1

1. General principles regarding the burden of proof.

2. Differences
3. Dying Declaration
4. State and illustrate the rule of estoppel as enacted in the Indian Evidence Act. What is the
principle upon which this rule rests?
5. "Evidence", “Relevancy and cogency of evidence”, “Division of evidence”
6. Expert Opinion
7. Facts which are not otherwise relevant, become relevant
8."presumption". (a) May presume (b) Shall presume, and (c) Conclusive proof?
9. 'Res Gestae' and related provisions of the Indian Evidence Act
10. What do you mean by term `facts in issue'?
11. What is `relevancy of facts'?
12. Relevancy and Admissibility.—
13. Confessions and Admissions.
14. “All admissible evidence is relevant but all relevant evidence is not admissible”- Explain.
15. Define the terms "Fact in Issue", "Fact". “Facts not otherwise relevant become relevant” –
Discuss with decided case laws.
16. Define Hearsay Evidence. When hearsay evidence is admissible and why it is admissible?
17.What is ‘Leading question’ and when leading question may be asked? Can the court ask leading
question?
 2

1.General principles regarding the burden of proof.

Section 101 of the Indian Evidence Act defines the term burden of proof, as follows:
Burden of proof- Whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of the 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 had
committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to a 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.

Elucidation: - The term "burden of proof" is used in two distinct meaning

(1) The burden of establishing a case, whether by preponderance of evidence or beyond a
reasonable doubt; and (2) The burden of introducing evidence.

The Rules explained

(1) The burden of establishing the case rests on the party, whether plaintiff or defendant, who
substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the
state of the pleading or their equivalent, and it is settled as a question of law, remaining 162
unchanged under any circumstances whatever. Section 101 embodies the burden of proof in
this sense of proving a case.
(2) The burden of leading evidence may shift constantly throughout the trial as the evidence is
introduced by one side or the other. If prima facie evidence is adduced by one party, the
burden may shift on the other party to rebut that prima facie evidence. The rule is embodied
in sections 102 to 111.

Exceptions.
This general rule is however subject to three exceptions:
(1) When a rebuttal of presumption of law exists in favour of a party, the onus is on the other
side to rebut it. Sections 107 and 111 refer to such rebuttable presumptions. In some cases,
presumption of fact also shifts the onus on the other side.
(2) When any fact is specially within the knowledge of any person, the burden of proving it is
on him. (Section 106). Thus, A is charged with traveling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
(3) In some cases, the burden of proof is cast by statute on a particular person. Section 103
provides that 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. Thus, A prosecutes B for theft and wishes the Court to believe that
B admitted the theft to C. A must prove the admission. Similarly, if B wishes the Court to believe
that at the time in question, he was elsewhere, he must prove it.
 3

Burden of proof in civil cases: - the burden of proof is upon the party which desires the court to
give judgment as to any legal right or liability dependent on the existence of facts which he asserts.
As section 102 of the Evidence Act lays down "the burden of proof lies on that person who would
fail if no evidence were given on either side" and under section 103, "the burden of proof as to any
fact lies on that person who wishes the court to believe in its existence, unless it is proved by any
law that the proof of that fact shall lie on any particular person." Thus, where the plaintiff
purchases a horse from the defendant with the warranty of soundness and sues for the breach of
warranty, it is for the plaintiff to prove the horse to be unsound and not for the defendant at the
very outset to prove its soundness. In an action for negligence, the onus of proving the negligence
rests upon the plaintiff, but if the defendant pleads contributory negligence, the onus of proving
this would be upon him.

Burden of proof in a criminal case: - the onus of proving everything essential to the establishment
of the charge against the accused, lies upon the prosecution who must prove the case. This burden
of proof never shifts. It is the most rudimentary and elementary principle of criminal law that an
accused is presumed to be innocent till he is proved to be guilty. But when from the evidence a
prima facie case has been established against the accused then the burden of proof, in the sense
of introducing evidence in the rebuttal of the charge, is laid upon the accused. All that an accused
needs doing is to cast shadow of doubt on the charge when an accused pleads that his case is
covered by one of the General Exception in the I.P.C. it is for him to prove it, and the court shall
presume the absence of such circumstances.

How does not the onus probandi shift? Where issue have been framed and the preliminary
examination of the parties has taken place, the case rests at a certain point at which if no further
evidence is led, one party has to lose. On that party is the "onus probandi". This cannot remain
constant, but must shift. On the production of evidence sufficient to give rise to a prima facie
presumption in his favour, if the opponent produces evidence which preponderates, this burden
would shift back to him. It is the same kind of duty for both the parties, but it may rest at one time
upon one party, and at another time upon the other.

On whom does the burden of proof lie in the following matters:

(a) Burden of proof: Alive or Dead: - 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 107).
There is, however, a proviso to this rule. If it is shown that a man 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).
The presumption, which is permissible to make under section 108, does not go further than the
mere fact of death, if the period which has elapsed since the time that the person whose death is
in question was last heard of is more than seven years, there is no presumption that such person
died during the first period of seven years and at any subsequent period. [Mohammad Sharif v.
Bande Ali). In other words, the presumption of death does not extend to the date of death and the
onus of proving that the death took place at any particular time within seven years lies upon the
person who claims a right to the establishment of which that fact is essential.
 4

(b) Burden of proof: Legitimacy: - Section 112, Evidence Act provides as to how and when a
conclusive presumption is to be drawn by a court as to legitimacy. The fact that any person was
born during the continuance of a valid marriage between his mother and any man or within 280
days after its dissolution the mother remaining unmarried shall be conclusive proof that he is the
legitimate son of that man unless it can be shown that the parties to the marriage had no access to
each other at any time when he could have been begotten. Evidence that child is born during
wedlock is sufficient to establish its legitimacy and shifts the burden of proof to the party seeking
to establish the contrary.

(c) Burden of proof: Tenancy: - 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). It is based on the principle
that when once a certain state of things or relationship is shown to exist, there is a presumption of
its continuance, e.g., a partnership, agency, tenancy or other similar relation, once shown to exist
it is presumed to continue till it is proved to have been dissolved or terminated.

(d) Burden of proof: Ownership: - When the question is whether any person is the 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. (Section 110). Possession is prima facie
proof of ownership. It is so, because it is the sum of acts of ownership. A person in possession even
though he is a trespasser, has a good title as against the whole world except the true owner, and
another person who seeks to turn him out must establish that he is the true owner.
 5

2. Differences

(i) May presume and shall presume

Sections 4 defines may presume' and 'shall presume' as follows: Whenever it is provided by this
Act that the Court may presume a fact, it may either regard such fact as proved unless and until it
is disproved, or may call for proof of it.
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such as
proved, unless and until it is disproved.

Point of distinction- In the case of 'may presume' a Court has a discretion to presume the fact as
proved, or to call for a confirmatory evidence of it as the circumstances require. In such a case the
presumption is not a hard and fast presumption, incapable of rebuttal, a presumption juris et
dejure. As for instance a man, who is in possession of stolen goods shortly after the theft and can
give no account of them, is either the thief or has received the goods knowing them to be stolen.
The Act, under section 114 gives legal sanction to such inference and at the same time allow a
discretion which, like any other such discretion, the court should exercise in a judicial manner.
Other illustrations are to be found in sections 86, 87, 90, and 118. But in cases in which a court
shall presume a fact, no option is left to the court, but it is bound to take the fact as proved until
evidence is given to disprove it, and the party interested in disproving it must produce such
evidence if he can. The presumption is not conclusive but rebuttable. As for instance, the
genuineness of a document purporting to be the Gazette of India, shall be presumed and a
document called for and not produced, shall be presumed to be duly attested and executed. Other
illustrations are to be found in sections 79, 80, 81, 83, 85, 89 and 104.

(ii) Presumption of law and presumption of fact

Presumption of fact (or may presume)- Presumptions of fact are inferences which are naturally
and logically drawn from the experience and observation of the course of nature, the construction
of human mind, the springs of human action, the usages and habits of society. They are akin to
"may presume"
Presumptions of fact are dealt with in sections 86 to 88, 90 and 104 of the Evidence Act.
Presumption of law- Presumptions of law or artificial presumptions are inferences or propositions
established by law. Presumption of law are based, like presumptions of fact, on the uniformity of
deduction which experience proves to be justifiable.

Presumptions of law are divided into the following classes:

(i) Absolute or irrebuttable presumptions which are akin to conclusive proof; and
(ii) Disputable or rebuttable presumptions of law which are akin to 'shall presume'.
Rebuttable presumption of law are dealt with in sections 79 to 85 and 105 of the Act.
Irrebuttable presumption of law are dealt with in sections 41, 112 and 113 of the Act.

Points of Distinction
1. Rules of law- Presumptions of law assume the form of a rule of law, carrying with it the
weight of an artificial value and not a mere element of proof. Presumptions of fact are not
so.
2. Discretion- In presumptions of fact, a discretion, more or less extensive as to the drawing of
inference is vested in the tribunal or the court, but in presumption of law the law requires a
 6

certain inference to be made whenever the facts appear which it assumes to be the basis of
that inference.
3. Inference- In presumptions of law, inference must be drawn, but in presumptions of fact,
inference may or may not be drawn. 4. Classes. Presumptions of law are further divided into
two.
4. Classes- rebuttable and irrebuttable, but there is no such further classification of
presumptions of fact.

(iii) Fact in issue and issue in fact

The expression "facts in issue" has been defined in the Act as any fact from which either by itself
or in connection with other facts, the existence, non-existence, nature or extent of any right,
liability or disability, asserted or denied in any suit or proceeding, necessarily follows. The "facts in
issue" are facts out of which some legal right, liability or disability involved in the inquiry,
necessarily arises and upon which, accordingly, a decision must be arrived at. Matters which are
affirmed by one party to a suit and denied by the other may be denominated "facts in issue." Thus,
in a case where A is accused of the murder of B, the following facts may be in issue at his trial (a)
that A caused B's death; (b) that A intended to cause B's death; (c) that A had received grave and
sudden provocation from B; and (d) that A, at time of doing the act which caused B's death, was by
reason of unsoundness of mind, incapable of knowing its nature. What facts are in issue in
particular cases, is a question to be determined by the substantive law or in some cases by that
branch of the Law of Procedure which regulates the forms of pleading, civil or criminal. As regards
criminal cases, the charge constitutes and includes the facts in issue and in civil cases, facts in issue
are determined by the process of framing issues.

Distinction must be made between a fact in issue and issue in fact. When the result of the pleading
on both sides is that a material fact is affirmed on the one side and denied on the other, the
question thus raised between the parties is called an issue of fact. Whenever, under the provision
of the law relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or
denied in answer to such issue, is a fact in issue. (Explanation to Section 3).

(iv) Disproved and not proved

A fact is said to be disproved when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon, the supposition that it does not
exist. This is converse of the definition of proved. A fact is said not to be proved which it is neither
proved nor disproved. The term 'not proved' indicates the state of mind between two states of
mind (proved and disproved) when one is unable to say precisely how the matter stands.

(v) Relevant facts and fact in issue

The expression "fact in issue' has been explained above in (iii). One fact is said to be relevant to
another when the one is connected with the other in any of the ways referred to in the provisions
of this Act relating to the relevancy of facts. Relevant facts are all other facts which are in the eye
of law so connected with or related to the facts in issue that they render the latter probable or
improbable, or roughly throw light on them. The various ways in which one fact has bearing upon
another fact as to be relevant to it are dealt with in sections 5-55.
 7

A sues B for Rs.500/-alleged to be due on a bond executed by B in favour of A. B denies execution

of the bond and receipt of money and denies any dealing with A. Here the facts that B executed
the bond and received consideration for the bond are fact in issue being matters for investigation
of the Court. The fact that B had never any dealing with A though not a matter for investigation
and as such not fact in issue, if proved, renders the existence of the fact in issue that B executed
the bond improbable and is a relevant fact.
 8

3. Dying Declaration

Meaning
In Sudhakar and Anr vs the State of Maharashtra, dying declaration was defined as follows:
Sub-section (1) of section 32 of the Evidence Act provides that when the statement is made by a
person as to the cause of his death or as to any circumstances of the transaction which resulted in
his death, being relevant fact, is admissible in evidence. Such statements are commonly known
as dying declaration.
In Ram Bihari Yadav vs the State of Bihar (1998), Justice Syed Quadri explained the dying
declaration as:
A dying declaration made by a person who is dead as to the 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 his
death comes into question is relevant under section 32 of the Indian Evidence Act and is also
admissible in evidence.
It is to be noted that the dying declaration is indirect evidence, so it is an exception to the rule
against the admissibility of hearsay evidence.

Elements of Dying Declaration

The elements of dying declaration are illustrated under section 32(1) of the Indian Evidence Act.
According to section 32(1) of the Indian Evidence Act, dying declaration is a statement:
 Written or verbal,
 of relevant facts,
 Made by a person who is dead.
Such statement is relevant when the statement is made by the person as to:
 The cause of his death.
 Any circumstance of the transaction that resulted in his death.
Such statements are relevant:
 Whether the person who made them was or was not at the time when they were made under
the expectation of death.
 Whatever may be the nature of the proceeding in which the cause of death comes into
question.

Dying Declaration Under English Law

In English law, dying declaration is relevant, but two conditions are required:
I. the person must be in expectation of death.
II. the nature of the proceeding must be criminal, and the accused is charged with murder or
culpable homicide.

Pakala Narayan Swami vs Emperor (1939) (Privy Council)

Facts of the case:
 The deceased received a letter from the accused’s wife on 20 March inviting him to her house.
 The deceased left his house on 21 March, informing his wife about the letter.
 On 23 March, the deceased was found dead in a trunk cut into seven portions.
 The body was identified and the accused was tried and convicted for murder.
 9

The wife’s statement was admissible under section 32(1) of the Indian Evidence Act, 1872. The
statement may be made before the cause of death had arisen or before the deceased had any
reason to anticipate being killed.
In Kans Raj vs the State of Punjab, it was held that the statement of the deceased relating to the
cause of his death or circumstances of transaction that led to his death must be sufficiently and
clearly related to the actual transaction.

Evidentiary Value of Dying Declaration

The dying declaration is admitted on the principle of “Nemo moriturns proesumitur mentiri” which
means a man will not meet his maker with a lie in his mouth.
A dying declaration is substantive evidence and can be the sole ground of judgement. The
probative force of the dying declaration depends on the facts and circumstances of each case. If
the court finds it is true and voluntary, further corroboration may not be required. But when
required and necessary, it may be corroborated with other independent evidence.
In the case of K.R Reddy v. Public Prosecutor, it was observed by the court that the evidentiary
value of dying declaration made by the deceased:
There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian
Evidence Act and there is no compulsion while making of dying declaration to take an oath, but the
truth of the statement can be determined by the cross-examination. The court has to ascertain
necessary measures to check the sanctity of the statement made by the deceased. As in India law,
it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is
because, when the person is at his bed end all the desire and greed of person come to an end so
probably there is no motive to lie. After that, the court must be satisfied with the condition that
the deceased must be in a fit state of mind while making the statement. After all the measures
assured by the court and satisfied that the statement is made voluntarily and true then it will be
sufficient to accept the statement to finding conviction even without the corroboration.
In Khushal Rao v. State of Bombay Apex Court laid down the following principles related to dying
declaration :
a. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. A true & voluntary declaration needs no corroboration.
b. A dying declaration is not a weaker kind of evidence than any other piece of evidence;
c. Each case must be determined on its own facts keeping in view the circumstances in which the
dying declaration was made.
d. A dying declaration stands on the same footing as other pieces of evidence & has to be judged
in the light of surrounding circumstances & with reference to the principle governing the weight
of evidence.
e. A dying declaration which has been recorded by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers, &, as far as practicable in the words of the
maker of the declaration stands on a much higher footing than a dying declaration which
depends upon oral testimony which may suffer from all the infirmities of human memory &
human character.

To Whom Dying Declaration be Made?

Section 32(1) of the Indian Evidence Act doesn’t specify as to whom the dying declaration can be
made. A dying declaration can be made to anyone. It may be a friend, relative and even stranger. It
 10

is to be noted that a dying declaration made to a magistrate will have high probative force as
compared to a dying declaration made to a stranger.

Dying Declaration by Signs

In Queen Empress vs Abdullah, the woman’s throat was slit, due to which she was unable to speak.
She suggested the name of the accused by sign. It was held that questions and signs taken
together might be regarded as a verbal statement made by a person as to the cause of his death
within the meaning of section 32 of the Indian Evidence Act, 1872.

FIR as Dying Declaration

In Mahmood Illahi vs State of Uttar Pradesh (1990), the court held that a report made by the
deceased regarding the cause of his death or the circumstances that caused his death to the police
officer shall be relevant under section 32(1) of the Indian Evidence Act, 1872.

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1) of IPC. it is
the statement made by the person who is going to die, and that statement will be considered as
evidence in court, how his death caused and who is the mugger. There are many conditions that
relied upon the dying declaration that it should be in an adequate manner as dying declaration is
the weapon who convicted the accused and stood as strong evidence. The admissibility of dying
declaration accepted in our Indian court because the law presumes that in Leterm Mortem i.e in
his last parting words the man will never lie as anyone will meet his maker with a lie on his lips.
This is because a man who is going to die, end with all his needs and wants and his interest is no
more passionate for self deeds so he seldom lies. However, the dying declaration is found to be
maliciously made then the court has the right to reject the statement. Or there are other situations
and circumstances which coupled with dying declaration for its admissibility which discussed
above.
 11

4. State and illustrate the rule of estoppel as enacted in the Indian Evidence Act. What is the
principle upon which this rule rests?

Rule of Estoppel: - An estoppel is a rule of evidence which precludes a party from gainsaying the
truth of certain facts. The rule of estoppel is laid down in section 115, Evidence Act, thus: When
one person has, by his declaration, act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person or his representative,
to deny the truth of that thing.

Essential: - The following three essentials must be satisfied to create estoppel

I. There must have been some declaration, act or omission on the part of one person
intentionally causing or permitting another person to believe a thing to be true.
II. The person to whom the representation is made must believe that to be true.
III. There must be some act in pursuance of that belief.

Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B
to buy and pay for it. The land afterwards becomes the property of A and A seeks to set aside the
sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove
his want of title. (Illustration to Section115].

Principle behind the rule of estoppel: - The rule of estoppel is based on the principle of equity and
good conscience, namely, that it would be most inequitable and unjust to a person, that if one
person, by representation made or by conduct amounting to a representation, has induced
another to act as he would not otherwise have done, the person who made the representation
should be allowed to deny or repudiate the effect of Estoppel his former statement, to the loss
and injury of the person who acted on it. [Sharat Chunder Dey v. Gopal Chunder). Taylor says: "Its
foundation rests partly on the obligation to speak and act in accordance with truth, which every
honest man is bound, and partly on the policy of the law, which thus seeks to prevent the mischief
that inevitably result from uncertainty, confusion, and want of confidence, were men permitted to
deny what they had deliberately asserted and received as true." The object of the estoppel is to
prevent fraud and secure justice between parties by promotion of honesty and good faith.

The representation which is the basis for the rule of estoppel must be clear and unambiguous and
not indefinite. The representation may be express or implied, i.e., it may consist either declaration,
act or omission. [Dhiyan Singh v. Jugal Kishore].

Different kinds of estoppel: -

Estoppels are generally of three classes.
1. Estoppel by deed;
2. Estoppel in pais or by conduct; and
3. Estoppel by matters of record.

1. Estoppel by deed: - Estoppel by deed is that which binds the parties to instrument and those
claiming through them to its statements, when a party has entered into a solemn engagement by
 12

deed as to certain facts, neither he nor anyone claiming through or under him is permitted to deny
such facts. In England, the parties to the sale deed are precluded from denying its force and effect,
i.e., from disputing their own solemn deed. In India, the doctrine of estoppel by deed does not
strictly exist because a deed under a sale is not treated with particular favour any more than a
simple contract.

2. Estoppel in pais (or by conduct: - Estoppel in pais is also known as estoppel by conduct or
representation. A person must, by word or conduct, induce another to believe that a certain state
of things exist and to cause that other person to act on that belief which he otherwise would not
have done. It arises from (i) agreement or conduct; (ii) act or conduct of misrepresentation which
has induced a change of position in accordance with the intention of the party against whom the
estoppel is alleged. The rule of estoppel by representation or conduct is embodied in sections 115,
116 and 117 of the Evidence Act. The leading case on the point is [Sharat Chandra Dey v. Gopal
Chandra Laha].

3. Estoppel by record- (or estoppel by judgment): - Esotppel by record results from the judgment
of a competent court.
It is chiefly concerned with the effect of judgment and its admissibility in evidence. The kind of
estoppel is read with sections 11 to 14 of the Civil Procedure Code and sections 40 to 44 of the
Evidence Act. In re South American and Mexican Company, Ex parte Bank of England, it has been
held that a judgment by consent or default is as effective an estoppel between the parties as a
judgment whereby the court exercises its mind on a contested case.

Difference between estoppel and Admission: -

Admission being declarations against interest are good evidence, but they are not conclusive and a
party is always at liberty to withdraw admissions by proving that they are mistaken and untrue.
They become conclusive only when the other side has accepted them as true and has been
induced to alter his condition and act upon those admissions. But estoppels are conclusive and
create an absolute bar to the pleading of a contention denying the former assertion. Estoppel
generally cannot be taken advantage of by strangers and binds only parties and privies. Estoppel is
a rule of evidence, for an action cannot be founded upon it.

Difference between estoppel and Presumption: -

An estoppel is a personal disqualification laid upon a person peculiarly circumstanced from proving
peculiar facts. A presumption is a rule that particular inferences should be drawn from particular
facts whoever proves them. (Stephen's Introduction).

Difference between estoppel and Res judicata: -

(1) Estoppel is based on the principle of equity, while res jusicata rests upon a rule of public policy
that there should be an end to litigation.
(2) Res judicata ousts the jurisdiction of the Court, while estoppel does no more than shut the
mouth of a party.
(3) The rule of estoppel is not a rule of substantive law. It prohibits a party from proving anything
which contradicts his previous declaration or acts to the prejudice of a party who, relying on
them, altered his position, while res judicata prohibits the Court from enquiring into a matter
already adjudicated.
 13

Put in the simple and colloquial way, res judicata precludes a man averring the same thing
twice over in successive litigations, while estoppel prevents him saying one thing at one time
and the opposite at another, [Casamally v. Ebrahim].

Difference between estoppel and Waiver: -

The Privy Council has explained the difference between estoppel and waiver in Dawsons Bank v.
Nippan Kaisha, as follows:
Estoppel is not a cause of action. It may, if established, assist a plaintiff in enforcing a cause of
action by preventing a defendant from denying the existence of some fact essential to establish
the cause of action, or to put in another way, by preventing a defendant from asserting the
existence of some fact, the existence of which would destroy the cause of action. It is a rule of
evidence which comes into operation if
(a) a statement of existence of a fact has been made by the defendant or an authorized agent of
his to the plaintiff or someone on his behalf;
(b) with the intention that the plaintiff should act upon the faith of the statement; and
(c) the plaintiff does act upon the faith of the statement. Waiver, on the other hand, is contractual
and may constitute a cause of action; it is an agreement to release or not to assert a right. If an
agent, with authority to make such an agreement on behalf of his principal, agrees to waiver his
principal's right, then, subject to any other question such as consideration, the principal will be
bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by
waiver.

Where the question whether the decree was a nullity, was raised by the judgment-debtor at the
execution stage but not at any earlier stage, it was held that he could not be denied the remedy
available to him under section 47, C.P.C. In doctrines of waiver, acquiescence and estoppel would
not be applicable. [Saraswat Trading Agency v. Union of India].

In the case of Jagmittar Sain Bhagat v. Director, Health Services Haryana, Court has held that the
issue of jurisdiction goes to the root of the matter. It can be raised at any stage. The doctrine of
waiver does not apply.
 14

5. "Evidence", “Relevancy and cogency of evidence”, “Division of evidence”

"Evidence" The word "evidence" is derived from the Latin word Evident which means to show
clearly, to make clear to the sight, to discover clearly, to make plainly certain, to ascertain, to
prove. "Evidence is adduced to prove or disprove any fact, the truth of which is submitted to
judicial investigation."-Taylor.
Under section 3 of the Indian Evidence Act "Evidence" means and includes:

(1) All statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
(2) All documents produced for the inspection of the Court; such documents are called
documentary evidence.
"The definition of evidence covers (a) the evidence of witnesses, and (b) documentary evidence. It
does not cover everything that a court has before it. There are certain other media of proof, e.g.,
the statements of the parties, the result of local investigation, facts of which the court takes
judicial notice, and real or personal property, the inspection of which may be material in
determining the question at issue such as weapons, tools, or stolen property." [Field on Evidence].

Relevancy and cogency of evidence: - Relevancy of evidence is to be judged by the connection of

one fact with the other fact in accordance with the provisions of the Indian Evidence Act. Cogency
of evidence signifies its worth or sufficiency to decide the matters in issue.
Evidence which is relevant is admissible although it need not necessarily be cogent or sufficient to
prove the fact sought to be proved. Cogency evidence includes relevant evidence and is something
over and above in the sense that it is of sufficient importance and value. A statement in the
inquest report is no evidence by itself and it certainly cannot be pitted against the evidence of the
medical witness given in Court. [Surjan v. State of Rajasthan].

Illustration
A tells B that C beat B's wife. C is prosecuted on a charge of beating B's wife. A is not called as a
witness, but B deposes to what A told him.
B's statement that A told him that C beat his (B's) wife is no evidence in law. Under section 60,
when oral evidence refers to a fact which can be seen, it must be the evidence of a witness who
says he saw it. It is A who can say that C beat B's wife and he saw it.

Division of evidence: - The following are the main divisions of evidence:

A. (i) Direct, and (ii) Indirect or circumstantial evidence.
(i) Direct evidence.-Direct evidence is the testimony of a witness to the existence or non-existence
of the fact or fact in issue. It is any evidence of a fact actually perceived by a witness with one of
his own senses or of an opinion actually held by himself. Evidence of facts in issue is generally
known as direct evidence.
Illustration
A is indicted of murder of B, the apparent cause of death being a wound given by a sword. If C saw
A kill B with a sword, his evidence of the fact would be direct.
(ii) Indirect or circumstantial evidence: - Circumstantial evidence is that which tends to establish
the fact in issue by proving another fact which though, does not itself conclusively establish that
fact, affords an inference as to its existence.
 15

Illustration
If in the above noted case, a short time before the murder, D saw A walking with a drawn sword,
towards the spot where the body was found, and after the lapse of time, long enough to allow the
murder to be committed, saw him returning with the sword bloody, these circumstances are
wholly independent or the evidence of C, and coupled with others of a like nature, might generate
quite as strong a presumption of guilt.

Essentials of circumstantial evidence

When a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
1. The circumstances from which an inference of guilt is to be drawn must be cogently and firmly
established;
2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of
the accused.
3. The circumstances taken collectively should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused
and none else. Jagta v. State of Haryana,; Bhe Ram v. State of Haryana,).
When there is no eye-witness to the occurrence and the prosecution evidence comprises of only
circumstantial evidence, the motive and the conduct of the accused are not only relevant but are
of paramount importance in order to establish the guilt against him. [Kuldip Sham v. State of
Punjab). The prosecution having established the motive of the crime, the following circumstances
may have a bearing upon the question of guilt of the accused namely
(a) His conduct before or after the occurrence being unreasonable;
(b) His refusal to participate in the T.I. Parade; and
(c) His refusal to give specimen foot prints. [Mulkh Raj v. Delhi Administration].

B. (i) Real, and (ii) Personal evidence.

(i) Real evidence.-Real or material evidence is evidence of a fact brought to the knowledge of the
Court by inspection of a physical object and not by information derived from a witness or
document.
Examples
Stolen property, weapons etc.
Evidence supplied by observation of involuntary changes of countenance and department comes
under the head of real evidence.
(ii) Personal evidence. Personal evidence is that which is afforded by a human agent, either in the
way of discourse or by voluntary signs.
Example
Oral testimony of witnesses.

C. (i) Original, and (ii) Hearsay evidence.

(i) Original evidence.-Original evidence is that which a witness reports himself to have seen or
heard through the medium of his own senses.
Example
A says that he saw B murder C with gandasa.
D says that he heard the cry of C, "Save me, I am being killed by B."
 16

(ii) Hearsay evidence.-Unoriginal or derivative, second hand or hearsay evidence is that which a
witness is merely reporting not what he himself saw or heard, not what has come under the
immediate observation of his own bodily senses but what he has learnt respecting the fact through
the medium of a third person. It is a statement made by a witness of what has been said and
declared out of court by a person not before the court.
Example
A is being tried for theft for stealing the cycle of B, C is produced as a witness who says that he
heard D say that the latter, (i.e., D) saw A with the cycle of B on the road. The testimony of C in this
case is hearsay evidence for it is based on the observation of a third person and not of his own.

D. (i) Primary, and (ii) Secondary evidence.

i) Primary evidence.-Primary evidence means the document itself produced for inspection of the
court. Thus, production of the original document, or proof of an admission of its contents by the
party against whom it is tendered, is considered primary evidence.
Example
A executes a registered sale deed of a house sold for Rs. 10000 to B. A dispute arises between the
heirs of A and B. B produces the original sale-deed before the court. It is the primary evidence of
the document.

(ii) Secondary evidence.-Secondary evidence means inferior or substitutionary evidence which

itself indicates the existence of more original sources of information.
Example
A copy of recollection of a witness who has read the document is secondary evidence.

Definition under the Act.-Section 63 of the Evidence Act defines secondary evidence as follows:
Secondary evidence means and includes

1. Certified copies given under the provisions hereinafter contained;

2. Copies made from the original by mechanical processes which in themselves insure the
accuracy of the copy, and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
Illustration
A photograph of an original is secondary evidence of its contents, though the two have not been
compared if it is proved that the thing photographed was the original.

E. (i) Oral, and (ii) Documentary evidence.

(i) Oral or parole evidence.-Oral evidence is evidence of a fact brought to the knowledge of the
court by the verbal statement of a witness qualified to speak on the point he testifies to. It
includes all statement which the court points or requires to be made before it by the witness with
regard to the matter of fact under inquiry.

Oral evidence must be direct.-Oral evidence must in all cases whatever, be direct; that is to say
1. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw
it;
 17

2. If it refers to a fact which would be heard, it must be the evidence of a witness who says he
heard it;
3. If it refers to a fact which could be perceived by any other sense or in any other manner, it must
be the evidence of a witness who says he perceived it by that sense or in that manner;
4. If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence
of the person who holds that opinion on those grounds, (Section 60).
Illustration
In a suit by X for defamation against B, A, a witness, says that he heard B saying to C that X is an
insolvent and has no credit. This testimony of A is oral evidence.

(ii) Documentary evidence.-Documentary evidence is evidence of a fact brought to the knowledge

of the court by inspection of a document produced before the court. "Document" means any
matter expressed or described upon any substance by means of letters, figures or marks, or by
more than one of those means, intended to be used, or which may be used, for the purpose of
recording that matter. Illustration
A writing is a document.
Words printed, lithographed or photographed are documents.
A map or plan is a document.
An inscription on a metal plate or stone is a document.
A caricature is a document.

F. (i) Judicial, and (ii) Non-judicial evidence.

(i) Judicial evidence. It is evidence received by Court of Justice in proof or disproof of facts, the
existence of which comes in question before them. Judicial evidence is a species of the genus
'evidence' and is for the most part nothing more than natural evidence, restrained or modified by
rules of positive law. Evidence in relation to law, includes all legal means, exclusive of mere
argument, which tend to prove or disprove any fact, the truth of which is submitted judicial
investigation. Demeanour of witness comes under this term.

(ii) Non-Judicial evidence.-Evidence given in the proceedings before a Magistrate or officer not in a
judicial capacity, but in an administrative one, is non-judicial evidence, e.g. evidence in proceeding
under section 164. Cr. P.C.
 18

6. Expert Opinion

Introduction
Commonly, the term “Expert opinion” refers to a belief or judgment about something given by an
expert on the subject. The opinion of a skilled and experienced person may be taken when the
issue is related to some technicalities. Generally, the expert does not witness to the fact, despite
that, the opinion of an expert becomes relevant due to the circumstances. The law relating to
Expert opinion has enumerated from the Indian Evidence Act, 1872 and these provisions are
covered under Section 45 to 51 in chapter II of the act. Further, there is a general rule that
evidence is to be given of the facts only which are within the knowledge of the witness. However,
the provisions stated in Section 45 to 51 are the exception to the above-stated rule.

Now the question may arise who is to be considered as an expert and how the expert opinion is
relevant and admissible as evidence in any case in the court of law?

Expert: - Definition
Lawson defines an expert as a person who has special knowledge and skill in the particular calling
to which inquiry relates. Further, Expert is also defined under Section 45 of Indian Evidence Act,
1872 as the person who is skilled and has special knowledge and experience in the following field:
 Foreign law
 Science & Art
 Identity of Handwriting
 Identity of finger impression
 Electronic evidence

Such special knowledge must be acquired by practice and observation. In the case titled
as Ramesh Chandra Agarwal v/s Regency Hospital Ltd. Court has broadly dealt and interpreted the
scenario and held that an expert is a person who devotes his time and study to a special branch of
learning. However, he might have acquired such knowledge by practice, observation, or careful
study. An expert is one who is skilled in any particular art, trade or profession being possessed of
peculiar knowledge concerning the same.
The expert has the duty to give an opinion on the issue and also communicate the same with the
Judge so the Judge may form his judgment in the subject matter. In Sri Sundari v. Ganghram It was
held that it is the duty of an expert to furnish the judges with the necessary criteria for testing the
accuracy of his conclusions, so as to enable the judge to form his own independent judgment by
application of the criteria to the facts provided in evidence.

People who can be termed as an expert

1. Handwriting expert’s opinion (Section 47): -
When the court has an opinion that who has written or signed a document the court will
consider the opinion of a person who is acquainted with the handwriting. That person will give
an opinion that particular handwriting is written or not written by that particular person or
not.
2. Opinion for Electronic evidence (Section 45A): -
 19

When a piece of information is transmitted or stored in a computer system and the court
needs assistance or opinion for the same in any case; they refer an examiner of electronic
evidence. This examiner of electronic evidence is known as the expert in such cases.

3. Opinion for foreign law (Section 38 r/w Section 45): -

When there is a law of prevailing in any foreign country which needs to be considered for
giving judgement in any case, the court needs an expert who is well versed with that law.

4. Opinion for fingerprint: -

Generally, finger impression expert’s opinion is given more value because:
(i) The fingerprints of any person remain the same from their birth till death, and
(ii) No two individual’s are ever found to have the same finger impressions
A person, who is a fingerprint expert, is called to match two or more fingerprints, than the
opinion of such an expert is relevant and admissible in the court.

5. Opinion for Science or Art: -

Opinion of Medical Expert, Opinion of Ballistic Expert, Evidence of Tracking Dog etc. falls under
this category where question involved is assumed to be not within the court’s knowledge. Thus
cases, where the science or Arts involved, is highly specialized and perhaps even esoteric, the
central role of an expert cannot be disputed

Qualification of an Expert
The law requires that there should at least be a profession of special qualification that the part of a
person who comes forward to dispose to matters lying beyond common knowledge.
 An ‘Expert’ witness is one who has devoted time and study to a special branch of learning
 He must have special skill and qualifications required for his profession
 The person who has made the subject upon which he speaks a matter of particular study,
practice, or observation will be considered as an expert witness
 He must have experienced in the related field.

Relevancy of Expert Opinion

The opinion of experts is also known as the opinion of the third person, which is provided under
Section 45 of the act. Accordingly, when the court has to form an opinion upon a point of foreign
law or of science or art or as to identify the handwriting or finger impression, then the court may
seek the opinion of the skilled person and such opinion are to be considered as relevant. For
instance, the question is, whether a certain document was written by B. Another document is
produced which is proved or admitted to have been written by B. The opinions of experts on the
question whether the two documents were written by the same person or by different persons are
considered as relevant. Section 45 only confined to five subjects as mentioned above, however,
there are some more fields in which the court on its own discretion may seek an expert opinion.
Further, as per Sec. 46 of Indian Evidence Act 1872, it stated that facts, not otherwise relevant, are
relevant if they support or are inconsistent with the opinions of experts, when such opinions are
relevant, which means any facts which are not so relevant however will be relevant to the opinion
if they support the opinions of experts.
Section 47 deals with relevancy as to handwriting, this provision recognized the opinion of non-
handwriting expert. This states that whenever the handwriting of any person is in question before
 20

the court of law, the court may seek the opinion of a person who is acquainted with the
handwriting of former person and the same will be relevant and admissible as evidence in the
court. In shankarappa v. Sushilabai it was held that the wife can be regarded as the person
acquainted with the handwriting of her husband.

Section 48 provides that When the Court has to form an opinion as to the existence of any general
custom or right, the opinions of the person who are in a position to know about its existence are
relevant.
The opinion as to usages, tenants, etc will also be considered as to relevant under Section 49 of
the act, in addition, section 50 provides that When the Court has to form an opinion as to the
relationship of one person to another, the opinion, expressed by conduct, as to the existence of
such relationship, or any person who, as a member of the family or otherwise, has special means
of knowledge on the subject, is a relevant fact. For instance, the question is, whether A and B were
married. The fact that they were usually received and treated by their friends as husband and wife
is relevant. In the case Sree Ram Sardarmal Didwani v. Gauri Shankar it was held that the person
whose opinion is sought to be proved for the purpose of proving the existence of relationship must
be the person who either as member of the family or otherwise has a special means of knowledge
as to such relationship.
Further, Section 51 of the act provides whenever the opinion of any living person is relevant, the
grounds on which such opinion is based are also relevant. According to this, the reasons are
required to be produced by the expert in forming any opinion in the court.

Admissibility of Expert Evidence:

The admissibility of expert evidence is based on the discretion of the Courts, the expert opinion
may be accepted or denied by the court since the court is not bound by the evidence of the
experts which is to a large extent advisory in nature. Further, in the case, Hon’ble Supreme Court
has laid down that mere assertion without mentioning the data or basis in support of his opinion is
not evidence, even if it comes from an expert. It is admissible only when the expert gives sufficient
evidence to the court. The Expert should support his findings with reason since without reasoning
expert findings may get rejected. In addition, he may also be examined as a witness and is cross-
examined as mere submission of any document is not sufficient enough. Further, An Expert
opinion can be taken in both Civil as well as criminal courts. Analysis of forensic evidence is used in
the investigation and prosecution of civil and criminal proceedings. Forensic expert assist the court
and investigating team to establish the guilt of accused.

Conclusion
The evidence given by experts under 45 is supportive evidence and not the only basis for
conclusive proof. Section 47 to 50 laid opinion relating to handwriting, the existence of right or
custom. usages, tenets, and relationships may be admitted in the court of law. If the court doesn’t
take any expert opinion, then there could be difficulty in resolving the issue, and the same will led
to the suppression of important evidence in the matter. Thus, Expert opinions assist the court in
order to reach out to the conclusion and also help in finding the best solution of any case.
 21

7. Facts which are not otherwise relevant, become relevant

When facts not otherwise relevant, become relevant: -

Facts not otherwise relevant, are relevant –
1. If they are inconsistent with any fact in issue or relevant fact;
2. If by themselves or in connection with other fact they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable. (Section-11).
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.

Facts inconsistent with fact in issue or relevant fact. -

Clause (1) of section 11 states that facts which are inconsistent with any fact in issue or relevant
fact are relevant. There are five common cases of this form:

1. Alibi.- The fact of presence elsewhere is essentially inconsistent with the presence at the
place and time alleged and, therefore, with the personal participation in the act. It is on
this that the theory of alibi is based. See illustration (a) quoted above.
The plea of alibi is put forth by way of defence. It means the absence of the person
charged with an offence from the place of occurrence at the time of the occurrence. It is
for the accused to substantiate and make it reasonable probable. [State of U.P. v. Sughar
Singh, A.I.R. 1978 S.C. 191].
2. Non-access of husband to prove illegitimacy- The fact in issue is whether A is the
legitimate son of B. The fact that B had no access to the mother of A for 270 days before
birth of A is inconsistent with the fact that A is the legitimate son of B; hence it is
admissible under this section.
3. Survival of the alleged deceased.- A is charged with the murder of B on 31st December,
1961. The evidence is offered to prove that B was alive in 31st December, 1961, and also
that he was seen in the New Year rejoining at a certain place on 1st January, 1962. These
facts are relevant, even though they are not directly connected with the murder of B, i.e.,
they are inconsistent with the fact in issue.
4. Commission of crime by a third person.- A is charged with murder of B. A leads evidence
to prove that B was murdered by C. This fact is relevant even though it is inconsistent with
the fact in issue.
5. Self-infliction of harm.- A is charged with the murder of B. A leads evidence that B had
committed suicide. This fact is relevant though it is inconsistent with the fact in issue.

Fact making existence or nor-existence of fact in issue or relevant fact highly probable or
improbable.-
 22

Clause (2) of section 11 states about facts which make, by themselves or in connection with other
facts, the existence or non-existence of any fact in issue or relevant fact highly probable, or
improbable.
In a charge under the Arms Act, the fact that one of the accused was seen showing a revolver to a
companion will be relevant as making the fact in issue of possession of the revolver highly
probable. [Saroj v. Emperor, 59 Cal. 1961].
 23

8."presumption".
(a) May presume
(b) Shall presume, and
(c) Conclusive proof?

Presumption - The term "presumption" may be defined to be an inference, affirmative or

disaffirmative, of the truth or falsehood of a doubtful fact or proposition drawn by a process of
probable reasoning from something proved or taken for granted. In other words, a presumption
means a rule of law that courts and Judges shall draw a particular inference from a particular fact,
or from a particular evidence, unless and until the truth of such inference is disproved.
Kinds of presumption-Presumptions are of three kinds:
(i) Presumption of fact or natural presumption,
(ii) Presumption of law, and
(iii) Presumption of mixed law and fact.

(a) May Presume - In a case if a court has a discretion to presume the fact as proved, or to call for
confirmatory evidence of it, as the circumstances require. In such case, the presumption is not a
hard and fast presumption, incapable of rebuttal (a presumption juris et de jure).
Example
A man who is in possession of stolen goods shortly after the theft, and can give no account of
them, is either the thief or has received the goods knowing them to be stolen.

Definition- Section 4 provides: "Whenever it is provided by the Act that the court 'may presume' a
fact, it may
(1) either regard such fact as proved, unless and until it is disproved, or
(2) may call for proof of it."
Section 114 of the Evidence Act gives a legal sanction to such an inference and at the same time
allows a discretion to the court to exercise in a judicial manner.
Other illustrations are to be found in sections 86, 87, 88, 90, 114 and 118.

(b) Shall presume - Section 4 provides:

Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as
proved, unless until it is disproved.
Elucidation - In cases in which a court shall presume a fact, no option is left to the court, but it is
bound to take the fact as proved until evidence is given to disprove it, and the party interested in
disproving it must produce such evidence if he can. The presumption is not conclusive but
rebuttable.

Example
A document purporting to be the Gazette of India shall be presumed to be genuine, and a
document called for and not produced shall be presumed to be duly executed and arrested.
Other illustrations are to be found in sections 79, 80, 81, 83, 85, 89, and 104 of the Evidence Act.

(c) Conclusive proof - When one fact is declared by this Act to be conclusive proof of another, the
court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be
given for the purpose of disproving it. (Section 4).
 24

Elucidation - A fact is said to be conclusive proof of another when on its proof the court regards
the other as proved and does not allow evidence to be given to contradict it. In artificial probative
effect is given by the law to certain facts, and no evidence is allowed to be produced with a view to
combating that effect.
These cases generally occur when it is against the policy of the Government or the interests
of society, that a matter should be further open to dispute.
Conclusive proof or presumption juriset de jure are those to disprove which the court will
not allow any evidence. They are inferences which the law makes so peremptorily that it will not
allow them to be overturned by any contrary proof, howsoever strong. This is the strongest of all
presumptions.

Examples of conclusive proof –

(1.) Final judgment in probate, matrimonial, admiralty or insolvency jurisdiction are conclusive
proof of the matter stated in them. (Section 41).
(2.) A was married to B. B came to her husband A and remained there up to his death. Within 280
days of his death a child was born to B. The presumption of law is in favour legitimacy and the
child is presumed to be that of A in the absence of evidence that A could not have access to B
at any time when he could have been begotten. (Section 112).
(3.) A notification in the Gazette of India that any portion of British territory has before the
commencement of Part III of the Government of India Act, 1935, been ceded to the Native
State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory has taken
place at the date mentioned in such notification. (Section 113).
(4.) An infant under the age of 7 years cannot be guilty of a crime. (Section 82, I.P.C).
 25

9.'Res Gestae' and related provisions of the Indian Evidence Act

Res Gestae- Section 6 and succeeding sections embody the rule of admission of evidence known as
res gestae. Acts and declarations accompanying the transaction or the facts in issue are treated as
res gestae and admitted in evidence. It is an exception to the hearsay rule. The obvious ground of
admission of such evidence is the spontaneity and immediacy of the act or declaration in question.
The fact deposed must form part of the transaction and must be made contemporaneously with
the act or immediately after it. [A.I.R. 1958 Cal. 482].

Woodroffe explains it as follows: The term res gestae may be defined as those circumstances
which are the automatic and undersigned incidents of a particular litigator's act and which are
admissible when illustrative of such act. These incidents may be separable from the act by a lapse
of time more or less. appreciable. A transaction may last for weeks. The incidents may consist of
saying and doings of any one absorbed in the event whether participant or by stander, they may
comprise things left undone as well as things done.

There are many incidents which though not strictly in issue, may yet be regarded as forming part
of it, in the sense that they closely accompany and explain that fact. These constituent or
accompanying incidents are in law said to be admissible as forming part of the res gestae or main
fact.

In the case of Mahendra v. State of Madhya Pradesh, 1975 Cr. L.J. 110 it is stated that spontaneous
statements in the course of the transaction are admissible as being res gestae. But what is
admissible under section 6 is a fact which is connected with the fact in issue as "part of the
transaction." Therefore, only statement of a witness who had come to the spot of murder after the
occurrence to the effect that the persons present there were saying that the accused had killed the
deceased without indicating whether they had actually witnessed the murder is only hearsay and
not admissible under section 6.

Provision under the Indian Evidence Act: - The rule as to the admissibility of evidence as res
gestae is embodied and illustrated in sections 6, 7, 8, 9, and 14, in order words, occasion, cause,
effect, motive, preparation, conduct, explanatory or introductory facts, etc, are the various modes
in which facts from part of res gestae.

Cases: -
1. In Sawal Das v. State of Bihar: - the appellant, his father and his mother were charged for of
appellants's wife. Immediately after the wife was pushed inside the room and her cries of
Bachao came from inside the room, her children were heard crying and uttering words that
their mother was either being killed or had been killed. There was also a maid servant present in
the verandah outside the room and her statement was recorded under section 164, Cr, P.C.
which was brought on record. But the children and the maidservant were not produced in trial
court.

It was held that in the view that the evidence of witnesses about what children said or did was
admissible under section 6, the children may not have been examined under section 540, Cr,
 26

P.C. But the omission to produce the maidservant whose statement under section 164 could be
used to corroborate or contradict her if she had appeared as a witness entitled the accused to
ask for the court to give him benefit of presumption under section 114.

2. In Bijaysingh Damgalsingh v. State of Madhya Pradesh: - the witness was standing near the
place of occurrence when the shooting took place as a bystander. The statement made by him
shortly after the occurrence was held to be a relevant fact. Statement made by a bystander
while still under the influence of the principal transaction was also held to be admissible as res
gestae.
3. In Krishan Kumar Malik v. State of Haryana, unnatural conduct of the prosecutrix in not raising
alarm for help while traveling some distance after the alleged abduction, a statement can be
admitted as part of res gestae when it is made contemporaneous with the act or immediately
thereafter.

Short note on`res gestae'.

Res Gestae
The Latin word 'res' means 'thing' 'gestae' means alone or over and the expression 'res gestae'
literally means "thing done, transaction or essential circumstances surrounding the subject is
complete". Under Indian Evidence Act, 1872, section 6 is based on this doctrine, wherein, it has
been mentioned that, wherever a 'transaction' such as a contract as a crime, is a fact in issue, then
evidence can be given of every fact which forms part of the same transaction. It reads as under:
6. 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.
Res Gestae
Meaning of Res Gestae.--
The items of evidence are sometimes said to be part of the Res gestae, owing to the nature
and strength of the their connection with, the matter is issue and as such are admissible,
Res Gestae is an expression mainly of utility in the criminal law concerning the
 27

contemporary of statements to residents but, insofar as contemporaneous statements are

relevant and accompany and explain matters in issue, they will be admissible. 1
'Same transaction': meaning of.--
The term 'same transaction' has not been defined in the Evidence Act. It signifies that a
series of activities are linked together to present a continuous story. A definition of the
word is given by Stephen who says,
"A transaction is a group of facts, connected together to be referred to by a single
legal name, a crime, a contract, a wrong or any other subject of enquiry which may
be in issue." From its very nature the word 'transaction' is difficult to define. It should
be interpreted neither in any strict nor in technical way but in its ordinary
etymological meaning of "an affair" or "a carrying through."
The rule of efficient 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." Proximity of time is not so essential for the continuity of action and purpose. On
the one hand, the mere proximity of time between several acts will not necessarily
constitute them parts of the same transaction, on the other hand, the mere fact that there
are intervals of time between the various acts will not necessarily import want of continuity.
To ascertain whether a series of acts are parts of the same transaction, it is essential to see
whether they are linked together to present a continuous whole. Section 6 lays down that
facts, which form part of the same transaction are relevant.
 28

10. What do you mean by term `facts in issue'?

The evidence of any particular case has to be confined to the facts of the case. The first duty of any
Court of law, therefore, is to ascertain the area of controversy between the parties. The 'facts'
which are in dispute are 'facts in issue'. Section 3 of the Evidence Act, 1872, while defining "facts in
issue" only adds that, in addition to being in controversy, the fact should be such that the question
of liability should depend upon it.
Elements of 'facts in issue'.--
The requirement that a fact in dispute will be regarded as a fact in issue only if the fact is
such that by itself or in connection with other facts is disputed. Therefore, it can have two
elements:
(i) the fact should be in dispute between the parties; and
(ii) the fact should touch the question of rights or liabilities.
In criminal matters, the allegations in the charge-sheet constitute the facts in issue. 1 In civil
matters the process of ascertaining 'facts in issue' is known as framing of issues. 2
Facts in issue is nothing but the facts which are in dispute. Evidence becomes necessary
only in reference to facts which are in controversy or dispute between the parties. Further,
the fact should be such that the question of liability should depend upon it. The following
illustration makes clear the point:-
X is accused of the murder of Y. At his trial the following facts may be in issue - that X
caused Y's death; that X intended to cause Y's death; that X had received grave and
sudden provocation from Y; that X at the time of doing that act which caused Y's
death, was, by reason of unsoundness of mind incapable of knowing the nature of
the act.
Therefore, facts in issue are those facts which a plaintiff must prove in order to get an
adjudication in his favour on which a defendant may prove to defeat the suit. Facts in issue
will depend upon the provisions of the substantive law applicable to the offence.
Whatever be the facts in issue, their existence has to be proved to the satisfaction of the
Court before the Court can be called upon to pronounce a judgment on the basis of those
facts.
Facts In Issue.--
The distinction between the facts in issue and relevant facts is of fundamental importance
and must be thoroughly comprehended in order to understand and appreciate the Scheme
of the Evidence Act.
A substantive law defines the rights and liabilities of parties in the form of certain abstract
propositions or formulae and the object of every suit or other judicial proceedings is to
ascertain whether the, rights claimed, or the Liabilities sought to be enforced by one person
against another does or does not exist. A party to a litigation seeking to enforce a right or
liabilities against his opponent, in order to obtain a verdict in his favour by a tribunal has to
establish all such facts as to constitute the rights or liabilities. These "necessary
constituents" are "facts-in-issue".3
 29

11. What is `relevancy of facts'?

Relevancy of facts
Facts which are themselves not in issue may help in proving facts in issue. They are used as
foundation for inferences respecting facts in issue. According to Stiphen the word 'relevant' means
that, "Any two facts to which it is applied are so related that according to the common course of
events one either taken by itself or in connection with some other facts proves or renders
probable the past, present or future existence or non-existence of the other".

Relevant Fact.--
A 'Relevant fact' is also known by its Latin name 'factum probans' i.e., a fact that proves.
The "relevancy" and "admissibility" are often used as synonyms but their legal implication
are distinct and different. The fact which are relevant may not be admissible, for example
communication made by spouses during marriage or between an Advocate and his client
though relevant, are not admissible, so also facts which are admissible may not be relevant
for example, question permitted to be put in cross-examination to test the veracity or
impeach the credit of witnesses though not relevant are admissible; Ram Behari v. State of
Bihar, MANU/SC/0302/1998 : AIR 1998 SC 1850.
"Relevant".-
One fact is said to be relevant to another when the one is connected with the other
in any of the ways referred to in the provisions of this Act relating to the relevancy of
facts.
Therefore, relevancy under the Evidence Act, does not depend upon mere logic but it
should be 'legally relevant' and should be fitted in any of the following provisions, viz.,
(i) facts logically connected with the facts in issue (sections 5-16),
(ii) admissions and confessions (sections 17-31),
(iii) statements by non-witnesses (sections 32-33),
(iv) statements under special circumstances (sections 34-37),
(v) judgment in other cases (sections 40-44),
(vi) opinions of third persons (sections 45-51),
(vii) evidence as to character (sections 52-55).
The word 'relevant' is not defined under the Evidence Act, rather, it provides for the
relationship which indicates 'when one fact becomes relevant to another'. Normally, facts
relevant to an issue are those facts which are necessary for proof or disproof of a fact in
issue. Thus, relevant facts (or evidentiary facts) or factum probans are those, which are
capable of affording a reasonable presumption as to either the facts in issue or the principal
matters in dispute. The word 'relevant' has been held to be 'admissible'; Lakhmi v. Haider, 3
CWN 268. Relevant facts are not themselves in issue, that are foundations of inferences
regarding them. For example, "when X is accused of the murder of Y", the 'relevant facts'
are - X had a motive and opportunity to kill Y, he had made preparations by buying a knife,
etc., or after the murder he was seen running with blood-stained knife in hand.
Therefore, relevancy indicates such relationship with the facts in issue as convinces or has a
tendency to convince the judge to the existence or otherwise of the facts in issue. The word
'relevant' means that any two facts to which it is applied are so related to each other that
according to the common course of events one taken by itself or in connection with other
facts proves or renders probable the existence or non-existence of the other. It should be
noted that circumstantial evidence is evidence that relates to facts, other than those in
 30

issue, which by human experience, have been found to be so associated with the fact in
issue that the latter may be reasonably inferred therefrom.
Though questions put in cross-examination are not always determinative in finding an
accused guilty, they are certainly relevant; Jesu Asir Singh v. State, MANU/SC/7830/2007 :
AIR 2007 SC 3015: 2007 Cr LJ 4310: 2007 AIR SCW 5472: 2007 (57) All Ind Cas 12: 2007 (3)
Chand Cr C 111: 2007 (3) Crimes 333: 2007 (4) JCC 2629: 2007 (4) Rec Cr R 38: (2007) 10
SCALE 110.
Document.--
'Document' means any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of these means, intended to be used, or
which may be used for the purpose of recording that matter.
It should be noted that the word 'document' includes photographs, tape recordings, letters,
printings, books, inscriptions, carvings, outline maps, xeroxed materials, microfilms, carbon
copies, cartoons, caricatures, murals, symbols, insignias or any other substance on which
communications, words, thoughts, ideas, plans may be recorded. Thus, interpreted, the
section would include even 'codes', tattoo marks' voice or sound patterns recorded in any
form and on any material would form an evidence? Even tape-recordings of speeches and
conservations are 'documents' and therefore admissible before the courts of law; In Pratap
Singh v. State of Punjab, AIR 1964 SC 74; N. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162:
1970 Ker LT 390: 1970 SCD 646: 1970 UJ (SC) 604: (1971) 1 SCA 394: 1971 (1) SCJ 483:
(1971) 1 SCR 399; Yusufalli v. State of Maharashtra, AIR 1967 SC 76; R.M. Malkani v. State of
Maharashtra, MANU/SC/0204/1972 : AIR 1973 SC 157: 1973 Cr LJ 228: 1973 Mah LJ 92:
1973 MPLJ 224: MANU/SC/0204/1972 : (1973) 1 SCC 471: 1973 SCC (Cri) 389: (1973) 2
SCWR 776; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass
Mehra, MANU/SC/0277/1975 : AIR 1975 SC 1788: (1976) 2 SCC 17: 1975 Supp SCR 281 their
Lordships of the Supreme Court held that tape-recording of speeches and conversations are
'documents' and therefore admissible.
"Document" means records, writtings, precepts, instructions or directions and means a
document read as a whole and not peacemeal; Administrator of the Specified Undertaking
of the Unit Trust of India v. Garware Polyster Ltd., MANU/SC/0375/2005 : AIR 2005 SC 2520:
2005 AIR SCW 2798: 2005 CLC 668: JT 2005 (5) SC 300: (2005) 10 SCC 682: 2005 (4) SCJ 258:
2005 (4) SLT 442: 2005 (6) SRJ 413: (2005) 5 SCALE 54: 2005 (4) Supreme 359.

Presumption of Facts.--
"May presume".-Whenever it is provided by this Act that the Court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved, or may call for proof
of it.
"Shall presume".-Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof".-When one fact is declared by this Act to be conclusive proof of another,
the Court shall, on proof of the one fact, regard the other as proved, and shall not allow
evidence to be given for the purpose of disproving it.
Evidence Act, declares a fact as final and conclusive, its impact is crucial because no party
can then give evidence for the purpose of disproving that fact. This is substance of section 4
 31

which defines three kinds of presumption; Calcutta Municipal Corpr. v. Pawan

Kamar, MANU/SC/0011/1999 : AIR 1999 SC 738.
PRESUMPTIONS
Presumption of facts or Natural Presumption of law or Artificial Presumption
Presumption
Rebuttable Irrebutable
Presumption Presumption
of law of law
(shall Presume) (Conclusive proof)
These presumptions are of three types:
'May presume'.-- 'shall presume' and 'conclusive proof', - 'may presume' leaves it to the discretion
of the Court to make the presumption as per the circumstance of the case, "shall presume" leaves
no option with the Court not to make the presumption. The Court is bound to take the fact as
proved until evidence is given to disprove it. In this sense such presumption is also rebuttable.
"Conclusive prove" gives an artificial probative effect by the law to certain facts. No evidence is
allowed to be produced with a view to the combating that effect. In this sense, this is irrebutable
presumption.
Presumption
Meaning of presumption.--
The presumption is a legal or factual assumption drawn from the existence of certain facts.
The presumption raised under a statute has only on evidentiary value. The presumption
drawn in respect of one fact may be an evidence even for the purpose of drawing
presumption under another; M. S. Narayana Menon alias Mani v. State of
Kerala, MANU/SC/2881/2006 : (2006) 6 SCC 39: AIR 2006 SC 3366: 2006 Cr LJ 4607: 2006
AIR SCW 4652: 2006 (3) Crimes 117: 2006 (35) OCR 43: 2006 (8) SRJ 275: (2006) 6 SCALE
393: 2006 SCC (Cri) 30: 2006 (5) Supreme 547: 2006 (2) UC 1289.

Evidence may be given of facts in issue and relevant facts

Section 5 of the Act, provides that:
5. 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.
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.
 32

This section declares that in a suit or proceeding evidence may be given of the existence or
non-existence of:
(i) facts in issue; and
(ii) of such other facts as are declared to be relevant in sections 6 to 55.
The facts-in-issue are those facts which are necessary to prove or disprove, to establish or
refute a case. The facts-in-issue are normally clear from the pleadings and are a matter for
the judges to determine. The facts-in-issue must normally be proved by evidence. 1
The facts-in-issue are distinguishable from collateral facts "which affects the proofs of facts
in issue.2
A fact-in-issue is a necessary ingredient of materialism because from such fact, either by
itself or in connection with other facts, the existence or non-existence of a right or liability
necessarily follows.
A relevant fact on the other parlance, is not a necessary ingredient of a right or liability, but
is one that merely renders probable the existence or non-existence of any ingredient fact of
a right or Liability. A fact-in-issue is called the principal fact and the relevant fact is called
the "evidentiary fact".

Expression 'and of no others': meaning of.--

Section 5 by using the expression 'and of no other' excludes everything which is not
declared relevant under any of the sections 6 to 55; R. v. Poncho, ILR 7 Cal 671. All evidence
tendered must be shown to be admissible under some of the following sections of the
Chapter. A party trying to adduce a particular evidence has to show that the evidence
desired to be adduced is relevant under one or more of the sections 6 to 55; Dwijesh v.
Naresh, MANU/WB/0056/1945 : AIR 1945 Cal 492.
Logical and legal relevancy of facts.--
Sometimes in order to prove the existence or non-existence of the facts in issue, certain
other facts may be given in evidence, called relevant or evidentiary facts.
A fact is said to be logically relevant to another when it contains such a casual relation with
the other as to render probable the existence or non-existence of the latter. All facts which
are logically relevant are not necessarily legally relevant. One fact is said to be legally
relevant to another only when the one is connected with the other in any of the ways
referred to in sections 6 to 55 of the Act. Whatever is legally relevant is normally logically
relevant. However, only legally relevant facts are considered as relevant facts. A confession
made to a police officer may appear to be logically relevant but it is not legally relevant, for
section 25 declares that it cannot be used as evidence against the person making it; E. v.
Bhagwandas Tulsidas, 47 Bom LR 997.
 33

12. Relevancy and Admissibility.--

The terms relevancy and admissibility are not identical. They have different meanings.
Relevancy refers to facts which are logically probative i.e., which afford material for the
conclusion that a particular fact in issue exists or does not exist. Admissibility, on the other
hand refers to facts which the Court will permit to be given in evidence. Under the English
Law, the former is called logical relevancy and the later is called legal relevancy. All facts
which are logically relevant need not be legally relevant or admissible but all facts which are
admissible must necessarily be logically relevant. Under the Indian Evidence Act, the
question of relevancy has been dealt with under sections 5 to 55 and that of admissibility
under section 56 onwards.
The practice which can be a better substitute is whenever an objection is raised during
evidence taking stage regarding admissibility of any material or item of oral evidence, the
Trial Court can make a note of such obligations subject to such objections being decided at
the last stage in the final judgment; Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC
1158: 2001 Cr LJ 1254: 2001 AIR SCW 841: 2001 (1) Crimes 288: JT 2001 (3) SC 120: (2001) 3
SCC 1: 2001 (1) SCJ 460: 2001 (3) SRJ 437: (2001) 2 SCALE 167: 2001 SCC (Cri) 417: 2001 (2)
Supreme 65: 2001 (1) UJ (SC) 573.
The rules of relevancy declares certain facts relevant, rule admissibility lay down as to
whether a certain form of evidence about relevant fact, may be allowed or excluded under
the circumstances of a case. What is the material (fact) which may be produced before a
court in a case is a first question. Relevancy means what facts may be proved before any
court of law. Thus under the Evidence Act, the terms "Relevant" or "the facts that may be
proved" are synonyms.
The admissibility is means and the method of proving the relevant facts.
In Ram Bihar Yadav v. State of Bihar, MANU/SC/0302/1998 : AIR 1998 SC 1850: 1998 Cr LJ
2515: 1998 AIR SCW 1647: 1998 (2) Crimes 254: JT 1998 (3) SC 290: (1998) 4 SCC 517: 1998
(2) SCJ 253: (1998) 2 SCR 1097: (1998) 3 SCALE 200: 1998 SCC (Cri) 1085: 1998 (4) Supreme
178; the Supreme Court speaking through Mohd. Quadari J., said that, more than often the
expression relevancy and admissibility are used as synonyms but their legal implications are
different because more often than not facts which are relevant may not be admissible for
example the communication made by spouse during marriage, the communication between
an advocate and his client, though for example, questions permitted to be cross-examined
to test the veracity or to impeach credit of witness though not relevant are admissible.

Distinction between Admissibility and Relevancy.--

Admissibility Relevancy
1. Admissibility is not based on logic 1. Relevancy is based on logic and
but on strict rules of law. probability.
2. The rules of admissibility is described 2. The rules of relevancy is described
after section 56 of the Evidence Act, 1872. from sections 5 to 55.
3. The rule of admissibility declares 3. The rules of relevancy declares what
whether certain type of relevant is relevant. evidence are admissible or are to be excluded.
4. Admissibility is means and of modes 4. Under the Evidence Act, the rules of
for admissibility of relevant evidence. relevancy means where evidence are admissible.
5. The facts which are admissible are 5. The facts which are relevant and not
 34

necessarily relevant. necessarily admissible.

6. In admissibility court has no discretion. 6. In relevancy, the Court has discretionary power.
7. Statements are not admissible in 7. However, statements are relevant in
evidence. evidence.
13. Confessions and Admissions.

Introduction
Navigating the intricate landscape of legal terminologies can often seem daunting. However,
understanding these concepts is vital for a comprehensive comprehension of the legal framework,
especially for those involved in the law and justice system. Two such integral terms in the domain
of Indian law are ‘Confessions’ and ‘Admissions’, enshrined in the Indian Evidence Act of 1872. This
blog post aims to elucidate these concepts in a detailed manner, highlighting their differences and
illustrating their applications using relevant case laws.
Confessions
Section 24 to 30 of the Indian Evidence Act, 1872, deals with confessions. In the simplest of terms,
a confession is a statement made by an accused person acknowledging his guilt concerning the
crime charged. Therefore, it directly connects the accused with the commission of the crime. A
confession may either be judicial (made before a magistrate or in court) or extra-judicial (made to
anyone outside the court).
For instance, in the landmark case of Pakala Narayana Swami vs Emperor (AIR 1939 PC 47), it was
declared that a confession must either admit in terms of 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 of itself a confession.
Admissions
Sections 17 to 23 of the Indian Evidence Act, 1872 cover the aspect of admissions. An admission is
a statement, oral or documentary which suggests any inference as to any fact in issue or relevant
fact. Unlike a confession, an admission is not confined to the accused person and can be made by
any person. However, it does not always relate to a crime, unlike a confession, and is not
conclusive proof of the facts admitted.
To illustrate, the case of Bishwanath Prasad vs Dwarka Prasad (AIR 1974 SC 117) sheds light on the
aspect of admissions. The Supreme Court, in this case, opined that the evidentiary value of an
admission is that it shifts the onus on the person admitting the fact. However, it only has a
corroborative value and does not absolve the burden of proof from the party relying upon it.
Confessions vs Admissions: The Dichotomy
While both confessions and admissions refer to statements that accept certain facts, their
implications and usage under the Indian Evidence Act are quite different. The primary difference is
that while a confession is a direct acknowledgment of guilt from the accused person, an admission
is an acknowledgment of a fact which might not necessarily be an acceptance of guilt. Admissions
can be used in civil as well as criminal proceedings, whereas confessions are primarily used in
criminal proceedings.
Moreover, a confession, if proved, can lead to conviction, but an admission cannot lead to
conviction unless supported by other evidence. For instance, the case of Nishi Kant Jha vs State of
Bihar (AIR 1969 SC 422), the Supreme Court held that even if an admission is made under a
mistaken belief, it can still be valid unless it is retracted in a reasonable time.
The Evidentiary Value of Confessions and Admissions
 35

Both confessions and admissions hold significant value in the course of legal proceedings.
However, their evidentiary value differs in various contexts. A confession, if voluntary and true,
can be accepted as concrete evidence leading to a conviction. However, it’s paramount that the
confession is not a result of any coercion, threat, or promise, as stated in Section 24 of the Indian
Evidence Act.
The case of State (NCT of Delhi) vs Navjot Sandhu (AIR 2005 SC 3820), popularly known as the
Parliament Attack Case, provides an insightful perspective. In this case, the Supreme Court of
India clarified that a confession recorded by a police officer cannot be admissible as evidence,
hence emphasizing the voluntary nature of the confession.
On the other hand, admissions aren’t considered conclusive proof of the facts admitted, as per
Section 21 of the Indian Evidence Act. They can be taken into consideration but need to be
corroborated by other evidence to establish the truth.
Retraction of Confessions and Admissions
The process of retraction adds another layer of complexity to the understanding of confessions
and admissions. Retraction is the act of withdrawing a previous statement. In the realm of
confessions and admissions, the retraction must be taken into consideration by the court,
especially in cases where the confession might have been obtained under duress, threat, or
inducement.
In the case of Pyare Lal Bhargava vs State of Rajasthan (AIR 1963 SC 1094), the Supreme Court
held that a retracted confession may form the legal basis of conviction if it is corroborated by
other reliable evidence.
Similarly, admissions, too, can be retracted. However, a retracted admission still holds evidentiary
value unless it was made under some mistake, misapprehension, or deception.
The Role of Technology in Recording Confessions and Admissions
With the advent of technology, new dimensions have been added to the process of recording
confessions and admissions. Video conferencing, polygraph tests, and narco-analysis have become
tools for collecting evidence in some cases. However, their admissibility and constitutionality have
been subjects of intense debate.
For instance, the Supreme Court of India in the case of Selvi vs State of Karnataka (AIR 2010 SC
1974) held that the results from narco-analysis, polygraph, or brain-mapping tests cannot be
admitted as evidence unless they are accompanied by an affirmative voluntary consent of the
accused.
This discussion showcases the dynamic nature of the Indian Evidence Act, and the role of legal
interpretation in determining the course of justice in India. Each case, each piece of evidence, each
confession, and admission adds another layer to our understanding of the law. It’s a journey of
constant learning and exploration for legal practitioners and enthusiasts alike.
Conclusion
In conclusion, while ‘Confessions’ and ‘Admissions’ may seem to be conceptually similar, they carry
different weight under the Indian Evidence Act, 1872. Their distinct legal implications and
procedural applications highlight the intricate and comprehensive nature of the Indian legal
system. The ability to discern between confessions and admissions is crucial for legal practitioners
and enthusiasts alike. A proper understanding of these principles ensures the upholding of the
sacred principle of law – “Justice to all”.
Despite the clear delineation provided by the Indian Evidence Act, it’s the contextual usage of
these terms that often determines the course of justice. Hence, it’s incumbent upon our legal
system to continually strive for an unambiguous interpretation and application of such
 36

pivotal legal terminologies. After all, the cornerstone of any justice system is not merely about the
law but also about ensuring the right interpretation and application of it.
 37

Short Notes:
(a) Direct and Circumstantial evidence.
Every person who comes across the following words, replies by saying that Direct
Evidence is something which is direct in nature and Circumstantial Evidence is something
which is indirect in nature. But this is a layman’s language definition and it\’s
inappropriate to use such legal terms which has very in-depth significance.
As per Section 3 of The Indian Evidence Act, 1872 evidence means and includes both oral
and written evidence. Oral evidence includes all the statements which the court permits
or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
Documentary evidence includes all documents including electronic records produces for
the inspection of court.
The evidence is any matter of fact that a party to the lawsuit offers to prove or disprove
on a particular issue in a particular case. It can be said as the system of rules and norms or
an arrangement of principles and norms that is utilized to figure out which certainties
might be conceded, and to what degree a judge or jury may think about those realities, as
verification of a specific issue in a lawsuit.
There are many types of evidence such as-:

• Eyewitness
• Participants
• Prior Statements by the defendants
• Documents
• Physical Evidence
• Scientific Evidence such as fingerprints, DNA etc.
• Apart from these, there are two basic forms of evidence, under which the
abovementioned kinds of evidence are generally covered. They are-:

Direct Evidence, and Circumstantial Evidence ( commonly called Indirect Evidence)

Now as we know what exactly is Evidence, let\’s move onto the title of the article i.e.
What is Direct and Circumstantial Evidence, and the difference between the two.
What is Direct Evidence?
“Direct Evidence” is evidence that establishes a particular fact without the need to
make an inference in order to connect the evidence to the fact. It supports the truth of
an assertion (in criminal law, an assertion of guilt or of innocence) directly, i.e.,
without the need for an intervening inference. It directly proves or disproves the fact.
So Direct Evidence is real, tangible, or clear evidence of a fact, happening, or thing that
requires no thinking or consideration to prove its existence. It does not require any
type of reasoning or inference to arrive at the conclusion.
Drawback of Direct Evidence
Though Direct evidence is considered to be superior to Circumstantial evidence, one of
the main drawbacks of Direct evidence is relying on the evidence completely without
any thinking or reasoning to prove its existence. For example in the case of an
eyewitness, he/she may lie or may not be able to understand if the event occurs
quickly or at the time of high stress to the eyewitness. Also, it can happen that the
eyewitness may maliciously testify i.e., intentionally testifies wrongly(though he may
 38

get prosecuted for perjury i.e., lying under an oath, that can happen only when the
judge or jury orders to counter examine the testification of the witness.
Here comes into the picture the concept of Circumstantial Evidence, which is
explained below.
What is Circumstantial Evidence?
Circumstantial Evidence is the evidence that does not point directly to the fact. A
reasoning must be made or an inference, that links circumstantial evidence to the
desired fact the party is trying to prove.
For instance, in the example explained above, the second part of the said example
notifies the circumstantial evidence in its proper sense. In that nobody has seen who
did the murder. Now the court or the judge has to circumvent all the issues and frame
and connect it to find the desired fact.
In this way, the jury or the judge uses reasoning and logic to grope to the conclusion,
unlike in, direct evidence where the judge or the jury relies on the words of the
witness. In this type, any evidence has to be evaluated by cross-checking, for the
reliability of the source.
Another example would make it crystal clear. Example: B was murdered at 5-pm, in his own house.
C saw A coming from the house of B at 5-15pm, with blood shredded knife in his hand. D gave the
evidence that A and B seriously quarreled on the day before the occurrence of murder. E, a police
officer seized the blood shredded knife from the almirah in the house of A. F, an expert deposed
that the blood of the deceased and blood shredded knife of A was one same. These chain of
evidence are “circumstantial evidence”.
Nowadays, circumstantial evidence is more often given more importance than direct
evidence, because more often in criminal law, direct evidence is misused and justice
gets impaired. For instance, fingerprints are circumstantial evidence.
Does direct evidence have more probative value than circumstantial evidence?
The most common form of direct evidence is “eyewitness testimony”, where the
witness describes exactly the scenario what happened in the situation. For example –
assume a person who is looking out from his door and is seeing a person killing
someone else. If he/she testifies this before the court then, it will be the direct
evidence because he saw the murder happening in front of his eyes and can identify
the murderer.
But suppose the person in the morning found a dead body lying on the road and now if
he/she testifies then that testimony would not be direct because he/she does not
have any direct proof of who is the murderer and how did it happen?
Under the Indian Evidence Act, “circumstantial evidence” is included under the
expression “relevant facts” and it is provided that all “relevant facts” require being
proved by some evidence oral or documentary, that is to say, by direct evidence.
Circumstantial evidence, to be relied upon, must not only point to the inference to be
drawn by the court, but it must be of such a nature that it can possibly lead to no
other inference.
So the value of Direct Evidence is more than Circumstantial Evidence, as in the
aforementioned example, there is a direct proof of who killed the individual, unlike in
the other situation where a body was seen lying and no one knew who and how did
the murder happen. But this is not always true. There are many cases where solely on
the basis of circumstantial evidence conviction has happened.
 39

Can someone be convicted on just circumstantial evidence?

On account of Chandmal v Province of Rajasthan, AIR 1976 SC 917., the court has
held that in circumstances where the case is completely in light of the circumstantial
proof the three conditions must be satisfied:
1) The conditions on which we depend for proving must be built up immovably.
2) The conditions must be exact and they should point towards the blame of the
individual who is denounced.
3) When every one of the conditions taken in general they should shape a total chain
and there must be no escape clause in the chain. It must show that the blamed just
could have carried out the wrongdoing and no one else could have done it.
In the instance of Sathya Narayan v State, 2013 (8) SCC 138. it has been held that in
specific cases it is conceivable where no immediate proof or observer is accessible, in
such a circumstance the court can grant conviction exclusively on the premise of
circumstantial proof if the accompanying five standards are connected:
1) The conditions from which the finish of blame is to be drawn ought to be completely
built up. The conditions must be or ought to and not might be built up.
2) The realities so settled ought to be predictable just with the speculation of the blame
of the denounced, in other words, they ought not to be clarified on some other
theory aside from that the charged is blameworthy.
3) The conditions ought to be of a decisive sort and propensity
4) They ought to avoid each conceivable theory aside from the one to be demonstrated
5) There must be a chain of confirmation so entire as not to leave any sensible ground
for the finish of the charged and should demonstrate that conflicting with the
guiltlessness of the blamed, what\’s more, must demonstrate that in all human
likelihood the demonstration probably is finished by the accused.\”
In another case of Khem Karan v State of U.P, AIR 1974 SC 1567, the court stated
that-: “If all the circumstances and the evidence point towards the guilt of the accused
and there is no possibility of any other alternative hypothesis then in such a situation
only the accused can be convicted solely on the basis of circumstantial evidence.”
 40

14. “All admissible evidence is relevant but all relevant evidence is not admissible”-
Explain.

The word relevant means any two realities to which it is connected are so identified with
one another that, as stated by, the regular course of occasions, one, either taken without
anyone else present or in association with different actualities, demonstrates or renders
in the cards the past, present or future presence or on presence of the other. A truth in
issue is a vital part of a right or risk; in light of the fact that from such certainty, either
without anyone else present or in association with other reality, the presence or non-
presence of a right or obligation fundamentally accompanies. An important reality then
again is not an essential element of a right or obligation. An actuality in issue is known as
the ‘rule truth’ or factum probandum and the applicable reality the ‘evidentiary certainty’
or factum probans. Where immediate proof concerning a truth in issue is not accessible, it
may be demonstrated by conditional confirmation; and in such a case each spot of
fortuitous proof might be an occurrence of an “applicable” reality. In an instance of
homicide, in the event that it be demonstrated against the charged that he had the
intention to slaughter the perished, that he had the chance and made arrangements to
murder, that instantly after the expired was killed the blamed was seen fleeing from the
spot of homicide with a sword under control, that his garments and the sword were both
stained with blood, and that, presently a while later, he hid the blood stained dress, and
the sword, the certainty of his being the killer is demonstrated as decisively as by the
affirmation of the persons of irreproachable credit who may have really seen him
submitting homicide. Yet none of these actualities is vital component of the risk to be
hanged; as the law does not require, as a state of point of reference, evidence of any of
the realities specified above to rebuff the man with death. None of these realities, in this
way, is a reality of issue; yet every one of them are “significant” since they bear the cost
of great material for the surmising that the truth in issue did happen, in particular the
blamed killed the expired.

Relevant Evidence: “Relevant Evidence is evidence that makes a fact more or less likely to
be true than it would be without the evidence (looking for probative value). Relevant
evidence may be excluded for unfair prejudice, confusion, or waste of time. Relevant
evidence is generally admissible and irrelevant evidence is never admissible. Two leading
principles on relevance: 1) that nothing is to be received which is not logically probative of
some matter requiring to be proved; and 2) that everything which is thus probative should
come in, unless a clear ground of policy or law excludes it. Relevancy exists as a relation
between an item of evidence and a proposition sought to be proved.”
In an American case of Knapp v. State, the rule of law stated by the court was that “the
determination of the relevancy of a particular item of evidence rests on whether proof of
that evidence would reasonably tend to help resolve the primary issue at trial.”

Logical Relevance vs. Legal Relevance

“A reality which is sensibly applicable may not be lawfully pertinent under the
procurements of the Evidence Act, thus might be forbidden in proof. All allowable
confirmation is pertinent, yet all applicable proof is not so much permissible. All
certainties which are permitted by the procurements of the Evidence Act to be
 41

demonstrated are important; be that as it may, however pertinent a certainty may be,
unless it is permitted to be demonstrated by the procurements of the Evidence Act, it is
not allowable.
A fact is said to be logically relevant to another when it bears such a causal relation with
the other as to render probable the existence or non-existence of the latter. As stated
above, all facts which are logically relevant are not legally relevant. One fact is said to be
legally relevant to another, only when the one is connected with the other in any of the
ways referred to in Sections. 5 to 55 of the Evidence Act.
Logical relevancy is wider than legal relevancy; every fact which is legally relevant is
logically relevant, but every fact which is logically relevant is not necessarily legally
relevant. Thus, a confession made to a police officer may appear to be logically relevant,
but such a confession is not legally relevant, for Section 25 of the Act declares that it
cannot be used as evidence against the person making it.

The Indian Evidence Act lays down, in Sections 5-55, what facts are relevant; but the mere
fact of logical relevancy does not ensure the admissibility of a fact. Very often, public
considerations of fairness and the practical necessity for reaching speedy decisions
necessarily cause the rejection of much of the evidence which may be logically relevant.
Thus, all evidence that is admissible is relevant, but all that is relevant is not necessarily
admissible. Relevancy is the genus of which admissibility is a species. Thus, oral
statements which are hearsay may be relevant, but not being direct evidence, are not
admissible.
Legal relevancy is, for the most part, based upon logical relevancy, but it is not correct to
say that all that is logically relevant is necessarily legally relevant and vice versa. Certain
classes of facts which, in ordinary life, are relied upon as logically relevant are rejected by
law as legally irrelevant. Cases of exclusion of logically relevant facts by positive rules of
law are:
(i) Exclusion of oral by documentary evidence: Sections 91-99.
(ii) Exclusion of evidence of facts by estoppel: Sections 115-117.
(iii)Exclusion of privileged communications, such as confidential communications with a
legal adviser, communication during marriage, official communications, etc.: Sections
121-130”.

Admissibility: Admissibility means that the facts which are relevant are only admissible by
the Court.
According to section 136 of the Indian Evidence Act, 1872, however, the final discretion on
the admissibility of evidence lies with the judge. Section 136 states that:
“When either party proposes to give evidence of any fact, the Judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be
relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would
be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence
is admissible only upon proof of some other fact, such last- mentioned fact must be proved
before evidence is given of the fact first- mentioned, unless the party undertakes to give
proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one
alleged fact depends upon another alleged fact being first proved, the Judge may, in his
discretion, either permit evidence of the first fact to be given before the second fact is
 42

proved, or require evidence to be given of the second fact before evidence is given of the
first fact.”
“The essential ingredients of the above section are:
1. It is the judge who decides the questions of relevancy and admissibility.
2. When a party proposes to adduce evidence of any fact, the judge may ask the party
to clarify ‘in what manner’ the fact would be relevant.
• The judge would ‘admit’ the particular adduced fact only if he is satisfied with the
answer of the party that it is, indeed, relevant under one or the other provisions of
S. 6 to 55. Thus the consideration of relevancy comes first and of admissibility later
and the judge will admit the fact only if it is relevant.”
In the recent case of Ram Bihari Yadav v. State of Bihar, [1998] AIR 1859 (SC) the
Supreme Court observed that “More often the expressions ‘relevancy and admissibility’
are used as synonyms but their legal implications are distinct and different from for more
often than not facts which are relevant are not admissible; so also facts which are
admissible may not be relevant, for example questions permitted to put in cross
examination to test the veracity or impeach the credit of witnesses, though not relevant
are admissible. The probative value of the evidence is the weight to be given to it which
has to be judged having regards to the fact and circumstances of each case.”
Section 9 of the Law of Evidence Act, 1872, lays down some facts which can be treated as
relevant. In the case of Lakshmandas Chaganlal Bhatia v. State, [1968] 69 AIR 807 (Bom)
the court laid down the following to be “relevant facts:
1. Facts necessary to explain or introduce a fact in issue or relevant fact;
2. Facts which support or rebut an inference suggested by a fact in issue or a relevant
fact;
3. Facts which establish the identity of anything or person whose identity is relevant;
4. Facts which fix the time and place at which any fact in issue or relevant fact
happened;
5. Facts which show the relation of parties by whom any fact in issue or relevant fact
was transacted.”

Another section of the Evidence Act which deals with admissibility is the Section 11.
Section 11 deals with those facts which are not otherwise relevant but become relevant if
they are inconsistent with any relevant fact or they make the existence or non-existence
of any relevant fact highly probably or improbable.

In Sheikh Ketab-Uddin v. Nagarchand Pattak [1927] AIR 230 (Cal) it was held, that where
the executants of an archive holding presentations of boundaries of land are alive and
don’t give their evidence, such archives are not acceptable under this segment.
In Ambikacharan v. Kumuk Mohan, [1928] AIR 893 (Cal) Cummin and Mukherji held that
as a general rule, Section 11 is controlled by Section32, “when the evidence consists of
statement of persons who are dead and the test whether such a statement is relevant
under Section 11, though not relevant and admissible under Section32, is that it is
admissible under Section 11, when it is altogether immaterial whether what said was true
or false, but highly material that it was said.”
In the case of Bibi Khaver v. Bibi Rukha, [1904] 6 AIR 983 (BLR) the court held that “in
order that a collateral fact may be admissible as relevant under this section, the
 43

requirements of the law are that:

1. The collateral fact must itself be established by normally conclusive evidence; and
2. It must, when established, afford a reasonable presumption or inference as to the
matter in dispute.” However, there are limitations to Section 11. According to R. v.
Prabhudas, [1874] 11 AIR 90 (BHCR) “the court must use exercise a sound
discretion and see that the connection between the fact to be proved and the fact
sought to be given under S.11 to prove it, must be so immediate as to render the
co-existence of the two highly probable. The section makes admissible only those
facts which are of great weight in bringing the court to a conclusion one way or the
other as regards the existence or the non-existence of the fact in question. The
admissibility under this section must, in each case, depend on how near is the
connection of the facts sought to be proved with facts in issue and to what degree
do they render facts in issue probable or improbable when taken with the other
facts in case. There must always be room for the exercise of discretion when the
relevancy of the testimony rests upon its effect towards making the affirmative or
negative of a proposition ‘highly probable’, and, with any reasonable use of the
directions, the court ought not to interfere.”
Another limitation mentioned in the case Bela Rani v. Mahabir, [1912] 34 AIR 341 (SC) is
that “s.11 is also controlled by Sections 17 to 39. And as to the admissibility of depositions
made by a person since deceased, it has been held that unless they are admissible under
Sections 32 and 33, Section 11 will not avail to make them evidence.”
CONCLUSION: logically relevant: the dictionary meaning of the term ‘relevancy’ is given as
‘the relation of something to the matter at hand’, ‘pertinence’, ‘connection’, ‘materiality’
etc. If one fact is connected to the other logically, it is called logical relevancy and it may
be based on several factors. For instance if a severed dead body is found on a railway
track, it can be inferred that the death occurred because of the train running over the
person. On a closer observation, it is found that there is no hemorrhage near the body,
the first inference is then replaced by another inference that the person was killed
elsewhere and the dead body was thrown on the railway track to create the misleading
impression that he was run over by the train. Here the inferences are drawn on the basis
of logic based on cause and effect. If two or more persons have committed the offence at
the same time and place, it can be inferred that they were acting with common intention.
Legal relevance: while logical relevance is certainly an important factor in determining the
probative value of facts, it so happens that the facts may be connected to each other by
varying degrees of logical proximity and immediate causes and effects, and remote,
indirect and even conjectural causes and effects. Hence, the courts should let in only
those facts which have a high degree of probative value that would help the courts to
decide one way or the other with relatively greater certainty.
Consequently, the Evidence Act adopted the device of declaring as relevant in section 6 to
55 only those logically connected facts which are considered to have a high probative
value. Thus, facts which may be connected to each other so remotely that they cannot be
considered to have high probative value are kept outside the purview of the provisions of
ss. 6 to 55. Facts legally relevant under the Evidence Act means, simply, facts declared to
be relevant under section 6 to 55 and this is part of the legislative and not judicial
determination.”
Hence, all logically relevant facts are not legally relevant and all legally relevant facts may
 44

not be logically relevant.

 45

15. Define the terms "Fact in Issue", "Fact". “Facts not otherwise relevant become relevant” –
Discuss with decided case laws.

Fact: “Fact means and includes-

(1) Anything, state of things, or relation of things, capable of being perceived by the sense;
(2) Any mental condition of which any person is conscious.”
Fact basically means an existing term. It does not refer to a mental condition of which a
person is conscious. It is not limited to tangible or what is visible. The statements,
feelings, opinion and state of mind are as much fact as any other fact which is tangible
and visible. Facts can be of two types:
Physical and Psychological: Physical facts are those facts which can be perceived by five
senses. For example; a horse or a man. Psychological fact is considered to have its seat in
some animate being and by that virtue of the quality by which it is constituted animate.
For example, intention, fraud, good faith and knowledge. The court takes cognizance only
of those facts which appear on the record. Things that do not appear and things that do
not exist, reckoning in a court of law is the same.
Positive and negative facts: The existence of a certain state of things is a positive fact, the
non- existence of it is a negative fact.
Fact in issue: “The expression facts in issue means and includes –any fact from which,
either by itself or in connection with other facts, the existence, non-existence, nature or
extent of any right, liability, or disability, asserted or denied on any suit or proceeding,
necessarily follows.
Explanation – Whenever, under the provisions of the law for the time being in force
relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or
denied in the answer to such issue is a fact in issue.”
These are those facts which are alleged by one party and denied by the other in the
pleading in a civil case or alleged by the prosecution and denied by the accused in a
criminal case. These are the facts of which existence or the non- existence is disputed by
the parties. The expression means the matter which is in dispute or which form the
subject of investigation.
Matter of fact and matter of law: Matter of fact is anything which is the subject of
testimony and can be proved by evidence. Matter of law is general law of land of which
the court will take judicial notice. It is not to be proved by evidence.
Relevant: “One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to the relevancy of
facts.”
Relevant can be interpreted in two ways; firstly it means connected and secondly, it
means admissible. Relevancy means the connection of events as cause and effect. It has
a certain degree of probative force. A fact becomes relevant only when it is connected
with other facts in any of the ways referred to in this Act relating to the relevancy of facts.
In order to be a relevant fact, a fact should be connected with the facts in issue. A fact not
so connected is not a relevant fact. When a fact is connected with another fact, it is
logically relevant but it is legally relevant if the law declares it to be relevant. If the law
does not declare it to be relevant, it is not admissible as evidence.
Facts not otherwise relevant becomes relevant
Section 11 of the Indian Evidence Act, 1872 deals with facts which ordinarily have nothing
 46

to do with that of a case are not in themself , but they have become to the relevant only
by virtue of fact that they are either inconsistent with any fact in issue or relevant fact or
they make the existence of a fact in issue or relevant fact either highly probable or
improbable.
Section 11: 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.
Inconsistent Facts: Plea Alibi: This section enables a person charged with a crime to take
what is commonly called the plea of alibi which means his presence elsewhere at the time
of crime.
His present elsewhere is consistent with the facts that he should be present at place of
the crime.

Where, for example, a person with charged with murder which took place at calcutta, he
can take the defence that on the day in question he was in Bombay. In order to prove his
presence in Bombay he may show his attendance at some place, for example the fact that
he visited a doctor or a vakil and he noted his visit in a professional diary or that he posted
a letter written by himself on that day from Bomaby, or that he encashed a cheque at
Bombay.
In Munshi Prasad v. State of Bihar (2001) A distance of 400-500 yards between the place
of occurrence and the place where the accused was claimed to be present (present in g
panchkula meeting) was held to be not amounting to present elsewhere. It could not be
an impossibility that one could be present at both the place or less simultaneously.
The fact that the accused advanced a false plea of alibi cannot by itself be a proof of the
fact that he was responsible for the offence.[Govind v. State of M.P. (2005)]Facts
showing probabilities: Evidence can be given of every fact which by itself or in connection
with other facts makes the existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.
For example there are five persons in a room and one of them is murdered in
circumstances which show that it is the handiwork of any one or more of them. Evidence
will be allowed of every fact which makes it probable which one of them caused the death
or which one of them was probably not connected with it.
Where a person is charged with cheating, evidence can be given of the fact that he belong
to an organisation of habitual cheats as this would make it probable that the committed
 47

the crime- [Kalu Mirza v. Emperor (1909)]

Facts which makes thing highly improbable are also relevant: In Santa Singh v. State of
Punjab (1956) The witnesses testified that they saw the deceased being shot from a
distance of twenty-five feet. The medical report showed that the nature of the wound
was such that it could have been caused only from distance less than a yard. Thus, the
expert opinion rendered the statement of witnesses highly probable.
This section is too wide in its import. It does not place any restriction upon the range of
facts that can be admitted as showing inconsistencies or probabilities.
It leaves the whole thing at the discretion of the court.
In Reg. v. Prabhudas (1874) where to prove the offence of forgery by the accused,
evidence was offered of other forged documents found in his possession, as this would
make it probable that he committed the forgery.
In Umashanker v. State of Chattisgarh (2001) in a charge of passing a fake currency note,
the relevancy of possession of other fake note proved mens rea or guilty state of mind or
knowledge.
 48

16. Define Hearsay Evidence. When hearsay evidence is admissible and why it is admissible?

Meaning of Hearsay Evidence: Hearsay Evidence means whatever a person is heard to say
it includes: i) A statement made by a person, not called as witness; ii) A statement
contained or recorded in any book, document or record which is not admissible. The
hearsay witness may not be able to say correctly and completely the truth of his
statement.
Definitions :
Taylor: 'All the evidence which does not derive its value solely from the credit given to the
witness himself, but which rests also in part on the veracity and competence of some
other person.
Bentham: The supposed oral testimony transmitted through oral, supposed orally
delivered evidence of a supposed extra judicially narrating witness judicially delivered viva
voce by the judicially deposing witness
Hearsay Evidence means whatever a person is heard to say... it includes...
1) a statement made by a person , not called as witness
2) statement contained or recorded in any book, document or record which is not
admissible.

Oral evidence must be direct : Evidence given by the witness may be oral or
documentary. Section 60 of the Indian Evidence Act says that, oral Evidence to be
admissible, it must be direct. In other words, Hearsay Evidence is no evidence.
A statement oral or written, by a person not called as witness comes under the general
rule of hearsay.
Section 60 of Indian Evidence Act reads as follows :
Oral evidence must, in all cases, whatever, be direct; that is to say -
If it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that
manner;
If it refers to opinions or to the grounds in which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds -
Provided that the opinion of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinions are held, may be proved by the production of
such treatise if the author is dead or cannot be found or has become incapable of giving
evidence or cannot be called as a witness without an amount of delay or expense which
the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material
thing other than a document, the Court may, if it thinks fit, require the production of such
material thing for its inspection.
Conditions: As stated above, The fundamental principle of law of evidence is: Hearsay
Evidence must not be admitted. Hearsay Evidence is also known as derivative or second
hand or unoriginal evidence. It is the evidence of facts, which the witnesses has not learnt
 49

through his own bodily senses, but learnt through the medium of others. It is regarded as
ambiguous and misleading.
Exclusion of hearsay evidence: Section 60 excludes hearsay Evidence. The evidence of
fact the happening of which could be seen can be given only by an eyewitness. If the
evidence refers to a fact which could be perceived by any order sense or in any other
manner, it shall be the evidence of a person who Personally perceived it by that sense or
in that manner.
Thus in all cases, the evidence has to be that of person who himself witnessed the
happening of the fact of which he gives Evidence. such witnesses is called as eye
witnesses or a witness of fact and the principle is known as that of direct Oral Evidence or
of the exclusion of hearsay Evidence.
Reasons for Exclusion of Hearsay Evidence: The reasons for exclusion of hearsay Evidence
are as follows
1) Hearsay Evidence cannot be tested by Cross-Examination.
2) It supposes some better evidence and encourages substitution of weaker for stronger
evidence.
3) Hearsay Evidence is intrinsically weak.
4) The evidence is not given on oath or under personal responsibility by the original
declarant.
5) It has a Tendency to protect legal investigation
6) As truth depreciates in the process of repetition, it is not reliable.
7) Its reception will increase opportunities for fabrication

Exceptions : Exceptions to hearsay Evidence are as follows :

1) Res gestae under Section 6
2) Admission and Confessions (Under Section 17 - Section 23 and Section 24 - Section 30)
3) Statement Relevant :
4) Evidence given in the former proceedings (Section 33)
5) Statements in public documents (Section 35)
6) Opinions of Experts (Section 45- Section 51)
7) Entries in books of Accounts (Section 34)
 50

17.What is ‘Leading question’ and when leading question may be asked? Can the court ask
leading question?

Section 141 to Section 143 of Chapter -X, Part III of the Indian Evidence Act 1872 deals with
leading questions. Section 142 and Section 143 provides circumstances under which the
leading Questions may be asked or may not be asked. Leading Questions have been
defined under section 141 of the Indian Evidence Act 1872.
Meaning: The expression "Leading Questions" literally means a question which itself
suggest answer. As expected by the person asked the same, any questions which leads to
answer, or a question which is pregnant with the answer.
Definition: Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as,
“Any questions suggesting the answer which the person putting it wishes or expects to
receive is called a leading question."
Bentham: Bentham defines leading questions as," A question is a leading one, when it
indicates to the witness the real or supposed fact which the examiner expects and desires
to have confirmed by the answer.
Examples
a) Is your name so and so?
b) Do you reside in such and such a place?
c) Are you not in service of such and such person?
d) Have you not lived with him for so many years?
e) Did you see him enter X's office and take a file?
It is clear that under this form every sort of information may be conveyed to the witness
in disguise. It may be used to prepare him to give the desired answers to the questions
about to be put to him; the examiner, while he pretends ignorance and is asking for
information is, in reality, giving instead of receiving it.
Taylor: According to Taylor "A Leading question, in other words, is one which suggests to
the witness the answer desired or which embodying a material fact, admits of a
conclusive answer by a simple negative or affirmative."
It is a question framed in such manner that it throws a hint as to or suggests directly
indirectly, the answer which the examiner desires to elicit from the witness, e.g., when a
witness called to testify to an alleged assault on A by B is asked, " Did you see B take a
stick and Strike A "? Or did you not hear him say this.
When leading Questions must not be asked?
According to Section 142 of Indian Evidence Act, leading questions may not be asked in
Examination-in-chief, or in a Re-examination, except with the permission of the Court.
Section 142 run as follows: Leading questions must not, if objected to by the adverse
party, be asked in an
examination-in-chief, or in re-examination, except with the permission of the Court.
The court shall permit questions as to matters which are introductory or undisputed or
which have, in its opinion been already sufficiently proved.

When Leading Questions may be asked?

Leading questions may be asked in the following cases.
1) According to Section 143 of the Indian Act, Leading Questions may be asked in cross-
examination.
 51

2) Under Section 142- In Examination-in-chief, Leading questions can only be asked with
the permission of Court in certain matters.
3) When the witness has defective memory, it may be agitated by a few leading questions.
4) When the object of the leading question is to contradict another witness as to the
expressions used by him but at which denies having asked, the witness may be asked
leading questions.

Objection to Leading Questions: Objection to leading question is not that they are illegal
but only that they are unfair. The rule excluding leading questions is intended to prevent
unfairness in the conduct of the inquiry. The Act gives absolute discretion to the court to
allow or disallow leading questions.