Indian Evidence Act

(Semester VII)

UNIT 1: LAW OF EVIDENCE

1.1: History and Development
Background of the Indian Evidence Act
1. In the ancient period, there has been elaborate discussion of the rules of evidence in
Sanskrit books. However, not much information is available in the Muslim period in respect
of the Law of Evidence.
2. In 1726, the rules of evidence prevailing in England under Common law and statute law
were introduced in India.
3. During 1835-1855 at least 11 enactments in this area of law were dealt with. In 1868, a
draft prepared by Sir Henry Sommer Maine which was found unsuitable for the country.
4. Sir James Stephen in 1872 prepared the Bill for the Act as in present day, who was
entrusted with the same work in 1871.
5. Most States had already adopted this Act before even the Constitution came into force. The
Law of Evidence which came into force in 1872 continues to be applicable to this day with
least changes being made in the past.
1.2 Object and Scope of Study AND 1.4 Appreciation of Evidence
Relevance and Function of the Law of Evidence
1. In the process of delivering justice, Courts not only have to go into the facts of the case but
also ascertain the truthfulness of such assertions made by the parties. To ascertain these
facts, the Law of Evidence plays an important role, being the procedural law in this aspect
2. It is this procedural law that provides in itself how fats are to be proved and when the same
will be regarded as relevant by the Court in the administration of justice.
3. It helps judges in deciding the rights and liabilities of the parties arising out of the facts
presented to him for further application of the relevant laws.
4. Thus, the law of evidence lays down the principles and rules according to which the facts of
a case may be proved or disproved in the Court of Law.
5. It helps the Courts in preventing the wastage of time upon irrelevant issues.
6. In the case of Ram Jas v. Surendra Nath, it was held that, the law of evidence does not
affect the substantive rights of the parties but facilitates the course of justice. It lays down
rules of guidance for the Courts. It is procedural in nature, proving how a fact can be proved
Preamble, Short Title and Commencement
1. This Act comes into force on September 1, 1872.
2. Section 1 of the Act states that this Act is applicable to the whole of India except J&K.
3. It applies to all judicial proceedings in or before any Court, including Courts Martial other
than Courts Martial convened under the Army Act, the Naval Discipline Act, the Indian Navy
(Discipline) Act or the Air Force Act.
4. A judicial proceeding is one wherein the object of it is to determine a jural relation between
one person and another or a group of persons or a person and the community in general. A
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judge without such object in mind does not act judicially. Further, Section 2 (i) of the CrPC,
a state that a judicial proceeding is one in which evidence is or may be taken legally on
oath. EX: an execution proceeding, a proceeding under Chapter IX of the CrPC etc.
5. A non-judicial proceeding is an enquiry about the matters of facts where there is no
discretion to be exercised and no judgment to be formed, but something to be done in a
certain event, a duty. It is said to be administrative in nature. EX: an enquiry by a Collector
under the Land Acquisition Act, a contempt proceeding, a departmental enquiry held for
police officers, etc.
6. This act applies only to native Courts martial and proceedings before the Indian marine Act.
7. Further this Act does not apply to affidavits presented to any Court or Officer, nor to judicial
proceeding before an arbitrator.
8. The Act does not apply to affidavits; however affidavits are used as a mode of proof. The
courts may take into consideration all facts alleged in the affidavit if not controverted in the
counter-affidavit. Provisions for affidavits are in both the CPC and CrPC.
9. An arbitrator is not bound by the strict rules of evidence as the object behind an
arbitrational proceeding is to avoid the elaborate procedure of a regular trial. Further, not
acting in accordance with the rules of evidence cannot be brought as a cause of action
against the arbitral award as given by him. An arbitrator is expected to follow the rules of
natural justice only.
10. Lex Fori: this phrase means the place of the action. It was held by the House of Lords, the
law of evidence is lex fori which governs the courts; whether a witness is competent or not,
whether a certain evidence proves a fact or not, is to be determined by the law where the
cause of action arises, where the remedy is enforced and where the court sits to enforce
it. Thus, when evidence is taken in one country for a suit or action in another country, the
law applicable to the recording of evidence would be the law prevailing in the country
where the proceeding is going on.
Scope of the Evidence Act
1. The Act is a complete code in itself repealing all those rules of evidence except those as
explicitly mentioned in the proviso to Section 2. There are many statues which supplement
the Evidence Act. Some of them are as follows:
i.
Bankers Book Evidence Act
ii.
CPC
iii.
CrPC
iv.
TOPA
v.
Divorce Act
vi.
Stamp Act
vii.
Succession Act
viii.
Commercial Documents Evidence Act, etc
2. The Act, deals particularly with the subject of evidence and its admissibility. It is a special
law. Hence, no rule as stated in the Act is affected by any other statute unless otherwise
specifically mentioned.
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3. Evidence excluded by the Act is inadmissible and should not be admitted merely because it
may be essential in the ascertainment of truth.
4. Parties cannot contract themselves out of the provisions of the Act.
5. If evidence is tendered, Courts are to check whether such evidence is admissible under the
Act.
1.3: Evidence and Proof
S. No.
1.

Basis of Distinction
Meaning

Evidence
All the legal means
exclusive of the mere
arguments which tend to
prove or disprove a fact.

2.
3.

Nature
Relationship

4.

Necessity

It is the medium of proof.

It is the foundation of
proof.
Without the foundation
of various facts or
evidence, there cannot
be proof.

5.

Kinds

6.
7.

Mathematical
Analogy
Examples

8.

Scope

9.

Conclusion

Proof
Anything which serves to
convince the mind of the
court regarding any
truths or propositions to
come to a certain
conclusion.
It is the effect or result.
It is what is constructed
on basis of evidence.
Without evidence there
cannot be proof. It is only
the basis of proof can a
case is decided by a
Court.
There is only one
collective proof and there
are no various kinds of
proof.

There are various kinds of

evidence.
HORN SSC: Hearsay, Oral,
Real, Non-Judicial,
Secondary, Substative,
Conclusive
E1+ E2 +... E4 +E5 =Proof
In case of murder, the
knife, weapons, clothes,
finger prints etc.

Collection of all these

evidences becomes proof
when such evidence leads
us to the murderer.
It is the material over
Proof is the
which the foundation of
establishment of facts in
truth is based
issue by proper legal
means to the satisfaction
of the Court.
Once the evidence comes before the Court and stands
the test of legal scrutiny, then it becomes proof.

UNIT 2: TYPES AND FORMS OF EVIDENCE

1. Evidence may be defined as:
i.
Facts which are legally admissible and legal means are used to prove such facts.
Nokes
ii.
The testimony, whether oral, documentary or real, which may be legally received in
order to prove or disprove some fact in issue.- Phipson
iii.
The evidence received by Courts of justice in proof or disproof of the facts, the
question of its existence comes before the court. Best
iv.
Section 3 of the Act- given later.
2. As per the changing circumstances and requirements in every case certain type of evidence
may be proved or disproved in order to establish a fact. The court may or may not accept
such kind of evidence.
3. There are various kinds of evidence. (11 pairs)
Direct Evidence and Indirect or Circumstantial Evidence
1. Direct Evidence or Positive Evidence is the testimony of any evidence of a fact actually
proved by the witness by his own opinion or senses about the existence or non existence
about a fact in issue or relevant fact. It is the evidence about the real point in controversy.
Examples: A kills B with a knife. C deposes that he saw A with the murder weapon and
stabbing B.
2. It must be noted that small discrepancies or irrelevant details if left out in the witnesses
statement shall not corrode the credibility of the witness and will not in any way rejection
of the witness statement by the Court.
3. Circumstantial Evidence is that which tends to establish the fact in issue by proving another
fact. In proving other relevant facts, the cause and effect of the fact in issue may be proved
that may lead to a conclusion. It is direct evidence indirectly applied. Thus, the facts from
which the existence of facts in issue must be proved should be done by way of direct
evidence. For example, if it is alleged that A killed B with a knife and C deposes that he saw
A walk out of the room where C was killed with the knife, or with a splatter of blood on his
clothes, the same would be circumstantial evidence.
4. Such kind of evidence is to be resorted to only in case no direct evidence is available.
5. In the case of Sharad B. Sharda v. MH, the SC held that circumstances must lead to guilt of
the accused and exclude the innocence of the accused. Further, the cumulative effect of the
circumstances must be such that it should establish that the accused and only the accused
must have committed the crime.
6. The Supreme Court in the case of Birdichand Sarda v. State of Maharashtra, laid down the 5
Golden Principles of Circumstantial Evidence:
i.
The circumstances from which the conclusion of guilt is to be drawn should be fully
established.
ii.
The facts so established must be consistent only with the hypothesis of the guilt of
the accused i.e. it should only explain the hypothesis of the guilt of the accused.
iii.
The circumstances should be of a conclusive nature.
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iv.

They should exclude every possibility of any other hypothesis than the one to be
proved.
v.
There must be a claim of evidence so complete so as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all possibility that the act must have been done by the accused.
7. In the case of Caestanco Fernandez v. Union Territory of Goa, a test was laid down for the
acceptance of circumstantial evidence which is as follows: if 2 inferences are possible at the
same time, one about the innocence and the other the guilt of the accused, the evidence
indicating towards the innocence of the accused shall be used.
8. When a case squarely rests on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused.
9. It is a well settled principle now that if at all a case rests primarily or wholly on
circumstantial evidence, the links in the chain of events must be proved completely.
Real Evidence/ Material Evidence and Personal Evidence
1. Real Evidence is that which is brought to the knowledge of the Court by inspection of an
object and not by way of a witness or a document produced.
2. Personal Evidence is that which is afforded by a human agent by voluntary signs.
Original Evidence and Hearsay or Unoriginal Evidence
1. Original Evidence is that which a witness reports himself to have heard or seen by way of
his own senses.
2. Unoriginal or Hearsay Evidence is that which a witness is merely reporting what he himself
saw or heard but through the medium of a third person. Such kind of evidence is not
admissible at all.
Primary and Secondary Evidence
1. Primary evidence is when a document is produced before the court for inspection or proof
of an admission of the contents by the parties.
2. Secondary evidence is inferior which itself indicates that the existence of a fact is taken
from the original source.
Oral and Documentary Evidence
1. Oral Evidence is that which is brought to the knowledge of the Court by verbal statements
of the witness, qualified to speak on point under enquiry. [S. 59 & S. 60]
2. Documentary evidence is that evidence of a fact brought to the knowledge of the Court by
inspection of any document produced. A documents means any matter expressed or
described upon any substance by means of letters or figures intended to be used. [S. 61- S.
90]

Judicial Evidence and Non- Judicial Evidence

1. Judicial Evidence is that which is received by the Court of justice in proof or disproof of
facts. Therefore, it is natural evidence modified by certain rules.
2. Non Judicial Evidence is that which is given in proceedings before an officer not in a judicial
capacity but in an administrative capacity [S. 164]
Positive and Negative Evidence
Positive Evidence is that which tends to prove the existence of a fact whereas, by negative
evidence the non-existence of a fact is proved. Therefore the latter is not good evidence.
Substantive and Non- Substantive Evidence
Substantive evidence is that evidence on which reliance can be placed. It relates to the rights and
duties of the parties. Non substantive evidence on the other hand corroborates to increase the
credibility of or contradicts in order to discredit the substantive piece of evidence.
Pre-appointed and Casual Evidence
1. Pre-appointed evidence is also called Pre-Constituted evidence which is procured in
anticipation of its use. Hence it may be voluntary or prescribed by law.
2. Casual evidence is the evidence which is not pre-constituted and depends on the
circumstances of the case.
Prima Facie Evidence and Conclusive Evidence
1. Prima facie evidence is accepted as reliable as it establishes or proves a fact in the absence
of any contradictory evidence.
2. Conclusive evidence is the use of facts involving the application of the rule of law. (S. 41)
Decree of a competent court is conclusive evidence.
Scientific Evidence and Digital Evidence
Scientific evidence the use of scientific basis from the point of view of cogency, weight or effect of
the evidence. It is based on the fact that science confirms the facts stated.
Digital evidence is the rule of modern concepts or electronic concepts in establishing or proving a
part of facts in issue which is relied on by the Courts depending on the facts and circumstances of
the case.

UNIT 3: INDIAN EVIDENCE ACT

3.1 Schematic Arrangement
3.1.1: Interpretation Clause
1. COURT: includes all Judges and magistrates and all persons legally authorised to take
evidence other than arbitrators.
2. Court has been defined for the purpose of this Act only and cannot be extended beyond its
limited scope. The definition is thus not exhaustive but explicitly excludes arbitrators.
Therefore, by virtue of this definition, in a jury trial, both the jury and the Judge will be
regarded as Court.
3. It was held in the case of State of MP v. Anshuman Shukla that the authorities constituted
under the M.P Madhyastham Adhikaran Adhiniyam, though named as Arbitral Tribunals
were courts as they were empowered to take evidence and examine witnesses.
4. FACT: As defined means and includes anything that can be perceived by ones senses and
any mental condition of which any person is conscious.
5. A fact need not be a tangible or visible object; it may be statements, feelings, opinions or a
state of mind. EX: A man heard or saw something; a man said certain words, a man having a
certain reputation, having a certain intention, etc. are all facts.
6. Facts may be divided into the following kind: (1) External and Internal Facts; and (2) Positive
and Negative Facts.

1.

2.

External Fact
It is considered to have its seat
in some animate or inanimate
being, not by virtue of it being
considered as animate but
what it has in common with
the inanimate being. EX: horse,
man etc. It is a perception of
the five senses
Positive Fact
The existence of certain things
is a positive fact

Internal Fact
It is considered to have its seat in an
animate being and by virtue of the same
quality being considered animate. EX: a
certain opinion, an intention. It is a subject
of consciousness, good faith etc.

Negative Fact
The non existence of certain things is a
negative fact.

7. Matter of Fact and Matter in law: Matter of fact is anything which is the subject of
testimony which can be proved by way of evidence; matter of law is the general law of land
of which the court will take judicial notice. It does not have to be proved by evidence.
8. Relevant: one fact is said to be relevant to another when one is connected with the other
in any way as referred to in sections 5 to 55. It must be connected to the facts in issue or
other relevant facts. A fact not connected as in the sections mentioned, is not relevant. All
relevant facts are admissible.
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9. Relevant has 2 meanings, in one sense it means connected and in another it refers to
admissibility.
10. According to Stephen, relevancy means connection of events as in a cause and effect
relationship. A relevant fact is a fact that has a certain degree of probative force.
11. Facts in Issue: it means and includes any fact from which, either by itself or in connection
with other facts, the existence or non-existence, nature or extent of rights, liability or
disability, asserted or denied in any suit or proceeding.
12. Facts in issue are those facts which are alleged by one party and denied by another in the
pleading in a civil case (i.e. the issues framed under CPC) ; or alleged by the prosecution and
denied by the accused in a criminal case (i.e. the Charges under Chapter XVII of the CrPC).
13. When a case is before the Court, two types of facts play an important role in determining
whether or not the alleged offence has been committed, they are facts in issue and relevant
facts.
Facts in issue + Relevant Facts = Proof
14. The evidence in a particular case is confined to the facts of the case before any court. The
Court must ascertain the area of controversy between the parties and the facts which are in
dispute are the facts in issue. It is on basis of the evidence that is brought before the court
on the facts of a case that fact in issue is decided giving some right or liability to a party.
15. Facts in issue may be proved either by direct evidence or circumstantial evidence. For
example, in a road accident or rape cases, the courts have to depend on circumstantial
evidence where direct evidence is unavailable.
16. Relevant facts are facts which themselves are not in issue but may help in proving facts in
issue. They act as foundations from which inferences are drawn in respect of the facts in
issue. For example, if witnesses depose they saw or an incident or heard the gun in a killing,
the facts would be treated as relevant and therefore admissible.
17. Thus, facts in issue and relevant facts go hand in hand and on this basis a Court shall pass its
judgment.

DISTINCTION BETWEEN FACTS IN ISSUE AND RELEVANT FACTS

Sl. No.
1.

Basis of Distinction
Nature of Fact

2.

Relation with
Substantive Law

3.

Judicial Value

4.

Essentiality

5.

Examples

6.

Cases
BabriMasjid/Ayodhya
Case

Facts in Issue
It is the relevant fact arising
out of issues/charges
framed by the Court in a
suit or proceeding.
It is also called Factum
Probandom.
In a case, a fact in issue is a
question of law which will
be determined by the
substantive or procedural
law regulating the pleadings
They are facts out of which
some legal rights, liability/
disability can arise and
upon which the court
formulates its opinion
These are facts which are
matters which are in
dispute affirmed by one
party and denied by the
other party.
A is accused of murdering B
on S.B. Road, the facts in
issue will be:
i. Whether A caused Bs
death; and
ii. Whether A intended to
cause Bs death

In this case, a fact in issue

was whether or not it was
the land where Lord Ram
was born or where the
Mosque was erected?

Relevant Facts
It is the evidentiary fact and
is also known as the Factum
Probandi

It is a fact so connected with

the facts to prove or disprove
facts in issue.

It is not necessary ingredient

of a right or a liability. It
merely renders probability to
the existence or nonexistence of the right or
liability.
These facts are not in issue
themselves but are very
essential in deciding the
dispute.
As regards this allegation, A
sets a plea of an alibi that at
the time of the occurrence of
the crime he was in Pashaan.
It will depend on other facts
such as whether he was at
another place and if he was at
such place at the time of
commission of the crime.
The relevant facts would be
whether such mosque had
been constructed at all,
whether the architectural
evidence showed the same
and what stands at such site
in the present day.

18. Document: In general parlance, a document is any matter written upon a paper in some
language. However, as per Section 3, it means any matter expressed or described upon any
substance, paper, stone or anything by means of letter or marks. It includes milkmans
score; exchequers tallies a ring or banner with an inscription, a musical composition, a
savage tattooed with words intelligible to himself. It also includes letters or marks

imprinted on trees. With technological advancement a video recording, a tape recording,

electronic mails are all considered to be documents.
19. Evidence: The word evidence is derived from the Latin word evedei meaning evident, clear,
apparent or straight. Thus under S. 3 of the Act, Evidence includes 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. It also includes all kinds of
documents (i.e. electronic records also) produced for inspection before the Court.
20. The following cannot be construed as evidence before the Court:
i. Statement before the police
ii. Comments before the court under S. 313 of the CrPC as not under the oath.
iii.
Any statement made in the presence of a police officer under section 25 shall not be
recorded as evidence as not under oath.
iv. Statements made by the accused cannot be considered as evidence as the section
clearly provides that only the statement of witnesses shall be regarded as evidence.
For an accused to be allowed to give evidence before the court, he needs to make
an application to the Court and be under an oath. However, this is rarely done as the
accused will have to face a cross-examination if he wishes to testify.
21. Instruments of Evidence:
i.
Oral evidence as stated by the witnesses
ii.
Documents
iii.
Real Evidence or A Topic Evidence: where the Judge himself perceives in the course
of the trial on the basis of demeanour of the witnesses, visiting the site at which the
offence was committed, in respect of the injuries etc.
iv.
Video recordings, etc.
22. In the case of N. Jayarman v. State of TN & Harischandra v. State of Delhi it was held that
the maxim falsus in uno falsus in omnibus which means that if a thing is false in respect of
one, it must be taken as false in respect of all, shall not occupy the status of law in India and
it is the duty of the Court to make a difference between each element of fact produced
before it. It is however considered to be a rule of caution. (Kulwinder Singh v. State of
Punjab).

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DIFFERENCE BETWEEN PROVED, DISPROVED AND NOT PROVED

S. No.
1.

Basis of
Distinction
Nature

2.

Judgment by
Court

3.

Illustration:
A is accused of
murdering B on
F.C. Road.
A states that at
the time of the
commission of
the offence he
was taking a
medical test at
Ratna Hospital
and provided
medical reports.

Proved

Disproved

Not Proved

It is a positive
term which the
court takes into
consideration to
come to a certain
conclusion to its
satisfaction
When a fact is
proved, the Court
gives the
judgment in
favour of the
person who
proves the facts
on basis of some
oral or
documentary
evidence.
The Court
believes this
circumstantial
evidence and
acquits A.

It is a negative term
and is the converse
of proved i.e. it is
not to the
satisfaction of the
Court. It is akin to
being false.
When a certain fact
is disproved no
further question
arises about its
further proof.

It is in between
proved and
disproved
depending on the
facts and
circumstances of
the case.
Chances of
providing further
evidence to prove
such a fact is
possible.

The Court checks the

same with the
hospital, which has
no records of such
patient. The alibi is
disproved

A takes the plea

of taking a
medical test but
does not produce
any evidence to
substantiate the
same.
Thus, the
statement of the
accused is still
not proved but
may be proved in
due course.

3.1.2: Probability Test: Presumptions

1. The law of evidence provides that a court can take into consideration facts even without
calling for proof i.e. they may presume some facts.
2. In the law of evidence presumption means an inference, affirmative or negative, of the
existence of some fact, drawn by judicial tribunal, by a process of possible reasoning from
some matter of fact which is judicially noticed or admitted or established by legal evidence
to the satisfaction of the court.
3. The inferences or presumptions drawn are based on the wide experience or the existence
of some nexus between the facts.
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4. Presumptions may be drawn from the course of nature, the course of human affairs, from
the usage in society and transaction in business. For example, from the fact that a letter has
been posted, a presumption may be made that it reached the addressee OR A owns a
watch which is stolen and B has possession of the same watch. It may be presumed that
either B stole it or received it from a thief knowing it to be stolen.
5. Presumption is of 3 kinds: (1) Presumption of fact or natural presumption; (2) presumption
of law (Irrebuttable or rebuttable); (3) Mixed presumptions or presumptions of fact and
law.
6. Presumptions of fact are inferences which are drawn naturally from the observation of the
course of nature and the constitution of the human mind. EX: Certified copies of foreign
documents or maps; books, maps or documents of public usage when published the court
shall presume that the person who published did the same.
7. Presumptions of law are of 2 kinds: (1) Irrebuttable or Conclusive; and (2) Rebuttable.
i.
Irrebuttable Presumptions: They are those legal rules which are not overcome by
any evidence that the fact is otherwise. This kind of presumption of law is
conclusive. EX: In a criminal case, a child below the age of 7 years shall be presumed
to be innocent. No evidence to prove he was guilty shall be allowed before the
court.
ii.
Rebuttable Presumptions: They are certain legal rules which require a certain
amount of evidence to support the allegation. Such presumptions may be rebutted
by evidence of facts to the contrary. Such presumptions are conclusive in absence of
such evidence. EX: a man is presumed to be innocent until he is proven guilty; a
child when born in legal wedlock shall be presumed to be legitimate.
8. Mixed Presumptions: of law and fact are chiefly confined to English law of real property and
the same is not provided for in Indian law.
9. May Presume: Whenever the court may presume a fact, the Court may take notice of the
fact without taking proof or may call upon a party to prove the fact. The Court has
discretion to presume a fact or not to presume it. EX: A document which is 30 years old is
produced from proper custody, the court may presume that the document was signed and
written by the person who purported the document.
10. Shall Presume: The court cannot exercise its discretion when the words of a provision have
the words shall presume. The Court in such a case will be compelled to take a fact as
proved. The Court will be at a liberty to allow the party to adduce evidence to disprove the
fact so presumed if the party is successful in doing so.
11. Conclusive Proof: When a fact is a conclusive proof of another fact, the court has no
discretion at all. It cannot call upon the party to prove nor call the opposing party to
disprove the fact. EX: when the court in one case concludes that A is the wife of B and in
another case it is questioned as to whether A and C are married. It shall be considered to be
conclusive proof from the earlier case that A is married to B.
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DISTINCTION BETWEEN PRESUMPTION OF FACT AND PRESUMPTION OF LAW

S. No.
1.
2.

3.
4.

5.

6.
7.

Presumption of Fact
It is based on logic, human experience
and laws of nature
It is always rebuttable and goes away
when explained or rebutted with
positive proof.
Its position is uncertain and transitory
The court can ignore such
presumption however strong it might
be.
It is derived from the laws of nature,
prevalent customs and human
experience
The Court can exercise its discretion
while drawing such presumption.
Examples: when a person is missing
for 7 yearshe is presumed to be dead,
a child below the age of 7 years is
presumed to be innocent and cannot
be proven to be guilty.

Presumption of Law
It is based on provisions of law
It is conclusive unless rebutted as
provided under the rule giving rise to
presumption.
It is uniform and certain.
Courts cannot ignore such
presumption.
It is derived from established judicial
norms and has become a part of legal
rules.
The court is bound to draw such
presumption and it is mandatory.
Example: whatever has been told to
the telegraph office is told to the
receiver; certified copies of foreign
documents are presumed to be right.

3.2: Sections 5-16

1. Section 5
i. It declares that in a suit or proceeding evidence may be given of the existence or nonexistence of (1) facts in issue, and (2) of such other facts as are declared to be relevant in
S. 6- 55 and of no others.
ii. Thus, it explicitly excludes all that which is not mentioned in Ss. 6 to 55. A party trying to
adduce evidence has to show that such evidence adduced is relevant under any of the
sections as mentioned. All evidence excluded by the Act shall be inadmissible even if it
helps in the ascertainment of truth.
iii. The Court must thus come to a conclusion by confining and considering itself strictly to the
provisions of the Act and come to the conclusion of the relevancy of a fact on basis of the
Act and not by way of common sense or otherwise.
iv. A court cannot on the basis of public policy exclude evidence relevant under the Act.
v. Relevancy is a question of law to be decided by the Judge and shall be decided when raised
and not when the judgment is being given. If there is a doubt with regard to the relevancy,
the Court must declare in favour of the relevancy rather than irrelevancy.
vi. Evidence that is partly relevant and partly irrelevant, if inseparable shall be declared as
wholly inadmissible. If separable on the other hand, the relevant evidence can be
separated from the irrelevant evidence, then only the relevant evidence shall be
admissible.

13

vii. If the evidence is irrelevant and admitted it can be objected to at any stage even in the
highest appellate court. However, if the evidence is relevant and the proof is improper
and the evidence is admitted, no objection can be raised.
viii. The question of relevancy being a question of law may be raised at any stage, however the
question of proof being a question of procedure can be waived.
ix. In case of a document, if it is admitted as an exhibit, no objection can be raised. Any
objection shall be raised before the marking of a document as an exhibit. Thus a
document cannot be de-exhibited at a later stage on the ground that it is not legally
proved.
x. In the explanation to S. 5 it is clearly stated that a person has the right to present evidence
in a Court of law if that evidence is relevant under S. 6- S. 55; however, if some provision
of the CPC disentitles a person to give evidence with respect to a particular fact, he will
not be entitled as of right to adduce evidence in that court. For example, a document
which has not been submitted to the Court at the time of filing of the suit cannot be
brought before the Court at any later stage.
DISTINCTION BETWEEN ADMISSIBILITY AND RELEVANCY
S. NO.
1.
2.
3.

4.
5.

ADMISSIBILITY
It is not based on logic but strict rules
of law
The rules of admissibility are
described after S. 56 of the Act
The rules of admissibility are to
declare whether certain type of
relevant evidence is to be admissible
or not.
Admissibility is means and of modes
for admissibility of relevant evidence.
The facts which are admissible are
necessarily relevant.

RELEVANCY
It is based on logic and probability
The rules for relevancy are
described in Ss. 6 to 55.
The rules of relevancy declares
what is relevant.

Rules of relevancy are where

evidence is admissible.
The facts which are relevant are not
necessarily admissible.

2. Section 6: Principle of Res Gestae

i.
It states that the facts which are so connected with the facts in issue that they form
a part of the same transaction are relevant facts. Ss. 6-9 lay down the various ways
by which the facts are connected to principal facts thereby making them relevant.
Hearsay evidence under this section shall be relevant if it forms a part of the same
transaction. Thus res gestae is an exception to the rule of hearsay evidence not
being admissible. (Gentala Rao v. State of AP)
ii.
Same transaction has not been defined anywhere in the act but Stephens states that
a transaction is a group of facts, connected together to be referred to by a single
legal name whose subject of enquiry is an issue.
iii.
The test to determine whether a fact forms a part of the same transaction depends
on whether they are related to each other in point of purpose, cause and effect, as
probable or subsidiary acts to constitute one continuous action.
14

iv.
v.
vi.
vii.

viii.

ix.
x.

xi.

xii.

xiii.

xiv.

xv.

xvi.
xvii.

To ascertain whether a series of acts are parts of the same transaction, it is essential
to see whether they are linked together in such a way to form a continuous whole.
This section is based on the principle of res gestae.
The latin word res means thing and res gestae means things done, transaction or
essential circumstance surrounding the subject.
This has been used in 2 senses. In the restricted sense it means worlds happenings
out of which the right or liability in question arises. Thus it should be so connected
to the transaction to form a part of such transaction. In the wider sense, it covers all
the probative facts by which res gestae are reproduced where the direct evidence or
perception by the Court is unattainable.
Example: A is accused for the murder of B by hitting him with a club. Therefore
whatever was done or said by A or B or by a by-stander during the beating or shortly
before or after such act will form a part of the same transaction and is therefore a
relevant fact.
Thus, it is to be noted that all action on part of the wrong doer after his actions have
ceased and some time has elapsed do not form a part of res gestae.
On the other hand, whatever may be said from the inception of the offence to the
consummation and whatever said in continuance of the transaction by the accused
form a part of the principle transaction and may be given as evidence as part of res
gestae.
Therefore it is necessary that the evidence must be of immediate casual relation to
the acts done and should not be broken by any voluntary evidence that a witness
manufactures himself.
When the transaction consists of a series of physical acts, in order that the chain
must constitute the same transaction, they must be connected by proximity of time,
proximity of place, continuity of action etc.
No uniformity exists in the length of time over which the transaction. The act or
transaction may be completed within a moment of time or over days, weeks or even
months depending from case to case. For example, in a oral contract, the
transaction may cover only a few minutes or may take weeks or months in case of
negotiations on the terms of the contract.
No limitation can be set on the boundaries within which the transaction can take
place. Sudden shooting or stabbing may occur in one room, however, rebellion may
cover the entire breadth of the country.
Words spoken by the person doing the act, the person to whom they were done or
the by standers plays an important role in forming a part of the same transaction.
They are admitted on the basis of them being closely connected to the principle act,
not being fabricated and not being a mere narration of the incident.
If a statement is made in answer to a question after a lapse of time, it shall not
amount to res gestae.
When a girl was raped and made a statement to her mother after the rape and
when the culprit had gone away and the girl comes home from the scene of
occurrence, it shall not be treated as admissible under section 6.
15

xviii.

xix.

xx.

FIR shall be treated as res gestae if the person witnesses the crime, he makes a cry
of such crime being committed to the people in vicinity and then goes to the police
to file an FIR. The fact that some time has elapsed from the occurrence of the crime
is immaterial.
Case: Mahendra Pal v. State
The place of murder was occupied by a number of people other than the deceased
and the eye-witness. These other people were informed by the eye witness of the
crime. The statements of such people were held to be admissible.
A assaults B, C and D shout that A is assaulting B. The fact that C and D were
shouting the same is admissible.

3. Section 7
i.
Facts which are connected to the facts in issue or relevant facts in the following
modes shall be relevant under this section :
a) The facts as being the occasion or cause of the facts in issue or relevant facts.
b) The facts as being its effects, immediate or otherwise
c) Facts as giving opportunity for its occurrence
d) Facts as constituting the state of things under which the act has occurred
ii.
Section 7 is wider in scope than Section 6 as section 6 deals with relevant facts
whereas Section 7 provides for various classes of facts which become relevant.
However, both these sections go hand in hand.
iii.
Cause or occasion of facts: when the evidence relates to a set of circumstances
which constitute the cause or occasion or happening of certain facts is shall be
considered relevant. For example, A was killed by B. A refused to have sex with B on
his offer. A was alone at home at the time of her murder (being the occasion) and
her refusal on Bs offer being the cause.
iv.
Effect: An effect is the ultimate result of an act being done. It not only keeps the
records of the acts being done but also provides records for the nature of acts so
done. For example, tape recorded evidence may be provided to prove a bribe.
v.
Cause and Effect: These two elements go hand in hand. For example, A was killed by
B. A refused to have sex with B on his offer. A was alone at home at the time of her
murder (being the occasion) and her refusal on Bs offer being the cause. The effect
being A was killed.
vi.
Opportunity: The chance given to someone to commit an offence or carry out an act
or omission. For examples, a woman was alone in her house when she was raped is
admissible to show that it afforded opportunity to the person committing rape.
vii.
State of things under which the incident took place: the surrounding circumstances
under which a certain act took place, for instance the health of the deceased, the
relationship of the parties, etc. For example, A killed his wife B. Their relationship
was not cordial and they constantly fought. Moreover, she was having an extramarital affair. These are the state of things which constitute relevant facts under
this section.
16

viii.
a.
b.
c.

d.

e.
f.

Tape Recorded Events

By the amendment of 2000, a tape recorded statement can also be regarded as a
document and may be used as evidence.
Tape recorded evidence is considered to be res gestae under Ss 6 & 7 of the Act.
In the cases of: Pratap Singh v. State of Punjab, the plaintiff was the Chief Minister
and had accepted a bribe. The same was proved by way of tape recorded evidence
and was accepted by the courts.
R.M. Malkani v. State of Maharashtra and C.R. Mehta v. State of Maharashtra,
certain criteria were laid down for tape recordings to be accepted as evidence. They
are:
Identification of voices.
The conversation must be relevant to matter in issue.
Accuracy of the tape recording.
Possibility of tampering with the tape recording should be ruled out. The tape
should thus be sealed immediately and be opened only before the court.
This type of evidence may be used for contradiction, corroboration or acceptance.
This evidence is to be accepted with great caution and should be corroborated with
other evidence.

4. Section 8
i. It deals with the relevancy of motive, preparation and conduct.
ii. It lays down that (a) a fact which constitutes or shows a motive for any fact in issue or
relevant fact is relevant; (b) a fact which constitutes or shows preparation for any fact in
issue or relevant fact is relevant; (c) previous or subsequent conduct of any party or of
any agent to any party in a suit or proceeding, in reference to such suit or proceeding or
in reference to any facts in issue or relevant facts, are relevant provided such conduct
influences or influences the fact in issue or relevant facts; (d) previous or subsequent
conduct of any person an offence against whom is the subject of suit or proceeding, is
relevant provided such conduct influences or influences the fact in issue or relevant
facts; (e) statements accompanying and explaining facts- explanation 1; (f) statements
made in the presence and hearing of any person whose conduct is relevant provided
the statement affects such conduct- explanation 2.
iii. Motive: A motive is an emotion or desire which is the stimulus which causes or leads to
such acts. If such motive is brought before the Court, and there is no direct evidence of
the same, it has to be inferred by the court. Further, if such motive is proved, its
adequacy shall be decided upon by the Court (there is no standard rule for adequacy).
Absence of proving motive completely by the prosecution will lead to the accused not
being convicted. For example, in the case of State of MP v. D. Kumar, Munnibai was
killed. Kumar was the tenant of the house of Munnibais father-in-law who had an evil
eye on her. Munnibai told her mother-in-law who told her husband. The father in law
asked Kumar to vacate the house. This was taken as motive for the murder.
iv. Preparation: evidence tending to show that the accused made preparation to commit a
crime is always admissible. Preparation only evidences a design or plan to commit an
17

act. Preparation is a admissible as it proves that the person has an intention to commit
the crime on the availability of an opportunity for its execution. Preparation along with
attempt is regarded as a crime. For example, A and B were accused of killing C, a guest
at their hotel. The night of the murder, the maids and the guard were sent away so that
no one would witness the murder. The next day she was asked not to clean their room.
This is relevant to show the preparation of the crime.
v. Conduct: Conduct is an important ingredient as regards the guilt of the state of mind which
is reflected in ones conduct. Conduct becomes wrongful when the element of mens rea
becomes very strong. Thus conduct is admissible when it directly influences the facts in
issue or relevant facts or in relation to a suit or proceeding. For example, the conduct of
an accused who is a conspirator but dead shall not be admissible. Previous attempt to
commit a crime shall be admissible. Absconding just after the occurrence of evidence
against him shall be admissible.
vi. Statements of a party to a proceeding accompanying and explaining the acts shall be
relevant only if explains the conduct of the parties. Further, such statement must
amount to a complaint to be considered as admissible or relevant. Such a complaint
must be voluntary and not an answer to a question.
vii. Statements affecting the conduct of a party to a proceeding shall be relevant. These
statements should be put before a court in the presence of the party.
For example, A kills B. C shouts stating that the police is coming to arrest the murderer.
A absconds. This would make Cs statement relevant.
5. Section 9
i. Section 9 provides the facts necessary to explain or introduce the relevant facts.
Accordingly, the following facts are relevant (SIR TIRE):
a. Facts which support an inference suggested by a fact in issue or relevant fact.
b. Facts which are necessary to introduce the fact in issue or relevant fact
c. Facts which rebut an inference suggested by fact in issue or relevant fact.
d. Facts which fix the time or place at which the fact in issue or relevant fact happened
e. Facts which establish identity of anything or person whose identity is relevant
f. Facts which show the relation of parties by whom any such fact in issue or relevant
fact was transacted
g. Facts which are very necessary to explain fact in issue or relevant fact.
ii. Facts supporting inference: these are the facts which are neither relevant as fact in issue
nor relevant fact as they only support an inference. For example, after murdering B, A
was seen running away from the village. Absconding supports the inference that A
might have committed the murder.
iii. Introductory Facts: The facts which are introductory of a fact in issue or relevant fact are of
great importance in understanding the real nature of the transaction. For example, C
sues D for a libel imputing disgraceful conduct to C. D affirms that the alleged matter is
libellous but true. Thus, the relation between the parties when the libel was published is
a relevant introductory fact.
18

iv. Rebutting Facts: When some facts contradict the fact in issue or relevant fact they become
relevant. For example, A is alleged of murdering B. A is seen to be driving away from the
scene of the crime. However, at the time of commission of the crime he was in a
business meeting with some clients (alibi). Thus, the alibis statement will be a relevant
fact.
v. Time and place: Facts which fix the time and place of the occurrence are relevant. This
becomes very important when the accused pleads alibi. For example, A is alleged of
murdering B. A is seen to be driving away from the scene of the crime. However, at the
time of commission of the crime he was in a business meeting with some clients (alibi).
Thus, the time and place becomes a relevant fact.
vi. Relation Facts: Facts showing the relationship of the parties becomes relevant.
vii. Explanatory Facts: there are many pieces of evidence which have no meaning at all if
considered separately but gain importance when so connected with other facts. Such
facts provide an explanation for the fact in issue or relevant fact. For example, A is tried
for a riot and is proved to have marched at the head of the mob. The cries of the mob
are relevant as explanatory of the nature of the riot.
viii. Identity of Things: when an identity of a thing is in question, every fact which is helpful in
identifying the same shall be relevant. For example, in a case where the was a murder
and robbery, the house lady was called to identify the articles of the deceased and
other belongings; Identification of the deceased was done by way of the clothes and
shoes he was wearing (Har Dayal v. UP)
ix. Identity of Persons: Test Identification Parade under Section 9:Principle
a. Identification of a person in certain cases becomes very necessary to prove fact in
issue or relevant fact. Thus the test identification parade (TIP) is important.
b. The Supreme Court in Ramanathan v. TN, stated that one of the methods of
establishing the identity of the accused is TIP. Further, the test enables the
investigating officer to ascertain whether the witness has really seen the accused at
the time of commission of the crime and also the capacity of the witness in
identifying the accused. Thus, TIP enables a witness to identify the culprit before the
Magistrate.
c. Prior to 2005, there was no provision for TIP in law. It was by way of amendment
that the same was included under Section 54A of the CrPC.
d. TIP helps the investigating authority and the accused.
e. Justice and fair play can be assured to both the accused and the prosecution.
f. Jarapala Deepala v. State of AP, the TIP does not constitute substantive evidence but
only corroborate any statements in court. Further, an accused on bail cannot be
excused from being subject to such test.
x. Identity of Persons: Test Identification Parade under Section 9: Procedure
a. The investigating authority should send a requisition to the concerned Magistrate
for conducting TIP of the accused person who is in jail or has been granted bail.
b. TIP is conducted by Executive Magistrates or Sub Divisional Magistrates.
c. The magistrate then informs the jail authorities to make necessary arrangements
regarding the date, time and day.
19

d. The Magistrate selects 2 persons who have no relation with the accused or the
witness called Punch Witnesses
e. Magistrate then selects dummy persons having similar appearances to that of the
accused. For every accused there should be 5 dummy persons.
f. The Magistrate then ensures that the accused and the witnesses sit in separate
rooms and also makes sure that the witnesses cannot meet the accused before
conducting the test.
g. The magistrate must also see to that the no third person or police officer is in the
room.
h. The magistrate also takes the precaution to ask the accused questions to give him
an opportunity.
i. If there is a distinguishing mark on any one of the persons, a bandage or some other
means should be used to cover it and the same should be done for all.
j. As soon as the witness identifies the accused, he must be asked as to why he
identified the said accused.
k. The entire process should be recorded by the Magistrate in the IP memorandum
along with time spent etc.
l. Objections, if any, by the accused are to be recorded.
m. After completion of the process, the Magistrate has to obtain the signature of the
Punch Witnesses on the memorandum along with his own signature, the day, date
and time.
n. The magistrate hands over the memorandum to the investigating authority to carry
on further investigation.
xi. Identity of Persons: Test Identification Parade under Section 9: Challenges
a. Police are present through the process.
b. Witnesses are shown the accused before the TIP
c. TIP is carried out by unauthorised persons
d. Mental conditions of the witnesses at the time of commission of the crime was not
proper,
e. Light conditions were bad
f. There was a delay on part of the authority in conducting the test. This would result
in doubt in the minds of the witnesses.
xii. A single testimony along with delay in conducting TIP will not be sufficient ground to
convict an accused.
xiii. If there is considerable delay in conducting the TIP and furthermore, the test was not
conducted properly, the accused shall be given the benefit of doubt. (Govinda v. State
of Maharashtra)
xiv. The purpose of TIP is to check the memory of the witnesses and also to benefit the
prosecution in deciding who shall be considered as an eye witness. (Heera and anr. V.
State of Rajasthan)
xv. Photo Identification: There is no stable provision for identification of a person by way of a
photograph by the witness. However, the same is done by the investigating officer at
times. Photograph of the suspect is not shown by the investigating officer to the
20

witnesses before the actual identification process. The same is required to be recorded
when the suspect is available for a video recording. The photograph is not to be
considered as accepted evidence. Further, identification of an accused after
considerable amount of time has elapsed will not be permissible.
6. Section 10
i.
Section 10 deals with the admissibility of evidence in a conspiracy case and is based
on the theory of implied agency i.e. every conspirator is an agent of this association
in carrying out the objects of the conspiracy.
ii.
Conspiracy as defined under Section 120 A of the IPC states that, When 2 or more
persons agree to do or cause to be done, an illegal act or an act which is not illegal
but illegal by its means, is said to be a conspiracy. Provided that no agreement other
than an agreement to commit an offence shall amount to criminal conspiracy.
iii.
Section 10 states that if there is reason to believe that 2 or more persons conspired
together to commit an offence, then anything (a) said, (b) done or (c) written by any
of these persons in pursuance of their common intention, is to be considered as a
relevant fact against each other to prove the purpose of conspiracy.
iv.
It was held in the case of Joginder Saraswati v. State of TN, that the first condition to
apply S. 10 is establishing the fact that a conspiracy existed.
v.
To establish a conspiracy the following need to be established:
a. There must be an agreement between 2 or more persons who are alleged to
conspire;
b. The agreement should be to do or cause an illegal act or an act which is not
illegal but pursued by illegal means.
vi.
If the said condition is fulfilled, then anything said, done or written by any of these
persons in pursuance of their common intention, is to be considered as a relevant
fact against each other to prove the purpose of conspiracy.
vii.
If anything said, done or written by any of these persons after the intention was
formed by any of them
viii.
It would also be relevant against another if anything was said, done or written if it
was after he left the conspiracy
ix.
Further, such evidence can only be used against a conspirator and not in his favour.
x.
Therefore anything said, done or written before the common intention was
established or after the conspiracy was over is irrelevant under this section. For
example, the Lamington Roads Case, one of the persons attached to the crime was
interrogated and he admitted to how the crime was committed. However, this was
not treated as a conspiracy as the conspiracy had already taken place.
xi.
Conspiracy under English Law and Indian Law:
a. English law prohibits common object, Indian law prohibits common intention.
b. In English law, if the person leaves the conspiracy, he will not be held liable
whereas it is not the case in Indian law.

21

xii.

CASE: Bhadri rai Case.

Facts: Bhadri was caught by the police for the possession of stolen ornaments in his
house. While being arrested he offered a bribe to the inspector. The inspector took
him to the police station. His friend Rajni also offered money to the inspector on
reaching the station to stop further proceedings.
Held: the Court held that when both the accused had approached the inspector to
bribe him, they conspired to bribe the police. The statement of their bribe showed a
common intention and hence was relevant against both.
7. Section 11:
i.
This section deals with facts which are otherwise irrelevant becoming relevant if:
a. They are inconsistent with the facts in issue and relevant facts
b. They make the facts in issue and relevant facts highly probable or improbable.
ii.
For example, the question as to whether A committed a murder at Cal on a certain
day is a fact in issue; the fact that he was in Lahore on the same day (relevant fact
and the fact that around the time when the crime was committed he was a distant
place would render it highly improbable to commit the murder.
iii.
Under section 32 of the act, a statement made by a dead man is inadmissible,
however, it what he says is immaterial but it is material that he said it, may be
admissible under Section 11 of the Act.
iv.
Under i (a) the proof of the existence of some fact becomes relevant as it disproves
the fact in issue. There are 5 classes of cases that are considered: plea of alibi, non
access of husband to show legitimacy of issue; survival of the deceased; commission
of the crime by a third person and lastly self-infliction of harm.
v.
The plea of alibi: The plea of alibi is when a person is charged with an offence at a
certain place; however he pleads that he was not at the location of the crime. It thus
becomes relevant for him to prove that he was not at the place of the commission
of the crime as is connected with the fact in issue which is the commission of the
crime. However, at the same time it is necessary for the prosecution to continue
proving the case at hand. For example A is alleged to have murdered B at Pune. A
was at Bombay at the same time. A being at Bombay becomes relevant.
vi.
Non access of a husband to show legitimacy of an issue: if for example A has a baby
C 6 months after her marriage, B her husband believes that the child is illegitimate.
It would be relevant for him to prove that he had no access to his wife before the
wedding.
vii.
Survival of the deceased: If A is accused of murdering B on 10 October 2010, and A
deposes that he saw B on the 31st of October. Such information would be relevant.
viii.
Commission of a crime by a third person: A is charged with the murder of B.
However A can prove that C murdered B, because the fact that C murdered B is
brought forth now becomes relevant.
ix.
Self infliction of harm: A is charged with the murder of B. A can prove that B
committed suicide which resulted in his death. Evidence of the same can be brought
by way of S. 11
22

x.

xi.
xii.

Under i (b) facts are relevant only because only if they are proved either they
become highly probable or improbable regarding the existence or non-existence of
the fact in issue or other relevant facts. For example, A is charged with forgery. It is
tried to prove that he was in possession of other forged documents. Such evidence
will be admissible.
This sub clause deals with both the affirmation and negation of the fact in issue or
relevant facts.
If the facts are of little importance they will not be admissible under this section. For
example, mala fide intention in commission of a previous crime cannot be used to
prove mala fide intention in the present conviction. Furthermore, they should be of
a probability more than the standard probability.

8. Section 12
i.
This section deals with the determination of damages when a suit for damages is
claimed by the party to suit. In such a suit, facts which are evidence tending to
determine i.e. increase or decrease, the damages is admissible.
ii.
The court can determine the amount of damages in an action based on the tort
committed or the contract entered into.
iii.
Section 55 of this Act lays down certain conditions under which evidence of
character may be given in civil cases to affect the amount of damages.
iv.
Section 73 of the Indian Contract Act, states the rules governing damages in respect
of a contract.
v.
For example, in a suit for libel the defamatory statements made before or after the
commencement of the suit can affect the amount of damages.
vi.
Damages are of 2 types: General Damages (which are a result of the wrong
complained of) and Special damages.
vii.
Other kinds of damages are:
a. Nominal damages: which are given in order to recognise the rights vested in a
person.
b. Contemptuous damages: damages given when even the plaintiff is wrong.
c. Aggravated or Exemplary damages: damages given on the degree of the damage
caused to the person.
d. Prospective damages: the trouble that would be faced in the future will be taken
into consideration which accounting for damages.
viii.
Sheikh Gaffur v. State of Maharashtra: in this case, the plaintiff had a field of crops
which were damaged. Compensation was awarded taking into consideration the loss
of profits in case of good crops (prospective damages)
ix.
A photographer in a marriage was absent. Exemplary damages were awarded taking
into consideration the feelings of the bride and bridegroom
x.
Factors to be taken into consideration while awarding damages:
a. Attendance expenses
b. Interest thereon
c. Earning capacity of the person aggrieved
23

xi.

d. Loss of consortium
JUSTICE DIPLOX FORMULA: A low interest rate is used due to the conversion of
future earnings to the present value. This formula was used in the case of GM of
RTC, Trivandrum v. Meenakshi Thomas.

9. Section 13
i. When there is a question with regard to the existence of any right or custom, the
following facts are relevant:
a. Any transaction by which the right or custom in question was created, claimed,
modified, recognised, asserted or denied or which was inconsistent with its
existence may be proved.
b. The particular instances in which the right or custom was claimed, recognised,
exercised or in which the existence was disputed, asserted or departed from,
may be proved.
ii. A custom is a particular rule which has existed from time immemorial and has
obtained the force of law in a particular locality.
iii.
For a custom to be valid in India it must have 4 essential attributes: (1) it must be
immemorial; (2) it must be reasonable; (3) it must have continued without
interruption from its inception; (4) it must be certain in respect of its nature.
iv. Further, it must be both compulsory and optional, it must be certain and constant; it
must not be forbidden by law and lastly it must not be against the morality or public
opinion.
v. Kinds of Customs:
a. Private Custom: is that custom which governs a particular family such as the
custom of an estate
b. General Custom: those customs which are common to any considerable class of
persons (Section 48). They are: Local Customs (deshachar i.e. Persons in the
region of Bhuj, Kutch, Gujarat etc. are originally Mohammedan but they follow
the Hindu religion in waqf property); Caste or Class Custom (it governs persons
belonging to a particular caste or class for example, Gujaratis condemn eating
non-vegetarian); and Trade customs.
c. Public Customs: there is no exact definition of such kind of custom and there is
no difference between general custom and such type of custom.
vi. Usages are habitual in nature and this may not be practiced from time immemorial.
vii. Right as defined by the Courts is said to include all types of rights: rights of
ownership, easementary rights; public rights, private rights and corporeal and
incorporeal rights.
viii. A custom is a mixed question of law and fact. First certain facts need to be proved to
further prove the existence of certain customs which may be inferred from the facts
proved.
ix.
A custom may be proved in the following ways:
a. By opinion of person who are likely to know of their existence and having special
knowledge thereof.
24

x.

b. By statements of persons who are dead or whose attendance cannot be

procured without unreasonable delay or expenses, provided they were made
prior to any controversy taking place and were made by persons who would
have been likely to have been aware of the existence of such a custom
c. By any transaction by which the custom in question was claimed, created,
modified, asserted, denied or which was inconsistent with its existence
d. By particular instances by which a custom was claimed, recognised, exercised or
knowledge of its existence was disputed, asserted or departed from.
Judgments, orders and decrees are relevant to prove a custom but they cannot be
considered to be conclusive proof of the same. But when a custom has been
brought to the notice of the court and is judicially recognised, the same will obtain
the force of law over time.

10. Section 14:

i. Facts which show the state of mind, such as, the intention, knowledge, negligence,
ill-will, good faith, rashness or bodily feelings are relevant when such state of mind
or bodily feeling is in issue or relevant.
ii. The state of mind of a person or accused can be proven in the following way:
a. It may be proved by way of a statement by the person whose mental condition is
in dispute (which is unreliable in most cases).
b. The mental and physical conditions of the person may be proved by the
evidence of other person who is well aware of the mental conditions or bodily
feelings by conduct or correspondence. (physical and psychological facts)
c. By way of evidence of all simultaneous manifestations of the given condition, by
conduct, conversation or correspondence as part of the res gestae.
d. By way of any collateral evidence to prove the state of mind of the person in
question.
e. By way of similar acts done in the past the state of mind may be proved which is
admissible however the similar acts to prove the facts in issue or relevant fact is
inadmissible.
f. Both previous and subsequent events are admissible to prove the state of mind.
However, previous events are of importance as they show the influences on the
state of mind in the investigation at present.
g. Mens rea required to be proved in certain circumstances as stipulated by the IPC
may be proved by way of circumstantial evidence.
h. Any fact that proves guilty knowledge may be proved and will be relevant.
i. Statement by an accomplice may be admissible only if it is used to corroborate
direct or indirect evidence connecting the accused with the crime.
iii.
Examples: receiving stolen goods knowing them to be stolen; fraudulently delivering
them to another person; dishonest misappropriation of property; shooting a person
with intent to kill him.
iv. A is charged with sending threatening letters to B. The letters sent by A may be
proved as showing the intention in the letters.
25

v.
vi.

vii.

Explanation 1: the relevant state of mind should be shown not to exist generally but
with respect to the fact in issue and relevant facts.
Explanation 2: in the trial of the accused where the previous commission of an
offence is relevant, the previous convictions of the accused person shall also be
relevant.
For example, A is tried for the murder for intentionally shooting B. In this case
intention would be material. If A shot B accidently, some minor offence would be
said to have been committed. The fact that on other occasions as well, A tried
shooting at B and kill him thereby would prove murder. If A was in a habit of
shooting people will not prove his intention to kill B. He must have shot others
intentionally, however shooting B may have been accidental.

11. Section 15:

i. It lays down the rule of admissibility of evidence in cases where the question is
whether a particular act was done accidentally, intentionally or with knowledge.
ii. It is necessary that all the acts form a part of a series of similar occurrences because
if the act was not accidental, it must have been done intentionally or with
knowledge.
iii.
Section 15 states that of the question is whether an act was done intentionally or
accidentally and there is a series of similar occurrences or events and the same
person is involved it shall be relevant.
iv. For example, A is accused of burning down in house in order to obtain the money
for which it is insured. The fact that A lived in several houses successively, each of
which caught fire thereby resulting in A receiving the insured sum is relevant
because it shows that the fires were not accidental and was done intentionally.
v. Similar facts under this section are admissible only if it is shown that (1) it is shown
that the acts are of the same specific kind; and (2) they formed a part of a series of
occurrences in each of which the person committing the act was concerned.
vi. One single instance cannot constitute a series of similar occurrences and so will not
be admissible.
vii. The acts tendered as evidence should have been done proximately to the time of
the act in question.
12. Section 16:
i. Section 16 lays down that whenever there is an act in question, whether the
particular act was done when the existence of any course of business is natural to
produce a certain result, the mere proof of the existence of such course of business
will give a presumption that the result was produced.
ii. For example, a question as to whether a letter reached B is posed. The fact that it
was posted in due course of the business and was not returned by the Dead Letter
Office is relevant.
iii.
This section does not compel a court to presume and does not declare the same as
inevitable but permits the court to make an assumption if necessary.
26

iv.

v.

Course of business means any professional or mercantile transaction of a business.

It is done by a private person or by public officials. Therefore it is generally
presumed that the conduct of people in official and commercial matters is uniform.
Thus the natural course of business in a certain transaction is relevant and may be
admissible under section 16.

3.3: Admissions:
1. Ss. 17 to 31 deal with admissions and confessions. Confession is a kind of admission.
2. Section 17 defines admissions as , An admission is a statement which:
i. Suggests an inference to a fact in issue or relevant fact
ii. Is oral or documentary or contained in electronic form
iii.
Is made by any person under certain circumstances.
3. Principles of Admissions:
i. A person by way of admission, admits his liability because the statement results in
the inference of such liability
ii. It is the last piece of evidence against the person making it. It is however, open to
the person making the admission to show why the admission should not be acted
upon.
iii.
If the person voluntarily admits something before the judicial or quasi-judicial
authority and such statement is not retracted before being acted upon by the other
party, then it acts as an estoppels on the person making it.
iv. Admissions are grouped under 2 heads: (1) Civil Cases [ss. 17- 23 & S. 31]; and (2)
Criminal Cases (recorded as confessions) [ss. 24- 30]
4. Thus in civil and criminal matters where admissions are recorded, they are in the form of
judicial and extra-judicial admissions.
5. In judicial admissions, the formal admission is addressed to the court and is a part of the
proceeding. It is made on record in file of the court.
6. Evidentiary Value of Admissions:
i. The SC observed in the case of Banarai Das v. Kashi Ram, that admissions are a very
weak kind of evidence and the court may reject them if they are untrue.
ii. Further in the case Rakesh Wadhwar v. J.I. corporation, the SC held that admissions
are not conclusive proof of the matter admitted unless they operate as estoppels.
Therefore the value of evidence depends on the circumstances under which they
are made and also by whom it is made.
iii.
If one party in a suit proves that the other party has admitted his case then the work
of the court becomes easier. But in a certain case, admissions may be used in
discrediting the parties statements. Thus the evidentiary value of admissions is
based on the circumstances in which they are made.
7. Sections 18, 19 and 20 list the classes of people who may be allowed to make admissions in
the course of the proceedings. Proceedings under these sections can be both civil and
criminal in nature.
27

8. These sections list the following people whose statements as admissions shall be relevant
when given:
i. Parties to the proceedings (s. 18)
ii. Agents authorised by the parties (s. 18)
iii.
Persons occupying representative character (s. 18)
iv. Persons having pecuniary interest(s. 18 (1)
v. Persons from whom parties derived interest(s. 18 (2))
vi. Persons whose position is in issue or relevant to the issue (s. 19)
vii. Persons expressly referred to by the parties in a particular suit (s. 20)
9. Admission by parties to proceedings: Parties include not only those who appear on record
but also the persons who are interested in the subject matter of the suit. Hence they are
considered as real parties.
10. Depending upon the circumstances, the statements made by the parties interested and
persons from whom they derive interest are admissible if they are made during the
continuance of the interest of the person making the statements.
11. It is also observed that statements made agents are admissible against the principal
according to the law of agency because the agent has express or implied authority to make
certain statements. In short, the agency must be proved before the admissions of the agent
(Kedar Nath v. State of WB)
12. When a party sues or is sued in a representative capacity, for example, as a trustee,
executor or the like, the representative is different from the ordinary capacity and only
admissions made in the former capacity shall be admissible. Further, such statements are
not admissible in a suit against him in his latter capacity.
13. Section 18 (1) speaks about the admissions made by the persons who are jointly interested
in the suit. Such joint interest needs to be proved independently from the admissions
made. Such joint interest may be of proprietary or pecuniary nature. Only when such case
of joint interest which is prima facie is proved will the statement of admissions be relevant.
For example, certain good were consigned for carriage, thus both the consignor and
consignee have an interest in the goods and therefore a joint interest.
14. Section 18 (2) speaks about the admissions for the person from whom the interest is
derived but the statements made should be made to be in continuance of the same
transaction.
15. Thus, section 18 considers only 2 important things, namely, the admissions by the agent
and the admissions by the persons interested.
16. Section 19 takes into consideration the statements made by persons whose position or
liability is necessary to prove as against any party to the suit as admission. For example, A
undertakes to collect rents for B. B sues A for not collecting rent from C. Under these
circumstances, a statement by C stating that he owed B rent is an admission and may be
relevant fact that can be used against A.
17. Section 20 is another exception to the general rule. When a party refers to a third person
for some information to have some opinion on the matter in dispute, the statements by
such 3rd person are receivable as admissions against the person referring. Thus depending
28

upon the facts and circumstances, the person referred in the suit and admissions recorded
are relevant under this section. For example, Cs statement in the previous example.
18. Section 21 states that admissions are relevant and may be proved as against the person or
his representatives, but they cannot be proved on behalf of the person making it or his
representative interest except in the following cases:
i. When the statement is of such a nature as to be relevant as a dying declaration u/s
32.
ii. When it consists of a statement of the existence of a bodily feeling or state of mind
u/s 14 of the Act and is also recorded as an admission.
iii.
If the statement is relevant otherwise than as an admission
19. The admissions of law are not contemplated under this chapter, only the admissions of fact
may be questioned.
20. Section 22 of the Act states that oral admissions as to the contents of a document are not
relevant. The contents of the document are proved by itself and not by means of oral
evidence. There are 2 exceptions to this rule:
i. When a person is entitled to give secondary evidence of the contents of some
documents he will be entitled to rely on oral admissions; and
ii. U/s 65 secondary evidence of the contents of a document can be given when the
original is lost or destroyed or when it is in the possession of the opposite party and
so on.
21. Oral evidence of admission may also be given in respect of a document when the
genuineness of the document is disputed.
22. Section 23 deals with admissions in civil cases. For the purpose of compromise, negotiations
may take place out of the court between the parties. During the process of negotiation,
parties make many statements. If such statements are allowed to be proved in the court,
then it will be impossible for parties to negotiate and reach a compromise. Further, these
statements will not be admissible as evidence.
23. Essential conditions for protection under S. 23 to be made applicable are:
i. There must be a civil dispute in question
ii. Negotiations should have taken place between the parties
iii.
Negotiation should have taken place out of the court
iv. There must be an express condition from which the court can infer that the parties
had entered into negotiations.
24. An admission should be used as a whole and not in part. An admission made by a person
cannot be split up and part of it may not be used against him. If there is some other
evidence which disproves a part of the admission, the other part must be relied upon.
25. Under the explanation under S. 23, the legal advisor of the party will not be prevented from
giving evidence of any communication made in furtherance of any illegal purpose or any
fact showing that crime or fraud has been committed since his employment.
Confession (If question comes in the paper mention all sections)
Sections 24 to 27 deal with Confessions. There are 2 broad heads under which confessions may be
studied. They are as follows:
29

Confessions

Theory

Procedure (Part I and II)

Theory:
1. Generally speaking, an admission by an accused in a criminal case, admitting his guilt is
known as a confession. (Sahu v. UP)
2. Stephen in his Digest of Law of Evidence, defined evidence as an admission made at any
time by a person charged with a crime stating or suggesting the inference that he
committed the crime.
3. Thus according to Section 24 for a statement to amount to a confession, the following
conditions need to be fulfilled:
i. The statement made is a confession
ii. Such confession is made by the accused
iii.
He states that he committed the crime that he has been charged with
iv. He makes a statement which he does not clearly admit his guilt, yet an inference
may be drawn that he may have committed the crime.
4. Section 24 states that a confession in a criminal proceeding is considered irrelevant if it
appears to the Court that such statement has been caused by: inducement, promise or
threat from a person in authority by supposing that he would gain an advantage or avoid
any evil in reference to the proceedings against him.
5. Confessions play an important role in criminal proceedings; however the confessions should
be made voluntarily and free from any pressure to be accepted by the Court. (Francis
Stanley v. Narcotics Bureau)
6. It is under the following conditions that a statement will be considered not to be voluntary:
i. If the confessions are a result of a threat, promise or inducement
ii. If the same have been proceeded from a person in authority.
iii.
Confessions relates to the charge in question.
7. For example, the accused sustains an injury. He was examined by a doctor before whom he
stated the cause of the injuries. It was held not to be a confession and thus not hit by the
provisions of the act.
8. A confessional statement not retracted by the accused even at the later stage of the trial in
his examination u/s 313 of the CrPC (Power to examine the accused) can be fully relied
upon.
9. The murmuring of the accused all alone to himself that he committed the crime for which
he has been tried was held to be a confession in the case of Sahu v State of UP.
10. The principle underlying this section is that no one will voluntarily make any statement
which is against his interest unless it is true.
11. The inducement, threat or promise may be express or implied or depending on the
circumstances of the case. Further it need not be made by the person in authority directly.
30

Such kind of confession which is induced, in threat or out of promise shall not be
considered as evidence.
12. If the confession is made by the accused before a person in authority on oath such
confession shall be considered as non-voluntary. Giving an oath would be considered as a
concealed threat.
13. Such involuntary nature does not need positive proof, as long as this is apparent to the
court. The Judge may conduct an inquiry into such confession made if it is challenged by the
defence as being of involuntary nature. Sometimes the involuntary nature of confessions
may be seen by the Judge on the face of it without any direct proof.
14. The accused has a right and the court has a duty to exclude confessions made by way of
inducement, etc. suo moto. However, there is not burden of proof on the prosecution to
prove that such statement of confession was done voluntarily.
15. The inducement etc. should be in respect of the charge against the accused and done in
order to help him escape such charge, avoid some evil or gain some advantage.
16. In the case of Ram Din v. Emperor, it was held that restricting the definition of person in
authority under section 24 to police officers or the magistrate would be restrictive and
hence will include one who by virtue of his position wields some kind of influence over the
accused. For example, master of the accused, zamindar of the accused, etc.
17. Section 24 applies even when the person makes a confession is not an accused at the time,
but after such confession being made becomes an accused.
18. The confession made is a very valuable piece of evidence and hence should not be made
under some influence. Thus it is very necessary that such confession is made voluntarily, it
is consistent and true. If such confession is wrong with respect to its material particulars,
the confession may be considered to be false.
19. If such confession is true, voluntary and genuine without reasonable doubt, it shall be legal
and have sufficient proof of guilt under ordinary circumstances.
20. The statement of confession shall be taken as a whole and not be considered in part.
However, there are 2 exceptions to this rule:
i. One part of such confession is inculpatory if there is evidence to prove its
correctness, and
ii. The part that is exculpatory is inherently impossible and thus rejected; the
inculpatory part shall be admitted.
21. Kinds of Confession: Judicial and Extra-Judicial Confession
22. Judicial Confessions:
i. Confessions which can be made to the court itself or to a Magistrate in the due
course of judicial proceedings under section 164 of the CrPC
ii. It can be recorded during investigation i.e. before the commencement of
preliminary enquiry of the trial.
iii.
For example, A is accused to have killed B. He may before the trial begins confess
guilt before some Magistrate who may record in accordance with the procedure OR
A confesses his guilt at the trial before a Sessions Judge will be said to be judicial
confessions.
31

iv.

Value of Judicial Confessions:

a. There is no hesitation to base conviction on judicial confessions.
b. However, in the absence of corpus delicti (body of crime) a confession alone
cannot suffice to justify conviction. (State v. Balchand)
c. Conviction can be solely based on confessions if it is proved that such confession
was voluntary and true. General corroboration to such confession may be
needed at times.
23. Extra-Judicial Confessions
i. They are confessions made elsewhere other than before a magistrate or judge. It
can be made to any person or body of persons and need not be to a definite
individual. It could even be in the form of a prayer.
ii. Confessions to a private person will be extra-judicial.
iii.
Further it should be made freely and without any guilt.
iv. It is not necessary for the witness to speak the exact same words, but there cannot
be a vital or material difference.
v. Communication of an extra-judicial confession is not a requisite. Therefore if
someone overheard one muttering to himself it would amount to a confession.
vi. Such confession must be accepted as a whole or not at all
vii. For example, if a person writes to a relative expressing his sorrow over a matter may
amount to extra-judicial confession; if one apologises for his acts to the person
against whom such crime is committed shall be an extra-judicial confession.
viii. Value of extra-judicial confession:
a. It is a weak piece of evidence and thus can be relied upon only when it is clear,
cogent, convincing and consistent. It must be received with great care and
caution.
b. It is for the court to decide whether the person before whom the confession is
made is a trustworthy witness as there being no record or sanction behind such
confession, it is a possibility that such witness is deposed to state that the
accused is guilty by the prosecution.
c. The prosecution thus is required to prove three things: the confession was
made; evidence to prove such confession was voluntary and that it is true
d. It must further be proved by some independent or satisfactory evidence.
(Gayaprasad v. State)
e. Actual words of the accused must be stated however, the substance being
present shall be considered by courts.
f. It must be established as to why the accused reposed confidence in the witness
while stating such confession.

32

24. DIFFERENCE BETWEEN JUDICIAL AND EXTRA-JUDICIAL CONFESSION

Basis of Distinction
1. Meaning

2. Proof

3. To Prove

4. Evidentiary
value

5. Evidentiary
result

Judicial Confessions
They are those which are
made to a Judicial
Magistrate or a court during
committal proceedings or
trial
U/s 80 of the Act, such
confession recorded shall be
considered to be genuine
and it would be adequate if
filed before the court.
To prove such confession,
the person to whom
confession is made need not
be called as a witness but
there may be some
exceptions
It may be relied on as proof
of guilt of the accused if it
appears to the court to be
voluntary and true.
A conviction may be made
on basis of such confession.

Extra-Judicial Confessions
They are those which are
made to any person other
than those authorised by law
to take confession. It made be
made to any person or the
police during investigation
Such confession may be
written or oral, the witness
may be called upon or the
document may be produced
before the court.
The person or witness to
whom such confessions are
made is called before the
court.

It cannot be relied upon by

itself and needs to be
corroborated by some
corroboratory or supporting
evidence.
It is unsafe to base a
conviction on such confession.

25. Retracted Confession:

i. It is a statement made by the accused before the trial begins by which he admits to
have committed the offence but he repudiates it during trial.
ii. During the investigation by the police officer, the accused is willing to admit his
guilt; the accused may be to a magistrate for the recoding of such confession. If the
magistrate is satisfied that the accused is guilty by way of his confession, which may
be proved at the trial stage.
iii.
During the trial, the accused on being asked may deny to have made such
statements to the magistrate.
iv. If this happens, the confession made by the accused to the magistrate before the
commencement of the trial is called retracted confession.
v. Retracted confession, even though made before the magistrate requires
corroboration to be relied on.
vi. There are no rules laid down with respect to retracted evidence, however practice
and prudence states that such kind of confession should be corroborated by
satisfactory evidence. However, each and every word of the confession need not be
33

corroborated and neither does such corroboratory evidence come from the
confession statements already made. (MH v. Pathak)
vii. If the rule required that each and every part of the statement be corroborated
separately, then each of those evidences together would form satisfactory evidence
to prove the guilt of the accused.
viii. For example, A committed a felony-murder of B. The accused is said to have
committed the murder of B and stolen jewellery as well. A confession statement
was made by A, however was retracted. It was later on proved that blood stains of
the victim on the clothes of the accused were found and jewellery was recovered
from the accused persons possession would be evidence enough to corroborate that
the accused had something to do with the crime. (Balbir Singh v. State)
26. Section 25 deals with confession of a police officer not to be proved cannot be proved
against one who is accused of a crime.
i. The accused while in the custody of a police officer is founded on the ground that
such confessions made may be untrustworthy. Further, such confessions made
should not be proved as it may result in admitting a false confession.
ii. The police officer may create terror in the mind of the accused by way of severe
torture leading the alleged accused being made to confess the commission of an
offence, thereby extorting false and involuntary confession.
iii.
For example, A is accused of murdering B and is arrested for the same. A confesses
to the police officer who arrested him of the commission of the crime. This
statement made cannot be used to prove the prosecutions case.
iv. To exclude a confession under s. 25, the question to be asked is to whom the
confession was made? If the answer to this is a police officer, the same cannot be
used as evidence because the person to whom such confession was made cannot be
relied upon and moreover, there may have been coercion by the police person to
obtain such confession.
v. A confession made to a police officer who is vested with the powers of a Magistrate
will continue to be inadmissible.
vi. If such confession is made before or after the investigation there will be no
distinction. Such confession will still be inadmissible as evidence.
vii. A statement made by one accused is inadmissible against the others accused.
viii. Further, such confession shall be inadmissible on the ground that at the time of
investigation, the person charged with the crime is allegedly accused of the same
and not the accused.
ix.
All statements made to police officers are not excluded under section 25, only those
which are in the form of confessions shall be excluded. Thus, the same can be
brought on record and proved against the accused. (Jailal v. Emperor)
x.
A confession made in an FIR cannot be used for any purpose in favour of the
prosecution and against the accused. However, statements made in favour of the
accused may be taken into account.
xi.
A police officer under this section is one who is vested with the power of conducting
investigation of the crime committed and initiating criminal proceedings against the
34

accused. For example, a person under the Narcotic Drugs and Psychotropic
Substances Act, is not given the power to investigate and neither does he have the
power to initiate criminal proceeding and therefore would not fall within the ambit
of S. 25 of the Act.
xii. For a person to fall under the category of police officer in this Section under any
other Special Act, he must be conferred with the powers as that vested in the police
officer by virtue of Section 173 of the CrPC.
xiii. An officer acting in the capacity of the Reserve Police would not come within the
meaning of police officer under this Section.
xiv.
In civil cases, an admission made before a police officer can be proved as an
admission.
27. Sections 26 of the Act deals with confessions of the accused while in the custody of the
police are not be proved.
i. The value of confession depends on the voluntary nature if the confession. Thus, no
confession which is made by any accused while in police custody can be proved
against him unless it was made in the immediate presence of the magistrate.
ii. The object of such section is to prevent the police officer from abusing his powers
and coercing the accused to admit the commission of the crime.
iii.
Kishore Chand v. HP, also states that a confession made whilst in the custody of the
police officer shall be excluded unless it was made in the immediate presence of the
magistrate.
iv. The word custody here means control and it includes any sort of restriction or
restraint imposed on the accused by the police officer either directly or indirectly.
For example, house arrest, preventing an accused from leaving the city, handcuffing,
etc. a police officer may not even touch a person but may keep him in control so
that he may not go away as he likes.
v. For the purposes of this section it does not necessarily mean physical custody.
vi. There are 2 things required to be proved to show custody:
a. There must be some control imposed on the movement of the confessioner.
b. Such control must be imposed by some police officer either directly or indirectly.
vii. If the confession is recorded by a II Class Magistrate the same will not be admissible.
28. Ss. 25 and 26 operate in different fields and are not applicable to disciplinary or
departmental hearings. (Kuldip Singh v. State)
29. Section 27 of the Act deals with how much information received from the accused may be
proved.
i. This section thus states that during the period of investigation or during police
custody, any information given by the accused to the police officer that leads to the
discovery of any fact, whether such information amounts to confession or not, may
be proved.
ii. This section comes into operation only:
a. if and when certain facts are deposed to as discovered in consequence of
information received from an accused person in police custody
b. If the information relates directly to the fact discovered.
35

iii.

The conditions necessary for the application of Section 27 are as follows:

a. Facts should have been discovered in consequence of the information received
from the accused.
b. The person giving such information must be the accused
c. He must be in the custody of a police officer
d. Only that information which relates to the fact discovered may be proved
e. The fact discovered must be a relevant fact and should relate to the commission
of the crime in question.
iv. Such facts should only be known to the accused, if such fact was known to any other
person, it cannot be said that such fact was discovered.
v. The statement of the accused is inadmissible in case the object with respect to
which the fact was discovered could be found at a public place.
vi. If the article or the fact is not concealed and in the normal course of investigation it
is bound to be found, it cannot be said that such information was recovered from
the accused.
vii. Inculpatory statements which are made to the police officer shall be considered as
evidence under this section.
viii. There is varying view as to whether section 27 is hit by A. 20 (3) of the constitution
of India. The majority view has held that section 27 is hit by the fundamental right of
the accused having the right to self incrimination.
ix.
Further, it has been question several times as to whether section 27 draws a
distinction between persons in custody and persons out of custody. It has been
stated that these two classes of people stand on a different footing and hence
would not be hit by Article 14 i.e. the right to equality amongst equals.
x.
Section 27 is often considered to be a proviso to sections 24, 25 and 26.
30. A confession which is inadmissible under section 24, 25 and 26 would be made admissible
under section 27 if the conditions as laid out in the section are fully satisfied. For example,
a confession had been made by A who was in police custody for the murder of B with a
dagger. He also stated that such dagger was hidden in the field near his house. The police
recovered the dagger and thus the information which was given to the police would be
considered as relevant under section 27.
31. Confession made after the removal of inducement is relevant under S. 28
i. If such threat, promise or inducement is seen by the court which had existed
previously has been completely removed, such confession will be admissible.
ii. There must be strong and cogent evidence that the influence of inducement has
really ceased.
iii.
Such inducement is considered to be continued until the contrary has been proven.
iv. For example, s maid was suspected of stealing. The mistress said that she would
forgive her if she told the truth. The next day no evidence was brought before the
Magistrate and she was let off. The next day she was arrestd. The police told her
that she was not bound to say anything, and whatever be said by her would be
heard by her mistress. She admitted to the theft, however this was held to be
36

inadmissible as she was under the influence that the mistress would forgive her for
telling the truth.
v. Such inducement, promise, threat is said to have been removed if it is shown that:
a. There has been a lapse of time;
b. By giving some word of caution by the superior authority to the person holding
out the inducement.
32. Section 29 further states that a confession otherwise relevant is not to become irrelevant
because
Of a promise of secrecy or by deceiving him or
when he was or drunk; or
it was made clear in an answer to a question which he need not have answered or
no warning was given to him that he was not bound to say anything and that
whatever he said would be used against him.
i. A confession obtained from the promise of secrecy is relevant under this section
ii. For example, A is accused of murdering B. C is a friend of As. While sitting by all
alone, C asked A is he murdered B. C swore he would not tell anybody. A confessed
the commission of the crime to C. This statement although obtained by a promise of
secrecy would still be relevant and may be proved under this section.
iii.
When a confession is made by an accused while he is intoxicated, it will be
admissible if he had not become quite senseless and was not obtained by any threat
or inducement while in the custody of or to a police officer.
33. Section 30 of the Evidence Act states that when more than one person is being tried jointly
for the same offence, the confession made by one such accused affecting himself and the
others is proved, the court shall consider such confession against that person and the
others.
i. For the purpose of this section offence includes the abetment of or the attempt to
commit the offence.
ii. For example, A and B killed C. B confesses that A and I jointly killed C. The court
may consider the confession against A also.
iii.
The principle underlying this section is that if a confession is made by one of the
persons amongst those who jointly committed the crime, it cannot be proved only
against him and should have an equal effect on all those involved in the commission
of the crime.
iv. It must be shown, in order to attract this provision that:
a. The person confessing the crime and the others are being tried jointly.
b. They are being tried for the same offence
c. The confession which will be taken into consideration shall affect the
confessioner and the others.
v. For example, if A, B and C committed a crime. A is arrested and B and C abscond. A
confesses the crime, and he is proved to be guilty. Later on B and C are found, As
confession cannot be used against B and C as they are being tried separately.
vi. For example, A and B are being tried for causing grievous hurt to C and D by and B
respectively. A confesses to have caused grievous hurt to C. It cannot be used
37

against B as the offence was not the same. But if A and B were both charged for
grievous hurt caused to C, then As confession would be used against both A and B.
vii. The confession by one person should implicate himself as well as the others.
viii. If a confession is retracted by the accused, there is no law in the Evidence act stating
whether such evidence may be used against the co-accused. However, such
evidence may not be retracted at all.
34. Section 31 states that admissions are not conclusive proof of the matters admitted, but
they may operate as estoppels under the provision of the Act.
i. Chk example in bareact
ii. If any facts show that the admission was wrong, then it would fail to have any effect.
It is only prima facie evidence against the party making the statement and the
burden of proof shifts.
35. Evidentiary value of an admission
i. It constitutes a substantive piece of evidence and can be relied upon to prove the
truth of the facts in such admission
ii. It is only prima facie evidence against the party making the statement and the
burden of proof shifts. In the absence of a satisfactory explanation, it is presumed to
be true
iii.
To have the effect as above, an admission should be clear, definite and certain not
ambiguous or confused.
iv. Admissions under this section and judicial confessions must be taken as a whole.
DISTINCTION BETWEEN CONFESSION AND ADMISSION
No.
1.

Basis of Distinction
Meaning

2.

Nature

Confessions
It is a statement of the accused
which is a direct acknowledgement
of his guilt which is applicable in
criminal law.
It is a species of admission

3.

Inclusion

All confessions are admissions

4.
5.

Relevant Section
Conclusive Proof

6.

Usefulness

7.

Role of co-accused

S.24 to S. 30
There is deliberate and voluntary
admission of the accused of the
commission of the crime and should
be conclusively proved
A confession may be used against a
person making it
The confession of co-accused when
jointly tried is relevant under S. 30
and is not substantive evidence

8.

Acid Test

Where a conviction be based on the

statement alone, it is a confession

38

Admissions
It is a statement of the person
against whom there is a case, in
a civil matter
It is the broader aspect of
admittance of statements
All admissions are not
confessions
S. 17 to S. 31
It is not conclusive proof of the
matter admitted however, it
may operate on estoppels
An admission cannot be used
against the person making it
Admission by one or more of
the defendants in a suit is no
evidence against the other
defendants
When some supplementary
evidence is needed to authorise
the conviction it is an admission.

3.4: Statements by persons who cannot be called witnesses

1. A fact to be proved by oral evidence must be stated before the court by a person who has
firsthand knowledge on the facts to be proved.
2. Second-hand evidence is loosely termed as hearsay evidence.
3. When a witness appears before a court to give evidence of his firsthand knowledge, he
takes an oath. Further, the opposing party has the right to cross examine him. At the same
time, he must give a testimony, which may expose him to all the penalties in case of
falsehood of such evidence.
4. Hearsay evidence is generally excluded on the following grounds:
i. He does not produce such evidence on oath
ii. The opposing party has no opportunity to cross examine him or the original source
of such information.
iii.
He is immune from all penalties of falsehood in such evidence.
5. The purpose and reason of the hearsay rule are based on 2 considerations:
i. The necessity for evidence
ii. A circumstantial guarantee of trustworthiness
6. However, there are certain circumstances under which there is an exception to hearsay
evidence which are as follows:
i. Necessity
ii. Special circumstances under which such evidence will be regarded as trustworthy
more than in general circumstances.
7. Sometimes it may be impossible to procure the attendance of a witness or result in
unreasonable expense who could have given direct evidence; the witness also could give
evidence either written or oral which may reasonably be presumed to be true and thereby
reliance can be placed on hearsay evidence.
8. There is an exception to the general rule that hearsay evidence would not apply which are
stated in section 32 and section 33 of the act. (Biro v. Atma Ram)
Section 32
1. This section states that statements, written or oral, of relevant facts made by a person
a. Who is dead
b. Who cannot be found
c. Who has become incapable of giving evidence
d. Whose attendance cannot be procured without unreasonable delay or expenses
according to the court
Shall be considered to be relevant in the following circumstances:
i.
ii.
iii.
iv.

When it relates to the cause of death; or

When is made in the course of business; or
When it is made against the interest of the maker; or
When it involves giving an opinion as to a public right or custom or matters of
general interest; or
39

v.
vi.
vii.
viii.

When it relates to the existence of a relationship; or

When it made in the will or deed relating to family affairs; or
When the document relates to a transaction mentioned in S. 13
When it made by several persons and expresses feelings relevant to the matter in
question.
2. For such statements to be considered admissible under this section, it is important to first
and foremost prove that the maker of such statements is either dead or for any other
reason is not available to be a witness.
3. A dying declaration is thus an exception to hearsay evidence when such evidence relates to
the cause of death or any circumstance of the transaction which results in the cause of
death and will be admissible as evidence.
4. A dying declaration would not lose its value on the ground that the person died long after
making such a declaration.
5. A dying declaration is an exception to the rule of hearsay evidence but is indeed substantive
evidence and thus requires no corroboration to determine the weight of such evidence. The
same shall be decided on by the facts and circumstances of each case.
6. It is necessary that one of the conditions in group 1 (a) to (d) and one of the conditions in
group 1 (i) to (viii) be fulfilled to attract Section 32.
7. Explanation to 1 (a) to (d)
i.
1 (a): Who is dead
a) Death of the person whose statement is to be proved must be strictly proved. Death is
considered to be sufficient to satisfy the necessity of the principle.
b) The statements of the dead are relevant as it is laid down that the a better evidence of the
same cannot be brought forth.
c) If a person making a dying declaration, survives, the same will not be admissible. It may be
admitted under any other section.
ii.
1 (b): Who cannot be found
a) If a person makes a statement and then disappears, he cannot be compelled to be a witness
later on. If such disappearance can be proved, then the statement made by him, if relevant
can be proved.
b) It must be proved that the person seeking to adduce such statement has made an honest
effort to examine the witness.
c) The only objection to such kind of evidence is that there may be a collusion of parties and
witnesses.
iii.
1 (c) Incapable to give evidence
Sometimes it so happens that a person who has given a statement earlier cannot due to
some physical inability becomes unfit to depose. Such a statement made earlier shall if
satisfies any of the provisions in 1 (i) to (viii) may be proved.
iv. 1 (d) Delay or Expenses
a) Procuring a witness may sometimes result in unreasonable delay or expenses who could
have given direct evidence; which may reasonably be presumed to be true and thereby
reliance can be placed on hearsay evidence.
40

b) For example in the case of Prithi Chand v. State, a doctor who had earlier given a statement
had left on a long holiday. The Judge stated that since her presence could not be secured
and would cause unreasonable delay, a certificate from another doctor would suffice.
8. Explanation for 1(i) to 1(viii)
i. Dying Declaration
a) A dying declaration is thus an exception to hearsay evidence when such evidence
relates to the cause of death or any circumstance of the transaction which results in the
cause of death either oral or written and will be admissible as evidence. The same shall
be relevant irrespective of the fact as to whether the person expected or was not
expecting his death.
b) In the case of Sharad Sarda v. State of MH, it does not matter whether the death was
caused by homicide or suicide, as long as the statement relates to the cause of death.
c) In the same case it was held that a person who is dying has no reason to present any
false statements before his death and thus there would be no need for him to be cross
examined and thus such evidence would be admissible.
d) There is a need to have an intention to use a statement as a dying declaration when so
made.
e) When there is more than one dying declaration, whichever fulfils all the criteria for such
declaration will be considered relevant.
f) The person making such declaration should have a fit state of mind and should be
certified by a doctor although this is only a rule of caution
g) The dying declaration has to be proved by the person who was present when such
statement was made in the case of oral evidence and if recorded then the person
before whom it was recorded should be available as a witness.
h) A dying declaration if incomplete will not admissible.
i) A dying declaration shall be open to impeachment in the same way as the testimony of
other witnesses. Impeachment may be shown if the following circumstances prevail:
Bad testimonial character is permissible
Conduct showing revengeful or irrelevant state of mind
Subsequent or prior inconsistent statement
j) A dying declaration recorded before a police officer or as an FIR is relevant and
admissible
k) A dying declaration will be regarded as tainted if there is any communication between
the deceased and the interested party
l) The requirements of oath and cross examination with regard to a dying declaration are
dispensed with.
m) There are two practical problems with respect to a dying declaration
Language in which it may have been made
The concerned person cannot speak

41

n) Difference between dying declaration under English Law and Indian Law

ii.

S. No.
1.

Basis of Distinction
Civil Cases

2.

Criminal Cases

3.

Actual danger of
death

English Law
It is not admissible
in civil cases
It is admissible in
homicide cases

It is necessary that
the declarant has
been in an actual
danger of death
after receiving
injuries but if such
statement is
incomplete it shall
not be admissible

Indian Law
It is admissible in civil
cases
It is admissible
irrespective of the
cause of the death as
long as there is some
nexus between
circumstances of the
death and the victim.
The declarants death
has to be established
and it is immaterial if
there was an actual
danger of death or
not. If the statement
is incomplete, it will
be inadmissible.

o) In the Kushal Rao case, certain principles were laid down which must be considered as a
ratio:
It cannot be an absolute rule of law that a dying declaration is the sole basis of
conviction unless it is corroborated.
Each case must be decided keeping in mind each of the facts and the
circumstances in which the dying declaration was made
While being judged the surrounding circumstances need to be taken into
consideration
The concerned court should always take into consideration that such dying
declaration is made before a competent magistrate and is in the form of
questions and answers. Further, as far as possible the declaration should be in
the words of the speaker.
p) In the case of Ashok Lakshman v. State, the above principles have been incorporated. In
this case, the deceased stated that the accused poured kerosene on her and lit a fire. It
was recorded by the Magistrate after getting the consent of her doctor as to her state
of mind. The doctor endorsed the declaration and the conviction of the accused was
held to be proper.
Statement made in the course of business
a) Statements made by the person in the course of business by a person who is dead,
cannot be found or his presence would cause unreasonable delay or expenses shall be
admissible.
b) The statement must relate to the course of business which may include: the declarants
signature on documents, entries made in the memorandum or books of the business,
42

c)
d)

e)
f)

signature of the person on receiving goods, to verify the date of commencement of

business by way of his signature, etc.
It need not be with respect to a particular transaction but a business or profession that
the deceased was generally engaged in.
Such statement can be oral or written. However, extrinsic evidence of the same needs
to be proved. When the statement is written, it is necessary that the handwriting of the
deceased needs to be proved and that it was indeed made in the ordinary course of
business.
Thus the authorship of the statement needs to be proved before it is considered
relevant.
Entries in the books are sufficient law themselves.

iii.

Statements made against the interest of the maker

a) Statements made by the person who is dead, cannot be found or his presence would
cause unreasonable delay or expenses shall be admissible if such statement is against
his proprietary or pecuniary interest or affects his personal liberty or property and if
true it would result in his exposure or even criminal prosecution against him
b) The facts and circumstances in which such statement was made shall be considered to
check whether such statement would affect his proprietary or pecuniary interest.
c) Further, if such statement is relevant, the whole statement shall be made admissible
and not part of the statement.

iv.

Statements made to form an opinion on a public right or custom

a) Where a person was likely to be aware about the existence of a public right or custom
and being so aware , he makes a statement on the opinion on the same before any
controversy with respect to such right arose, then his statement will be admissible
under S. 32 of the Act.
Statement as to the existence of a relationship
a) The deceased person who had special knowledge of the relationship between persons
by some special means shall be taken into consideration in case any dispute arises at a
later stage.
b) It has to be proved that the deceased person has a special means of acquiring such
knowledge and the burden of proof rests on the party making use of such statement.
c) Such statement should be made before the dispute arises.
Statements made in a will or deed relating to family affairs
a) A statement by the deceased made in will or deed relating to family affairs
When the statement relates to the existence of any relationship by blood,
marriage or adoption between persons deceased,
and is made in any will or deed relating to the affairs of the family to which any
such deceased person belonged, or
in any family pedigree, or upon any tombstone, family portrait or other thing on
which such statements are usually made, and
when such statement was made before the question in dispute was raised

v.

vi.

43

vii.

viii.

statements relating to a document or transaction under S 13

a) a statement made in a will or deed relating to any transaction in which a custom was
created, claimed, modified, recognised, asserted or denied or is inconsistent with its
existence shall be relevant.
Statements made by several persons expressing their feeling relevant to the matter in
question
a) Statements relating to feelings or impressions by several persons which are relevant to
the question are admissible when such persons are dead or incapable of giving evidence
and can be proved by the testimony of others.

Section 33
1. Relevance of certain evidence for proving in subsequent proceeding is provided under
Section 33 of the act.
2.
i. When the witness cannot be found or is dead or is incapable of giving evidence or is
kept out of the way by an adverse party or if his presence cannot be obtained without
an unreasonable amount of delay or expense,
ii. any statement made before a person authorised by law by a witness in a judicial
proceeding, is relevant for proving
iii.
the same in the same judicial proceeding at a later stage or subsequent judicial
proceedings. Judicial proceeding here includes any proceeding in which the witness
gives evidence is legally taken on oath.
3. Such statement may be admitted in evidence only when:
i. The first proceeding was between the same parties as in the subsequent one or their
representative in interest. Thus the plaintiff in the first proceeding must be the
defendant in the next and vice-versa.
ii. The adverse party in the first proceeding had the right an opportunity to cross examine
iii.
The questions in issue were substantially the same in the second proceeding as in the
first proceeding even though different consequences may follow from such act.
4. In a civil case, if the previous statement is tried to be proved without proving the conditions
above, an no objection is raised by the opposing party, the statement will be taken as
evidence.
5. A deposition in a criminal case may be used in a civil case and vice-versa provided the
conditions set out in S. 33 are satisfied.
3.5: Statements made under Special Circumstances
Section 34: entries made in the books of accounts including those maintained in an electronic
form, when relevant
1. Entries made regularly in the course of business are sure to be accurate as the writer has
full knowledge, no motive to falsehood and there is the strongest probability of untruth.
2. The entries however need to be kept regularly in the course of business and are admissible
in evidence if they refer to the matter in dispute. However, the entries alone shall not be
44

sufficient to charge a person with liability and needs to be corroborated with some other
independent evidence.
3. If there is corroborative evidence to the entries made in the books during the course of
business, the evidentiary value will be very good, however lack of the same will make such
evidence have zero value.
4. In order to be an admissible entry, an entry should be: in the books of accounts; regularly
kept; and in the course of business.
5. Books of Accounts: in the case of Iswar Das Jain v. Sohan Lal, it was held that extracts from
the books of accounts do not fall within S. 34 of the Act and such sanctity can only be
attached to the accounts books as a whole, if the books are indeed accounts books.
6. Thus the accounts consisting of loose sheets cannot have the same force as account-books.
(Ganesh Prasad v. Narendranath Sen)
7. Regularly Kept: the words regularly kept are not synonymous with the words correctly kept.
If such books are maintained in pursuance of some continuous and uniform practice in the
current round of business of the person they belong to they shall be deemed to be regularly
kept.
8. Entries made need not be made in the books of accounts at or about the same time the
related transaction took place so as to enable it to pass the test of regularly kept.
9. In the course of Business: Stray entries shall not be relevant and note in a diary will not be
admissible. It should be made in the books of accounts regularly kept.
10. A document may not carry any evidentiary value and the weight of its probative force may
be nil. The books of accounts when not used to charge liability (civil or criminal) may have
independent evidentiary value. However, when sought to charge a person with some
liability it is required by law that such evidence be corroborated.
Section 35: Relevancy of entry in public record or electronic record made in performance of a duty.
1. Section 35 speaks of the relevancy of entries made in public records or official books by a
public servant. An entry to be relevant under this section needs to satisfy the following
conditions:
i. Must be contained in a public or other official book
ii. Must be made by a public servant
iii.
Should be made by him in the discharge of official duty or by a person who is put
under such duty specifically enjoined by the law
iv. Must state relevant facts or facts in issue
2. Contained in a Public book or other official book: section 74 of the act gives a list of public
documents. Commonly speaking, a public document is one which is made for the purpose
of public use. It may be used and referred to by the public at their liberty.
3. A statement made in a private book or register is not admissible under this section.
4. Made by a Public Servant: a public servant is defined in section 21 of the IPC and further
reference may be made to Ss. 74 and 78 of the IEA.
5. An entry which is not made by a public officer or by a person who is not under a duty as
enjoined by the law of the country shall not be admissible under this section. The duty as
stated in the latter case, need not be by some enactment. If such duty is cast upon by the
45

prescribed rules it shall be adequate. EX: records made by a public school in accordance
with the Rules. However, entries made in the register of non-government schools are not
admissible. Such entry in school registers is not adequate to prove the age of a person in
absence of the material on which such age was initially entered by the school.
6. The entry must be made either by the person himself who is under a duty to make it or
under his directions.
7. Such entry by itself becomes a relevant fact if so proved.
8. Examples of entries which are admissible: entries relating to the birth and death when
registered; entries made on electoral rolls.
9. Pencil entries made and not verified by the person who is under a duty to make such
entries shall not admissible
10. The entries in a death register or birth register will only prove the death or birth of
someone. Other things such as age, cause of death etc. cannot be ascertained.
Section 36: relevancy of statements in maps, charts and plans
1. Section 36 deals with particular public documents such as maps, charts and plans.
2. Published maps which are generally offered for sale are in the nature of public documents
and are admissible to show the relative positions of towns, cities and other geographical
matters.
3. Maps prepared by private persons are not under the authority of the government and are
not admissible unless it is proved that the same was generally offered to the public for sale.
The accuracy of such documents shall not be presumed.
Section 37: Relevancy of statements as to fact of public nature contained in certain Acts or
notifications
1. When the court has to form an opinion as to the existence of any facts of a public nature,
any statement of it made in recital contained in any Act of Parliament of the United
Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification
by the Crown Representative appearing in the Official Gazette or in any printed paper
purporting to be the London Gazette or the Government Gazette of any dominion, colony
or possession of His Majesty, is a relevant fact.
2. This section thus makes all government acts and notifications admissible.

Section 38: Relevancy of statements as to any law contained in law books

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

46

3.6: How much of a statement needs to be proved

1. What evidence to be given when statement forms part of a conversation, document, book,
or series of letters or papers is stated in Section 39 of the Act.
2. Section 39 lays down that:
i. When a statement, to be proved, is part of a longer statement or conversation or is
contained in a book or is a part of a series of letters
ii. The evidence shall be given of so much of the statement, conversation, document,
book or series of letters
iii.
As the court considers necessary to the full understanding of the nature and effect
of that statement and the circumstances in which it was made.
iv. That part which does not help in understanding the meaning of the relevant
statement need not be proved.
3. Only what the court finds necessary in order that the statement may be intelligible is
necessary to be proved.
4. If some kind of evidence is debarred under the IEA, it cannot be brought on record under S.
39.
3.7: Judgments of Courts of Justice when Relevant
1. Ordinarily, a judgment in a previous case will not be admissible in a subsequent case
because a court has to form its own opinion depending upon the facts and circumstances of
that case, whether civil or criminal.
2. In the case of Prem Shankar v. Inspector of Police and others, it was held by the SC that a
previous judgment which was final could be relied upon as provided under Ss. 40 to 43 of
the IEA.
3. In civil cases the principles of res judicata may apply in cases between same parties.
However, in criminal cases, once acquitted or convicted, he cannot be tried for the same
offence again.
4. There are 2 kinds of judgments: Judgments in rem and Judgments in personam.
5. Judgments in rem: They are judgments affecting the legal status of some matter, person or
thing. The form conclusive evidence against all persons whether parties to the suit or not.
6. Judgments in personam: They are all the ordinary judgments not affecting the status of
matter, person or thing. The rights and liabilities of the parties to the suit are determined in
such judgments. It is binding only on parties to the suit or their privies [three kinds: privies
in interest(mortgagor, mortgagee, donor, done etc.), privies in law (testator or executor)
and privies by blood (ancestor, heir, corparcener)]
Section 40: Previous judgments relevant to bar a second suit or trial
1. Section 40 states that once there has been a judgment about the fact; and the law states
that when there has been such a judgment, no subsequent proceeding would be stated; the
previous judgment is relevant and can be proved.
2. Section 11 of the CPC bars a second suit between the parties for the same subject matter
and renders the previous judgment as admissible.
47

3. For example, A sues B for the possession of a house, both of whom claim to be separate
owners of the house. The suit is decided in favour of B, who is held to be the owner of it.
After 5 years, A again files a suit against B alleging to be the owner of the house. B contends
that a judgment has been given previously with regard to the same and pleads Section 11.
The previous judgment will be admissible.
4. Thus, section 40 applies to a case where the court has jurisdiction to try a suit, but one
party claims that it would not as the suit has already been decided earlier.
5. For the purposes of this section, the parties or representatives in interest must be the
same.
6. A finding on certain facts by a civil court in an action in personam is not relevant before a
criminal court when it is called upon to give its findings on the same facts.
7. In a civil suit, the findings of a criminal court is not res judicata.
8. When the previous acquittal did not operate to bar the second trial of the accused and
where both trials were separate and the incidents were viewed as distinct transactions and
the offences were different thus relating to different charges, neither evidence on record
nor acquittal is relevant in the second case.
Section 41: Relevancy of certain judgments in probate etc. jurisdiction
1. A judgment in rem will always be admissible irrespective of whether such judgment was
between the parties or not. A judgment not between the parties is inadmissible except to
prove who the parties were and decree passed and properties of the subject matter of the
suit.
2. Section 41 states that:
i. A final judgment, order or decree of a competent court in the exercise of its probate,
matrimonial, admiralty or insolvency jurisdiction,
ii. which confers upon the parties or takes away from them any legal character or
declares any person to be entitled to such character or any specific thing absolutely,
iii.
is relevant when the existence of such legal character or title is to such a person of
such a thing is relevant.
3. There are 2 conditions necessary to be satisfied to make the judgment in rem be
considered. They are:
i. Those having reference of the contents of the judgment
ii. Those to the nature of the proceeding in which the judgment is sought to be relied
upon subsequently.
4. A judgment to be relevant under this section must therefore:
i. Be of a competent court in exercise of its probate, matrimonial, admiralty or
insolvency jurisdiction
ii. It must confer upon or take away from any person any legal character or declare any
person to be entitled to any such legal character or to be entitled to a specific thing,
absolutely.
5. A judgment in rem is of conclusive proof to show that a person had such legal character;
that legal character which subsisted has ceased to exist and that the judgement had
conferred such legal character.
48

Section 42: Relevancy and effect of judgments, orders or decrees other than those mentioned in
Section 41
1. Under section 42, judgments are relevant not as res judicata but as evidence although they
may not be between the same parties provided they are related to matters of public nature
relevant to the enquiries.
2. Judgments neither inter partes nor in rem are relevant under this section if they relate to
matters of public nature and if that public nature is relevant to the enquiry. They d o not
work as res judicata nor are conclusive as judgment in rem.
3. Judgments under this section are admitted as evidence, whereas under S. 40 and 41 they
are admitted as conclusive proof.
Section 43: judgments, orders and decrees other than those mentioned in Ss. 40, 41 and 42 when
relevant
1. S. 40: matters which are conclusive between parties
2. S. 41: judgments in rem which are conclusive against the world
3. S. 42: judgments which relate to matters of public nature are relevant as evidence and are
not conclusive.
4. S. 43: all judgments that are not mentioned in Ss. 40 to 42 are irrelevant.
5. However, there are 2 exception under this section:
i. When the existence of such order, judgment or decree is a fact in issue
ii. When the order, judgment or decree is relevant under some other provision of the
IEA.
6. Judgment a Fact in Issue: party must have to proved that whether or not a judgment was
given earlier and such a suit between the 2 parties had taken place earlier is considered in a
subsequent suit.
7. For example, A was prosecuted by B for cheating. He is acquitted. A later files for malicious
prosecution by B. A will now have to prove that:
i. A was prosecuted by B;
ii. A was prosecuted without any reasonable cause
iii.
That he was acquitted; the judgment will be relevant with respect to the 1st and 3rd
issue.
8. Relevant under some other provision of the Act: the existence of a judgment may
sometimes be relevant under some other provision of the act and thus would be relevant.
For example, a judgment is given on the scope of A. 21 of the Constitution. The same will be
relevant later on under section 38 if printed in any law book.
Section 44: Fraud or Collusion in obtaining judgment or incompetency of the court may be proved.
1. Even if the judgment is in rem, the same cannot operate as res judicata if it was given by an
incompetent court or was given in fraud or collusion.
2. A litigant is expected to bring to the court and make available to the parties all documents
relevant to that trial. If the same is not done, then it can be said that the judgment was
obtained by fraud or in collusion.
49

3. Such suit for fraud, collusion or incompetency may be brought in the same suit or in a
different suit as per the choice of the party contending the same.
3.7: Opinion of third persons when relevant
1. What a person thinks in respect of the existence and non-existence of a fact is an opinion
and whatever is presented to the senses of the witness and what he receives through direct
knowledge without any process of thinking and reasoning is not an opinion but a fact.
2. As a general rule, opinion is not admissible. Witnesses are to place facts on the record
before the court and it is for the court to form its opinion.
3. Further, witnesses are generally interested parties in litigation and if their opinion is
admissible, grave injustice would be caused. The witnesses are thus only to bring raw
material of fact and the court works its mind on these facts.
4. The opinion or belief of a third person is, as a general rule, irrelevant and therefore
inadmissible as it is for the judge to form his own conclusion or opinion on the facts stated.
5. There are certain exceptions to this general rule when the court is unable to form a correct
opinion due to the question before the court requiring special knowledge and thus expert
opinion on the same is sought.
6. Science, art, trade, handwriting, fingerprints, foreign law etc. are some matters which
require special study or special experience in the field.
Section 45: Opinion of experts
1. This section enables the opinion of persons especially skilled in some science, art, foreign
law, identity of handwriting and finger impressions relevant.
2. An expert is one who has acquires special knowledge, skill or experience in any science, art,
trade or profession: such knowledge may have been acquired by practice, observation or
careful study. (Mahmood v. State)
3. The evidence of such expert is based on expertise and experience. Before someone is
classified as an expert, according to S. 45 it is necessary that there be some material on
record to show that he is skilled in that particular science and possesses special knowledge
with respect to the same.
4. The evidence given by an expert is generally required to be given orally and a mere report
or certificate by him is not evidence
5. Before an experts testimony can be admitted, 2 things need to be proved:
i. The subject is such that expert testimony is necessary. Thus where the court can
form an opinion on its own, then there shall be no need for an expert witness. But if
there is a technical question that is raised, expert opinion must be sought.
ii. The witness in question is really an expert and that he is a truthful witness. Thus it
has to be shown that he has made special study of the subject in question or
acquired a special experience therein.
6. Examples:
i. Foreign law: when a domestic court needs to make a ruling with respect to foreign
law, an experts opinion may be sought. The foreign law is to be proved as a fact.
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ii. Opinion of a surgeon or a physician may be admitted on certain facts like the nature
of injuries, the disease, weapons causing the death etc.
iii. Ballistic Experts opinion shall be lead as evidence when it alleged that the alleged
offence was committed using a fire-arm.
7. Cogent reasons must be given by the expert when there are conflicting opinions by 2
experts.
8. Such evidence cannot be considered as substantial evidence unless corroborated by other
evidence. Further, the opinion of an expert is not binding on the judge.
9. The evidence provided by him is purely advisory in nature and he shall be subject to crossexamination as well.
10. Difference between Expert Witness and Ordinary Witness
S. No.
1.

Expert Witness
Gives evidence of his opinion

2.

Is supported by experiments
which has been performed by
him in absence of the opposite
party
Gives rules and reasons to
support his opinon
It is merely of advisory nature to
assist the Court

3.
4.

Ordinary Witness
Gives evidence of those facts
which are under enquiry as he is
a witness of facts.
Is a witness of face and is
available to the opposite party
for veracity
Gives evidence of what he has
perceived by his senses.
It is a witness of fact and
binding over expert opinion

Section 45A:
Any opinion on a matter relating to any information transmitted or stored in any computer
resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence
u/s 79A of the IT Act, will be relevant.
Section 46:
1. RES INTER ALIOS ACTA, evidence. This is a technical phrase which signifies acts of others, or
transactions between others.
2. Neither the declarations nor any other acts of those who are mere strangers, or, as it is
usually termed, any res inter alios ada, are admissible in evidence against any one when the
party against whom such acts are offered in evidence, was privy to the act, the objection
ceases; it is no longer res inter alios. 1 Stark Ev. 52; 3 Id 1300
3. Facts not otherwise relevant, will be relevant if they support or are inconsistent with the
opinion of experts, when such expert opinion is relevant.
4. For example, whether A was poisoned by a certain poison. The fact that other persons who
were poisoned exhibited certain symptoms, either affirm or deny that they are incidents of
such poison is relevant.
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Section 47:
1.
Section 47A: when the court has to form an opinion as to the electronic signature of any person,
the opinion of the Certifying Authority which has issued the Certificate is a relevant fact.
Section 48
1. When the Court has to form an opinion as to existence of any general custom or right, the
opinions as to the existence of such custom or rights, of persons who would be likely to
know of its existence if it existed, are relevant.
2. Explanation - The expression "general custom or right" includes customs or rights common
to any considerable class of persons.
3. For example, The right of the villagers of a particular village to use the water of a particular
well is a general right within the meaning of this section
4. Only persons who are likely to know about such customs in question are competent to give
an opinion on them. The expert must have personal knowledge on the facts to be proved.
Section 49
1.
i.
ii.
iii.
iv.

When the Court has to form an opinion as to the usage's and tenants of any body of men or family,
the constitution and government of any religious or charitable foundation, or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.

2. The opinion of a person having special means to acquire such knowledge would be
relevant.
Section 50
Section 51
Whenever the opinion of any living person is relevant, the grounds on which such opinion is based
are also relevant. What the expert notice and on what his opinion is based is of relevance.
Illustration
1. An expert may give an account of experiments performed by him for the purpose of
forming his opinion.

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3.8: Character, when relevant

Sections 52 to 55 deal with Character when relevant.
Section 52: In civil cases character to prove conduct is irrelevant.
1. In civil cases, the fact that the character of the person concerned is such as to render
probable or improbable any conduct imputed to him is irrelevant, except when it appears
from facts which are otherwise relevant.
2. Character is a combination of quality distinguishing a person, the individuality of which is
the product of nature, habits and environment.
3. Character is to be distinguished from reputation, yet reputation is more commonly
considered as having reference to the dispositions or character of a person.
4. In civil cases the character of any party to suit has no relevance in respect of raising an
inference as to his conduct
5. Such a rule is practically absolute in all civil cases.
6. For example, A files a suit against B for possession of his house alleging that he had taken
forcible possession of it. In such a suit, A raised that it was in Bs character to trespass. This
was inadmissible.
7. There are certain cases however where character is the fact in issue or the relevant fact for
example, in a suit for libel. Thus character may be led in such cases where character is the
substance of the issue.
8. The character spoken of in section 52 is that of the parties to the suit and not the witnesses.
9. Another exception to the general rule states in Section 52 is when the character so appears
from the facts which are otherwise relevant.
10. Even though no evidence is given by the Counsels in the matter, the Court may adduce the
character of the parties to the suit on basis of some other relevant facts produced before
the Court.
Section 53: In criminal cases, previous good character is relevant
1. In criminal proceedings, the fact that the person accused is of a good character is relevant.
2. Good character of the accused may be proved so as to afford presumption that he did not
commit the crime. This arises from the improbability that a man of good character will
depart from it and do an act which is inconsistent with it.
3. In deciding whether a man committed a crime or not, his character may become a material
consideration and sometimes becomes conclusive.
4. Thus, evidence of good character is always admissible.
5. Good character becomes important in criminal proceedings to adjudge once innocence or
criminality. (Habib Mohd. v. State)
6. In any case where the character evidence is very weak, it can outweigh the positive
evidence in regard to the guilt of the person. It may be used in doubtful cases, to tilt the
balance in favour of the accused.

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Section 54: Previous bad character is not relevant except in reply

1. The fact that an accused in a criminal proceeding has bad character is irrelevant and cannot
be proved.
2. However, the previous bad character of an accused may become relevant in the following
cases:
i. When the accused has adduced the evidence that he has been of good character,
the prosecution can lead evidence to the effect that he has been of bad character.
ii. When the bad character of the accused itself is a fact in issue, the evidence of the
bad character of the accused will be admissible.
iii.
Where the previous conviction is relevant as evidence of bad character, evidence of
bad character is relevant. (for example, if a person is said to have committed the
same offence more than once, he shall receive a higher degree of punishment for
the same)
3. The fact that an act committed by the accused was committed several times before, will be
admissible in order to decide whether such act was accidental or intentional.
4. In the case of Mangal Singh v. State, it was seen that evidence which disclosed unpleasant
things about the accused persons past was examined by the Court to ascertain the motive
for murder and not to ascertain his good/bad character in respect of the facts in issue. This
evidence was held to be admissible.
Section 55: Character as affecting damages
1. When the character of the person is relevant in deciding the damages he ought to receive,
character evidence will be relevant.
2. Character under Ss. 52, 53, 54 and 55 includes reputation and disposition. However, section
54 deals with general reputation and general disposition.
3. Reputation means what is thought of a person by others and constituted by public opinion.
It is the credit that a man has obtained in the publics opinion. Evidence on the reputation
of a man by those who know him is admissible and those who do not know him is
inadmissible.
4. Disposition means the opinion of a person of another having good character giving his own
personal experiences or his individual opinion from his own personal knowledge of the
accused.
5. Evidence may be given only of general reputation which shall be receivable and not of
personal experiences.
6. Section 55 is an exception to the general rule as laid out in S. 52.
7. Character is relevant in civil cases when it affects the amount of damages to be computed
which is necessary for the court to take into consideration as while assessing the damages
will largely depend on the character of the person.
8. It is to be made clear that character will be relevant in a suit for damages only when such
character will affect the computation of the damages.

54

UNIT 4: ON PROOF
4.2: Facts which need not be proved
1.
2.
3.
4.
5.

Section 56 states that no fact of which the Court will take judicial notice needs be proved.
Section 57 further lays down the facts of which Courts must take judicial notice
The Court shall take judicial notice of the following facts;
All laws in force in the territory of India;
All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all
local and personal Acts directed by Parliament of the United Kingdom to be judicially
noticed;
6. Articles of War for the Indian Army, Navy of Air force;
7. The course of proceeding of parliament of the United Kingdom, of the Constituent
Assembly of India, of Parliament and of the Legislature established under any law for the
time being in force in Province or in the States;
8. The accession and the sign manual of the Sovereign for the time being of the United
Kingdom of Great Britain and Ireland;
9. All seals of which English Courts take judicial notice; the seals of all the Courts in India and
of all Courts out of India established by the authority of the Central Government or the
Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of
Notaries Public and all seals which any person is authorized to use by the Constitution or an
Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in
India;
10. The accession to office, names, titles, functions and signatures of the persons filling for the
time being any public office in any state, if the fact of their appointment to such office is
notified in any official Gazette;
11. The existence, title and national flag of every State or Sovereign recognized by the
Government of India;
12. The divisions of time, the geographical divisions of the world, and public festivals, facts and
holidays notified in the Official Gazette;
13. The territories under the dominion of the Government of India;
14. The commencement, continuance and termination of hostilities between the Government
of India and any other State or body of persons;
15. The names of the members and officers of the Court, and of their deputies and subordinate
officers and assistants and also of all officers acting in execution of its process, and of all
advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to
appear or act before it;
16. The rule of the road on lad or at sea.
17. In all these cases, and also on all matters of public history, literature, science or art, the
Court may report for its aid to appropriate books or documents of reference.
18. If the Court is called upon by any person to take judicial notice of any fact it may refuse to
do so unless and until such person produces any such book or document as it may consider
necessary to enable it to do
19. Judicial notice of the facts not mentioned in section 57 cannot be taken.

55

4.1: Standard of proof in civil and criminal cases

1. Section 58 deals with facts that are admitted need not be proved.
2. It states that if parties to a proceeding or their agents agree to admit a fact at the hearing
or they agree to admit by writing before the hearing or which is admitted in the pleadings,
need not be proved by the other party.
3. According to Order VIII of the CPC, if an admission is made in the plaint, then no fact can be
adduced as a fact in accordance with section 58.
4. In a civil case, an adversary may at any time relieve his adversary of the necessity of proof.
5. In criminal cases, the rules of evidence are subject to the general principles of jurisprudence
that it is the duty of the prosecution to prove the case against the accused and that they
should not rely upon admissions made by him in the course of the trial for convicting him.

56