as a fact inconsistent with the fact in issue.
This will serve to prove that the accused was not guilty of murder of the deceased.
Other grounds include self harm, and commission of an offense by a third party.
Probability Of Facts
 Section 11 also deals with the probability of facts. It stipulates that any fact which is not
relevant, gains relevancy if it in connection with the fact in issue, establishes the existence or
non-existence of facts, or probabilities or improbabilities of facts in issue.
 For Section 11, the fact independently will not be relevant, but if brought in connection
with the fact in issue, will gain relevancy.
 Kalu Mirza V. Emperor. The accused was charged with cheating. The accused was a
member of an organization that engaged in habitual cheating. The fact that the accused was a
member of such organization independently is not relevant, but connected to the fact in issue
was relevant and showed high probability of the accused being a cheater.
 Section 11 functions on the basis of similarity of facts, or on basis of the simultaneous nature
of facts.
 For example, if the prosecution seeks to prove false evidence on part of the accused, the fact
that the accused instituted a false suit against the same person will be relevant to consider
probabilities of the fact in issue.
 Any fact which renders a fact as highly improbable will be considered relevant as well.

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 Santa Singh V. State of Punjab – The witness stated that he saw A shoot B from 25 feet.
The expert opinion however stated that on examination of bullets, the bullet was fired from 1
foot. This fact renders the testimony of the witness as highly improbable.
 Under Section 11, the fact in issue, and the fact of correlation referred to for interpretation of
“highly probable or improbable” must be immediate to be considered as highly probable.
o Thus, any statement made by a person not called as a witness, or any similar but
unconnected fact, will not be relevant under Section 11.
Facts Relating To Claims For Damages (Section 12)
 Section 12 of the Evidence Act stipulates that any fact which aids the courts in determining
the nature of damages to be awarded will be relevant.
 In cases of suits for damages, the nature of facts and relevancy of facts will depend upon the
nature of the suit (eg. Suit for breach of contract, specific performances of contract).
Facts Relevant When Rights Or Customs Are In Question (Section 13)
Section 13 of the Act addresses facts relevant when rights or customs are in question before the
court. It stipulates that where the question exists as to existence of any rights or customs, the
following facts will be considered relevant
1. Transactions by which the right or custom was created, claimed, modified, asserted or
denied, or deemed inconsistent with existence
2. Instances where the right or custom has been claimed, recognized or exercised, asserted ore
departed from.
Section 13 essentially deals with proof of existence of a custom or right to a person.
Custom
 A custom is a rule which has been in existence since time immemorial, and has obtained
the force of law in a particular locality.
o For example, it is a custom that sons will inherit the property of the father.
o A characteristic feature of custom is that it cannot exist for the whole of the public. It
must be constrained to a particular segment of society, or locality.
 The essentials for a valid custom are as follows
o It must be ancient
o It must be continued and uninterrupted in a uniform manner
o It must be reasonable
o It cannot be opposed to the grounds of public policy and morality
o It must have the sanction of laws
o It must be compulsory for a certain section of society
 Most laws involving customs in India have stemmed from the realms of family law.
Various types of customs exist. They include

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 Private customs – followed by a particular family, such as custom of estate, or custom of
natures.
 General customs – customs which are followed by a considerable class of persons either
locally, or by a class of society.
 Public customs – In matters of public and general interest the terms 'public' and 'general' are
sometimes used as synonymous meaning merely what concerns a multitude of persons
Rights
Rights are in general rules which have the force of law, granted by the state towards persons
pertaining to their livelihood, ability to develop, and ensure humane treatment. Rights in general
can be of legal rights (which may be revoked by the State) and fundamental rights (Which cannot
be revoked by the State, nor infringed upon by the State)
 As per the Calcutta High Court, the term “rights” as used in Section 13 refers to public and
incorporeal rights such as rights to ferries, fisheries etc. The word “right” does not refer to
corporeal private rights. (Gujja Lal V. Fatteh Lal – Calcutta High Court)
 The Bombay and Madras High Courts however have stated that under the ambit of Section
13, rights refer to all rights recognized by law, including the rights to ownership, not
confined to incorporeal rights only (Ranchhoddas V. Bapu – Bombay High Court)
Proof of customs
It stands to reasons that where a person has alleged the existence of a custom, or the non-
existence of a custom, the burden of proof falls upon such individual to prove the same.
 Section 13 however makes the instances and transactions relevant to prove the existence of a
custom.
 A custom is a mixed question of law and fact.
o First certain facts are to be proved and from those facts an inference of the existence
of a valid custom is drawn
 Customs may be proven or disproven in the following ways
o Opinions of persons having special knowledge of the same
o Statements of persons dead, or whose attendance cannot be precured without
unreasonable delay, provided they were made before controversy as to such custom
arose
o Transactions by which custom was claimed, modified, recognized etc.
o Instances by which the custom was claimed or recognized, modified, asserted or
disputed.
Facts Showing State Of Mind Or Body (Section 14)
Section 14 addresses the relevancy of facts which show a state of mind, body or bodily feelings.
It stipulates that:
 Any state of mind including intention, negligence, good will, knowledge, good faith, or
 Any state of body, or bodily feeling

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Will become relevant if such state of mind or bodily feeling is in issue.
Explanation 1 provides that where the fact of state of mind is being shown, it must be proven
that said state of mind existed not in general, but for the specific transaction in question.
Explanation 2 provides that in case of accused being charged with a crime, the occurrence of
prior offenses by such person if coming under Section 14’s ambit, will become relevant.
 Ordinary, the records of a previous conviction is considered as bad character, and hence
would be excluded under Section 54 of the Evidence Act.
 However, such occurrence of prior offense can be used to establish the presence of state of
mind, state of body, or state of bodily feelings.
Evidences Of Similar Facts
 A fact is said to be a similar fact, when it is similar to the fact in issue.
 The fact in issue cannot be proven by showing the occurrence of similar facts, as per the
maxim “Res Inter Alios Actate”
 Facts similar to the fact in issue, but occurring as part of the same transaction overall, cannot
be used to prove the fact in issue.
 The rule of similar facts being irrelevant is a general rule that exists. There is no mention
of similar facts in the Indian Evidence Act.
 Section 15 can act as an exception to the general rule.
Facts On Question If Act Was Accidental Or Intentional (Section 15)
Section 15 stipulates that if the question is if an act was intentional or accidental, or done with
knowledge and intention, the fact that such act was a part of a series of similar occurrences will
be relevant.
 Section 15 is an exception to the general rule that similar facts are not admissible as evidence
(Section 14).
 However, it may be noted that the scope of Section 15 is restrictive in nature, only confining
itself to largely determine intentional acts and accidental acts, or acts done with knowledge.
 The evidence of similar facts may be given when it will establish a state of mind or intent,
which is either a condition of liability or is otherwise relevant.
 Amrit Lal Hazra V. Emperor – The Calcutta High Court held that acts tendered to in
evidence, must be proximate in time to the act in question. It must have occurred close to the
event in question.
Existence Of Course of Business When Relevant (Section 16)
Section 16 of the Evidence Act addresses the existence of course of business, when relevant. It
states that if there is a question, if a particular act was done, the existence of business which
naturally would have been done is a relevant fact.
 The effects of Section 16 is that where an act is shown to have been done in a general course
of business, the law will draw a presumption, that the act must have been done.

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 Eg. If a letter has been posted and not returned to the sender, the presumption is that the letter
will have been sent.
 To prove that an act has been done it is admissible to prove any general course of business or
office, whether public or private, according to which it would ordinarily have been done,
there being a probability that the general course of business will be followed in a particular
case.
 This probability is stronger in case of public officers.

Module 4 – Admissions And Confessions (Section 17 to Section 31)

Admissions and confessions play a significant role in the criminal justice system. There is a
difference between what constitutes an admission, and what constitutes a confession.
Admissions only cover statement of facts. They do not cover responses to questions of the
law.
Definition of Admission (Section 17)
 Section 17 defines admission. It stipulates that an admission is either an oral or
documentary statement, which suggests an inference as to relevant fact or fact in issue, made
by a person.
 The statement can be oral or documentary, and must suggest an inference pertaining to the
relevant fact or fact in issue.
 Example – A person is sued for non-repayment of loan. On examination of book of
accounts, it shows that the loan amount has been recorded. This infers knowledge as to
existence of loan. This is an admission.
 Admissions are related to issue of fact. They are not pertaining to issues of law.
 Ram Bharose Sharma V. Mahant Ram Swaroop – The Supreme Court has held that
admissions are of issues of fact. A statement which is on an issue of mixed question of law
and fact cannot be an admission.
 As an admission only suggests an inference, the courts must fully examine the statement.
Such statement made must be clear, unequivocal and unambiguous in nature.
 Karan Singh V. State of Jammu And Kashmir – The Supreme Court has held that
admissions in the form of book statements cannot be used as a conclusive admission. They
however can be used for additional inferences in additional circumstances.
 Admissions constitute hearsay evidence, but are considered to be the best evidence.
Thus it is an exception to the rules of hearsay.
Admission As Statement Against Interests
Satruchara Vijaya Ram V. Nimmaka Jaya Raju – The Supreme Court has held that
admissions can be taken as a statement against interests of a person, when such statement
becomes adverse to his interest. The court acknowledged that such evidence would be the best
evidence.

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Forms Of Admissions
It has already been established, that every statement either oral or documentary which suggests
an inference as to fact in issue is an admission. The admission can be classified in the following
forms.
 Judicial Admission
 Extra-Judicial Admission
Judicial Admissions – They are admissions made by a party to proceedings in a case, prior to
the trial. Any admissions made in the case, are considered as binding on the parties, and thus
constitutes waiver of proof.
Extra-Judicial Admissions – They are admissions made by a party to proceedings in a case
which are not on the records of the cases. Examples of extra-judicial admissions are writings and
documentary evidences as to a fact, or oral in the form of casual conversation. They are
partially binding on the party making them except in cases where they operate as estoppel.
Admission By Conduct
The conduct of a party can indicate the admission made, leading to an inference to be drawn with
relation to a relevant fact.
 Mayo V. Mayo – In this Australian case, the court held that where the mother was unable to
give information of the father to the child, the court deemed it as either not knowing the
father or not willing to disclose the father’s identity. It held that either way, this constituted
admission that the child was an illegitimate, and thus led to inference of adultery.
In certain cases, silence on part of the accused can constitute grounds for admission, especially
where it is natural to expect a response to a question asked. (Silence amounting to guilt)
Admissions Are Substantive Evidences
 Admissions made are substantive evidences, however are not conclusive proof of matters
admitted
 Admissions duly proven are admissible in evidence, even if the party making them did not
enter the witness box, and whether or not such party when appearing as a witness was
confronted with such statements, in case a contradictory statement was made.
 The admissions must be clear if they are to be used against the persons making them. They
must be unequivocal and unambiguous.
Admission By Party To His Agent (Section 18)
Section 18 of the Evidence Act addresses admissions by party to his agent.
 Statements made by a party to the suit are relevant as admissions.
 Statements made by an agent authorized of such party are admissions and relevant
 Statements made by a party suing or being sued in a representative capacity making
admissions while holding character are relevant

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 Statements made by persons with pecuniary interest in the subject matter of a suit are
relevant and constitute admissions.
 Statements made by persons from who the parties in the suit have derived their interests
during the continuance of such interests.
The admission of the agent is considered as admissible, as the principal is bound by the actions
of his agent, done in the course of his business, with the scope and authority of the principal.
Admission By Person’s Whose Position Must Be Proven (Section 19)
Section 19 addresses the admissions by persons, whose positions must be proven. It stipulates
that the statement of a person whose position is necessary to prove in a suit, if such statement
would be relevant in a suit brought by or against himself.
 Section 19 deals with addressing the admissions of persons whose position is in issue. The
party in question however, is not a party to the dispute in question.
 Section 19 is based on the principle that where the right or liability of a party is dependent on
the liability of a third person, any statement of the third person will be considered an
admission against the parties.
Admissions By Persons Expressly Referred To By A Party (Section 20)
Section 20 addresses admissions made by persons who have been expressly referred to by a
party to a suit. It stipulates that such statements made by persons to whom a party has expressly
referred for information is an admission where it relates to drawing of an inference.
 Section 20 acts as an exception to the rule that admissions by strangers to a suit are not
relevant.
 The admissions thus of a third party, are receivable in evidence against the party who has
expressly referred another to him for information in regard to an uncertain or disputed
manner.
 To attract Section 20, there must be an operation of express reference for information to
make such statement of the person referred to as admissible.
Against Whom Can Admissions Be Proven (Section 21)
Section 21 stipulates that the admissions can be proven against the persons making it or their
representatives. It stipulates that ordinarily, admissions cannot be proven by or on behalf of the
person making the admission. There are limited circumstances where the admission can be
proven by the person making it.
 The general rule is that one who makes an admission cannot prove his own statement,
otherwise every man may make declarations to suit his own case.
 The statements of living persons cannot be received unless they are against the interest of the
person making them. No man can be at liberty to make evidence for himself via his own
statements.
 Self favouring admissions are not permissible.

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A person making an admission can prove the same on their behalf in the following
circumstances:
 Admissions falling under Section 32 of the Evidence Act
o An admission can be proven on behalf of the person making it, if it were that the
person making it were dead.
o It would be relevant as between third persons under Section 32 of the Evidence Act
o Section 32 lays down that statements made by persons who are dead, or missing may
be proven, if they fall within the ambits specified under Section 32.
 Admissions pertaining to state of mind or body
o Where the admission made is with reference to a state of mind or body, and when it
was made, or when such state of mind or body existed, such admission can be used by
a person for his own benefit.
o The statement made must be contemporaneous with the existence of the state of mind
or body, so stated. This condition is placed to avoid instances of fabrication of facts.
o The statement made must be accompanied by the conduct of the person making it, to
render the falsehood of the statement as improbable.
 Admission proven on behalf or against the person making it if it was relevant otherwise
than an admission
o This exception is used and applied in cases where the statement is sought to be used
in evidence other than an admission.
o An example is where the statement is used under the ambit of res gestae or as a
statement to explain the conduct of a person.
When Oral Admissions As To Documents Are Relevant (Section 22)
Section 22 addresses the circumstances where the oral admissions as to documents are relevant.
 Section 22 stipulates that, those oral admissions as to documents are not relevant, unless the
person proposing to prove such evidences, can prove that he is entitled to give secondary
evidences as to the contents of the document under Section 65 or if the genuineness of the
document is in question.
 The competency of a person to prove admissions as to oral evidences is dependent on
him being entitled to give evidences under Section 65.
 Where the question as to the genuineness of a document exists, or there is a suspicion that the
document is forged, admissions relating to such fact are relevant.
o Evidences that can be relied upon to prove the genuineness of the document are the
original document itself, or attested copies of the document.
Oral Admissions As To Contents Of Electronic Records (Section 22A)
As per Section 22A, oral admissions as to the contents of electronic records are not relevant,
unless the genuinely of the electronic record is in question.
Admissions In Civil Cases (Section 23)

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Section 23 of the Evidence Act addresses admissions made in civil cases. It stipulates that in
civil cases, an admission is not relevant and cannot be proven if:
 A person has admitted to their liability on conditions that evidence of such admission cannot
be given,
 The admission was made in circumstances such that the court can infer the existence of an
agreement, that admissions would not be proven in evidence.
It must be noted, that Section 23 only applies in cases of civil disputes.
 Section 23 gives effect to the prospect of admissions “without prejudice”. It is based on the
viewpoint that if such admissions can be proven, then it is impossible for people to talk of
compromises in a civil dispute.
 When a person makes a statement without prejudice, (upon condition that no evidence cannot
be given), such a statement cannot be proven against him. This privilege against disclosure is
given to parties, to encourage them to settle disputes amicably without resorting to litigation.
 Section 23 gives effect to the maxim that it is in the State’s interest that there should be an
end to the litigation process.
 An important rule is that Section 23 can only apply in cases of disputes or negotiations
with another, of they are written as bona fide.
 Section 23 does not protect all letters merely due to bearing the statement “without
prejudice”. It merely shows a desire on part of one party to have the privilege, but the other
must also respect the privilege.
 It is not necessary however, that the statement “without prejudice” be confined to a written
form. An implied agreement to that effect can also be inferred form circumstances of
negotiations.
 Oral statements made in connection with written correspondence would also be
protected under Section 23.
 Where the letters have been marked as “without prejudice” and the other party has chosen to
accept them, instead of objecting, then such admission would imply that said party has
waived their privilege of non-admittance. Such letter can then be proven against them.
Evidentiary Value Of Admissions
 As per Section 31 of the Evidence Act, an admission is considered as prima faice evidence of
the admittance of a fact. It is not conclusive evidence.
 As such, the party against whom the admission is being proven, has the ability to produce
any evidence to rebut the validity of the admission, and to prove that the admission is untrue.
 The party against whom the admission is being proven, is tasked with the burden of proof to
provide evidences to rebut or prove the untrueness of the admission.
 If the admission has been conclusively proven to the satisfaction of the court, the
admission will be relevant before the court, as substantive evidence.
 Bharat Singh V. Bhagirat – The Supreme Court has held that the admission can be
considered as admissible evidences, irrespective of whether the party making the admission
appeared in the witness box or not, or was confronted with statements made.

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 As per Section 17, there is no distinction between an admission made by a party in their
pleading, and any other form of admission. Thus any admission made in any pleading, can be
used as evidence in other suits.
 Bishwanath Prasad V. Dwaraka Prasad – The Supreme Court held that admissions in
earlier suits are relevant evidences in a subsequent suit.
 Under Section 31, the admission may operate as estoppel. It does not operate as estoppel in
every instance, but at a particular instance.
o Where an admission operates as estoppel, the party making the admission will not be
allowed to disprove the admission.
o An admission operates as estoppel when under Section 115 of the Act, the admission
amounts to a representation of the truth of a fact, and the other party has acted upon
such representation believing it to be true.
 The admission only suggests an inference. As such, courts must examine such statements
thoroughly, and before holding the party to their statements, the court must verify that the
statement is clear, unequivocal and unambiguous.
Confessions (Section 24 to Section 30)
Under the Evidence Act, there is no precise definition for what amounts to a confession. In the
absence of such definition, the definition of “Admission” under Section 17 is also applicable to a
confession. A confession thus, is any statement said or made by an accused, charged with a
crime, drawing inference to facts, to infer that the accused has committed the offense so
charged.
State (NCT of Delhi) V. Navjot Sandhu – The Supreme Court elaborated on what was a
confession. It held that a confession was considered to be highly reliable as no person would be
willing to make an admission against himself, unless prompted by his conscience to tell the truth.
The court has equated the meaning of confession with that of admission, as per its usage in
it’s judgement.
Sections 24 to 26 of the Evidence Act address the circumstances when a confession is
irrelevant.
Sections 27 to 29 of the Evidence Act address the circumstances when a confession will be
relevant.
Difference Between Confession And Admission
There is a thin line of difference between confession and admission. The terms appear similar
due to a common usage of definition, however there do exist certain differences between them.
They are:
 An admission is made in the course of a civil proceeding. A confession is made in the
course of a criminal proceeding.
 An admission is not conclusive, and may not be barred by estoppel. A confession if clear,
concise and voluntary, can be admitted, and deemed as conclusive.

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 An admission, may be used against a person, but can be used by a person in case of
exceptions under Section 21 of the Evidence Act. A confession will always go against the
person making it.
 An admission is either a written or oral statement giving an inference as to the liability of the
person making the admission. A confession is either an oral or written statement, admitting
to the guilt of the accused.
Types of Confessions
There are two types of confessions which exist. They are judicial confessions, and extra-judicial
confessions.
Judicial Confession
 The judicial confession is a confession which is made by the accused to the court, in the
presence of the court.
 Because it is stated as confession within the walls of the court, a judicial confession is
considered as good evidence.
 It is immaterial as to how the confession is made before the court.
 The confession may be oral or written.
 It is further immaterial, if the accused was heard making the confession to any person, or to
himself, which was overheard by another party.
Extra Judicial Confession
 An Extra-Judicial confession is any confession which is made outside the courtroom.
 Such a confession is regarded as a weak evidence, and as such must be approached with
caution.
 Rahim Beg V. State of UP – The Supreme Court held that the nature of an extra-judicial
confession was of such nature, that to afford the status of reliable evidence, it must stand the
test of reproduction of exact words, the reason and motive of the confession, and the person
selected in whose confidence it is reposed.
 Even though an extra judicial confession is regarded as a weak confession, it may be
accepted by the court, if the court believes the testimony of the person about the confession.
 It is not required by law for the evidence of an extra-judicial confession to be corroborated in
all cases.
 An extra-judicial confession is regarded as substantive evidence, and the court can rely upon
such evidences in appropriate cases.
o State of Punjab V. Gurpreet Singh – The Supreme Court held that where the court
seeks to rely upon extra-judicial confessions, it would be safe to look for re-assuring
materials before accepting the confession
 Sivakumar V. State - The court held that an extra judicial confession may or may not be
considered as a weak evidence. It is dependent on the facts and circumstances of the case.
 However, generally, the extra judicial confession is not considered to be a strong
evidence.

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 Confessions caused by threat, inducement or promise when irrelevant (Section 24)
 Section 24 of the Evidence Act addresses confessions given under threat, inducements or
promises.
 It stipulates that any confession which has been given by the accused, under threat,
inducement or promise by a person in authority, will not be considered as evidence and will
be irrelevant.
 To attract the provisions of Section 24, the following elements must be met
o The accused should make the confession in the presence of a person in authority
o The court should be satisfied that the confession made by the accused was due to
threat, promise or inducement by a person in authority.
o The threat, promise or inducement must related to the charge against the accused.
o The accused must feel threatened by such action of the authority, that he would
suppose that by making a confession he would avoid a greater evil, or gain an
advantage in reference to the proceedings against him.
 If all the aforesaid circumstances are met, then the confession will not be admitted before the
court, as such elements make the confession involuntary and forced/
 It is essential that the confession is made voluntarily by the accused, after being
informed of his rights.
 Strict proof of inducement is not necessary to attract Section 24. This is in the interests of the
rights of the accused.
 Pyare Lal Barghva V. State of Rajasthan – The Supreme Court has held that if there is a
mere suspicion in the eyes of the court, that the confession was a result of threat, inducement
or promise, such suspicion is enough to discard the evidences.
 For Section 24 to apply, the question must be considered from the point of view of the
accused, as to how the inducement, threat or promise would operate on his mind. A
reasonable belief must be present that by confessing, the accused would be protected from
the authority.
 Satbir Singh V. State of Punjab – The Supreme Court held that the confession made by the
accused to the police officer, was not admissible in law, as it was not voluntary, and
generated a feeling of safety in the mind of the accused from the police.
Confessions Made To The Police (Section 25)
 Section 25 addresses confessions made by the accused to the police. Under Section 25, any
confessions made by the accused to a police officer cannot be proven against him.
 Confessions made by the accused to the police, are not admissible in a court of law.
 The object of Section 25 is to prevent the practices of oppression or torture by the police on
the accused for extracting a confession.
 Section 25 has a wide ambit and scope, and it excludes any evidence against he accused,
when the confession is made in the presence of a police officer.
 Whether the confession was made during police custody or not is irrelevant and immaterial.

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 Queen Empress V. Babu Lal – The court held that the object of Section 25 was to prevent
extortion of confessions made by an accused to the police, who seek to use torture as a means
to gain credit.
o The court noted, that if confessions given to the police were admitted, then the police
would torture the accused, and force the accused to confess to a crime which the
accused may not have committed. Such confessions would be involuntary.
 It may be noted that special Acts, may change the system of excluding police
confessions.
o For example, the TADA Act 1987 stipulated that confessions were not excluded as
evidence, on grounds that the person making such confession was in police custody.
o The POTA Act 2001 also contained similar provisions, that a confession made to the
police was admissible in evidence.
Effects Of Police Presence
 In order to make a confession inadmissible under Section 25, it is essential that the
confession was made to a police officer.
 Where the confession is made to any other person, and a police officer overhears the
confession, such a confession will be valid and admissible.
 However, if the person to whom confession is made, is a secret agent of the police, then such
a confession will be treated as a confession made to the police.
 Sita Ram V. State - The Supreme Court held that where the accused left a letter recording
his confession near the dead body of the victim, avowed that it must be recovered by the
police, such a confession would be valid, as it was not made to the police.
Confessional FIR
 Only that part of confessional FIR is admissible, which does not amount to a confession, or
which comes under the realm of Section 27.
 Non-confessional parts of the FIR can be used as evidence against the informant accused as
showing of conduct, under Section 8.
Confessions Made In Police Custody (Section 26)
As per Section 25, any confession made to the police, is inadmissible as evidence. Thus it would
further stand, that confessions made by the accused, while in police custody will not be admitted
as a valid confession.
 Section 26 of the Act addresses the validity of confessions made by the accused, while in
police custody. It stipulates that confessions made while in police custody cannot be proven
against such person.
 Section 26 adds a caveat, that where the confession was made while in police custody, in the
immediate presence of a magistrate, such confession can be proven against the accused.
 The basis of Section 26 is fear that the accused would be tortured by the police, and be forced
to confess. Thus, such a confession suffers from the connotation of being not voluntary, and
not willingly given.

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 Police Custody refers to being in the control of the police. It is immaterial if such control
was exercised at home, or in transit, or in the open space. It does not necessarily confine
itself to the walls of a prison or police station.
o The mere knowledge that the accused is in police custody, is enough to render such
confessions as inadmissible.
o Being in the immediate presence of the police officer is not necessary to constitute
police custody.
 If a confession was made, when the accused was near the presence of a police station, or
during the surveillance of the police, such confession will not fall under the ambit of Section
26.
 State (NCT of Delhi) V. Navjot Sandhu – The court held that statements made to TV and
press reporters by the accused in the presence of the police, and in police custody, made the
confession inadmissible.
Presence of Magistrate
 One exception to Section 26 is the presence of the magistrate. If the confession is made in
presence of the police, with the immediate presence of the magistrate, such confession is
valid.
 This comes from the fact that in the presence of the magistrate, the accused will not be
tortured, making the confession free and voluntary.
 It is essential that the magistrate remain in the same room where the confession is being
recorded.
 A confession made by the accused in lockup or judicial custody will be relevant, if the
accused is being guarded by policemen.
 The fact that the accused states before the magistrate that he told the police officer his
confession will not render the statement admissible. He must confess stating that he did a
criminal act, in front of the magistrate, and not that he told the police of the same.
 Confession before a magistrate of the 2 nd class – Where a confession is made before a
magistrate of the 2nd class, who is not authorized by the State government, such confession
will not be admissible in a court of law.
Confessions When Relevant And How Much Can Be Proven (Section 27)
Section 27 of the Evidence Act addresses the circumstances where a confession is regarded as
relevant in the eyes of the law. It stipulates that where a confession results in the discovery of a
new fact, from the accused in the custody of a police officer, such information as relates to the
fact discovered may be proven.
The essentials are as follows:
 There must be a confession by the accused.
 The confession must have been made in the presence of a police officer
 The confession must lead to the discovery of a new fact

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 Anything relating to the new fact discovered can be proven to the extent that it relates to the
fact.
Section 27 gives a second scenario, where the confession made before a police officer will be
accepted in a court of law. Ordinarily, any confession made in the presence of a police officer is
inadmissible, or while in police custody. Thus, the following exceptions can be seen.
 Confession in the presence of the magistrate
 Confession resulting in the discovery of a new fact.
Section 27 is essentially in the nature of an exception to Sections 24 to Section 26 of the
Evidence Act as such.
 Section 27 is founded on the principle that if the confession of the accused is supported by
the discovery of some new fact, such fact may be presumed to be true, and not extracted.
 The truth of the confession is guaranteed by discovery of facts, in consequence of the
information received
 Section 27 comes into operation when a person has produced from some place of
concealment, any new object, weapon, body etc. This is said to be the discovery of fact.
 Statements made under Section 27 are not admissible against anyone other than the
maker of such a statement. (Surendra Prasad V. State of Bihar).
 The discovery of fact must be made by the police, due to information given to them by the
accused, and no other person. Any statement made in connection with an investigation,
leading to the discovery of a new fact is also relevant.
 It is essential that the fact must be known to the accused, and stated by the accused. IF
it has been stated by person other than the accused, then Section 27 does not apply.
 Pullukuri Kotaya V. Emperor – The appellants contended that their statements were
admitted by the court while in police custody, and thus in violation of Section 26 and Section
27 of the Act.
o The court elaborated on the scope of Section 27, noting that it provided an exception
to the prohibition under Section 26, and enabled statements made by people in
custody to be proven.
o The condition essential to Section 27 was the discovery of a fact in consequence of
information received from the accused.
o It was noted that Section 27 was brought into existence, when a person while in
police custody, procured from place of concealment any object, body, weapon, etc.
o Further held, that the provision to Section 26 created via Section 27 cannot be held to
nullify the substance of section.
 Mohd. Inayatullah V. State of Maharashtra – The Supreme Court elaborated on the points
of place of hiding, and application of Section 27.
o A condition for bringing Section 2 was the discovery of fact, in consequence of
information received by a person accused of an offense.
o The discovery of such fact includes the object found, place of production of object,
and its knowledge to the accused.

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 o At the time of receiving such information, the accuse must be in the custody of the
police.
 State of Himachal Pradesh V. Jeet Singh – The Supreme Court has noted that it is false to
say, that when a recovery has been made of an incriminating substance, it would vitiate the
evidence. The question is to determine is not if the place of procurement was accessible to
others, but if it was visible to others ordinarily.
Confessions Made After Removal Of Threat, Inducements Etc. (Section 28)
Section 28 of the Evidence Act addresses the validity of confessions made by the accused after
the removal of threat, inducements, promises etc. It has already been established, under Section
24 that any confession made under threat, inducement is invalid in the eyes of law.
 Section 28 stipulates that where a confession has been made as referred to in Section 24,
after the threat, inducement or promise has been removed in the opinion of the court, such a
confession will be relevant.
 It deals with the validity of a confession made, after the threat has been removed from the
presence of the accused.
 Once the mind of the accused is set free after the effects of inducement, or threat of evil, any
confession is likely to be made freely, and voluntarily.
 There is no grounds of objection to the validity of such a confession.
Confessions Otherwise Relevant Not to Become Irrelevant Due To Promise Of Secrecy (Section
29)
Section 29 of the Evidence Act stipulates that if a confession was relevant, it does not loose its
relevancy merely due to the following circumstances:
1. That the confession was made under a promise of secrecy
2. Confession was made due to deceptions placed on the accused for purposes of obtaining it
3. Confession was made when the accused was drunk
4. Confession was made in response to questions he need not have answered
5. Where the accused was not warned that he was not bound to make a confession, and that
evidence of it would be used against him.
It is essential, that for Section 29 to apply, the confession firstly must be considered as relevant
and admissible in a court of law.
 The rationale behind Section 29 of the Evidence Act is that there is a need to protect the
community from offenders, and that there can be no compromises between the law
enforcement agencies, and the offender.
 Thus, where the accused is persuaded to confess, by assurances of secrecy, such secrecy of
statement will not invalidate the confession made.
 If a confession has been obtained via fraud played with the accused, the confession will
nonetheless be considered as relevant in the eyes of the law.

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 Consideration Of A Proven Confession Against Persons Jointly Tried For The Same Offense
(Section 30)
Section 30 of the Evidence Act addresses the considerations made by the court of a proven
confession against others jointly tried for the same offense.
 Under Section 30, where multiple people are charged simultaneously for the same offense,
and same transaction, jointly tried a confession which has been made by one accused, may be
considered for all the accused persons in the same offense by the court of law.
 It is essential that the confession must have been proven to the satisfaction of the court.
 There must be 2 or more person jointly accused and jointly tried for the same offense, for
Section 30 to apply.
 The underlying principle is that an established confession made by one accused, can be used
against the co-accused in a joint trial for the same offense in same transaction.
 It is essential that the confession must be taken against all the accused, rather than just
a single accused person.
 Pappu V. State of Maharashtra - The Supreme Court has stated that when the accused
making a confession was discharged for not facing a trial, such confession cannot be used
against the co-accused. It is essential that the accused is facing a trial, along with his co-
accused for a confession to be considered against the co-accused.
 It is essential that for Section 30 to apply, the confession made by one accused must
implicate the other co-accused, for the court to jointly consider the confession against all the
accused.
 Where the accused parties have committed a different offense, while in the same transaction,
a confession made by one accused will not be held against the other. In such cases of
different offenses, same transaction, Section 30 will not apply.
Circumstances Where The Co-Accused Confession is Retracted
 The Evidence Act does not provide for circumstances where a confession by a co-accused is
retracted.
 As such, it can be deemed that the Act does not bar the court from taking into consideration a
retracted confession against the accused and the co-accused.
 Thus, where the accused makes a confession and retracts it, his co-accused for the same
offense in the same trial may still be implicated. Such a confession can still be considered
against the co-accused.
 However such a confession will be regarded as a weak evidence.
Evidentiary Value Of Co-Accused
 Section 30 of the Evidence Act does not state that the confession of an accused can be used
as evidence against the co-accused. It merely stipulates that the court may consider such
confession against the co-accused.
 No convictions can be based upon the confession of a co-accused. It merely serves as a
corroborative evidence for other evidences on the record.

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 Haroon Haji V. State of Maharashtra – The Supreme Court elaborated on the procedure to
be followed by for determining the consideration of confession against the co-accused.
o It must consider the other evidences presented by the prosecution first, before looking
to the confession.
o An opinion must be formed with regard to the quality of the evidences presented
o After the opinion is formed, only then can the court turn to the confession to receive
assurances to the conclusion that the accused is guilty
Admissions Not Conclusive Proof But Can Estop (Section 31)
Section 31 of the Evidence Act stipulates that any admission is not a conclusive proof of
matters that are admitted, but they may operate as estoppel under the provisions contained.
 Any admission made under Sections 17 to 23, do not have a conclusive proof. They are
prima facia suggesting of an inference that the person admitting the statement either oral or
in writing, has committed such act.
 The person who has admitted a statement, can present evidences to rebut the admission, or
prove that such admission is not true.
 AN admission may operate as estoppel, under Section 115, if any person has acted on the
course of the admitted statement, believing such statement to be true.
Evidentiary Value Of A Confession
 A confession is generally considered to be the best and most conclusive evidence, as no
person would willingly make an untrue statement, against their own interests.
 A confession which is made voluntarily and truthfully will be efficacious proof of guilt.
 However, it must be noted, that the evidentiary value of a confession is not great, as the
confession may be false.
 This falsity can be due to mental aberrations, mistakes of law, willingness to escape physical
or mental torture, etc.
 A confession must always be checked in light of other evidences presented on record, to
determine if they carry a conviction.
 It is highly dangerous and risky, to act on a confession put by a witness into the accused,
which is uncorroborated by evidences.
 Mutthuswamy V. The State – The Supreme Court has held that a confession cannot be
accepted merely due to a wealth of details. It was stated that it was unsafe to regard
uncorroborated details as a safeguard of the truth.
 Sahoo V. State of Uttar Pradesh – The Supreme Court has stated that there is a distinction
between admissibility of evidences, and weight of evidence. It stated that there was a two
pronged test to be followed
o Determining if the confession was voluntary
o Determining if the confession was true and trustworthy.
o The court had to determine the confession, after comparing it with evidences, in view
of facts and circumstances of the case.

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Module 5 – Statements Made By Persons Who Cannot Be Called As Witnesses (Dying
Declarations)
Sections 32 and 33 address the nature of statements which are made by persons, who
cannot be called as a witness before the court of law.
Statements Made By Persons Missing Or Dead When Relevant (Section 32)
Section 32 of the Evidence Act is a very important section. It addresses the relevancy of
statements that are made by persons who are dead or missing, and cannot be called as a witness
before a court of law.
Section 32 stipulates that any written or oral statement, of a relevant fact, made by a person who
is dead, or who cannot be found, or who cannot give evidence, or whose attended cannot be
procured without unnecessary delays, will be relevant in the following circumstances
1. Where the statement relates to cause of death
2. Where the statement relates to course of business such as entries in books, or
acknowledgement of receipts of property.
3. Where the statement is against the pecuniary interests of a person making it, or when it
would expose a person to a criminal prosecution.
4. Where the statement is an opinion relating to a right or custom, matters of general interest.
5. Where the statement points to a relationship between persons
6. Where it relates to the existence of any persons deceased, and is made in any will or family
pedigree.
7. Where the statement is mentioned in any will or deed
8. Where the statement is made by several people, and express feelings relevant to the subject
matter in question.
Section 32 and the circumstances is an exception to the rule of hearsay evidences.
 The principle behind Section 32 is that a person with first hand knowledge of facts of a case,
but due to death or disability cannot appear before the court, such knowledge must be
transmitted via some other person
 Said other person will be considered as the best evidence.
 The proof of death or disability of the concerned person with first hand knowledge must be
disclosed before the court for Section 32 to apply.
Statement Relating To Cause of Death
Any statement made by a deceased person, before dying which was related to the cause of death,
will be relevant. This includes the cause of death, or circumstances of demise.
 Such statements are relevant, when the person making them is under the impression, or
expectation of death.
 The principle of English law is adapted as to what is known as a dying declaration/
 A dying declaration is any statement of a person who is dead, explaining the circumstances
of death. As the person is dead, the statement would constitute hearsay.

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 o Section 32 thus is an exception to the hearsay rule.
 The basic principle behind a dying declaration is that the statement made will be true, as
during death, the party will have lost every hope, and every motive to falsehood.
 Statements relating to cause of death, have aided in securing convictions as to cases of dowry
death, as an example of its beneficial usages.
The essential conditions of a dying declaration are as follows:
1. The dying declaration can be made to any person. This can be a doctor, magistrate, friend,
police officer etc. A statement recorded by a magistrate or doctor will however be considered
to have greater reliability.
a. No form of statement is prescribed.
b. Queen Empress V. Abdullah – The court held that the statement made in the course
of death, can be in any form, oral, written or verbal by use of gestures.
2. The person making the statement must have died.
a. The death need not occur immediately after making the statement, but must occur.
b. If the person making such statement survives, the statement is no longer a dying
declaration and is inadmissible under Section 32.
c. The fact of death of a person must be proven by the party proposing to give evidence
of the dead person’s statement.
3. The statement must related to the cause of the death, or circumstances of death.
a. Ratan Gond V. State of Bihar – The Supreme Court held that a statement by a
dying man, will not be relevant, if it does not relate to his own death but to that of
another person.
b. The circumstances of the transaction resulting in the death, must bear an approximate
relation to the cause of death. This does not include general explanations of fear,
anxiety, suspicions.
c. Sharat Birdi Chand Saha V. State of Maharashtra
i. The Supreme Court has held that the nature of proximity of relation, depends
on the facts and circumstances of the case.
ii. The court has also noted that dying declaration is applicable to cases of
suicide as well.
4. The cause of death must be in question. The declaration of death must related to the death of
the declarant.
5. The statement must be complete and consistent. Where the deceased fails to complete the
main sentence, this would cause the declaration to be unreliable.
a. The declaration will not be invalidated by way of minor inconsistencies. In Oza V.
State of Bihar it was held that brief sentences will rather guarantee the truth of the
statement.
6. The declarant must be competent as a witness, had he lived on and survived. If the declarant
is deemed as incompetent as a witness, any statement made by him will not constitute a
dying declaration.

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7. FIR as a dying declaration. In K Ramachand Reddy V. Public Prosecutor, the court held
that an injured person lodging an FIR and dying afterwards, will be relevant as a dying
declaration as to statements relating to cause of death.
Evidentiary Value Of Dying Declaration
 A dying declaration under Section 32 of the Evidence Act, has an evidentiary value. There is
no rule of law, that prohibits the acting, upon hearing a dying declaration
 Ordinarily, a dying declaration is not considered to be safe to convict an accused person, only
on the basis of the dying declaration due to inherent weaknesses. Such weaknesses are:
o The dying declaration is hearsay evidence, not made on oath, and its veracity cannot
be tested.
o The maker of such a statement might be mentally and physically in a state of
confession and might be drawing on his sense of imagination.
o Very often, the last opportunity is taken to implicate enemies
o When weighing the evidence, various factors have to be taken into account
 Nature of content, consistency of statements
 Ability to remember facts, face, opportunity of a dying man to remember
details
 Proximity of time between death and the accident.
 State of Assam V. Ahmed – This was a wife-burning case. The wife remained alive for 8
days after receiving burn injuries. She did not state the same to anyone. When her uncle
visited, she stated that her husband set her on fire. The Supreme Court held that the statement
was not genuine and was tutored.
 Habib Usmand V. State of Gujarat – The Supreme Court held that mere presence of
relatives is not sufficient to show that a declarant was a tutored witness.
Statements Made In The Course Of Business
 As per Section 32(2), any statement that is made by a person in the ordinary course of
business, in particular, where the statement relates to entries or memorandums in books,
discharges of professional duty, or acknowledgement of receipt, such statement would be
considered as admissible.
 If the question is to the date of birth of a person, entries made in the diary of a deceased
surgeon will be considered to be relevant.
 Where the question is if a person was in a city on a given date, entries in the diary of the
deceased solicitor will be considered relevant for the same.
Statements Against Interests
Section 32(3) addresses the nature of statements that are made against pecuniary interests.
 It is based on the grounds that what a person says against his own interest will likely be true.
 A statement made by a deceased person, in a deed to the effect that he is governed by
Mitaksara schools of law, is against his proprietary interest and admissible.

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Statements As To Public Rights And Customs
Section 32(4) addresses declarations of deceased persons as to public rights, customs or matters
of general interests.
 For Section 32(4) to operate, it is necessary, that the declaration was made, before the arising
of any controversy pertaining to any right, custom or general interest.
 The statement must regard to a public right. Where the right in question is a private right,
such statement cannot be admitted.
 The person making such a declaration must be of competent knowledge.
Declaration As To Relationships
Section 32(5) and Section 32(6) address declarations made by a deceased person, as to
relationships.
 Section 32(5) stipulates that any statement will be relevant, where it relates to the existence
of any relationship by blood, marriage or adoption, as to whose relationship the statement
maker had special knowledge off, before any questions of dispute arose.
 Any statement made by deceased members of the family, are admissible if they are made
before any instance of doubt can be cast upon them.
 While Section 32(5) refers to statements pertaining to the existence of relationship between
people, (either living or dead), Section 32(6) pertains to relationships between people who
are deceased.
 Under Section 32(5), the evidence is the declaration of the deceased person, or one whose
attendance cannot be secured. Under Section 32(6), the evidence pertains only to written
evidences, such as wills, deeds, tombstones, coffin plates etc.
Statements in Documents as to Custom or Rights
Section 32(7) addresses statements in documents pertaining to customs or rights. Evidences can
be given of any statement that is made in any deed, will, testament etc, relating to a transaction
by which any right or custom was created, claimed, modified etc.
Statements Of People, Expressing Feelings And Emotions
As per Section 32(8), a statement is relevant if it is made by a number of persons and expressed
feelings or impressions on their part, which is relevant to the matters in issue.
Relevancy Of Evidences In Prior Judicial Proceedings (Section 33)
 Section 33 of the Evidence Act addresses the relevancy of statements given before a judicial
proceeding.
 It stipulates that any statement that has been given before a court of law, or before any
authorized person would be relevant.
 This is for the purpose of proving the truth of facts stated, in a subsequent suit when the
witness is dead, or missing, or incapable of giving evidences.
 The basic principle of Section 33 is that as a statement has been given before a judicial
proceeding, on oath, it will be considered as relevant, and reliable for usage in a
subsequent proceeding.

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 In case the person making such statement is dead before a subsequent suit, as his statements
were administered on oath, they can be accepted subsequently by a court of law.
 Evidences of depositions given in a former trial will be admissible.
 Such statements will form an exception to the rule of hearsay.
 It may occur that a person was present in an earlier court, but not at a later stage. In such
cases, Section 33 will apply, and his deposition will be deemed relevant.

Module 6 - Statements Made In Special Circumstances

Certain statements may be made in special circumstances, which are not in the ordinary course of
business. The Evidence Act addresses the validity of such statements which have been made in
special circumstances.
Statements Which Are Entered Into Books of Accounts (Section 34)
Section 34 of the Evidence Act addresses the relevancy of entries that are made either
physically or electronically in any book of accounts, in the course of business.
 It stipulates that entries made in books of accounts, either physically or electronically, are
relevant, when they refer to matters which Courts have to inquire into.
 Such statements are not alone sufficient evidences to charge persons with liability
 Such statements are regarded as weak evidences and are merely of corroborative value.
 CBI V. VC Shukla – The Supreme Court noted that entries in books of accounts, even if
relevant only constitute as corroborative evidences. Independent evidences leading to the
entry will need to be presented to fasten anybody with liabilities.
Relevancy Of Entries In Public Or Electronic Records (Section 35)
Section 35 addresses the relevancy of entries made in either public or electronic records.
 Under Section 35, entries made in public or electronic records, which state a fact in issue or
relevant fact, and is made by a pubic servant in discharge of his duty, will be a relevant fact.
 It is essential that the entry be made by a public servant in official capacity.
 Section 35 functions on the principle, that government records constitute a prima facie
evidentiary value as to their correctness and authenticity.
 Municipal records as an example, being government records, entered by competent public
servants, is relevant to prove the date of birth or death of a person.
 However, it must be noted, that there is no concrete presumptions as to the truth of
government records.
 Birad Mal V. Anand Purohit – The Supreme Court held that school registers are relevant to
show the date of birth of a person, however absence of materials which formed the basis of
such entry would not give the entry a high evidentiary value.
 It may be construed that such documents and entries are a weak evidence in law and
are corroborative in nature.
Statements Made In Maps, Charts Etc. (Section 36)

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Section 36 addresses the relevancy of statements made in maps or charts, which are meant for
public sale, or made with the authority of the government.
 Under Section 36, any statement that is made on a map or chart, which has been produced for
public sale or produced with official government sanction, will be admissible as evidence.
 Such statements carry a prima facie evidentiary value as to the truthfulness of their contents.
They can thus be offered in evidence when the fact stated in them are in issue.
Statements Made In Acts of Parliament And Relevancy (Section 37)
Section 37 addresses the relevancy of statements that are made in acts of Parliament, in either
India or England and their relevancy.
 Section 37 stipulates that statement of facts, of a public nature, which are part of a public
recital in any Act of Parliament of India or England would be relevant facts.
 Apart from Acts of Parliament, the Act also considers statements made in the State Act, or
Government Notifications, or Official Gazette Notifications as relevant.
 Vimal Bai V. Hiralal Gupta – The Supreme Court of India held that gazette statements
were the best evidence of facts stated in the Gazette. They are entitled to due considerations,
but cannot be considered as conclusive in matters requiring judicial adjudication
Relevancy Of Statements Made or Recorded as to Law in Law Books of Foreign Nations
(Section 38)
Section 38 addresses the relevancy of statements that are made or recorded in law books of
foreign nations.
 Where the court has to form any statement as to the laws of any foreign country, any
statement of law pertaining to the country in question, that is printed in works under the
authority of the foreign government, will be considered as relevant.
Statements Forming Part Of Conversations Or Documents (Section 39)
Section 39 of the Evidence Act addresses the nature of statements that are part of a conversation
or document and how much of such statement can be proven.
 Where a long statement, document or conversation is relevant to a question, then the court
need not take the entire statement into consideration.
 The court can at its discretion only require that much of the statement that is necessary
for a full understanding of the statement in the particular case.
 The court need not take cognizance of the entire statement, to understand the nature of the
statement in the particular case. A summary is sufficient.
 After the IT Act 2000, Section 39 also includes any form of electronic records.

Module 7 – Judgements Of Courts When Relevant

 The general principle of law, is that judgments of a court, are not relevant in any case or
proceeding.

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 The case must be decided upon merits and facts as they exist. Judgements however are
relevant facts of great importance. Section 40 to 44 address the scenarios where a
judgment will be relevant.
 Section 40 to 44 are exceptions to the rule that judgements are not relevant in a case or
proceeding.
Previous Judgements Relevant To Bar a Second Suit or Trial (Second)
Section 40 stipulates those previous judgments are relevant to bar a second suit or a trial. It is
intended to include all cases to which general laws pertaining to res judicata apply.
 Res judicata means a thing upon which the court has exercised its judicial mind, and as such,
no new action can be brought on the same subject matter between the same parties.
 The principle of res judicata and estoppel however do not apply, when such bar to suit
violates any statutory provisions.
 Similarly the CRPC bars the second trial of a person, who has been tried and convicted, or
tried and acquitted of a charge. The judgement of acquittal or conviction will be relevant to
every case, where he is charged with the same offense. Avoidance of Double Jeopardy
Relevancy of Judgments In Probate And Etc (Section 41)
Section 41 deals with the relevancy of judgements of probate (wills), family disputes, and
declarations of insolvency disputes. It stipulates that those judgments which confers or takes
away legal character from any person will be relevant.
 Section 41 only addresses judgements in rem – judgements in declaration of the status of a
person (as an insolvent for example). It does not deal with judgments in persona (judgments
of torts or contract actions).
 Section 41 further stipulates that such judgments in rem are conclusive proof and are thus
admissible and relevant in the eyes of the law.
Relevancy of judgments other than those in Section 41 (Section 42)
Section 42 of the Act deals with the relevancy of judgments, other than those referred to in
Section 41. Section 42 deals with the relevancy of judgments in personam.
 Under Section 42, judgments in persona are relevant when the fact in issue pertains to any
dispute of public nature.
 However, such judgments do not constitute a conclusive proof of that what they state. They
are relevant to every case where the matter is in question, but are not conclusive.
 Judgements in persona, as referred to in Section 42, are a weak evidence. They will
require corroborative evidences to be strengthened.
 Anil Behari V. Shrimati Latika Bala - It was held that the judgment of a criminal court
convicting a person for murder of the testator (his father) is no proof of that fact of intestacy
in a proceeding to revoke a probate.

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 o The judgment was relevant only to show that that was a trial resulting in the
conviction and sentence of the son. The question of murder by him is to be decided
again in the case relating to grant of probate.
Relevancy of Judgements Other Than Judgements In Rem and Judgement In Personam (Section
43)
Section 43 of the Evidence Act refers to the relevancy of judgments other than those mentioned
in Sections 40 to 42. It refers to the relevancy of judgements not barred by res judicata, not in
rem and not in personam.
 Section 43 of the Evidence Act stipulates that judgments and decrees referred to under
Sections 40 to 42 of the Evidence Act are irrelevant unless they are the subject matter of
dispute before a court of law.
 Under Section 43, the judgments referred to under Section 40 to 42 are only relevant, if they
are in dispute, and a court is to determine the validity of the judgment in the eyes of law.
Previous judgements which are final can be relied upon under Section 40 to Section 43 in the
following circumstances:
 Civil suits between the same parties, principles of res judicata may apply
 In criminal cases, Section 300 of the CRPC makes it mandatory
 Where the civil and criminal cases are for the same cause, the judgment of the civil court will
be relevant if conditions of any Section 40 to Section 43 judgements are satisfied.
In Shanti Kumar Panda V. Shakuntala Devi the Supreme Court held that while decisions of a
criminal court are not binding on the civil court, a civil court judgement will bind the criminal
court.
Relevancy of Judgements Passed Due To Fraud / Court Incompetence (Section 44)
Section 44 addresses the relevancy of judgments that were obtained by fraud and collusion, or
judgments given by an incompetent court. Under Section 44, where any party has referred to a
judgment relevant under Section 40 to Section 42, the other party can prove that the judgment
was given due to fraud / collusion or by an incompetent court.
The Evidence Act does not explicitly address the nature of evidentiary value of such judgments
proven obtained by way of fraud or by an incompetent court. The act provides that were a
judgment has been demolished due to proving of its obtaining by fraud or by an incompetent
court, such judgment will lose its evidentiary value.
Such a judgment will not operate as res judicata. Such judgment will imply that there was no
genuine cause of action, and that the parties had feigned the cause of action to obtain the
judgment.

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Module 8 – Expert Evidences And Opinions
 An opinion is a judgment or belief of a person, on any particular issue, question or topic. It
refers to the inferences, thoughts and perspectives that a person may have on any question or
topic.
 The existence or non-existence of any fact, will be an opinion of a person. The perceiving of
the senses by a person of an object will be an opinion.
 Generally, as a rule in evidence law, the opinions of a third person are irrelevant and
inadmissible. The court must solely rely upon the arguments of the contesting /
disputing parties, and then form an opinion after weighing of evidences presented by
both sides.
 However, there are certain circumstances where the court may not be able to apply its own
mind, despite hearing evidences and arguments of the disputing parties. In such cases, the
general rule of third party opinions is cancelled.
 The court, in an attempt to form its opinion, at its discretion can choose to consult an expert
trained in any specialized field, pertaining to the dispute, to understand the opinion of the
expert.
 Said opinion of the expert trained in specialized fields, will be relevant and aid the court in
being able to form an opinion and frame a judgment after successfully weighing the
evidences presented to it.
 The consultation of an expert witness will be at the discretion of the court and on the
necessities in the case.
 Section 45 to Section 51 deal with the evidentiary value of expert evidences and
opinions.

Evidentiary Values of Expert Opinions (Section 45)

Section 45 of the Evidence Act addresses the validity of expert opinions. It stipulates that the
opinions given by experts, specially trained in the fields of foreign laws, sciences, arts,
handwriting and fingerprint recognitions, when asked for by the court will be considered as
relevant in the eyes of the law.
Section 45 acts as an exception to the rule that third party opinions are not admissible in a
court of law.
 An expert who is qualified to give his expert opinion is any person who has had specialized
training and experience for any of the fields mentioned in Section 45. A person will also be
considered to be an expert, by way of qualifications in any particular field, or experiences in
any particular field.
 The role of the expert witness is to aid the court in providing specialized knowledge as to the
nature of a dispute, when any aspect of the dispute requires the opinion of an expert trained
in the concerned field, and when the court itself is unable to form a concrete decision after
hearing the parties.

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 The role and statements of the expert witness are merely advisory in nature. The expert
is not a witness of fact, and his statements will not be read before the court, unless he
has been examined by the court, and has stood the test of the cross examination.
 In order to give an expert testimony on any of the subject matters enumerated in Section 45,
it is essential that the matters must be technical in nature, and of such nature that it has
required a specialized study in any of the fields mentioned, to be able to give a concrete
opinion.
 The fields of “sciences” and “arts” includes all associated fields, wherein specialized
expertise is required of any person operating in such fields.
Differences Between Expert And Ordinary Witnesses
The differences between the expert and ordinary witness are as follows:
1. An ordinary witness must depose as to what actually has taken place. AN expert witness will
not be confined to what has taken place, but also covers his opinions on facts.
2. An expert can refer to and rely upon experiments conducted by him in absence of other
parties. The ordinary witness cannot rely upon any experiments, and must rely on statements
pertaining to presence or absence of himself or the other party
3. The expert can quote passages from well-known textbooks on the subject in question. The
ordinary witness cannot do such actions
4. The expert can state facts relating to other cases pari materia to the case in dispute.
Value of the Expert Opinion
The expert opinion has a certain amount of value before the court of law. As it has been given by
a person qualified with special experiences and qualifications on the concerned field of law, the
expert testimony will be relevant. However, the expert testimony is merely advisory in nature.
The court is not bound to accept the expert testimony in its final rulings.
The expert opinion can also suffer from drawbacks. Such drawbacks are that
1. There is a danger of error or deliberate falsehood.
2. The evidence is an opinion, and as such human judgment is often fallible and limited.
3. The expert witness is likely to be unconsciously in favor of the side which calls him.
The drawbacks however, cause the expert evidence testimony to reduce its probative value.
In S. Gopal Reddy v. State of AP – The Supreme Court held that expert opinion is weak
piece of evidence and needed corroboration
 Murari Lal V. State of Madhya Pradesh – The Supreme Court on expert opinions held the
following
o There is no rule of law that the opinion evidence must never be acted upon.
o The approach towards the expert evidence must be cautionary, with due regard to
adverse factors in case of expert opinions.
o Whenever appropriate, corroborations must be sought. Where reasons for considering
the opinion are convincing for the court, uncorroborated testimony can be accepted.

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 o The opinions of the expert is not decisive or conclusive of the matter. Courts should
not surrender its opinion to that of the expert. The court has the discretion to accept or
reject the expert opinion.
o The expert opinion serves to enable the judge to form his own independent judgment
to criteria stated by the expert, and its application to the facts stated in evidence.
Value of Medial Opinions
 The opinion of the medical expert cannot be taken as contradicting the positive evidences of
the witnesses of the facts. Where the direct evidences of assault is reliable, contrary medical
evidences cannot be relied upon as the medical evidences are purely hypothetical in nature.
 Amar Singh V. State of Punjab – The Supreme Court stated that where the medical report
differs from injuries that are described by witnesses, then in such cases, the medical evidence
must prevail.
 Piara Singh V. State of Punjab – The Supreme Court stated that where there are two
opinions given by two medical experts, the opinion which is best supported by direct
evidences must prevail.
It can thus be observed that the weighing and accepting of the medical evidences of the expert
witness, must be weighed by the nature of evidences that are present. Where the evidence
contradicts the direct evidences, it cannot be accepted by the court. However where it supports
direct evidences or goes in contradiction of witness statements, it must be given a priority, and
prevail.
Value of Writing Experts
The opinion of a handwriting expert will be considered as the weakest and most unreliable of
evidences. It has been stated by the courts that it is not safe to base conviction on the testimony
of the handwriting expert alone.
However in Raj Naraian V. State of Uttar Pradesh the court relied upon the sole testimony of
the handwriting expert, to convict the accused. In the aforesaid case, the court noted the
following:
 The court stated that under Section 45 and Section 47 of the Evidence Act, the evidence was
an opinion, by a scientific comparison, while in the latter, it was based on familiarity from
frequent observation.
 The court noted that it must satisfy itself by any means available that the opinion can be
acted upon. One such means was to apply its own observations to eh admitted and proven
writings and not become a handwriting expert.
 It was not to say that the court may play the role of the expert, but that it may accept facts
only when it has satisfied itself that it is safe to accept the evidentiary opinions of the expert.
Facts Relevant Upon The Expert Witness Testimony (Section 46)

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Section 46 of the Evidence Act states that any fact which was not relevant, will gain relevancy if
it supports a stance taken by the expert witness, or is inconsistent with the expert opinion. The
said expert opinion must be relevant
 Any fact which either supports or contradicts the opinion of the expert witness will be
relevant. It is not necessary that the fact in question must be related to the case at hand. It can
be an inference or prior occurrence which supports or contradicts the stance of the expert
opinion.
Handwriting Expert’s Testimony When Relevant (Section 47)
Section 47 of the Evidence Act addresses the circumstances where the handwriting expert’s
testimony will become relevant. Ordinarily the handwriting expert’s testimony while relevant is
a weak evidence. Courts have repeatedly stated that the handwriting expert’s evidence is the
weakest evidence existing.
Section 47 operates when the court wishes to ascertain the handwriting of any person who has
written or signed any documents. The opinion of the handwriting expert will become stronger
and relevant in the following circumstances
 That the expert is familiar with the person so concerned, and the handwriting of the person
 That the expert has observed the handwriting or signatures of the person concerned
 That the expert has received documents written or barring the person’s signature
 That the expert in the ordinary course of business has received documents from that person,
or such documents are habitually submitted to him.
It is essential that the handwriting expert in question is familiar with the handwriting and
signatures of the person whose signature or handwriting is to be determined.
Fakkuriddin V. State of Madhya Pradesh – The court stated that handwriting can be proven
by evidence of a witness, in whose presence the writing was done. This would constitute direct
evidence and if available, other evidences are not necessary.
Opinions As To Digital Signatures When Relevant (Section 47A)
Section 47A addresses when the opinions of digital signatures are relevant. The section
stipulates that where the court must form an opinion as to the genuinely of a digital signature, the
opinion of the Certifying Authority issuing the signature will be relevant.
Opinions As to Existence of Custom or Rights (Section 48)
Section 48 deals with relevancy of opinions as to existence of right or custom. It stipulates
that opinions proving the existence of any general custom or right, are relevant. This also
includes the right of villagers to make use of water from a particular well.
Opinions As To Usages And Tennent’s When Relevant (Section 49)
Section 49 deals with relevancy of opinions as to usages and tenants. It stipulates that any
opinion of persons with special knowledge of usage of tenants of men and women, the

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constitution and government of any religious organization, and meaning of words or phrases
used will be relevant.
Opinions As To Relationships (Section 50)
Section 50 deals with relevancy as to opinions of relationships. It stipulates that the opinion
of any person, who by way of family relation or otherwise, has special knowledge of a
relationship, will be relevant. The opinion must be determined by the conduct of the person
towards the existence or non-existence of a relationship.
 Under Section 50, relationship refers to relationship by blood, marriage or adoption.
 There is a similarity between the provisions of Section 32 and Section 50, in that both
Section 50 and Section 32 contain provisions as to proving the existence of a relationship.
o However Section 32 deals with the testimony of a dead person, while Section 50
deals with the testimony of a person who is alive.
 Mere words and statements as to relationship is not enough. It is essential that the opinion
must be accompanied by the conduct of the person as well as to the existence of any
relationship.
 An important provision to Section 50 of the Evidence Act is that in cases involving Section
494,495, 497 and 498 of the IPC, or cases under the Indian Divorce Act, evidence of
marriage cannot be given by an expert as an opinion. Strict proof of marriage is
necessary, such as production of a marriage certificate.
Grounds of Opinion When Relevant (Section 51)
Under Section 51 of the evidence act, whenever the opinion of a living person is relevant, the
grounds of which his opinion is based, shall also become relevant. An expert can give an account
of experiments performed by him, for the purposes of forming an opinion.
The opinion of an expert, by itself may be relevant, but it will carry little weight in the court,
unless it has been supported with a clear statement of reasoning and justification of what was the
basis of the opinion.

Module 9 – Characters When Relevant

The general reputation of a person plays a role in civil and criminal proceedings. Character
refers to the combination of peculiar qualities of one person which differentiates him from
another, by virtue of nature or habit.
The nature of dispute (civil or criminal dispute) will determine whether the character of the
person is in issue, or is not in issue.
Section 52 to Section 55 of the Evidence Act address the relevancy of characters in evidence
laws.
Character Not Relevant To Prove Conduct In Civil Suits (Section 52)
Section 52 of the Evidence Act stipulates that in civil suits, the character of the parties is
irrelevant, to prove conduct imputed.
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 Under Section 52 of the Act, the general principle is that evidence of a person’s character
cannot be given for the purposes of showing that it renders the conduct imputed of the person
probable or improbable.
 A party cannot give evidence of good character to prove that it is improbable that he is guilty
of conduct imputed to him.
 For example, where a person has been for negligent driving, the character of the person
cannot be presented to prove that he is not guilty of the conduct of negligence. The opposite
party as well cannot give evidence of character to prove that the defendant is guilty of
conduct of negligence.
 The courts are to solely try the case on the basis of the facts and circumstances, for
determining if the defendant is liable or not. It cannot try the character of the parties, and
evidences of character serve to create a bias in the mind of the judge, leading to violation of
principles of natural justice.
 An exception to Section 52 is laid down that a fact which is otherwise relevant, cannot be
excluded from evidence due to incidental exposures upon the character of a party.
o The court can form its own conclusion as to the character of a party to a suit,
exhibited by the relevant facts proven in the case, and draw an inference accordingly.
Relevancy of Character in Criminal Proceedings (Section 53)
Section 53 of the Evidence Act addresses the relevancy of characters in a criminal proceeding.
 Under a criminal proceeding, as per Section 53, the fact that the accused is of good character
is relevant.
 Good character of the accused will be relevant. This provision has been kept due to the fact
that there is a presumption created that a person of good character will not resort to a
criminal act.
o The proving of good character of the accused, will lead to presumption against
commission of a crime.
o This also adds greater relevancy to the principle that the accused is innocent until
proven guilty beyond all reasonable doubts.
 R. V. Rowton – Justice Cockburn held that “The fact that a man has unblemished reputation
leads to the presumption that he is incapable of committing the crime for which he is being
tried”
 Bhagwan Swarun V. State – The Supreme Court held that the evidence of good character is
always admissible. However, the character was weak evidence and cannot outweigh the
positive evidences as to the guilt of the accused. The court stated that good character of the
accused will be useful to tilt the balance in favor of the accused.
Relevancy of Bad Character in Criminal Cases (Section 54)
Section 54 stipulates that bad character of the accused is irrelevant in a criminal proceeding,
except in cases of rely.

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 As per Section 54, the prosecution cannot point to the guilt of the accused by relying upon
instances to prove that the accused is of bad character. However the prosecution can produce
evidence of bad character only when there is a reply to the accused, showing good character.
There are certain exceptions to Section 54 where bad character can be given as evidence of a
person
 Rebutting evidences of good character
 Where the character itself is the fact in issue
 Existence of previous conviction as evidence of bad character. Under Section 71 of the IPC,
where a person is a previous convict, he shall be sentenced to longer imprisonment, than
would have ordinarily been awarded to him.
Characters Affecting Damages (Section 55)
Section 55 addresses relevancy of characters as affecting damages to be awarded by the court. It
stipulates that in all civil cases, the fact that the character is as such to affect damages, is
relevant.
 Under Section 55, the evidence of good or bad character of the defendant will be irrelevant to
damages. However the character of the plaintiff will be relevant as to determining the amount
of damages to be awarded by the court.
 In action of damages, of rape, libel etc, evidence of bad character is allowed, as is likely to
affect damages that he ought to receive.
In civil cases, while character is not relevant to prove conduct, the character of the plaintiff
gains relevancy when it comes to determination of damages.
Explanation (55).--In sections 52, 53, 54 and 55, the word "character" includes both
reputation and disposition; but, 2*[except as provided in section 54], evidence may be
given only of general reputation and general disposition, and not of particular acts by
which reputation or disposition were shown

Module 10 – Facts Requiring No Proof

Under the Evidence Act, there are certain facts which need not be proven in a court of law.
Section 56 to Section 58 deal with facts which do not require any proof. The general rule is that
all facts in issue must be proven by evidences, either oral or documentary. However there are
two exceptions
 Facts judicially noticeable
 Facts admitted.
Facts Which Need Not Be Proven Due to Judicial Notice (Section 56 And Section 57)
Section 56 states that no fact which the court shall take judicial notice of shall be proven.
Section 57 enumerates 13 facts that the court is duty bound to take judicial notice of. Such facts
are:

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1. All laws in force in India
2. All acts of the British Parliament
3. Articles of war for the Indian Army, Navy and Air Force
4. Course of proceedings of the British Parliament, Constituent Assembly of India, Parliament
and State Legislatures
5. Accession and manual of the sovereign of Ireland and the UK
6. All seals of which English courts take judicial notice of, the seals of Indian courts and all
seals which a person is authorized to use by Act or Constitution.
7. Accession to office, names, titles, functions, signatures of Gazette Officers.
8. National flags of every country recognized by the Government of India
9. Division of time and geographical divisions of the world, public festivals and holidays in the
Gazette
10. Territories under the dominion of the government
11. Commencement / continuance or termination of war between India and any other country
12. Names of court officials and advocates, pleaders authorized by law to appear before the court
13. Rules of road, land, and sea.
Section 57 is supplemented by two declarations. They are:
1. In all the 13 matters listed in Section 57, and on matters of art, public history, science,
literature etc. the court can consult appropriate books or documents for reference.
2. If a party calls upon the court to take judicial notice of any fact, the court may refuse to do
so, unless and until official documents or books are produced tot the court as deemed
necessary to enable the court to take judicial notice.
Judicial Notice
 Judicial notice refers to recognition without absolute proof about something existing or as
being true.
 It is based upon reasons of convenience and expediency, and the wisdom of dispensing with
proof of matters with the common knowledge of every person.
 Judicial notice is the cognizance taken by the courts itself, of certain matters which are
clearly established, that their evidences is not required.
 The 13 matters listed in Section 56 are not exhaustive
o The court can take judicial notice of other facts, which are not found in the list. The
court cannot take notice of facts stated in an newspaper, as statement of facts is
merely hearsay.
 Shashi Nayar V. Union of India – The Supreme Court took judicial notice that the law and
order situation had fallen over the years, and that it continued to deteriorate faster thereof.
Taking notice of the same, it called for an opportune time to rethink the death penalty.
Admitted Facts (Section 58)

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Section 58 stipulates that admitted facts need not be proven. If parties to a proceeding agree to
admit a fact, at the hearing or which they agree to admit, by writing, it need not be proven by the
opposite party.
 Section 58 however does provide that the court may at its discretion require some other proof
of an admitted fact. It may be noted that this applied only to civil suits and not criminal
suits.

Module 11 – Oral Evidences

A fact may be proven by either oral evidence of the fact or by documentary evidence if any.
There are two methods thus of proving evidence – by producing witness of fact, and producing
documents including electronic records.
Oral evidence is dealt with under Section 59 and Section 60 of the Evidence Act.
Proof By Oral Evidence (Section 59)
Under Section 59 all facts except for documents may be proven by oral evidences.
 If oral evidence is sufficient without documentary evidences, the mere oral evidence will be
enough.
 However, where documentary evidence supplements the oral evidence given, the
documentary evidence must be produced before the court, as the best evidence of their own
content.
 Virendra Nath V. Mohd Jamil – The Supreme Court held that oral evidence was to be
admitted to ascertain the nature of possession of persons who claim to be in adverse
possession.
 Bhima Tima Dhotre V. The Pioneer Chemical Co., that “Documentary evidence becomes
meaningless if the writer has to be called in every case to give oral evidence of its contents. If
that were the position, it would mean that, in the ultimate analysis, all evidence must be oral
and that oral evidence would virtually be the only kind of evidence recognised by law. This
provision would clearly indicate that to prove the contents of a document by means of oral
evidence would be a violation of that section.”
Oral Evidence To Be Direct (Section 60)
Section 60 of the Evidence Act stipulates that oral evidence must be direct in all cases.
 If the evidence refers to a fact which could be seen or heard or perceived by sense, it must be
the evidence of a witness who says that he saw or hear it.
 If it refers to an opinion or to grounds on which that opinion is held, it must be the evidence
of the person who holds that opinion.
 A witness can only tell the court of a fact which he had first hand knowledge of in the sense
that he perceived the fact by any of the 5 senses.

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 If the witness admits that the statement was not made in his presence and that he heard the
statement, such statement will not be direct, and will all under the ambit of hearsay evidence
as derived knowledge.
Hearsay Evidences
Indirect evidences in the form of derived knowledge do not constitute oral evidences. They fall
under the ambit of hearsay evidence, and as such is not admissible unless falling under any
exceptions.
 The test to distinguish between direct and hearsay evidence is to determine the source of the
evidence. If it comes directly comes from the witness, it is a direct evidence. If it is hearsay
evidence, it must come not only from the witness but derived from a third person.
 Hearsay evidences are not admissible even if not objected or consented to. The court has no
discretion in this matter of acceptance of hearsay evidences.
 Furthermore, hearsay evidence is not admissible as the truthfulness and accuracy of the
evidence cannot be ascertained, unlike that of direct evidences.
 There is a tendency that hearsay evidence will dilute and diminish the truth, with each
repetition, frauds may be practiced under its cover.
Exceptions To Hearsay Evidence
There exist a number of exceptions where statements which ordinarily would be classed as
hearsay evidence would be accepted. Such exceptions are as follows:
 Res Gestae – Section 6 stipulates that a statement made by a person who si not a witness
becomes admissible if the statement is part of the transaction in question.
 Admissions and Confessions - Admissions or confession of liability which takes place out
side the court via testimony of a witness to whom the admission was made will be valid.
 Statements under Section 32 – Dying declaration are admissible as evidence before the court
via a third person who can ascertain that the primary person is not alive or missing.
 Entries in books of accounts
 Statements of experts in treaties

Module 12 – Documentary Evidences, Documents, Presumptions As To Documents

Apart from oral evidences, courts will also accept documentary evidences. Documentary
evidences include anything written or published either physically or electronically.
 Documentary evidences are regarded as dead proofs
 Oral evidences by witnesses are regarded as living proofs.
Documentary evidence is considered superior to that of oral evidences, in terms of permanence
and trustworthiness. Section 61 to Section 90 deal with documentary evidences.
Section 74 to 78 deal with public and private documents
Sections 79 to 90 deal with presumptions as to documents.
Proof of Contents of Documents (Section 61)

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Section 61 addresses the proof of contents of documents. The contents of documents can be
proven either by primary or secondary evidences. There is no third method to prove the contents
of the document.
Banarsi Das V. Maharaja Sukhjit Singh – The court held that absence of documentary
evidences which could be available, the plaintiff was not allowed to rest his case on oral
evidence, which was against the records produced by the defendants.
Oral evidences again, can only be supported by documentary evidences. A case cannot ordinarily
be relied upon merely with oral evidence. It must be backed with documentary evidence either
primary or secondary.
Primary Evidence (Section 62)
Section 62 of the Evidence Act addresses Primary Evidences. It stipulates that primary evidence
includes:
 The original document itself presented before the court for interpretation
 Where a document is executed in several parts, each part is considered as primary
evidence of the document.
 Where a number of documents are made by a single uniform process, by photography,
lithography, printing etc, each will be primary evidence of the contents of the document
Copies of the original document will not be considered as primary evidences. They will fall
under the ambit of Section 63 (Secondary Evidences).
Primary Evidence is considered to be the best evidence and is of the standard of proof
which affords the highest certainty of the fact in question.
Eg. In the case of a cheque, the main cheque signed by the drawer will be primary evidence
against him, as an original document presented before the Court.
Secondary Evidences (Section 63)
Section 63 of the Evidence Act addresses Secondary Evidences. Secondary Evidences include:
1. Certified copies of the original document
2. Copies made from the original document via a mechanical process such as photography,
printing etc, which in themselves assure the quality of the copy.
3. Copies made from or compared with the original. Where the copy is prepared word to word
from the original, it will be considered as secondary evidences.
4. Counterparts of documents against the party who did not sign it.
5. Oral accounts of the documents that are given by a person who has read the document.
Various cases have addressed the nature of secondary evidences and their validity in a court of
law.
 Union of India V. Nirmal Singh – The Supreme Court held that an uncertified copy of a
Government order is not admissible as secondary evidence. A Copy of Copy is not

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 admissible as secondary evidence, unless the copies are prepared by mechanical processes,
compared with the original.
 Government of AP V Korri Chinna Venkata Reddy - the court held that a photostat copy
was admissible as secondary evidence if it is proven to be genuine. It must be explained as to
the circumstances under which the copy was preferred and who was in possession of the
original document at the time the photo was taken.
Proof By Primary Evidence (Section 64)
As per Section 64, documents must be proven via its primary evidences, except in the cases that
are mentioned in subsequent sections.
When Secondary Evidence As To Documents Can Be Given (Section 65)
In the following cases, secondary evidence can be given as to the creation, existence or contents
of a document
1. When the original is shown, or appears to be in the possession or power, against whom the
document is sought to be proven (the adverse party), or any person out of reach of or not
subject to the process of the court, or any person legally bound to produce it.
2. When the existence, conditions or contents of the document have been proven to be admitted
in writing by the party against whom the document is to be proven.
3. When the original document is lost or destroyed.
4. When the original document is of such nature, that it cannot be easily moved.
5. When the original is a public document within the meaning of Section 74
6. When the original is a document of which the Evidence Act permits the presentation of
certified copies.
7. When the original document consists of numerous accounts, or other documents which
cannot be examined in the court.
Secondary Evidence of the contents of a written document cannot be presented before a
court without a valid justification as to the non-presentation of the primary evidence. In
order to give secondary evidence, the primary evidence itself must be admissible.
 Government of AP V Korri Chinna Venkata Reddy - the court held that a photostat copy
was admissible as secondary evidence if it is proven to be genuine. It must be explained as to
the circumstances under which the copy was preferred and who was in possession of the
original document at the time the photo was taken.
Objections as to secondary evidences can be raised in the following grounds:
 Objection that the document sought to be proven itself is inadmissible as evidence
 Objection against the mode of presentation on grounds of insufficiency or irregularities.
Admissibility of Electronic Evidences (Section 65A and Section 65B)
Section 65A and Section 65B address the admissibility of electronic evidences. The aforesaid
sections have been added by virtue of the Information Technology Act 2000. Section 65A

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stipulates that the contents of any electronic document or record can be proven in accordance
with the provisions of Section 65B.
Section 65B stipulates that any information in an electronic record, printed on paper, stored,
recorded or copied onto a computer, shall be deemed to be a document, and thus admissible in
proceedings. The electronic record publication serves as evidence of the contents of the original,
or of any fact, of which direct evidence would be admissible.
Under Section 65B, the following conditions must be satisfied to classify as a computer output:
1. Information was produced during the regular course of activities by the person having lawful
control over the computer
2. Information is regularly fed into the computer in the ordinary course of activities.
3. The computer is operating properly.
4. Information in the electronic record is derived from information that has been fed into the
system in the ordinary course of activities.
It is essential that for the purposes of evidence, a certificate, identifying that the electronic
record containing the statement and describing the manner in which it was produced by the
computer, and satisfying all the aforesaid conditions must be presented.
 Anwar PV V. PK Basheer – The appellant challenged the election of the Respondent on
grounds of corrupt practices under the Representation of People’s Act in view of publications
pertaining to the personal character and conduct of the petitioner.
o The appellant failed to adduce primary evidences by making available CDs used for
announcements and songs. The songs were produced and fed into a computer. The
CDs were made from such recordings and computer system.
o The court held that without certification, the CDs produced cannot be admitted in the
court in view of the need for certificates under Section 65B.
o The court also stated that had the CDs been used to show objectionable songs, and
were seized from the Police, and were produced in court, then the High Court could
have played the same to determine the truthfulness of the allegations.
 State (NCT of Delhi) V. Navjot Sandhu – The court held that secondary evidences must be
allowed under Section 63 and Section 65. It also held that electronic records by way of
secondary evidences cannot be admitted unless the requirements of Section 65B are satisfied,
including the production of the certificate in terms of Section 65B.
 Shafi Mohammad V. State of HP – The court addressed the admissibility of electronic
records, stating that the requirement of certificate was not always mandatory. Where the
party who is not in possession of a device for which the document is produced, applicability
of Section 63 and Section 65 cannot be held as excluded.
Rules as to Notice to Produce (Section 66)
Section 66 addresses the rules as to notice to produce. It stipulates that a notice to produce a
document must be given before secondary evidences can be received under Section 65. The

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notice must be given to the party having possession of the original document, or to his attorney
or pleader.
The notice must be given in the manner prescribed by the law, or in the manner considered as
reasonable by the court in absence of any law. Notice shall not be required in the following
cases, or in any case that the court deems fit.
1. Where the document itself is proven as a notice
2. When from the nature of the case, the adverse party knows that he will be required to
produce the document
3. When it appears or is proven that the adverse party has obtained possession of the original
document by way of fraud or force
4. When the adverse party or his agent has admitted that the original has been lost.
5. When the person in possession of the document is out of reach of the process of the court.
The requirements under Section 66 are mandatory in nature and must be strictly complied with.
Proof of Signature or Handwriting Of A Person Alleged To Have Signed Or Written The
Document (Section 67)
Section 67 addresses the proof of signatures or handwriting of persons, who are alleged to have
signed or written documents. It stipulates that if a document is alleged to have been signed or
written by any person, the signature or handwriting, of so much as is alleged to be in the person’s
handwriting can be proven to be his handwriting.
The following methods can be used to prove signatures or writings, and are recognized under the
Evidence Act:
1. By calling the person who signed or wrote the document
2. By calling a person in whose presence the document was signed or written
3. By calling a handwriting expert
4. By calling a person acquainted with the handwriting of the person executing the document
5. By comparing in the court, the disputed signature or writing with one admitted
6. By proof of admission by the person who is alleged to have signed or written the document
7. By statement of a deceased professional scribe made in the ordinary course of business
8. Any other circumstantial evidences.
Proof Of Execution Of Documents Required To Be Attested By Law (Section 68)
Section 68 of the Evidence Act addresses the proof of execution of documents which must be
attested in the eyes of the law.
 An attested document is any document which has been signed in the presence of two
witnesses. The witnesses themselves add their signatures to prove that they themselves
affirm, that the document was executed in their presence.
 Under Section 68 of the Evidence Act, where an attested document is presented before the
court as evidence, the court must be satisfied that there is proof of the attestation of the
document.
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 At least 1 attesting witness must be called before the court to affirm the execution of the
document.
 This principle will only apply where at least one of the attesting witnesses is alive at the
time of the court proceedings, and is capable of giving evidence.
 Under Section 68, no attesting witness needs to be called, if the document has been registered
under the Indian Registration Act, and there is no denial of execution by the person executing
it.
Proof of Wills
 In case of a will, even if the will is registered, the attesting witness must be called before the
court.
 In order to prove due attestation of the will, a witness must prove that the two witnesses saw
the deceased sign on the will, or that he admitted to have signed the will and that they signed
the will in the presence of the deceased testator.
 Janki Naraian Bhoir V. Narain Namdeo Kadam – The Supreme Court deciding a reading
of Section 63 of the Succession Act and Section 68 of the Evidence Act held that the person
propounding the will had to prove that the will was duly and validly executed.
Proof Where No Attesting Witness Is Found (Section 69)
Section 69 addresses circumstances of proof where no attesting witness can be found. Under
Section 69, if no attesting witness is found, or if the document is executed in the United
Kingdom, it must be proven that the attestation of the witness is in that of his handwriting, and
that the signature on the document belongs to the attesting witness.
Admission of Execution By Party To Attested Documents (Section 70)
Section 70 addresses the admissions of execution that are made by a party to attested documents.
 Section 70 lays down that where an attested document has been produced before the court,
and the executor of the document has admitted that the document was executed, then it is
sufficient proof of execution, even if the document is required to be attested.
 Admission solely relates to the execution of the document, and must be made in the
course of a suit.
 The admission of execution must be unqualified.
 When the attestation is specifically denied, but the signing of the document is admitted, it is
necessary to call the attesting witness to the court, to prove attestation under Section 70 of
the Act.
 When calling the attesting witness, the provisions of Section 68 will apply.
Proof Where The Attesting Witness Denies The Execution (Section 71)
Section 71 addresses proof where the attesting witness has denied the execution of an attested
document.

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 Where an attesting witness denies the execution of a document which was signed, or states
that he does not remember the signing of the document, the execution of the attested
document may be proven by other evidences.
 In case an attesting witness turns hostile, then other evidences may be used to prove the
execution of the document.
 Section 71 of the Evidence Act acts as a safeguard for the provisions of Section 68 to address
situations however it cannot be proven the execution of a document which has been attested.
 Janki Naraian Bhoir V. Narain Namdeo Kadam – The Supreme Court held that Section
71 will not apply where out of the available attesting witnesses, only one is examined, but if
he fails to prove due execution of the will, the will stands as not proven.
Proof Of Documents Not Required To Be Attested By Law (Section 72)
Section 72 addresses the proving of documents which don’t need to be attested mandatorily by
the law. It stipulates that any document which is not required by law to be attested, may be
proven as if it was unattested.
To prove an attested document, one must prove both the signature and attestation. For proving of
an unattested document, mere proof of execution of the document will be enough.
Comparison Of Signatures Or Handwriting By Courts (Section 73)
Section 73 addresses the comparisons of signatures or handwritings by the courts. It states that
where the court wishes to satisfy itself of the genuinely of the handwriting or signature on a
document, it may compare the same with another signature admitted or proven to be that of the
person concerned.
Section 73 also can apply to fingerprints with appropriate modifications.
In order to verify the handwriting or signature of a person, the court can ask the concerned
person to write few sentences or words, or sign his name to initiate the comparison.
 The comparisons undertaken by the court is a matter of discretion.
 Murarilal V. State of Madhya Pradesh – The Supreme Court noted that courts must not
venture to compare writings itself, whenever it deems fit to do so. The court would in such
instances assume itself to be the role of an expert. The apex court stated that courts must
form their own conclusions after comparisons.
 Ajit Savant V. The State – The apex court noted that the court should be cautious in making
a self comparison of signatures. The court can attempt to compare handwritings or signatures
independently, but if there is even the slightest of doubts, the services of an expert witness
must be relied upon.
Section 73 does not make any differentiation between criminal trials and civil proceedings.
Where the investigation is still ongoing, and no proceedings are pending before the court,
in such circumstances, the court cannot compel a person to submit his handwritings for
comparison.

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 Proof of Verification of Digital Signature (Section 73A)
Section 73A stipulates that to ascertain if a digital signature is that of the person by whom it
purports to be affixed, the court may direct that the person or controlling authority or Certifying
Authority produce the Digital Signatures Certificate.
The court may also order any other person to apply the public key vested in the certificate for
verification of the signature.
Public Documents (Section 74)
The Evidence Act recognizes two types of documents. They are public documents and private
documents.
Section 74 addresses public documents. It stipulates that the following documents are deemed to
be public documents:
 Documents forming the acts or records of acts
o Of the sovereign authority such as the Legislative Assemblies and the Parliament
o Of Official bodies and tribunals
o Of public officers, legislative, judicial and executive, of any part of India or the
Commonwealth or that of a foreign country.
 Public records kept in States of private documents.
Any private document which is registered in a public office, will also be deemed as a public
document. The MoA and AoA of a company will be deemed as a public document. The
following however are not public documents
 Application for a license
 Post mortem report
 Insurance policy
 Sale deed registered agreement
 Panchanamas
Chargesheets, arrest warrants, judgments of the court are public documents. Marriage
certificates, electoral roles and records of nationalized banks also as constitute public documents.
A public record is one required by the law to be kept in the discharge of official duty sanctioned
by the law, or directed by law to serve as a memorial and permanent evidence of anything
written, or said or done.
Private Documents (Section 75)
Under Section 75 of the Evidence Act, all other documents which are not classed as public
documents are deemed private.
Certified Copies Of Public Documents (Section 76)

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Section 76 of the Evidence Act deals with certified copies of public documents. It stipulates that
every public officer who has custody over a public document must on demand, and payment of
legal fees, give a copy of the document with a dated and sealed certificate, that it was a true
copy.
Proof of Public Documents By Certified Copies (Section 77)
Under Section 77 of the Evidence Act, a public document may be proven before the court via
the production of certified copies of the document in question.
 The usage of the word “may” in the Section gives the interpretation that the party seeking to
prove the document can choose to produce the original copy of the document rather than the
certified copy.
 Where an original electoral roll may be presented before the court as a public document, its
certified copy can also be presented to prove the document in question.
Proof of Other Official Documents (Section 78)
Section 78 stipulates that the following official public documents can be proven in the following
manner.
 Acts, orders and notifications of either the Central or State governments, or their departments
can be proven by records of the department, as certified by the head, or by any document
purposing to be printed by the department’s order.
 Proceedings of legislatures can be proven by the journal of the legislature, or by published
Acts, or abstracts, or copies purporting to be printed by government order.
 Proclamations or orders issued by the English Monarch, or Privy Council by copies of
extracts in the London Gazette.
 Acts of the executive, or proceedings of foreign legislatures, can be proven by journals or
certified copies of by recognition of the same in a Central Act.
 Proceedings of municipal bodies in states by certified copies of such proceedings.
 Public documents of any other class in foreign countries
Presumptions As To Documents
Sections 79 to 90 address the presumptions as to documents. They are founded on the maxim
“omnio prosumuntur rite esse act” which states that all acts are presumed to be rightly done. The
presumptions however are not conclusive, but are prima facie.
Presumptions as to documents are compulsory under Section 79 to Section 85, and Section
89. The remaining sections grant presumptions at the discretion of the courts.
Presumption As To Genuineness Of Documents (Section 79)
Section 79 addresses the presumption as to genuineness of documents.

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 According to Section 79, where a certified copy of a document is produced before the court
as evidence of the original, the court is bound to presume that the copy is a genuine
representation of the document.
 It is necessary however that the copy so presented must be certified by an officer of either the
Central or State governments and the document must be in the form prescribed and executed
by the law.
 The court must also presume that the officer signing the document held the official office at
the time of signing or certifying the document.
Presumption Of Documents Produced As Records of Evidence (Section 80)
Section 80 addresses the presumption of documents produced as records of evidence. It
stipulates that where a person has appeared before a court of law and his statement being relevant
in a subsequent case, the court will presume the statement as genuine, of such certified copy and
that the statement was recorded. The same applies to any confession.
Presumption As To Gazettes, Newspaper and Private Acts of Parliament (Section 81)
Section 81 addresses the presumptions as to gazettes, newspapers and private acts of the
parliament.
Section 81 stipulates that anything in the Official Gazette, or newspapers, or Private Acts of the
UK Parliament are to be presumed by the court as genuine.
However, in practice, the judiciary has repeatedly stated that newspaper reports do not constitute
admissible evidence, and rather, fall under the banner of hearsay evidences.
 Laxmi Raj Shetty V. State of Tamil Nadu – The Supreme Court stated that the
presumption of the genuineness under Section 81 of the Evidence Act cannot be attached to
newspaper reports.
 Ramswaroop V. State of Rajasthan – The Supreme Court has stated that statements of
facts in newspapers are hearsay evidence and thus inadmissible.
Presumption Of Gazettes In Electronic Forms (Section 81A)
Under Section 81A, the court is to presume the genuineness of electronic records purporting to
be the Official Gazette, or purporting to be any form of electronic records, directed by law to be
kept by any person in the form required.
Presumptions As To Documents Admissible In England Without Proof Or Seal Of Signatures
(Section 82)
Section 82 addresses presumptions as to documents admissible in England.
It stipulates that when any document is produced before any Court, purporting to be a document
which, by the law in force for the time being in England or Ireland, would be admissible in proof
of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp
or signature authenticating it or of the judicial or official character claimed by the person by

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whom it purports to be signed, the Court shall presume that such seal, stamp or signature is
genuine, and that the person signing it held, at the time when he signed it, the judicial or official
character which he claims, and the document shall be admissible for the same purpose for which
it would be admissible in England or Ireland.
Presumptions As To Maps Or Plans (Section 83)
Section 83 stipulates that any maps or plan purporting to be made under the authority of the
Central or State Government, shall be presumed as genuine and accurate.
Presumptions As To Collection Of Laws, Reports of Decisions (Section 84)
Section 84 addresses presumptions as to collections of laws, reports of decisions. It stipulates
that the court must presume the genuineness of any book, printed or published under the
authority of the government of any country, which contains the laws of the country.
Presumptions As To Powers Of Attorney (Section 85)
Section 85 addresses presumptions as to the powers of attorney. It stipulates that where a
power of attorney has been duly executed and authenticated by a notary, or any judge, court,
counsel, representative of the Central Government, such power of attorney will be presumed as
genuine.
The presumption also applies to documents authenticated by notaries in other countries.
Presumptions As To Certified Copies of Foreign Judicial Records (Section 86)
Under Section 86, the court has the judicial discretion to presume that certified copies of foreign
judicial records are genuine.
Presumptions As To Books, Maps And Charts (Section 87)
Section 87 addresses presumptions as to books, maps and charts. It stipulates that when
books, maps or charts are produced before the court, to prove a fact in issue or a relevant fact,
then the court has the discretion to presume that any such book, map or chart
Presumption As To Telegraphic Messages (Section 88)
Section 88 addresses presumptions as to telegraphic messages. It stipulates that with reference to
telegraphic messages, the Court may presume that the message that has been delivered,
corresponds with the message that is handed to the post office, and that the message was meant
for the person whom it was to be delivered to.
 The court must not make presumptions as to the sender of the message.
 The court thus may treat telegraphic messages that are received as if they were the originals
sent. This does not apply in the case from the point of view of sending telegrams.
Presumption As To Documents Not Produced (Section 89)

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Section 89 addresses presumptions as to documents that are not produced. The court shall
presume every document not produced after notice to produced, to be attested, stamped and
executed in the manner required by the law.
Presumptions Of Documents That Are 30 Years Old, Or Ancient Documents (Section 90)
Section 90 of the Evidence Act addresses the presumptions made of documents that are ancient
or 30 years old.
 Section 90 stipulates that where a document has been purported to be 30 years old, and is
produced from custody which the court considers as proper, the signatures and every part of
the document may be presumed by the court to be in the handwriting of the person
purported to have written the document.
 In case the document is duly attested or executed, the court shall presume that the document
was executed and attested by the persons who signed the document.
 The rationale behind Section 90 is that as time passes, executors of the document may not be
able to prove the genuineness of the title.
 Documents which are 30 years old are proofs themselves.
 The presumption under Section 90 refers to the execution of the document, but not the truth
of its contents.
 There is no presumptions that the executant has the authority to execute the document.
 The presumption can only be raised as to original documents, and not copies of the
documents.
 In the case of an ancient document however, the court will not follow the presumption
of genuineness.
o The court shall only presume the ancient document to be genuine, if the party relying
upon such document can prove to the satisfaction of the court that the document was
genuine.
o The presumption of authenticity of the ancient documents is discretionary in nature
by the courts.
 Gangamma V. Shivalakshmi – The Supreme Court stated that Section 90 of the Evidence
Act does not provide that authenticity of recitals in a document is to be presumed. Even if
there is a formal execution of document, this does not lead to presumption that the contents
of the document are correct. Parties can raise pleas to the contrary within permitted limits of
Section 91 and Section 92 of the Evidence Act.
Presumptions Of Electronic Records Five Years Old (Section 90A)
Section 90A addresses presumptions of electronic records which are 5 years old. It stipulates
that any electronic record which is purporting to be 5 years old, and is produced from proper
custody will be presumed to be genuine. The court shall presume that the digital signature in the
document was affixed by the person authorized to affix and verify the digital signature.

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Module 13 – Exclusion Of Oral Evidence By Documentary Evidence (Sections 91 – Section
100)
 The Evidence Act stipulates that where both oral and documentary evidences are present, the
court may choose to go with the evidence which it deems to be the most reliable.
 The provisions of the Evidence Act provide for the exclusion of oral evidence by
documentary evidence, on the basis and principle of the Best Evidence Rule.
 Where the fact to be proven has been embodied in the document, the court may consider the
document to be the best evidence of the fact in question.
 Sections 91 and 92 of the Evidence Act function on the principle of the Best Evidence Rule
that what is in writing must be proven by the writing.
Best Evidence Rule
 The Best Evidence Rule refers to the fact that the best evidence of which the case in its
nature, is susceptible must always be produced.
 The rule does not require the production of greatest quantity of evidence, but focuses on the
production of evidence of the greatest quality, in which the court can have complete
confidence as to the existence or non-existence of a fact.
 Any evidence which raises the supposition that there is better evidence behind it, in
possession or control of the party by which he may prove the same fact
 It is a cardinal rule of law of evidence, that the best evidence in the possession of the party
must always be given.
o If a fact must be proven by oral evidence, then the evidence must be that of a person
who has directly perceived the fact to which he has testified
o Hearsay evidence as such is not considered as evidence due to the fact that it cannot
be tested unlike that of a direct witness.
 Where a transaction must be proven by writing, then the writing in question itself must be
produced or accounted for. It is only in the absence of the primary evidence, that the court
will accept secondary evidence. In the absence of the original document, only then can copies
of the document be accepted by the court.
 It is a well-established rule of law that whenever written instruments are involved, then any
other evidence will be excluded from used, either as a substitute for such written instrument,
or to contradict the instrument.
 The written instrument are entitled to more credit than oral evidence.
Evidence Of Terms Of Contracts or Grants Reduced To Documents (Section 91)
Section 91 deals with evidences of terms of contracts or grants, which have been reduced to a
documentary form.
 Under Section 91, where the terms of contract or grant, or disposition of properties have been
reduced to the form of a document, or are required to be reduced to the form of a document,
then the document itself must be produced before the court as evidence of the grant, or
property disposition.

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 Section 91 is based on the best evidence rule, in that the best evidence of the contents of the
document is the document itself.
 The production of the document is required under Section 91 for proof of contents of the
document.
Section 91 excludes the admission of oral evidence for proving contents of a document, except in
cases where the secondary evidence is admissible.
Section 91 mainly says that the original document is to be produced for proving the contents of
the same but however, it does not prohibit the parties to adduce some evidence in case the deed
is capable of being construed differently for proving the way they understood [Tulsi v.
Chandrika Prasad AIR 2006 SC 3359].
Section 91 recognizes 2 exceptions where the original document need not be produced. They are:
 Where the appointment of a public officer is required by law, to be made in writing and the
question is if an appointment was made, if it was shown that a person acted as such officer,
that will be sufficient proof and the writing need not be presented.
 Wills admitted to probate in India can be proven by the probate. The official document of the
will need not be produced. A copy of the will with the seal of the court of competent
jurisdiction will be enough as evidence.
Exclusion of Evidences Of Oral Agreements (Section 92)
Section 92 of the Evidence Act excludes evidences of oral agreements. It acts as a supplement
to Section 91, and stipulates that where a contract, grant or disposition has been proven by
production of documents before the court, no oral evidence can be given to qualify or contradict
the terms of the document.
 Section 92 merely binds the parties to the agreement and their representatives from giving
oral evidence of the contents of the document. There is no bar on a third party giving oral
evidence as to the contract.
 Furthermore, evidence can be given of any oral agreement which does not contradict the
terms of the document.
 Section 91 lays down a universal rule of superiority of documentary evidence under the best
evidence rule. Section 92 works in tandem with Section 91, in that Section 92 comes into
operation once the document has been proven under Section 91.
 Both Section 91 and Section 92 are mutually dependent on each other and are ineffective
without the other.
 Roop Kumar V. Mohan Thedani – The Supreme Court stated that both Section 91 and
Section 92 are based on recognition of integration in the case of written instruments, and
applies to third parties seeking to establish a contract.
 The rationale and scope behind Section 92 is that the parties having made a memorial of
agreement, it must be presumed that they have put into writing all that is necessary to give
full meaning and expression of intent. The reciprocal of oral testimony would create mischief
and open doors to fraud. (Rajkumar Rajendra Singh V. State of Himachal Pradesh).

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Exceptions
There are certain exceptions, where oral evidence can be given regarding a document.
Validity Of A Document
 The evidence can be given orally of any fact which will invalidate the document, or which
will entitle a party to any decree or order relating to the document.
 The validity of a document can be questioned on grounds of fraud, intimidation, illegality,
failure of consideration, mistake of fact or laws.
Matters On Which The Document Is Silent
 The evidence of any oral agreement can be given on a matter on which the written document
is silent.
 However, the oral agreement must not be inconsistent with the terms of the written
agreement.
 The separate oral agreement must be on a separate distinct collateral matter, even though it
may form a part of the transaction.
 To determine if a case falls under the exception of matters of silence, the formality of the
document must be considered by the court. The greater the formality of the document, the
more reluctant the court will be to admit oral evidences.
 Brij Kishore V. Lakhan Tiwari – The document in question was one by which the
existence of a deed was acknowledged and was on stamp paper. The document was silent of
the interest payable and as such oral evidence was offered on the point.
o The issue before the court was if the document was so formal as to completely shut
out oral evidences. The court allowed the oral evidence.
o The court held that when the document was such that one could reasonably believe
that the terms and conditions agreed were sought to be put in the document, then oral
evidence cannot be allowed.
o It stated that mere acknowledgement of debt even though stamped cannot be
considered as formal enough to incorporate all terms and conditions of the borrowing
and was merely an acknowledgement of liabilities.
Conditions Precedent
 The existence of any oral agreement constituting a condition precedent to the written
agreement or attaching of any obligation in the written agreement can be proven.
 Where there is an oral agreement, that the terms of a written contract cannot come into effect
until a condition precedent has been fulfilled, oral evidence can be admitted to show the
condition precent did not take place, and thus there was no written agreement.
 This exception does not apply where the written contract was performed or acted upon
already.
Recission Or Modifications

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 Where after execution of a document, the parties begin to orally agree to treat it as cancelled
or modified, such oral agreement may be proven.
 However if the contract is of such nature that the law requires it to be in writing, or if the
contract has been registered under the Registration Act, then proof cannot be given of any
oral agreement by which it was agreed to rescind or modify the contract.
Usage or Customs
 Under this exception, oral evidence is admissible to explain or supply terms in commercial
transactions, on the presumption that the parties didn’t intent to put into writing the whole
agreement, but agreed that the contract was to be interpreted or regulated by established
usages or customs.
 In such cases, oral evidence can be offered that by the custom of the trade, the contract and
terms of the contract were executed.
Appointment of public Officers
Wills and Probates
Extraneous Facts
Nature Of Ambiguous Documents In Evidence Law
 A document is said to be ambiguous, when the nature of its language does not show, or make
clear sense of the document, or its application to facts creates doubts.
 In such cases involving ambiguous documents, oral evidences can be given to correct the
defect of ambiguity as to a fact.
 Sections 93 to 98 address the extent to which oral evidences can be given to correct the
scope of ambiguity of a document to a fact.
Ambiguity in a document can be of the following types:
1. Patent Ambiguity - Here, the document is vague and ambiguous with the ambiguity being
apparent on the face of the document.
2. Latent Ambiguity – Here the document is vague and ambiguous, however such defects of
ambiguity are not apparent on the face of the document, but in the application of language to
the facts stated.
Exclusion Of Evidences To Explain Or Amend Ambiguous Documents (Section 93)
Section 93 addresses the exclusion of evidences to explain or amend any ambiguous documents.
It stipulates that where the language used in a document is on the face if it, ambiguous, or
defective, the no evidence can be given of facts which would show its meanings, or supply its
defects.
 The rationale behind the exclusions of such evidences in such cases, is that the document
being clearly or apparently defective would already be known or could have been known to

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 the parties in the dispute, and if they did not care to remove the ambiguity, then it was too
late to remove the ambiguity when the dispute arises.
Section 93 deals with the rules for the construction of documents with the help of extrinsic
evidence and the interpretation of documents by oral evidence due to ambiguity.
Exclusion of Evidence Against The Application Of Documents To Existing Facts (Section 94)
Section 94 addresses the exclusion of evidence, against the application of documents to the
existing facts. It stipulates that where the language used in a document is plain in itself, and
when it applies accurately to the existing facts, any evidence showing that it was not to apply to
the existing facts will be excluded.
No evidence can be given to show that the document in question did not apply to the existing
facts, when it by language, applies accurately to the existing facts.
Evidence As To Documents That Are Unmeaning In Reference To Existing Facts (Section 95)
Section 95 addresses the nature of evidences as to documents which do not have any connection
or meaning to an existing fact in issue. It stipulates that where the language of a document is
clear and plain in words, but does not apply to the existing facts, evidence can be offered to
explain how the document was to apply to the existing fact.
 Section 95 hinges on the aspect of interpretation of latent ambiguity. It is based on the
viewpoint that where a document is clear but does not apply to the existing fact,
interpretations of the wording can be offered to explain why it is to apply to the existing
fact.
 However, according to Stephen’s digest, evidence to show common words with plain
meanings from the contract, to be used in a particular sense have been in fact so used is not
admissible.
o North Eastern railway V. Hastings – It was held that written instruments which are
clear and unambiguous must be interpreted as per the exact wordings that have been
used in the instrument.
Evidence As To The Application Of Language To Either A Single Person Or Group Of Persons
(Section 96)
Section 96 addresses the evidence as to the application of languages to either a single person or a
group of persons in a document.
Under Section 96, if the language of a document is clear and concise as to if it applied to either a
single thing or person, but in its application, to the existing facts it is difficult to say to what
thing or person the document applied, evidence can be offered to clarify the matter.
For example, A agrees to sell B his white horse. However A has 2 white horses. Evidence can be
given under Section 96 to clarify the matter as to which white horse the sale deed applied.
Evidence As To The Application Of Language To A Set Of Facts (Section 97)

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Section 97 addresses evidences as to the application of languages to sets of facts. It stipulates
that where the language of any document applies partly to one set of facts, and partly to another,
but not both accurately, then evidence can be given to show which acts the documents was meant
to apply.
 Under Section 97, where the language used can be applicable to two or more sets of facts,
then the evidence must be given to address which set of facts does the language most
specifically apply to in the concerned scenario.
Evidences As To Meanings of Illegible Characters / Abbreviations (Section 98)
Section 98 addresses the giving of evidences as to the meaning of characters that are not legible.
It stipulates that evidence can be given to show the meaning of characters which are illegible,
foreign, difficult to understand or obsolete, and of any abbreviations that are used in any sense.
Under the ambit of Section 98, Oral Evidence can be given for the purpose of explaining
any artistic words or symbols that may be used in a document.
Evidences By Non-Parties (Section 99)
Section 99 addresses evidences by non-parties to a dispute. It stipulates that where persons who
are not parties to a document, may give evidence of a fact, to show a contemporaneous
agreement varying the terms of the document
 It may be noted that the parties to a document, or their representative cannot give evidence of
a contemporary agreement that varies the terms of the document.
 A third party can give evidence of such an oral agreement if he has been affected by it.
Saving Provisions Of The Indian Succession Act (Section 100)
Section 100 stipulates that nothing in the concerned chapter of the Evidence Act shall affect any
provision of the Indian Succession Act, as to the construction of wills. The Indian Succession
Act refers to the Succession Act of 1925.

Module 14 – Burden of Proof

 The basic facet of every judicial proceeding is that “one who alleges must prove”. Every
judicial proceeding has to for its purpose ascertain some right or liability.
 The right or liability arises out of facts which must be proven to the satisfaction of the court.
 The burden of proof is the obligation to prove a fact. Every party to a dispute must establish
the facts concrerrely which support their case, and goes against their opponent.
 In a strict interpretation, burden of proof means that if no evidence is given by the party on
whom the burden is passed, then the issue must be found against him.
Sections 101 to 111 addresses the provisions regarding burden of proof in the Evidence Act.
Burden Of Proof And Onus Of Proof
 There is a difference between the terms “burden of proof” and “onus of proof”.

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 The burden of proof lies on the person who has alleged the existence or nonexistence of a
fact and must prove the same via evidence to the court.
 Onus of proof refers to the shifting of the onus of burdens to prove a case in case of
evaluation of evidence.
 If the prosecution has satisfied the court that the accused has committed a crime, the onus of
proving innocence, and thus the shifting of burden of proof lies from the prosecution to the
defense and the accused.
Onus Probandi
 Onus probandi means that if a fact must be proven, the person in whose interest it is to prove
it must adduce some evidence by which the court can find the facts which he wishes the court
to determine.
 The evidence to prove the fact need not be major, it can be even very slight, but it must be
given to the court by the party seeking to prove a fact.
 The onus is always on the person who asserts a proposition, or fact which is not self evident.
 Where the entire evidence which is possible has come on a subject, before the court, it is well
settled that in such cases, the burden of proof is immaterial.
 A person can never be relieved of burden to prove a fact, even if it is extremely difficult or
impossible to prove the fact to the satisfaction of the court.
 The party upon whom the onus of proof lies, must succeed in satisfying the court, to establish
a prima facie case in his favor. He cannot on failure to do so, take advantage of the weakness
of his adversary.
o The party must always succeed via the strength of his own rights, and the clearness of
his own proof.
 The general rules however that a party desiring to moving the court must prove all facts
necessary in his favor is subject to 2 exceptions.
o He need not prove facts which are specifically within the knowledge of the other
party (Section 106)
o He need not prove so much of allegations, in which there is a presumption of law or
fact in his favor (Section 107 to 114).
Burden of Proof (Section 101)
Section 101 addresses the basic doctrine of the burden of proof. It stipulates that whoever desires
any court to give judgement as to legal rights or liabilities, dependent on the facts that are being
asserted by him, must prove that those facts exists. Section 101 addresses burden of proof as a
matter of law and pleading.
When a person is bound to prove the existence of facts, then it is said that the burden of proof
lies on said person.
For example, if A desires courts to give judgement that B is to be punished for a crime that A
alleged B has committed, then A must provide evidence to the fact that B committed a crime.
The burden of proof lies on A to establish the existence of fact that B committed a crime.

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 The principle of Section 101 is that a party who wishes the court to believe in the existence
of a fact must prove the fact. For example, if a party alleges that a transaction is a sham, he
must prove that the transaction was a sham.
 In case the question was if a transaction was bona fide and genuine, then the party relying on
the transaction, must prove that the transaction was genuine. He must prove the existence of
the genuine transaction. It is only after that will the defendant be required to rebut such
proofs (Subhra Mukherjee V. Bharat Cooking Coal Ltd – Supreme Court 2003)
 In a case of rape, the burden of proof of consent, lies on the accused. The victim need not
show the absence of consent on her part. It is for the accused to prove the existence of
consent, if he alleges that consent was given for sexual intercourse (State of Himachal
Pradesh V. Shree Kant Shekari).
 Jarnail Singh V. State of Punjab – The Supreme Court observed that in case of a criminal
trial, the burden of proof always lied on the prosecution to prove beyond all reasonable doubt
that the accused charged with a crime, was indeed guilty of the crime in question. Here, the
fact in question is if the accused has committed a crime. The prosecution would allege
that the accused is guilty of the crime, and thus must offer evidence to prove the fact.
Reverse Burdens
There are certain statutes where the doctrine of a reverse burden applies. In such cases, the courts
must only presume and act on the reverse burden if sanctioned by the Act. Even so, such acts are
considered violative of Article 12 of the UDHR and Article 21 of the Indian Constitution. In a
criminal case, the right to presumption of innocence must be considered as a fundamental right.
On Whom The Burden Of Proof Lies (Section 102)
Section 102 stipulates that the burden of proof lies on the person who will fail if no evidence at
all were given on either side.
 The scope of Section 102 is that it deals with the burden of proof of adducing evidence.
 It lays down that the burden of adducing evidences, rests on the party who otherwise would
fail if no evidence at all were adduced by either side.
 For example, A sues B for possession of land which is in B’s possession. A asserts that the
land was left to him by C in his will. The burden of proof of such allegation lies on A. If no
evidence were given on either side, A would fail, and B would retain possession.
 The burden of proof in the sense of introducing evidence, shifts in the trial. There have been
various instances, where the burden of proof shifts to the other side, giving rise to
presumptions in favor of the party upon whom the burden initially existed.
 Trio V. Deo Raj – The defendant took the plea of limitation period as the plaintiff was
delayed in filing the suit. The plaintiff was in a position to know of the delay. He was thus
under the burden of proof to show that the case was within the prescribed limit.
 In cases of inanity, the burden of proving the fact lies on the person who is relying upon
defense of insanity. Where no side adduces evidence, the party needing to prove the insanity
will fail, and the court would deem the party of sound mind.
Burden of Proof As To A Particular Fact (Section 103)

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Section 103 addresses the burden of proof as to a particular fact. Here reference is given only to
a specific fact which the party seeks to establish or refute. Under Section 103, the burden of
proof as to any specific particular fact lies on the party who seeks to establish said fact. The
burden of proof will remain on the party, unless it has been provided by law that burden of proof
shall lie on any other person.
The burden of proof lies on the party seeking to prove or refute a particular specific fact,
unless any other person is given the burden of proof by way of the law.
Burden Of Proving Facts To Be Proven To Make Evidence Admissible (Section 104)
Section 104 addresses the burden of proving facts to be proven to make evidence admissible. It
stipulates that the burden of proving any fact necessary to be proved in order to enable any
person to give evidence of any other fact, is on the person who desires to give such evidence.
Burden of Proving Exceptions In Criminal Cases (Section 105)
Section 105 addresses the burden of proving exceptions in criminal cases. It stipulates that where
the accused in a crime takes a plea of circumstances bringing the offense under the General
Exceptions of the IPC, then the burden of proof lies upon him to prove that it fell under the
exception.
The court shall presume the absence of such exceptions until and unless it has been proven
by the accused.
 The fundamental principle of criminal jurisprudence is that an accused is presumed innocent
until proven guilty. The burden always lies on the prosecution to show the accused is guilty
beyond all reasonable doubts.
 Section 105 is a qualification of the general rule, and is seen as reinforcing the ambit of
Section 103.
 While the general burden of proof still lies on the prosecution, Section 105 also creates a
special burden of proof which rests on the accused under Section 105.
o The special burden is that as the accused has taken plea to establish a fact, falling
under the General Exceptions, he must give evidence to prove the same.
 Dayabhai V. State of Gujarat – The Supreme Court noted that there was no conflict
between the general burden of proof and the special burden of proof created upon the
accused. The burden of proof in general always rests on the prosecution, while the special
burden created by Section 105 rests on the accused.
 Vijayee Singh V. State of Uttar Pradesh – it was held by the apex court that if the
prosecution discharged its duty of proving the accused guilty, then the accused may raise the
plea of exception either by pleading the same specifically, or relying upon probabilities. He
may then adduce evidence in support of his plea directly or can choose to rely upon the
prosecutions case itself, or introduce circumstances by way of cross examination, and rely on
probabilities and other circumstances.
 The accused can also choose to discharge his burden under Section 105 by way of
preponderance of probabilities in favor of his plea.

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The burden of proof is always on the prosecution in a criminal trial and only shifts onto the
accused insofar as an accused person may set up the existence of circumstances brining his case
under the general exceptions of the IPC.
Burden Of Proving Fact Within Knowledge (Section 106)
Section 106 addresses the burden of proving facts within the knowledge of any person. It
stipulates that where any fact is within the knowledge of any person, the burden of proving such
fact falls upon such person.
Section 106 only applies to the parties to a suit. It is an exception to Section 101. It is designed to
meet exceptional cases where it is impossible to meet or very difficult for the prosecution to
establish facts which are in the knowledge of the accused.
 Sucha Singh V. State of Punjab – The court held that Section 106 did not exist to relieve
the burden off the prosecution, but that it applied to cases where the prosecution succeeded in
proving facts from which inference could be drawn regarding the existence of other facts,
unless the accused by virtue of special knowledge offered an explanation, enabling the court
to draw a different inference.
 State Of Punjab V. Karnail Singh – If facts within the special knowledge of the accused
wre not satisfactorily explained, then it would be a factor against the accused, even though it
would not be conclusive of his guilt. It would be relevant while considering the totality of the
circumstantial evidence.
Burden of Proving Death (Section 107)
Section 107 addresses the burden of proving death. It stipulates that where the question is if a
person is alive or dead, and has been shown to be alive for the last 30 years, the burden of proof
of death lies on the person who affirms that the person is dead.
Burden Of Proving The Person Is Alive Who Is Unheard Of For 7 Years (Section 108)
Section 108 addresses the burdens of proving that a person is alive when unheard of for 7 years.
It stipulates that where a person has not been heard from in 7 years by those who would naturally
hear of him had he been alive, the burden shifts upon the person who affirms it. Section 108 is
an exception to Section 107.
Both Section 107 and Section 108 act in opposite forces against each other. Both sections
address different aspects of a person’s whereabouts.
 Section 107 maintains that where a person is shown to be alive for the last 30 days, the
presumption will be that the person is still alive, and if any person challenges the same, he
must prove that the party so concerned is dead.
 Section 108 maintains that where a person is missing for 7 years, he is presumed to be dead.
Any person who challenges the same and states that the person is alive must prove the fact. 7
years of absence creates a rebuttable presumption of death.

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 Due to the 7 year time frame, there is a presumption of death, and not of time of death.
To prove time of death, independent evidences will be required.
 The onus of proving that death took place within the 7 year period lies on the person who
claims a right for the establishment of which that fact is essential.
 The presumption raised under Section 108 is a limited presumption, and is only pertaining to
presumption of the factum of death of a person, whose life or death is in issue. The
presumption of facts or circumstances of death is not considered.
Burden Of Proof As To Relationship of Certain Kind (Section 109)
Under Section 109 where certain persons have been shown to act as partners, landlords or
tenants, principle and agent, the law will presume them to be so related, and the burden of
proving that they were never so related falls upon the party who claims as such.
Burden of Proof As To Ownership (Section 110)
Under Section 110, where a person is in possession of anything as an owner, the burden of
proving that he is not the owner, lies on the party who affirms that he is not the owner.
Section 110 gives effect to the principle that possession is prima facie evidence of a complete
title. The possession contemplated is the actual physical possession. Section 110 is not limited to
immovable property. It applies to movable properties as well.
Proof Of Good Faith (Section 111)
Section 111 addresses proof of good faith. It stipulates that where a person stands to another in a
position of active confidence, then the burden of proving the good faith of any transaction
between them lies on the person in active confidence.
 Relations of trust and confidence, include relations between parent and child, lawyer and
client, principle and agent etc.
 In all cases where there is a relationship, the law imposes a duty of good faith, upon the
person occupying the position of trust and confidence, and he will have to prove that he acted
in good faith, before enforcing the transaction.
 Section 111 is based on the principle of equity.
 Krishna Mohan Kul V. Pratima Maity – The court held that the onus of good faith to
prove execution of document in accordance with the law is always on the beneficiary, even if
he is the plaintiff or the defendant.
o Considerations involving judging the validity of transactions between persons
standing in active confidential or fiduciary relationships, competency of persons, age
and legal capacity are very material.

Module 15 – Presumptions
Section 111A to Sections 114A deal with the aspect of presumptions. Presumptions of fact,
law, may presume and shall presume have been addressed under the ambit of Section 3 of
the Evidence Act.

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 Presumption As To Offenses In Disturbed Areas (Section 111A)
Under Section 111A, if a person is accused to have caused an offense under Sections 121, 121A,
122 or 123 of the IPC, or criminal conspiracy, or attempt to commit or abetment of offenses
under Sections 122 to 123, in any disturbed area, and it was shown that the person was in the
area when firearms were used, then it shall be presumed that such person committed the offense.
 There must be a commission of offense, or abatement of offenses under Sections 121, 121A,
122 or 123 of the IPC, or criminal conspiracy.
 The offense must have been in a disturbed area
 Firearms must have been used for the offense.
Presumption of Legitimacy (Section 112)
Section 112 of the Evidence Act addresses presumptions as to legitimacy. It stipulates that the
fact that any person was born
- during the continuance of a valid marriage between mother and any man, or
- Within 280 days of dissolution of marriage with the mother remaining unmarried.
Will be conclusive proof that the child is the legitimate son of the man and wife, unless it can be
shown that the parties had no access to each other, at any time when the child could have been
begotten.
- Section 112, applies only to a married couple, and is an instance of law to further objectives
against the tendency to bastardize the child.
- It makes a presumption in favor of legitimacy of the child.
- The basic rule is that it is undesirable to inquire into the paternity of the child whose parents
have access to one another.
The presumptions created under Section 112 are presumptions of law. The court must thus
presume that a child born under the conditions aforesaid, is legitimate.
Section 112 addresses the following important points:
1. It only refers to the point of time of the birth of the child, as the deciding fact. It doesn’t
consider the time of conception of the child.
2. There is a presumption that when the child is conceived, the husband and wife undertook
sexual intercourse at a time when they were married.
3. The presumption applies with equal force, even if the child is born within few hours or days
after the marriage. A child thus born 2 days after the marriage will be presumed legitimate.
4. Section 112 provides a simple presumption of legitimacy which applies to children born in a
marriage, either conceived before or after the marriage took place.
5. Under Section 122, the only way to rebut the presumption of legitimacy of the child is to
provide proof of non-access between parties to a marriage. Non-access means non-
availability of opportunity for physical intercourse. Proof of non-access must be clear and
satisfactory. (Kanti Devi V. Poshi Ram).

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6. Goutam Kundu V. State of West Bengal – The Supreme Court in this case held that the
only manner in which the presumption under Section 112 can be rebutted would be via
proving non-access. Providing biomedical evidences such as blood test and DNA analysis
would not be allowed.
a. If such evidences are available, the court can consider it as a circumstantial
evidence.
b. The court stated that Section 112 is based on the maxim Pater est quem nuptiae
demonstrat (the father is who the marriage indicates), and that it was an irrebuttable
presumption of law that the child born in lawful wedlock is legitimate and that there
was an access between the parents.
c. The presumption can only be displaced by strong preponderance of evidence and not
by mere balance of probabilities. There had to be a prima facia case that the husband
must establish non-access.
Adultery cannot ben used as a means to rebut presumption of legitimacy.
Proof Of Cession Of Territory (Section 113)
Section 113 addresses the proof of cession of territory. It stipulates that government notification
that any British Territory before the commencement of the Government of India Act 1935 has
been ceded to any native state, province or ruler shall be conclusive proof of valid cession of
such territory on the date mentioned in the notification.
Presumption As To Abatement of Suicide By A Married Woman (Section 113A)
Section 113A addresses presumptions as to abatement of suicide by a married woman. In
such cases, a presumption arises that a suicide with the court having the discretion to presume
(may presume), that a suicide has been abetted by the husband or relatives if the following
conditions are met:
 Suicide was committed within a period of 7 years from the date of marriage
 The husband or relatives subjected the wife to cruelty as under Section 498A of the IPC.
The presumption must be drawn by the court, after having due regard to all the facts and
circumstances of the case. Once the aforesaid conditions are proven, the court may presume
abetment to suicide.
 Suresh V. State of Maharashtra, and Hans Raj V. State of Haryana – The Bombay High
Court, and the Supreme Court respectively held that in cases of abatement to suicide, it is for
the husband to prove that the suicide was due to personal choice of the woman. Where it is
not a suicide, then the presumption of accidental death arises.
Section 113A does not create any new offense, or substantive rights, but is a matter of
procedure and applies retrospectively in operation.
Presumption As To Dowry Death (Section 113B)

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Section 113B addresses presumptions as to dowry death. It stipulates that where the question
is if a person has committed dowry death of a woman, if it has been shown that before her death,
the woman was subjected to cruelty or harassment for dowry demands, the court shall presume
that such person has caused dowry death.
The burden of proof is cast upon the accused to rebut the presumption of the court.
 It is a condition precedent to the raising of presumption that the deceased married woman
was subject to harassment and demands for dowry.
 The prosecution must give evidence of each circumstance to ensure that the court draws the
presumption of dowry death. The presumption will begin if the prosecution can establish the
circumstances in Section 304B of the IPC (State of Karnataka V. MV Manjulathagowda -
-Supreme Court).
 Where the death by strangulation was available along with evidence to show repeated
demands of dowry by the husband of the deceased, it was held that the presumption of dowry
death will apply with full force, making the accused liable under Section 113B. (Hem Chand
V. State of Haryana).
 Presumptions under Section 113B do not stand automatically rebutted merely due to acquittal
of accused under Section 302 of the IPC (Alamgir V. State of Assam – Supreme Court).
Presumption As To Existence Of Certain Facts (Section 114)
Under Section 114, the court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the particular case.
 Section 114 is based on the maxim that all are presumed to have been done correctly.
 The court has the right to make certain presumptions of facts, without the help of artificial
rules of law. Such presumptions are always rebuttable, and can be disproved by facts to the
contrary.
 Based on various factors, if the court deems that a particular fact should exist, it can presume
the existence of the fact.
 For example, there is a resumption that every person is presumed to intend the natural
consequences of his act that he would have known to occur in the natural state of events.
 M Narasingh Rao V. State of Andhra Pradesh – The court observed that Section 114 of
the Evidence Act, gives absolute discretion to the court to presume the existence of certain
facts in the manner specified in the section. It noted that presumption was an inference of
a certain fact drawn from other facts, and that the court is merely applying the process
of reasoning to arrive at a presumption that a prudent man would.
 State of Karnataka V. David Rozario – The Supreme Court held that presumption of facts
are assumptions that result from one’s own experiences during the course of natural events of
human conduct and human character.
Under Section 114, the court may draw presumptions to the following:

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 (a) that a man who is in possession of stolen goods soon after the theft is either the thief or
has received the goods knowing them to be stolen, unless he can account for his possession;
 (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
 (c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good
consideration;
 (d) that a thing or state of things which has been shown to be in existence within a period
shorter than that within which such things or states of things usually cease to exist, is still in
existence;
 (e) that judicial and official acts have been regularly performed;
 (f) that the common course of business has been followed in particular cases;
 (g) that evidence which could be and is not produced would, if produced, be unfavorable to
the person who withholds it;
 (h) that if a man refuses to answer a question which he is not compelled to answer by law, the
answer, if given, would be unfavorable to him;
 (i) that when a document creating an obligation is in the hands of the obligor, the obligation
has been discharged.
Limbaji V. State of Maharashtra – The appellants were charged for murder and robber under
Section 302, 392, read with Section 34. The case rested on circumstantial evidences of recovery
of ornaments worn by the deceased pursuant to information furnished by the accused before the
court.
The Supreme Court observed that in view of the illustrations of Section 114, in the case, the
applicable illustration was that of a man in possession of stolen goods. It stated that the court
may presume that a man in possession of stolen goods immediately after theft, was the thief or
received the goods knowing them to be stolen
Presumption As To Marriage
 A strong presumption arises in favor of marriage, where the partners (man and woman) have
lived together for a continuous period of co-habitation, and treated as husband and wife by
friends and relatives.
 While the presumption is rebuttable, there is a heavy burden on the party seeking to deprive
the relationship of legal origin. The law seeks to favor legitimacy and frown upon bastardy.
Presumptions As To Rape Cases (Section 114A)
Section 114A addresses presumptions as to rape cases. It stipulates that where a woman
alleges that sexual intercourse with a man was without her consent, the court shall presume that
an offense of rape has taken place under Section 375 and Section 376 of the IPC with no consent.
The burden of proof is shifted to the accused to prove the existence of consent of the woman.
 The presumption under Section 114A arises when the person who commits rape, is a police
officer, public servant or jail officer etc, or commits rape on a woman knowing that a woman
is pregnant, or when rape is gang rape.

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 Section 114A was introduced by the 1983 Criminal law amendment due to the fact that it was
extremely difficult for a woman to prove absence of consent.
 Fagnu Bai V. State of Orrisa - Here the court noted that the presumption under Section
114A will also apply to attempted rape cases.

Module 16 – Estoppel
According to the doctrine of Estoppel, there are certain facts which the parties are prohibited
from proving. Estoppel is a legal principle where a person is bound by the representations that he
has made to another person, or arising out of conduct.
Sections 115 to 117 of the Evidence Act deal with estoppel. Section 115 addresses the
general principles of estoppel, while Sections 116 and 117 address instances of estoppel by
contract.
Estoppel is recognized under various other acts such as the Transfer of Property Ct, Contract
Act, Specific Relief Act.
Doctrine Of Estoppel (Section 115)
The doctrine of estoppel under the Evidence Act is addressed under Section 115.
 It stipulates that where a person by declaration, act or omission, has intentionally caused a
person to believe a thing to be true, and that person has acted upon such belief, then he
cannot be allowed in any suit or proceeding to deny such thing said.
 His pleader cannot deny such thing said as well in a suit against the person acting on the
declaration
 Estoppel is not a rule of equity but a rule of evidence based on the maxim that a person
alleging contrary facts will not be heard.
 In the English case of Pickard V. Sears, the court stated that it was inequitable and unjust to
allow a person to deny the truth of a statement which he has made to another, when the other
person has undertaken some action on the statement believing the statement to be true.
 The object is to prevent fraud and secure justice between parties by promotion of good faith
and honesty.
The main ingredients of estoppel are as follows:
 Representation made by one party to another
 The person has acted upon such representation made, and alters his position
 In a suit between the parties, the person who represented as such cannot be allowed to deny
the truth of his explanations.
Representation
The representation of any fact can arise in any way, such as declaration or act or omission.
Anything done which has the effect to create a belief in the mind of the other will suffice.

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 The focus of estoppel is the position in law of party who has been induced to act. A person
estopped may not have the intent to deceive but still will be bound by estoppel regardless of
intent (Surat Chunder Dey V. Gopal Chander Laha).
 Representation of mere intention will not amount to estoppel. However a representation as to
legal effect of an instrument will create an estoppel.
 A representation that arises out of omission to act will lead to estoppel.
 Estoppel can also arise if the failure to perform one’s duty has misled another.
Estoppel representation may be either active or passive. Estoppel by silence arises when there is
a duty to speak or disclose a fact.
Reliance
The second condition required for estoppel is reliance. A party upon hearing such representation
made, must rely upon such statement or representation and undertake an action, for estoppel to
take place.
 Sida Nithin Kumar V. Gujarat University – Mere statement of a person that he will not
assert rights, does not create an estoppel, unless it is intended to be acted upon.
 Suresh Pal V. State of Haryana – The Supreme Court stated that where candidates were
admitted to a physical education course in government schools, the government was
prohibited from derecognizing the course in reference to such candidates, who sought
admission due to having knowledge of the representation made by the government.
Promissory Estoppel
Promissory Estoppel is a part of the doctrine of estoppel. According to the doctrine of
promissory estoppel, if a promise is made in the expectation that it should be acted on, and it has
been acted on, then the party making such promise cannot retract the promise made.
 Promissory estoppel differs from estoppel under Section 115. In the latter, estoppel is to an
established existing fact, while in the former, it is a representation of future intention.
 Even though such future promise is not supported in any point of law, but the promise of a
party, if a promise has been made in circumstances of legal rights and obligations, the party
making such promise must fulfil the promise.
 Promissory Estoppel also is known as equitable estoppel. The doctrine is based on the
concept of equity, to prevent injustice where a party acted on a promise that was made to
him.
 MP Sugar Mills V. State of Uttar Pradesh – The Supreme Court held that the doctrine of
promissory estoppel need not be confined to limitations of estoppel in the strictest of senses.
The Court further stated that, to constitute promissory estoppel a mere promise as to a future
action must be made, in lieu of which the other party has acted on the promise.
 Madhuri Patel V Additional Commissioner Tribal Development – The Supreme Court
did not allow the benefit of promissory estoppel to a candidate who secured admission via
false caste certificates. It was held that the candidate obtaining admission by fraud cannot
claim to continue on the basis of estoppel.

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Exceptions
There are various exceptions to the doctrine of estoppel. They are:
1. No estoppel against a minor – where a minor has fraudulently represented that he is of age,
and induces another party into entering into a contract, the minor will not be estopped from
setting infancy as a plea. However no benefit cannot be retained due to fraudulent conduct.
2. Where true facts are known to both the parties – estoppel does not apply where both parties
know the real facts and is not misled by untrue statements
3. Fraud of the other party – where the other party has committed fraud and acts independently
of such belief, then the doctrine of estoppel will not apply.
4. Where both parties plead estoppel – if both parties plead estoppel and establish a case for
estoppel, both estopples will cancel each other out and the court will proceed as if there was
no estoppel on either side.
5. No estoppel on points of law – No estoppel can be found on a point of law. Estoppel only
relates to a belief in a fact.
6. No estoppel against sovereign / state acts – A rule of law cannot be nullified by resorting to
the doctrine of estoppel.
RS Madnapppa V. Chandrama –In a suit for possession of the plaintiff’s half share a decree
was passed in favor of the defendant. In appeal, it was contended that the defendant was
estopped from claiming his half share as he didn’t reply to a notice from the plaintiff asking him
to join in filing the suit, and he wrote letters to his step mother disclaiming interest in the suit
property
The court held that the conduct in not replying to notice does not mean implied admission of lack
of interest in properties. It further held that the reason of conduct of the defendant in attesting the
will of the father did not justify interference of estoppel. The court noted that as the facts of the
dispute were known to both parties, they could not invoke the doctrine of estoppel.
Estoppel of Tenant And Licensee Of Person In Possession (Section 116)
Section 116 deals with the estoppel of tenants and licensees of persons in possession.
 Section 116 provides that a person who comes into an immovable property, and takes
possession of the property from the person who he accepts as a landlord, is not permitted to
say as against his landlord that he had no title to the property.
 A tenant or licensee is not permitted to deny the title of his landlord or licensor.
 Where the landlord has filed a suit for ejecting the tenant , and for arrears of rent, the tenant
cannot be allowed to state that the landlord had no interest in the property of the suit
 SK Sharma V. Mukesh Kumar Verma – The apex court noted that the respondent was
estopped from alleging the title of the railway administration over premises in question till he
was in possession in view of Section 116 of the Evidence Act.
 The estoppel is confined to the state of things at the commencement of the tenancy or license.
The tenant is free to talk of subsequent developments. After the tenancy has ended, or license
has ended, the tenant is free to deny the title of the landlord.

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 T Lakshmipati V. Nithyananda – Estoppel between the landlord and the tenant ends when
the tenant restores possession by surrender.
Estoppel Of Acceptor OF Bills Of Exchange (Section 117)
Section 117 deals with estoppel of acceptors of bills of exchange.
 Section 117 provides that no acceptor of a bill of exchange can deny that the drawer had the
authority to draw a bill or endorse the bill, but he may deny that the bill was indeed drawn by
the person whom it purports to have been drawn by.
 No bailee or licensee can deny that the bailor or licensor had at the time of commencement of
bailment or license authority to make such license or bailment.
 If a bailee of the goods bailed to another person other than the bailor, then he may prove that
such person has a right to them as against the bailor.

Module 17 - Witnesses and Examination

Bentham has stated that the witness serves as the eyes and ears of justice. If the witness
himself is incapacitated from acting as the eyes and ears of justice, the trial is impacted severely
to the point that it is no longer a fair trial.
Section 118 to 121 along with Section 133 deal with the competency of witnesses and those
who can appear as witnesses in a court of law. The witness must be competent yet not
compellable. The court cannot force a witness to give a deposition. The witness must be willing
to depose before the court on their own.
The law may not compel the witness to answer certain questions. This is known as restricted
compellability, and is conferred on magistrates, lawyers, spouses etc. under Section 124 to
Section 132. Section 134 lays down the rules as to the number of witnesses required in a
case.
Who May Testify And Witness Competency (Section 118)
Section 118 of the Evidence Act addresses who can testify as a witness. It stipulates that all
persons shall be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions.
The inability to answer questions rationally may be due to tender years, extreme old age, disease,
either of the mind or body, or of any other causes of the same kind.
Under Section 118, a lunatic (person of unsound mind) isn’t competent to testify in a court of
law, if he cannot understand the questions posed to him, due to unsoundness of mind.
Dumb Witnesses (Section 119)
Section 119 addresses the competency of dumb witnesses (witnesses who are mute). It
stipulates that any witness who is unable to speak, by reason of dumbness, can give evidence by
any means via which he can make himself understandable such as signs or writings.
Any evidences entered as such will be regarded as oral evidence.
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 Witnesses Being Parties To The Suit, Husbands Or Wives (Section 120)
Under Section 120, in all civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. In criminal proceedings against any person, the
husband or wife of such person, respectively, shall be a competent witness.
 All the parties to the suit, in a civil suit are competent witnesses. Therefore, a party to the suit
can call as his witness, any of the defendants to the suit. Both plaintiff and defendant can
give evidence against each other.
 In all civil and criminal cases, the husband and wife are competent to stand as witnesses
against each other.
Witness Testimony Of Judges And Magistrates (Section 121)
Section 121 of the Act addresses the witness testimony of judges and magistrates. It stipulates
that a judge or magistrate cannot be compelled to give evidence of his conduct, in relation to
cases that are tried by him. The judge or magistrate also cannot be made to depose anything that
he came to know as a result of a court in the course of trial proceedings.
 The judge or magistrate is considered to be a competent witness. He can be a witness to
relevant facts for ordinary matters.
 If the judge is personally acquainted with the material or any particular fact, he may be
shown as a witness in the case, or even if he saw something happen. In such cases, he may
testify to it even if the incident took place when he presided as a judge or magistrate.
 However no judge or magistrate may be questioned as to his judicial conduct or as to
any matter that came to his knowledge while acting as a judge or magistrate.
 The judge may choose to voluntarily waive such privileges, and offer on his own to explain
his conduct as the judge or magistrate. The privileges under Section 121 is also available to
an arbitrator.
Privileged Communications
There are certain matters, which a witness cannot be compelled to disclose. Furthermore, even if
the witness is willing to depose of such matter, he is not permitted to do so. Such matters are
privileged communications and such documents. Matters of such nature would be privileged or
prohibited from disclosure as a matter of public policy, or Supreme interests of the State.
Section 122 to 129 address privileged communications
Communications In The Course Of Marriage (Section 122)
Section 122 addresses communications in the course of marriage. It prohibits the disclosure of
any communication made to parties in the course of marriage, by any person to whom they have
married. Such communications are barred by law except in the following cases:
 If the person who made it or representative consents to disclosure
 In suits involving the married persons
 In proceedings where one married person is prosecuted for any offense against the other.
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Section 122 prevents the communication of anything said between partners in the course of
marriage.
 The intent behind the section, is to maintain the peace of the family. If such statements were
admitted in a court of law, then they would have the tendency to weaken or destroy the
mutual confidence that the spouses and families have placed in each other.
 The protection isn’t confined to cases where the communication ought to be given in
evidence is of a confidential character. However the bar imposed by Section 122 covers all
forms of conversations between husband and wife of any nature.
 The protection is limited to matters communicated during the marriage only. If the marriage
dissolves, any matter said after dissolution or before the marriage will not be protected.
However any matter stated during the course of marriage will still continue to bear the
protection even if the marriage ended.
 If a third party has bore witness to a communication between husband and wife, the
protection will not exist. The third party can give testimony of the communication in a court
of law.
The protection offered by Section 122 isn’t available in the following circumstances:
 Acts apart from communications
 Waiver of privilege
 Suit or criminal proceedings between the two spouses
 Communication before the marriage or after dissolution of the marriage
 Proof of communication by the third person.
MC Verghese V. TJ Ponnan – The husband wrote letters to his wife containing defamatory
imputation of his father in law. The sister-in-law brought a suit in view of the letters. The Kerala
High Court rejected the evidence under Section 122. However the Supreme Court held that the
protection to Section 122 was conferred to statements during marriage, and not before, or after
dissolution.
The court noted that communication did not extend to correspondence. Thus even if a spouse
was debarred from deposing to the contents of such correspondence, the same can be proven by a
third party.
Evidences As To State Affairs (Section 123)
Section 123 addresses evidences as to State Affairs. It protects unpublished records of the
State from being disclosed.
 Section 123 is based on the maxim that Salus Popli est Supreme Lex – The regard to public
welfare is the highest law.
 The rule stands that the witness is bound to tell the whole truth, and produce any documents
in his possession, relevant to the matter at issue.
 However where the production of the document may be adverse to the interest of larger
public interest, state sovereignty, then it need not be produced.

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 The privilege under Section 123 must be exercised by the Minister, his Secretary, or Head or
Department.
 An affidavit must be filed for claiming the privilege. The affidavit must clearly state that the
document has been read carefully and that the department is satisfied that the disclosure of
such document would be detrimental to the interests of the public.
Official Communications (Section 124)
Under Section 124 no public officer shall be compelled to disclose communications made to him
in official capacities, when he deems that public interest would be adversely impacted by such
disclosure.
It is confined to public officers, whereas Section 123 addresses everyone. The court can compel
the disclosures of the document, if the court disagrees with the officer.
Furthermore, people have a right to know how their State is functioning. The State does not have
the right to withhold information on matters unrelated with security or sovereignty.
Information As To The Commission of Offenses (Section 125)
Under Section 125, no Magistrate or Public Officer shall be compelled to say whence he got
information as to the commission of an offense, and no Revenue officer shall be compelled to
state when he got any information as to the commission of offense relating to public revenue.
Section 125 is intended to encourage people to give information about offenses by protecting
their source of information. It is established that the police may suppress the identity of
informants in the interests of combating crime.
Professional Communications Made To Pleader (Section 126) – Client Confidentiality
A professional communication is any confidential communication made between a lawyer an his
client in the course of engaging the services of the lawyer. The privilege attached to confidential
procedures is confined to legal advisors. It does not extend to clergymen.
Section 126 provides that no barrister, attorney, pleader or vakil shall be permitted at any time
unless his client consents, to:
 Disclose any communication made to him in the course and for the purpose of his
employment as such barrister, pleader, attorney or vakil, by or on behalf of his client,
 State the contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment
 Disclose any advice given by him to his client in the course and for the purpose of such
employment
Nothing shall not protect from disclosure
 Communication made in furtherance of illegal purposes
 Any fact observed by barrister in the course of employment, showing crime or fraud being
committed since his employment.

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The scope behind Section 126 is that if the communication to a legal advisor were not protected,
then a man would be fully deterred from disclosing his case, so as to obtain proper professional
aid in a matter that may be addressed in litigation.
Every person however guilty is entitled to a fair trial, and the fair trial involves the service of a
counsel and the counsel cannot defend the client unless he is acquainted with the facts of the
case.
However not every communication is protected from disclosure made to the legal advisor. The
privilege only extends to communications made confidentially in the course of seeking
professional advice (Franji Bhikaji V. Mohan Singh Dan Singh – Bombay High Court).
The protection extends to all communications made in the course of relation to any pending
or contemplated case for soliciting professional advice.
Application Of Section 126 To All Interpreters (Section 127)
Section 127 provides that the provisions of Section 126 shall apply to interpreters, and the
clerks or servants of barristers, pleaders, attorneys and vakils
Privilege Not Waived By Volunteering Evidence (Section 128)
Under Section 128, if a party makes a communication under Section 126, giving evidence of the
matter that has been covered by the communication, it does not amount to a waiver of privilege.
Even if such party calls the lawyer as a witness, it will not amount to consented disclosure as it is
already on the record. If he questions the lawyer on the very matter of communication however,
that will amount to consent and by reason of consent, the lawyer can disclose such information.
Confidential Communications With Legal Experts (Section 129)
The bar imposed by Section 126 is partially removed by Section 129. Under Section 126, a
lawyer is prohibited from disclosing matters which have come from the knowledge of the client
for professional purposes.
Section 129 however, places the client beyond the range of compulsion as to matters which have
passed between him and the legal advisor.
Production Of Title Deeds Of Witness Not Parties To Suit (Section 130)
As per Section 130, an ordinary witness cannot be compelled to produce the following
documents pertaining to title deeds:
 His title deeds to any property
 Any document by which he became a pledgee or mortgagee
 Any document which may incriminate him
He can be compelled however if he agreed to the production of any such document in the court
with the person seeking its production.

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 Production Of Documents Or Electronic Records (Section 131)
Under Section 131 the production of documents or electronic records is addressed. It acts as an
extension to Section 130, in that if any person is entitled to refuse the production of a document,
the protection of the document must not suffer due to being in the possession of another person.
Persons in possession of others documents are not compelled to produce the document unless the
other person consents for the same.
Witness Not Excused From Answering Incriminating Material (Section 132)
Generally the accused in a criminal trial is exempt from answering any question that may lead to
incriminating material against him. The witness however is not excused from answering any
incriminating materials.
Under Section 132, a witness can be compelled to answer any question in either a civil or
criminal proceeding, and cannot be excused from answering the question on the grounds that it
may incriminate the witness.
 It is not in the power of the judge to excuse a witness from answering a question relevant to
the issue.
 However, the witness is protected, in that if he is compelled to give answers, his answers
cannot be used to subject him to arrest or prosecution. The answer cannot be proven against
him in any criminal court.
 Due to the protections given to the witness, he shall be compelled to state the truth. Giving
false statements however will amount to perjury for which he may be charged.
 Section 132 has been designed to not deprive the court of law of any information essential to
reaching the right decision.
The protections given to the witness as to arrest and prosecution however are not available
when the witness answers questions voluntarily which may incriminate him. If he objects to
a question, yet still is asked to give an answer, he is said to be compelled.
Section 132 further does not apply for statements made during investigation under Section
161 of the CRPC.
Compulsion under Section 132 is not the same as compulsion by the law of the land, vis a vis
fear of punishment under Section 179 of the IPC. This compulsion acts against every witness is
inherent due to the idea of a person being called as a witness.
The giving of evidence is a duty, and not a compulsion.
Accomplice As A Witness (Section 133)
Section 133 addresses the accomplice being a witness. An accomplice is a person who has taken
part in the commission of the offense, and is a guilty partner in crime.
 Where an offense has been committed with 2 or more persons, every person involved in the
crime is said to be an accomplice.

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 He is called an approver, if he is granted pardons under Section 306 of the IPC>
 The question arises as to the value of evidence of the accomplice, when he appears as a
witness for the prosecution.
Section 133 stipulates that an accomplice is a competent witness against an accused person. The
conviction will not be illegal merely due to depending on the uncorroborated testimony of the
accomplice.
There is a relation between Section 133 and Section 114 (illustration b).
 Under Section 114(Illustration B), the court may presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars.
 Section 114 however also gives 2 instances, when this does not apply
o When the person of the highest character is charged with death by negligence and
where a person of equally good character taking part in the arrangement admits and
explains the common carelessness of the tow.
o Where a crime is committed by several persons, and some of the criminals are
captured on the spot. Where each gives an account of the incident, and each incident
corroborates each other, in a manner to render previous conduct highly improbable.
Evidentiary Value Of The Accomplice
The evidence of an accomplice must stand the test of verification at key points. This is known as
corroboration. The dangers of an uncorroborated testimony are:
1. The person is a participant in the crime, thus the evidence is tainted and cannot carry the
same value as that of a law abiding citizen
2. He has been faithless to his companions and may be faithless to the court due to motive to
shift guilt and escape
3. IF he is an approver, he has been favored by the State and may testify in favor of the State.
The test of the approver for corroboration is even more stringent in that the evidence must be:
- Reliable
- Materially constructed
- Materially corroborated
Various cases exist for the same on the evidentiary value of the accomplice
- Suresh Chandra Babri V. State of Bihar – The Supreme Court stated that there was a need
to raise a presumption that the evidence of an approver is untrustworthy unless corroborated.
- MO Shamsuddin V. State of Kerala – The Supreme Court observed that Section 133 of the
Act lays down that an accomplice is competent against an accused. The conviction was not
illegal merely due to proceeds on the testimony of the accomplice.
o However there was a rider to the illustration under Section 114, that the court can
presume the evidence of an accomplice to be unworthy of credit, unless there is
corroboration as to the material facts.

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 o The presumption was a precautionary nature incorporating the rules of prudence,
ingrained in the evidence of the accomplice.
o Courts must be guarded in accepting the witness testimony of an accomplice. The
discretion exercised by courts as to the rule of corroboration must be in a sound
reasonable manner.
- Narayan Chetanram Chaudry V. State of Maharashtra
o The court has observed that Section 133 of the Evidence Act provides that an
accomplice is a competent witness against the accused and the conviction was not
illegal merely due to uncorroborated testimony.
o No distinction is made between an accomplice and one who is not an approver.
As both are treated alike, the rule of corroboration applies to both.
o The witness of the accomplice is taken on record as a necessity in cases where it
is impossible to get sufficient evidence of a heinous offense, unless a participant
of the crime discloses the circumstances within his knowledge on account of
tender of pardon.
The following persons are not deemed as accomplices:
 When a person under a death threat commits an offense, where he does not participate
willingly, but is a victim of circumstance
 Where the person has merely witnessed the crime but did not give information of it out of
terror.
 Detectives paid informers and “trap witnesses” are not accomplices. The court may convict
the accused on the uncorroborated testimony of the trap witness if satisfied of their
truthfulness.

Module 18 – Witness Examinations

The method of examining the witness in a court of law is governed between Section 134 to 154
of the Evidence Act.
Number Of Witnesses To Be Examined (Section 134)
Section 134 addresses the number of witnesses to be examined in a case. It stipulates that there is
no particular number of witnesses to be required for any proof of fact. The number of witnesses
required in a case for proving of a fact is left to the judgment of the court.
 In State of UP V. Ajit Singh the apex court noted that the public were generally reluctant to
present themselves before the court for depositions. Thus it was incorrect to reject the
prosecution evidence on grounds that all witnesses are not examined.
 As a general rule, the court may act on the testimony of a single witness uncorroborated, if
the witness is of a sterling quality.
 In Rai Sandeep V. State of Delhi (2012) 8 SCC 21, the apex court has elaborated on the
criteria for Sterling Witness. It held as follows:
o “In our considered opinion, the “sterling witness” should be of a very high quality
and caliber whose version should, therefore, be unassailable.

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 o The court considering the version of such witness should be in a position to accept it
for its face value without any hesitation.
o To test the quality of such a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the statement made by such a
witness.
o What would be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the witness makes
the initial statement and ultimately before the court.
o It should be natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of such a witness.
o The witness should be in a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no circumstance should
give room for any doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have correlation with each
and every one of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific evidence and the
expert opinion. The said version should consistently match with the version of
every other witness
 A single credible witness outweighs the testimony of number of other witnesses of
indifferent character.
 The apex court in a number of cases has stated that conviction is possible on the testimony of
a sole witness. What mattered before the court was not the quantity of witnesses produced,
but the quality and veracity of the witnesses produced.
o If the testimony of a single witness is cogent and straightforward, then and is believed
sufficiently for the prosecution, then the conviction can take place.
 The court cannot be asked to insist on corroboration by other witnesses, especially where the
time and place of the incident are such that other witnesses are not present. However it may
as a rule require corroboration, such as in the case of a child witness.
 Moh. Khalid V. State of West Bengal -The apex court stated that normally the
prosecution’s duty was to examine all eyewitnesses, the selection of which is to be done
fairly and with due care. The court noted that the selection of the witness must be with a view
not to suppress honest opinions, and due care must be taken to ensure that no adverse
inference is drawn to the prosecution.
o The court however noted that no general rule can be laid down that each witness
is to be examined even though the testimony may be material.
o The most important factor is that all witnesses that the prosecution deems as
strengthening his case, have to be examined. The prosecution is at liberty to choose
the witnesses deemed as relevant.
 Evidence is always weighted. A conviction can be on the basis of a sole witness if the
witnesses is found reliable. The reliability depends on the facts and circumstances of the
case.
Order Of Production And Examination Of Witnesses (Section 135)

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Section 135 addresses the order of production and examination of the witness. It stipulates
that the order in which witnesses are to be produced, must be regulated by the law governing
civil and criminal procedures. In the absence of such law, the order of witnesses is at the
discretion of the court.
 Order XVIII of the CPC and Chapter XVIII, XX, XXI, XXII, XXVIII of the CRPC deal with
the matter of witness examination.
 In civil cases, the party who has the right to beginning (on who the burden of proof first lies)
will examine his witness first. In criminal cases, the prosecution is to examine the witness
first.
 Primarily speaking, the advocate has the discretion to determine the order of witnesses to be
called and examined. The order is to be decided by the party leading the evidence.
 The court also has the power to dictate the order in which the witness is to be produced.
Judge To Decide The Admissibility Of Evidences (Section 136)
Section 136 of the Evidence Act stipulates that the judge has the right to determine the
admissibility of evidence.
 Where a party proposes to give evidence of a fact, the judge can ask the party proposing to
give such evidence, in what manner the alleged fact if proven would be relevant.
 The judge if he deems the fact to be proven as relevant, can admit the evidence and if not,
reject the evidence.
 The judge has been empowered as such to ensure that only relevant facts to the dispute are
addressed. The court must determine if an evidence is admissible or not.
 Section 136 also allows the court to control the sequence of production of evidence, in case
the proof of a fact is dependent on the proof of another fact.
o In such cases, the other fact must be proven first to the satisfaction of the court.
o However, in order to show flexibility, the court may allow evidence of the first fact,
without proof of the second.
 Section 136 further lays down that where the relevancy of a fact is dependent on another, the
court may allow the first fact without proof of the second, and may require the second fact to
be proven subsequently.
Chief Examination, Cross Examination And Re-Examination (Section 137)
Section 137 addresses the chief examination, cross examination and re-examination of the
witness. The testimony of a witness is recorded in the form of answers to questions that are
posed to him by the advocates in a court of law.
 The Chief Examination is said to occur where the witness is examined by the party who has
called him to the stand.
o The purpose of the chief examination is to elect the truth and prove the facts which
bear upon the issue in favor of the party calling the witness.
o The witness can only give evidence of fact, and not evidence of the law.

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 The Cross Examination is said to occur where the witness is examined by the adverse party
(prosecution examines defense witness and defense examines prosecution witness).
o The cross examination takes place after the chief examination. The opposite party has
the right to examine the witness.
o The purpose of cross examination is to expose the truth of the testimony of the
witness
o The object serves 3 purposes
 To elicit from adverse witness anything in favor of the party
 To weaken or destroy the force of the witness against the party calling him
 To show that from the present or past attitude and conduct of the witness that
the witness is not worthy of belief either wholly or in part.
 The advocate will seek to discover flaws in the testimony of the adverse witness and will
seek to unmask perjury via the cross examination.
The right to cross examine the witness and the opportunity to conduct the cross
examination must be provided to the party.
 A Re-examination is said to occur, when the party originally calling the witness chooses to
re-examine him. This takes place after the cross examination. The purpose of the re-
examination is to seek clarification of expressions used by the witness in the cross
examination.
Order Of Examination (Section 138)
Section 138 addresses the order of examination. It stipulates that firstly, there shall be a chief
examination of the witness, followed by the cross examination by the opposing counsel, and a re-
examination if the party calling the witness deems is necessary.
The re0examiantion shall be directed to explain matters or conduct of the witness in the course of
the cross examination of the witness. If new matter is introduced during the re-examination with
the court’s permission, then another cross examination by the adverse party can take place.
The following points are important in the case of orders of examination.
1. The cross examination can extend to all the relevant facts, even if said fact wasn’t addressed
in the chief examination.
2. A witness cannot be thrown open to the cross examining. It is essential that the witness must
be put through the chief examination before the cross examination
a. Sukhwant Singh V. State of Punjab – The court noted that where the prosecution
did not examine its witness, but offered for the cross examinations directly, such an
act amounted to abandonment of the witness, and would adversely impact the
credibility of the case of the prosecution.
3. Where the adverse party does not cross examine a witness on any point, it is taken that the
adverse party has accepted the truth as to the concerned point.
4. A cross examinations will always immediately follow the chief examination, unless the court
postpones it.

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5. If a witness after being examined in chief, does not appear to subject him to cross
examinations, the evidence is valueless. It is important that the witness must stand the test of
the cross examination.
6. A co-defendant in a case can be examined by another co-defendant, when their interests are
adverse to one another.
7. The proper limit of re-examination is to confine it to the explanation of matters that were
raised in the cross examination.
8. An order of re-examination can be made by the court on application of a party. It is not
restricted to the suo moto powers of the court.
Ramini V. State of Madhya Pradesh – The Supreme Court has stated that re-examination of a
witness isn’t confined to clarification of ambiguities in the cross examination. New matter can be
brought out with the permission of the court. The court must be liberal in granting such
permissions.
Cross Examination Of Witness Called To Produce Documents (Section 139)
Section 139 prohibits the cross examination of a person who is called to produce documents
before the court. The cross examination of such person cannot take place as by mere production
of documents, the person does not become a witness.
The party producing the documents, must be called as a witness, and must be giving an oral
statement in order to be cross examined. It is necessary that such persocourt
n be called as a witness before the court of law.
Parmeshwari Devi V. State – The Supreme Court held that where the wife of a partner was
called to produce evidence of the dissolution of the firm, she could not be examined as a witness.
Witness As To Character (Section 140)
Section 140 addresses witness as to character. It stipulates that witnesses as to character can be
subject to the cross examination and re-examination as any ordinary witness.
 If a witness is called to give evidence as to the character of a person, such witness can be
subject to the chief examining, as well as cross examination and re-examination.
 The evidence of the character of a person is meant to assist the court in estimating the value
of the evidence brought before the court via a witness.
Leading Questions (Section 141)
Section 141 stipulates that any question suggesting the answer which the person putting it
wishes or expects to receive is a leading questions.
When They Must Not Be Asked (Section 142)
Section 142 stipulates that leading questions cannot be asked, if objected to by the adverse party,
in any chief examination, or re-examination except with the permission of the court.

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The court shall permit leading questions as to matters which are introductory, or undisputed, or
which would have already been proven sufficiently.
When Leading Questions To Be Asked (Section 143)
Section 143 stipulates that, leading questions can be asked in the cross examination
 Leading questions cannot ordinarily be asked in the chief examination. The purpose of the
chief examination is to allow the witness a chance to tell by his own words the relevant facts.
 The witness is presumed to be biased in favor of the party who has called him. For this
justification, leading questions are not allowed in the chief examination, as it may lead to
prompting of the witness.
 Varkey Joseph V. State Of Kerala – The Supreme Court stated that if the prosecution can
ask leading questions to a witness, such action will be detrimental to the concept of fair trial
and against Article 21 of the Constitution.
Evidence As To Matters In Writing (Section 144)
Under Section 144, if the witness is giving evidence as to the existence of any contract, deed,
grant or property disposition, he may be asked if the agreement was in writing or not. If the
witness states that the document was in writing, then the opposite counsel can object to the oral
evidence, until the document has been produced to the satisfaction of the court.
Section 144 lays down a rule for the purpose of carrying out the provisions of Section 91
(exclusion of oral evidence by documentary evidences).
Cross Examination As To Written Statements (Section 145)
Section 145 of the Evidence Act addresses the right of the adverse party to cross examine the
witness as to written statements, and statements given by the witness which have been reduced in
writing.
 The witness may be asked in the cross examination if he made a previous statement in
writing relevant to the matters of the case that are different from what he has deposed in the
court.
 If the statement is intended to contradict the witness, then the witness attention must be
drawn to it.
 The object of Section 145 is to test the veracity and the memory of the witness by
contradicting him in the previous written statement.
 Furthermore, the witness is also given the opportunity to rectify and re-acquaint himself with
the facts that he has said which were reduced into writing, before it may be given in
contradiction against him.
 Rajendra Singh V. State of Bihar – The Supreme Court has stated that if a witness is not
shown, or is not confronted with the written statements that were made, then the
requirements of Section 145 are not in compliance.
 Any statement that the witness made prior to the court, which was reduced into writing
must be presented to the witness in the written form prior to the contradiction.

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 Statements that are used to contradict the witness are not substantive evidences. The purpose
is to merely prove via the contradiction that the witness testimony is not reliable.
Section 145 And Criminal Proceedings
 Evidences that are recorded in a criminal proceeding can be used to contradict the witness
under Section 145.
 Statements made under an FIR can be used, along with statements that are made under
Section 161 of the CRPC.
 Section 162 of the CRPC places a caveat on the statements to a police officer under Section
161 in that they can only be used for the sole purpose of contradicting the witness.
Section 145 and Admissions
 Section 145 does not apply to admissions.
 Admissions proven are admissible evidences, irrespective if the party making the admission
came in the witness box or not, and if he was confronted with the statements or not (Bharat
Singh V. Bhagirathi – Supreme Court).
Questions That Are Lawful In The Cross Examination (Section 146)
Section 146 addresses questions that are lawful in the cross examination. Questions may be
asked to test the veracity of the witness and to test the credibility of the witness.
 Under Section 146, apart from questioning the witness as to the statements deposed before
the court in the chief examination, the adverse party can also ask questions which tend to:
o Test the veracity of the witness
o Test the character of the witness by discovery of who the witness is and his position
in life.
o To shake his credit by injuring his character, even though the answer that he may
give, may incriminate the witness to some penalty.
 The witness is under obligation to answer all questions posed to him, even if it may
incriminate him. The witness may however object to the question on grounds that it is not
relevant to the facts of the case.
 The object of Section 146 is to test the veracity, honesty of the witness, and to advise the
court as to the extent of the credit worthiness of the witness.
 It is common to make inquiries as to the relationship between the witness and the party on
whose behalf the witness has been called to depose, and also inquire of his feelings as to the
party.
 Chari V. State – Allahabad High Court – In this case, the Allahabad High Court noted that
shaking the credit of the witness is to determine if he is a respectable honest man, and if his
conduct is such that he can be trusted to tell the truth in the court.
 The witness cannot be directed toward laying bare with private life.
 Credit is only deemed to have been impacted if it is shown that the witness is not a man of
veracity.
When The Witness Is Compelled To Answer (Section 147)

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Section 147 addresses the circumstances where the witness will be compelled to answer. It
stipulates that if the question posed to the witness is related to a relevant fact, then he must
answer. The provisions of Section 132 will apply in that he must answer all questions
notwithstanding the fact that he may be incriminated.
Court To Decide When And What Question To Be Asked, And When The Witness Is Compelled
To Answer (Section 148)
Section 148 stipulates that the court has the power to determine when a question must be asked,
and when the witness is compelled to answer.
 Under Section 148, if a question is asked during the cross examination which is not relevant
to the facts, but is asked to shake the credibility of the witness, the court may decide as to if
the question must be asked and answered by the witness.
 If the court deems fit, it may warn the witness that he is not compelled to ask the
question.
In regard to determining if witness must be compelled to answer the question, the court must
have due regard to the following:
1. If the question is proper.
a. If the court is of the opinion, that the question is proper, and that the truth of the
question can affect the opinion of the court to the witness, then it should allow the
question.
b. State of Punjab V. Gurmit Singh – In rape cases, the prosecutrix can be examined
as to her connection with the accused. However the cross examination questions
must be of such nature that they do not harass the witness.
2. If the question is improper
a. If the court is of the opinion that the question’s answer will not affect the opinion of
the court, or is of such character that it will not affect the credibility of the witness,
such question will be deemed as improper.
b. If the question is of such nature that it harasses the witness, it can be deemed as
improper.
3. A question will also be deemed as improper, if there is a disproportion between the
importance of imputation and that of evidence.
a. For example, if a person testifies on a minor matter, but is imputed that he was a
member of a gang of robbers, such question will be improper.
4. If the question is proper and the court asks the witness to answer, but the witness refuses,
then the court must deem that there is something unfavorable to the witness that may be
inferred.
Questions Not To Be Asked Without Reasonable Grounds (Section 149)
Section 149 of the Evidence Act further seeks to protect against infringements against the
character of the witness. It stipulates that questions carrying imputation of the witness cannot be

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asked, unless the person asking such question believes that there are reasonable grounds, that the
imputation is well founded.
The basic rationale behind Section 149 is that the questions that are asked which may
impact the character of the witness must only be asked, if there is a reasonable ground to
do so, in the eyes of the adverse party during the cross examination
Procedures Of The Court In Case of Reckless Questions (Section 150)
Under Section 150, if the court deems that a question was asked without a reasonable ground, it
may choose to report the circumstances of the case to the High Court, or other authority to which
the lawyer in question is subject to in exercising his profession.
 Section 150 acts as a penalty against reckless questioning involving unreasonable questions
on unreasonable grounds.
 Advocates who ask such questions shall be deemed guilty of contempt of court, and that the
court may record any question if asked by a party to the proceedings.
Indecent Questions (Section 151)
Section 151 stipulates that the Court may forbid any questions or inquiries which it regards as
indecent or scandalous, although such questions or inquiries may have some bearing on the
questions before the Court unless they relate to facts in issue, or to matters necessary to be
known in order to determine whether or not the facts in issue existed.
Questions Which May Insult Or Annoy (Section 152)
Section 152 stipulates that the court can forbid any question which is asked, purely to insult or
annoy the witness, even if it is on a proper point.
Exclusion Of Evidences To Contradict Answers As To Character / Veracity (Section 153)
Section 153 addresses the exclusion of evidences to contradict answers given as to veracity of
the witness. Where the witness has stated his answers, in response to a question on his character,
to test his veracity, no evidences can be produced before the court to contradict the answers of
the witness.
This prohibition on questioning and producing evidences to the contrary does not exist when the
witness has deposed false. The witness giving false depositions can be prosecuted for giving
false evidences.
Another justification for exclusion of evidences to contradict answers is that, questions as to the
character of the witness are unrelated to the case at hand. Repeated questioning on the character
of the witness would divert the attention of the court, away from the relevant facts and
determining the merits of the case, leading to a suit being prolonged.
State of Karnataka V. Yarappa Reddy – The Supreme Court stated that anything that the
witness has not been questioned about so that there is no answer for contradiction, no
contradiction can be made on said points.

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There are two exceptions however where questions and evidences can be asked and presented to
contradict the answers given by the witness.
 If a witness is convicted of any prior offense, and he denies it, then evidence can be produced
to show the previous conviction.
 If a question is asked to impeach the impartiality of a witness, and he denies the suggestion,
his answer may be contradicted.
Hostile Witness And Questions By Own Party (Section 154)
Section 154 addresses the circumstances where a witness may be questioned by his own
party, other than the chief examination.
 Section 154 comes into being when a witness makes statements that are against the interests
of the party who has made them. This makes it necessary that his own party must cross
examine him to demolish his stand.
 Section 154 stipulates that the court may at its discretion, permit the party who ha called the
witness, to put to him such questions as could be in a cross examination.
 Section 154 affords a party to cross examine his own witness in case the witness deposes
against the interests of the party calling him.
Hostile Witness
A witness who deposes against the interest of the party who has called him, is known as a
“hostile witness”. The term “hostile witness” however has not been used in Indian law,
unlike English law.
A witness cannot be said to be hostile:
 When his testimony is such that it does not support the case of the party calling him, or is not
in accordance with evidence of other witnesses.
 Where he has not been produced out of fear of disfavoring the party producing him.
 Only because he gives inconsistent or contradictory answers.
The determination if a witness is hostile is to be drawn from the manner in which the witness
answers the question, and his attitude, and demeanor. The prosecution witness can be declared
hostile, if he resiles from his previous statements made under Section 161 and Section 164 of the
CRPC.
Permission Of The Court
 The permission of the court to allow the party to examine his own witness is discretionary.
 The court must exercise this discretion liberally whenever the court deems from the witness
demeanor, that such permission is expedient to extract the truth (Sat Paul V. Delhi
Administration – Supreme Court).
 The question of cross examination can be allowed by the court to be asked by the party
calling him, even if the witness is not hostile.

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 When the adverse party has elicited a new matter, in cross examination, then the court may
permit the party examination of the witness to test veracity.
Evidentiary Value of A Hostile Witness
Where a witness has turned hostile, the question arises as to the evidentiary value of the hostile
witness.
 If a witness turns hostile, then the entire testimony of the witness need not be rejected, nor
can the witness be deemed as wholly reliable. The court can rely upon that part of the
testimony which inspires confidence and credit (Rabinder Kaur Dey V. State of Orrisa –
Supreme Court).
 However once a witness has turned hostile, the court must be cautious in accepting his
statement due to self-contradiction, and that portion of the statement which is consistent with
the side of the interest of the party calling him may be accepted. (State of Uttar Pradesh V.
Ramesh Prasad Mishra – Supreme Court)
 The testimony of a hostile witness can be used to the extent to which it supports its own side.
 Leela Srinivasa Rao V. State of Andhra Pradesh – The Supreme Court held that where
some of the witnesses were declared hostile to the prosecution, it did not result in the
evidence being automatically rejected. Even the evidence of a hostile witness if it finds
support from other evidence, may be taken into account.
Impeaching Credit Of The Witness (Section 155)
Section 155 addresses the impeachment of the credit of the witness. Impeaching the credit of
the witness refers to exposing the real character of the witness before the court, such that the
court will not accept the testimony of the witness due to lack of trust.
It may be noted that there are other sections under the Evidence Act by which credit of the
witness is impeached. They include Section 138, 140, 145 and 146.
Section 155 stipulates that the credit of the witness can be impeached by allowing independent
evidences to be led. The credit of a witness may be impeached by the adverse party or by the
party who calls him in the following ways:
 Unworthy of credit – by producing witnesses who testify from personal knowledge of the
witness that he is unworthy of credit.
 Corrupt inducement – By proving that the witness is corrupt, by taking bribes or accepting
the offer of a bribe for giving evidence.
 Former inconsistent statements - By showing former inconsistent statements, the credit of
the witness can be impeached to show that he is not trustworthy.
 Immoral character – If a man is prosecuted for any sex offense, it may be shown that the
victim is of immoral character.
A witness declaring another witness to be unworthy of credit may not, upon his examination-in-
chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and

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the answers which he gives cannot be contradicted, though, if they are false, he may afterwards
be charged with giving false evidence

Module 19 – Rules Relating To Corroboration

Corroboration of evidence refers to evidences which tend to support the testimony of a witness.
The rules governing corroboration have been given under Section 156 to 158 of the Evidence
Act.
Questions Tending To Corroborate Evidences As To Relevant Facts Admissible (Section 156)
Section 156 stipulates that any question that may corroborate evidences as to relevant facts, are
admissible.
 When the evidence of a witness must be corroborated, he may be questioned, apart from the
fact in issue, as to any other matter or circumstance that was connected with the fact in issue,
if the court is satisfied that such circumstances may corroborate the testimony of the witness
as to the relevant facts.
 The court must be satisfied that such question to be posed would corroborate the testimony of
the witness.
 The question can be of any circumstance that would be connected with the fact in issue, or
fact that is in dispute.
Former Statements As Corroboration (Section 157)
Section 157 addresses the corroborative value of former statements of the witness. It stipulates
that, former statements of the witness can be used to corroborate his statements, if the former
statement relates to the same fact, at or the same time when the fact took place, or before any
competent authority to investigate the same.
An example of a former statement allowed under Section 157 includes any statement that is
irrelevant under Section 32, on grounds that the person making such statement survived. Such a
statement can be used to corroborate the testimony of the witness in the court.
Statements At Or About The Time Of Occurrence
 Section 157 provides an exception as to the general rule of excluding hearsay evidences.
However such a statement must be made as early as reasonably possible in the circumstances
of the case.
 The statement must be made in such scenario, that there is no time for tutoring or
concoctions.
 The statement must be made contemporaneous to the event that has taken place.
 Rameshwar V. State of Rajasthan – The Supreme Court allowed the statement to the court
of a victim of rape, to be corroborated with her own statement to her mother, mere hours
after the incident, to the effect that she was raped by the accused.
 If the statement is made to the investigating authority, said statement will be usable
even if it is made after a significant time gap.

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 o Statements made before the investigating officer, in the form of an FIR are not
substantive in nature, but are corroborative in nature, and can be corroborated or
contradicted under Section 145.
Corroboration Or Contradiction Of Statements Of Missing Persons (Section 158)
Section 158 lays down that where the statement of a missing or dead person is relevant
under Section 32 or Section 33, all matters confirming the statement or contradicting the
statement can be proven.
 Evidence can be given of any fact which can either confirm or impeach the credibility of the
witness making the statement in question, to the same effect as if it were done to the original
person who was missing or dead.
 Section 158 places the statement of a missing or dead person in the same category as that of a
person who has been produced in the court for contradicting the statement via previous
statements made by him.
 The missing or dead person’s credibility can be impeached or enhanced as if he were alive.
Rules As To Refreshing Memories (Sections 159 To Section 161)
Sections 159 to 161 prescribe the rules to be followed, to aid in refreshing the memories of
the witness giving testimonies.
Refreshing Memory Using Documents Or Writings (Section 159)
Section 159 enables a witness to look at writings for refreshing his memories. Such writings
include:
 Writings made by him, either at the time of transaction or after the transaction, that the court
deems the transaction to be fresh in the mind of the witness
 Any writings made to another person of the transaction, which was read by the witness
within the time of the transaction
 Any professional books where the witness is an expert.
Section 159 also stipulates that where a witness wishes to refresh memory by consulting any
document, he may do so with the permission of the court, and refer to a copy of the document.
 Any writing can be used for purposes of refreshing memories. These include reports, diaries,
certificates, account books, panchanama, depositions, notes of brief, etc.
 State of Karnataka V. K Yarappa Reddy - The apex court held that the police officer had
the right to consult his special diary for refreshing his memory.
 It is not necessary that the document should be relevant or admissible in evidence, but the
facts attempted to be proven must be admissible under Section 159.
 Even if a panchanama is not admitted in evidence, it can be used to aid the witness in
refreshing his memory.

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 Under Section 159, there is no compulsion on the witness to refer to writings or books. He
has the right to choose to do so if he wishes. The opposite party cannot prevent a witness
from referring to written materials to refresh memories.
Testimony To Facts Stated In Documents Used In Section 159 (Section 160)
A witness may also testify to facts mentioned in any such document as is mentioned in Section
159, although he has no specific recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the document
Rights Of The Adverse Party As To Writing Used To Refresh Memories (Section 161)
Section 161 stipulates that any material or writing that is used under the ambit of Section
159 or Section 160 to refresh the memory of the witness must be shown to the adverse
party.

Module 20 – Rules As To Production Of Documents / Power Of Courts To Put Questions

There are certain rules that must be followed under the Evidence Act, as to the production of
documents. The Act also deals with the power of the courts to put questions to the parties. These
are dealt with under Section 162 to Section 167.
Production Of Documents Mandatory (Section 162)
Section 162 stipulates that where a witness has been summoned to the court, to produce any
document that is in the possession of the witness, he must do so, notwithstanding any objections
he may have as to its admissibility.
 Section 162 places a mandatory obligation on a witness to produce a document whenever
summoned to do so by the court. He must bring the document to the court.
 The witness does not have the right to object to producing the document to the court. Any
objection if present is to be determined by the court. The party does have the right to raise
objections in the court, however such objections will be determined by the court.
 Unless the document refers to affairs of the State, the court can inspect the document to
determine it’s admissibility.
 Order XVI Rule 6 of the CPC also provides that where a party has been summoned to
produced a document, he may be summoned without having to give evidence.
 Order XVI Rule 6 and Section 162 work in tandem with Section 139, which stipulates that a
witness producing a document is not witness by mere production of the document.
Affairs Of State
Under Section 123, unpublished documents which are related to the affairs of the State,
pertaining to state sovereignty or security are protected from disclosure. The court may inspect
any document presented before it, unless it relates to State Affairs.
The court cannot inquire into the possible injuries to public interest which may result from the
disclosure of the document for reason which protection is granted under Section 123.

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In State of Punjab V. SS Singh, the Supreme Court however stated that while the document
cannot be examined due to fear of state security, the court can hold inquiries as to the validity of
any objections raised to its production. This does involve inquiry into determining if the
evidence does related to State affairs under Section 123 or not.
Giving Any Document Called For And Produced On Notice As Evidence (Section 163)
Section 163 addresses the giving of any document as evidence, when it has been called for and
produced on a notice. Section 163 stipulates that where any party has given notice to another
party to produce any document as evidence, and said document has been produced, he is bound
to use it as evidence post inspection if the party producing the document desires.
The fundamental rule in Section 163 is that where a notice is given by a party to another to
produce a document, such document must be used as evidence post inspection by the
calling party.
 Section 163 applies to both Civil and Criminal cases.
 It does not apply when the document has already been produced before the court. It only
applies when the document required has not been proceed by the court.
 The section further applies when the document in question has not been produced in the
court, and the party in possession runs the risk of adverse inference, being drawn against him,
or being barred from producing the document at a later stage.
 Evidence admitted under Section 163 need not be conclusive. The document is only evidence
once it has been inspected by the court, as to its relevancy and admissibility.
 Once the relevancy and admissibility of the document has been declared by the court, the
court will call on the party upon whom the burden of proof lies, to prove the contents of the
documents produced.
Uses Of Document Not Produced On Notice And Bar (Section 164)
Section 164 stipulates that where a party has been served a notice to produce a document, and
such party has refused to do so, then he is barred from producing the document on his own. He
must require the consent of the other party or the court’s permission to produce the document.
For example, if A sues B on agreement, and gives B a notice to produce it. If B refuses to
produce the document, he cannot produce the agreement on his own at a later stage, unless the
court, or A gives permission to do so.
 Section 164 by nature of its bar on production suo moto, on grounds of prior refusal, acts as a
source of penalty for not cooperating with judicial proceedings, on the party served the notice
to produce. The penalty is such that the party who has refused to produce the document, may
loose a valuable
 Shyamdas Kapur V. Emperor (1932 Cal) – The Calcutta High Court has held that Section
164 does not enable the party to seek actual production of the document. It merely
contemplates the fear of disability which may bring a positive response.
Power of the Judge to Put Questions Or Order Production Of Documents (Section 165)

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Section 165 addresses the power of the judge to either put questions or order the
production of documents.
It states that in order to discover or to obtain proper proof of relevant facts, the Judge can ask
any question he pleases, in any form, at any time, of any witness, or of the parties about any fact
relevant or irrelevant.
The judge may order the production of any document or thing. The parties and agents are not
entitled to make such objections to either question asked, or production order without the leave
of the court. The witness can be cross examined as to any answer that he may give.
In Ram Chander V. State of Haryana the Apex Court observed the importance of the judge
taking part in the court proceedings. The court observed:
 Every criminal trial was a voyage of discovery of the truth, and strived to ascertain the truth.
 The judge had to participate in the trial, and show intelligent interest in the witness,
subjecting the witness with questions to determine the truth.
 The judge has a duty to question the parties on points which the lawyers have
overlooked or left obscure or willfully avoided
 The judge must ask questions without trespassing on the functions of the prosecution or the
defense. He cannot frighten or bully the witness and must be neutral in his approach.
 The judge may also ask irrelevant questions, if he believes that such question may lead to the
discovery of a relevant fact.
Section 165 confers wide ambits of power upon the court which are unrestricted. The court can
choose to question the accused as to what was told to the police, even though Section 162
prohibits parties from questioning the accused on that point.
A judge can also look at a police diary and ask questions to the witness on that basis, even if
neither of the parties have requested it. This enables the judge to discovery any instances of
discrepancies in the statements of the witness (Emperor V. Lal Miya)
The answers given by the witness to the judge, can be questioned in the cross examination,
with the permission of the judge.
 The judge must allow the cross examination, to the party where the answers have been
adverse to him.
 The witness must have the freedom to answer or refuse questions put forward to the judge, to
the same extent as if he were protected under grounds of privilege.
Section 165 does not authorize the judge to:
 Compel any witness to answer any question or produce any document, which such witness is
entitled to answer or refuse, under Sections 121 to 131 (privileges) if they were asked by the
adverse party.
 Ask any question which is improper for any other person to ask under Sections 148 to 149
 Dispense with primary evidence of any document, except in cases excepted.

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 Power Of The Jury to Put Questions (Section 166)
Section 166 addresses the powers of the jury or assessor to put questions. It stipulates that in
cases tried by a jury, the jury or assessor can put any question to the witness, through or by leave
of the judge which the judge himself might put, which he considers proper.
Under Section 166 either the judge or the jury can ask questions. In case the jury wishes to ask
questions they must have prior leave of the court.
It may be noted that Section 166 is redundant due to the fact that there are no trials by
jury in India.
No New Trial For Improper Admission Or Rejection Of Evidence (Section 167)
Section 167 stipulates that there can be no new trial due to improper admission or rejection of
evidence, nor can it be a ground for reversal of the judgement, if the court has deemed that there
is sufficient evidence to justify its decision, independent of the improperly admitted or rejected
evidence.
In Section 167, it is crucial to note, that the evidence that was improperly admitted, or was
rejected had it been admitted, would have to be such that it would not impact the decision
of the court.
The rationale of Section 167 is that technical objections cannot prevail where substantive justice
is done.
 Section 167 applies to both civil and criminal cases. The matter of wrongful rejection or
admission of evidence can be raised either before a court of review, or appellate court.
 Section 99 of the CPC also provides that no decision is to be disturbed in appeal unless there
is an error which affects the merits of the case.
 Section 465 of the CPRC provides that a judicial decision can be opened on appeal if there is
a ground of failure of justice.
 Narayan V. State of Punjab – The Supreme Court held that the question under Section 167
was not so much if the evidence rejected would not have been accepted against the other
testimony, on record as whether the evidence “ought not to have varied the decision”.
 The rejection of inadmissible evidence is less injurious to the case than a case where
evidence which is admissible is rejected, as in the former case, in arriving at a decision the
evidence wrongly admitted can be excluded from consideration, whereas in the latter,
evidence wrongly rejected can only be brought on record by having recourse to further
proceedings.
Objection In Appeal to Documents Admitted By Evidence
1. Where evidence is admitted by the court, which is admissible and relevant, with the consent
of the parties, no objection will be allowed to be taken at any stage of litigation on grounds of
improper proof.
2. If the evidence is irrelevant or inadmissible, consent, omission to take objection to its
reception will not make it admissible, and the object can be raised in appeal for the first time.

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3. The question of relevancy is a question of law that can be raised at any stage. The question of
proof however is a question of procedure and stands waived if not raised at the first
opportunity itself.

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