INDIAN

EVIDENCE ACT
Notes for Competitive Exams

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 Indian Evidence Act, 1872
It was that period when Hindu Raj was there, and the source of information relating to the Law of
Evidence was derived from DHARMA SHASTRAS. At that time when the Ancient Hindu Period was
there, kings were the judges of the court, and the court were situated in the royal palaces in the
capital city. King was the judgment maker with the advice of their adviser and the king’s judgment
was the final judgment. The court in Ancient India was not bounded by any technical proceeding for
doing justice to the aggrieved person. The basic consideration was upholding Dharma. Three type
of Evidence recognized that time are-

LEKHYA- Documentary Evidence

SAKSHI- Witness

BUKHTHI- Possession.

Ancient Muslim Period

In this regard, the law of evidence was discussed in the book MUSLIM JURISPRUDENCE written by
SIR ABDUL RAHIM. During this period the Muslim king and emperor established the judicial
dispute resolution system according to Islamic law which was purely based upon the Holy Quran.
Generally, qazi’s were preferred to decide the dispute. Two type of Evidence recognized that time
are-

Oral

Documentary.

British Period

Admissibility of any evidence in courts of law was totally changed in British India after the
introduction of Evidence Act. Before the introduction of this Act, the rules of Evidence were
basically based on traditional legal systems of different social groups and communities of British
India and were different for every person who was of different caste and religion. The Evidence Act
of 1872 is mainly based upon the work by Sir James Fitzjames Stephen. He is also known as the
founding father of this Act.

Introduction to Indian Evidence Act 1872

In India, the Law of Evidence is a very important part of both the system that is civil and criminal.
The enactment of this act is known as the path-breaking judicial measure introduced in India which
changed the entire system of Indian Judiciary. The whole judicial system gets changed after the
enactment of this act because before there was no codified rule or set up rules and regulation for
taking evidence. This act is based on the English law of Evidence. It is not exhaustive in nature. One
of the examples that it is not exhaustive in nature was in 2010, when Information Technology Act
came into existence Indian Evidence Act gets amended with all the electronic records.

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The Law of Evidence is a significant part of any branch of the judicial system irrespective of any
nation, which means the role of evidence is very important statute in every country. But talking
specifically about India the enactment of Indian Evidence Act has changed our judicial system
completely as there were no codified laws relating to evidence which enriched our judicial system
by providing rules and regulations for ascertaining the shreds of evidence. Although the India
Evidence Act is based on English law still it is not fully comprehensive and also it is a ‘Lex Fori’ law
which means law of the land where court proceedings are taken. The term ‘evidence’ is derived
from Latin word i.e., ‘Evident’ or ‘Evidere’ which means ‘to show clearly, or to discover, or to
ascertain or to prove.’

The Evidence act came into force from 1st September 1872 applies to all over India including the
state of Jammu and Kashmir. The limitation of this act does not end here, as it is not applicable to
army & naval law, disciplinary acts and all the affidavits. It is well known that the Law of evidence is
Procedural Law and it only applies to court proceedings but it also has a feature in its some part
which makes it as Substantial Law like Doctrine of Estoppel.

The primary objective of any Judicial System irrespective of any state is to administer justice and
protect the rights of the citizens. For administering justice, every judicial system has to consider the
facts of the cases and has to extract the correct facts for complete justice; and there the importance
of procedural law comes into existence which laws different rules in checking the value of the facts
produced by the law offender and by the victim.

The complete ‘corpus juris’ i.e, a body of laws, is divided into two categories:

Substantive laws- Which mean a set of rules and regulations that govern the society.

Adjective laws- These are the set of rules and regulations which deals with the law governing
procedural aspects such as evidencing, pleading etc.

But the law of evidence neither comes under substantive law nor under procedural law, rather it is
a subject matter of ‘adjective law’, which defines the pleading, evidencing and procedure with
respect to substantive laws. The general meaning of ‘Evidence’ is ‘a body of facts and information
indicating or adjudicating the values of any facts or evidence’.

Definition Clause

Under Sec. 3 of Indian Evidence Act, these are the important definitions -

1. Court
2. Fact
3. Relevant
4. Facts in Issue
5. Evidence
6. References

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Section 3 of the Indian Evidence Act, 1872, defines certain important terms which must be
understood in order to facilitate a better interpretation of the provisions of the Act. Let us look at
some of these important definitions.

Court

The term “Court” is inclusive of the following:

• All Judges
• All Magistrates
• All persons legally authorized to take evidence, except arbitrators

It must be noted that a Magistrate committing a case to the Sessions Court falls within the ambit of
the aforesaid definition of Court. It was held in the case of Atchayya v. Gangayya, (1891) 15 Mad
138 FB. Whereas a Magistrate holding preliminary inquiry under section 164 of the Code of
Criminal Procedure cannot be said to be ‘Court’. It was held in the case of Queen-Empress v.
Bharma, (1886) 11 Bom 702 FB.

Fact

The term “Fact” under the Evidence Act refers to the following:

1. External Facts – Anything or state of a thing or relation of things which is capable of being
perceived by the five senses.
2. Internal Facts – Any mental condition regarding which a person is conscious of.

The section further consists of the following illustrations:

• The arrangement of certain objects in a certain order is a fact

• A man hearing or seeing something is a fact
• A man uttering certain words is a fact A man holding a certain opinion, having certain
intention, acting in good faith or in a fraudulent manner, or using a particular word in a
particular sense, or being or having been conscious of a particular sensation at a given time
is a fact
• A man having a certain reputation is a fact

Events which have neither occurred in the past nor in the present but are likely to occur in the
future does not fall within the ambit of the definition of “Fact” under the Indian Evidence Act, 1872.
It was held in the case of Dueful Laboratory v. State, 1998 Cr LJ 4534 (Raj).

Relevant

Section 3 of the Indian Evidence Act, 1872, defines relevancy as “one fact is said to be relevant to
another when the one is connected with the other in a any of the ways referred to in the provisions
of the Act relating to relevancy of facts.” The said provisions are contained in sections 5 to 55 of the
Evidence Act. A fact may either be logically relevant or legally relevant. Where a fact bears such
casual relation to the other that it renders probable its existence or non-existence, it is said to be a

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logically relevant fact. For instance, where it is to be determined whether A has placed the murder
weapon in the field or not, the fact that B saw A walking towards the field with the murder weapon
is relevant.

The Evidence Act recognizes some of the kinds of causal relations. Thus, those kinds of causal
relations which are recognized by law are known as legally relevant fact. Therefore, while all legally
relevant facts are logically relevant, all logically relevant facts may not be legally relevant. For
instance, an accused gives the following statement- “I have kept in the field the knife with which I
killed A.” While the statement may be logically relevant to establish the guilt of the accused, its legal
relevancy extends to only so far as it confirms the fact that the accused had kept the knife in the
field. This is so because section 27 of the Evidence Act clearly lays down that only that part of the
information may be proved which clearly relates to the fact thereby discovered. It was held in the
case of Monir, M., Principles and Digest of Law of Evidence, 35 (1975); & Pulukuri Kotayya v.
Emperor, AIR 1947 PC 47.

Facts in Issue

The expression “Facts in issue” refers to facts out of which a legal right, liability or disability arises
and such legal right, liability, or disability is involved in the inquiry and upon which the Court has to
give the decision. The question as to what facts may be “facts in issue” must be determined by
substantive law or the branch of procedural law which deals with pleadings. Generally, in criminal
cases the charge constitutes the facts in issue whereas in civil cases the facts in issue are
determined by the process of framing of issues.

Evidence

Section 3 of the Indian Evidence Act, 1872 defines Evidence as – “––“Evidence” means and includes
– (1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.”

Evidence can be said to be any matter of fact which produces a persuasion in the mind regarding
the existence and non-existence of some other matter of fact. Evidence may be oral, which refers to
the testimony of witnesses, or documentary, which refers to the documents and electronic records
tendered before the Court. The guilt of an accused may be proved using circumstantial evidence
also.

Circumstantial evidence refers to the indirect method of proving the guilt of an accused by drawing
inferences from certain facts which are closely related to the facts in issue. However, the standard
of proof required for circumstantial evidence is quite high and courts are usually cautious while
basing convictions upon circumstantial evidence.

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Types of Evidence

According to the definition given in the Indian Evidence Act, evidence can be divided into two
categories:

• Oral Evidence;
• Documentary Evidence.

It should be noted that evidence can be both oral and documentary and also, electronic records can
be presented in the court as evidence, which means that even in criminal cases, evidence can be
presented by way of electronic records. This shall include video-conferencing.

Oral and documentary evidence can be divided into two categories:

• Direct or primary;
• Indirect or hearsay or secondary.

There is also a category of real or material evidence, which is supplied by material objects for
inspection of the Court such as a stolen good or the weapon of offense.

Oral Evidence

Oral evidence renders to the evidence that is mainly words spoken by mouth. It is adequate to be
proved without the support of any documentary evidence, provided it has credibility.

Primary oral evidence is the evidence that has been personally heard or seen or gathered by the
senses of a witness. It is called direct evidence as defined by Section 60 of the Indian Evidence Act.

Indirect or hearsay evidence is generally not admissible in a court of law as the person reporting
the facts is not the actual witness of the facts in issues. However, there are some exceptions made in
the case of hearsay evidence where it is admissible in a court of law. Section 32 and Section 33 of
the Indian Evidence Act, states the exceptional cases of hearsay evidence.

Documentary Evidence

Documentary evidence is the evidence that mentions any issue described or expressed upon any
material by way of letters, figures or marks or by more than one of the ways which can be used for
recording the issue. Such evidence is presented in the form of a document to prove a disputed fact
in court.

Primary documentary evidence includes the evidence that shows the original documents as
mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence is
the evidence that includes copies of documents that can be presented in the court under certain
circumstances or as mentioned in Section 63 and Section 65 of the Indian Evidence Act.

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Direct or primary evidence

Direct Evidence is acknowledged as the most important evidence required for deciding the matter
in issue. Direct evidence directly proves a fact or disapproves of the fact by its virtue. In the case of
direct evidence, a particular fact is accepted directly without giving any reason to relate to the fact.
One does not even need to point out the illustration provided as the evidence given by the witness
in the court of law is the direct evidence which is sufficient enough to prove the matter as against
the testimony to a fact proposing guilt.

Also, at times the rule of best evidence plays an important part in upholding direct evidence in a
court of law. The rule of the best evidence is a rule of law that only includes the primary evidence in
itself. It states that if evidence such as a document or a recording is presented in the court then only
the original ones will be admissible unless there is a reason for not using the original one in the
court.

Indirect evidence

Indirect evidence is that evidence which proves the facts in question by giving other facts that are
indirect evidence and afterwards, proving their relevance to the issue. The deduction that can be
drawn is from such evidence by connecting a series of other facts to the facts in question. These
indirect facts must have been related to the facts in question and have a cause and effect
connection.

Direct evidence is used in two senses:

• As against hearsay evidence

According to this opposition, direct evidence is the evidence given by a fact that is sensed by a
witness with his senses or an opinion held by the witness whereas hearsay evidence is the evidence
that what some other person has told the witness to have seen or heard by the other person. This
differentiation can be noticed in Section 60 of the Indian Evidence Act, where the word ‘direct’ is
used in contradistinction with the term ‘hearsay’ evidence.

• As against circumstantial evidence

Direct evidence is that evidence which goes expressly to the very issue in question and which, if
believed will prove the fact in question without needing any help from any reasoning for example
evidence such as the testimony of an eye-witness to murder, whereas circumstantial evidence will
not prove the issue in question but it ascertains the point only by inference or reasoning.

For example, the evidence of the fact that a person had a motive to murder another individual and
at the time of the murder the person was seen with a dagger, going towards the place of the
murdered individual and shortly afterwards, was seen returning from that very place in blood-
stained clothes, would be called as indirect or circumstantial evidence.

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Difference between direct and circumstantial evidence

As per Section 5 of the Indian Evidence Act, evidence may be presented in a court proceeding of the
existence or non-existence of facts in issue and of such other facts that are considered relevant by
the Act. If the presented evidence relates directly to the existence or non-existence of a fact in issue
then the evidence will be considered direct, but if the evidence relates to the existence or non-
existence of only a relevant fact then it will be considered as indirect or circumstantial evidence.
However, direct evidence as understood by this section should not be confused as defined in
Section 60 of the Indian Evidence Act. According to Section 60, the word ‘direct evidence’ is used as
opposed to ‘hearsay evidence’ and not in contradistinction to ‘circumstantial evidence’ and thus,
going by the section, circumstantial evidence should always be direct as in the facts from which the
existence of the fact in issue is to be established have to be proved by direct evidence and not by
any hearsay evidence.

For establishing proof by circumstantial evidence, four things are required:

• All the facts should be consistent with the theory.

• The circumstances from which the inference for the theory was drawn, should be fully
established.
• The circumstances should be of a decisive nature.
• The circumstances should serve to mean and prove only the theory proposed to be proved
and should not entertain any other theory.
• It is recommended to use both the direct and circumstantial evidence to prove a theory that
is in question in a court of law and no theory prevents the use of both the rules of law in a
case.

And also because using the powers of both circumstantial and direct evidence can have a
considerable effect in restricting the dishonest parties from tampering with witnesses and any
other means of witness. It would have been possible for them to distort the evidence if they had
knowledge.

Evidence is simply everything that is utilized to acknowledge or explain the truth of submission and
every kind of evidence is considered extremely important to determine the outcome of a case.

Whether it is a civil or a criminal case, evidence plays a significant role as the proof of facts will not
be effective without having any evidence. Moreover, the different types of evidence are notable
concerning their relevance and admissibility standards. In simple words, it would be impossible to
determine the results of a case without having any evidence in the case.

Presumptions as to facts (May Presume, Shall Presume & Conclusive proof)

Sec. 4 of Indian Evidence Act, 1872 generally states about presumption in various cases as
discussed in the following cases.

Presumption generally means a process of ascertaining few facts on the basis of possibility or it is
the consequence of some acts in general which strengthen the possibility and when such possibility

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has great substantiate value then generally facts can be ascertained. A presumption in law means
inferences which are concluded by the court with respect to the existence of certain facts. The
inferences can either be affirmative or negative drawn from circumstance by using a process of best
probable reasoning of such circumstances. The basic rule of presumption is when one fact of the
case or circumstances are considered as primary facts and if they are proving the other facts related
to it, then the facts can be presumed as if they are proved until disproved. Section 114 of Indian
Evidence Act specifically deals with the concept that ‘the court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common course of (a) natural
events, (b) human conduct, and (c) public and private business, in their relation to the facts of the
particular case’.

Difference between Presumption of Facts and Presumption of Law

Topic Presumption of Facts Presumption of Law

When presumptions are

When presumptions are
acknowledged without the help
established on the basis of facts or
Definition of proof in certain situations or
groups of facts or from the
circumstances where court me
collection of facts.
presumes some facts itself.

Position of
Uncertain position. Certain and uniform position.
Presumption

They are conclusive

They are always rebuttable and presumption unless proven
Performance can be challenged after with probative evidence.
establishing probative evidence.

Court enjoys discretionary power, Court has no discretionary

Discretionary
either to presume any facts or power, and they are bound to
Power of Court
not. presume some facts as such
facts are presumed itself by the

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 law.

Judicial customs & practices,

They are derived on the basis of
Source of the law under the statues are
natural law, customary practices,
Presumption the only sources of
and general mankind experiences.
presumption of law.

Presumption of Foreign Judicial

Presumption of Innocence,
Records, Presumptions of
Examples Presumption of declared death
Abetment as to Suicide by a
in absentia etc.
Married Women etc.

Difference between May Presume, Shall Presume and Conclusive proof

May presume is a condition when the court enjoys its discretion power to presume any/ certain/
few facts and recognize it either proved or may ask for corroborative evidence to confirm or
reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act
provides that a fact or a group of facts may be regarded as proved, until and unless they are
disapproved. The concept is defined under Section 4 of this act that ‘May Presume’ deals with
rebuttable presumption and is not a branch of jurisprudence.

Whereas, shall presume denotes a strong assertion or intention to determine any fact. Section 4 of
Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any
discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed
facts or groups of facts and regard them as if they are proved until they are disproved by the other
party. Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be
called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable
Presumption of Law’ and tells that it is a branch of jurisprudence.

While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest
presumptions a court may assume but at the same time the presumptions are not completely based
on logic rather court believes that such presumptions are for the welfare or upbringing of the
society. With regards to Conclusive proofs, the law has absolute power and shall not allow any

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proofs contrary to the presumption which means if the facts presumed under conclusive proofs
cannot be challenged even if the presumption is challenged on the basis of probative evidence. This
is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the
Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions related to
the irrebuttable form of presumptions or Conclusive Presumption.

The general definition of Conclusive Proof is a condition when one fact is established, then the other
facts or conditions become conclusive proof of another as declared by this Act. The Court in its
consideration shall regard all other facts to be proved, only if one fact of the case is proven without
any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the
court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he
discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for
paying damages either to his wife or to his illegitimate son. And also explains that he never
consumed his marriage as just after one day of marriage he left his home for his work. But in this
case, the court will conclusively presumed that the son born out of his wife is legitimate because he
was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof
even if he provides probative evidence.

General Classification of Presumption

The traditional approach of common law system has classified presumption only under two
categories that are a presumption of law and presumption of facts but to avoid any ambiguity in
deciding any case the Indian legal system has adopted the third classification that is mixed
presumptions which includes both the aspects of facts as well as law. Hence the existing legal
system has three types of presumptions which are as follows:

1) Presumption of Facts

Presumptions of facts are those inferences that are naturally and reasonably concluded on the
basis of observations and circumstances in the course of basic human conduct. These are also
known as material or natural presumptions. Natural Presumptions are basically instances of
circumstantial evidence as it is believed that it is very good to act in the course of reasoning
where much inferences can be easily concluded from other evidence otherwise it will keep
much ambiguity on the legal system because it will be much more difficult because of the legal
system to prove every fact to capture the offenders or law conflicted member of the society.
Natural Presumptions are generally rebuttable in nature.

There are few provisions that are directly expressing about Natural Presumptions such as Section
86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where Section 113A & 113 B
are one of the most important provisions of presumptions under this Act, whereas Section 86 talk
about certified copies of foreign judicial records, Section 87 expresses presumption of Books, Maps
and Charts, Section 88 deals with presumption related to Telegraphic Messages, Section 90 deals
with documents aged thirty years old, whereas Section 113 A deals with hardcore crime that is
Presumption as to abatement of suicide by a married women and Section 113 B deals with the

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presumption as to dowry death. Under the Presumptions of Facts, the concept of ‘shall presume’ is
utilized. And by the concept, the court will presume that a fact ascertained before them are proven
facts until and unless they are proven disproved by the accused. The concept of ‘shall presume’
expresses that the courts are bound to maintain and recognise some facts as proven by making a
mandatory presumption and the court has to consider them as completely proven until such
presumption are challenged and disapproved. When these presumptions are disproved by the
challenging party then the court has no discretion on maintaining such presumptions.

1.1) Few Conditions Where Court May Use the Presumption of Facts To Ascertain Some Facts:-

Foreign Judicial Records- Section 86 explains the principle that the court has the discretionary
power to make presumptions with respect to the originality and accuracy of the certified copies of a
different foreign country’s judicial records and the called document should be consistent with the
local or domestic rules. The presumption explained under this Section has a very significant role,
therefore, should be complied with it. It is also observed that if the court does not feel that the
foreign judgments are not consistent with the local laws then these judgments lose the evidentiary
values in the court.

Abetment as to Suicide by a Married Women- Section 113A deals with the presumptions of
abetment of suicide of a married woman either by her husband or any of his relatives. The court has
mentioned few essentials to check that whether a suicide executed by married women is
inconsistent with the essentials mentioned under the provision, and if they are consistent to it then
the court in such cases will presume that such suicide has been abetted either by the husband or his
relative. The essentials of this provision are:

(i) The incident of suicide was committed within a period of seven years from the date of her
marriage; and

(ii) Her husband, or his relative, has subjected her to cruelty as according to the Section 498A of
IPC.

In Chhagan Singh v State of Madhya Pradesh, the victim was badly beaten by the accused at some
place and for such guilty act the accused explains the reasons that the victim was stealing rice and
because of it, he has beaten the victim. But just after the few days of the incident victim committed
suicide. The court in this matter acquitted the accused or discharged the accused of offence
mentioned under Section 113A of Indian Evidence Act as the court didn’t find any evidence subject
to cruelty and also mentioned that the essentials of Section 113A are not fulfilled with the facts of
the cases, hence in the case of murder legal presumptions of Section 113A is not a part of it. Because
the death of the person is caused due to other reasons and the legal principles of 113A cannot be
just applied blindly as one has to see the nexus of it. The advantage of the presumption of Section
113A can only be granted if either her husband or any of his relative has treated the women with
cruelty in any sense.

In, Nilakantha Pati v State of Orissa, in this case, the accused married the victim in April 1982 and
has been benefited with a dowry. But later the accused desired to purchase a house, and of the
purpose, he asked the victim to get Rs 70,00 from her parents. When she could not get the amount

11
she was tortured and in 1986 she died. The accused supported his arguments with proper
reasoning and logic that the court found the presumption to be of rebuttable nature. As the
arguments advanced by the accused have enough relevance, the accused was acquitted of Section
113A. The High Court said that they presumption exited here is rebuttable and such presumption
can be escalated whenever the circumstances of the case match the essentials or the interpretation
of the legal provisions. And here, in this case, the accused has disproved all the presumptions of the
court hence, the accused was released.

In, Mangal Ram & Anor v State of Madhya Pradesh, in this case, the wife of the accused was living
with her parents for many years and has no visited her matrimonial home for a long time. But
within one month of returning to her matrimonial home, she committed suicide. Therefore the
court presumed the circumstance that the accused is responsible for the death of the lady and the
case comes under Section 113B of Indian Evidence Act. But the husband and her in-laws proved
that the death was not caused because of the reasons subjected to cruelty. The court in that matter
said that the presumption was of rebuttable nature and the presumption can’t be sustained
anymore, hence the accused acquitted.

Abetment of Suicide to married Women for the purpose of Dowry- Section 114B of Indian Evidence
Act deals with the principles of presumption related to abetment of suicide to married women for
the purpose of dowry. This Section empowers the court to presume that the husband and his
relative are the abettors of suicide and the wife was subjected to cruelty or any torture related to
demand of dowry. While explaining the concept of Section 113B the court explains certain
essentials which are to be fulfilled for raising any presumption related to abetment of dowry death.
The essentials of Section 113B are completely the same as of essentials of Section 113A of Indian
Evidence Act.

But a thin line difference between Section 113A & 114B is that the presumption of Section 114B
only comes to the picture if the prosecution has certain proofs that the cause of death was cruelty
or maltreatment or harassment for dowry demand. Hence, under this Section, the presumption is
carried only when the prosecution proves the case.

In, Hem Chand v State of Haryana, (1994) 3 Crimes 608 (SC) the couple married on 24 May of 1962.
The wife left her husband’s home just after 2 months of her marriage and explained the reason to
her parents that her husband is demanding for a TV and a refrigerator. After listening to such
demands her father out of his hard money gave her around Rs. 6,000 and she left for her
matrimonial home. But the husband’s desire was not finishing and he again asked her to get
twenty-five thousand rupees from her home as he is willing to buy some real estate property.
Thereafter the accused took his wife to her parents’ home and said that he’ll take back her only if he
will be paid Rs. 25,000. One year after she came back to her matrimonial home with Rs. 15,000 and
promised the balance amount will be paid soon. But on the same day, she died of strangulation in
her husband’s home. The trial court and both Supreme Court found accused to be guilty and
convicted on carrying the presumptions that her husband has performed cruelty against her and
the reason for her death could be the husband’s cruelty for the purpose of dowry.

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In Shanti v State of Haryana AIR 1991 SC 1226, The Supreme Court held that the victim’s death
should be soon after the victim was subjected to cruelty or harassment for the purpose of dowry.
But in this matter, the wife was taken back to her home as the dispute was solved by the local
panchayat and this incident happened before 10-15 days of her death. However, the facts seem to
be so clear but the presumption cannot be made as there was no evidence which indicates that she
was treated with cruelty for the purpose of raising dowry when she was taken back to her
matrimonial home. Hence in these circumstances, the presumption for dowry death cannot be
raised and Section 113B of the Indian Evidence Act cannot be brought into action.

In, Baijnath & Others v. State of Madhya Pradesh (2017) 1 SCC 101, Supreme Court expounded that,
“One of the essential ingredients of dowry death under Section 304B of the Penal Code is that the
women must have subjected to cruelty either by the husband or his relatives for the purpose of
dowry soon before her death and bring it as an essential ingredient of Section 304B of IPC the
prosecution has to prove the connection of the victim’s death with the act of cruelty by the husband
or by his relative for the purpose of demanding dowry and the connection must be proved beyond
reasonable doubt then only the court will put the case into the window of Section 113B of Indian
Evidence Act.

May Presume- Section 114 of the Indian Evidence Act deals with the concept ‘presumption of
certain facts by the court’. 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.

Illustrations-

Every negotiable instrument is presumed that it is drawn for the purpose of good consideration.

There shall be continuity of things unless proven contrary like if a property is considered to be an
ancestral property, it shall be presumed that it is so until it is proven contrary to the presumption
(Chito Mahtoo v Lila Mahto).

If a person refuses to answer a question, which is not compelled by the law to answer, the court
may presume that if he answers the question then the answer would be unfavourable to him.

That if a man possesses some stolen goods soon after the theft then it is believed that he is either
the thief or has received the goods knowing the nature of the goods unless he can account for his
possession.

2) Presumption of Law

Presumptions of law are such inferences and beliefs which are established or assumed by the law
itself. It can further be divided into rebuttable presumptions of law and irrebuttable presumptions
of law.

Rebuttable Presumptions (praesumptio iuris tantum): Rebuttable Presumptions are certain

presumption which is regarded as evidence of good quality and does not lose their quality until
proven contrary to the presumption. Although it does not easily measure the extent of such

13
presumption as their validity only exists until they are not proven wrong. The basic example of
rebuttable presumptions can be- if a person who is in possession of some stolen property than it is
quite obvious that he can either be a thief or a receiver.

Matrimonial offences are one of the best examples to explain any presumption because in such
offence the possibility of getting evidence is nearly low as these offences that take place within the
closed area of matrimonial house. Hence the presumption is very important in such cases/offences.
There are broadly three important provisions regarding the presumption in matrimonial offences
which are:

Presumption as to abetment of suicide by a married woman within seven years of marriage covered
under Section 113A of Indian Evidence Act.

Presumption as to dowry death within seven years of marriage covered under Section 113B of
Indian Evidence Act.

Birth during the marriage is the conclusive proof of legitimacy covered under Section 112 of the
Indian Evidence Act.

In, Shanti v. State of Haryana A.I.R. S.C. 1126, the in-laws of the bride did not allow her to visit her
maternal house to meet her parents, and when the bride’s parents came to meet her they were not
permitted to enter the house and complained to them about the amount of dowry that the demand
of scooter & TV was not fulfilled. Soon after the incident, the wife of the accused suffered an
unnatural death. The Supreme Court allowed the presumption stated under Section 113B of Indian
Evidence Act as the death was caused within seven years of marriage and that too just after such
incident prohibited under this Act, and on the basis of applications of this Section one of the in-laws
was convicted for causing dowry death.

In State of M.P. v. Sk. Lallu 1990 Cri. L.J. 129, a newly wedded wife was facing severe beating
regularly by her in-laws from the very first day of her marriage, and at last, she ends up dying with
100% of burn injuries. The Court executed the application of presumption stated under Section
113A and explained that such presumption can be invoked to punish the accused.

Irrebuttable Presumption (praesumptio iuris et de iure)- Such presumptions cannot be ruled out by
any additional probative evidence or argument. Therefore the presumption explained comes under
the roof of conclusive presumption which cannot be proven contrary. Eg. A child under the age of
seven years is presumed that he is not capable of committing any crime.

2.1) Few Conditions Where Court May Use the Presumption of Law To Ascertain Some Facts:

Presumption of Innocence (ei incumbit probatio qui dicit, non qui negat)- According to this legal
maxim, the burden of proof is with the person who declares the facts, not the person who denies
the fact. The presumption of innocence is the legal principle which means every person should be
considered as an innocent person unless it is proven guilty or until court believes that the person is
in charge of acts prohibited under law.

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In, Chandra Shekhar v. State of Himachal Pradesh the High Court made great observations and
mentioned that freedom of any individual is the prime objective of the constitution and such right
cannot be dissolved by any means unless provided by the law itself. It is concluded that unless the
person is proved guilty he must be presumed as innocent.

In, Dataram Singh v. State of Uttar Pradesh & anr., the Supreme Court said that a person should be
presumed and believed to be innocent unless proven guilty.

Birth During Marriage – The Latin maxim ‘pater est quem muptice demonstrat’, explains a basic
assumption that the person who marries women is the father of son/ daughter out of wife. Section
112 of the Indian Evidence Act deals with the legitimacy of a child born during the marriage. The
Section implies that if a child is born during the continuance of a valid marriage between the couple
then it is conclusive proof of that the child is legitimate and the only ground which is available to
either of the parties to prove the illegitimacy is to prove any access to each other in such a way that
their marriage was not consumed. The main objective of the lawmaker institute is to provide
legitimacy to the child born during a valid marriage and the legislature also explains that such
presumption is not only limited to provide legitimacy to the child but also it is to maintain the
public morality so that the legitimacy of the child cannot be questioned.

It must be noted that the application used under the Section 112 derives from Section 4 of the same
Act and must be read together to understand the general applicability Section 4 which expresses
that wherever there is a doubt of the legitimacy of children born during a valid marriage the court
will presume, fact that the person whom the mother married the father of that child. Hence to
achieve the objective of the legislature the court must assume it to be a case of ‘conclusive proof’.
Just like all laws, no law is absolute therefore the legitimacy of such a child can only be rebutted the
party proves no non-access to each other or if no marriage was consumed. Which means even the
DNA test other such tests are not capable of disproving the presumption.

In Revanasiddappa v. Mallikarjun (2011, 11 SCC 1) the Supreme Court opined that: the objective of
the Constitution is broadly expressed in the Preamble of our Constitution which focuses on
equality, equity, equal opportunity and separate individual’s dignity. The Court while adjudicating
such cases must remember the objectives of the constitution that everybody has separate and
individual dignity of his own, therefore the court has to look into the matter that illegal or immoral
or illegitimate relationships of parent do not hinder the dignity of the child born out of such
relationships. As a child born out of such a relationship is innocent and has all the rights
empowered to him under the Constitution and the status of the child must be as equal to as of child
born out of valid marriage.

In Shanta Ram v. Smt. Dargubai, the Bombay High Court expressed its view that the child born out
of void marriages would be deemed to be legitimate child irrespective of any nullity, although such
child would not acquire the same right of succession as the original successor will enjoy.

Gautam Kundu v. State of West Bengal (AIR 1993 SC 2295) the Supreme Court in its observations
expresses that-

Courts have no authority to direct blood test to challenge the legitimacy of the child.

15
The husband has only one possibility to get rid of such presumption and for that, he must satisfy the
court by proving no- access to consume the marriage.

The Court should carefully examine the fact that what will be the consequences if the blood test
comes in favour of a husband who is challenging the legitimacy of the child. And what if the further
consequence has a serious impact on the child’s legitimacy or makes the mother as an impure/
unchaste woman.

Presumption of Death- The presumption of death is explained under Section 107 and 108 of Indian
Evidence Act which refers to a situation when a person has disappeared for many years, and after
such situations the law presumes him to be dead. Section 108 of this Act describes the amount or
the tenure i.e. 7 years, where, there should be no proof of the existence of the person in the society.

In Balambal v. Kannammal A.I.R 1989 Madras 248, the court held that the presumption of death
could only be invoked if the death or inexistence of that person is proved when the presumption is
raised in the court and no person can utilise such presumption for generating any type of death
record of the called person.

In T.K Rathnam v. K. Varadarajulu (1970 A.P 246), the dissenting opinion of the learned judge
explains in his judgment that the presumption of the existence of the person or death of the person
is always rebuttable. He also observed that the accurate timing of death is not a matter of
presumption rather it is a matter of evidence.

Presumption of Sanity- It refers to the mental state of a person facing a criminal trial. Specifically,
the court assumes that every person is sane and is fit to his mental capacity until someone proves
contrary to the assumptions of the court.

Presumption of Constitutionality- The presumption of constitutionality refers to a concept that all

statutes, bills, policies, guidelines etc., drafted by different levels of governments are consistent
with the constitutional requirements. The court generally presumes that the statues are meeting
the constitutional requirements’ and are helping in achieving the constitutional objective. But the
person, who interprets these statues in such a manner which makes such statues contrary to
constitutional requirements, then has to prove the same.

Presumption of Possession- Section 110 deals with such presumption and explains it as when a
person who is enjoying the possession of anything and he claims himself as the owner then the
court inferences that he is the real owner. These are generally rebuttable presumptions and do not
lose their substantiality until they are proven contrary by the affecting party.

3) Mixed Presumptions (Presumption of Fact and law both)

Mixed presumptions is a blend of different concepts explained above in this article. When the court
in its inferences uses such blend consists of different classification of presumption i.e., Presumption
of Facts and Presumption of Law then the presumption is considered to be a Mixed Presumption.
The principles of such presumptions are only reflected in the English which specifically deals with
statute of real property. But in the Indian legal system, the principles of presumptions are

16
expressed specifically and The Indian Evidence Act deals with such principles. The Indian Evidence
Act has mentioned few provisions both for the presumption of law and for presumptions of facts.
The scope of this statute just does not end here rather it also has different provisions which deal
with the discretionary power of Indian Court in raising presumption such as-- Principles of May
Presume, Shall Presume and Conclusive Proof.

In Tukaram v State of Maharashtra 1979 2 SCC 143, This case was decided on considering the facts
of Mathura Rape Case and while adjudicating the case the Court justified the need and necessities of
such presumptions. The Court also explained that Presumptions has a wider scope as they don’t
only help the victim in the fast trial but it also helps in giving direction to the case. Therefore such
presumption can effectively help the judiciary in providing quick and complete justice to the
society. According to Stephen presumption is mandatory, not permissive presumption and
especially permissive is dealt in Section 90 of the evidence act. Permissive presumption means it is
on the court discretion whether to believe or not to believe.

The Relevancy of Facts

Chapter II of Indian Evidence Act, 1872 deals with ‘Relevancy & admissibility of facts’. This chapter
is expanded from Sec. 5 to Sec. 55 of Indian Evidence Act.

Evidence may be given of facts in issue and relevant facts.— Evidence may be given in any suit or
proceedings of the existence or non-existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no others. Explanation.—This section shall not enable
any person to give evidence of a fact which he is disentitled to prove by any provision of the law for
the time being in force relating to Civil Procedure —This section shall not enable any person to give
evidence of a fact which he is disentitled to prove by any provision of the law for the time being in
force relating to Civil Procedure."

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of causing his
death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s
death by such beating; A’s intention to cause B’s death.

(b) A suitor does not bring with him, and have in readiness for production at the first hearing of
the case, a bond on which he relies. This section does not enable him to produce the bond or prove
its contents at a subsequent stage of the proceedings, otherwise than in accordance with the
conditions prescribed by the Code of Civil Procedure.

Relevant fact means when two facts are related or connected with each other so that any inference
can be drawn, one either taken by itself or in connection with other facts, proves or renders
probable the past or present or future existence .i.e, with which we can say such and such fact exist
or does not exist. Evidence may be given of oral and documentary evidence but as per the
procedure laid in CPC and CrPC. Word used in section,” and of no others” clearly embraces the
limitation put on the admissibility of evidences in the court of law. Whether the evidence is relevant

17
and then admissible also. If yes, then court will admit evidence as is mentioned in section 3 about
definition of evidence.

Section 6 of Indian Evidence Act states about ‘Res gestae’,i.e. relevancy of the facts forming part of
same transaction as compared with fact in issue or relevant facts.

Relevancy of facts forming part of same transaction

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times
and places. Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a
relevant fact.

(b) A is accused of waging war against the [Government of India] by taking part in an armed
insurrection in which property is destroyed, troops are attacked, and goals are broken open. The
occurrence of these facts is relevant, as forming part of the general transaction, though A may not
have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between
the parties relating to the subject out of which the libel arose, and forming part of the
correspondence in which it is contained, are relevant facts, though they do not contain the libel
itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.

Indian evidence act is based on English evidence act ,but in section 6 part of same transaction has
been inserted instead of res gestae in order to avoid confusion .

Res gestae (a Latin phrase meaning "things done") General rule is that hearsay evidence is not
admissible but Section 6 is an exception to the rule against Hearsay evidence wherein hearsay
evidence is made admissible. The rationale behind this is the spontaneity and immediacy of such
statement that there is hardly anytime for concoction. So, such statement must be
contemporaneous with the acts which constitute the offence or at least immediately thereafter.
Section 6 lays down that facts which are connected with facts in issue form part of the ‘same
transaction’ are relevant facts. All these facts are therefore, admissible in evidence. The law under
this section applies to civil cases as feel as to criminal cases. Res gestae includes facts which form
part of same transaction. So, it is pertinent to examine what is a transaction, when does it start and
when does it ends. If any fact fails to link itself with the main transaction, it fails to be a res gestae
and hence inadmissible. If any statement is made under the stress of excitement then such
statement form part of the same transaction and is admissible before the court of law. Therefore
the res gastae as “a transaction is a group of facts connected together to be referred to by a single
name such as a crime, a contract, a wrong or any other subject of enquiry which be in issue”—

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STEPHEN. Facts are so connected with other facts as to form the component of the principle fact
and these facts must not be excluded. But if there is an interval, however, slight it may be, which
was sufficient enough for fabrication then the statement is not part of res gastae.. Each case in
criminal law should be judged according to its own merit. When it is proved that the evidence forms
part of the same transaction it is admissible under sec. 6 but whether it is reliable or not depends
on the discretion of the Judge. The test for determining whether a fact forms part of the same
transaction or another “depends upon whether they are so related to one another in point of
purpose, or as cause and effect or as probable and subsidiary acts as to constitute one continuous
action.” To ascertain whether a series of facts are part of the same transaction, it is essential to see
whether they linked together to present a continuous whole.

It implies a fact which though not in issue, is so connected with fact in issue “as to form part of same
transaction” becomes relevant by itself. The expression res gestae as applied to a crime means the
complete transaction from its starting point in the act of the accused until the end is reached. What
in any case constitutes a transaction depends wholly on the character of the act and the
circumstances of the case. It frequently happens that, as evidence of circumstances may be resorted
to for the purpose of proving the commission of a particular offence charged, the proof of those
circumstances involves the proof of other acts either criminal or apparently innocent. In such cases
it is proper that the chain of evidence should be unbroken. The words spoken by the person doing
the act, or by the person to whom they were done or by the bystanders (illustration a ) are relevant
as a part of the same transaction, but it should be borne in mind that such statements or
declarations, as they are called, in order that they might be admissible as res gestae should be
contemporaneous with the transaction in issue, that is, the interval should not be made as to give
time and opportunity for fabrication. In Ratten v The Queen A man was prosecuted for the murder
of his wife. His defence was that the shot went off accidently. There was evidence to the effect that
the deceased telephoned say : “Get me the police please”. Before the operator could connect the
police, the caller, who spoke in distress, gave her address and the call suddenly ended. Thereafter
the police came to the house and found the body of a dead woman. Her call and the words she
spoke were held to be relevant as a part of the transaction which brought about her death. Her call
in distress showed that the shooting in question was intentional and not accidental. For no victim of
an accident could have thought of getting the police before the happening. This then is the utility of
the doctrine of res gestae. It enables the court to take into account all the essential details of a
transaction.

A transaction can be truly understood only when all its integral parts are known and not in
isolation from each other. The Court of Appeal held in another case that a statement made to a
police officer by the victim of an assault identifying the assailant while moving with the police in his
car was relevant as showing that he had seen the victim of an assault and who committed it. In
krishen kumar mallik v/s tate of Haryana 2011 SCC observed, Section 6 of the Act has an exception
to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such
hearsay evidence within the ambit of Section 6, what is required to be established is that it must be
almost contemporaneous with the acts and there could not be an interval which would allow
fabrication. In other words, the statements said to be admitted as forming part of res gestae must
have been made contemporaneously with the act or immediately thereafter, In case of R v.

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Bedingfield a woman, with a throat cut, came suddenly out of a room, in which she had been injured
and shortly before she died, said : “Oh dear Aunt, see what Bedingfield has done to me.” It was held
that the statement was not admissible.

Anything uttered by the deceased at the time the act was being done would be admissible, as, for
instance if she has been heard to say something, as “don't Harry”. But here it was something, stated
by her after it was all over. The statement was also held to be not relevant as dying declaration
because she did not have the time to reflect that she was dying. (good case for criticism)

In case of R v. Christie an indecent assault was made upon a young boy. Shortly after the incident
the boy made certain statements to his mother by which, he described the offence and the man who
assaulted him. The evidence of the statement was excluded. Remarked that the boy's statement was
so separated by time and circumstances from the actual commission of the crime that it was not
admissible as part of the res gestae.

The emphasis of the courts seem to be that “the words should be at least de recenti and not after an
interval which should allow time for reflection and concocting a story.” The statement should be an
exclamation “forced out of a witness by the emotion generated by an event” rather than a
subsequent narrative. The courts have stressing the necessity for close association in time, place
and circumstances between he statement and the crucial events.

It has been held by the Supreme Court in R. M. Malkani v State of Maharashtra, that “a
contemporaneous tape-record of a relevant conversation is a relevant fact. It is res gestae”. In
Uttam Singh vs State of Madhya Pradesh the child witness was sleeping with the deceased father at
the relevant time of incident and was awakened by the sound of the fatal blow of the axe on the
neck of the deceased. Seeing it, the child shouted to his mother for help by naming the accused as
assailant. On hearing the sounds the mother and sisters of the child and other witnesses gathered at
the spot. This evidence was held to be admissible as a part of the same transaction as such shout
was the natural and probable as per the facts of the case. In this case if child witness failed to react
on the spot but spoke later, it could still be admissible under sec 6. In Bishnavs State of West
Bengal, AIR 2006 SC 302 at p. 309 para 27, where the two witnesses reached the place of
occurrence immediately after the incident had taken place and found the dead body of Prankrishna
and injured Nepal in an unconscious state. One of them found the mother of Prannkrishna and
Nepal weeping and heard about the entire incident from an eye-witness and the role played by each
of the appellants, their testimony was held to be admissible under section 6 of the Evidence Act. In
all the cases mentioned above the test applied to make the evidence admissible was to consider that
was the statement was made at the spur of the moment without an opportunity to concoct and
fabricate anything. Where the judges are satisfied that the reaction was the most immediate result
of the circumstances being relevant to the facts in issue, they have allowed such evidence to be
admitted.

Acts or Omissions as Res Gestae

So far as acts and omissions accompanying a transaction are concerned, much difficulty does not
arise. Nature of the transaction itself indicates what should be its essential parts. In case of Milne v

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Leisler a question was whether a contract had been made with a person in his personal capacity or
as an agent of another. The fact that the contractor wrote a letter to his broker asking him to make
inquiries was held to be relevant.

Facts which are the occasion, cause or effect of facts in issue

Sec. 7 of Indian Evidence Act, 1872 states about ‘Facts which are the occasion, cause or effect of
facts in issue.—Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant.’

Important illustrations as given under Sec. 7 of the act are as following –

(a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a
fair with money in his possession, and that he showed it, or mentioned the fact that he had it, to
third persons, are relevant.

(b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or
near the place where the murder was committed, are relevant facts.

(c) The question is, whether A poisoned B. The state of B’s health before the symptoms
ascribed to poison, and habits of B, known to A, which afforded an opportunity for the
administration of poison, are relevant facts.

Section 7 provides for the relevancy of several classes of facts. With the help of all these facts
reasonable presumption can be created about the existence or non-existence of any fact.
Sometimes, it is difficult to prove whether fact forms part of the same transaction, but there are
several collateral facts which are not part of the same transaction, are required to be judicially
considered for ends of justice provided they constitute the occasion, cause or effect or provide
opportunity for the happening of the facts in issue. “Evidence relating to collateral facts is
admissible when such facts will, if established, establish reasonable presumption as to the matter in
dispute and when such evidence is reasonably conclusive.” The relevancy is determined by human
experience. For example, whenever a quantity of blood is found in particular place, a man may
reasonably think and infer that some living being has been cut or it has been seriously injured at
that place. So, the fact as to presence of blood is the effect of some living being having been cut or
injured at that place. Another example is that whether a person has committed a particular crime,
the fact is that he had also committed similar crime in the past. It can be said that the commission of
crime in the past is not relevant under section 6 but is relevant under section 7. The Section 7
therefore provides for admission of several classes of facts under enquiry when they are connected
in particular ways. These modes of connection are:

• As being the occasion or cause of a fact;

• As being its effect;
• As giving opportunity for its occurrence; and
• As constituting the state of things under which it happened.
1. Occasion

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Evidence relates to set of circumstances which constitute cause and occasion for the happening of
facts in issue is relevant. The cause and effect of particular fact in the past will have the same cause
and effect in future.

2. Effect

An effect is the ultimate result of an act done, which not only keeps records of the happening of the
act but also provides helps to know the nature of act. So, the facts which are the effects, immediate
or otherwise of a fact in issue or relevant fact, are relevant under section 7. Illustration (b) states
that the marks near the place where the murder took place are instances of murder. The marks or
foot prints is relevant as an effect. Similarly, the effect of conversation may be proved with the help
of Tape recorder. In Yusufalli Esmail Nagree v The State Of Maharashtra on 19 April, 1967. A report
of S, that the appellant had offered a bribe to him, which S did not accept, the Police laid a trap.S
called the appellant at his residence and in the room where they alone were present, the appellant
handed over the bribe to S. In the room a microphone of 'a tape recorderwas concealed and their
conversation recorded. The Police officers and the radio mechanic kept concealed in another room.
S was the only eye- witness to the offer of the bribe and the tape was kept in the custody of the
police inspector but was not sealed.

The appellant was convicted under s.165(A) of I.P.C., which the High Court upheld. In appeal, this
Court held: The conviction must be upheld. The imprint on the magnetic tape is the direct effect of
the relevant sounds. Like a photograph of a relevant, incident, a contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act. The
time and place and accuracy of the recording must be proved by a competent witness and the
voices must be properly identified. One of the features of magnetic tape recording is the ability to
erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence,
must be received with caution.

The court must be satisfied beyond –reasonable doubt that the record hasnot been tampered with.

3. Cause

Cause often explains why a particular act was done. A student was charged for trespassing girls’
hostel at night. The fact is that the coat of the student (accused) was recovered from the room of
a girl who was his classmate. The recovery of coat is relevant and shows the cause.

4. Opportunity

Facts affording opportunity for occurrence of the fact in issue are the relevant. Illustration (c) refers
to circumstances for administering poison is relevant. An opportunity may be either mere
opportunity or exclusive opportunity. Mere opportunity for a person to do something which may
give rise an inference that he did it is relevant. In exclusive opportunity it proves conclusively that
the act was done by the person having exclusive opportunity to do it. The evidence of a woman who
was alone in the house on particular day was held admissible to show that it afforded an
opportunity to the accused to commit rape, is relevant under section 7 of the act.

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Footprints; Evidence that there were footprints at or near the scene of an offence or that these
footprints came from or led to particular place is relevant under section 7 and section 45.

5. State of things

The state of things means the set of facts which has to be placed before the court as a background in
order to make principal fact intelligible to them. It is relevant.In Ratten v/s Regnam accused was
prosecuted for shooting down his wife and he took the defence of accident,thefact that accused was
unhappy with his wife and he was carrying an affair with another woman was held to be relevant as
it constituted the state of things in which the principal fact, namely, the shooting down happen.

Motive, preparation, previous and subsequent conduct are relevant

Sec. 8 of Indian Evidence Act, 1872 states that the facts showing motive, preparation, previous and
subsequent conduct are relevant.

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto,
and the conduct of any person an offence against whom is the subject of any proceeding, is relevant,
if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.

Explanation 1.— The word “conduct” in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this explanation is not to affect
the relevancy of statements under any other section of this Act. Explanation 2.—When the conduct
of any person is relevant, any statement made to him or in his presence and hearing, which affects
such conduct, is relevant. Illustrations

(a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had
murdered C, and that B had tried to extort money from A by threatening to make his knowledge
public, are relevant.

(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact
that, at the time when the bond was alleged to be made, B required money for a particular purpose
is relevant.

(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured
poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the Will of A. The facts that, not long before
the date of the alleged Will, A made inquiry into matters to which the provisions of the alleged Will
relate, that he consulted vakils in reference to making the Will, and that he caused drafts or other
Wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime. The facts that, either before or at the time of, or after the alleged
crime, A provided evidence which would tend to give to the facts of the case an appearance

23
favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or
procured the absence of persons who might have been witnesses, or suborned persons to give false
evidence respecting it, are relevant.

(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A’s
presence—"the police are coming to look for the man who robbed B”, and that immediately
afterwards A ran away, are relevant.

(g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend him
money, and that D said to C in A’s presence and hearing—“I advise you not to trust A, for he owes B
10,000 Rupees”, and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime. The fact that A absconded after receiving a
letter warning him that inquiry was being made for the criminal and the contents of the letter, are
relevant.

(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he
absconded, or was in possession of property or the proceeds of property acquired by the crime, or
attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the circumstances under which, and the terms in which, the
complaint was made, are relevant. The fact that, without making a complaint, she said that she had
been ravished is not relevant as conduct under this section, though it may be relevant as a dying
declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he
made a complaint relating to the offence, the circumstances under which, and the terms in which,
the complaint was made, are relevant. The fact that he said he had been robbed, without making
any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying
declaration under section 32, clause (1), or as corroborative evidence under section 157.

• Motive

Motive, generally means that which moves or induces a person to act in a certain way; a desire, fear,
reason etc. which influences a person’s volition; motive is productive of physical or mechanical
motion. Sometimes mere animus such as spite or ill-will, wanton desire to harm without any view
to personal benefit is meant. But motive is often used as meaning, purpose, something objective and
external as contrasted with a mere mental state. The Supreme Court of India has said motive is
something which prompts a man to form an intention and knowledge, is an awareness of
consequences of the act. Motive is a moving power which impels action for a definite result or to
put in differently, motive is that which incites or stimulates a person to do an act. In law, especially
criminal law, a motive is the cause that moves people and induce a certain action. Motive in itself is
seldom an element of any given crime; however, the legal system typically allows motive to be
proven in order to make plausible the accused's reasons for committing a crime, at least when those
motives may be obscure or hard to identify with. There can hardly be any action without motive. If

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the offence has been committed voluntarily then presence of motive cannot be declined. Since
motive sometimes play a very important role in criminal cases, its relevancy is drawn by the courts
and supplied as evidence. In a case where there is a clear proof of motive for the commission of
crime, it supports the findings of the Court proving the accused guilty of the charges leveled against
him or her. In Kundula Bala Vs State of A.P 26 March, 1993 SC: In this case the son-n-law before his
marriage to the demanded a piece of land from the deceased. The connivance of the mother-n-law
was also there before this demand. The marriage took place but the deceased refused to transfer
the property in the name of the accused and wanted to give it to the daughter. That infuriated the
accused and crime was committed. It was held that there was a strong motive for the accused to
commit the crime.

• Preparation

Any preparation before crime is committed is also relevant under section 8.. The Supreme Court of
India interpreted the word preparation as the word preparation denotes not only to action or
process of preparing the components to produce the compound, but also that which is prepared.
Preparation consists in arranging or devising the means necessary for the commission of a crime.
Every crime is necessarily preceded by preparation. To commit a crime, an offender requires
various means. Preparation can be said to the process through which such means are arranged to
drive them in order to achieve the ultimate aim that is the motive behind such act. When a question
as to whether a person has done a particular act or not, the fact that he made certain preparations
which is related to his act, would certainly be relevant for a purpose of showing that he did it. The
illustrations (c) and (d) as given in the explanation attached to section 8 would be very relevant to
be referred. Illustration (c) reads A is tried for the murder of B by poison. The fact that, before the
death of B, A procured poison similar to that which was administered to B, is relevant. R v. Palmer
wherein accused purchased poison is held to relevant as preparation. The given illustration is self
explanatory and clearly reveals the importance of preparation as relevant evidence. The
preparation on the part of the accused may be reflected in various stages namely to accomplish the
crime, to prevent the discovery of crime or it may be to aid escape of the criminal and avoid
suspicion.. Mohan Lal Vs Emperor AIR 1937 Sind 293: The accused was charged with cheating for
importing goods in Karachi port without paying the proper custom duty. Evidence was adduced of
previous visit of the accused to the port of Okha, where it was said he tried to make some
arrangements with the customs whereby he could import other goods without payment of proper
duty. The evidence was held to be admissible as they were the preparation being made out by the
accused in order to do the wrongful act.

• Conduct

The conduct of the party, conduct of any agent of the party, conduct of the accused influences or is
influenced by any fact in issue or relevant fact, such conduct is relevant fact.

Conduct previous or subsequent is relevant.

A conduct to be relevant need not be only previous or subsequent. Both are relevant. Under section
8 previous declaration of intention, threat or attempts to commit an offence are instances of

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previous or antecedent Conduct and are relevant. In antecedent conduct there is declaration of
intention or threat. Such type of conduct may influence or is likely to influence the fact in issue or
any relevant fact. A woman and her paramour were accused of murdering her husband. She had
been heard to say of her husband. “I live a most unhappy life with him. I wish his death. If he cannot
die I will kill myself.” It is relevant Subsequent conduct of a party or person or his agent is relevant
under the section. Sudden change of life, silence on part of the accused, false statement, suppression
of evidence, running away after occurrence are instances of subsequent conduct. Illustrations (f),
(h) and (i) explain the same. Presence of accused at a place where ransom demanded was to be
fulfilled and then action of fleeing on spotting the police party is a relevant circumstances and is
admissible under this section.

In R v. Palmer accuse tried to bribe the post boy to overturn the carriage in which jar was being
conveyed, to be analysed in London, and from which evidence might be obtained of his guilt. And
other acts of accused were considered as conduct and relevant under section 8 of act.. In terrorist
attack in parliament the accused has purchased ingredients from a shop used IEDS and found in
possession of deceased terrorists. The name of the shop and address were already known to the
police as name and address of the shop was already mentioned on packets seized. It was held that
the conduct of accused in pointing shop and its properties was relevant under this section.

Mere statement is not admissible according to Explanation 1 to Section 8. It lays down that the
conduct does not include statements. But the explanation is an exception to this rule. “The
statement and the Act which are explained and accompanied by such a statement both are relevant
as a composite whole.” Those statements which accompany and explain acts, other than statements
can be regarded as conduct. For example, a girl was raped and she made a complaint about it to her
mother. The circumstances under which and the terms in which the complaint was made, is
relevant. It is not necessary that a complaint to be relevant should have been made only to police
station.– But false explanation of the accused is also conduct and relevant. Similarly, the accused
was charged with gross indecency with a boy of fifteen. Shortly after the offence a complaint was
made by the boy to his parents. The particulars of the complaint were held to be relevant.

In Queen-Empress v Abdullah on 27 February, 1885 ALL High court. Question in reference was
about admissibility of section 8 or section 32 against accused wherein deceased was attacked by
her throat by accused . And deceased before her death was not able to talk but with the help of her
mother who supported her elbow narrated by way of signs/(by waiving her hand ) the name of
accused. Majority view was about the admissibility of section 32 but minority view was about the
admissibility of section 8. t was discussed that any conduct on the part of the deceased in this case,
which had any bearing on the circumstances in which she met her death, would be relevant. But the
state of things is this. She, being in a dying state at the hospital, made, in the presence of certain
persons, the signs which have been referred to. It is clear that, taking these signs alone, there is
nothing to show that they are relevant, because there is nothing which connects them with the
cause of death. Then it is argued that since conduct is relevant under certain circumstances, you
may with reference to Explanation 2 of Section 8, prove any statements made to the person whose
conduct is in question. In order to decide this point the language of Section 8must be carefully
considered. It is to the following effect: "The conduct of any party or of any agent to any party to

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any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue
therein or relevant thereto, and the conduct to any person an offence against whom is the subject of
any proceedings, is relevant, if such conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto. Explanation 1.- The word
'conduct' in this section does not include statements, unless those statements accompany and
explain acts other than statements; but this explanation is not to affect the relevancy of statements
under any other section of this Act. Explanation 2 – When the conduct of any person is relevant, any
statement made to him or in his presence or hearing, which affects such conduct, is relevant." Now
the question here in issue is--Did Abdullah kill the deceased by cutting her throat'? The only
conduct which is alleged on the part of the deceased is, that she moved her hand in answer to
questions put to her by some of the persons at the hospital. If we went no further than this, there
would be nothing to show that her conduct in lifting her hand either influenced or was influenced
by the fact in issue,--i.e., the cutting of her throat. Then Explanation 2 is brought in; but it is obvious
that before you can let in the words of a third person, you must show that the conduct which they
are alleged to affect is relevant. And in the present case it is clear that until you let in the words, the
conduct is not relevant, and therefore the words cannot be let in because the condition precedent to
their admissibility has not been satisfied, and that not having been done, their whole basis fails.

Explanation 1 of Section 8 points to a case in which a person whose conduct is in dispute mixes up
together actions and statements; and in such a case those actions and statements may be proved as
a whole. But where the statement is made merely in response to some question or suggestion, it
shows a state of things introduced, not by the fact in issue, but by the interposition of something
else. For these reasons majority hold that signs made by the deceased cannot be admitted by way of
"conduct" under Section 8 of the Evidence Act refer to Illustration (f) of Section 8, which runs thus:

The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence--'the
police are coming to look for the man who robbed B,'--and that immediately afterwards A ran away,
are relevant. Minority hold that the signs made by the deceased were the conduct of a "person an
offence against whom was the subject of any proceeding," and that they are therefore relevant
under Section 8 of the Evidence Act. There remain the question, whether the questions put her was
admissible, and whether she can be considered to have adopted the statements which they implied.
Now, Explanation 2 to Section 8 provides that "when the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which affect such conduct, is relevant."
Minority hold that conduct of the person an offence against whom is being investigated is relevant.

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

Section 9, Facts necessary to explain or introduce a fact in issue or relevant fact, or which support
or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of
anything or person whose identity is relevant, or fix the time or place at which any fact in issue or
relevant fact happened, or which show the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary for that purpose. Illustrations

(a) The question is, whether a given document is the Will of A. The state of A's property and of
his family at the date of the alleged Will may be relevant facts.

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(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be
libellous is true. The position and relations of the parties at the time when the libel was published
may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A
and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there
was a dispute may be relevant if it affected the relations between A and B.

(c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded
from his house, is relevant, under section 8, as conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home, he had sudden and urgent business at the place to
which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of
the business on which he left are not relevant, except in so far as they are necessary to show that
the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A.C ., on leaving A's
service, says to A— "I am leaving you because B has made me a better offer”. This statement is a
relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife.
B says, as he delivers it—" A says you are to hide this”. B's statement is relevant as explanatory of a
fact which is part of the transaction.

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

When certain fact can explain any fact in issue or any relevant fact, and by such explanation the
parties can support or rebut any inference drawn from such facts, then these types facts are called
as explanatory facts, and they are thus relevant. Explanatory facts are those facts which can explain
a fact which is already taken and inference are drawn from such facts e.g A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant under
section 8, as a conduct subsequent to and affected by facts in issue. However, the fact that, at the
time when he left home he had sudden and urgent business at the place to which he went is
relevant, as tending to explain the fact that he left home suddenly. The details of the business on
which he left are not relevant except in so far as they are necessary to show that the business was
sudden and urgent.

Introduce a fact which ultimately assert or deny any fact in issue or relevant fact, A sues B for
inducing C to break a contract of service made by him with A. C, on leaving A’s service, says to A – “I
am leaving you because B has made me better offer.” The statement is a relevant fact as explanatory
of C’s conduct which is relevant as a fact in issue. Support or rebut an inference suggested by a fact
in issue or relevant fact, means which supports or props any fact in issue or fact. A, accused of theft
is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it “A
says you are to hide this.” B’s statement is relevant as explanatory of a fact which is pat of the
transaction. Establish the identity of any thing or person means whose identity is relevant, for
example fact that some witnesses identified the accused during Test identification Parade (TIP) is
relevant under this Section.

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When question is about time or place at which any fact in issue or relevant fact happened, Post
mortem report or other scientific reports, fixing the time of murder etc., through some process are
relevant. For example, B, the diseased was last seen taking food at 8 PM. His dead body was
recovered next very morning at 6 from agriculture field. Undigested food was found in the stomach
of the diseased. It will be concluded that death must have happen within 6 hours of his taking of
food i.e. his death must have caused somewhere between 8 PM to 2 AM of the early morning. In
Ram Lochan v State of West Bengal, A.I.R 1963 SC 1074 held that superimpose photograph of the
deceased over the skelton of a human body recovered from a tank was admissible under section 9
which gives identity of a thing show the relation of parties by whom any such fact was transacted. A
is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are
relevant as explanatory of the nature of the transaction. In State Of Rajasthan v Sohaniya on 30 May,
2007 it was held by court that, Credibility of an eye witness with regard to identification of the
accused, ornaments, opium and other stolen properties, the Courts take into account the sound
principles of the Criminal Jurisprudence, which are based on the test identification of recoveries,
footprint marks etc., to substantiate the direct evidence.

Section 9 of the Evidence Act which defines facts necessary to explain or introduce relevant facts,
says that if any fact which establishes the identity of any person or thing, whose identity is relevant,
is admissible. This is commonly known as test identification proceedings, which is conducted
mainly for two reasons; firstly for the satisfaction of the investigating officer regarding the bonafide
of an eye witnesses and secondly reliability of the witness is confirmed by the court when they are
put through the process of test identification proceedings before a magistrate or other independent
persons. The procedure of test identification is that it should be conducted as far as possible
immediately after the arrest of the accused so that the memory of an identifier remains fresh and
there should be no special mark on the face or body of the accused persons and identifier may not
have any opportunity to see the things or persons to be identified before it is held. This evidence of
test identification is supporting to the substantive one. Where accused is already known to witness
there is no need of such identification. About test identification parade supreme court of India in
State of U.P.Vs. Sukhpal Singh and Ors. 2009 AIR SC briefed as wherein The prosecution version, as
set up in the first information report by Shri Bhagwant Singh, PW2 is that on1.9.1979 at about 7.45
p.m. in the evening, Hiralal Yadav, the elder brother of the complainant, Kundan Singh, Chhabi Nath
Singh, Tikam Singh and Chandan Giri were sitting in the open area of the house of Bhagwant Singh.
Aidal Singh, the younger brother of Hiralal and the ladies of the family were inside the house. At
that time, about 10 to 15 persons armed with country-made pistols, guns and other weapons
entered the house of the complainant. They came for committing dacoity as mentioned in the FIR.
They started indiscriminate firing and in the process they killed Hiralal and Aidal Singh and injured
Smt.

Longshree and Chandan Giri. It is further disclosed in the FIR that the miscreants inquired about
the property articles from Suit. Longshree and looted licensed single barrel gun of Aidal Singh and
some other articles, the details of which were not given in the FIR. There was moonlight and lantern
light at the spot where the incident had taken place. Amongst the miscreants, accused Sukhpal,
Harpal, two brothers, sons of Rabti Singh, Ajanti, resident of village Sikanderpur and Munna Giri,
resident of Sitapur have been identified in the moonlight and the lantern-light. According to the

29
prosecution, they remained on the spot with other miscreants for about half an hour.It is stated that
the incident had taken place on 1.9.1979 at 7.45 am and the FIR was lodged at 9.15 p.m. on the
same night. The case against the accused persons was registered and investigated. The injured eye
witnesses were medically examined on the same night at the Primary Health Centre,Sikandrarao by
Dr. S.K. Jha. The condition of Hiralal and Aidal Singh was precarious and their dying declarations
were recorded at Sikandrarao by Shri Ram Autar Saxena, Tehsildar Magistrate, PW9.

Later on, both Hira Lal and Aidal Singh succumbed to their injuries.Hon'ble Judges: Dalveer
Bhandari and Harjit Singh Bedi said, “Test identification parade not necessary when the accused
persons are well known to the eyewitnesses.’’ In the instant case, all the witnesses have stated that
they had otherwise known the accused persons and they were not strangers to them. In the
moonlight and lantern light they clearly identified them. Therefore, the test identification parade
was really not necessary in this case. In this case, all the witnesses have categorically stated that the
accused persons committed dacoity and killed Hiralal and Aidal Singh and injured Smt. Longshree
and Chandan Giri in the incident. There was adequate light in which they had recognized these
accused persons who were otherwise known to them. The High Court erroneously set aside a well
reasoned judgment of the trial court which is based on correct evaluation of evidence of injured
eye-witnesses and other witnesses and dying declarations on record. In the instant case, before the
trial court an application was filed that the accused persons ought to have been charged under
Section 302 IPC instead of Section 396 IPC which was rejected by the trial court on the ground that
the accused persons were justifiably charged under Section 396 IPC. The conducting of test
identification parade depends on the facts and circumstances of each case

The things said or done by conspirator in reference to common design

Sec. 10 of Indian Evidence Act, 1872 states that the things said or done by conspirator in reference
to common design

Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the persons believed to so
conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it.

Illustration:

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the
Government of India. The facts that В procured arms in Europe for the purpose of the conspiracy, С
collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay,
E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at
Kabul the money which С had collected at Calcutta, and the contents of a letter written by H giving
an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to
prove A’s complicity in it, although he may have been ignorant of all of them, and although the

30
persons by whom they were done were strangers to him, and although they may have taken place
before he joined the conspiracy or after he left it.

Before discussing section 10 it is to be mentioned that once the conspiracy is over this section has
no applicability. Section 10 deals with the admissibility of evidence in a conspiracy case. It is based
on the “theory of implied agency.” The special feature of the section is that anything said or done or
written by any member of conspiracy is evidence and admissible against the other if it relates to the
conspiracy. This section has to be read with Section 120A of the Indian Penal Code.. All conspirators
must have “common intention” at the time when the thing was said, done or written. Confessions by
accused made after the object of the conspiracy is carried out are not relevant as the common
intention was not then existing. The first condition for applying Section 10 is that the conspirators
have conspired together. The conspiracy is, therefore, an unlawful combination of two or more
persons to do an unlawful act or a lawful act by unlawful means. There must be reasonable ground
to believe that two or more persons have conspired together to commit an offence. However, a
conspiracy is not actionable act giving rise to cause of action. The test is to establish:

(i) there is reasonable ground to believe that a conspiracy existed, and

(ii) such act was done and the statement made or writing exchanged between conspirators.

Thus, “before bringing on record anything said, done or written by an alleged conspirator the court
has to bring on record some evidence which prima facie proves the existence of the conspiracy.” All
acts and statements of a conspirator can only be used for the purpose of proving the existence of
the conspiracy or that a particular person was a party to it. It cannot be used in favour of the other
party or for the purpose of showing that such a person was not a party to conspiracy. The common
concern and agreement which constitute the conspiracy serve to unify the acts done in pursuance
of it. This has been the rule of conspiracy under section 10 that any thing said, done or written by
any one of the conspirators against each other is believed to be cons-pirating and is relevant. Once
there was sufficient material to reasonably believe that there was concert and connection between
persons charged with common design, it is immaterial as to whether they were strangers to each
other, or ignorant of actual role of each of them, or that they did not perform any one or more such
acts by joint efforts. According to the expression “in reference to their common intention” the
statement made or act done by other is a relevant fact and is admissible. In Ghulam Din Bitch v
State of J. & K. it was held that in a trial of government employees who were carriage contractors,
when there is a finding that there was a close relationship between the carriage contractors and the
government employees who had acted in consent, absence of a charge of conspiracy between the
two was not material. The statements by one conspirator to another during the period of
conspiracy relating to the implementation of that conspiracy and the evidence as to the acts done
by him disclosing participation of the other conspirator are relevant. In State of Gujarat v
Mohammed Atik the Supreme Court held that any statement by an accused after arrest, whether a
confession or otherwise, had not to fall within the ambit of this section. Confession was made by the
accused after common intention of parties was no longer in existence, Section 10 cannot be invoked
against co-accused. The essence of Section 10 lies within the expression “common intention.” The
words “common intention” signify a common intention existing at the time when the thing said, was
or written by one of them. Any narrative, or statement or confession made to a third party after the

31
common intention or conspiracy was no longer operating and had ceased to exist is not admissible
against the other party. Therefore, the statement of woman to the Magistrate was not admissible, as
the conspiracy was already completed.” This principle was approved by the Supreme Court in
Sardul Singh v State of Bombay where it held that “principle underlying the reception of evidence
under section 10 of the Evidence Act, the statements, Acts, and writing of one co-conspirator as
against the other is on the theory of agency.” The ‘theory of agency’ has also been referred to by the
Supreme Court in Badri Rai v State of Bihar where both accused were held liable and held that the
offering of bribe along with the statement was admissible not only against the first appellant but
also against the second appellant on the basis of “theory of agency” in pursuance of the object of the
conspiracy. It is a principle of common sense that one person alone can never be held guilty of
criminal conspiracy for the simple reason that he cannot conspire. There was a case lodged against
accused about melting of silver. Those ornaments were being melted by six strangers coining from
distant places, with implements for melting, said to have been supplied by Ramji. The seizure was
made on the suspicion that the ornaments and the molten silver were stolen property, which were
to be sold to Ramji in a shape which could not be identified with any stolen property. After making
the seizure-list of' the properties, thus seized, the police officer arrested Ramji, as also the other six
strangers. -Ramji was .released on bail that very day. Police investigations into the case, thus
started, followed. During that period, on August 24, 1953, at about 7-30 p.m., the Inspector was on
his way from his residential quarters to the police station, when both the appellants accosted him
on the road, and Ramji asked him to hush up the case for a valuable consideration. The Inspector
told them that he could not talk to them on the road, and that they should come to the police
station. Thereafter, the Inspector reported the matter to his superior officer, the D.S.P. (P.W. 8), and
to the sub-inspector, P.W. 9, attached to the same police station. On August 31, the same year, the
first appellant, Badri, came to the police station,. saw the Inspector in the central room of the thana,
and offered to him a packet wrapped in a piece of old newspaper, containing Rs. 500 in currency
notes. He told the Inspector, (P. W. 1), that the second appellant, Ramji, had sent the money through
him in pursuance of the talk that they had with him in the evening of August 24, as a consideration
for hushing up the case that was pending against Ramji. At the time the offer was made, a number of
police officers besides a local merchant, (P.W. 7), were present there. The Inspector at once drew up
the first information report of the offer of the bribe on his own statement and prepared a seizure-
list of the money, thus offered, and at once arrested Badri and put him in the thana lock-up. After
the usual investigation the appellants were placed on their trial,“A conspiracy consists not merely
in the intention of two or more but in the agreement of two or more to do an unlawful act by
unlawful means. So long as such a design rests in intention only it is not indictable. When two agree
to carry it into effect, the very plot is an act in itself and the act of each of the parties promise
against promise. Again in S.Arul Raja v/s State of Tamil Nadu (2010)8 SCC 233, court held that post
arrest statement of A-1 was held to be insufficient to implicate the appellant accused in the said
conspiracy as the same was hit by section 10 which refers to the statement of a fellow conspirator
that pertains to the common intention behind the act, and such a statement can be used against the
other conspirators And same judgement was given long before in Mirza Akbar v/s Emperor. A.I.R
1940.

Facts not otherwise relevant are relevant (Plea of Alibi)

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Sec. 11 states about Plea of alibi or the facts which are not otherwise relevant when becomes
relevant. When facts not otherwise relevant become relevant —

(1) If they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts they make the existence or non-existence
of any fact in issue or relevant fact highly probable or improbable. Illustrations

(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on
that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A
was at a distance from the place where it was committed, which would render it highly improbable,
though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime. The circumstances are such that the crime
must have been committed either by A, B, C or D, every fact which shows that the crime could have
been committed by no one else and that it was not committed by either B, C or D, is relevant.

Object of this section is to admit those facts which will help in sorting fact in issue even though they
are irrelevant and this section enlarges the scope of admission of relevant facts. But limitation is put
by the provisions of section 5 to section 55 i.e, if that fact is relevant under theses provisions then
any irrelevant fact will be admissible under section 11.At first sight, it would appear that this
section would make every fact relevant because of the wording of clause (b) But care must be taken
not to give this section an improperly wide scope by a liberal interpretation of the phrase “highly
probable or improbable”.

Otherwise, this section might seem to supersede all the other provisions of the Act as to relevancy.
Further, the fact relied on must be proved according to the provisions of the Act “S. 11 of the
Evidence Act is, no doubt, expressed in terms so extensive, that any fact which can, by a chain of
ratiocination, be brought into connexion with another, so as to have a bearing upon a point in issue,
may possibly be held to be relevant within its meaning. But the connexions of human affairs are so
infinitely various and far- reaching, that thus to take the section in its widest admissible sense,
would be to complicate every trial with a mass of collateral inquiries limited only by the patience
and the means of the parties.”The words “highly probable” are of great importance, and the fact
sought to be proved must be so closely connected with the fact in issue or the relevant fact, that a
Court will not be in a position to determine it without taking them into consideration. In (Rajendra
Singh v. Ramganit Singh, A.I.R. 1954 Patna 566) said about Section 11, Evidence Act (I of 1872) that
facts not otherwise relevant are relevant if they are inconsistent with 5ny fact in issue or relevant
fact, or if by themselves or in connection with other facts, they make the existence or non-existence
of any fact in issue or relevant fact highly probable or improbable. The section has been expressed
in very wide language, and, if construed widely, question of valuation, non-passing of consideration,
absence of necessity for sale and matters of such nature will certainly be relevant. It has been laid
down in many cases, however, that, though the terms of the section are wide, it does not mean that
any and every fact, however remote, is relevant because it is shown to have a bearing on a fact in
issue or a relevant fact. The section, to my mind, does not admit of collateral facts which have
practically no connection with the main fact. It must also be noted that before a fact can be relevant

33
under Section 11, it must be shown that it is admissible. The section declares as admissible, facts
which are logically relevant to prove or disprove the main fact or the fact in issue. There may be
collarteral facts which have no connection with the main fact, except by way of disproving any
material facts proved or asserted by the other side, i.e., when they are such as to make the existence
of the fact so “highly improbable” as to justify the inference that it never existed. A well-known
instance is that of the defence of alibi. Another instance is non-access of the husband to prove
illegitimacy of a child.

An admissibility under Section 11 depends on the nearness or the connection of the fact sought to
be proved with facts in issue, and also on the degree of such nearness or connection. These facts
render the fact in issue probable or improbable when taken with other facts in the case.

Plea of alibi : Facts which are irrelevant will be admissible and relevant under section 11 if defence
of plea of alibi i.e, his presence elsewhere were taken by accused e.g, Accused A is charged with
murder and he raises his defence that he was not at the place of occurrence but was out side the
station(inconsistent fact) then such plea will be relevant and admissible under section 11.

The facts relevant when right or custom is in question

Section 12 of the act states about the facts relevant when right or custom is in question In suits for
damages, facts tending to enable Court to determine amount are relevant.—In suits in which
damages are claimed, any fact which will enable the Court to determine the amount of damages
which ought to be awarded, is relevant.

Any fact which will help any party to decide the quantum of damages in any suit will be relevant in
section 12.Section 12 of the Evidence Act provides for determination of damages when suits for the
damages are claimed by the party. Under this section the court can determine the amount of
damages in an action based on contract or tort. In a suit for damages, the amount of damages must
be a fact in issue. Thus the section lays down that evidence tending to determine, i.e., to increase or
diminish damages is admissible. Section 55 of this Act lays down the conditions under which
evidence of character may be given in civil cases to affect the amount of damages. Similarly Section
73 of the Indian Contract Act also lays down the rule governing damages in actions in contract. In a
suit for damages for a breach of contract of marriage, the evidence as to status of the defendant may
be given for determination of the amount of damages.

Section 13 of the act states about those facts which becomes relevant due to rights and customs.

Facts relevant when right or custom is in question—Where the question is as to the existence of any
right or custom, the following facts are relevant —

(a) any transaction by which the right or custom in question was created, claimed, modified,
recognized, asserted, or denied, or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognized, or exercised or in
which its exercise was disputed, asserted or departed from. Illustration The question is, whether A
has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by

34
A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage,
particular instances in which A’s father exercised the right, or in which the exercise of the right was
stopped by A’s neighbours, are relevant facts.

Section 13 of Indian evidence act only says relevancy of facts but it doesn’t say how such facts are to
be proved. Where a person is proved to be in possession of property, he is deemed to be the owner
of property therefore all acts which show that the person who did them was in possession of the
land on his own behalf are acts of ownership

e.g lease of land, putting up boundary etc.

This section applies to all kinds of rights and customs. Where a right is claimed by virtue of a
custom, all the essentials of custom bearing on it have to be established. Right includes both
corporeal and incorporeal right. Custom is a rule in force by virtue of long usage and has obtained
the force of law. It can be private, public or a general custom (local customs, caste or class customs
and trade customs) transaction in section 13 is a business or dealing which is carried on or
transacted between two or more persons; it is something which has been concluded between
persons by a cross or reciprocal action; and in the larger sense, it means that which is done.
(Rangayyan v. Innasimuthu, A.I.R. 1956 Madras, 226)A transaction is not confined to a dealing with
property between two persons inter vivos, but can be taken also to include a testamentary dealing
with the property. (Periasamiv. Varadappa, A.I.R. 1950 Mad. 486)The requisites of a valid custom
are that it should be ancient, certain and reasonable, and that it should not be opposed to decency
or morality. No custom which is opposed to public policy can be recognised. It must also not be
contrary to justice, equity and good sense. It may be general or special. The words ‘transaction’ and
‘particular instances’ in S. 13 have given rise to a number of conflicting decisions as to whether
judgments not inter parties (i.e., not between the same parties) are admissible as ‘transactions’ or
‘particular instances’. The various rulings of the High Court’s lay down that previous judgments not
being between the same parties are relevant under this section as being transactions or particular
instances in which a right or custom (not of a public nature) was asserted, denied, etc. in a litigation,
but not as embodying the judicial opinion pronounced therein, i.e., not as res judicata.

SECTION 14 AND SECTION 15

Facts showing existence of state of mind, or of body or bodily feeling

SECTION 14: Facts showing existence of state of mind, or of body or bodily feeling.—Facts showing
the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-
will or good-will towards any particular person, or showing the existence of any state of body or
bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling,
is in issue or relevant.

Explanation 1 —A fact relevant as showing the existence of a relevant state of mind must show that
the state of mind exists, not generally, but in reference to the particular matter in question.
Explanation 1 — A fact relevant as showing the existence of a relevant state of mind must show that
the state of mind exists, not generally, but in reference to the particular matter in question."
Explanation 2 — But where, upon the trial of a person accused of an offence, the previous

35
commission by the accused of an offence is relevant within the meaning of this section, the previous
conviction of such person shall also be a relevant fact.

Illustrations

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in
possession of a particular stolen article. The fact that, at the same time, he was in possession of
many other stolen articles is relevant, as tending to show that he knew each and all of the articles of
which he was in possession, to be stolen.

(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time
when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was
possessed of a number of other pieces of counterfeit coin is relevant. The fact that A had been
previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be
counterfeit is relevant.

(c) A sues B for damage done by a dog of B’s, which B knew to be ferocious. The facts that the
dog had previously bitten X, Y, and Z, and that they had made complaints to B, are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the
payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they
could have been transmitted to him by the payee if the payee had been a real person, is relevant, as
showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of

B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is
relevant, as proving A’s intention to harm B’s reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B, and that A repeated the matter
complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation
of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being
induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C
to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is
relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the
order of C, a contractor. A’s defence is that B’s contract was with C. The fact that A paid C for the
work in question is relevant, as proving that A did, in good faith, make over to C the management of
the work in question, so that C was in a position to contract with B on C’s own account, and not as
agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, and the
question is whether, when he appropriated it, he believed in good faith that the real owner could
not be found. The fact that public notice of the loss of the property had been given in the place
where A was, is relevant, as showing that A did not in good faith believe that the real owner of the

36
property could not be found. The fact that A knew, or had reason to believe, that the notice was
given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim
to it, is relevant, as showing that the fact that A knew of the notice did not disprove A’s good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of
A’s having previously shot at B may be proved.

(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A
to B may be proved, as showing intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of
their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

(l) The question is, whether A’s death was caused by poison. Statements made by A during his
illness as to his symptoms, are relevant facts.

(m) The question is, what was the state of A’s health at the time when an assurance on his life
was effected. Statements made by A as to the state of his health at or near the time in question are
relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use,
whereby A was injured. The fact that B’s attention was drawn on other occasions to the defect of
that particular carriage, is relevant. The fact that B was habitually negligent about the carriages
which he let to hire, is irrelevant.

(o) A is tried for the murder of B by intentionally shooting him dead. The fact that A, on other
occasions shot at B is relevant, as showing his intention to shoot B. The fact that A was in the habit
of shooting at people with intent to murder them, is irrelevant.

(p) A is tried for a crime. The fact that he said something indicating an intention to commit that
particular crime is relevant. The fact that he said something indicating a general disposition to
commit crimes of that class is irrelevant.

The presence of requisite mental element or state of mind is an essential condition for liability. In
criminal cases. Mens rea is relevant for the Court to infer the intention of accused in committing the
alleged offense. Not only intention section 14 attracts previous judgement convicting the accused
for the same offense is relevant and admissible to prove his state of mind. Any Facts intended to be
proved to show the state of mind of the accused must be connected with the particular matter in
question. Facts showing generality cannot be admissible. Also actus rea deals with the state of the
body of the accused or the deceased. When an intoxicated person kills another by repeated stab
wounds, requisite knowledge and intention can be presumed. In Aveson v Kinnaird 1805 (king’s
bench) wherin an action upon a policy of life insurance on the life of the plaintiff’s wife .She having
died, the question was whether the statements of the good health of the assured given at the time of
a visitor whom she told in the course of casual conversation that she was in a bad state of health.
The court allowed the visitor to give evidence of this fact. But such fact to be admitted under section
14 or section 15 should be connected with each other so that any probable inference could be

37
drawn from the collected facts. They must be linked together by the chain of cause and effect in
some reasonable manner before an inference may be drawn. A fact in issue cannot be proved by
showing that facts similar to it, but not part of the same transaction, have occurred at other times.
Thus, when the question is whether a person has committed a crime, the fact that he had committed
a similar crime some time ago is irrelevant. In R. v. Shellaker (1914 1 K.B. 414), it was held that to
prove the occurrence of sexual intercourse on a given occasion, prior and subsequent acts between
the same parties are admissible.

Explaination I: Evidence must relate not to the state of mind in general but to the state of mind in
reference to the particular matter in question i.e, state of mind to be proved must not merely a
general tendency or disposition towards conduct of a similar description to that in question but a
condition of thought and feeling ,having distinct and immediate reference to the matter which is
under inquiry. In Emperor v/s Haji Sher Mohammad accused were charged unders.400 ipc for
belonging to a gang of persons associated for the purpose of habitually committing dacoity. The
prosecution sought to prove that some of the accused had been previously convicted of theft or had
been ordered to give security for good behavior on the ground of being habitual thieves.

It was held that evidence was not admissible under s.14 because the offence of which accused were
being tried was a particular one of belonging to a gang of dacoits and simple theft would not show
an intention to belong to a gang of dacoits.

Previous conviction of accused (S. 14 Expln. 2):

When the previous commission by the accused of an offence is relevant, the previous conviction of
such person is also a relevant fact.

A previous conviction may be relevant under S. 8 as showing motive. It may be relevant under S. 14
(Expln. 2) when the existence of any state of mind or bodily feelings is relevant. It may also be
relevant under S.

43. See Illustration (e) and (f) to S. 43]e.g Emperor v/s Allocomiya Husan evidence of previous
conviction was made admissible in order to show state of mind of person under section 14.

Facts bearing on question whether act was accidental or intentional

SECTION 15:

Facts bearing on question whether act was accidental or intentional.— When there is a question
whether an act was accidental or intentional, or done with a particular knowledge or intention,] the
fact that such act formed part of a series of similar occurrences, in each of which the person doing
the act was concerned, is relevant.—When there is a question whether an act was accidental or
intentional, or done with a particular knowledge or intention,] the fact that such act formed part of
a series of similar occurrences, in each of which the person doing the act was concerned, is
relevant." Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured. The
facts that A lived in several houses successively, each of which he insured, in each of which a fire

38
occurred, and after each of which fires A received payment from a different insurance office, are
relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B. It is A’s duty to make entries in a
book showing the amounts received by him. He makes an entry showing that on a particular
occasion he received less than he really did receive. The question is, whether this false entry was
accidental or intentional. The facts that other entries made by A in the same book are false, and that
the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the
delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A
delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B, was not
accidental.

Relevancy of facts under section 15 was discussed in Makin v. Attorney General for New South
Wales [1894] AC 57 which is a famous decision of the Privy Council where the modern common law
rule of similar fact evidence originated. A husband and wife were charged with murdering a child
they were fostering and burying it in their backyard. During their trial evidence of twelve other
babies found buried in the backyards of their previous residences was offered as evidence. The
appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to
their defence. Lord Herschell held that the evidence, in this case, was admissible, however, as a
general rule evidence of a past similar event should not be admissible unless there are exceptional
circumstances. It is undoubtedly not competent for the prosecution to adduce evidence tending to
show that the accused has been guilty of criminal acts other than those covered by the indictment,
for the purpose of leading to the conclusion that the accused is a person likely from his criminal
conduct or character to have committed the offence for which he is being tried. On the other hand,
the mere fact that the evidence adduced tends to show the commission of other crimes does not
render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the crime charged in the indictment
were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
The statement of these general principles is easy, but it is obvious that it may often be very difficult
to draw the line and to decide whether a particular piece of evidence is on the one side or the
other..In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was
accused of one murder but evidence was offered of two more. The admission of this evidence
followed similarly from the improbability that three different women with whom he had gone
through a form of marriage, and who had made financial arrangements from which he would
benefit, had all drowned in the bath by accident shortly afterwards. In these two classic cases the
probative power of the similar fact evidence, which made it just to admit it in spite of its prejudicial
effect, derived from the improbability of the strikingly similar facts having any rational explanation
other than the guilt of the accused.

Existence of course of business when relevant

Section 16 of the act states about the facts which has become relevant because of existence of
course of business.

39
Existence of course of business when relevant.—When there is a question whether a particular act
was done, the existence of any course of business, according to which it naturally would have been
done, is a relevant fact. Illustrations

(a) The question is, whether a particular letter was despatched. The facts that it was the
ordinary course of business for all letters put in a certain place to be carried to the post, and that
particular letter was put in that place, are relevant.

(b) The question is, whether a particular letter reached A. The facts that it was posted in due
course, and was not returned through the Dead Letter Office, are relevant.

The posting of a letter may be proved by the person who posted it or by showing facts from which
the posting may be presumed. For instance, evidence of posting may be given by proving that the
letter was delivered to a clerk whose duty it was, in the ordinary course of business, to post it, or
that it was put into a post-box which is cleared everyday by the postman.

Proof of posting letters raises a presumption that it reached its destination in due course. The post-
mark on the envelope is prima facie evidence of the date, time and place of posting. Further, when
the acknowledgment of a registered letter comes back (to the sender) with a signature purporting
to be that of the addressee, there is a presumption of the fact of service. But the presumption is
rebuttable as was held in Mubarak Ali Ahmad v/s State of Bombay. AIR 1957 The main contention
in respect of these letters is that there is no proof that they were received by the appellant at
Karachi. It is contended that evidence given by either Jasawalla or the complainant that the
originals were written and posted is not relevant to show that the same have been received. It is
urged that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by
the addressee unless there is also proof that the original has not been returned from the Dead
Letter Office. Illustration (b) to s. 16 of the Indian Evidence Act, 1872, is relied on for the purpose
and it is urged that a combination of the two facts is required to raise such a presumption. We are
quite clear that the illustration only means that each one of these facts is relevant. It cannot be read
as indicating that without a combination of these facts no presumption can arise. 'Indeed that
section with the illustrations thereto has nothing to do with presumptions but only with relevance.
Some cases relating to this have been cited before us. We have considered the same but it is
unnecessary to deal with them.

Admission (Sec. 17 – 23)

Admission is defined under Section 17 of the India Evidence Act, 1872 as a statement made by
witnesses who shows inference to any fact in issue or relevant fact in a case. According to this
Section, Admission can be in the form of a document, oral statement or may be contained in an
electronic form.

Admission in the Indian Evidence Act is dealt under Sections 17 to 31. Sections 17 to 23 deal with
general admission whereas Sections 24 to 31 deal with Confession. A Confession is an admission of
guilt by the accused in a criminal case.

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Section 18 of the Indian Evidence Act lays down the rules regarding as to who can make an
admission. According to this section, there are five classes of persons whose statements will be
considered as an admission in a suit. These five classes are:-

• By Parties to the proceedings

The statements made by the parties to a proceeding as against himself is considered as a

relevant admission. Under this Section, the term ‘parties’ not only means the persons who
appear on the record in that capacity but also includes those persons who are parties to a suit
without appearing. Persons who have an interest in the subject matter of the suit but are not
parties on the record are also considered as parties in the proceedings and their statements
have the same relevancy as the parties on record. Similarly, a person who although appears as a
party on the record but has no real interest in the subject matter will not have any effect
through his admission as against the person he is appearing on behalf of.

• Admission by the agent

The statements made by an agent in a suit would be admissible as against the person he is
representing. The statements made by an agent are, however, binding only when they are made
during the continuance of his agency so, when the agent’s right to interference has come to an
end any statement made by him after that will not have any effect on the principal.

• Admission by the representative party

When a person such as trustees, administers, executors etc., sue or are sued in a representative
character, any statement made by them will only be admissible if made in their representative
character. Any declarations made by them in their personal capacity will not be taken as an
admission.

• Admission by the party having interest in the subject matter

In any such suit where several persons are interested jointly in the subject-matter of the suit,
then any admission made by anyone of the parties will be taken as an admission against himself
as well as the other parties jointly interested in the subject matter. It does not matter whether
the persons jointly interested in the subject-matter are suing or being sued jointly or separately.
However, for this rule to apply there has to be prima facie foundation showing that joint
interest exists between the parties suing or being sued.

• Persons from whom parties derive the interest

Any statement made by the predecessor-in-title from who the party to the suit derives his title
will be admissible. But this will only be held as an admission if the predecessor-in-title made the
declaration while still holding the title and not after the title has been transferred. The
statement made by the former owner will not be considered as an admission as against the
parties if it was made title has been passed.

41
As general rule statements made by a third party to a suit are not considered as admissions but
Section 19 is an exception to this rule. Section 19 refers to the statements made by a third party as
against himself when it affects his position or liability and when such liability or position is relevant
to be proved as against the party to the suit. The statements made by the third party, in this case,
would only be relevant if the liability or position of that third party still exists at the time of the suit.

This section refers to when a party to the suit refers to a third party regarding some information a
matter of dispute. Under Section 20 any statement made by such party will be taken as an
admission against the person who referred to the third party. This Section is another exception to
the general rule that statements made by strangers are not considered as an admission.

According to Section 21, Admission may be used against the party making the admission but it
cannot be used by the party who makes the Admission for his own use. This Section further lays
down three exceptions to this rule. These exceptions are:-

1. Admission made under Sec. 32

An Admission can be used by the person for his own use if the person making such Admission is
dead. In this case, such admission will be relevant as between the third person under Section 32.
Section 32 lays down that statements made by persons dead or who cannot be found may be
proved if it was made under the circumstances mentioned in the Section.

2. Admission made under Sec. 6

An Admission made by a person regarding the existence of the state of body or mind relevant can
be used by the person making such Admission if such a state of body or mind existed.

3. Statement relevant other than the admission

An Admission made by a person may be used by the person making it if it is proved that the
statement is relevant otherwise than as Admission.

According to Section 22, when there is a document then nobody can be allowed to prove the
content of that document. However, there are some exceptions to this rule:-

In the case the party is entitled to give secondary evidence of the contents of the documents then he
can rely on oral Admission.

In the case where the original document is lost or if it is in the possession of the opposition party,
then also the party may make oral Admission.

According to Section 22-A, when there is an electronic record then nobody can rely on the oral
Admission unless there is a question to the genuineness of such record.

Section 23 is only applicable to civil cases and do not extend to criminal cases. According to this
Section, an Admission in a civil case will not be relevant if it is declared that upon the express
condition made by the parties to the suit that the Admission should not be given or under some
circumstances the court infers that the parties have made an agreement that Admissions will not be

42
given. Section 21 lays down that when an Admission is given without prejudice then such
Admission will not be considered as relevant.

Confession (Sec. 24 – 30)

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the
law of Evidence defines confession as “confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed

“ A confession must either admit in terms the offence or at any rate substantially all the facts which
constitute the offence. An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council
decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement which
even though contains some confessional statement will still lead to acquittal, is no confession. Thus,
a statement that contains self-exculpatory matter which if true would negate the matter or offence,
cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there was
nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this
purpose, the Court drew support from English authorities. When there is enough evidence to reject
the exculpatory part of the accused person’s statements, the Court may rely on the inculpatory part.

• Difference Between Admission and confession

Confession Admission
1. Confession is a statement made by an
1. Admission usually relates to civil transaction and
accused person which is sought to be proved
comprises all statements amounting to admission
against him in criminal proceeding to
defined under section 17 and made by person
establish the commission of an offence by
mentioned under section 18, 19 and 20.
him.
2. Confession if deliberately and voluntarily
2. Admissions are not conclusive as to the matters
made may be accepted as conclusive of the
admitted it may operate as an estoppel.
matters confessed.

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 3. Admissions may be used on behalf of the person
3. Confessions always go against the person
making it under the exception of section 21 of
making it
evidence act.
4.Confessions made by one or two or more
accused jointly tried for the same offence can 4. Admission by one of the several defendants in suit
be taken into consideration against the co- is no evidence against other defendants.
accused (section 30)
5. Admission is statement oral or written which gives
5. Confession is statement written or oral
inference about the liability of person making
which is direct admission of suit.
admission.

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

The acid test which distinguishes a confession from an admission is that where conviction can be
based on the statement alone, it is confession and where some supplementary evidence is needed
to authorize a conviction, then it is an admission as stated in Ram Singh v. State Another test is that
if the prosecution relies on the statement as being true it is confession and if the statement is relied
on because it is false it is admission. In criminal cases a statement by accused, not amounting to
confession but giving rise to inference that the accused might have committed the crime is his
admission.

Forms of confession

A confession may occur in many forms. When it is made to the court itself then it will be called
judicial confession and when it is made to anybody outside the court, in that case it will be called
extra-judicial confession. It may even consist of conversation to oneself, which may be produced in
evidence if overheard by another. For example, in Sahoo v. State of U.P. the accused who was
charged with the murder of his daughter-in-law with whom he was always quarreling was seen on
the day of the murder going out of the house, saying words to the effect : “I have finished her and
with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is
not necessary for the relevancy of a confession that it should be communicated to some other
person.

1. Judicial confession

Judicial confession are those which are made before a magistrate or in court in the due course of
legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement
(made before a court) if made freely by a person in a fit state of mind.

2. Extra-judicial confessions

Extra-judicial confessions are those which are made by the accused elsewhere than before a
magistrate or in court. It is not necessary that the statements should have been addressed to any
definite individual. It may have taken place in the form of a prayer. It may be a confession to a

44
 private person. An extra-judicial confession has been defined to mean “ a free and voluntary
confession of guilt by a person accused of a crime in the course of conversation with persons other
than judge or magistrate seized of the charge against himself. A man after the commission of a
crime may write a letter to his relation or friend expressing his sorrow over the matter. This may
amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction
if it passes the test of credibility. Extra-judicial confession is generally made before private person
which includes even judicial officer in his private capacity. It also includes a magistrate not
empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered
but receiving the confession at a stage when section 164 does not apply.

Difference between judicial and extra-judicial confession-

Judicial confession Extra-judicial confession

1. Extra-judicial confession are those which are made to

1. Judicial confessions are those which are made to a
any person other than those authorized by law to take
judicial magistrate under section 164 of Cr.P.C. or
confession. It may be made to any person or to police
before the court during committal proceeding or
during investigation of an offence.
during trial.
2. To prove judicial confession the person to whom 2. Extra-judicial confession are proved by calling the
judicial confession is made need not be called as person as witness before whom the extra-judicial
witness. confession is made.
3. Judicial confession can be relied as proof of guilt
3. Extra-judicial confession alone cannot be relied it
against the accused person if it appears to the court
needs support of other supporting evidence.
to be voluntary and true.
4. It is unsafe to base conviction on extra-judicial
4. A conviction may be based on judicial confession.
confession.

Voluntary and non-voluntary confession- the confession of an accused may be classified into
Voluntary and non-voluntary confession. A confession to the police officer is the confession made
by the accused while in the custody of a police officer and never relevant and can never be proved
under Section 25 and 26. Now as for the extra-judicial confession and confession made by the
accused to some magistrate to whom he has been sent by the police for the purpose during the
investigation, they are admissible only when they are made voluntarily. If the making of the
confession appears to the court to have been caused by any inducement, threat or promise having
reference to the change against the accused person proceeding from a person in authority and
sufficient in opinion of the court to give the accused person grounds, which would appear to him
reasonable for supporting that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be
proved against the person making the statement. Section 24 of the Evidence Act lays down the rule
for the exclusion of the confession which are made non-voluntarily.

Section 24 of Indian Evidence Act

45
Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding- A
confession made by an accused person is irrelevant in a criminal proceeding, if the making of the
confession appears to the court to have been caused by any inducement, threat or promise having
reference to the charge against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the court, to give the accused person grounds, which would appear to
him reasonable, for supporting that by making it he would gain any advantage or avoid any evil of
temporal nature in reference to the proceeding against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used against
the maker.

Ingredients of Section 24

To attract the prohibition enacted in Section 24 the following facts must be established:

• That the statement in question is a confession,

• That such confession has been made by the accused,
• That it has been made to a person in authority,
• That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,
• Such inducement, threat or promise must have reference to the charge against the accused,
and
• The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.
1. Confession made by inducement, threat or promise
a confession should be free and voluntary. “If it proceeds from remorse and a desire to
make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a
person in authority, it is inadmissible.” The term inducement involves a threat of
prosecution if the guilt is not confessed and a promise of forgiveness if it is so done. It is
very difficult to lay down any hard and fast rule as to what constitutes inducement. It is for
the judge to decide in every case. An inducement may be express or implied, it need not be
made to the accused directly from the person in authority. Before a confession can be
received as such, it must be shown that it was freely and voluntarily made. This means that
the confession must not be obtained by any sort of threat or violence, not by any promise
either direct or indirect, expressed or implied, however slight the hope or fear produced
thereby, not by the exertion of an influence. The ground on which confessions made by the
accused under promises of favour or threats of injury are excluded from evidence is not
because any wrong is done to the accused in suing than but because he may be induced by
pressure of hope or fear to confess the guilt without regard to their truth in order to obtain
relief or avoid the threatened danger. Thus it is clear that if threat or promise from persons
in authority is used in getting a confession it will not be taken into evidence. Every threat or
inducement may not be sufficient to induce the accused to confess a guilt. The proper
question before excluding a confession is whether the inducement held out to the prisoner

46
 was calculated to make his confession untrue one. The real enquiry is whether there had
been any threat of such a nature that from fear of it the prisoner was likely to have told an
untruth. If so, the confession should not be admitted.

In case of an ordinary confession there is no initial burden on the prosecution to prove that the
confession sought to be proved is not obtained by inducement, threat, etc. It is the right of the
accused to have the confession excluded and equally the duty of the court to exclude it even suo
moto. It is idle to expect that an accused should produce definite proof about beating or pressure.
But he must point out some evidence or circumstances on which a well-sounded conjecture at least,
that there was beating or pressure may reasonably be based.

2. Inducement must have reference to the charge –

the inducement must have reference to the charge against the accused person that is the
charge of offence in the criminal courts and inferencing the mind of the accused with
respect to the escape from the charge. The inducement must have reference to escape from
the charge. Thus, it is necessary for the confession to be excluded from evidence that the
accused should labour under influence that in reference to the charge in question his
position would be better or worse according as he confesses or not. Inducements in
reference to other offences or matters or offences committed by others will not affect the
validity of the confession thus, where a person charged with murder, was made to confess
to a Panchayat which threatened his removal from the caste for life, the confession was held
to be relevant, for the threat had nothing to do with the charge.

The inducement need not be necessarily expressed. It may be implied from the conduct of the
person in authority, from the declaration of the prisoner or the circumstances of the case. Similarly
it need not be made to the prisoner directly; it is sufficient to have come to his knowledge provided
it appears to have induced to confession.

3. Threat, inducement and promise from a person in authority –

the threat, inducement and promise on account of which the accused admits the guilt must
come from a person who has got some authority over the matter. To be clear the person
giving different promises, threatening the accused or inducing him to make the confession
must be a person in authority as stated in the Pyare Lal v. State of Rajasthan . If a friend of
the accused induces him to make a confession or a relation if he makes him a promise that if
he confesses he will get him released or even if he threatens him and the accused on that
account admits his guilt this statement will not be excluded by Section 24 as the threat,
inducement or promise do not emanate from a person in authority.

If the accused makes the confession thinking that by doing so the authorities would soften the
attitude towards him the confession cannot be said to be non-voluntary.

The term “person in authority” within the meaning of Section 24 was held to be one who has
authority to interfere in the matter charge against the accused. If this definition is to be accepted
that term “ a person in authority” would mean only the police who are in charge of the investigation
and the magistrate who is to try the case. This view appears to be too restrictive. It appears that a

47
person in authority within the meaning of Section 24 should be one who by virtue of his position
wields some kind of influence over the accused.

The question as to whether a person to whom a confession has been made is a person in authority
would naturally depend on the circumstances of each case having regard to the status of the
accused in relation to the person before whom the confession is made. A house surgeon is a person
in authority in relation to nurse of the same hospital.

4. Sufficiency of the inducement, threat or promise –

before a confession is excluded, inducement, threat or promise would in the opinion of the
court be sufficient to give the accused person ground which would appear to the accused
reasonable for supposing that by making the confession he would gain an advantage or
avoid an evil of the nature contemplated in the section. Consequently the mentality of the
accused has to be judged and not the person in authority. That being the case, not only the
actual words, but words followed by acts or conduct on the part of the person in authority,
which may be taken by the accused person as amounting to an inducement, threat or
promise, will have to be taken into account. A perfectly innocent expression, coupled with
acts or conduct on the part of the person in authority together with the surrounding
circumstances may amount to inducement, threat or promise. It does not turn upon as to
what may have been the precise words used but in each case whatever the words used may
be it is for the judge to consider whether the words used were such as to convey to the mind
of the person addressed an intimation that it will be better for him to confess that he
committed the crime or worse for him if he does not. The expression, “whatever you say will
be used as evidence against you” will not exclude a confession. On the other hand “you
better pay the money than go to jail”, “if you tell me where my goods are I will be favourable
to you”, “I will get you released if you tell me the truth”, have been held to be sufficient to
give the accused grounds for supposing that by making the confession he would gain an
advantage or avoid an evil.

It must be borne in the mind that the advantage gained or the evil avoided must be of temporal
nature therefore any inducement having reference to a future state of reward or punishment does
not affect the admissibility of confession. A confession will not be excluded which has been
obtained by the accused by moral or religious exhortation. The expression “you had better as good
boys tell the truth”, “kneel down and tell me truth in the presence of the Almighty”, do not give out
any temporal gain and so the confession derived on these confessions are not excluded by Section
24. Confession obtained on the allegation by the panches that if the accused does not confess he
shall be excommunicated will not exclude the confession. It should be borne in the mind that the
gain or evil must be in reference to the proceeding against him.

Evidentiary value of confession

Value of judicial confession – A case where there is no proof of corpus delicti must be
distinguished from another where that is proved. In the absence of the corpus delicti a confession
alone may not suffice to justify conviction.

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A confessional statement made by the accused before a magistrate is a good evidence and accused
be convicted on the basis of it. A confession can obviously be used against the maker of it and is in
itself sufficient to support his conviction. Rajasthan High Court has also held that the confession of
an accused person is substantive evidence and a conviction can be based solely on a confession.

If it is found that the confession was made and was free, voluntary and genuine there would remain
nothing to be done by the prosecution to secure conviction. If the court finds that it is true that the
accused committed the crime it means that the accused is guilty and the court has to do nothing but
to record conviction and sentence him. No question of corroboration arises in this case. Normally
speaking it would not be quite safe as a matter of prudence if not of law to base a conviction for
murder on the confession of the alleged murder by itself and without more. It would be extremely
unsafe to do so when the confession is open to a good deal of criticism and has been taken in the jail
without adequate reason and when the story of murder as given in the confession is somewhat hard
to believe. This observation was made by the Supreme Court and therefore it cannot be said to be a
good law in the case of judicial confession.

Now the settled law is that a conviction can be based on confession only if it is proved to be
voluntary and true. If corroboration is needed it is enough that the general trend of the confession
is substantiated by some evidence which would tally with the contents of the confession. General
corroboration is enough.

Value of extra-judicial confession – Extra-judicial confessions are not usually considered with
favour but that does not mean that such a confession coming from a person who has no reason to
state falsely and to whom it is made in the circumstances which support his statement should not
be believed.

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial confession
must be received with great case and caution. It can be relied upon only when it is clear, consistent
and convincing. The court has to decide whether the person before whom the admission is said to
have been made are trustworthy witnesses. The extra-judicial confession is open to the danger of
mistake due to the misapprehension of the witness before whom the confession was made to the
misuse of the words and the failure of the party to express his own meaning. This is also open to
another sort of danger. There being no record and there being no sanction behind it is very easy for
the prosecution to catch hold of any witness who may come and depose that the accused admitted
his guilt in his presence on some particular time. Due to those reasons it is very dangerous for the
courts to base conviction on the sole basis of extra-judicial confession. Usually and as a matter of
caution courts require some material corroboration to an extra-judicial confession statement
corroboration which connects the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the foundation of
the conviction is the confession alleged to have been made by the accused there are three things
which the prosecution must establish. First, that a confession was made, secondly, that evidence of
it can be given that is to say that it was voluntary and thirdly that it is true. Such a confession must
be proved by an independent or satisfactory evidence.

49
In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by her
father and step-mother in the National park. The alleged extra-judicial confession was made by
accused during detention in forest office. No mention of said confession in report given to police
nor any witness present there mentioning about the same confession. This extra-judicial confession
cannot be relied on.

Before relying on extra-judicial confession, it must be considered whether the confession was really
made. It should also be considered as to why the accused reposed confidence in the witnesses
stating about the confession. It was alleged that the accused made confession to a witness who was
the widow of one of the conspirators and was helping her husband in making spears and other
weapons. It was held that the confession was not reliable.

Value of retracted confession – A retracted confession is a statement made by an accused person

before the trial begins by which he admits to have committed the offence but which he repudiates
at the trial. After the commission of a serious offence some police officer makes investigation into
the matter, examines witnesses and the accused. If in his opinion the accused is proved to have
committed the offence, he submits a report to a magistrate having jurisdiction in the matter. The
court takes evidence and examines the accused. If during the investigation, the accused on being
examined by the police officer is willing to admit the guilt the police officer sends the accused to
some magistrate for recording his statement. The magistrate after being satisfied that the accused
admits in his statement to have committed the offence this recorded statement by the magistrate
may be proved at the trial. When the trial begins the accused on being asked as to whether he
committed the crime he may say that he did not commit the crime. The question may again be put
to him as to whether he made statement before the magistrate during the investigation confessing
the guilt. He may deny to have made the statement at all or he may say that he made that statement
due to undue influence of the police. In this case the confession made by the accused to the
magistrate before the trial begins is called retracted confession.

It is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy

evidence. There is no definite law that a retracted confession cannot be the basis of the conviction
but it has been laid down as a rule of practice and prudence not to rely on retracted confession
unless corroborated. Courts have convicted persons on retracted confession when they have been
of the opinion that the confession when it was made was voluntary or consistent and true but the
real rule of law about the retracted confession is “ where the retracted confession is the sole
evidence it can be of little value specially when made during the competition for a pardon which
sometimes occurs where a number of persons are suspected of an offence,”. It very often happens
that a number of persons are accused of murder or dacoity or of any other offence. The person in
charge of the investigation falling on direct and independent evidence chooses some of the accused
to admit the guilt on the promise of making him a witness in the case. Instances are not rare when a
young man is made to admit some guilt due to pressure or fear.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or hope must be either
due to the remorse or godly fear or it is so because the accused is as truthful as Harish Chandra and
Yudhisthir. If this is so and if the statement was made because the winess was remorseful or

50
because he made the confession due to fear of god or because he was truthful there is no reason as
to why he resiles from that statement when he is put to trial. Due to this suspicion a retracted
confession can always be suspected to have been extracted by pressure, undue influence,
inducement or threat by some person in authority.

Proof of judicial confession – Under section 80 of Evidence Act a confession recorded by the
magistrate according to law shall be presumed to be genuine. It is enough if the recorded judicial
confession is filed before the court. It is not necessary to examine the magistrate who recorded it to
prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession may be in writing or oral. In the case of
a written confession the writing itself will be the best evidence but if it is not available or is lost the
person before whom the confession was made be produced to depose that the accused made the
statement before him. When the confession has not been recorded, person or persons before whom
the accused made the statement should be produced before the court and they should prove the
statement made by the accused.

Confession to police

Section 25 – confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any offence.

Reasons for exclusion of confession to police- another variety of confessions that are under the
evidence act regarded as involuntary are those made to a personnel. Section 25 expressly declares
that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the accused
and thus force him to confess to a crime which he might not have a committed. A confession so
obtained would naturally be unreliable. It would not would be voluntary. Such a confession will be
irrelevant whatever may be its form, direct, express, implied or inferred from conduct. The reasons
for which this policy was adopted when the act was passed in 1872 are probably still valid.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, supreme court noted:

The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of
the police investigation. The police should remember that confession may not always be a short-cut
to solution. Instead of trying to “start” from a confession they should strive to “arrive” at it. Else,
when they are busy on their short-route to success, good evidence may disappear due to inattention
to real clues. Once a confession is obtained, there is often flagging of zeal for a full and through
investigation with a view to establish the case de hors the confession, later, being inadmissible for
one reason or other, the case fundles in the court.

In R v. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.) at 268

Police authority itself, however, carefully controlled, carries a menace to those brought suddenly
under its shadow and the law recognises and provides against the danger of such persons making

51
incriminating confessions with the intention of placating authority and without regard to the truth
of what they are saying.

Effect of Police Presence

The mere presence of the policeman should not have this effect. Where the confession is being
given to someone else and the policeman is only casually present and overhears it that will not
destroy the voluntary nature of the confession. But where that person is a secret agent of the police
deputed for the very purpose of receiving a confession, it will suffer from blemish of being a
confession to police.

In a rather unusual case, the accused left a letter recording his confession near the dead body of his
victim with the avowed object that it should be discovered by the police, the supreme court held the
confession to be relevant. There was not even the shadow of a policeman when the letter was being
written, and planted.

Exclusion of Confessional Statements Only

This principle of exclusion applies only to statement which amount to a confession. If a statement
falls short of a confession, that is, it doesn’t admit the guilt in terms or sustainability all the facts
which constitute the offence, it will be admissible even if made to a policeman, for example, the
statement of an accused to the police that he witnessed the murderer in question. The statement
being not a confession was received in evidence against him, as showing his presence on the spot.

Statements During Investigation And Before Accusation

A confessional statement made by a person to the police even before he is accused of any offence is
equally irrelevant. The section clearly says that such a statement cannot be proved against any
person accused of any offence. This means that even if the accusation is subsequent to the
statement, the statement cannot be proved.

Confessional FIR

Only that part of a confessional First Information Report is admissible which does not amount to a
confession or which comes under the scope of section 27. The non confessional part of the FIR can
be used as evidence against the accused as showing his conduct under section 8.

Statement Not Amounting to Confession

A statement which does not amount to confession is not hit by the bar of section. A statement in the
course of investigation was that the design was carried out according to the plan. The statement did
not refer to the persons who were involved in the murder, nor did the maker of the statement refer
to himself. This was held to be not a confessional statement. Hence, not hit by section 25 . The
statement of inspector(crimes) that the accused accepted before him that he got the counterfeit
currency notes from a stranger but the accused denying to have so stated, was not admissible in
evidence.

52
Use of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence against
him, he can himself rely on those statements in his defence. The statement of the accused in FIR that
he killed his wife giving her a fatal blow when some tangible proof of her indiscretion was available
was not usable against him to establish his guilt. But once his guilt was established through other
evidence, he was permitted to rely upon his statement so as to show that he was acting under grave
and sudden provocation. There is nothing in Evidence Act which precludes an accused person from
relying upon his own confessional statements for his own purposes.

Special Legislation

A special legislation may change the system of excluding police confessions. For example, under the
Territorists and Disruptive Activities(prevention) Act, 1987, (S15) confessional statements were
not excluded from evidence on grounds that the persons making them were in police custody. The
court said in another case that section 15 was an important departure from the ordinary law and
must receive that interpretation which would achieve the object of that provision was that a
confession recorded under S.15 of TADA was a substantive piece of evidence and could be used
against a co-accused also.

Sec. 26 states that no confession made by any person whilst he is in the custody of a police officer,
unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.

Confession Of An Accused In Polilice Custody To Any One Else

Section 26 provides that a confession which is made in custody of a police officer cannot be proved
against him, unless it is made before a magistrate. In Kishore Chand v. State of Himachal Pradesh,
the extra judicial confession was made to Pradhan who was accompanied by Police (enquiry)
Officer. The only interference which could be drawn from the circumstance of the case, is that the
confession was made at the time when the accused was in the custody of police and it could not be
proved against the accused. It could not be believed that, when a police officer has seen the accused
with deceased at last occasion, he will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and 26,
the Police Officer has left the accused in the custody of village head man (pradhan).

The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and to
take extra-judicial confession under section 164 of Cr.P.C which has got more probable value and it
gives an opportunity to make the required warning, that this confession will be used against the
accused and after this warning he records the confession. Under section 26, no confession made by
an accused to any person while in custody of a police officer shall be proved against him.

Police Custody

The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-cuff
him or tie his waist with a rope and may take him with him. Again a police officer may not even
touch a person but may keep such a control over him that the person so controlled cannot go any

53
way he likes. His movement is in the control of the police officer. A police officer comes to A and
asks him to follow to the police station as he is wanted in connection with a dacoity case. A follows
him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act, is
no mere physical custody.” A person may be in custody of a police officer though the other may not
be physically in possession of the person of the accused making the confession. There must be two
things in order to constitute custody. Firstly, there must be some control imposed upon the
movement of the confessioner, he may not be at liberty to go any way he likes, secondly, such
control must be imposed by some police officer indirectly. The crucial test is whether at the time
when a person makes a confession he is a free man or hid movements are controlled by the police
by themselves or through some other agency employed by them for the purpose of securing such
confession. The word ‘custody’ in this the following section does not mean formal cutody but
includes such state of affairs in which the accused can be said to have come into the hands of a
police officer, or can be said to have been some sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tonga by a police constable. In the absence of
constable, the accused confessed to the tanga-driver that he committed the crime. The confession
was held to be in police custody as the accused was in the custody of constable and it made no
difference of his temporary absence. Where a woman, charged with the murder of her husband, was
taken into the custody of the police, a friend of the woman also accompanied her. The policeman left
the woman with her friend and went away to procure a fresh horse. The woman confessed her guilt
to her friend while the policeman was away. The confession would not be admissible against the
accused as the prisoner should be regarded in custody of the police in spite of the fact that he was
absent for a short time. But where the accused is not arrested nor is he under supervision and is
merely invited to explain certain circumstances, it would be going further that the section warrants
to exclude the statement that he makes on the grounds that he is deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for treatment and
from the moment of her admission to the hospital till her discharge from there, the police personnel
were neither present in the room wherein the accused was kept for treatment or even in the
vicinity of the hospital nor they frequently visited the hospital, it could not be said that the
accused’s movements were restricted or she was kept in some sort of direct or indirect police
surveillance and she was in police custody for the purpose of section 26 of the Evidence Act.

Section 27- How Much Of Information Received From Accused May Be Proved

Provided that, when any fact is deposed to as discovered in consequence of information received
from a person accused of any offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may
be proved.

Principle- this section of the act is founded on the principle that if the confession of the accused is
supported by the discovery of a fact then it may be presumed to be true and not to have been
extracted. It comes into operation only-

54
 • If and when certain facts are deposed to as discovered in consequence of information
received from an accused person in police custody, and
• If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of information
given, some guarantee is afforded thereby that the information was true and accordingly can be
safely allowed to be given in evidence. But clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which such information is required to relate.

In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that section 27 of
evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26, which
imposed a complete ban on admissibility of any confession made by accused either to police or at
any one while in police custody. Nonetheless the ban would be lifted if the statement is distinctly
related to discovery of facts. The object of making provision in section 27 was to permit a certain
portion of statement made by an accused to Police Officer admissible in evidence whether or not
such statement is confessional or non confessional.

Scope

Section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24 lays down that if a
confession appears to have been caused by threat, promise or inducement from some man in
authority it will be irrelevant and cannot be proved against the confessioner. Section 25 excludes a
confession made to a police officer. Section 26 lays down that if a person while in custody of a
policeman, confesses his guilt to any other person not being a Magistrate, his settlement will not be
proved against him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was
discovered in consequence of the information given by the accused of an offence in custody of the
police officer, so much of the information as relates to the facts discovered by that information, may
be proved irrespective of the facts discovered by that information, may be proved irrespective of
the facts whether that information amounts to confession or not.

Essentials of Sec. 27 are –

1. The fact must have been discovered in the consequence of the information received from the
accused.

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

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

4. That portion only of the information which relates distinctly to the fact discovered can be proved.
The rest is inadmissible.

5. Before the statement is proved, somebody must depose that articles were discovered in
consequence of the information received from the accused. In the example given above, before the

55
statement of the accused could be proved, somebody, such a sub-inspector, must depose that in
consequence of the given information given by the accused, some facts were discovered.

6. The fact discovered must be a relevant fact, that is, to say it must relate to the commission of the
crime in question.

In Suresh Chandra Bahri v. State of Bihar, it is the discovery and the seizure of articles used in
wrapping the dead body and the pieces of Sari belonging to the deceased was made at the instance
of one accused. Articles recovered were neither visible nor accessible to the people but were hidden
under the ground. No public witness was examined by the prosecution in this behalf. However, the
evidence of Investigation Officer did not suffer from any doubt or infirmity. Articles discovered
were duly identified by the witness. It was held that in these circumstances, failure of Investigating
Officer to record the disclosure of statement was not fatai.

In State of Maharashtra v. Bharat Ehagan Lal Raghani, it was held by Supreme Court that, the fact
that seized weapons were displayed by police in press conference was not a ground to disbelieve
the factum of recovery.

Section 28- Confession Made After Removal Of Impression Caused By Inducement, Threat Or
Promise, Relevant

If such a confession as is referred to in section 24 is made after the impression caused by any such
inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant.

Confession After Removal Of Threat Or Promise- under section 24 we have seen that if the opinion
of a court a confession seems to have been caused by any inducement, threat or promise having
reference to the charge and proceeding from a person in authority, it is irrelevant and cannot be
proved even against a person making the confession,

Section 28 provides that if there is inducement, threat or promise given to the accused in order to
obtain confession of guilt from him but the confession is made after the impression caused by any
such inducement, threat or promise has, in the opinion of the court been fully removed, the
confession will be relevant becomes pre and voluntary.

It must be borne in mind that there must be strong and cogent evidence that the influence of the
inducement has really ceased. A female servant was suspected of stealing money. Her mistress on
Monday told her that she would forgive her if she told the truth. On Tuesday she was taken before a
Magistrate and as no one grave any evidence against her she was left off. On Wednesday she was
again arrested. The superintendent of Police went with her mistress into Bridewell and told her in
presence of her of her mistress that “she was not bound to say anything unless she liked and that if
she had anything to say, her mistress would hear her.” He did not tell her that of she made a
statement it might be given in evidence against her. The prisoner then made a statement it might be
given in evidence against herm the prisoner then made a statement confessing the guilt. It was held
that this evidence was not admissible in evidence as the promise of the mistress must be
considered as still operating on the prisoner’s mind at the time of the statement. Had the mistress
not been present on the spot it might have been otherwise.

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Impression produced by promise or threat may be removed

• By lapse of time, or

• By an intervening caution giving by some person of superior authority to the person holding out
the inducement, where a prisoner confessed some months after the promise and after the warning
his confession was received.

Section 29-Confession Otherwise Relevant Not To Become Irrelevant Because Of Promise Of

Secrecy, Etc.

In such a confession is otherwise relevant, it does not become irrelevant merely because it was
made under a promise of secrecy, or in consequence of deception practiced on the accused person
for the purpose of obtaining it, or when he was drunk, or because it was made in answer to
question which he need not have answered, whatever may have been the form of those questions,
because he was not warned that he was not bound to make such confession, and that evidence if it
might be given against him.

CONFESSION ON PROMISE OF SECRECY, ETC- section 29 lays down that if a confession is relevant,
that is, if it is not excluded from being proved by any other provision on Indian Evidence Act, it
cannot be relevant if it was taken from the accused by:

1. Giving him promise of secrecy, or

2. By deceiving him, or
3. When he was drunk, or
4. Because it was made clear in answer to question which he need not have answered, or
because no warning was given that he was not bound to say anything and that whatever he
will state will be used against him.

Section 24 lays down that a confession which is the outcome of inducement, threat or promise from
a person in authority would not be relevant. Section 25 lays down that a confession to a police
officer is irrelevant. Section 26 excludes the statement of an accused in a police custody to any
person other than a Magistrate. Section 29 lays down that if a confession is not excluded by Sections
24, 25 or 29 it will not be excluded on the ground of promise of secrecy or of deception or of being
drunk, or of being made in answer to question or without warning that it will be used against him in
evidence.

Section 29 assumes that there is no bar to the admissibility of the confession in question arising
from any of the earlier provision, viz, section 24 to 26 and it then proceeds to the invalidate or
negative other positive objections or bars that may be raised against the admissibility.

Generally when a man is under intoxication he confesses the guilt. If confessional statement is made
by some accused person while he was drunk, it will be admissible if he had not become quite
senseless for the very reason that it has not been obtained by inducement or threat now was it
made while he was in custody of a police officer.

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When a statement is made voluntarily without inducement, threat or promise from a man in
authority; and when it is not made to a police officer, it is admissible notwithstanding the fact that
the person who took the confessional statement did not warn the accused that he was bound to
make the statement and if he did so, it may be used in evidence against him and upon that he may
be convicted.

Want Of Warning: a voluntary confession is admissible, though it does not appear that the prisoner
was warned, and even though it appears on the contrary that he was not so warned.

Section 30- Consideration of Proved Confession Affecting Person Making It And Others
Jointly Under Trial For The Same Offence

When more persons than one are being tried jointly for the same offence and a confession made by
one such persons affecting himself and some other such persons is proved, the court may take into
consideration such confession as against such other person as well as against the person who
makes such confession.

Principle Underlying: when more persons than one are jointly tried for the same offence, the
confession made by one of them, if admissible in evidence, should be taken into consideration
against all the accused, and not against the person who alone made it. It appears to be very strange
that the confession of one person is to be taken into consideration against another. Where the
confession of one accused is proved at the trial, the other accused persons have no other
opportunity to cross examine him. It is opposed to the principle of jurisprudence to use a statement
against a person without giving him the opportunity to cross examine the person making the
statement. This section is an exception to the rule that the confession of one person is entirely
admissible against the other.

In Kashmira Singh v. State of MP , the accused Kashmira who was an Assistant Food Procurement
Inspector, his services along with the another food inspector were terminated on a report of the
food officer when they were getting the rice polished in a rice mill. Kashmira was heard twice
saying that he would teach a lesson to the food officer. After a few months the son of the food officer
was found missing and his body was found in a well. Kashmira, Gurudayal brother of Kashmira,
Prithipal son of Gurudayal and one Gurubachan, a rickshaw puller in this case were tried of
conspiracy and killing the child. The prosecution story was that Prirthipal led the child, when he
was playing near the Gurudwara, for some distance and then the child was taken on the cycle by
Kashmira to a house where he was murdered. According to the judgment of the SC Guruibachan
was not a rickshaw puller by profession and the rickshaw was hired only for that night for the
disposal of the body of the deceased.

Hence before the confession of one accused may be taken into consideration against others, it has to
be shown that:

1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the confessioner and the others.

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A confession may be of the different type according to the matter of the cases. Broadly confession is
differentiated into two different statuses like- when the confession by the means of statements is
given itself in the court of law then such confession will be considered as judicial confession,
whereas, when the confession by the way of statements is produced at any place other than court
then such confession will lead towards extrajudicial confession. The different sets of confession do
not have the same evidentiary values as of others and hence their values degrade and upgrade by
the circumstance that how what and where these confessions are made. The exceptional feature of
confession is that a conversation to himself also leads toward a confession and this feature was
lighted in the case of Sahoo v. the State of U.P. where the accused has murdered his son’s newly
wedded wife as he usually has serious arguments with her, and when the accused killed daughter-
in-law it was seen and heard by many people living there that he was uttering words while stating
that “I finished her and now I am free from any daily quarrels”. The court observed in this case that
the statement or the self conversation made by the accused shall be considered as a confession to
prove his guilt and such confession should be recognised as a relevant in evidence in administering
justice, and just being in the case that the statements are not communicated to any other person,
other than him does not dilutes the relevancy of a confession. Therefore confession made to himself
is also quality evidence which will be considered as relevant evidence in a court of law.

Dying Declaration Sec. 32(1)

Sec 32 and 33 of the Indian Evidence Act provides an exception to the heresay rule. Sec 32(1) is one
of that exception under which a statement of deceased is admissible if it is related to cause of his
death or the circumstances which resulted in his death, in a case when cause of death of such
person is in question. Such statement is called as ‘dying declaration’. Sec 32(1) provides “When a
statement is made by a person as to cause of his death or as to any of the circumstances of the
transaction which resulted in his death in cases in which the cause of that person’s death comes
into question.

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

Essentials of the Dying declaration to be relevant

i. Person making statement must die and cause of his death is in question before the Court

As dying declaration is a statement of a person about the cause of his death’ or ‘circumstances
which resulted in his death’ in case where his death is in ‘question’. The death may be caused by
either homicide or suicide. Therefore if a person survived after making such statement, such is not
dying declaration. Statement of deceased is dying declaration. Therefore the death of the person
making statement must be proved before the Court to use the statement of the person making it as
‘dying declaration’ under sec 2(1). If such person survived after making statement as ‘dying
declaration’ such statement later may be used to corroborate the testimony of the person making it
under sec 157 of the Indian evidence Act or to contradict him under sec 145 of the Indian Evidence
Act.

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Statement about the death of another person is not dying declaration

(ii) Statement must relate to the cause of his death or the circumstances of the transaction
which result his death

The expression ‘cause of death’ is concerned with reason of the death of the person making the
statement. For example, A makes a statement that B assaulted him with spear and died. Such
statement of A is admissible as ‘dying declaration’ in the case where cause of death of A is in
question. The immediate death is not required, If A dies after some time, it don’t affect the nature
of ‘dying declaration’ because cause of the death was the injury given by the B. As held in Moti Singh
v State of UP AIR 1964 SC 900 the death of the person making statement caused by the injury he
received in the incident for which accused is being prosecuted. If death is caused by any other
reason, such statement would not be admissible as dying declaration.

For example, A was tried for the murder of B. B narrated the story of his death to the Police. But in
medical examination the reason of the death was’ tetanus’. The statement of the B is not admissible
as dying declaration.

The expression ‘circumstances of the transaction which resulted in his death’ is a wide application.
It is not restricted to ‘caused the death of the maker of statement’ but includes all ‘proximate
relation to the actual occurrence’. For example, statement made by the deceased that he was
proceeding to the spot where he was in fact killed, or statement of the deceased that is reason of the
proceeding to the particular spot, or he was going to meet the particular person, all such statements
are dying declaration as these includes ‘circumstances of the transaction which resulted his death
(read the fact of the Pakla Naraiyan Swamy Case).

The circumstances must have some proximate relation to the actual occurrence.(Kans raj v State of
Panjab AIR 2000 SC 2324. For example, a married woman had been writing to her parents and
other relatives about her critical condition at the hands of her in laws. She lost her life after four
months later. Her letters were held to be admissible as dying declaration. (Sharda Birdhi chand
Sharda v State of Maharastra AIR 1984 SC 1622).

(iii) Statement can be made with or without expectation of death

If the statement has direct relation to the cause or the occasion of the death of a deceased, it is
immaterial that it made before the person has received any injury or before the cause of death
raised or before the deceased has any reason to anticipation of being killed. For example

Where the fact in issue was whether A had committed murder of B. Statement of B before he was
assaulted that A has taken cash and ornament form him and that he going there to demand , is
admissible as dying declaration.(Jainand v Rex AIR 1976 ALL 291)

Forms of Dying declaration

There is no particular form to be required in making dying declaration. It may be in oral or writing,
or even may be partly oral or partly writing. It may be if form of signs or gesture by the deceased.
(Queen Empress v Abdullah, ILR(1885)7 All 385. There is no particular form or procedure

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prescribed for a dying declaration nor it is required to be recorded by the Magistrate.(Ashabai v
State of Maharastra AIR 2013 SC 341). Not even any format is required to record the dying
declaration such as question answer or otherwise. The presence of magistrate, certificate of the
doctor as to mental or physical status of the person making the declaration, were all developed by
judicial pronouncements ( read the case Ram Bihari Yadav v state of Bihar AIR 1998 SC1850).

In case an injured person lodged the FIR and died, it is dying declaration. (K. Ramchand Reddy v
Public Prosecutor (1976) 3SCC 104. Same in case where complaint made to police is relating to
cause of death or circumstances of the transaction which resulted death of the maker is dying
declaration(Jai Prakash v state of Haryana1999 Cr LJ 837 SC ).

Evidentiary value of Dying declaration

Dying declaration is admissible in evidence being heresay as an exception to the general rule of
evidence that heresay evidence is not admissible. Admissibility of dying declaration is based on the
maxim “Nemo Moriturus Prassumttur Mentire”which means the man will not meet with his maker
with a lie in his mouth. Mathew Arnold said “ truth lies upon the lips of dying man”. It is also said by
Richard II “where words are scare, They are seldom spent in vein; They breath the truth, That
breath their words in pain”.(See M. Monir, law of evidence, page 164). In Ravi Kumar v State of
Tamil Naidu AIR 2006 SC 1448 it was held by the Supreme court that dying declaration is
admissible upon the consideration that declarant has made it in extremity when maker is at the
point of death and when every hope of this world is gone, when every motive of the falsehood is
silence and mind is induced by the most powerful consideration to speak the truth.

Therefore, much weight is given to the dying declaration as an evidence. But as maker of the dying
declaration is not subject to the cross examination, Court always is scrutinize that it must be of such
nature as inspires the Court with it correctness. It can be said that Court must satisfied that dying
declaration is not product of tutoring, prompting and imagination, or conducive.

Further, it is not absolute rule of law that a dying declaration cannot form sole basis of conviction
unless corroborated. The rule requiring corroboration is rule of prudence (Panneerselvam v state
of Tamil Naidu (2008 ) 17 SCC 190). A dying declaration which is truthful, consistent, coherent and
without any infirmity don’t need corroboration. A dying declaration which was recorded by the
competent magistrate in the proper manner such as question and answer, and as practicable in the
words of the maker of the declaration, stands on mush higher footing than a dying declaration
which depends upon oral testimony. The Court has to examine the circumstances, such as
opportunity of the dying man of observation, whether the capacity of the man to remember the
facts stated, had not impaired at the time of making statement, that the statement is consistent, if
maker has several opportunity of making it ,and it has been made at earliest opportunity and is not
result of tutoring by the interested parties. (read the facts of Kushal Rao v State of Madhya Pradesh
AIR 1958 SC22). In Paniben v State of Gujarat (AIR 1992 SC 1817) Supreme Court laid down certain
guidelines while dealing with dying declaration.

i. With all mentioned above about the evidentiary value of dying declaration it is held that
ii. In case dying declaration is suspicious it should not be acted upon without corroboration.

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 iii. Dying declaration which surfers from infirmity cannot be the basis of conviction.
iv. Merely the dying declaration does not contain details, is short, is not be discarded
v. Where there are more than one version of dying declaration, the first in point of time be
preferred.
vi. Where the dying declaration is incomplete by the reason of death but clear and makes a
clear accusation against the accused, it can be relied for conviction.

As a general rule of law, oral evidence is required to be direct and the oral evidence is required to
be stated before the court by the person who received the first-hand knowledge of the facts. When
any witness appears before the court he needs to give his testimony on oath and there are also the
provisions of examination-in-chief, cross-examination and re-examination. But there is a certain
class of person whose statements are recorded who are not considered to be a witness.

Hearsay rule

One of the exceptions to the general rule is hearsay evidence which is considered inadmissible as it
is not stated on oath and there is no opportunity of cross-examining the original source by the party
against whom the proof is given. Also, there can be chances of falsehood.

Illustration:

A stabbed B and C was present at the scene of a crime, so he is a first-hand witness. His testimony
will be recorded on oath and he can be cross-examined. He can even be held liable if he gives any
false statement or any misleading statement. But if there is D who gives a statement that C told D
that A stabbed B, it will be a second-hand witness and the hearsay rule will be applicable.

The hearsay rule is mainly based on two major considerations:

(i) The necessity of the evidence.

(ii) The circumstantial guarantees of trustworthiness.

Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule and under this
section the hearsay evidence is admissible. Under this section, indirect evidence is relevant as held
in the case of Mst. Biro v. Atma Ram.

According to section 32, any written or verbal statement containing relevant facts which is made by
a person who is either dead or cannot be found or has been given by a person who has become
incapable of giving evidence or the attendance of such person can require delay or expense which
seems unreasonable to the court, are relevant in the following cases:

• When the statement is related to causing of death

According to section 32(1), when the question comes to the death of a person and that person gives
a statement regarding the cause of his death or about any of the circumstances which led to his
death then it is considered to be relevant.

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The statements made are considered relevant even if that person making a statement was there or
not at the time when the statement was made during the expectation of death.

Illustration:

When the question arises that whether B murdered A or not.

A dead due to the injury caused by B and suit against B is carried on by legal heir of A.

The statement of A regarding his death referring to the murder and other actionable wrongs are
relevant facts.

• A statement made in the ordinary course of business

A statement which has been made by such person during the ordinary course of business and such
statement consists of any statement or entry of memorandum or any book maintained by him in the
ordinary course of business. It may be considered of any acknowledgement which has been written
and signed for him of any document which is used for commerce which has been written and signed
by him according to sub-clause (2) of section 32.

ILLUSTRATION: When the question in dispute is regarding the question that whether the ship
sailed from Kolkata harbour on a particular date then, a letter written by a member of merchant’s
firm to the correspondent stating that the cargo has been shipped on the particular date is a
relevant fact.

• The statement made against the interest of the maker

When a statement made by a person is against his pecuniary or proprietary interest and it will
expose him if it is true to criminal prosecution or to the suit of damages then it considered being
relevant under section 32(3).

Illustration:

A has made any statement which is against his interest and such statement can expose him, then
such statement is relevant.

• The statement which gives an opinion as to public right or custom

When a statement is made which gives an opinion regarding the existence of any public rights,
customs, or a matter related to the general public interest which it existed, he would have been
aware of and when such statement has been made there was no controversy of such rights, customs
or matter under section 32(4).

Illustration

If a question arises whether the road is a public way. The statement by X who is a deceased
headman of that village is relevant.

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 • The statement as to the existence of a relationship

Under section 32(5), when a statement is given which is related to the existence of a relationship by
blood, marriage or adoption by the party making the statement has a special means of knowledge
about the existence of such relationship about marriage, blood relation or adoption and such
statement is required to be made before the dispute was raised.

Illustration:

If the question of the dispute arises that whether or not A and B are legally married, then the
statement of a deceased clergyman that they were married by him under certain circumstances will
be relevant.

• A statement made in a will or deed in family affairs

When the statement made is related to the existence of a relationship by blood, adoption or
marriage between the deceased persons in any deed or will and such will or deed is related to the
family affairs of such deceased person then it is considered to be relevant under section 32(6). Such
a statement is required to be made before the question in dispute was raised.

ILLUSTRATION: If the question arises that A who is a deceased person, whether the father of B. The
statement of A in his will considering B as his son is relevant.

Statement in a document relating to transaction creating a Right or custom

According to section 32(7), when a statement is stated in any will, deed or any other document
which is related to the question of the existence of a right or custom under section 13(a) of the
Evidence Act,1872. Such a statement should be regarding the existence of a certain right or custom
by which such right or custom which is in question was created, coined, recognised or denied.

Illustration:

When an issue arises about a custom or right in a particular area, the statement of X who was
present when such right or custom was created is relevant.

• A statement made by several persons expressing feelings relevant to the matter in question

When the statement has been made by several numbers of persons who have expressed their
feelings on their part, then such statement is relevant under section 32(8).

EXAMPLE: Public opinion about a matter in dispute.

Who can make the above statements?

1. The person who is dead

The statement made under section 32 must be made by a person who is dead before admitting the
statement before this section. The statement of a dead person has been given importance under this

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section as there can be no better evidence can be laid than the statement made by the dying person
himself about his death.

If the person who has made the dying declaration survives then such statement is not admitted
under section 32 but under the provision of confession.

2. The person who cannot be found

When a person disappears and never heard of and his presence as a witness cannot be compelled
and such a person makes a statement and the party to the proceeding is able to prove that such
person has disappeared but his statement can be proved then such statement can be admitted.

Before such a statement is admitted it is required to be proved that the person who is seeking for
admission of such a statement has made an examination of that person with an honest effort.

3. By the person who is incapable of giving evidence

When a person making a certain statement later become physically unfit and incapable to depose,
in such a situation, if the statements made are related to the sub-clauses of section 32 of the Act,
then it is admitted and may be proved during the proceedings. This section includes any person
who becomes physically incapable of giving a statement on a later stage.

4. Unreasonable delay or expenses

When there can be unreasonable delay or expenses in the procedure of appearance of a witness,
then if his previous statement is relevant, it is admissible.

But, the mere fact that a person is living far away from the place of trial, is not a valid ground of the
admission of a statement under section 32. For the admission of a statement under section 32, it
must be proved that in the attendance of the person, unreasonable delay and expense will take
place.

Dying declaration

The term “dying declaration” is not defined under the Evidence Act but it can be interpreted
according to sub-section (1) of section 32.

As held in the case of Ram Bihari Yadav v. the State of Bihar, “A dying declaration can be defined as
a statement made by a person who is dead regarding the reason for the cause of his death and
regarding any transaction which resulted in his death. Also when the question of death comes into
question then such statements are relevant under section 32 of the Indian Evidence Act. The person
making such a statement was under the expectation of death or not at the time when such
statement was made comes into question”.

Evidentiary Value of Dying Declaration

When a dying declaration is made orally and the person gives the name of assailants and it is
written by any of them, then it is a valid dying declaration. The people present can dispose of orally

65
that the names of assailants were given by the deceased as held in the case of Nanhu Ram v. the
State of M.P.

The oral dying declaration is considered admissible and they are an exception to the general rule of
evidence that considers hearsay evidence as invalid evidence in the eyes of law.

In the case of Bable v. State of Chattisgarh, it was held that the oral dying declaration is an exception
of the Hearsay evidence.

Even when a dying declaration has been made by the deceased before his wife, father-in-law or any
relative in a conscious state and the doctor conducting his post mortem examination has not made a
cross-examination about the mental state of the deceased, then also the dying declaration
considered absolutely valid and conviction can be made on the basis of such declaration as held in
this case of Prabin Ali v. State of Assam.

In the case of Vijay Pal v. State (Government of NCT) Delhi, it was held by the court that it is clear by
the law that when a dying declaration is credible and there is nothing in the record that the
condition of deceased was not so that he could have made the statement to a witness. Like in this
case when the witness rushed to the house of the deceased, she told him that her husband has
poured kerosene on her.

In the case where the death of the deceased by burning by the husband, in such cases, the dying
declaration made by the deceased is considered to be totally true and no evidence is present that
can prove the contrary. Even the absence of kerosene oil in the deceased hairs cannot render the
dying declaration as doubtful as held in the case of Tanua Rabidas v. State of Assam.

‘Nemo moriturns proesumitur mentiri’

This principle means that a man does not lie at the time of his death and he will not meet God with a
lie in his mouth”. A dying declaration is considered to be correct as long as confidence is inspired by
it in the mind of the Court. A dying declaration is required to be judged according to its
circumstances as held in the case of Umakant v. State of Chattisgarh.

As held by the Supreme Court in the case of Uka Ram v. State of Rajasthan, the sense of death leads
to the same feeling which a virtuous man get under oath and the principle of admissibility of dying
declaration is based upon this principle. The admission of dying declaration is made on the
consideration that the declaration has been made by the deceased under extremity. When a person
is near death and his hope is gone for this world then it is powerful consideration that he will be
speaking the truth.

Indian law is based on the principle that “a dying man seldom lies.

There are two types of statements which are made admissible by section 32(1):

• A statement stating the cause of death

• Statement related to any circumstances which resulted in death.

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Conditions for dying declaration

The statement is considered as a dying declaration when the statement is made under the following
circumstances and conditions:

Cause of death

When a person makes a statement regarding his cause of death or about any circumstances or
transaction that resulted in his death then such statement will be considered as a dying declaration
and it is considered relevant.

The statement related to the cause of death of the deponent is admissible and the time gap between
the statement of deceased and the death is considered immaterial.

The statement of the deceased made but the cause of death is something else or some disease, then
such statement is not considered as a dying declaration.

When declarant dies of injury that is yet to be proved

For the statement to be considered as a dying declaration it is required to be proved that the cause
of his death is due to the injury he received in the incident for which the accused is to be
prosecuted. As in the case of Chandra Bhan Singh v. State where the deceased narrated the incident
of murder before the police about the attack on him for murder but later it was found that the death
of deceased was because he developed cancer. So, the statement of the deceased could not be
considered as a dying declaration.

Circumstances which resulted in his death

The expression “any circumstances of transaction that resulted in death” has a wider scope than the
expression cause of death. Even if a statement is not considered as a cause of death but it might be
admissible under the circumstances which resulted in death.

In the case of Patel Hiralal Joita Ram v. the State of Gujrat, it was held by the court that statement of
circumstances that resulted in death is itself enough to expand the scope of admissibility of the
declaration. Any statement related to death directly or indirectly, proximately or remotely are
considered under this and it expands the ambit of dying declaration.

Intention to use such a statement as dying declaration is not compulsory

In the case Bhagirath v. the State of Haryana it was held by the Supreme Court that it is not
compulsory that while recording the dying declaration that statement is to be used at dying
declaration. The intention to use the statement at a dying declaration is not mandatory.

In this case, also the deceased who has suffered the gunshot made his statement but later he died.
The statement recorded was considered as the dying declaration.

The person making a statement when not dead

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When the person who has made the statement as dying declaration survives and does not die, then
such statement is not considered as a dying declaration. It will be considered as confession
statement but not as a dying declaration.

Expectation of death

A statement recorded as dying declaration is considered relevant when the person making the
statement was or was not having an expectation of death.

The expectation of death does not affect the validity of dying declaration but it affects the weight
attached to it. When a person who is making the statement has knowledge that he is going to die
and he does not have any hope of recovery left, then the chances of statements to be true increases
as held in the case State v. Kanchan [AIR 1954 All 153].

Difference between Indian Law and English Law regarding the dying declaration

The rules regarding the dying declaration are different under English law than the Indian Law as
follows:

The dying declaration is not admissible in the civil cases under the English Law but under Indian
law, the dying declaration can be admissible even in civil cases into question.

In the criminal cases under the English Law, the dying declaration is considered only in single
instances of homicide such as murder or manslaughter where the circumstances of the death are
subject to dying declaration while under the Indian Legal System, the statement made as dying
declaration act as evidence whatever the nature of charges may be.

As per the English law, for dying declaration certain conditions are required to exist during the time
of declaration such as:

It is important that the declarant should be in actual danger of death and the statement should be
made receiving the injury.

The declarant should be aware of his danger and he should have left every hope of recovery.

The death should be caused.

Under the Indian Legal system, the third condition of death is necessary as the dying declaration is
considered admissible only when the declarant dies but the first two conditions are not mandatory
under Indian Law for a declaration to be admissible as dying declaration.

Under section 32 of the Evidence Act, the statement of the deponent is considered as a dying
declaration even when he was not in actual danger or he has no actual knowledge of the danger

Under English law, admissibility of the dying declaration depends on the principle that sense of
death is produced in a man’s mind some feeling of that is same as a virtuous person giving a
statement under oath. When a person is at the verge of death and he has no hope left for life, then
the feelings of falsehood disappears and a person’s mind only speaks the truth. Under Indian Law,

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for consideration of statements as dying declaration and testing its credibility, a weight is given to
the facts and circumstances of the case.

Dying declaration recorded by the police

A dying declaration recorded by a police during his course of investigation is considered admissible
under section 32 of the Indian Evidence Act but it is better to leave such declaration out of
consideration unless the prosecution is able to satisfy the court that why it was not declaration
recorded by a magistrate or a doctor as held by the Supreme Court in the case Dileep Singh v. the
State of Punjab [1979 CrLJ 700].

There are two general classes of statements that are dealt with, firstly entries in books of accounts
regularly kept in the course of business and secondly entries in public documents, or in documents
of public character. Both classes of statements are admissible or relevant. Whether the person who
made them, is or is not, called as a witness, and whether he is, or is not, a party to the suit, and are
admissible owing to their special character and the circumstances under which they made, which in
themselves afford a guarantee of their truth.

The first class of statements are not generally admissible according to the principle of the English
Common Law, except in the cases of entries against interest or made in the course of business by
the deceased person, but courts of equity acted upon the principles admitting account books in
Evidence in cases in which the vouchers have been lost, and the principle has been adopted in
certain cases, by the rules of the Supreme Court.

Sec. 34

As a general rule, a man’s own statement is not as Evidence for him, though in certain cases it may
be used as a shred of corroborative evidence. The entries alluded to in Section 34 is the acts of the
party himself must be received with caution. But these statements are in principle admissible upon
considerations similar to those which have induced the courts to admit them in Evidence when
made by persons who are dead and cannot be called as “witnesses”. Moreover, in the word of
Judicial Committee ‘accounts may be kept, and so tally with external circumstances to carry the
conviction that they are true. Moreover, subject to the restrictions that they shall not be sufficient
alone to charge a person with liability without some independent evidence.

Practically applying this rule in India, their lordship in Privy Council said, “no Evidence was brought
before the provincial court or the court of Sadar Dwani Adalat, which was not before the Zillah
court; so that the decree can only be supported by holding that one party, by merely producing his
own book of account, can bind the other. But such a proposition is utterly untenable”. In Ganga
Prasad v. Inderjit Singh, 6 Ind Cas 180, they observed the same effect. Under the old law books, it is
admissible as corroborative Evidence but not as an independent Evidence of the facts stated
therein, under the present entries in books of account is not alone sufficient evidence to charge any
person with liability, i.e. unless corroborated with other Evidence. Account books are admissible
under this Section, even though the entries in them were not made by, or at the dictation of, a
person who has personal knowledge of the truth of the facts stated. This is a matter, however,
which may affect the value of accounts as evidence.

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In Munchershaw Bezanji v. New Dhurumsey Spinning and Weaving Company (1885) ILR 9 Bom
373., one of the plaintiff’s witnesses, Khimiji Thakersi, stated in cross-examination that he had
formerly been employed by Chusmanbhai Dhurumsey at intervals of a week or a fortnight, to make
entries in his cashbook relating to private transactions, which he, the witness, did from
Cassumbhai’s losses memorandum or from oral instructions given by Cassumbhai. This cash book
was then tendered in Evidence, but West J, refused to receive it. The opinion expressed in the
judgment in this last-mentioned case, against the reception of an account book containing an entry
not made at the time of the transaction was to approved by the judicial committee in the case of
Deputy Commissioner of Bara Banki v. Ram Pershad (1900) ILR 27 Cal 118., as it was held that by
Sec. 34 the admissibility of books of account regularly kept in the course of business is not
restricted to books in which entries have been made from day to day, or from hour to hour
transactions have taken place and that the time of making the entries may affect the value of them
but should not, if they have been made regularly in the course of business afterward, make them
irrelevant.

The Expression “book of accounts” means books in which merchants, traders, or businessman;
generally keep their accounts, i.e. statements of debits or credits or receipts or payments. A register
kept at the hotel need not contain any statements of accounts. So until it is shown that such register
also pertained to the pecuniary transactions involving the customers of the hotel the same cannot
be treated as a book of accounts. In the second place, even if it is assumed that a register kept in a
hotel can be treated as a book of accounts, the entry therein cannot become the sole premise to
charge a person with liability.

From a plain reading of the Section it is manifest that to make an entry relevant it must be shown
that it has been made in a book, that book is a book of account has been regularly kept in the course
of business. From the above Section it is also manifest that even if the above requirements are
fulfilled and the entry becomes admissible as relevant Evidence, still the statement made therein
shall not alone be sufficient Evidence to charge any person with liability. It is thus seen that while
the first part of the Section speaks of the relevancy of the entry as Evidence, the second part speaks,
in a negative way, of the evidentiary value for charging a person with liability. It will, therefore, be
necessary for us to first ascertain whether the entries in the documents, fulfil the requirements of
the above Section so as to be admissible in Evidence and if this question is answered in the
affirmative then only its probative value need be assessed.

The account book in which balances are not struck for six days consecutively, is not a document
which would inspire confidence in a court of justice. The entry offered must be an original; if the
original cannot be had, a copy may be used.

In Jain Plastic Industries v. Gopi Chand AIR 1990 Delhi 51, 38 (1989) DLT 445., the question arises
as to whether the tribunal is right, in law, in disregarding the ledger’s accounts which were
produced. It is true that the ledger accounts were prepared by the tenant but the only reason given
for not relying on the ledger accounts produced is that many pages were left blank in the ledgers
which were brought to the court. It is common knowledge, and judicial notice can be taken of this
fact, that whereas a cash book or a journal or other primary books of account may not have blank

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pages. A ledger is meant to contain accounts of different parties like banks, customers, landlords,
tenants etc. A certain number of pages are located in each account.

Sec. 35

The underlying principle of Section 35 is public record. The evidence is said to be acceptable if the
public or other official book is registered or recorded and preserved by the public officer in an act
of official duty. Such documents or public records have got an evidentiary assessment. Before
making any document admissible the obligations must be fulfilled; first, an entry must be kept in
check in public or official record, second the entry must be prepared by a public servant, third the
entry must be prepared by a public servant in satisfying his official duties and last the entry must
state a fact in issue or relevant fact.

Under this section, when it is the duty of a public officer to make certain entries in any public or
other official book, it is admissible in evidence to prove the truth of the facts so entered, as well as
the fact that entries were made by such officer. The reason for this rule is that when a public
servant makes an entry in the discharge of his official duty, the probability of its being truthfully
recorded is quite high. It is presumed in such cases that the officer is discharging his duty with
accuracy and fidelity.

In Anita v. Atal Bihari 1993 Cri. L.J. 549., it was decided by the Madhya Pradesh High Court, it was
held that a birth entry in the Register of Births and Deaths can be taken as the basis for determining
the age of the accused. It was also held that the opinion of a radiologist cannot be preferred over
such an entry.

In a case decided by the Supreme Court, a School Certificate was produced as proof of the age of the
accused. However, the Certificate did not mention the name of the school from where the transfer
certificate was obtained and on the basis of which certificate the accused was admitted to the
school. In the circumstances, it was held that the School Certificate could not be relied upon for
proving the age of the accused. It was held in the case of Jagtar Singh v. State of Punjab, 1993, Cri.
L.J. 2886.

Statements in maps and charts (Sec. 36)

Statements (of facts in issue or relevant facts) made in—

(i) Published maps or charts, generally offered for public sale, or

(ii) Maps or plans, made under the authority of the Central Government or any State Government as
to matters usually represented or stated therein are themselves relevant facts.

Statements in Acts of Parliament of England or India (Sec. 37)

Statements of any facts of a public nature as to the existence of which the Court has to form an
opinion made in a recital contained in any Act of Parliament of the U.K. or in any Central or
Provincial Act or a State Act are relevant facts.

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Law of a foreign country (Sec. 38)

When the Court has to form an opinion as to the law of any country, — any statement of the law of
that country contained in a book printed or published under the authority of the Government of
such country and any report of a ruling of the Courts of such country, is relevant.

What evidence to be given when statement forms part of a conversation, document,

electronic record, book or series of letters or papers (Sec. 39)

When any statement of which evidence is given forms part of a longer statement, or of a
conversation or part of an isolated document, or is contained in a document which forms part of a
book, or is contained in part of electronic record or of a connected series of letters or papers,
evidence shall be given of so much and no more of the statement, conversation, document,
electronic record, book or series of letters or papers as the Court considers necessary in that
particular case to the full understanding of the nature and effect of the statement, and of the
circumstances under which it was made.

Relevancy of judgement

‘’Relevancy of judgement,” it means that every judgement is based upon the facts of each particular
case. If we understand it in a simple way, it says that each and every case has its own importance.
The judgement of each case is based upon the subject matter and it is not necessary that the
judgment of one case is interrelated with another case.

A civil judgement is not relevant to a criminal trial though arising out of the same fact. A judgement
in a civil case for defamation is not relevant to criminal prosecution. The previous judgment is not
relevant to the subsequent case. More importance is given to the facts of the cases and on the basis
of which judgement is given.

It includes sections regarding the judgment of court of justice when relevant from Section 40 to
Section 44 which talks for the same.

Under the Indian Evidence Act, 1872, Section 40 defines that, the existence of any judgment, will be
relevant even in a second trial. Here the rule of ‘res judicata’ applies. It simply means that if any
judgement which prevents the court from giving attention to such a suit or petition then it will be a
relevant fact.

Shrinivas Krishnarao Kango v. Narayan Devji Kango And Others (1954)

This case belongs to a member of a joint undivided family. Both Siddopant and Krishnarao were
members of the Kulkarni family. Krishnarao died in 1897 and left behind a widow (Rukminibai)
who was the sixth defendant. Siddopant died in 1899 leaving his son Gundo. Gundo died in 1901
leaving behind his widow (Lakshmibai) who was the fifth defendant. Lakshmibai adopted a son
Devji, who died in 1935 leaving his three sons. The three sons and a widow (Akkubai) who was the
fourth defendant. In 1944, Rukmanibai adopted the plaintiff and now that adopted son was the
Petitioner in this case and the Respondent was Devji. So, the Plaintiff was claiming for the half share
from the family property. But the Defendant denied the truth and validity of the plaintiff’s adoption.

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They further said that the only ancestral property belongs to the family of Watan’s Land. In this
case, the court held that the adoption of the plaintiff was valid or true and also said that this
question was no longer in dispute. The trial court held that the plaintiff was entitled to the share.

Section 41- Relevancy of certain judgment in probate, etc, jurisdiction

The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling of a court
exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims) or
insolvency jurisdiction is relevant.

This section consist of two parts:

It deals with judgement in rem i.e. a kind of declaration about the status of a person and is effective
to the entire world whether he was a party or not.

A judgement in personam is when a judgment is given to the parties (e.g. a tort or a contract action)
which binds only the parties and is not relevant in any subsequent case.

Such judgment is conclusive proof. It refers to a presumption of a particular set of facts which
cannot be overruled or changed by additional evidence or argument.

In this case of Syed Askari Hadi Ali Augustine v. State (Delhi Administration) & Anr, Shamim Amna
Imam was a Testatrix (a person who made a will or gave a legacy). She was the owner of the
properties in question. She executed a will in favour of the appellant i.e Syed Askari Hadi Ali on
3.5.1998 and after that, she died on 23.5.1998. Syed Askari Hadi Ali filed an application regarding
the will. He also applies for a grant of mutation in respect of the property but the request for
mutation could not be accepted due to certain reasons:-

• The appellant could not produce the original copy of the will.
• The property which was in question was under possession.
• And the Title Suit which was filed by the Testatrix against the appellant was pending in the
civil court.

So, after this many appeals were made and due to lack of proof which was essential in this case;
finally the court said that it is not a fit case where we should exercise our discretionary power or
jurisdiction under Article 136 of the Indian Constitution have regard to the facts of the case and the
circumstances regarding the same.

Kinds of jurisdiction: –

1. Probate jurisdiction

It exercises the power of probate, surrogate, or orphan’s court. It includes the establishment of
wills; settlement of a decedent’s estate; supervision of guardianship of infants.

In this case of Goutam Shantilal Shah vs State of West Bengal, a question arose, whether district
delegates under section 276 of Indian succession act 1925 can entertain an application for grant of

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probate of a will in respect of immovable property. But in the end, it was held that if any application
is made for grant of probate of the will, such application shall be decided in accordance with the
law.

2. Matrimonial jurisdiction

It exercises the power of marriage, divorce, thereto, the nullity suit.

3. Admiralty jurisdiction

It exercises the power of law over cases concerning ships or the sea and other navigable waters.

4. Insolvency jurisdiction

It exercises the power of the Member State within the territory of which the centre of the debtor’s
main interests is situated shall have jurisdiction to open insolvency proceedings.

This case of Krishnaswami Iyer and Ors. vs T.V. Swaminatha Iyer deals whether vakils have a right
of audience in the insolvency of the court at the Presidency Town of Madras. G. Krishnaswami Iyer
was the appellant and T.V. Swaminatha Iyer was the respondent. After all the discussion it was
decided that vakils had no right of audience in the insolvency court.

Section 42- Relevancy and effect of judgments, orders, decrees, other than those mentioned
in Section 41 of the Indian Evidence Act

The effect of judgment or order will be relevant, except those which are mentioned in section 42.
Judgements are relevant if they are related to matters of public nature. But such judgment, order or
proclamation is not conclusive proof of which they state.

Illustration: – X sues Y for the murder of his brother i.e. Z. Y alleges the existence of a public right of
a licensed gun which he used for his protection against Z. The existence of an order in favour of the
defendant. Similarly in a suit by B against A for the murder of C in which A alleged the existence of
the same right of way, is relevant but it is not conclusive proof that the right way of existence.

In this case of Vishnu Dutt Sharma v. Daya Sapra, the Respondent who was Daya Sapra had
borrowed a sum of rupees 1.5 lakhs from the Appellant Vishnu Dutt Sharma on 10-August,1999.
After reminder by appellant to respondent, the respondent issued a cheque on 20-October,1999,
but the cheque received by the appellant with remark of insufficient funds. Then he filed a petition
against the respondent. Earlier it was said that it was the matter of ‘Res Judicata’ but the final
judgement was given that it was not the matter of ‘Res Judicata’. So the appeal is allowed however
the facts, issues and circumstances of this case, there shall be no order as to costs.

Section 43- Judgment, order etc, other than those mentioned in Section 40 to 42, when
relevant

Judgment, order or decree are irrelevant other than those mentioned in section 40, 41 and 42. In
this, the previous judgments are not relevant with concern with the subsequent proceeding.

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Let us understand with an illustration. ‘X’ prosecutes ‘Y’ for stealing his horse from him. ‘Y’ is
convicted. Afterwards ‘X’ sues to ‘Z’ for the horse which ‘Y’ had sold to ‘Z’ before his conviction. As
between ‘X’ and ‘Z’, the judgment which was against ‘Y’ is irrelevant.

In the case of The Duchess of Kingston’s Case, it was held that the Dowager Duchess of Kingston,
Countess of Bristol, was tried and found guilty of the charge of bigamy by her peers, the members of
the House of Lords.

Admissibility of judgments in civil and criminal matters

Admissibility of judgments means that the quality of being acceptable or valid, especially as
evidence in a court of law. So here is some admissibility of judgment in civil and criminal matters: –

The principle of ‘Res Judicata’ may apply between the parties in civil suits.

If the proceedings of civil and criminal cases are for the same cause or reason, then the judgment of
the civil court would be relevant if the conditions of any sections regarding 40 to 43 are satisfied,
but it cannot be said that the same would be conclusive except as provided in section 41.

In a criminal case, section 300 of C.r.P.C, it is said that once a person is convicted, he may not be
examined again for the same offence if the conditions which are mentioned there are satisfied.

In thecaseof Emperor vs Bhagwandas Tulsidas, it was held that the accused murdered Dharamsey
and Mr. Haji, and he says that the matter will come under Section 42 of the Indian Evidence Act
under matters related to public policy. But it was held that the matter related to such an unnatural
death will not come under public concern. Hence, the examination of certain facts is not relevant
under any provision related to the Indian Evidence Act and therefore unacceptable in evidence.

Section 44- Fraud or collusion in obtaining judgment, or incompetency of court, may be

proved

Section 44 of Indian Evidence Act says that if the previous judgment is proved fraud, collusion
(secret or illegal cooperation) or incompetency of court then such judgement does not have the
effect of res judicata.

There are at least 2 parties to a suit or proceeding.

If any party may show a judgment, order, or decree which is relevant under section 40, 41, or 42.

The act only provides that the value of a judgment may be ineffective if these three things are
present in that case that are: –

• Incompetency of the court

• If there is fraud
• If there is collusion

In the case of, Asharfi Lal vs Smt. Koili (Dead) By L.Rs. (1995) which was related to the land reform
dispute and Zamindari abolition as in this case, Raja Ram was the brother of Smt. Koili and husband

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of Smt. Nanki. And here the Asharfi Lal who was an appellant and he said that he was the only heir
of Raja Ram and said for the possession of agricultural land of Raja Ram but the Smt. Koili denied
that the Asharfi lal was the son of Raja Ram. Earlier the judgment was in the favour of Smt. lal but
afterwards the evidence of record which were produced in the consolidation proceedings the
Deputy Director has found that Ashrafi lal was the son of Raja Ram and the only heir.

Opinion of Third Person When Relevant

This falls under Section 45 to 51 of the Indian Evidence Act. Most of the time, it is the general rule
that the opinions of a third person or party are irrelevant. However, there are some
instances/exceptions when the opinion of the third person is taken into consideration.

Sec. 45 – Opinion of the expert

When will the court take the help of expert opinion?

This is mentioned in section 45 of the Indian Evidence Act. The court will take the help of an expert
when the court has to form an opinion on the point of-

1. Foreign Law
2. Science
3. Art
4. Identity of Handwriting
5. Finger Impressions

Then the opinions by these persons specially skilled in Foreign Law, Science, Art, Identity of
Handwriting, Finger Impressions, are relevant facts.

Who is an expert?

An expert is one who is exceptionally skilled in a matter. But it is nowhere essential that experts
must hold any degree or particular attainment.

In the case of, Abdul Rehman vs State of Mysore, Whether professional goldsmith is an expert or
not? The court said particular attainment or degree is not mandatorily required. His qualification of
being skilled is enough for an opinion on any matter.

In the case of, Aziz Bano vs Mohd Ibrahim Hussain, 1925 Court said that though Shia Law on
marriage is of foreign origin, it cannot be said to be foreign law because it is the law of the land and
in force in India.

When is the Opinion of the Third Party Relevant?

1. Opinion of Examiner of electronic evidence: Section 45A

When in a proceeding the court has to form an opinion on any subject matter relating to any
information transmitted or stored in any computer resource or any other electronic or digital form,

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the opinion of the examiner of electronic evidence referred to in Section 79A of IT Act, 2000 is a
relevant fact.

2. Facts bearing upon opinions of experts: Section 46

When the opinion of an expert is relevant, then any fact which either supports or contradicts his
opinion also becomes relevant. It is always open to parties to produce additional evidence like
outstanding books, experiments, etc.

For Example: Where a psychiatrist has proved the madness of a person, then the party may give
additional evidence that madness is often a hereditary character of the person.

3. When the court has to form an opinion as to the person by whom any document was written or
signed, then whose opinion is relevant: Section 47

The opinion of any person acquainted with the handwriting is relevant. It includes a person-

i. Who has seen that person write?

ii. Who has secured (received) documents written by that person (in answer to documents written
by himself or under his authority and addressed to that person.)

iii. Who has in the ordinary course of business received documents written by that person or such
documents are habitually received by him (to whom the letter is habitually submitted)

iv. Even the court can compare handwriting under section 73.

v. It includes the opinion of expert under section 45.

In the case of, Fakhruddin vs State of MP, 1967 SC Supreme Court held that handwriting may be
proved by the evidence of a witness in whose presence the writing was done, and this would be
direct evidence, and if it is available, then any other kind of evidence is rendered unnecessary.

Note: Under section 73 court will compare handwriting to be proved with handwriting already
admitted or proved.

4. Opinion as to electronic signature when relevant: Section 47A

Regarding electronic signature, the opinion of certifying authority that has issued the electronic
signature certificate is a relevant fact.

5. Opinion as to the existence of right or custom, when relevant: Section 48

In the case of existence of any general custom or right, the opinion of person who would have
known if it existed is relevant.

Illustration-

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The right of the villagers of a particular village to use the water of a particular well is a general right
within this section. The opinion of villagers will be relevant because person who would be likely to
know of its existence is relevant.

6. Opinion as to usage, tenets, etc. when relevant: Section 49

When the court has to form an opinion as to-

i. Usages and tenets of any body of men or family, or

ii. Constitution and Government of any religious or charitable foundation.

iii. Opinion of person having special means of knowledge.

7. Opinion on relationship, when relevant: Section 50

When the court has to form an opinion as to the relationship of one to another, the opinion,
expressed by conduct as to the existence of relationship either by-

i. A family member

ii. Other people

Having a special means of knowledge on the subject is a relevant fact. But such opinion shall not be
sufficient to prove marriage in proceeding under-

i. Indian Divorce Act, 1869

ii. In prosecution under section 494, 495, 497, 498 of IPC.

8. Grounds of opinion when relevant: Section 51

The grounds or basis on which an expert makes his opinion are also relevant.

Evidentiary Value of Expert Evidence

Supreme Court in Mobarik Ali vs State of Bombay, 1957 said that if a witness were permitted to
express its opinion and if it is relied upon, then it may amount to delegation of the judicial function,
and that is why the court should exclude it generally.

Furthermore, statements of opinion are not merely superfluous, but they may also mislead the
court. A judge may rely on opinion too much, and then there may be a miscarriage of justice.

The task of inference is on the court and not on the witness, but the above general rule is subject to
certain exceptions, and the reason behind the exception is that in many cases of technical nature,
the opinion of expert does help the court to arrive at a satisfactory conclusion.

Furthermore, as it is the opinion of a skilled person, so it does have value. In many cases, the court
does not possess professional or specialised knowledge.

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Problems with Expert Opinion

Though the opinion of expert is necessary, it has certain issues-

1. There is a danger of error or deliberate falsehood.

2. After all, it is an opinion, and human judgements are fallible. (Fallible- error-prone, open to error)

3. The expert witness, however impartial, may be likely to be unconsciously prejudiced. And these
factors seriously affect its probative force.

(Probative- having the quality or function of proving or demonstrating something; affording proof
or evidence: Sentence Example- It places the probative burden on the defendant.)

So the reliability of such evidence has to be tested in such a way in which any other piece of
evidence is tested.

In this context, it is the duty of the court to call upon an expert to explain the reason for its opinion
and then to form an opinion as to whether or not the expert opinion is satisfactory. The court
should not surrender its opinion to that of expert.

Expert opinion is an opinion on the basis of which court forms its opinion, but at the same time
court has to be cautious as it is only an opinion and not mandatory for the court to obey the same.
The opinion of an expert is not the sole basis for conviction or acquittal; rather, it helps the court in
reaching to the point of conclusivity.

Relevancy of character of a party

Evidence of character is irrelevant in civil cases, Section 52

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

Illustration-

‘A’, a businessman is charged with fraud.

In this case, no evidence of the fact can be treated as relevant which states that he is an honest man
i.e. the character is such that he can never commit fraud.

Neither can the opposite party present evidence of the fact that A’s character had been so trickery
that he must have committed the fraud.

The reasons behind the irrelevance are that a case has to be decided based on the facts of the case
and not the character of the parties. Evidence of conduct doesn’t just delay the proceedings but also
hampers and impairs the mind of the judge. In civil cases, previous convictions of the accused
person are irrelevant.

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There are a few exceptions to Section 52-

Section 55 of the Evidence Act provides that in civil cases, evidence of the good or bad character of
the person that is to receive the amount of damages is relevant. The character of the original
plaintiff is relevant.

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

When the character of the party is itself a fact in issue then the evidence pertaining to the character
of that party is relevant.

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

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

Evidence of previous good character is relevant in criminal cases

Section 53

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

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

In the case of Habeeb Mohammad v. State of Hyderabad, the Supreme Court held that in criminal
proceedings, the character of the accused can help in determining the innocence or guilt of the
accused. It can help in either making him suspicious or free from all the suspicions. Accused is
allowed to prove general good character in the question of punishment.

Evidence of character or previous sexual experience not relevant in certain cases

Section 53A

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

1. Section 354 (Assault or criminal force to woman with intent to outrage her modesty),

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 2. Section 354A (Sexual harassment and punishment for sexual harassment),
3. Section 354 B (Assault or use of criminal force to woman with intent to disrobe),
4. Section 354 C (Voyeurism),
5. Section 354 D (Stalking),
6. Section 376 (Rape),
7. Section 376 A (Intercourse by a man with his wife during separation),
8. Section 376 B (Intercourse by public servant with woman in his custody),
9. Section 376 C (Intercourse by superintendent of jail, remand home, etc.),
10. Section 376 D (Gang Rape),
11. Section 376 E (Punishment for repeat offenders) and,
12. an attempt to commit such offences

and the consent or quality of consent is in question, then neither the character of the accused nor
the victim is relevant. Evidence pertaining to previous sexual acts of the victim is also irrelevant.

Previous bad character not relevant, except in Reply

Section 54

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

There are certain exceptions to this section-

When the accused has submitted any evidence of his good character, in such a case to rebut, the
prosecution can present evidence pertaining to the bad character of the accused.

Explanation 1 to Section 54 provides that when the character is itself a fact in issue then evidence of
bad character can be submitted.

Illustration: In a defamation case, the character of the plaintiff becomes a fact in issue. Section 110
of the Code of Criminal Procedure provides that if a person is by habit a robber, a housebreaker, etc.
then he is to be bound down.

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

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

Character as affecting Damages: Section 55

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Section 55 of the Indian Evidence Act states that in cases of civil nature, the character of the person
who is ought to receive the amount of damages is relevant. This section is an exception to Section
52 mentioned above. The evidence pertaining to the good or bad character of the accused is
irrelevant whereas evidence of the good or bad character of the victim is relevant.

For instance, in cases of seduction or rape or defamation, the evidence of the good or bad character
of the original plaintiff is relevant to decide the amount of damages that the plaintiff is ought to
receive. This is generally used to reduce the amount of damages.

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

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

qualities which he had obtained through education, upbringing or any material condition in life is
called disposition. A bad reputed person may have a good disposition.

Reputation is often referred to as the general estimation of a person. It is what other people think
about that individual. It is to be noted the evidence of those who do not know the individual but
have heard of his reputation is not admissible in court.

Illustration: In the show ‘Suits’, the character Harvey Specter had a reputation of an arrogant and
selfish individual whereas he had a disposition of a highly confident, self-motivated, practical
thinker and focused individual. Both of these things combinedly defined the character of Harvey
Specter.

Distinction between Relevancy of character in Criminal and Civil Cases

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

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

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

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

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

In the case of, Sardar Sardul Singh Caveeshar v. State Of Maharashtra, the Court answered the
question of what is the evidentiary value of the character of an accused in a criminal case. It
observed that Section 53 mentions that the good character of the accused is relevant in cases of
criminal nature.

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

The court quoted Wigmore’s proposition which stated that evidence can be used in a doubtful case
to tilt in favour of the accused but it can’t outweigh a piece of evidence which shows the guilt of the
accused. Evidence of good character is a weak evidence but can be used in criminal cases.

As a general rule of law, the party to a suit is required to establish his cause before the Court by
adducing either oral or documentary evidence which includes electronic evidence. However, under
certain scenarios, provided under the Indian Evidence Act, 1872, where the parties to a suit are not
required to provide evidence in favor of their assertions.

Facts which need not be proved

Section 56 to Section 58 of the Indian Evidence Act contains the provisions related to facts which
need not be proved.

Facts which need not be proved:

1. Facts which are judicially noticeable need not be proven

2. Facts admitted need not be proved

Fact Judicially noticeable need not be proved and Facts of which Court must take judicial notice are
defined under section 56 and 57 of Indian Evidence Act 1872. Provisions under these sections are:

Section 56 of Evidence Act "Fact Judicially noticeable need not be proved": No fact of which the
Court will take judicial notice need be proved.

Simply put, any judicially noticeable fact does not require to be proven before the Court.

Meaning of the clause “taking judicial notice”:

Judicial notice is the acknowledgement by the Court on certain matters which are so recognized or
transparently established that their existential evidence is deemed inessential. The clear reason

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behind this is that such facts are expected to be within the ambit of knowledge of the Judge and
therefore any attempt of proving them would indirectly undermine the judicial competency.

The Court, if it is unknown to such facts, can inform itself about them, in prior to taking evidence.
These facts are deemed to be judicially noticed.

This Section has to be understood in harmony with Section 57, reckoning the instances when the
Court shall take judicial notice such that adducing any evidence would be unnecessary.

Facts of which the Court must take judicial notice

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

Section 57 of Evidence Act "Facts of which Court must take judicial notice":

The Court shall take judicial notice of the following facts:-

[(1) All laws in force in the territory of India :]

(2) All public Acts passed or hereafter to be passed by Parliament [of the United Kingdom], and all
local and personal Acts directed by Parliament [of the United Kingdom] to be judicially noticed;

(3) Articles of War for [ the Indian ] Army [Navy or Air Force];

(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of
India, of Parliament and of the legislatures established under any laws for the time being in force in
a Province or in the States;

(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of
Great Britain and Ireland ;

(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India]] and of
all Courts out of [India] established by the authority of [the Central Government or the Crown
Representative];

the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals
which any person is authorized to use by [the Constitution or an Act of Parliament of the United
Kingdom or an] Act or Regulation having the force of law in [India]

(7) The accession to office, names, titles, functions and signatures of the persons filling for the time
being any public office in any State, if the fact of their appointment to such office is notified in [any
Official Gazette];

(8) The existence, title and national flag of every State or Sovereign recognized by [the Government
of India];

(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and
holidays notified in the Official Gazette;

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(10) The territories under the dominion of the Government of India];

(11) The commencement, continuance, and termination of hostilities between [the Government of
India] and any other State or body of persons;

(12) The names of the members and officers of the Court and of their deputies and subordinate
officers and assistants, and also of all officers acting in execution of its process, and of or all
advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or
act before it;

(13) The rule of the road [ on land or at sea].

In all these cases, and also on all matters of public history, literature, science or art, the Court may
resort for its aid to appropriate books or documents of reference. If the Court is called upon by any
person to take judicial notice of any fact, it may refuse to do so unless and until such person
produces any such book or document as it may consider necessary to enable it to do so.

Facts admitted need not be proved

According to Section 58, no fact requires to be proved in any suit which the parties to the suit, or
their agents agree of admission at the hearing, or which they agree to admit in writing, prior to the
hearing or which they under any existing rule of pleading are deemed to have been admitted
through their pleadings.

However, the Court by exercising its discretionary potency may require the admission of such facts
in some other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the hearing.

2. Facts which the parties to the suit or their agents agree to admit, prior to the hearing, in writing.

3. Facts deemed to be already admitted by the parties to the suit through pleadings.

Oral evidence
Oral evidence: It means statements made by a witness before a court in relation to matter of fact
under inquiry. Oral evidence refers to evidence which is confined to the words spoken by mouth.
Thus the oral evidence is the evidence that is given orally before the court.

Oral evidence means and includes all statements which the Court requires, or permits, to be made
before it, by witnesses in relation to matters of fact under inquiry. Oral evidence is a statement of
witnesses.

Chapter IV of the Indian Evidence Act, 1872 deals with the provisions of oral evidence. Section 59
and 60 of the India Evidence Act mainly deals with oral evidence other than that there are many
sections in the act that also deals with oral evidence such as section 22 and 22A deals with oral

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admissions and chapter 6 of the Indian evidence act which deals with the exclusion of oral by
documentary evidence.

Section 59 deals with Proof of facts by oral evidence. It says all facts except contents of documents
and electronic documents may be proved by oral evidence. The conditions in which oral evidence
can be given are given in section 60 of the Indian Evidence Act, 1872. According to section 60 of
the evidence act oral evidence should be direct that is to say that it should not be hearsay. Hearsay
evidence is not acceptable in the Indian evidence law as a general rule.

Documentary evidence
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. All electronic evidence
produced for the inspection of the court is included in the document and therefore they are also
documentary evidence. A document is evidence only when it is produced for the inspection of the
court.

Documentary evidence is dealt in chapter 5, section 61 to 90A of the Indian Evidence Act, 1872.
Sections 61 to 73A deals with the general rules for proving documentary evidence in various cases,
sections 74 to 78 deals with public documents and section 79 to 90-A deals with presumptions as
to documents. Documents are referred to any kind of writing or digital record etc. that is
permanent.

Section 61 says that the contents of a document may be proved either by primary evidence or by
secondary evidence. Further, Section 62 and 63 explains what is primary and secondary evidence
respectively.

Difference between Oral and Documentary Evidence

Oral evidence means and includes all statements which the Court requires, or permits, to be made
before it, by witnesses in relation to matters of fact under inquiry; documentary evidence means
and includes all documents produced for the inspection of the Court. Oral evidence is a statement
of witnesses; documentary evidence is a statement of documents. Documents are denominated as
dead proof, as distinguished from witnesses who are said to be living proofs. Documentary
evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness.
There are more ways of trying the genuineness of documentary evidence than there can be of
disproving oral evidence. In many cases, the existence of documentary evidence excludes the
production of oral evidence.

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 Difference between Oral and Documentary Evidence

Oral evidence Documentary evidence

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

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

3 Oral evidence is the verbal testimony of a Documentary evidence is the written of scribed
witnesses. testimony of facts which is a document or thing.

In oral evidence, the witness tells about the In documentary evidence, the facts are told and it is
facts by speaking or with gestures. recorded in writing.

4 In case of oral evidence, the witness In case of documentary evidence, the document or thing
must be competent to adduce evidence. must be admissible in evidence.

5 Oral evidence is provided under Section Documentary evidence is provided under Section 61 to
59 and 60 of Indian Evidence Act, 1872. 66 of the Indian Evidence Act.

6 Primary evidence is considered as the evidence which is

Section 59 of the evidence says that it given in several parts like duplicate copies or as
considers all facts as oral evidence counterpart like those which is signed by the parties or
except electronic evidence and photocopy of the document whereas, Secondary
documentary evidence. Section 60 says evidence contains certified copies, that have been made
that oral evidence must be direct. by the same mechanical process and also contain
counterparts of the document against the parties.
7 For example- any crime has been
committed by a Ram and there is a
person available at the movement then For example- a photocopy of a document or
whatever he heard, sees, perceive, or photograph.
forms an opinion all this is considered as
oral evidence.

Kinds of evidence

1. Direct evidence

Direct Evidence is considered as imperative evidence for deciding the matter in the issue. It directly
proves or disproves the fact. In such evidence, a specific fact is established directly without
providing a reason to connect to the fact. One hardly needs to point out the illustration provided as
the evidence of the witness in court is direct evidence as opposed to a testimony to a fact suggesting
guilt.

Such evidence is real, tangible, or clear evidence of a fact that requires no thinking or consideration
to prove its existence. However, relying on the evidence completely without any reasoning to

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prove its existence can be considered as a drawback as well. For instance, one may be prosecuted
for perjury.

2. Circumstantial evidence

Circumstantial or indirect evidence refers to evidence which proves the facts in issue by providing
other facts, that is, indirect facts and then proving their relevance. A satisfactory conclusion can be
drawn from such evidence by relating a series of other facts to the facts in issue. Such indirect
facts must have been associated with the facts in issue and have a cause and effect relation.

Under the Indian Evidence Act, “circumstantial evidence” is covered under the expression “relevant
facts”. Here, “relevant facts” need to be proved by direct evidence which includes oral or
documentary evidence.

In the case of Ashok Kumar v. The State Of Madhya Pradesh, an appeal was made against the finding
of the accused as guilty of the murder of his wife. However, it was argued by the appellants the
entire prosecution was based on alleging circumstantial evidence and there was no eye witness. It
was held in this case that the circumstantial evidence must satisfy the following facts:

• The circumstances from which an inference of guilt is sought to be drawn must be firmly
established;

• The circumstance should be of definite tendency and undoubtedly point toward the guilt of
the accused;

• The circumstance should be incapable of explanation of any reasonable theory that saves
the accused from the guilt.

Thus, the appeal was successful and the accused-appellants were accused of the charge. They were
given the benefit of the doubt as the circumstantial evidence couldn’t fulfil the above-mentioned
conditions.

3. Digital/Electronic evidence

Originally, digital or electronic type of evidence was not mentioned or covered under the definition
of evidence. However, the definition of evidence was amended by the Information Technology Act,
2000 to include ‘electronic records’ within the same. An electronic record includes record
generated, data generated, the image stored, sound stored, or any information received or sent in
an electronic form.

Such evidence must be collected with a reasonable and least objectionable means. The manner of
the collection depends upon various factors, such as:

• System configuration encountered,

• Type of investigation, and

• The evidence should be relevant to support the investigation.

The examiner must be aware of the specific electronic data that is required for the investigation.
He/she must be prepared to address the obstacles that arise during electronic evidence collection.

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An electronic record means data, record, data generated, image stored, sound stored, or any
information received or sent in an electronic form.

Sivrajbhan v. Harchandgir

In this case, it was stated that the word evidence in connection with Law includes all agreements
except which prove or disprove any fact or matter whose truthfulness is presented for Judicial
Investigation. In other words, when the parties involved don’t get the opportunity to cross-
examine the statements to ascertain the truth then such a statement does not amount to evidence.

Thus, electronic evidence can be considered as a valid form of evidence.

4. Documentary evidence

‘Document’ is defined in Section 3 of the Indian Evidence Act. Documentary evidence refers to any
matter described or expressed upon any substance by means of letters, figures or marks or by more
than one means which can be used for recording the matter.

Such evidence is produced in the form of a document in order to prove a disputed fact. Essentials or
subject- matter of documentary evidence are as follows:

• how the contents of a document are to be proved.

• how the document is to be proved to be genuine.

• how far and in what cases the oral evidence is excluded by documentary evidence.

5. Exculpatory evidence

Exculpatory comes from the word ‘exculpate’, which comes from two Latin words ‘ex’ meaning
from and ‘culpa’ meaning blame.

Exculpatory evidence refers to evidence which discharges the defendant and helps them to
establish their innocence, thus proving him/her not guilty. In reality, the prosecutor, as well as the
defence attorney, gather evidence to make their case. The prosecutor needs to turn over the
evidence to the defence attorney before he uses it to prove the defendant as not guilty. In case he
fails to provide the defence attorney with the same, the case can be dismissed or retired, thus
proving the defendant innocent. In other words, any evidence which is favourable to the
defendant is considered to be exculpatory evidence.

Certain evidence can confuse the prosecutor when the evidence doesn’t directly exculpate the
defendant. However, any evidence that points towards the innocence of the defendant is considered
to be exculpatory. For example DNA evidence on a knife in a murder case

DNA evidence could be either inculpatory or exculpatory, depending on the test results.

1. Forensic evidence

Forensic evidence might lead to crucial investigative leads. Such evidence help in looking at and
analysing things that cannot be seen with the naked eye. It varies from the type of crime one is
investigating. For instance, in the case of a vehicular burglary, the DNA or fingerprints can be

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traced. Here DNA (deoxyribonucleic acid) is the founding block of all human beings. Investigators
can find preparatory DNA in biological evidence found at a crime scene.

Forensic evidence can be divided into two categories, that is, physical evidence and biological
evidence. Physical evidence refers to non-living or inorganic matter such as fingerprints, shoe
impressions, tire impressions, fibers, glass, drugs, bullets, paints, petroleum by-products, etc. on
the other hand, biological evidence includes blood, hair, saliva, urine, etc. it also includes botanical
materials such as plants, wood, pollen, cocoons, etc.

2. Hearsay evidence

Hearsay evidence refers to evidence which the witness has neither personally seen nor heard. It is
just reported by the witness and considered to be very weak evidence. In other words, it refers to
something that others have said or heard. There are no set standards to receive such evidence
provided it has reasonable credibility and nexus. In the absence of such credibility and nexus, it is
difficult and dangerous to act upon such evidence. Thus, such a piece of evidence cannot be used if
its credibility is not assured and questioned.

Such evidence is often rejected as they are considered to be irrelevant. They are inadmissible
because the witness has neither personally seen nor heard. The witness has not perceived the
evidence through his senses.

In the case of Balram Prasad Agrawal vs The State Of Bihar & Ors, a young married woman named
Kiran Devi, daughter of the appellant-complainant, who is alleged to have been murdered by the
respondent-accused or to have been forced to commit suicide by falling in a well situated on the
backside of the house of the accused. It was said that the information obtained from their
neighbours was completely hearsay evidence, however, the respondents were convicted on the
basis of hearsay evidence.

• It was stated in this case that the evidence of a statement made to a witness who is not
himself called as a witness may or may not be hearsay, following are the possible situations:
• It is hearsay and inadmissible when the object of the evidence is to establish the truth of
what is contained in the statement.
• It is not hearsay and is admissible when it is proposed to establish by the evidence, not the
truth of the statement but the fact that it was made.
• The fact that the statement was made quite apart from its truth is relevant in considering
the mental state and conduct of the witness or a person in whose presence these statements
were made.

3. Physical evidence

Physical evidence refers to any evidence which is found at the crime scene. It includes fingerprints,
cut marks, tool marks, handprints, footprints, etc. According to the American Academy of Forensic
Sciences (AAFS), it refers to anything that needs a microscope to view something that cannot be
seen by the naked eye.

Examination of such evidence can be conducted by various methods such as:

• Making impressions in plaster;

• Lifting fingerprints from the objects encountered;
• Taking images of marks.

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The examination of such evidence is imperative for forensic analysis. Identifying the alterations is
one of the main purposes of such examination.

Later, such evidence can be used to identify and compare the situation, like method or technique
used by the defendant to harm the plaintiff, type of manufacturing method used to manufacture
the murder weapon or any other tool. With the help of advanced technology, the specialist can also
recover the text damaged by accident or on purpose.

4. Prima facie evidence

Prima facie evidence refers to the evidence whose existence is questionable but at the same time,
it establishes a fact. The existence of such evidence cannot be questioned until it is rebutted. It is
also called as presumptive evidence as it is sufficient to raise a presumption of the truth of a fact
until and unless it is argued and rebutted.

Such evidence is sufficient to establish a basic fact. For instance, the performance of people can be
considered as discriminatory, if white people perform better than black people.

5. Statistical evidence

Statistical evidence refers to the data which people search or investigate for the purpose of proving
a particular point. Such evidence measures the strength of the evidence. Every time one uses
numbers to prove a point or establish a fact he/she tends to use statistical evidence.

Examples of statistical evidence are:

• Restaurants stating the fact that they serve one million people per year;
• Two million migrants have crossed the borders in a specific year;
• Sugar-free chewing gums are recommended by eight out of ten dentists.
• Testimonial evidence

Testimonial evidence refers to evidence used to prove a particular point by testimony to the
courts. Testimony can be either spoken or formal written statements.

In certain cases, the testimonial evidence is inadmissible in a court of law. The courts will decide
whether or not such evidence is relevant to the case on the basis of facts and proficiency. In the
following cases the evidence will not be allowed:

• If it is misleading and wastes the time of the court;

• If it is unfair and detrimental;
• If it comes from the information between the attorney and the client;
• If it is not actually provided by an expert witness.

For example, a doctor is called for the testimony, however, a nurse appears as a witness.

7. Judicial evidence

Judicial evidence refers to evidence received by the court that proof or disproof the facts. Such
evidence includes:

• Confessions of accused in a court of law;

• Statement of witnesses in a court of law;

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 • Documentary evidence and facts presented for examination by the court.
• Non-judicial evidence

Non-judicial evidence primarily refers to the confession made by the accused outside the court of
law and in the presence of any person. If such evidence is proved in the court of law then it takes
the form of judicial evidence.

9. Primary evidence

According to Section 62, primary evidence is considered to be the topmost class of evidence. Such
evidence is an original document that needs to be submitted before the court for inspection.
Moreover, it is admissible without any prior notice.

Such evidence must be presented before the court before the secondary evidence. Moreover,
secondary evidence can be presented only in the absence of primary evidence by explaining the
reason for the absence of such evidence.

10. Secondary evidence

According to Section 63, secondary evidence is considered to be an inferior type of evidence. It

implies, that even after producing secondary evidence one needs to produce primary evidence in
order to fill in the gaps.

Such evidence can be presented in the absence of the primary evidence, however, the notice of the
same is to be given.

However, if the secondary evidence is accepted without any objection within a reasonable time
then the parties do not have the right to argue that the point was proved with the help of secondary
evidence and not primary evidence.

11. Real evidence

Real evidence is also known as material evidence. It is tangible evidence that the court can
examine for itself. It is presented before the court by inspection of a physical or material object.
Such evidence is not derived from a document or witness. However, such evidence needs to be
supported by a witness, preferably an expert witness who can explain the significance of evidence.

Real evidence includes:

• Material object (murder weapon, in a murder case);

• Photographs (position and state of the deceased body, in a murder case);
• Video recordings;
• Out of court inspection;
• Person’s behaviour and appearance.

12. Oral evidence

Oral evidence refers to evidence which is confined to the words spoken by mouth. It is sufficient
to be proved without any documentary evidence provided it is creditworthy. Chapter IV of the
Indian Evidence Act, 1872 deals with the provisions of oral evidence. If a statement is
contradictory to the previous statement, then the oral evidence may be considered as doubtful.

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Certain kinds of contracts or grants can be created orally. Thus they do not require any document,
such as:

• A sells his cat for Rs. 1000 to B.

• A wants to mortgage the cat for Rs. 1000 to B.
• A pays Rs.1000 to B and takes back the possession of the cat.

However, there are many documents that need to be necessarily written and registered. Also, the
best evidence is the one which is reduced to documents.

13. Scientific/Expert/Trace Evidence

Scientific evidence is generally referred to as empirical evidence. Such evidence is gathered from
scientific research which requires a lot of investment of time and patience on the part of the
researcher. In order to be recognised as evidence, such research needs to be done and established
according to the set standards.

Scientific research primarily relies on data and it is the responsibility of the researchers to ensure
that such data is true. Thus, the research can be conducted ethically and safely only if the data is
collected and analysed properly.

For instance, if the research involves environmental process then the test and control should be
carried out under natural conditions. If it is practically impossible to do so then lab-based studies
can also be used.

The ability to admit scientific evidence, however, is at the discretion of the presiding judge. The
judge may consider various factors, such as:

• The validity of the evidence;

• The credibility of the science behind it;
• How influential evidence is during the case.

Scientific evidence is relevant in cases where conventional forms of crime have assumed immense
proportions.

14. Substantive and corroborative evidence

In layman language, substantive refers to something considerable, that is, to have a strong base.
Whereas, corroborative refers to something that needs to be more considerable.

Substantive evidence is the evidence on the basis of which a fact is proved and which requires no
corroboration. On the other hand, corroborative evidence is the evidence used to make substantive
evidence more concrete. Both the evidence are either direct or circumstantial or both.

The significance of corroborative evidence depends on substantive evidence. In other words the
existence of corroborative evidence depends on substantive evidence.

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Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the
documents. There are certain presumptions regarding the documentary evidence in this act.
According to the Indian Evidence Act, the presumption is of two types. There are certain cases in
which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined
in Section 4 of the IEA. According to this Section,

“May presume” means whenever it is mentioned by this Act that the Court may presume a fact,
it may either consider such fact as proved, unless and until it is disproved or may call for proof
of it.

“Shall presume” means whenever it is mentioned in this Act that the Court shall presume a fact,
it shall consider such fact as proved, unless and until it is disproved.

Presumption as to the Genuineness of Certified Copies

The certified copies are the copies of public documents that are provided by the authorized
officer when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the
presumption as to the genuineness of these certified copies. According to this Section, the court
presumes the certified copy to be genuine when it comes with a valid certificate. The court also
presumes that the officer who has signed the documents holds the official character of the
designation mentioned in the certificate. The certified copy of the public document must contain
a certificate which is provided by the authorized officer that has to mention that it is the true
copy of the document and the officer has to sign the certificate with their name and they also
have to mention the date and designation. The certificate should also be sealed whenever it is
necessary by the authorized officer.

Presumption as to Documents produced as Records of Evidence

Section 80 of the Indian Evidence Act provides the various presumptions regarding the
documents which are provided as evidence. The Court presumes that the documents which are
produced for inspection are genuine. The court also presumes that any statements as to the
circumstances under which it was taken, considered to be made by the person signing it, are
true and that such evidence, statement or confession was duly taken by following all the
procedures. The documents provided for inspection can be a record or memorandum of the
evidence that is provided by a witness during the judicial proceeding before the officer
authorized by law to take evidence or it can be a statement or confession that is provided by any
prisoner or person who is accused, which taken in accordance with the law and the confession
must be signed by the magistrate or any other officer authorized by law.

Presumption as to Gazettes, Newspapers, Private Acts of the Parliament and other

Documents

Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes,
newspapers, private Acts of the Parliament. The court presumes the following documents to be
genuine, according to this Section:

• The document professed to be the London Gazette, or any Official Gazette, or the
Government Gazette of any colony;
• The documents which are a dependency of possession of the British Crown;

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 • Newspaper or journal;
• Copy of a private Act of Parliament of the United Kingdom which is printed by the
Queen’s Printer.
• The documents must be kept in the substantial form mentioned in the law and also it
must be produced from proper custody. The Court also presumes the Official gazettes
kept in the electronic form is genuine if it is kept in the substantial form mentioned in
the law.

Presumption as to Maps and Plans made by Government authorities

The maps and plans are also a recognized type of documentary evidence. Section 83 of the
Indian Evidence Act provides the various presumptions regarding maps and plans made by the
authorities of the government. According to this Section, the maps and plans are presumed to be
genuine and accurate if it is made by the authority of the Central or State government.

Presumption as to a Collection of Laws and Reports

Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and
reports. According to this Section, the court presumes every book which contains laws and
reports of the decisions of the Courts of the country to be genuine if the book is printed or
published by the authority of the government.

Presumption as to the Power-of-Attorney

Section 85 of the Evidence Act provides various presumptions regarding the power of attorney.
According to this Section, the court shall presume that every document that is considered to be
the power of attorney, and that is executed before the authorized officer or Notary Public or any
court or before any Magistrate is executed and authenticated.

Presumption as to Books, Maps and Charts

Section 87 of the Indian Evidence Act provides various presumptions regarding the books, maps
and charts. The Court presumes that any book which contains any information which contains
matters of public or general interest, or any published chart that are in relation with the case or
any statements that contain relevant facts which are produced for inspection is written and
published by the person mentioned in the book. The court also presumes that the time and
place of publication which is mentioned in the book or chart to be true.

Presumption as to Telegraphic Messages

Section 88 provides various presumptions regarding the telegraphic messages. According to the
Section, the court presumes “that telegraphic messages to be that a message, which is
forwarded from a telegraph office to the person to whom such message which claims to be
addressed, is in relation with a message that is delivered for transmission at the office from
which the message purports to be sent”. The Section also mentions that the Court does not make
any presumption regarding the person by whom such a message was delivered for
transmission. The Section is not of any use now as the telegraph services have been stopped by
the Indian Government.

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Presumption as to Electronic Messages

This is a very important Section as a lot of information are transferred in the electronic form in
the modern days. Section 88A of the Indian Evidence Act provides various presumptions
regarding electronic messages. According to this Section, the Court presumes that an electronic
message, which is forwarded by the originator by means of an electronic mail server to the
addressee to whom the message claims to be addressed corresponds with the message as fed
into his computer for transmission. According to the Section, the terms “addressee” and
“originator” has the same meaning as mentioned in the clauses (b) and (za) of sub-section (1) of
Section 2 Information Technology Act,2000”.

Presumption as to due Execution of Documents not Produced

Section 89 of the Indian Evidence Act provides various presumptions regarding the due
execution of documents not produced. The Court presumes that every document that is called
for inspection and the documents are not produced even after the notice period, it is presumed
that the documents are attested, stamped and executed in the manner which is prescribed by
law.

Presumption as to Documents Thirty years old

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are
thirty years old. The Court presumes that any document which is produced for investigation is
from proper custody and the signature corresponds to the signature of the person whose
custody the document was in. The Court also presumes that any handwriting in the document is
the handwriing of the person who has the custody of the document. It is also presumed by the
Court that in case if the document attested or executed, that it was duly executed and attested
by the persons by whom it professes to be executed and attested. The term proper custody
means that the document is with the care of the person and in a place where it would naturally
be. For example, ‘A’ has been in possession of a certain property for a long time. He produces
from his custody deeds the various documents relating to the land showing his titles to it and
the custody is held to be proper.

Presumption as to the Electronic Record of Five years old

Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic
records of five years old. According to this Section, the Court presumes that when any electronic
record that is above five years old and it is procured from the proper custody for investigation.
It is presumed that the digital signature corresponds to the particular person whose custody the
record is or the signature belongs to the person who has authorized it. The term proper custody
means that the electronic record is with the care of the person and in a place where it would
naturally be. It is also mentioned in the Section that no custody is improper if it is proved that
the custody is of legitimate origin in the particular case to render such origin possible.

Exclusion of oral evidence by documentary evidence

Evidence reduced in the form of document

Section 91 of the Indian Evidence Act, 1872 lays down the provision that when evidence related
to contracts, grants and other depositions of the property is reduced as a document, then no

96
evidence is required to be given for proof of those matters except the document itself. In the
cases where the secondary evidence is admissible then such secondary evidence is admissible.

There are certain kinds of contracts, grants and other depositions which can be created orally
and they do not require any document.

Illustration

• A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.
• B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.
• B pays Rs. 100 to C and takes back the possession of the dog.
• All of the above-mentioned transaction will be valid even without a written deed.

But, there are many documents and matters of the court which are considered mandatory by
the law to be in writing and registered e.g., judgement and decrees, the deposition of witnesses,
when an accused person is examined etc.

Orally, many contracts, grants and other depositions can be affected but reducing the terms of
the contract on which the party agrees in a document is considered to be the best evidence for
the terms of that contract. When reduced to documents, it acts as the best evidence. Even if the
document is lost or in adversary possession secondary evidence as described under section 65
can be produced before the court.

The principle behind section 91

Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the
contract, grant or depositions of properties have been reduced in the document even though it
is required under law to be reduced into the document. In this condition, if the proof is required,
the document itself is required to be produced or if the secondary evidence is admissible then
the secondary evidence can be used.

Rules to be followed for the exclusion of oral evidence by documentary evidence

The admission of the oral evidence for proving the contents of a document is excluded under
section 91 except where the secondary evidence is considered admissible. The oral evidence is
also excluded under section 92 for contradicting the terms of a contract where the deed is
proved. So, the rules laid down by these sections can be considered as an exclusive rule as held
in the case of Raja Ram Jaiswal v. Ganesh Prasad.

According to the rule laid down under section 91 of the Indian Evidence Act, no evidence can be
produced before the court to prove the statement when the terms of a contract are reduced in
writing except the document itself and under certain circumstances, the secondary evidence.

The oral evidence excluded under section 91 in case of a deed only when the deed contains the
terms of a contract or some property is disposed of through it or the law binds the contents of
the document to be in writing. As held in the case of Tahuri Shal v. Jhunjhunwala, a law does not
make the adoption to be in writing mandatory. The deed of adoption is just a record of the fact
adoption has taken place. No rights are created by it. It is no more than a piece of evidence and
when a party fails to produce it, the law does not bar him from producing oral evidence.

Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be substituted by

oral evidence. Some of the examples of the documents that are required to be in writing by law

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are judgements, an examination of witnesses in civil as well as criminal cases, deeds of
conveyance of land, deed for partition, a will and many more.

Exceptions to Section 91

Exception 1: Appointment of a public officer by the way of writing

As per the general rule, to prove the content of a writing, the writing itself is required to be
produced before the court and in case of its absence, secondary evidence may be given. But,
there is an exception to this rule. When a public officer is appointed and the appointment is
required to be made in writing and if it is shown before the court that some person has acted as
the officer by whom the person has been appointed, then the writing by which he has been
appointed needs not to be proved.

Illustration

A question arises whether A is a judge of the High Court, then the warrant of appointment is not
required to be proved. The fact that he is working as a judge of the High Court will be proved.

The fact that a person is working in the due capacity of his office is also evidence of that
person’s appointment in the office.

Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that when on the
basis of will probate has been obtained and if later, the question arises on the existence of that
will, the original will is not required to be produced before the court.

This exception requires to prove the contents of the will by which the probate is granted. The
term “probate” stands for the copy of a certificate with the seal of the court granting
administration to the estate of the testator.

The probate copy of the will is secondary evidence of the contents of the original will in a strict
sense but it is ranked as primary evidence

Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written document to be
comprised in a single document. A contract or grant which is executed can be in a single
document or can be comprised of several documents. Section 91 applies in both conditions i.e.,
whether the contracts are comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than one original
document, then only one of them is required to be presented before the court.

Evidence of oral agreement excluded

Section 92 of the Indian Evidence Act lays down the provision that when as laid down under
section 91 the documents which are required to be in writing such as the terms of the contract,
grant or other deposition of property or any other matter required by the law in writing then
the court cannot allow being lead by oral evidence to the party contract or legal representative
for the purpose of contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted under section 91 for
the purpose of contradicting, varying, addition or any modification from its terms.

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Section 92 of the Act clarifies itself that only such oral arguments are excluded which
contradicts the terms of contract, deposition or any other matter required to be in writing. If
such a document is not a contract, grant or deposition of property, then the oral evidence can be
included to vary its content.

Section 92 is applicable only to the parties to the instrument and not to the person who is a
stranger to the instrument. In the case of Ram Janaki Raman v. State, it was held by the court
that the bar laid down by section 92 of the Act was not applicable under the Criminal
proceeding.

Proviso(1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that fact. According to
the laws of contract, any contract which is created by fraud or undue influence, it is not
enforceable and considered invalid. So, such facts are easy to prove in the circumstances when
the contract has been reduced into written form.

Proviso(2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements made before
entering into the documents. The contemporaneous or prior oral agreements are referred to
under Proviso (2) of section 92.

When there is a prior oral agreement on a matter about which the document is silent, then it can
be proved only when such terms of oral agreements are not in contradiction with the terms of
the contract. So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this
proviso are:

On the matter on which the document is silent, a separate oral agreement should be related to it.

Such oral agreement should not be inconsistent with the terms of the document.

Proviso (3): Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective or will not be
enforced unless a condition precedent is fulfilled or unless a certain event takes place, the oral
agreements are admissible in this case to show that as such condition has not been performed,
the contract was not enforceable.

Proviso (4): Distinct oral agreement made subsequently to renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the written
contracts except to the contracts which are required to be in writing by law evidence can be
given.

When a transaction is reduced to writing which is not required by law to be in writing but the
agreement is made for the convenience of parties then an oral agreement made subsequently to
modify it is admissible.

Proviso (5): Any usage or customs by which incidents not mentioned in any contract are usually
annexed to contract

Parol evidence of usage and customs are always admissible. When the object is to make
intelligible before the court about the meaning in which the parties have used a parol evidence

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may be given to prove any local custom of the general application, so that it may be applied to
the subject matter of the contract and bind the parties to the written contract unless such usage
or custom is inconsistent with the writing.

Proviso(6): Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to endeavour and
ascertain its real meaning and the extrinsic evidence are necessary for this purpose. The object
of admissibility of the evidence of the surrounding circumstances is to ascertain the real
evidence of the parties but from the language of the document, the intentions of parties must be
gathered as explained by extrinsic evidence.

Inter-relation between section 91 and 92

Section 91 and 92 are supplementary to each other. Both sections support and complete each
other. When the terms of the contract, deposition of a property or any matter required to be in
writing under the law if proved by the document then the oral evidence is not required to
contradict it.

After a document has been produced to prove its terms under section 91, then the provisions of
section 92 play for excluding evidence of any oral agreement or statement for the purpose of
contradicting, varying, addition or subtraction from its terms.

Even though the two sections are supplementary to each other, both sections differ about some
of the opinions in particular. Section 91 deals with the documents whether or not they are
having the purpose to dispose off the rights or not but section 92 is applicable to the documents
which are dispositive in nature.

Section 91 applies to the document which is both bilateral and unilateral documents but section
92 applies only to the document which is of bilateral nature.

Latent and Patent Ambiguity

The rule about admission or exclusion of extrinsic evidence has been laid down under section
93 to 98 of the Indian Evidence Act. Such exclusion or admission of extrinsic evidence is in
connection with the facts contained in a document which either a contract or not.

The ambiguity in the language of a document can be divided into two categories:

1. Patent ambiguity
2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain. The latent
ambiguity is an ambiguity which is not present in the deed but it arises due to extrinsic factors.

Test of difference

The test to find the difference that whether the ambiguity is a patent ambiguity or a latent
ambiguity is to put the document in the hands of an ordinary intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning can
be understood then such ambiguity is patent ambiguity.

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 2. If on perusal of document no ambiguity can be found by him and the meaning is definite
but that document is applied with the instrument of facts, the ambiguity arises and its
meaning becomes indefinite, then the ambiguity is the latent ambiguity.

The distinction between Patent Ambiguity and Latent Ambiguity

S.No. Patent Ambiguity Latent Ambiguity

When the language of the document is so

When the language of a document is certain and
uncertain and effective that no meaning can
1. meaningful but the document makes no relevance in
be granted to the document then it is called
the present circumstance then it is latent ambiguity.
as Patent Ambiguity.

The patent ambiguity is personal in nature The latent ambiguity is of objective nature and it is
2. and it is related to the person executing the related to the subject matter and object of the
document. document.

Oral evidence is not allowed for the removal

3. To remove latent ambiguity, oral evidence is allowed.
of patent ambiguity.

The rule on which the patent ambiguity is Giving oral evidence in case of latent ambiguity is
4. based is that the patent ambiguity makes the based on the principle the latent ambiguity does not
document useless. make a document useless.

Latent ambiguity is not evident from prima

A patent ambiguity is on the face of the
facie inspection of the document but it becomes
5. document and is evident from inspection of
apparent when the language of a document is applied
the document itself.
to existing circumstances

Extrinsic Evidence to explain Ambiguity in a document

Indian Evidence Act lays down the provision for including extrinsic evidence in order to explain
ambiguity in a document.

When extrinsic evidence cannot be given

Section 93: Exclusion of evidence while explaining or amendment of an ambiguous document

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Section 93 of the Indian Evidence Act, deals with the patent ambiguity and no oral evidence is
given to remove the patent ambiguity.

According to section 93 when the language of the document is ambiguous or defective on its
face, the evidence which can show its meaning or supply its effects may not be given.

Illustration

An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000. The
evidence cannot be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it was held by the Supreme Court that it would
not be open for the parties or the court to remove the ambiguity or vagueness by relying upon
the extrinsic evidence.

Section 94: In the application of document to existing facts, the application against it to be
excluded

According to section 94, when the language in the document is simple and plain itself and it
applies accurately to the existing facts, the evidence to show that it was not meant to apply to
such facts may not be given.

When there is neither a patent ambiguity nor a latent ambiguity then the evidence cannot be
given to contradict this.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was held by the Supreme
Court that section 94 applies only when the execution of the document is admitted before the
court and there are no vitiating circumstances against it.

When extrinsic evidence can be given

Section 95: Evidence allowed to be given when the document is plain in itself

Section 95 of the Indian Evidence Act deals with latent ambiguity and oral evidence can be given
for removing latent ambiguity. When the language which has been used in the document is
simple and plain but it is not in the meaning to existing facts due to the mistakes in the
descriptive evidence and such mistake can be shown that it was used in a peculiar sense.

Illustration

A sold his house to B stating in the deed as “my house in Lucknow”.

But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the deed
was executed. Then the evidence can be used to prove the fact the deed was related to the house
in Kanpur.

Section 96: Evidence allowed when the application of the language which is meant to apply on
only one, applies to several persons

When the language of the facts is such that, which is meant to apply on only one person applies
on several persons, then the evidence may be given under section 96 of the Indian Evidence Act
to clarify that which of those persons or things, that fact is intended to apply on.

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Illustration

A agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned “my white
cow”. A has two white cows. Evidence can be given to prove that which white cow he meant in
that deed.

Section 97: When on the application of the language of two or more facts neither of them applies
correctly, then evidence to be admitted

According to section 97 of the Indian Evidence Act, when the language used in a fact applies to
one set existing fact partly and partly to another set of existing fact, but if applied as a whole, it
does not apply to either correctly then the evidence can be presented before the court to clarify
that which of the facts was actually intended.

Illustration

X sells his land to Y stating “My land at A in the occupation of B”. X had land at A but it is not in
occupation of B and X has land which is in the occupation of B but it is not at A. Then X can
present evidence before the court that which land he actually wants to sell.

Section 98: Evidence given to show the meaning of illegible characters

To show the meaning of illegible characters or characters which are not commonly intelligible
character such as characters of foreign, obsolete, technical, local or provincial expressions of
words or abbreviations which is used in a peculiar sense, evidence can be presented before the
court under section 98 of the Indian Evidence Act.

Illustration

A sells his artwork to B stating “all my mods”. Here, what A meant by the term “mods” can be
clarified by the way of admission of evidence.

Who may give evidence of agreement varying terms of the document

Under section 99 of the Indian Evidence Act, those persons also can give evidence who are not
parties to a document or representative-in-interest regarding any fact which shows a
contemporaneous agreement varying the terms of the document.

As section 92 of the Act excludes the party to the contract from producing the document but it
does not exclude those who are the parties to contract. So, under this section i.e., section 99 the
same provision is being repeated.

In the case of Bai Hira Devi v. Official Assignee of Bombay section 92 deals only with the matter
related to contracts, grants and other depositions of the property but section 99 deals with all
types of document, whether it is a contract or not. Section 99 speaks only about varying the
terms of a document.

Provisions of Indian Succession Acts related to wills to be excluded

According to section 100 of the Indian Evidence Act, the provisions laid down under Chapter VI
of the Indian Evidence Act are to be taken into effect on any of the provisions regarding the
construction of will under the Indian Succession Act,1865.

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 Burden of proof
SECTION 101: Burden of proof.—Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that those
facts exist. When a person is bound to prove the existence of any fact, it is said that the burden
of proof lies on that person. Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B
has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of
B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence
of those facts.

Section 101 define burden of proof. This section says on whom burden of proof lies. While as
section 102 puts it in negative terms. The burden of proof lies on the party who substantially
asserts the affirmative of the issue and not upon the party who denies it. This rule of
convenience has been adopted in practice, not because it is impossible to prove a negative, but
because the negative does not admit of the direct and simple proof of the existence of a fact,
should be called upon to prove his own case. The party on whom burden of proof lies must , in
order to succeed , establish a prima facie case. He cannot, on failure to do so, take advantage of
the weakness of his adversary’s case. He must succeed by the strength of his own right and and
the clearness of his own proof. The expression burden of proof has to meanings:

1) the legal burden i.e, the burden of establishing case.

2) the evidential burden , i.e, the burden of leading evidence. In criminal cases burden of
establishing the charge against the accused lies on the prosecution.

Here it is not the accused who has to prove his innocence because he is presumed to be innocent
till his guilt is proved. That is why prosecution has to prove his case and section 101 comes into
operation. In civil cases burden of proof is on the party who asserts. But the standard of proof
required in civil cases is not that the plaintiff must prove a fact beyond any shadow of doubt. In
ascertaining which party is ascerting affirmative , the court looks to the substance and not the
language used. Whoever complains against the railway administration that the provisions of
section 28 have been contravened must establish that there has been preference between
himself and his goods on the one hand and the competitor and his goods on the other was held
in Raigarh Jute Mills Ltd. v/s Eastern Railway AIR 1958 SC 525.Section 101 of the Evidence Act
has clearly laid down that the burden of proving a fact always lying upon the person who asserts
the facts. Until such burden is discharged, the other party is not required to be called upon to
prove his case was held in Raj Kumar Verma V/s Nandan Kumar & Ors. In Narayan Govind
Gavate Etc vs State Of Maharashtra on 11 October, 1977 court said, The result of a trial or
proceeding is determined by a weighing of the totality of facts and circumstances and
presumptions operating in favour of one party as against those which may tilt the, balance in
favour of another. Such weighment always takes place at the end of a trial or proceeding which
cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts
simply because the requirements of procedural regularity and logic, embodied in procedural
law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence.
What is weighed at the end is one totality against another and not selected bits or scraps of

104
evidence against each other. In absence of any reasonable proof that defendant was the actual
owner of the property, and plaintiff was only a name given does not prove that respondent was
owner and plaint maker was only a name given to the property was held in Rama Kanta Jain v.
M.S. Jain, AIR 1999 Del 281. What to be proved by prosecution is well settled that the
prosecution can succeed by substantially proving the very story it alleges. It must stand on its
own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own
make out a new case for the prosecution and convict the accused on that basis; Narain Singh v.
State, (1997) 2 Crimes 464 (Del)."

SECTION 102: On whom burden of proof lies.—The burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all were given on either side. Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the
will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his
possession. Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that
it was obtained by fraud, which A denies. If no evidence were given on either side, A would
succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof
is on B.

This section lays down the general test of the burden of proof. Accordingly, burden of proof lies
on the party whose case would fail if no evidence were given on either side. Actually section
tries to locate on whom the burden of proof lies .Illustration shows that the section deals
with legal burden of proof. Sometimes evidence coming from the side of the respondents, in the
form of either their admissions or conduct or failure to controvert, may strengthen or tend to
support a petitioners or plaintiffs case so much that the heavier burden of proving a case as
distinguished from the mere duty of introducing or showing the existence of some evidence on
record stated in section 102 is itself discharged. It relates to the leading of evidence and
“decides the controversy between the parties as to who is to lead evidence first and so it is only
procedural matter.” A sues В for land of which В is in possession, and which, as A asserts, was
left to A by the will of C, B’s father. Here A must prove the will of C. If no evidence were given on
either side В would be entitled to retain his possession of the land. [Illustration (a)].In an
election petition the petitioner failed to prove as to what proportion of the total votes cast in
favour of a wrongfully accepted candidate. The Supreme Court rejected the election petition.
When a party to a suit does not give evidence and does not offer himself for cross-examination,
a presumption would arrive that the case set up by him is not correct. The plea that the
structure were to be excluded, the onus would be on person alleging such exclusion.In C.P.
Sreekumar (Dr) v S. Ramanujam ’ it was held that onus of proving medical negligence lies on the
complainant. Mere averment in complaint is not evidence. Complaint has to be proved by cogent
evidence. The complainant is obliged to provide facta probanda as well as facta probantia. In
Sanjay S. Jaipuria, Mumbai vs Department Of Income Tax on 12 April, 2012"On the facts and in
the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the additions made
by A.O. on Sundry Creditors of Rs. 2,34,247/-, ignoring that as per section 102 of the Evidence
Act, the burden of proof lies on the assessee to prove before the A.O."

105
Section 103: Burden of proof as to particular fact.—The burden of proof as to any particular fact
lies on that person who wishes the Court to believe in its existence, unless it is provided by any
law that the proof of that fact shall lie on any particular person.

Illustration

(a A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must
prove the admission. B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it.

Section 103 of the Evidence Act provides that burden of proof of any particular fact lies on the
person who wishes the court to believe in its existence. In State of Haryana v. Sher Singh, AIR
1981 SC 1021:. When accused takes Plea of alibi it is he who has to prove it. In Ramadhar And
Anr. vs Raj Narain And Ors. on 16 July, 1929 court held that. Under Section 93, Evidence Act,
evidence may not be produced to show what was the meaning of the parties. The clause
therefore remains ineffectual, so far as its application to the interest is concerned. The
defendant bases his plea of limitation on this clause, alleging that owing to a breach of the
covenant for the payment of interest the cause of action arose more than twelve years before
the date of suit. Under Section 103, Evidence Act, the burden of proof that this was a term of the
contract lay on the defendant. The defendant has failed to discharge that burden of proof. His
plea of limitation therefore fails. The lower appellate Court has dismissed the appeal of the
plaintiff on the ground of limitation only. Accordingly the decree of the lower appellate Court
should be set aside and the appeal remanded for disposal. In Union Of India Thru General ... vs
Smt. Ram Jhari Devi And 2 Ors on 13 July, 2010 (i) a railway servant on duty : and

(ii) a person who has purchased a valid ticket for traveling , by a train carrying passengers, on
any date or a valid platform ticket and becomes a victim of an untoward incident.) In the
present case since it is the appellant who claims defence under the exception of Section 124 A
with submission with regard to existence of the related fact, burden lies on the appellant to
establish with cogent and trustworthy evidence. Appellant had not discharged its burden under
Section 103 of the Evidence Act, hence plea with regard to exception seems to be not available.
The railway act is a beneficial provision and it is settled law that while dealing with the
beneficial provision when two views are possible the one of which favours the beneficiary
should be adopted vide 2004 (10) SCC 201, State of West Bengal Vs. Kesoram Industries Ltd;
AIR 2000 SC 109 Mathuram Agarwal Vs. State of M.P.; 1999 (7) SCC 106, Mysore Minerals
limited M.G. Road, Bangalore Vs. CIT Karnataka Banglore. Thus, the burden to prove that the
accidental case falls within the exception of 124 A of the Act rest on the shoulder of railways.

SECTION 104 : Burden of proving fact to be proved to make evidence admissible.—The burden
of proving any fact necessary to be proved in order to enable any person to give evidence of any
other fact is on the person who wishes to give such evidence.

Illustrations

(a) A wishes to prove a dying declaration by B. A must prove B’s death.

(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove
that the document has been lost.

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Whenever it is necessary to prove any fact, in order to render evidence of any other fact
admissible, the burden of proving that fact is on the person who wants to give such evidence. In
illustration a dying declaration of deceased to be proved but before that death of victim is to be
established/proved.

Section 104 of Evidence Act mandates that the burden is on the person who takes up the plea of
adverse possession as that plea goes to the root of the title of the plaintiffs. It is to be
remembered that a person who takes up a plea of adverse possession must necessarily admit
the title of the adversary. Without there being an admission of the title of the adversary, there
cannot be a plea of adverse possession. Apart from this, the plea of adverse possession is a weak
plea, more especially, when the parties are closely related. Assuming that the pleading in the
plaint has reflected adequate details of fraud, it needs to be examined as to whether the plaintiff
and defendants 1 and 2 have proved them. It hardly needs any mention that apart from the
general burden on a plaintiff to prove the facts pleaded by him, Section 104 of the Evidence Act
squarely puts the burden upon the person, who pleads fraud or other similar factors, to prove
them, without even giving any scope for shifting of the onus, much less burden.

SECTION 105: Burden of proving that case of accused comes within exceptions.—When a
person is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within
any special exception or proviso contained in any other part of the same Code, or in any law
defining the offence, is upon him, and the Court shall presume the absence of such
circumstances.

Illustrations

(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know
the nature of the act. The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of
the power of self-control. The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain
punishments. A is charged with voluntarily causing grievous hurt under section 325. The
burden of proving the circumstances bringing the case under section 335 lies on A.

This section is applicable to criminal cases. An accused is presumed to be innocent till his guilt is
proved and burden lies on prosecution to prove his guilt. But when accused raise the benefit of
exceptions burden lies on him to prove exceptions. When accused takes the Plea of self-defence
and When the prosecution has established its case, it is incumbent upon the accused, under
section 105 to establish the case of his private defence by showing probability was held in
Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad). The burden
of establishing the plea of self-defence is on the accused and the burden stands discharged by
showing preponderance of probabilities in favour of that plea on the basis of material on record;
Rizan v. State of Chhattisgarh, AIR 2003 SC 976.

In Parbhoo And Ors. vs Emperor on 16 September, 1941 . The first question to consider is
whether or not the expression "burden of proving" in Section 105, Evidence Act, bears the

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meaning which would ordinarily attach to these words, namely the burden of satisfying the
Court that such circumstances existed at the time when the act was committed as would entitle
the accused person to the protection which is afforded by Section 96, Penal Code or any other
exception-or whether, as held by the Full Bench of the Rangoon High Court Emperor v. U
Damapala ('37) 24 A.I.R. 1937 Rang. 83, the burden will be discharged if the accused person,
either by his own statement or by facts elicited in the evidence for the prosecution or by
evidence adduced by himself or by all or some of these means, has been able to engender a
reasonable doubt in the mind of the Court. "Burden of proof" may in some circum-stances mean
the burden of introducing evidence. If the Court considers that the fact that A caused B's death is
not proved in accordance with the terms of the definition, then it will decide that A did not cause
B's death because the burden of proof is on the prosecution and the prosecution has to prove
the fact that he did so. The same principles would apply to the question whether A intended to
cause B's death. On the other hand, when the Court has to decide whether A, at the time of doing
the act which caused B's death was, by reason of unsoundness of mind incapable of knowing its
nature, it will, under the provisions of Section 105, Evidence Act, throw the burden of proof
upon the accused. If it is not satisfied that A was of unsound mind or that it was not probable
that A was of unsound mind that a prudent man would suppose that he was, then it will hold
once and for all upon this issue that the fact that A was of un-sound mind is not proved and it
will consequently act upon the supposition that he was of sound mind. It cannot record different
findings or come to different conclusions upon the issue. If the burden of proving the
proposition that A was of unsound mind is upon the accused, then the accused must prove it In
K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR 567 it is observed that: "In India, as it
is in England, there is a presumption of innocence in favour of the accused as a general rule, and
it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the
accused is presumed to be innocent until his guilt is established by the prosecution. But when
an accused relies upon the General Exceptions in the Indian Penal Code or on any special
exception or proviso contained in any other part of the Penal Code, or in any law defining an
offence, Section 105 of the Evidence Act raises a presumption against the accused and also
throws a burden on him to rebut the said presumption. Under that Section the Courts shall
presume the absence of circumstances bringing the case within any of the exceptions, that is,
the Court shall regard the nonexistence of such circumstances as proved till they are disproved...
But the section does not in any way affect the burden that lies on the prosecution to prove all
the ingredients, of the offence with which the accused is charged; that burden never shifts. The
alleged conflict between the general burden which lies on the prosecution and the special
burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than
real. Indeed, there is no conflict at all."

SECTION 106: Burden of proving facts especially within knowledge.

When any fact is especially within the knowledge of any person, the burden of proving that fact
is upon him.

Illustrations:

(a) When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with travelling on a railway without a ticket. The burden of proving that he
had a ticket is on him.

This section lays down the principle that where a fact is specially within the knowledge of a
party, the burden of proving that fact lies upon him. The fact may be affirmative or negative
character. In Grand Vasant Residents Welfare ... vs Dda & Ors. on 5 March, 2014 reference was
made of the decision reported as (1974) 2 SCC 544 Collector of Customs, Madras vs D.
Bhoormull, proceedings were initiated under Section 167(8)(c) of the Customs Act for
confiscation of contraband or smuggled goods and it was observed:- Since it is exceedingly
difficult, if not absolutely impossible for the prosecution to prove facts which are especially
within the knowledge of the accused, it is not obliged to prove them as part of its primary
burden. On the principle underlying Section 106 Evidence Act, the burden to establish those
facts is cast on the person concerned; and if he fails to establish or explain those facts, an
adverse inference of facts may arise against him, which coupled with the presumptive evidence
adduced by the prosecution or the Department would rebut the initial presumption of
innocence in favour of that person, and in the result prove him guilty."

SECTION 107 : Burden of proving death of person known to have been alive within thirty
years.—When the question is whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the person who affirms it.

This section is based on the principle of the continuity of the things. Once a state of things is
shown to exist, the law presumes that it constinues to exist for a period for which such state of
things ordinary lasts. This principle also applies to continuity of the life atleast for 30 years. In
Lilly Packiamani Aruldoss vs The Accountant General (A&E) on 23 February, 2011"The above
case was registered by Puthiamputhur Police. Now after due investigation, a final report was
filed and the case as Un Report perused. There is no material to interfere give the finding of the
investigating officer. So the report is accepted and the case is referred as UN." At this stage, this
Court pertinently points out that Section 107 of the Indian Evidence Act, 1872, refers to the
burden of proving death of person known to have been alive within thirty years. As a matter of
fact, the ingredients of Section 107 of the Indian Evidence Act, 1872 are as follows: "When the
question is whether a man is alive or dead, and it is shown that he was alive within thirty years,
the burden of proving that he is dead is on the person who affirms it."

SECTION 108: Burden of proving that person is alive who has not been heard of for seven
years.—[Provided that when] the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive is [shifted to] the person who affirms
it.—[Provided that when] the question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally have heard of him if he had
been alive, the burden of proving that he is alive is [shifted to] the person who affirms it."

Section 108 is proviso to section 107.The presumption under section 107 is rebuttable, that is if
it is shown that he has not been heard of for last seven years by those who, if it had been alive,
would naturally have heard of him. ". In the matter of similar question had arisen for
determination of this Court and this Court while placing an interpretation on the said provisions
and their applicability to the matter at issue held that the presumption about the death of the
person can at the earliest be drawn when the dispute is brought to the Court and the

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presumption cannot be given a further retrospective effect. This Court has further held that it is
so because the occasion for drawing a presumption under the provision arises when the dispute
regarding the death of a person who has been unheard of for seven years is raised in a Court of
law and it is only then that the question of burden of proof would arise under the Evidence Act.
Section 108 obviously relates to the question of burden of proof in a matter before a Court of
law. In Gurdit Singh And Ors. Etc vs Munsha Singh And Ors. Etc on 29 November, 1976" court
held that the plain fact of the matter is that no proof is forthcoming of Kishan Singh continued
existence since 1945. Since the judgment of the High Court in 1951, where it was held that the
death of Kishan Singh had not been not proved, 8 years have elapsed. There can be no. Escape
from the conclusion now that Kishan Singh's death must be presumed". The learned Single
Judge had also observed: "The decision of the High Court in 1951 should provide a suitable
ground for extension of time under provisions of Section 14 of the Indian Limitation Act. The
whole basis of the judgment of the Courts below, in my opinion, is erroneous. It is not a
requirement of section 108 of the Indian Evidence Act that the date of death of the person
whose death is presumed must be established. All that is said is that if a person is not heard of
for a period of seven years, his death may be pre- sumed. There is no presumption as to the time
of death at any particular time within that period

SECTION 109 : Burden of proof as to relationship in the cases of partners , landlord and tenant,
principal and agent_ When the question is whether persons are partners, landlord and tenant or
principal and agent, and it has been shown that they have been acting as such , the burden of
proving that they do not stand , or have ceased to stand , to each other in those relationship,
respectively , is on the person who affirms it.

Section 109 lays down the principle dealing with the presumption of the continuity of
relationship between persons or a state of things. When persons acted as partners or as
landlord and tenant or as principal and agent, the burden of proving that such relationship does
not exist, lies on the person who affirms it. According to this section when a person stands a
relationship of partners of a firm or landlord and tenant or principal and agent it is presumed
that such relationship continues unless the contrary is proved. When certain persons have been
shown to be related to each other, the presumption is that the relationship continues and if one
of them says that they are no more related, he must prove the non-existence of relationship. The
burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is
in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that
it was not a case of sub- letting. The burden to prove relationship of landlord and tenant and
denial of ownership of alleged landlord lies on the party who denies the relationship and
ownership.

SECTION 110: Burden of proof as to ownership.—When the question is whether any person is
owner of anything of which he is shown to be in possession, the burden of proving that he is not
the owner is on the person who affirms that he is not the owner. This section gives weight to the
principle that possession is primafacie evidence of complete title, anyone who intends to oust
the possessor must establish a right to do so It is an evidence of complete title. Section 110 has
incorporated this principle. But this principle does not apply when possession is obtained by
fraud or force. Mere wrongful possession is insufficient to shift the burden of proof. According
to this section when a person is shown to be in possession of any property, the presumption is
that he is the owner of that property. If anybody denies his ownership, burden lies on him to
prove that he is not the owner of the property. The possession of property, real or personal is

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presumed prima facie to be full owner of it. The policy of law is to allow a person to continue his
possession until a rival claimant proves his title. Thus, the presumption under section 110
would apply only if two conditions are satisfied, viz.—(i) that the possession of the plaintiff is
not wrongful, and (ii) that the title of the defendant is not proved. Example: A is in possession of
a cycle. В claims the cycle as his, В has to prove that he purchased it and burden lies on B. In
Chuharmal S/O Takarmal Mohnani vs Commissioner Of Income-Tax, ... on 2 May, 1988
maintained the order of high court wherein The High Court had held that:

(i) by virtue of the search in the house of the petitioner the watches were seized and a
Panchnama was prepared, that under Section 110 of the Indian Evidence Act, it clearly
establishes that the possession of the wrist watches was found with the petitioner, that
as the petitioner did not adduce any evidence, he had not discharged the onus by proving
that the wrist watches did not belong to him, the Tribunal had rightly held that the
value of the wrist watches is the income of assessee, and

(ii) that in view of the Explanation to section 271(1)(c) the Department had discharged the
burden of establishing concealment.

The reference was accordingly answered against the assessee.

SECTION 111 : Proof of good faith in transactions where one party is in relation of active
confidence.—Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of proving the
good faith of the transaction is on the party who is in a position of active confidence.

Illustrations

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the
client. The burden of proving the good faith of the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit
brought by the son. The burden of proving the good faith of the transaction is on the father.

This section imposes a duty of good faith upon the person occupying the position of trust and
confidence. The law requires that the party enjoying confidence must act in good faith towards
the other, and the burden lie upon him to prove that he did act in a good faith. The active
confidence means and indicates “the relationship between the parties must be such that one is
bound to protect the interest of other.” A relationship of active confidence stands between the
contracting parties when one imposed the duty of good faith upon another who occupies
position of trust and confidence. Such relationship exists in cases such as, father and sons;
advocate and client; doctor and patient; husband and wife etc. In all such cases the law imposes
a duty of good faith upon person occupying the above positions. There an exception to this rule
where a fiduciary or confidential relationship subsists between the contracting parties.Where
there is valid transaction between the parties and one of them is accruing benefit from the
transaction without acting in good faith or is taking advantage of his position. In such cases the
burden of proving good faith of the transaction is on the transferee or beneficiary and the
relationship of active confidence must be proved. The burden of proving good faith in
transaction would be on defendant, dominant party i.e. the party who is in position of active
confidence.“Active confidence indicates that the relationship between the parties must be such

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that one is bound to protect the interests of the other”. Where a confidence is imposed by one
party to another during the course of transaction, the fiduciary relationship may arise if there
arises conflict of interests between the parties. “Where a fiduciary or quasi-fiduciary
relationship exists, the burden of sustaining a transaction between the parties rests with the
party who stands in such relation and is benefited by it.” In a transaction entered into by a
pardanashin lady in favour of her managing agent, every onus in upon the agent to show
conclusively that the transaction was honest and bona fide. “The rule applies only to strictly
pardanashin woman, women who live in complete seclusion and do not appear in public
according to the customs and manners of their country and who on account of their ignorance
or want of contract with outside would have not the capacity of understanding business
transactions and incapable of managing their own affairs are also entitled to the protection of
the court.”—SARKAR.In Jawahar Lal Wali v/s J. and K 1993 SCC court held that where a person
who claims to have acted in a good faith has to appear in person before the court to establish his
claim through examination and cross examination. The opinion and feelings of other witnesses
may not be sufficient on that point.

SECTION 111A : Presumption as to certain offences:

(1) Where a person is accused of having committed any offence specified in subsection (2),
in—

(а) any area declared to be a disturbed areas under any enactment, for the time being in force,
making provision for the suppression of disorder and restoration and maintenance of public
order; or

(b) Any area in which there has been, over a period of more than one month, extensive
disturbance of the public peace, and it is shown that such person had been at a place in such
area at a time when firearms or explosives were used at or from that place to attack or resist the
members of any armed forces or the forces charged with the maintenance of public order acting
in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such
person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely:—

(a) an offence under section 121, Section 121A Section 122 or Section 123 of the Indian
Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122
or Section 123 of the Indian Penal Code (45 of 1860).

This section was inserted by the Terrorist Affected Areas (Special Courts) Act, 1984 which came
into force on 14.7.1984. Presumption can be drawn against any person for having committed
offences laid down in sub-section 2 of this section.

SECTION 112 : Birth during marriage, conclusive proof of legitimacy.—The fact that any person
was born during the continuance of a valid marriage between his mother and any man, or
within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall
be conclusive proof that he is the legitimate son of that man, unless it can be shown that the
parties to the marriage had no access to each other at any time when he could have been
begotten.

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The section is based on maxim pater rest quern nuptioe (he is the father whom the marriage
indicates. Presumption under this section should be drawn by all courts, civil , criminal, and
revenue governed by the evidence act. Section is based on English rule that the child born in
wedlock should be treated as the child of the man who was then the husband of the mother.The
effect of the provision 112 is that a child born to a married parents is conclusively presumed to
be their child. The same effect / presumption arises where the marriage was dissolved and the
child was born within 280 days after dissolution, the mother remaining unmarried in the
meantime. The sprit behind Section 112 is that once valid marriage is proved there is strong
presumption about the legitimacy of children born during wedlock.When the above
requirements are satisfied the presumption of legitimacy is a conclusive presumption of law.
Child born during wedlock is sufficient proof of legitimacy. In Nandlal Wasudeo Badwaik ….. v/s
Lata Nandlal Badwaik & andna test shows that husband is not the father of daughter of wife –
Apex court held that In our opinion, when there is a conflict between a conclusive proof
envisaged under law and a proof based on scientific advancement accepted by the world
community to be correct, the latter must prevail over the former. Although the presumption of
legitimacy is conclusive presumption it is equally based upon certain facts which must be
present in favour of legitimacy. But this is rebuttable presumption where the evidence may be
adduced to show that there was in fact no access. “Whether the presumption has been rebutted
by proper evidence that such access did not take place as by the law of nature is necessary for a
man to be in fact the father of the child, is essentially a question of fact. The period of gestation
mentioned is this section is 280 days. It does not mention any maximum period of gestation. If a
child born after 280 days and after dissolution of marriage, “the effect of the section being
merely that no presumption in favour of legitimacy is raised, and the question must be decided
simply upon the evidence for and against legitimacy.” A child born within 280 days of the
husband’s death is a legitimate child. The Supreme Court has expressed most reluctant attitude
regarding application of DNA technology in resolving paternity determination. In Goutam
Kundu v The State of West Bengal the prayer for establishing legitimacy and maintenance by a
child through blood test was not accepted. Their Lordships held that there must be a strong
prima facie case that the husband must establish non-access in order to dispel the presumption
arising under section 112 of the Evidence Act. “This presumption can be displaced by a strong
preponderance of evidence and not by a mere balance of probabilities. When a child was born
within 5 months after the disillusionment of marriage presumption of legitimacy of the child
arises,. The burden shift on the husband to prove that it was impossible to have access with the
divorced wife and so it is a illegitimate child. In the case of Sharmila Devi v Shankar Das, the two
spouses had access to each other after marriage for a number of days and the child was born
after six months of the marriage. The Himachal Pradesh High Court held the child' as legitimate
child. A Mohammedan child born during the continuance of a valid marriage between its
parents would be presumed to be legitimate, even before the ruksati ceremony. The prayer for
blood test was not accepted by the court. The court held that it cannot compel the father to
submit himself DNA Test.

SECTION 113: Proof of cession of territory.—A notification in the Official Gazette that any
portion of British territory has [before the commencement of Part III of the Government of India
Act, 1935 (26 Geo. 5, ch. 2)] been ceded to any Native State, Prince or Ruler, shall be conclusive
proof that a valid cession of such territory took place at the date mentioned in such
notification.—A notification in the Official Gazette that any portion of British territory has
[before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, ch. 2)]

113
been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of
such territory took place at the date mentioned in such notification.

A Government notification as to cession of territory to any other state is a conclusive proof that
a valid cession of such territory has taken place at the date mentioned in such notification.

SECTION 113A: Presumption as to abetment of suicide by a married woman.—When the

question is whether the commission of suicide by a woman had been abetted by her husband or
any relative of her husband and it is shown that she had committed suicide within a period of
seven years from the date of her marriage and that her husband or such relative of her husband
had subjected her to cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by such relative
of her husband."

Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in
section 498A of the Indian Penal Code (45 of 1860).

Many cases have come to the knowledge in past where newly married woman commits suicide
or has been burnt by her husband and in_laws. In the absence of sufficient proof, it was very
difficult for the prosecution to prove to prove that it was not a suicidal case or if it was, then it
was the result of the abetment by husband or in-laws. Under this section

(i) presumption is raised against accused if the conditions laid in provision is fulfilled. The
section 113A was inserted by Criminal Law (second amendment) Act 46 of 1983. This
was introduced because there was increasing number of dowry death, which was in fact
a matter of serious concern. don In the case of Harikumar v State of Karnataka the court
has said that by a plain reading of the provision it permits to draw the instances of
cruelty even to prior to the date of concealment of this provision. The legal provision
provided that under this section clearly concludes the past instances of cruelty spread
over a period of seven years from the date of marriage the victim. Therefore it is
permissible to the court to inquire into a case . In another case, Gurubachan v Saptal
Singh the Supreme Court has held that s113A does not create any new offence, nor does
it create through the court he has to prove the existence of certain factual situation. In
the same way in order to attract the provision of s113A of the Indian Evidence Act the
burden of proving the fact lies on the person who affirms it. This principle of burden of
proof is applicable to all matrimonial offences, and needs to prove:

1.Suicide must be committed by a married woman

2. Suicide must have been abetted by husband or any relative of her husband.

3. Suicide must be committed with in seven years of the marriage

4. She must have been subjected to cruelty (as defined in 498A of Indian Penal Code) by
her husband. (The term cruelty shall mean the same as defined in 498A section of India
Penal Code).

SECTION 113B: Presumption as to dowry death. -When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such woman
has been subjected by such person to cruelty or harassment for, or in connection with, any
demand for dowry; the court shall presume that such person had caused the dowry death.

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Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in
section 304-B of the Indian Penal Code (45 of 1860)

Dowry death is defined in section 304 I.P.C .It covers a kind of a death which is not natural,
occurring within 7 years of marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called "dowry death", and such
husband or relative shall be deemed to have caused her death. Section 113B uses the word
"shall" and not 'may' so it is a presumption of law .On proof of the essentials mentioned above, it
becomes obligatory on the court to raise a presumption that the accused caused the "dowry
death". The court has no discretion to draw the presumption under this section if the essential
ingredients are proved then they are bound to draw this presumption under s113B of the
Indian Evidence Act. The legislature has made this presumption a mandatory presumption of
law, of course, rebuttable, Though this may sound to be a violent departure from the accepted
norms of criminal law. The legislature thought that the presumption under Section 113B should
be a mandatory presumption if the evil of dowry deaths is to be eradicated from the roots of our
society.

In the case of Keshab Chandra Pandey v State the presumption under s 113B of the Indian
Evidence Act shall be raised only on the proof of the following essentials:

(i) Whether the accused has committed the dowry death of a woman. So the presumption
can be raised if the accused is being tried for an offence under s.304B, Indian Penal
Code.
(ii) The woman was subjected to cruelty or harassment by her husband or his relative.
(iii) Such cruelty or harassment was for or in connection with any demand for Such cruelty
or harassment was soon before her death.

In another case Mangal Ram & Anor v State of Madhya Pradesh, the wife committed suicide
within five years of her marriage. She was living with her parents for about two-three years.
Within one month of returning to her matrimonial home, she jumped in to a well, and
committed suicide. Harassment by husband and her in-laws during this month has not been
proved beyond reasonable doubt. In these circumstances, the presumption cannot be raised
against the husband.

SECTION 114: Court may presume existence of certain acts

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.

Illustrations

The Court may presume—

(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 accounts for his possession.

(b) That an accomplice is unworthy of credit, unless he is corroborated in material

particulars;

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(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 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 and obligation is in the hands of the obligor, the
obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such
maxims do or do not apply to the particular case before it:-

As to illustration (a) –A shop- keeper has in his till a marked rupee soon after it was stolen, and
cannot account for its possession specifically, but is continually receiving rupees in the course of
his business;

As to illustration (b)–A person of the highest character is tried for causing a man’s death by an
act of negligence in arranging certain machinery. B, person of equally goods character, who also
took part in the took part in the arrangement, describes precisely what was done, and admits
and explains the common carelessness of A and himself;

As to illustration (b)-A person of the highest character is tried for causing a man’s death by an
act of negligence in arranging certain machinery B, person of equality goods character, who also
took part in the arrangement, describes precisely what was done, and admits and explains the
common carelessness of A and himself;

As to illustration (b)–A crime is committed by several persons. A, B and C, three of the criminals,
are captured on the spot and kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner as to render previous
concert highly improbable;

As to illustration (c) – A, the drawer of a bill of exchange, was a man of business. B, the acceptor,
was young and ignorant person, completely under A’s influence;

As to illustration (d) – It is proved that a river ran in a certain course five years ago, but it is
known that there have been floods since that time which might change its course.

As to illustration (e) – A judicial Act, the regularity of which is in question, was performed under
exceptional circumstances;

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As to illustration (f) – The question is, whether a letter was received, it is shown to have been
posted, but the usual course of the post was interrupted by disturbances.

As to illustration (g) - A man refuses to produce a document which would bear on a contract of
small importance on which he is sued, but which might also injure the feeling and reputation of
his family;

As to illustration (h) – A man refuses to answer a question which he is not compelled by law to
answer, but the answer to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked;

As to illustration (i) – A bond is in possession of the obligor, but the circumstances of the case
are such that he may have stolen it.

Under this section, the presumption is discretionary and rebuttable. The courts have very wide
powers to presume or not to presume because the word is may presume. The court is free to
consider other facts and circumstances for this purposes.

Section 114 gives authorizes the court to make certain presumptions of fact. They are all
presumptions which may naturally arise, but the legislature by the use of the work may instead
of shall both in the body of the section and in the illustrations, shows that the court is not
compelled to raise them but is to consider whether in all the circumstances of the particular
case they should be raised.

Illustration (a) of section 114 raises a presumption about the person in possession of stolen
goods soon after the theft is either 1)the thief or (2)has received the goods knowing them to be
stolen

In the case of Sapattar Singh vs State on 28 February, 1952 court after relying on the section
114(a) held that no presumption can be raised wherin the applicant admitted that the she-
buffalo was recovered from inside the 'gher'; but he alleged that he had not kept her there, that
she might have been tied there by somebody and that he had no knowledge about it. There is
nothing on the record to show that the applicant had kept the she-buffalo there, and, from the
fact that the she-buffalo was recovered from inside the 'gher' of the applicant, the courts below
have raised a presumption, under Section 114, illustration (a), Evidence Act, that the applicant
was in possession of the she-buffalo and had received the same knowing it to be stolen
property. Evidently, the courts below did not consider the explanation offered by the applicant
sufficient. Learned counsel for the applicant has, in this revision, contended that having regard
to the circumstances of the case no presumption, illustration (a), Evidence under Section 114
Act, could or should have been raised. He has pointed out that, according to the evidence
available on the record, the 'gher' was open and accessible to everyone; and in support of this
contention reliance has been placed upon the facts found by the courts below that Malkhan
Singh, while passing by the 'gher', had noticed the she- buffalo tied inside it and that the Sub-
Inspector was able to recover the same. He has also pointed out that the 'gher' was practically
abandoned; that it was not alleged that the Sub- Inspector had, before recovering the she-
buffalo, to make any effort to have the 'gher' opened; and that a bad character occupied the
'gher' adjoining the gher from which the she- buffalo was recovered. Even if the explanation
offered by the applicant were not proved by any convincing evidence, it could have been
considered as probable and reasonably true, and sufficient to raise a doubt in the mind of the

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Court as to the guilt of the applicant. It was for the prosecution to establish all the circumstances
upon which a presumption could be raised under Section 114, illustration (a), Evidence Act, and
there was no question of burden being shifted on to the applicant at any stage. He was only
bound to account for his possession and offer an explanation which might reasonably be true.
The contention put forward on behalf of the applicant that the presumption under Section 114,
illustration (a), Evidence Act, could and should not have been raised in the circumstances of this
case must, therefore, be upheld. If the presumption under Section 114, illustration (a), Evidence
Act, cannot be raised in the circumstances of this case, there is no other evidence on the record
on which the conviction of the applicant under Section 411, Penal Code, can be rested. In this
view of the matter, this revision is allowed, the conviction of, and the sentence imposed upon
the applicant are set aside.

Illusration (b) of section 114

An accomplice is one who is a guilty associate in crime.Where a witness sustains such a relation
to the criminal act that he could be jointly indicted with the accused, he is an accomplice. The
Court may presume that an accomplice is unworthy of credit, unless he is corroborated in
material particulars The words are "the Court may presume" (not "the Court shall presume")
"that an accomplice is unworthy of credit, unless he is corroborated in material particulars." But
it then adds a caution to show that the presumed unworthiness is not a rule of universal
application. It styles the presumption "a maxim," not a rule of law, and says, "but the Court shall
also have regard to certain facts' in considering whether such maxim does or does not apply to
the particular case before it." It then refers to the case of a person of the highest character giving
evidence of an offence committed by the negligence of himself and another person of equally
high character. The witness is an accomplice, and he is not corroborated in any particular, still
less in material particulars, yet the Court should have regard to various circumstances, viz., the
high character of the witness, and of the accused, and the nature of the offence alleged, and
would be at liberty to refuse to draw any presumption against the credibility of the witness,
even though his evidence stood alone and uncorroborated. The opinion of the majority of the
courts that the evidence of an accomplice need not be corroborated in material particulars
before it can be acted upon, and that it would be open to the court to convict on the
uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true,
requires to be further considered; and it requires to be further considered whether Section 133
of the Indian Evidence Act read with Section 114.In Queen-Empress v. Bepin Biswas (1884)
I.L.R. 10 Cal. 970 I do not think they can be taken as laying down as matter of law that previous
statements of accomplices cannot amount to sufficient corroboration of their testimony, and if
they do I think they go too far. A direction to that effect by a Sessions Judge was made the
ground of an appeal against acquittal by the Bengal Government in 1898, Empress v. Bhairab
Chunder Chuckerbutty (1898) 2 C.W.N. 702 but the case went off on another point. Reading
Section 133 of the Evidence Act along with Section 114(b) it is clear that the most important
issue with respect to accomplice evidence is that of corroboration. The general rule regarding
corroboration that has emerged is not a rule of law but merely a rule of practice which has
acquired the force of rule of law in both India and England. The rule states that: A conviction
based on the uncorroborated testimony of an accomplice is not illegal but according to
prudence it is not safe to rely upon uncorroborated evidence of an accomplice and thus judges
and juries must exercise extreme caution and care while considering uncorroborated
accomplice evidence.

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An approver on his own admission is a criminal and a man of the very lowest character who has
thrown to the wolves his erstwhile associates and friends in order to save his own skin. His
evidence, therefore must be received with the greatest caution if not suspicion. Accomplice
evidence is helduntrustworthy and therefore should be corroborated for the following reasons:

1. An accomplice is likely to swear falsely in order to shift the guilt from himself.
2. An accomplice is a participator in crime and thus an immoral person.
3. An accomplice gives his evidence under a promise of pardon or in the expectation of
an implied pardon, if he discloses all he knows against those with whom he acted
criminally, and this hope would lead him to favour the prosecution.

In Mohd. Husain Umar Kochra etc. v. K. S. Dalipsinghji and Another etc., (1969) 3 SCC 429 and it
was held :-- ".... The combined effect of Sections 133 and 114, Illustration (b) is that though a
conviction based upon accomplice evidence is legal, the Court will not accept such evidence
unless it is corroborated in material particulars. The corroboration must connect the accused
with the crime. It may be direct or circumstantial. It is not necessary that the corroboration
should confirm all the circumstances of the crime. It is sufficient if the corroboration is in
material particulars. The corroboration must be from an independent source. One accomplice
cannot corroborate another."

Illustration (c) section 114 says about the presumption of consideration in negotiable
instruements. In Harish Bin dal v State Of Nct Of Delhi on 2 August, 2011. Court held that There
is yet another presumption under illustration (c) of Section 114 of Indian Evidence Act,
according to which the court may presume that a bill of exchange, accepted or endorsed was
accepted and endorsed for good consideration. This presumption is like presumption under Sec.
118 (a) of the Act. It is needness to point out that as per Sec. 6 of the Act a cheque is a bill of
exchange, drawn on specified banker and includes the cheque in the electronic form. Therefore,
the presumption under illustration (c) of Sec. 114 of the Indian Evidence Act, is also available to
the petitioners with regard to dishonoured cheques, that the dishonoured cheques were issued
for good consideration.

Illustration (d) Section 114 says about the existence of things as was also discussed In United
India Assurance Co. Ltd. vs Sri Satyanarayana Ghee Trading ... on 26 July, 1999 The crucial
question as to whether the stock purchased upto 3-6-1981 was in existence on the date of the
accident and eventually have been burnt in the said accident. The learned Counsel for the
respondent contended that since the stock had been proved to be in existence by 3-6-1981 and
as the fire accident occurred on the interventing night of 5/6-6-1981 the presumption can be
drawn Under Section 114(d) of the Evidence Act about the continuance of the things as existed
on 3-6-1981. There is every force in the contention of the learned Counsel. Illustration (d) to
Section 114 of the Evidence Act says 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 state of things usually
cease to exist, is still in existence. Since the period interregnum between the last date of
purchase and the date of fire accident is shorter, the illustration (d) to Section 114 of the
Evidence Act can be invoked in this case. A presumption of continuity can therefore be drawn.
As against this evidence, as afore discussed, there are Exs.B-7 and B-8 on the side of the
respondent. In Ex.B-8 statement, which has been given by P.W.14, it has been clearly mentioned
at the end that the loss sustained on account of the accident was slightly more than Rs. 40,000/-
and that by the time the fire force has arrived at the spot the flames have been extinguished and

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the remaining bags of chillies in the godown have been segregated. This statement no doubt
shows that apart from the bags that have been damaged in the fire accident the remaining bags
have been segregated and the loss has been estimated at about Rs. 40,000/-. This document is
some what against the case of the respondent-firm. As against this Ex.B-7 is the report of the
Surveyor-D.W.1. This document shows that the entire stock in the godown was badly burnt and
damaged without leaving any salvage of commercial value and thus resulting in a total loss.
There is no reason to disbelieve that statement of the Surveyor who has been examined in this
case as D.W.1. The statement in Ex.B-8 made by P.W.14 cannot be accurate and has been made
at the time when there was an agony and anguish on account of the loss of property in the fire
accident. The same is not the case in respect of Ex.B-7. In the wake of Ex.B-7 the recitals
mentioned in Ex.B-8 to the effect that the remaining bags have been segregated cannot be given
much credence and weight. It is obvious from Ex.B-7 report being relied upon by the
appellant-insurer that it is a case of total damage and the eventual loss.

Illustration (e) was discussed in State vs Bhanwar Lal Bansal on 4 December, 1972 presumption
under illustration (e) to Section 114, Evidence Act. Illustration (e) provides: The Court may
presume that judicial and official acts have been regularly performed; The presumption under
illustration (e) is a discretionary one. The Court concerned may or may not raise such a
presumption. When a statutory authority makes an order, a presumption can be raised that it
had followed the prescribed procedure. There is a presumption of regularity in respect of
judicial and official acts and it is for the party who challenges such regularity to plead and prove
his case. The illustration does not say that, it may be presumed that any particular judicial or
official act has been performed. The prosecution shall have to prove that an official act was
done. When such an act has been performed and there is no other evidence on the record, it may
be presumed that that particular judicial or official act was done regularly. In other words,
before any such presumption can arise, it must be shown that the statutory act was duly
performed. The illustration thus permits a presumption to be drawn in the matters of
procedure. This provision does not permit a presumption to be drawn where the question does
not relate to the manner of doing an official or judicial act but cuts to the root of validity of the
act. Appellant cited K. K. Pookunju v. K, K. Rama-Krishna Fillai, 1969 Cri App Rule 15 (SC). In
that case the Public Analyst under Rule 7 of the Prevention of Food Adulteration Rules was
required to compare the seal on the container and the outer cover with the specimen
impression received separately, on receipt of the package containing the sample for analysis.
The High Court considered that the Public Analyst acted in accordance with the rules and he
must have compared the specimen impression received by him with the seal on the container.
In that case a copy of the memorandum and the specimen impression of the seal were proved to
have been sent to the Public Analyst separately by post. The Public Analyst did not mention in
his report that he compared the specimen impression on the seal with the seal on the packet of
the sample. It was observed by their Lordships of the Supreme Court that it should be presumed
that the Public Analyst acted in accordance with the rules and he must have compared the
specimen impression received by him with the seal on the container. Thus, the above authority
supports the view that illustration (e) to Section 114. Evidence Act. deals with the procedure.
learned Counsel then relied upon I, T. Commissioner v. Suraj Lai , K. Rajaram v, Koranne ;
Swaroop Ram v. State and Municipal Corporation of Delhi v, Om Prakash 1970 Cri LJ 1047
(Delhi). In all these authorities, it has been laid down that presumption can arise in the matter of
procedure and if there is non-mention in respect of following the proper procedure according to
the rules, such non-mention is not of vital importance. . Here the sealing on the seized articles

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has not been satisfactorily proved, (After discussing the evidence the judgment proceeded:) The
above facts throw a considerable doubt in the fairness of the investigation of the case and in the
aforesaid circumstances it would be hazardous to raise a presumption under illustration (e) to
Section 114. Evidence Act, that the goods alleged to have been seized from the accused were
duly sealed, that the seals were not tampered with till they reached the hands of the experts.
Even if a presumption of the kind is raised, the circumstances, indicated above, rebut it
effectively.

Illustration (f) . In Sukumar Guha, v Naresh Chandra Ghosh and Anr the Hon'ble High Court of
Calcutta has observed, "It is reasonable to hold that presumption under Section 114, Evidence
Act Illustration (f) when raised, shall be of that nature and no more. Both the presumptions are,
however, rebuttable. When the cover containing the notice has been returned to the sender by
the postal authorities, then that fact is direct proof of the fact that the notice sent by post was
not delivered to the party to whom it was addressed. Whether it was tendered and, if so, to
whom tendered, remain a matter to ascertain on evidence. If acceptable evidence is available,
that it was tendered to the party personally, then such facts may bring the service of notice
within the 2nd mode abovementioned. If however, tender or delivery is not to the party
personally but to a member of his family or a servant, then it may be effective tender or delivery
only when the notice was addressed to the residence of the party. Such personal tender or
vicarious tender may be effective even if it was through the agency of post office, and proof of
that tender comes from testimony of any person present at the event, and not only by examining
the C.C. No: 122/11 postman. Upon examining the evidence led by the accused no.1, in light of
the aforesaid observations, I find that the accused no.1 has not brought any credible evidence to
rebut the presumptions provided in Section 114, Illustration (f) of the Evidence Act, 1872 and
Section 27 of the General Clauses Act, 1897. In my view, the mere denial by the accused no. 1
that the legal demand notice dated 28.01.2002, Ex. CW1/G was not served, does not discharge
the burden imposed on the accused no. 1 on account of the presumptions drawn in Section 114,
Illustration

Illustration (g)

In Bijoy Kumar Karnani vs Lahori Ram Prasher on 17 March, 1972 Dr. S. Das contends that the
plaintiff has not called the accountant Kundu whose name appears in the voucher. The plaintiff
also did not himself give evidence before this Court. Dr. Das submits that the plaintiff and the
accountant of the plaintiff are the most important witnesses. Dr. Das submits that his client's
case is that the promissory notes were executed at No. 23/21 Gariahat Road, outside the
jurisdiction of this Court and when the defendant raised the issue that this Court had no
jurisdiction to entertain and try this suit, the plaintiff himself should have given evidence and
also should have culled the accountant Kundu whose name appears in the voucher. Dr. Das
referred to Section 114 illustration (g) of the Indian Evidence Act and also cited a number of
decisions. Section 114, illustration (g) of the Indian Evidence Act provides that the Court may
presume that evidence which could be and is not produced would, if produced be unfavourable
to the person who withholds it. Dr. Das submits that the plaintiff is an essential witness. He
knows the whole circumstances of the case and he should have given evidence. Dr. Das submits
that the plaintiff's case is that the promissory notes were executed in Calcutta within the
jurisdiction of this Court. Therefore, the plaintiff is a material witness to prove this fact. He
further submits that the plaintiff should have given evidence to contradict the defendant's case
that the promissory notes were executed at his residence at Gariahat Road and also to prove

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that the money due under the promissory notes has not been paid. The argument made by Dr.
Das, if accepted, would mean that the plaintiff should have been called to disprove the
defendant's case. Court held that there is no question of invoking presumption of Section 114,
illustration (g) of the Indian Evidence Act and the principles laid down in the said Privy Council
decision, cannot apply in this case.

ILLUSTRATION (h)Section 114 says about refusal to answer and presumption is leveled against
him .In Dipanwita Roy vs Ronobroto Roy on 15 October, 2014 There is an ancient presumption
under section 114, illustration (h), of the Evidence Act, dating from at least 1872, that official
acts have been regularly performed. Strange as it may seem this applies to Governments as well
as to lesser bodies and officials, and ancient though it is the rule is still in force. True, the
presumption will have to be applied with caution in this case but however difficult the task it is
our duty to try and find a lawful origin for as many of the acts of the appellant's Government as
we can. We would, however, while upholding the order passed by the High Court, consider it
just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or
disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she
accepts the direction issued by the High Court, the DNA test will determine conclusively the
veracity of accusation levelled by the respondent-husband, against her. In case, she declines to
comply with the direction issued by the High Court, the allegation would be determined by the
concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the
Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also
illustration (h), referred to above

illustration(i) Section 114. The court may presume that an obligation has been discharged
where the document creating obligation is in the hands of the obliger. Where the instruement of
debt and the security for it are in the hands of the debtor, the presumption , on the face of
things, would be that the debt must have been discharged and for protecting his interest the
debtor obtained the document and the security after discharging the debt. In Shankar Chauhan
vs Sunil Kumar Goel on 6 January, 2011, Section 114 of the Indian Evidence Act, 1872 and as
per the illustration (i) thereto, when a document creating an obligation is in the hands of the
obligor, the obligation would stand discharged. On the basis of this provision, it is argued that
once the original document as per the stand of the appellant had come in his possession on the
agreement being discharged, the same was destroyed and therefore no right can subsist there
under i.e. the argument is that the receipt/agreement is given at the time of entering into the
transaction to the person who gives the amount viz the buyer who pays the moneys is the
person in whose possession the receipt/agreement has to be if the transaction is subsisting, and
since, the original receipt/agreement is not with the buyer/respondent the same is because the
document was given back to the appellant/defendant showing that the transaction was by
mutual consent brought to an end/cancelled. It is also urged that it cannot be seriously disputed
that respondent/plaintiff received the amount in cash because even under the original
agreement/receipt dated 10.3.1996, the amount which was paid by the respondent/plaintiff to
the appellant/defendant was also in cash, meaning thereby that payment of cash is not an
unusual method of payment in this case. And the court held that The relief of specific
performance is discretionary and in the facts of the case where cash is said to have been
exchanged both at the time of the original transaction and also at the time of the subsequent
accord and satisfaction, the present is not a fit case where relief of specific performance ought to

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have been decreed. Uncertain situations and uncertain existence of agreements are not really
envisaged in the grant of specific performance relating to valuable immovable property.

S. 114-A In a prosecution for rape under cl.(a0 or cl.(b) or cl.(c) or cl. (d) or cl. (e) or cl.(g) of sub
section (2) of section 376 of the I.P.C where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman alleged to have been raped and
she states in her evidence before the court that she did not consent, the court shall presume that
she did not consent.

Presumption as to absence of consent in certain prosecutions of rape – even if there had been a
doubt about the medical evidence regarding non rupture of hymen the same would be of no
consequence as it is well settled by now that the offence of rape would be held to have been
proved even if there is an attempt of rape on the woman and not the actual commission of rape.
–Thus, if the version of the victim girl is fit to be believed due to the attending
circumstances that she was subjected to sexual assault of rape and the trauma of this offence on
her mind was so acute which led her to the extent of committing suicide which she
miraculously escaped, it would be a travesty of justice if we were to disbelieve her
version which would render the amendment and incorporation of Section 114A into the Indian
Evidence Act as a futile exercise on the part of the Legislature which in its wisdom has
incorporated the amendment in the Indian Evidence Act clearly implying and expecting the
Court to give utmost weightage to the version of the victim of the offence of rape which
definition includes also the attempt to rape. The following three conditions must be satisfied
before the presumption contained in S. 114-A can be raised:(a) It should be proved that there
was sexual intercourse. (b) The question before the court should be whether such intercourse
was with or without the consent of the woman.(c) The woman must have stated, in her evidence
before the court that she had not consented to the intercourse.This presumption would apply
not only to rape cases, but also to cases of attempted rape, as for instance, when the victim was
disrobed and attempts were made to rape her, which, however, could not materialise because of
intervening circumstances. (Fagnu Bhai v. State of Orissa, 1992 Cri. L.J. 1808)

Dealt from Section 115 to 117 of the Indian Evidence Act, 1872 Doctrine of Estoppel is that
provision which prohibits a person from giving false evidence by preventing them from making
contradicting statements in a Court of Law. The objective of this doctrine is to avert the
commission of fraud by one person against another person. This doctrine holds a person
accountable for false representations made by him, either through his words or through his
conduct.

Estoppel
Meaning of Estoppel

Section 115 of the Indian Evidence Act, 1872 incorporates the meaning of estoppel as when one
person either by his act or omission, or by declaration, has made another person believe
something to be true and persuaded that person to act upon it, then in no case can he or his
representative deny the truth of that thing later in the suit or in the proceedings. In simple
words, estoppel means one cannot contradict, deny or declare to be false the previous
statement made by him in the Court.

Principles of Estoppel

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Conditions for application of Doctrine of Estoppel

The following conditions are to be satisfied in order to apply the doctrine of estoppel:

• The representation must be made by one person to another person.

• The representation made must be as to facts and not as to the law.

• The representation must be made as to an existing fact.

• The representation must be made in a manner which makes the other person believe
that it is true.

• The person to whom the representation is being made must act upon that belief.

• The person to whom the representation would be made should suffer a loss by such
representation.

Nature of estoppel

The legal principle of the doctrine of estoppel is viewed as a substantive rule of law, albeit, it has
been described as a principle under the Indian Evidence Act, 1872.

Types of Estoppel

1. Estoppel by a matter of Record or Quasi-record

Alike res judicata once a court has given the judgement, the parties, their representatives, their
executors, etc. all are bound by that decision. This doctrine stops the parties to a case, from
raising another suit in the same matter or to dispute the facts of the case after the decision has
been made by the court.

Situations where estoppel by record or quasi record arises are as follows:

1. Where the dispute between the parties on the facts have been decided upon by the
tribunal which was entitled to take decision in the particular case, and when the same dispute
arises again in the matter subsequent to the first one, between the same parties;

2. Where the issue raised between the parties which has been resolved by the judiciary,
incidently comes again into question in the subsequent proceedings between the same party.

3. Where an issue raised on the facts, affecting the status of the person or thing, has been
willing determined in a manner that in the final decision it be included as a substantive part of
the judgment in rem of the tribunal that has been setup to decide the particular case. This
should take place when the same issue comes directly in question in subsequent civil
proceedings between any party whatever.

For example, if Nano has been held guilty in a murder case, then neither he, nor his
representative, Mantro, nor his executor Berna, would be allowed to raise a suit again in the
same matter. Parties are stopped from doing so under this doctrine.

2. Estoppel by Pais or Estoppel by Conduct

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The elucidated meaning of ‘Estoppel by Pias’ is ‘Estoppel in the Country’ or ‘Estoppel before the
public’. It has been discussed in Ss. 115 to 117.

Estoppel by conduct means when a person through agreement, misrepresentation or negligence

makes the other person believe in certain things upon which the other person had taken some
action causing a change in their current situation, then the first person cannot deny the veracity
of the statements given by him in the latter stages.

In the case of Sardar Chand Singh v. Commissioner; Burdwan Division, A.I.R. 1958 Cal. 415
Chang Singh, the Managing Director of Messrs., was denied any revolver license as he was
accused in a gruesome murder case and other cases. When the District Magistrate issued an
order that he could not hold any revolver license on the grounds of public order and safety,
Chand made no appeal. This planted a reasonable belief that he has consented to it. Later on
when makes an application to the District Magistrate to reconsider his case, it was denied
following the doctrine of ‘Estoppel by Conduct’.

3. Estoppel by election

Kantabai offers his maid Meena Malhotra her second-hand car. Meena out of generosity says
that she would not take it for free. Kantabai says to Meena that she has the freedom to take it as
a gift or to make a payment as per her willingness. Meena has the option to either take it as a gift
or claim a right over it by purchasing the car. Now, Meena makes the payment and takes the car
in her possession. After a year, Meena becomes bankrupt and asks Kantabai to return the money
which she had given to her as the payment for buying the car, as she now wants it as a gift.

According to the doctrine of estoppel by election the person receiving the gift or claiming the
right can enjoy one of them and not both of them. So Meena cannot now go back upon it and
take the other option.

In para 17 in the case of Revision v. Lekshmy Sukesini Devi, the court clearly stated that: Parties
should not take inconsistent pleas as it makes the conduct far from satisfactory. And also that
parties should not take inconsistent stands and lengthen the proceedings unnecessarily.

In another case, the petitioner was given a land on licence and not on interest. In the terms and
conditions of the contract it was stated that in case a dispute arises, the decision of the chairman
would be the final one. The land was given to the petitioner to build an amusement park on it.
While building the park it was found that the necessary actions have not been taken for the
establishment of the park and as a result half of the land remained undeveloped, which went on
to violate the conditions of the contract. In the suit filed, the court said that the doctrine of
estoppel cannot be pleaded in the given circumstances.

4. Equitable estoppel

When a person tries to take a legal action that would conflict with his previously given
statements, claims or acts, this legal principle would prohibit him from doing so. So, the plaintiff
would be stopped from bringing a suit against the defendant who acted pursuant to the
commands of the plaintiff.

Suppose Tetanus gives his gold jewellery to Vaccine, the most famous jeweller in the town, for
repairing. Vaccine, while handing over the jewellery to Tetanus after repair informed that a

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mark has been made by mistake at the back of the jewellery. Tetanus didn’t mind that and took
the jewellery happily with her. Later on if she brings a suit against Vaccine, she would be
stopped under this principle as her suit would run counter to her earlier statement of
forgiveness for the damages caused to her jewellery by mistake.

5. Estoppel by negligence

This principle allows one party to claim a right over the property of another party who might
not be having the possession of it. This reflects that the person being estopped owes a duty to
the other person whom he had led into wrong belief.

In the case of Mercantile Bank of India v/s The Central Bank of India Limited, A.I.R. 1938 Privy
Council, 52. a firm of merchants committed a series of fraud and until it came to the notice of the
authorities, enjoyed high repute in the state of Madras. This firm was known for groundnuts-
merchant and exporters. Both the plaintiff and defendant financed the consignments of ground-
nuts purchased and each received a ‘railway receipt’ in respect of their consignment.

The merchants needed a loan so what they did was, at first pledged the railway receipt from the
Central Bank to obtain a loan and then again fraudulently pledged it to the Mercantile Bank also.
The plaintiff, the Central Bank had filed a suit for conversion of the goods against Mercantile
Bank. It was held that there was no negligence as Central Bank didn’t owe a duty to the
Mercantile Bank and so Central Bank was not estopped from having a prior title as ‘pledgees’.

6. Estoppel by Benami Transaction

Badrinath, the owner of land, decides to hand over the apparent ownership of his property to
Kaju Rastogi. Badrinath does so and acknowledges that Kaju has paid him the consideration for
the promise. Now, Kaju Rastogi sells this land to Tripti Sanoon, a film actress, in good faith and
for a good amount of money, as by gaining ownership over the property Kaju has also gained the
right of disposition over that property. Badrinath hates Tripti Sanoon and asserts his title over
the property. But he would be estopped from doing so under the given legal principle. And this
is what benami transaction means.

In Li Tse Shi v. Pong Tse Ching, A.I.R. 1935 P.C. 208 the husband died in the year 1925. His entire
will was made in the name of his wife. In 1930 their son misrepresenting somebody else to be
his father bought the property of his father from the same seller who had sold the land to the
father. Later the grandson of the person who died, rented the land to a company and when the
company stopped paying the rent and the grandson complaint, the wife or the mother claimed
the title over the land as her husband had made the will in her name. But it was held that the
principle of estoppel by benami transaction could be applied as she was already aware of the
fraudulent selling and purchasing of land by her son.

7. Estoppel on a Point of law

The Doctrine of estoppel does not apply to statutes but only to the facts. Estoppel, if applied to
the law would go against public policy and general welfare of the society. The principle of
estoppel can never be invoked for the purpose of defeating the provisions of law.

For example, if a minor, representing himself to be a major, enters into an agreement with Mr
Kanjilal for the sale of a plot of land, the agreement would be void. And nothing would stop the

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minor from taking the defence that the agreement was void ab initio, as it was true that at the
time when he entered into the agreement he was a minor.

In Jatindra Prasad Das v. State of Orissa & Ors. MANU/OR/0225/2011 the High Court of Orissa
laid down that estoppel cannot arise against statutes and statutory provisions. It was further
said that statutory provisions cannot be disregarded in any case, not even on the grounds of
precedent or previous administrative decision.

In the case of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. 1986 A.I.R. 180, 1985
SCR Supl. (2) 51, pavement dwellers who migrated to India, because of proximity to their place
of work started living on the pavements in Bombay. Bombay Municipal Corporation (BMC)
initially allowed them to stay as they constituted the major part of the population of Bombay.

Later on when the pavement dwellers were evacuated, Olga Tellis, a journalist raised questions
against this action. It was upheld that no estoppel can arise against the Constitution of India or
against the fundamental right, i.e. the right to life and livelihood in this case.

Estoppel and tax laws

In I.T. Commissioner v. Firm Muar A.I.R. 1965 SC 1216 the court upheld that doctrine of
estoppel would not hold in the case where a non-taxable income under Income-Tax Act, has
been taxed. Also once it has been said that a tax would be collected then one cannot give up on
it. Further, stating that the tax would not be collected would not bind the state government from
collecting it, as decided in Mathura Prasad v. State of Punjab A.I.R. 1962 SC 745.

Unambiguous laws cannot be dodged

In Sales Tax Officer v. Kanhaiya Lal A.I.R. 1969 SC 135 it was formulated that the doctrine of
estoppel would not arise in cases where the law clearly, without any ambiguity, states that the
plaintiff should be given relief. When any law is absolute and has no exception clauses, than
anybody acting against it would be acting beyond powers which would be void and the party
getting affected by it can file suit claiming estoppel against it. Whereas if any exemption clause
exists in the law then relaxation can be given based upon it. The party would not be said to be
acting ultra vires and estoppel can be claimed as mentioned in the judgement of Delhi university
v. Ashok Kumar A.I.R. 1968 Del 131.

Principles determining that there cannot be any estoppel against statute

Categories under which the doctrine of estoppel cannot be applied against the state:

• By entering into bilateral agreement parties can contract himself out of the statutory
provisions,
• There must exist some provision in the statute which prevents the parties from entering
into such types agreements which the parties would have entered into,
• The provision should be such that it satisfies the interest of the public at large,
• The provisions should not be such that only a particular category of people can avail its
benefits, and, Merging of the agreement between the parties into a court’s order where
the parties have been discouraged from performing its obligation imposed on them by
law, because of certain actions by the parties.

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 • By saying that there can be no estoppel against the statute it is meant that where the
converse of a provision mentioned in a statue exists, the party would not be estopped by
his previous given statement(s).

In Jai Jai Ram v. Srimati Laxhmi Devi 1963 ALJ 832 the court gave a verdict that what appears to
be a law is actually a law or not is dependent on the truth of the facts and on the situation of the
parties which keeps on changing. Whether what impersonates a law is really a law or not has to
be decided by the courts.

In National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board A.I.R. 1996 Mad. 229 relying on
the Schedule mentioned in the Act a new industry was given concession on tax for the next five
years from the days of its commencement. The state Government of Madras under a section of
the Act had the power to bring amendments to the schedules of the Act. Pursuant to this, the
State government brought an amendment to the above-mentioned schedule and made it a
subject to certain conditions. This was done before the completion of 5 years of that industry.
The industry in his suit pleaded estoppel to which the court said that no estoppel would arise
against the government.

8. Proprietary Estoppel

We often see promises being made and later broken. While in some cases we can do nothing
about it, but in certain circumstances, particularly in matters related to land or property, there
is a possibility to bring a claim to enforce a broken promise. This is called proprietary estoppel.
In Thorner v. Major UKHL 18, 1 WLR 776 it was laid down that in order to claim a right under
proprietary estoppel these things have to be proved:

• That representation has been made.

• That the party believed it to be true and acted upon it.
• That the party suffered a loss as a result of such representation.

In James v. James [2018] EWHC 43 (Ch) Allen and Sandra had two daughters and one son. The
son worked for the major part of his life with his father eventually becoming a partner. When
making the will, Allen gave some land to one of his daughters which created a dispute in the
family leading to the dissolution of the partnership. Later Allen distributed his property
amongst the three ladies of his house, cutting down the name of his son. Son brought a case of
proprietary estoppel against the women and also challenged the validity of Allen’s will. It was
held that nothing has been shown or said with clarity that Aleen would transfer his entire will to
him.

In Gyarsi Bai v. Dhansukh Lal, A.I.R. 1965 SC 1055 3 (1876-77) LR 2 App Cas 439 it was
established that in case the first two conditions are met but the third one is not and hence the
doctrine of estoppel cannot be evoked.

Estoppel by Convention

In the case of the Republic of India v. India Steam Ship Company Limited, [1998] AC 878 it was
observed that estoppel by convention arises when parties to a transaction assume the facts or
the law. This assumption might be made by both the parties or either of the parties. Under this
principle, parties to an agreement could not deny to the assumed facts, because if the party or
parties are allowed to go back on their assumptions, it would be unfair and lead to injustice.

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In a meeting between the landlord and the lesses, it was decided that the landlord would send
demands at the end of the year and the receipt would be given to any one of the lessees.
However, certification was not made a requirement for the recovery of the service charged
under the agreement. The doctrine of estoppel by convention would apply whereby the landlord
could recover the service charges which could not be challenged by the lessee as there was no
certification. This was decided in the case of Clacy & Nunn v. Sanchez & Others [2015] UKUT
0387 (LC).

9. Estoppel by Acquiescence

When one party, through a legitimate notice, informs the other party about the facts of a claim,
and the other party fails to acknowledge it, that is, neither he/she challenges it nor does refute it
within a reasonable period of time. The other party now would be estopped from challenging it
or making any counterclaim in the future. The other party is said to have accepted the claim
though reluctantly, that is, he/she has acquiesced it.

10. Contractual Estoppel

Pappi Lahari from Bihar entered into a contract with Batman from Chennai whereby Pappi
would supply 100 bales of cotton to Batman in exchange of 25,000 rupees. While signing the
contract they agreed to the fact that in case of any dispute between them, the case would be
filed in the court of in Tamil Nadu. Once agreed the parties cannot, later on, assert to change the
jurisdiction in the particular case. They are bound by the principle of contractual estoppel.

This principle would apply even when the original statement made by the parties is not true.

In Peekay Intermark Ltd. v. Australia and New Zealand Banking Group Ltd. [2006] EWCA Civ
386 it was laid down that when the parties to the contract gives consent to a fact, neither of
them can deny the existence of such facts to which they have agreed, especially when
considering those aspects of their relationship towards which the agreement had been directed.
The contract would itself give rise to contractual estoppel.

11. Conflict Estoppel

When one person through his speech or conduct makes the other person believe in a particular
thing and induces him to act upon it, he would be estopped from taking any conflicting or
contrary or erratic position, which could cause loss to the other party.

For example, Sattu in an agreement with Kabir says that he would not roam with his girlfriend if
he offers him a ride on his bike every day until his birthday. Kabir follows his instructions. Sattu
after few days says that the number of rides would be two per day and only then will he not
chase Kabir’s girlfriend. After 2 months he asks that the bike ride be replaced with a ride in his
car. Here Sattu cannot take conflicting positions. Once there has been an agreement to offer one
ride everyday on the bike, he cannot contradict that and make other demands, he would be
estopped from doing so.

12. Issue Estoppel

Father of Neena had given words to his friend that Neena would get married only to his son,
Thangabali when they become adults. When they grew up, Thangabali went for a court marriage

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with Neena. Just before the signing of the documents, Neena ran with her lover Rahul.
Thangabali filed a case stating that Rahul has forcefully taken Neena with her and that there was
an agreement whereby they were supposed to get married to each other only. But Neena
confessed that her father and Thangabali were forcing this marriage on her and that she wanted
to marry her childhood friend Rahul. The court said that the agreement is void and the matter
was dismissed.

After 5 years it was found that Rahul has filed a suit where he claims that Thangabali has been
following him and his wife everywhere taking the plea that it was because of his work. It was
found that Thangabali has been meeting Neena over a period of time. This case again raises the
issue of whether Neena was forced by Rahul or Thangabali for marriage. Here issue estoppel
would apply and re-litigation of the said issue would be not be allowed.

Difference Between Issue Estoppel and Res Judicata

Res judicata is the final decision made by the court. It prevents the parties from relitigation the
issues that were or could have been raised in the specific case.

Whereas, the issue estoppel is a legal principle which says that even if the court has made a
decision the relitigation of that issue would be prohibited on a different course of action
involving either of the parties from the first case.

Sl.
Estoppel Promissory Estoppel
No.

Representation is made to an existing Representation of a future intention is

1.
fact. made.

It is supported by parties It is supported by parties future conduct

2.
consideration. and not a consideration.

Estoppel has been dealt in section There exists no provision in the Indian
3. 115 to 117 of the Indian Evidence Act, Evidence Act, 1872 which defines
1872. promissory estoppel.

It can be used as a cause for action to obtain

4. It is only available as a defence
damages.

Promissory estoppel has been dealt in the

5. Estoppel has been dealt in tort law.
Indian Contract Act, 1872.

13. Collateral Estoppel

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The doctrine of collateral estoppel safeguards a criminal from being prosecuted for the same
issue as raised in the earlier trial in more than one criminal trial.

In the case of Ashe v. Swenson 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed. 2d 469, 1970 U.S. LEXIS 54
six men who were playing poker when they were robbed by three or four men. They stole one of
the victim’s cars and ran away. Next morning 3 men were found near the stolen car and Ashe
was found at some distance. Ashe was put to trial and was found not guilty due to lack of
evidence. Weeks later he was called for trial in case of robbery against the second victim. It was
held that the second trial be dismissed as the prosecution of a crime arising out of the same
course of events is not permissible by the law.

14. Judicial Estoppel

It prevents a party from making conflicting or contradicting statements as to what was

previously said in the court as this would adversely affect the court proceedings and also cause
disrepute to the court. It was held in First National Bank of Jacksboro v. Lasater 196 U.S. 115
(1905), a bankrupt person by not following the schedule and preventing from giving all the
information of his property finally lead the estate to shut down due to bankruptcy. After this, he
started claiming a title over the property on the ground that the trustee never took any action
against it. It was held that the creditors were automatically entitled to the property and
asserting title over the property in such manner is not permissible.

15. Legal Estoppel

It means that the assignor or the grantor, in the subject matter of assignment or grant, cannot in
the latter stage deny the validity of title. In Westinghouse Elec. & Mfg. Co. v. Formica Insulation
Co. 266 U.S. 342 (1924) the court reached a conclusion that the legal principle of estoppel by
deed should apply to the patent right as well. Law clearly recognizes that assignor of the patent
for novelty or utility cannot say that a patent is void.

He would be estopped by law from doing so. In such cases court is allowed to view the art or
work in order to understand what that thing was which was assigned and to decipher the
primary and secondary character of the assigned patent. This would also assist them in
determining the extent to which the doctrine of equivalents could be invoked against the one
infringing it. It is believed that the court would not make any assumptions other than that the
invention presented a sufficient degree of utility and novelty which would justify the issuing of
the patent assignee.

Difference between Estoppel and Promissory Estoppel

The Doctrine of promissory estoppel binds a party by his promise made to the other party,
having faith in which the other party has taken an action. The party cannot make contracting or
conflicting statements later on, neither he can go back on his words. In Motilal Padampat Sugar
Mills v. State of Uttar Pradesh And Ors. [26] the state of Uttar Pradesh first promised to exempt
the new industrial units from paying sales tax for an initial period of 3 years.

Based on this the plaintiff took a huge amount of loan to set up a new industrial unit. Later on
the government made a change in its promise and said that only partial concession would be
allowed to which the plaintiff agreed. But the government yet again changed the policy and this
time said that no concession would be given.

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The court said that the defendant made a representation to the plaintiff. Laying his trust in it,
plaintiff took a large sum of money as a loan. So, now the government would have to exempt the
plaintiff from paying taxes for an initial period of 3 years as per the principle of the doctrine of
promissory estoppel.

Sl.
Estoppel Promissory Estoppel
No.

Representation is made to an existing Representation of a future intention is

1.
fact. made.

It is supported by parties It is supported by parties future conduct

2.
consideration. and not a consideration.

Estoppel has been dealt in section There exists no provision in the Indian
3. 115 to 117 of the Indian Evidence Act, Evidence Act, 1872 which defines
1872. promissory estoppel.

It can be used as a cause for action to obtain

4. It is only available as a defence
damages.

Promissory estoppel has been dealt in the

5. Estoppel has been dealt in tort law.
Indian Contract Act, 1872.

Difference between Estoppel and Waiver

A waiver is the deliberate or voluntary relinquishment or abandonment of a known right or

privilege. For example, an insurance company in its policy has stated that the policy would
stand cancelled in case of non-payment in 30 days after the notice for the same has been given.
Mr. X failed on payment and requested the company to consider his application soliciting an
extension of one week. The company considers Mr. X’s application and by doing so has waived
the original deadline for payment.

The difference between estoppel and waiver was explained by the Supreme Court in the case of
Provesh Chandra Dalui and Ors. v. Biswanath Banerjee and Ors., A.I.R. 1989 SC 1834. The court
held that the most important element in case of waiver is that there must be intentional
relinquishment of a known right and should be willing done by the party. Where waiver asks for
an involvement of intention by the party to surrender a right, in the doctrine of estoppel the
element of intention is irrelevant. And what becomes important in estoppel is that the party
must suffer loss as a result of the false representation made to him. In case of estoppel it is not
required that the part give up on the right, the doctrine of estoppel would anyway arise.

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The Doctrine of estoppel prevents a person from denying his previous statement made in a
court of law as it could cause injury or loss to the other party.

Sl.
Estoppel Waiver
No.

Since waiver is contractual, that is, it is an

Estoppel cannot be the cause of action although it can
agreement to release somebody out of an
facilitate or aid the enforcing of a cause of action by
1. agreement by waving the previous set policy
preventing the defendant from not denying what was
or to assert a right. Therefore, a waiver can
earlier said by him.
be a cause of action.

In this, the injured party will have to prove that injury,

2. No such requirement is there in the waiver.
loss or harm occurred.

In the case of waiver the parties involved

It is not necessary for the parties to know the truth or
3. have the knowledge of the real facts and they
have the knowledge of the reality.
know the truth.

There might be situations where acquiescence would In case of waiver, along with acquiescence,
4.
amount to estoppel. some act or conduct is also necessary.

Parties use the doctrine of estoppel as a defence in a Waiver can be used as a cause of action for
5.
court of law and not as a cause of action. claiming damages.

Illustration:
In the same case, the principal would become
In Dawsons Bank Limited v. Nippon Menkwa bound by the contract and not estoppel as
Kabushiki Kaisha, (1935) 37 BOMLR 544 the principal the agent actually had the powers to do so,
6.
gave the right to his agent to make an agreement on i.e. he can waive the rights of the principal,
behalf of him. While making an agreement the agent by the previous contract made between
waived the principal’s right. The principal now them.
becomes bound by the contract.

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No Estoppel against Minor

Section 3 of The Maturity Act’, 1875 defines a minor to be a person who is under the age of 18
years and Section 11 of the Indian Contract Act, 1872 says that parties entering into a contract
should be competent, i.e. should be a major, of sound mind and barred by no law to enter into a
contract. A contract with a minor is void ab initio which means void from the very beginning.

So when a minor misrepresenting himself to a major enters into a contract, then he cannot be
made liable for it, not even on the grounds of estoppel. The minor can always plead that at the
time of entering into the contract he was a minor.

In the case of Ajudhia Prasad and Anr. v. Chandan Lal and Anr., A.I.R. 1937 All 610 two minors
fraudulently entered into a mortgage deed by concealing the fact that they were minor as a
guardian has been appointed for them under the Wards Act. The court held that no estoppel
would arise in this case.

The Criminal Jurisprudence in India has been established on certain principles founded by the
Judiciary through its pronouncements. These are exhaustive in nature with wide acceptance
across the country.

It is a presumption that every accused is innocent until proven guilty in a court of law provided
all principles of natural justice were followed in a fair trial.

The burden of proof lies on the prosecution to prove the guilt of the accused rather than him
proving innocence.

The proof shall be conclusive enough to prove the guilt beyond the reasonable doubt.

In case of any doubt regarding the guilt of the accused, the benefit of doubt is provided to the
accused and he shall be acquitted.

To satisfy all these requirements of criminal jurisprudence, just and fair trial are carried out
with each party putting their contentions before the judge. Investigation is the tool to detect a
crime which comprises omissions by the investigating officers, later to be completed by the
testimony of the witnesses that had first hand information of the crime committed. The
statements by the witnesses are submitted as evidence in a Court made under an oath, whether
oral statements or written testamentary deposition. It is the obligation of the witness to assist
the court in delivering justice by attending the proceedings when required.

Witnesses
Who can be a witness?

Section 118 of the Act states the persons who can be a witness. The court identifies all
competent individuals who can testify with proper knowledge of the crime. There are
restrictions placed in consideration by the court on those who are incompetent in
understanding the questions put to them, these include:

• by tender years;
• extreme old age;
• disease, whether of body or mind, or any other cause of the same kind.

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The condition of the witness does not bar him from testifying but his incompetency to
understand the questions or answer rationally exclude him from being a witness.

Different kinds of witnesses

1. Prosecution witness – Any witness who has been brought into the court to testify by the
prosecution while supporting their claims.
2. Defence witness – Any person who justifies the contentions of the defence by providing
such statements that can discharge the accused from any charges filed.
3. Eye witness – Any person who helps the court by describing the acts committed on the
crime scene with complete authenticity as it was present there and has first hand
information.
4. Expert witness – Any person who has the professional, educational or judicial expertise
on the matter beyond any average individual, and the court can rely on its testimony to
declare a verdict.
5. Hostile witness – Any person who by his consequent statements gives out an impression
of not letting out the truth or not desirous of hiding the truth.
6. Child witness – A child who has the understanding of the questions of the court or has
the rational answers to the questions put forward can testify in a court as per section
118 of Indian Evidence Act.
7. Dumb witness – Any person who is not capable of giving oral statements can be allowed
to provide statements in written declaratory form in the court. Such written statements
shall be deemed as oral evidence.
8. Chance witness – Any person who by the matter of coincidence happens to be present at
the site of crime committed.
9. Accomplice witness – Any person who was connected to the crime in its illegal
commission or omission provides the statements in the court.
10. Interested witness – Any person who has some interest in the case or its verdict in order
to extract some material benefit out of it.

How can dumb witnesses provide evidence?

Every witness is important to the court for its statements regarding the crime committed
helping the court in delivering justice. The inability of a witness to speak shall not be a
hindrance in him testifying before a court, thus, Section 119 of the Act provides the dumb
witnesses with other means such as by writing or signs which could be understood in the court.
The written statements required to be made in an open court, given equal values as an oral
evidence.

Lakhan v. Emperor case states that if a person has vowed to keep silence owing to a religious
practice, he shall testify in writing answering all the questions put to him and this be submitted
in court as evidence.

Admissibility of a child witness in a court of law

A testimony by a child in a court of law is not given much importance due to the possibility of
the coercion induced statements which would threaten the authenticity of the witness. A child
can have a different perspective to different situations according to their mental development.

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The maturity of every individual is subjective to the environment he/she resides in and the
socio-economic development of that individual.

Suresh v. State of Uttar Pradesh case states that a 5 year old child testifying would be admissible
as evidence in a court if he understands the question and has the capacity to answer rationally.
It was declared that no minimum age is required for a witness to testify in a court.

In Santosh v. State of West Bengal case states that a child of 12 years is more mature than a 7-8
year old and that on the satisfaction of the court on the competency of the child to understand
the questions put to him, he can be considered a witness to the case.

Principle of Vol dire Test

This test was established to identify the competency of the child to be a witness according to the
conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked
some questions out of the scope of the case details which include preliminary questions on
name, father’s name or their place of residence. If the court is satisfied with the answers of the
questions, the capability of the child to understand the questions and answer them rationally,
can the child be allowed to testify in court.

State v. Yenkappa case states that a man who killed his wife and his adolescent children gave
testimony against their father leading to his conviction. The question over admission of child
witnesses was raised in the appeal. The man contended that his children were tutored thus their
statements need not be accepted. It was decided that the age of the children does not restrict
them from testifying but also an innocent cannot be held guilty on the statements of child
witnesses as they can be easily tutored.

The case of Rameshwar S/o Kalyan Singh v. State of Rajasthan, states that every person is
competent to testify in a court of law unless restricted by the court itself in matters of the
witness not understanding the question put before him/her.

Child Abuse in cases of sexual violence and molestation

The cases of sexual violence and molestation against children in India have been observed in the
recent past with the 2007 survey of Ministry of Women and Child Development showing 53% of
children been sexually abused. The children witness in their own cases of sexual violence are
scared of disclosing the same to their parents which led to the enactment of ‘Prevention of
Chilren from Sexual Offences (POCSO) Act, 2012’ to punish the sexual offendors committing
such crimes against children.

The statements made by a child are always questionable, but there is a requirement to devise
systems to verify the testimony, free from any external factors and deal with extreme care and
caution.

Interested persons as Witness

An interested person according to the English Law is someone who has any material benefit
from the case. The one who has an interest in the outcome of the case by virtue of him attached
to the case in some manner.

Whether evidence by an interested person is credible or not

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The court shall take utmost care while hearing the interested person testifying in a court and
not take it as conclusive evidence due to the witness association with the case. The testimony
cannot be discarded but caution shall be there as a related person can be an interested person.

In the case of Seema Alias Veeranam v. State by Inspector of Police, held that a court shall not
deny the testimony of a related person only on the grounds of the witness being a related
person. It is the duty of the court to carefully examine and scrutinise the evidence.

In Sardul Singh v. State of Haryana case, it was held that the evidence by an interested person
needs to be scrutinised even more. It cannot be discarded on it being produced by an interested
person. The truth needs to be found out by the court.

Cases where the witnesses are compelled to produce a document

Communications between husband and wife

Section 122 of the Act states that no person who is or has been married, shall be compelled to
disclose any communication made to him during marriage by any person to whom he is or has
been married. A wife cannot be compelled to make the communications made to her in a court.
However, the spouse can depose off the communication if the other spouse gives the consent for
doing so. The consent given should be expressed. Consent in such cases cannot be implied.

Communications made to public officer

Section 124 of the Act states that no public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that the public interests
would suffer by the disclosure. The documents which are prepared by the official following the
procedure of law shall be accepted as evidence in a court of law. The official needs to decide
about the disclosure not going against public interest and produce it accordingly.

Information is given to Magistrate in case of commission of offence

Section 125 of the Evidence Act provides for information as to commission of offences. No
Magistrate or Police officer shall be compelled to say whence he got any information as to the
commission of any offence, and no Revenue officer shall be compelled to say whence he got any
information as to the commission of any offence against the public revenue.

The police officer is under no obligation to reveal the sources of information and how the
information was collected regarding the commission of an offence.

Communication made to legal Advisors

Section 129 of the Evidence Act states that no person can be compelled to reveal their
communication details with the legal advisor unless it decides to be a witness in which case the
court can ask the person for the communication details to explain any evidence in the court of
law.

When the witness is not a party to a suit, he can be compelled to produce title deeds

Section 130 of the Evidence Act states that no person can be compelled to produce any
documents as to the title deeds to any property or any such document that might criminalize

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him, unless he has written to the production of such documents with the person seeking
production.

Cases where the witnesses cannot be permitted to make a particular statement

Communications between husband and wife

Communications between husband and wife are categorised under privileged communication
that shall remain confidential among the two and cannot be asked to reveal in a court. This
doctrine is envisaged under section 122 of the Evidence Act. The communication even if
relevant to the case cannot be used as an evidence with the implication of the doctrine of
privileged communication. The spouses are provided with this privacy as to maintain the social
principles prevalent in society.

Evidence when the affairs of the State are concerned

This immunity is included in the Section 123 of the Evidence Act to protect the interest of the
state affairs. The unpublished official records regarding the state affairs cannot be compelled to
be produced as evidence by any person unless the permission to present such records has been
procured from the officer at the head of the department concerned.

Attorney-Client Privilege

Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication,
documents or anything else with his client. The provision only states about any person in the
capacity of legal advisor barred from sharing confidential details. This privilege is applicable to
all the communications, either documentary or oral.

Section 127 of the Evidence Act extends the ambit of section 126 by including all other people
employed by the legal advisors into the restrictions mentioned in the previous section.

Section 128 acts as the waiver for the client to avoid providing any information unless it is its
own will to produce such information, calling the counsel as a witness.

Number of witnesses required by the court in any case

Section 134 of the Indian Evidence Act states that no particular number of witnesses are
required for the proof of any fact.

The State of M.P. v. Chhagan case states that the section 134 of IEA clearly mandates that “in any
case no particular number of witnesses is required for the proof of any fact of the case.

The court is not concerned with the number of the witnesses in a case but with the quality of
those witnesses. If the court is satisfied with the testimony of either one of the witnesses, the
other numerous witnesses contending similar testimony would be immaterial to the case.

Corroboration of Testimony of Sole Witness

Section 134 of the Indian Evidence Act exclusively does not provide for any particular minimum
number of required witnesses in a case, hence, testimony of sole witness in a case is credible if it
is enough to prove the case beyond reasonable doubt.

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This case of Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra, states that even if the case
against the accused hangs on the evidence of a single eye-witness it may be enough to sustain
the conviction given sterling testimony of a competent, honest man, although as a rule of
prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed
and not counted since quality matters more than quantity in human affairs.

In the case of, Shanker v. State, The Rajasthan High Court laid down the observation regarding
corroboration of evidence of single witness held as under:

(1) As per a general rule, there is no fixed number of witnesses required for any particular case;
a court can act on the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by Statute, in the exceptional cases where the nature
of testimony of a single witness itself requires corroboration which courts should insist upon,
for example in the case of testimony of a child whose evidence is that of related character or an
accomplice.

(3) The requirement of the corroboration of the testimony of a single witness is dependent on
the facts and circumstances of each case and there is no general rule which can be laid down on
this matter like this and it also depends on the discretion of the Judge who deals with the case.

Rights that witnesses have under Witness Protection Scheme, 2018

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat
assessment and protection measures inter alia include protection/change of identity of
witnesses, their relocation, installation of security devices at the residence of witnesses, usage
of specially designed Court rooms, etc.

The Scheme provides for three categories of witness as per threat perception:

Category ‘A’: Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.

Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his
family members, during the investigation/trial or thereafter.

Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the
witness or his family member’s, reputation or property, during the investigation/trial or
thereafter.

Need for witness protection scheme

The witness protection scheme is necessary to encourage the witnesses to produce testimony in
the court without the fear of being killed or tortured while helping the court in deciding the
case.

Importance of Witness

A witness is the one with the first hand information of the crime committed and plays a huge
role in the investigation process as well revealing the truth behind the circumstances that led to
the crime. They help the court by clarifying what happened at the crime scene and all other

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details they know of the crime, all of which is relevant to the case and assist the judge in
deciding criminal matters.

Threats to the Witnesses

There are certain types of threats associated with witnesses:

• Forcing the witness to testify false information, or not testify at all.

• Offering bribe to a witness in monetary or non monetary terms.
• Threatening a witness with physical harm or personal property damage.
• Threatening to kill or harm the family members of the witness.
• Making arrangements to prevent a witness from reaching the court for proceedings.
• All these probable threats pose an issue with the witnesses not ready to testify in a
court, thus, provisions to protect these witnesses from any harm whatsoever are to be
formulated.
• Incidents involving a threat to witnesses

Vyapam Scam

A medical entrance examination scam was unearthed in Madhya Pradesh in 2013 where 13
entrance exams were conducted for admission to various professional courses. The candidates
who applied for the examinations were replaced by meritorious medical students or medical
practitioners impersonating as candidates in exchange of monetary benefits.

The investigating officers that were involved in the case along with the whistleblowers on
whose information the investigation was carried out received threats from those involved in the
scam. Around 23 whistleblowers while getting details of the scam. These whistleblowers are
secret detectives of police authorities that are entrusted with providing details of any illegal
activity being carried out in their local area. In this case, these whistleblowers would have been
presented in court as witnesses but they were killed before anything could be testified in court.

Examination of a witness
Chapter X of part III of the Indian Evidence Act, 1872 deals with the examination of a witness.
Section 135 lays down the order to be followed in the production and examination of witnesses
which is left to be regulated by the code of civil procedure and criminal procedure. If there is no
provision for a particular point in case, then, the court can exercise its own discretion in
deciding the order of production of witnesses.

Admissibility of Evidence

As per Section-5 of the Indian Evidence Act, 1872, only those pieces of evidence, regarding the
facts and facts in issue have to be submitted that are relevant. Section 136 has reiterated this
point. It states that a judge may ask the party, who has proposed to give evidence, as to how will
such a fact, for which the evidence has been provided, be relevant to the case. Hence, the judge
can question the relevancy of the fact for which the evidence is being provided and the evidence
shall only be submitted if the judge thinks the fact will be relevant to the suit.

If the fact (A) proposed to be proved, whose evidence will be admissible on proof of some other
fact (B), the latter (B) should be proven first. The court, may, however, exercise its discretion

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and let the party prove the former (A) first, on the condition that the party will prove the latter
fact (B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact, the latter shall be
proven first but again, the judge may exercise his discretion and let the party prove the first fact.
It has been held in Collector of Gorakhpur v. Palakdhari Singh (1889 ILR 12 All 1) that any doubt
about the admissibility of a piece of evidence shall be in favour of admissibility.

Examination Order

Testimonies of witnesses are recorded as answers to the questions asked to them. These
questions are relevant to the facts in issue, and such questioning is called an examination of the
witness. The evidence not only includes answers to questions but may also include statements
made or that is required to be made, by the court and is relevant to the issue.

Section 137

It states that a witness should be first examined by the party who has called him and this is
called examination-in-chief. And when an adverse party examines the witness, it is called cross-
examination. The cross-examination may explore all the relevant facts and not necessarily, the
facts that were asked to the witness during the examination in chief. There might be no need for
cross-examination if the testimony is prima facie unacceptable (Ghulam Rasool Khan v. Wali
Khan, AIR 1978 J&K 54). If the party who called the witness, questions him, again after cross-
examination, it is called re-examination.

According to Section 137 of the Indian Evidence Act,1872 the examination of a witness, by the
party who calls him, shall be called his examination-in-chief. This is also called as examination.

Every witness is first examined by the party who has called him, this process called his
examination-in-chief. Section 138 provides Witnesses shall be first examined-in-chief then, if
the adverse party so desires cross-examined and then if the party calling him so desires. re-
examined.

Object of Examination-in-chief :

The object / purpose behind conducting the examination-in-chief is to make the witness depose
to what he has been called by the party calling him to prove. In other words, the object of his
examination is to get him from the witness all material facts within his knowledge relating to
the party's case. It must be confined to the relevant fact and no leading questions can be asked.
except with the permission of the Court.

The court shall permit leading questions to be asked as to matters which are introductory or
undisputed, or which have in its opinion, been already sufficiently proved.

In Examination-in chief no leading questions can be put except in certain special cases. Leading
question is one, which suggests the answer. only relevant questions should be asked.

It should be noted that in examination-in-chief, the lawyer conducting the examination of the
witness, the lawyer should understand the nature and temperament of the witness and ask such
questions which do not irritate the witness. The witness should be asked to answer calmly and
comfortably, and in his own manner as he likes to express in his own words.

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According to Section 137, para 2 of the Indian Evidence Act,1872 : The examination of a
witness by the adverse party shall be called his cross-examination . Cross-examination
considered most powerful weapon. According to Philip Wendell, "Cross-Examination is double-
edged weapon, if you know how to wield, it helps to cut enemy's neck Otherwise, it cuts own
hands"

It should be remembered that the witnesses must speak to facts and not to opinions inference
or beliefs. A witness may be cross-examined as to previous statements made by him in writing
or reduced into writing. Leading questions may be asked.

The object of the cross examination is to test the truth of statement made by witness, to see how
far is memory is reliable or what powers of observation possesses whether he is partial or
impartial, etc ; in short it is an attempt to break down a witness or to show that his statement
can not be relied upon. The object and scope of cross-examination is twofold to weaken qualify
or destroy the case of the opponent; and to establish the party's own case by means of his
opponents witnesses . With this view the witness may be asked not only as facts in issue or
directly relevant thereto , but all question

(1) tending to test his means of knowledge,

(2) tending to expose the error, of omission, contradictions and improbabilities in the
testimony or

(3) tending to impeach his credit.

The object of cross examination are to a impeach the accuracy, credibility and general value of
the evidence given in chief ; to sift the facts already stated by the witness, to detect and and
expose discrepancies or to elicit suppressed facts which will support the case of cross
examination of party. In the case of Sukhawant Singh v. State of U.P AIR 1995 SC 1601 the
Supreme Court has held that a witness cannot be thrown open to cross-examination unless he is
first examined-in-chief. Where the prosecution did not examine its witness and offered him to
be cross examined, it was held that this amounted to abandoning one's own witness, there
cannot be any cross-examination without the foundation of examine-in-chief.

According to Section 137, para 3 of the India evidence Act 1872, the examination of a witness,
subsequent to the cross examination by the party who called him , shall be called his re-
examination.

The object of re-examination is to afford to the party calling a witness an opportunity of filing in
lacuna or explaining the consistencies which the cross-examination has observed. in the
examination-in-chief of the witness. It is accordingly confined to the explanation of matter
refereed to in cross-examination. It should not introduce any new matter unless the court
permits; and if such permission is given, the adverse party may further cross examine upon that
matter.

The re-examination shall be directed to the explanation of matters referred to in cross-

examination, and if new matter by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter

Leading Questions should not be asked in re-examination :

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According to Section 142 of the Indian Evidence Act , leading questions should not be asked in
examination-in-chief or in re-examination, if they are objected by the opposite party. In case the
opposite party objects, the court can decide the matter and may, in its direction either permits
or disallow it.

The Court that that it shall permit leading questions as to the matters which are introductory or
undisputed, or which have, in the opinion of the Court, been already sufficiently proved to the
satisfaction of the court.

Section 138

It provides for the order of examination; a witness will be first examined in chief, and then if the
adverse party deems fit, cross-examined and if the party calling him so desires, be re-examined.
A witness has to be first examined in chief to be cross-examined, else, it is not permissible and
not possible (Sharadamma v. Renchamma, AIR 2007 Kant. 17). An order of re-examination can
be made by the court on an application by the party as it is not limited to courts’ own motion
(SSS Durai Pandian v. SA Samuthira Pandian, AIR 1998 Mad. 323). The matter of re-examination
should be limited to examination in chief and cross-examination and if any new matter is
introduced by permission of the court, the witness can be subjected to cross-examination, again,
upon that matter.

Section 139 says that a person called upon to produce a document does not become a witness
per se. Hence, he cannot be cross-examined, unless, examined in chief by the party who called
him.

Section 140 provides that witness to a party’s character maybe cross-examined if already
examined in chief. The evidence of character is meant to assist the court in estimating the value
of the evidence brought before the court through the mouth of the witness.

Leading Questions

Section 141

“Any question suggesting the answer which the person putting it wishes or expects to receive is
called a leading question.”

A witness should tell the story relating to the relevant facts or facts in issue in his own words. If
there is an inbuilt answer in the question, or if it is suggestive of an answer, a lawyer could
construct a story out of the mouth of the witness which suits his client. If such a question is
asked in the examination in chief or in re-examination, the adverse party may object to it. This
has been provided in Section 142 and it also states an exception that such leading question may
be asked on permission from the court, i.e., the objection is overruled.

Section 143 states that leading questions may be asked in cross-examination.

In Writing

Section 144

“Any witness may be asked, whilst under examination, whether any contract, grant or other
disposition of property, as to which he is giving evidence, was not contained in a document, and

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if he says that it was, or if he is about to make any statement as to the contents of any document,
which, in the opinion of the Court, ought to be produced, the adverse party may object to such
evidence being given until such document is produced, or until facts have been proved which
entitle the party who called the witness to give secondary evidence of it.”

Accompanied by the illustration, the section is self-explanatory:

The question is whether A assaulted B. C deposes that he heard A say to D, “B wrote a letter
accusing me of theft, and I will be revenged on him.” This statement is relevant, as showing A’s
motive for the assault, and evidence may be given of it, though no other evidence is given about
the letter.

Section 145

It provides that a witness may be cross-examined as to previous statements made by him in

writing and if he is to be cross-examined over oral statements, which were reduced to writing,
his notice shall be brought to such parts of writing before the writing is to be proved. A witness
can only be contradicted over previous statements made by him, not subsequent (Mishri Lal v.
State of MP, 2005 10 SCC 701).

Lawful Questions

Except for the questions already permitted through different sections of the act, the following
questions can also be put up in cross-examination, under Section 146:

• To test a witness’ veracity or truthfulness

• To know who he is and what his position is in life
• To shake his credit by injuring his character

These questions can be asked even if, directly or indirectly, the witness is criminated or is
exposed to penalty or forfeiture. The witness may also be compelled to answer these questions
as per the conditions of the following sections. By section 28 of the Criminal Law amendment,
2013, if a case relating to sections 376 to 376E or for an attempt to commit any such offence
(under the Indian Penal Code, 1860), the victim’s moral character or previous sexual experience
cannot be questioned in cross-examination.

Compelled to Answer

Section 132 provides for compelling of a witness to give answers to the question that are
relevant to the matter in issue. This cannot be excused on the ground that such answer would
give rise to witness’ liability, criminal or civil. If the witness is forced to give an answer, the
same shall not be used as evidence against him in any case, provided, the evidence so provided
was not false. Section 147 provides that if any such lawful question is relevant to the suit or
proceeding, the provisions of section 132 will apply.

Section 148 provides protection against aggressive cross-examination. If a person’s character is

in question, to shake his credit, the court may, while exercising its discretion, warn the witness
that he is not obliged to answer. Provided the court considers the questions that were asked
were irrelevant to prove his credibility or far too remote in time or those which would not affect
at all or slightly affect the witness’ credibility as to the matter to which he is giving evidence.

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Reasonable Ground

Section 149 provides that if there is no reasonable ground to convey an imputation under
section 148, the questions are not to be asked. This section also safeguards a witness against
damaging of character. Illustration (c) to this section makes it clear: A witness, of whom nothing
whatever is known, is asked at random whether he is a dacoit. There are here no reasonable
grounds for the question.

Section 150 lays duty of a counsel in questioning a witness’ character. If a barrister, pleader,
vakil or attorney questions a witness’ character without reasonable ground, the same shall be
reported to the High Court or any authority to which he is subject.

Questions Forbidden

Section 151 confers the court with the power to forbid questions that are indecent and
scandalous. These questions might be related to the matter in hand and may only be allowed if
they relate to the fact in issue or are necessary for determining whether some fact in issue
existed.

Section 152 empowers the court to forbid questions that are meant to insult or to annoy. Even if
the question might be proper, the court can reject it if it is needlessly offensive.

Section 153

It provides for protection of a witness’ character. If a witness has answered a question as to his
credit, no evidence shall be admissible to contradict his answer. This section has two exceptions,
first, if he lies about his former conviction and second, to impeach his impartiality; evidence
may be provided to contradict both these claims. Though no evidence is admissible to contradict
a witness’ claim as to his credit, if the witness has lied, he can be separately charged for
producing false evidence.

Section 154

It allows for the party, who has called upon a witness, to put up any questions to the witness as
could be asked to him during cross-examination.

This section brings under its purview, the concept of a hostile witness. It has been defined by
the Supreme Court in Sat Paul v. Delhi Administration (AIR 1976 SC 303), as one who is not
desirous of telling the truth at the instance of the party calling him. The previous testimony of a
hostile witness is not washed off, the court can use it as evidence and if the prosecution does not
confront the witness, regarding the contradiction, it shall be the duty of the court to do so for
ascertaining truth (State of Rajasthan v Bhera, 1997 Cr LJ 1237).

Section 155

The credit of a witness can be impeached in the following ways. It is usually impeached by the
adverse party but if the witness becomes hostile, his credit can be impeached by the party who
called him:

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 • By producing witnesses who testify from their personal knowledge of the witness that
such person is unworthy of credit. The produced witnesses must have personal
knowledge of the witness they are testifying against.
• By showing that the witness was bribed or has taken an offer to receive a bribe or has
some other corrupt inducement.
• By citing earlier statements of the witness which contradicts him, only to the extent
which section 153 permits.

Corroboration of Evidence

Section 156 provides that a witness may be questioned about circumstances, apart from the
main event, with the intention to corroborate evidence provided by him and the court shall
permit it if it deems that these questions will help corroborate his testimony in reference to the
relevant facts.

Section 157 states that a former statement of a witness can be used to corroborate the
testimony of the witness in relation to a common subject matter. In Rameshwar v. State of
Rajasthan (1952 SCR 377), the Supreme Court allowed the statement of a young girl who was
raped, to be corroborated with the girl’s own statement to her mother four hours after the
incident.

Section 158 says that statements relevant under section 32 or 33 (like, a dying declaration), that
have been proved, all matters which confirm or contradict the statement, can be proved.
Evidence can also be given to impeach the credit of the person who made such a statement, to
the extent as if that person had appeared as a witness.

Refreshing Memory

A witness is allowed to refer to writing made by him either at the time of happening of an event
concerning which he is questioned or sometime later, which the court considers it likely that the
event was fresh in his memory. The witness can also refer to someone else’s writing about the
event which was made within a time period which court considers reasonable on the ground
stated above. If the witness is an expert, he may consult professional books. These provisions
have been provided under Sec. 159.

Section 160 A witness may testify to facts mentioned in such document as is mentioned under
section 159. It does not matter whether the witness has any specific recollection of the facts
recorded, as long as he is sure that he correctly recorded them.

Section 161 gives a right to the adverse party to cross-examine the witness and also to produce
to him any such writing, as given under section 159 & 160.

Production of Documents

When a witness has been called upon to produce a document, he is bound to produce it. Any
objection to it shall be dealt with by the court and to determine its admissibility, the court shall
inspect it, except when it refers to matters of state (Section 162).

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Section 163 requires the party (A), who has given notice to the other party (B) to provide
certain documents, to produce such documents after initial inspection in the court, as evidence
if the party (B) asks so.

Section 164: If, under the previous section, party B denies to provide A with the required
documents, the same cannot be produced in court by B without A’s permission.

Section 165

This section provides for the power of the court to question. A judge can, in order to obtain
proof of relevant facts, ask any question he pleases, be it relevant or irrelevant to the case. It
may be asked any time and may take any form and be directed at a witness or a party. The judge
can though, not compel the witness to answer and the judgement should be based upon the
facts which have been declared relevant under the Indian Evidence Act, 1872.

Section 166 of Evidence Act "Power of jury or assessors to put questions"

In cases tried by jury or with assessors, the jury or assessors may put any questions to the
witnesses, through or by leave of the Judge, which the Judge himself might put and which he
considers proper.

In short we can held that, What is the meaning of Court to decide when question shall be asked
and when witness compelled to answer What is Question not to be asked without reasonable
grounds Section 148 and 149 of Indian Evidence Act 1872.

What is Procedure of Court in case of question being asked without reasonable grounds What is
Indecent and scandalous questions Section 150 and 151 of Indian Evidence Act 1872.

What is questions intended to insult or annoy What is Exclusion of evidence to contradict

answers to questions testing veracity Section 152 and 153 of Indian Evidence Act 1872.

What is Question by party to his own witness What is Impeaching credit of witness What is
Questions tending to corroborate evidence of relevant fact, admissible Section 154, 155 and 156
of Indian Evidence Act 1872.

What is Former statements of witness may be proved to corroborate later testimony as to same
fact What matters may be proved in connection with proved statement relevant under section
32 or 33 Section 157 and 158 of Indian Evidence Act 1872.

What is Refreshing memory What is Testimony to facts stated in document mentioned in

section 159 Section 159 and 160 of Indian Evidence Act 1872.

What is Right of adverse party as to writing used to refresh memory What are Productions of
documents What is Giving, as evidence, of document called for and produced on notice Section
161, 162 and 163 of Indian Evidence Act 1872.

What is Using, as evidence, of document production of which was refused on notice What is
Judge's power to put questions or order production Section 164 and 165 of Indian Evidence Act
1872.

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 Improper Admission and Rejection Of Evidence
Section 167 of Evidence Act states "No new trial for improper admission or rejection or
evidence

This improper admission or rejection of evidence shall not be ground of itself for a new trial or
reversal of any decision in any case, if it shall appear to the court before which such objection is
raised that, independently of the evidence objected to and admitted, there was sufficient
evidence to justify the decision, or that, if the rejected evidence had been received, it ought not
to have varied the decision.

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DREAM.
BELIEVE.
DO.
REPEAT.

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