Lesson 11 Indian Evidence Act, 1872 LESSON OUTLINE * Leaming Objective © Introduction * Relevancy of facts connected with the face to bbe proved ‘+ Statements about the facts to be proved * Opinion of third persons * Facts in which evidence cant be given (Privileged communications) * Oral, Documentary and circumstantial evidence + Prosumptions + Estoppel + Lesson Round Up + Sol-Test Questions Law are not invented. They grow out of circumstances. LEARNING OBJECTIVES ‘The “Law of Evidence’ may be defined as a system of rules for ascertaining controverted questions of fact in judicial inquiries. This system of ascertaining the facts, Which are the essential elements of a right or lability and isthe primary and perhaps the most difficult function of the Court, is regulated by a set of rules and principles known as ‘Law of Evidence". The Indian Evidence Act, 1872 is an ‘Act to consolidate, define and amend the Law of Evidence. “Evidence” means and 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; all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence. The object of this study lesson is to impart basic knowledge to the students regarding law relating to Evidence. -Azarias260 EP-JI&GL Mier ‘The "Law of Evidence” may be defined as a system of rules for ascertaining controverted questions of fact in judicial inquiries. This system of ascertaining the facts, which are the essential elements of a right or liability and is the primary and perhaps the most difficult function of the Cour, is regulated by a set of rules and principles known as "Law of Evidence". ‘The Indian Evidence Act, 1872 is an Act to consolidate, define and amend the Law of Evidence. ‘The Act extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court, including Court-martal (other than the Court-martial convened under the ‘Army Act, the Naval Discipline Act or the Indian Navy Discipline Act, 1934 or the Air Force Act) but not to affidavits presented to any Court or officer, or to proceedings before an arbitrator. Judicial Proceedings The Act does not define the term “Judicial proceedings" but it is defined under Section 2()) of the Criminal Procedure Code as "a proceeding in the course of which evidence is or may be legally taken on oath’ However, the proceedings under the Income Tax are not "judicial proceeding Act is also not applicable to the proceedings before an arbitrator. Under this Act. That apart, the ‘An affidavit is a declaration sworn or affirmed before a person competent to administer an oath. Thus, an affidavit per se does not become evidence in the suits but it can become evidence only by consent of the party or if specifically authorised by any provision of the law. They can be used as evidence only under Order XIX of the Civil Procedure Code. Evidence: The term evidence is defined under Section 3 of the Evidence Act as follows “Evidence” means and includes: (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents (including electronic records) produced for the inspection of the Court; such documents are called documentary evidence. ‘The word evidence in the Act signifies only the instruments by means of which relevant facts are brought before the Court, viz., witnesses and documents, and by means of which the court is convinced of these facts. Evidence under Section 3 of the Indian Evidence Act, 1872 may be either oral or personal (ie. all statements which the Court permits or requires to be made before it by witnesses, and documentary (documents produced for the inspection of the court), which may be adduced in order to prove a certain fact (principal fact) which is in issue. There must be an open and visible connection between the principal fact and the ‘evidentially facts. Facts are which form part of the same transaction, though not in issue, place or at different times and places. In general the rules of evidence are same in civil and criminal proceedings but there is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability due regard being had to the burden of proof, is sufficient basis of a decision, but in the latter, specially when the offence charged amounts to felony or treason, a much higher degree of assurance is required. The persuasion of guilt must amount to a moral certainty such as to be beyond all reasonable doubt.Lesson 11 = Indian Evidence Act, 1872 261 ‘Scheme of the Act: The Act is divided into three parts - ~ ——————_.. ‘Relevancy of Production and Tete Charter (Chapters VD ree ee Sects tn 100 (Geese deals with Sections tt to preinanay points 167). bndrclevancy of facts is deat yth in Chapter ‘contain Sections to 55 Relevancy of Facts: Sections 6 to 86 of the Act deal with relevancy of facts. A fact is also known as Factum Prolans or a fact that proves. The question arises what then the term “fact” signifies? Fact According to Section 8, “fact” means and includes (@) anything, state of things, or relation of things capable of being perceived by the senses: {b) any mental condition of which any person is conscious. Thus facts are classified into physical and psychological facts. Hustrations (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That aman heard or saw something, is a fact. (6) That a man said certain words, is a fact, (d) That aman holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at the specified time conscious of a particular sensation, is a fact. (e) That aman has a certain reputation, is a fact. lilustrations (a), (b) and (¢), are the examples of physical facts whereas the illustrations (d) and (e) are the ‘examples of psychological bids. Evidence may be given of facts in issue and relevant facts. ‘According to Section 5, evidence may be given in any suit or proceeding of the existence or non-existence of ‘every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. ‘The Explanation appended to Section 5, however, makes it clear that this section shall not enable any262 EPJI&GL person to give evidence of a fact to which he is disentitled to prove by any provision of the law. Mustrations (a) Ais tried for the murder of B by beating him with a club with the intention of causing his death, ALA's trial the following facts are in issue:- — A's beating B with the club: — A's causing B’s death by such beating; — A's intention to cause B's death. (b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure. It is evident that only facts in issue and relevant facts may be given in evidence. To understand their relevancy it is necessary to know their meanings. These terms are defined in Section 3. It is explained as. follows:- Relevant Fact ‘One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. (Section 3) Where in a case direct evidence is not available to prove a fact in issue then it may be proved by any circumstantial evidence and in such a case every piece of circumstantial evidence would be an instance of a “relevant fact’ Logical relevancy and legal relevancy ‘A fact is said to be logically relevant to another when it bears such casual relation with the other as to render probably the existence or non-existence of the latter. All facts logically relevant are not, however, legally relevant. Relevancy under the Act is not a question of pure logic but of law, as no fact, however logically relevant, is receivable in evidence unless it is deciared by the Act to be relevant. Of course every fact legally relevant will be found to be logically relevant; but every fact logically relevant is not necessarily relevant Under the Act as commen sense or logical relevancy is wider than legal relevancy. A judge might in ordinary transaction, take one fact as evidence of another and act upon it himself, when in Court, he may rule that it was legally irrelevant. And he may exclude facts, although logically relevant, if they appear to him too remote to be really material to the issue. Legal relevancy and admissibility Relevancy and admissibility are not co-extensive or interchangeable terms. A fact may be legally relevant, yet its reception in evidence may be prohibited on the grounds of public policy, or on some other ground. Similarly every admissible fact is not necessarily relevant. The tenth Chapter of the Act makes a number of facts receivable in evidence, but these facts are not "relevant" under the second Chapter which alone defines relevancy. Facts in issue ‘According to Section 3 the expression “facts in issue” means and includes-any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, lability, orLesson 11 = Indian Evidence Act, 1872 263 disability, asserted or denied in any suit or proceedings, necessarily follows. Explanation—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue Mustration ‘Ais accused of the murder of B. Athis trial the following facts may be in issue: — that A caused 8's death — that A intended to cause B's death; — that A had received grave and sudden provocation from — that A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature. ‘A fact in issue is called as the principal fact to be proved or factum probandum and the relevant fact the ‘evidentiary fact or factum probans from which the principal fact follows. The fact which constitute the right or liability called “fact in issue” and in a particular case the question of determining the “facts in issue” depends Upon the rule of the substantive law which defines the rights and liabilities claimed. Facts in issue and issues of fact Under Civil Procedure Code, the Court has to frame issues on all disputed facts which are necessary in the case. These ate called issues of fact but the subject matter of an issue of fact is always a fact in issue. Thus when described in the context of Civil Procedure Code, it is an ‘issue of fact’ and when described in the language of Evidence Act itis a ‘fact in issue’. Thus as discussed above, distinction between facts in issue and relevant facts is of fundamental importance. Classification of relevant facts Principles of Sections relating to relevancy of facts are mere rules of logic. Relevant facts may be classified in the following form: (@) facts connected with the acts to be proved: (Sections 6 to 16) (b) statement about the fats to be proved e.g. admission, confession,(Sections 17 to 31) (c) statements by persons who cannot be called as witnesses; (Sections 32 to 33) (¢) statements made under special circumstances: (Sections 34 to 38) (e) how much of a statement is to be proved; (Section 39) (f) judgements of Courts of justice, when relevant; (Sections 40 to 44) (9) opinions of third persons, when relevant; (Sections 45 to 51) (h) character of parties in Civil cases and of the accussed in criminal cases. (Sections 52 to 55) ‘Two fundamental rules on which the law of evidence is based are: (a) no facts other than those having rational probative value should be admitted in evidence and, (b) all facts having rational probative value are admissible in evidence unless excluded by a positive rule of paramount importance.264 EPJI&GL ‘The Court 'may presume’ a fact as may be provided by the Act, unless and until itis disproved or may call for proof of it. The court shall presume a fact whenever it is directed by this Act, and shall regard such fact as proved unless and until itis disproved (Section 4). Presumption has been defined as an inference, affirmative or affirmative of the existence of some fact, drawn by a judicial tribunal, by a process of probable reasoning form some matter of fact, either judicially noticed, admitted or established by legal evidence to the satisfaction of the tribunal. I is an inference of the existence of some fact, which is drawn, without evidence, from some other fact already proved or assumed to exist (wills). Presumption is either of a fact or law. These presumptions which are inference are always rebuttable. Presumption of law is either conclusive or rebuttable. ‘The Act also provides that when one fact is declared by this Act to be conclusive proof of another, the court shall on the proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it [AMA ola ea sO) ‘The facts coming under this category are as follows: (1) Res gestae or facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction. Section 6 embodies the rule of admission of evidence relating to what is commonly known as res gestae. ‘Acts or declarations accompanying the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. The obvious ground for admission of such evidence is the spontaneity and immediacy of the act or declaration in question. Mlustration Ais accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact, ‘The word ‘by-standers’ means the persons who are present at the time of the beating and not the persons who gather on the spot ater the beating (46 P.L.R. 363); (1945) Lah. 146). (b) A’is accused of waging war against the ‘Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, although A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (4) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. ‘Thus, the evidence about the fact which is also connected with the same transaction, cannot be said to be inadmissible, The above section lays down the rule which in English text books is treated under the head of res gestae. It may be broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the same transaction. ‘The essence of the doctrine of res gestae is that the facts which, though not in issue are so connected withLesson 11 = Indian Evidence Act, 1872 265 the fact in issue as to form part of the same transaction and thereby become relevant like fact in issue (AIR 1957 Cal. 709). (2) Facts constituting the occasion, or effect of, or opportunity or state of things for the occurrence of the fact to be proved whether it be a fact or another relevant fact. (Section 7) Ilustrations (a) The question is, whether A robbed B. ‘The facts that, shorlly before the robbery, B went to a fair with money in his possession, and that he showed it, or mentioned the fact that he had it, to third persons, are relevant. (b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place whether the murder was committed, are relevant facts. (c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and habits of B known to A, which afforded an opportunity for the administration of poison, are relevant facts. ‘The above transaction provides that, though they are not part of the same transaction, are relevant if they are the occasions caused or effects of facts of an issue. (3) Motive, preparation and previous or subsequent conduct. According to Section 8, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. ‘Motive means which moves a person to act in a particular way. It is different from intention. The substantive law is rarely concerned with motive, but the existence of a motive, from the point of view of evidence would be a relevant fact, in every criminal case. That is the first step in every investigation. Motive is a psychological fact and the accused's motive, will have to be proved by circumstantial evidence. When the question is as to whether a person did a particular act, the fact that he made preparations to do it, would certainly be relevant for the purpose of showing that he did it. ‘The Section makes the conduct of certain persons relevant. Conduct means behaviour. The conduct of the parties is relevant. The conduct to be relevant must be closely connected with the suit, proceeding, a fact in issue or a relevant fact, ie., if the Court believes such conduct to exist, it must assist the Court in coming to a conclusion on the matter in controversy. It must influence the decision. If these conditions are satisfied it is immaterial whether the conduct was previous to or subsequent to the happening of the fact in issue. Mlustrations (a) Ais tried for the murder of B. ‘The fact that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A. by threatening to make his knowledge public, are relevant. (b) A sues B upon a bond for the payment of money. B denies the making of the bond. ‘The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant.266 EPJI&GL (¢) Ais tried for the murder of B by poison. ‘The fact that, before the death of 8, A procured pi relevant, :on similar to that which was administered to B, is (@) The question is, whether a certain document is the will of A. The facts that, not long before the date of the alleged wil, A made inquiry into matters to which the provisions of the alleged will relate that he consulted Vakils in reference to making the will, and that he ‘caused drafts of other wills to be prepared, of which he did not approve, are relevant. (e) Ais accused of a crime. ‘The facts that, either betore, or at the time of, or after the alleged crime. A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed ‘evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or ‘suborned persons to give false evidence respecting it, are relevant. (The question is, whether A robbed B. ‘The facts that, after B was robbed, C said in A's presence - “the polic is coming to look for the man who robbed B", and that immediately afterwards A ran away, are relevant. (g) The question is, whether A owes B rupees 10,000, ‘The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing—"l advise you not to trust A, for he owes 8 10,000 rupees”, and that A went away without making any answer, are relevant facts. (h) The question is, whether A committed a crime. ‘The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant. (i) Ais accused of a crime. ‘The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of properly acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. () The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances Under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint she sald that she had been ravished is not relevant as conduct, Under this Section, though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 187. (ke) the question is, whether A was robbed, ‘The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances Under which, and the terms in which, the complaint was made are relevant. ‘The fact that he said he had been robbed without making any complaint, is not relevant, as conduct underLesson 11 = Indian Evidence Act, 1872 267 this section, though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157. ‘What is relevant under Section & is the particular act upon the statement and the statement and the act must be so blended together as to form a part of a thing observed by the witnesses and sought to be proved. (4) Facts necessary to explain or introduce relevant facts. According to Section 9, such facts are - (i) which are necessary to explain or introduce a fact in issue or relevant fact, or {ii)_ which support or rebut an inference suggested by a fact in issue or relevant fact, or (ii) which establish the identity of a person or thing whose identity is relevant, or fix the time or place at Which any fact in issue or relevant fact happened, or (iv) which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. Facts which establish the identity of an accused person are relevant under Section 9. Mlustrations (a) The question is, whether a given document is the will of A. ‘The state of A's property and of his family at the date of the alleged will may be relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is. true. ‘The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B. (c) Ais accused of a crime. ‘The fact that, soon after the commission of the crime, A absconded from his house, is relevant under Section 8, as conduct subsequent to and affected by facts in issue. ‘The fact that, at the time when he left house, he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that the left home suddenly. The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. (d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A's service, says to Al am leaving you because B has made me a better offer’. This statement is a relevant fact as explanatory of G's conduct, which is relevant as a fact in issue. (e) A accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he dolivers it -“A says you are to hide this”. B's statement is relevant as explanatory of a fact which is part of the transaction268 EPJI&GL () Ais tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction. EGS ENS To i od SON TOT) ‘The general rule known as the hearsay rule is that what is stated about the fact in question is irrelevant. To this general rule there are three exceptions which are : ‘Statements made ‘Admissions and ‘certain matters under Under special confessions ‘cortain circumstances circumstances by persons who are not witnesses ()) Admissions and Confessions Sections 17 to 31 lay down the first exception to the general rule known as admissions and confessions. Admissions ‘An admission is defined in Section 17 as a statement, oral or documentary or contained in electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances mentioned under Sections 18 to 20. Thus, whether a statement amounts to an admission or not depends upon the question whether it was made by any of the persons and in any of the circumstances described in Sections 18-20 and whether it suggests an inference as to a fact in issue or a relevant fact in the case. Thus admission may be verbal or contained in documents as maps, bills, receipls, letters, books etc. (However, the word ‘statement’ has not been defined in the Act. Therefore the ordinary dictionary meaning is to be followed which is “something that is stated.") ‘An admission may be made by a party, by the agent or predecessor-in-interest of a party, by a person having joint propriety of pecuniary interest in the subject matter (Section 18) or by a “reference” (Section 20). ‘An admission is the best evidence against the party making the same unless itis untrue and made under the circumstances which does nat make it binding on him. ‘An admission by the Government is merely relevant and non conclusive, unless the party to whom they are made has acted upon and thus altered his detriment. ‘An admission must be clear, precise, not vague or ambiguous. In Basant Singh v. Janky Singh, (1967) 1 SOR 1, The Supreme Court held: 1) Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admission. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission ‘cannot be regarded as conclusive and it is open to the party to show that itis not true.Lesson 11 = Indian Evidence Act, 1872 269 (2) All the statements made in the plaint are admissible as evidence. The Court is, however, not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest. ‘Admission means conceding something against the person making the admission. That is why itis stated as a general rule (the exceptions are in Section 21), that admissions must be self-harming; and because a person is unlikely to make a statement which is self-harming unless it is true evidence of such admissions as received in Court. ‘These Sections deal only with admissions oral and written, Admissions by conduct are not covered by these sections, The relevancy of such admissions by conduct depends upon Section 8 and its explanations. Oral admissions as to the contents of electronic records are not relevant unless the genuineness of the record produced is in question. (Section 224) Confessions Sections 24 to 30 deal with confessions. However, the Act does not define a confession but includes in it admissions of which it is a species. Thus confessions are special form of admissions. Whereas every confession must be an admission but every admission may not amount to a confession. Sections 27 to 30 deal with confessions which the Court will take into account. A confession is relevant as an admission unless itis made: () to a person in authority in consequence of some inducement, threat or promise held out by him in reference to the charge against the accused: (i) toa Police Officer; or (ii) to any one at a time when the accused is in the custody of a Police Officer and no Magistrate is present. Thus, a statement made by an accused person if it is an admission, is admissible in evidence. The confession is evidence only against its maker and against another person who is being jointly tried with him for an offence. Section 30 is an exception to the general rule that confession is only an evidence against the confessor and not against the others. The confession made in front of magistrate in a native state recorded is admissible against its maker is also admissible against co-accused under Section 30. ‘The Privy Council in Pakala Narayanaswamiv. Emperor, (1929) PC 47, observed that: No statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is ‘of some fact which if true would negative the offence alleged to be confessed. All confessions are admissions but not vice versa. ‘A confession must, either admit, in terms the offence, or substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, is not of itself 2 confession. For example, an admission that the accused was the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession of the knife or revolver. A confession cannot be construed as meaning a statement by the accused suggesting the inference that he committed the crime. According to Section 24, confession caused by inducement, threat or promise is irrelevant. To attract the prohibition contained in Section 24 of the Evidence Act the following six facts must be established:270 EP-JI&GL (that the statement in question is a confession; (i) that such confession has been made by an accused person; (ii) that it has been made to a person in authority (iv) that the confession has been obtained by reason of any inducement, threat or promise proceeded from a person in authority: (V) such inducement, threat or promise, must have reference to the charge against the accused persor (vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, To exclude the confession it is not always necessary to prove that it was the result of inducement, threat or promise. Itis sufficient ita legitimate doubt is created in the mind of the Court or it appears to the Court that the confession was not voluntary. It is however for the accused to create this doubt and not for the prosecution to prove that it was voluntarily made. A confession if voluntary and truthfully made is an Cofficacious proof of guilt Confessions Vs. Admissions A-confession, however, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole, Further there can be an admission either in a civil or a criminal proceedings, whereas there can be a confession only in criminal proceedings. An admission need not be voluntary to be relevant, though it may effect its weight; but a confession to be relevant, must be voluntary. ‘There can be relevant admission made by an agent or even a stranger, but, a confession to be relevant must, be made by the accused himself. A confession of a co-accused is not strictly relevant, though it may be taken into consideration, under Section 30 in special circumstances. Confessions are classified as: (a) judicial, and (b) extra-judicial. Judicial confessions are those made before a Court or recorded by a Magistrate under Section 164 of the Criminal Procedure Code after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him. Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such. ‘An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact. The value of the evidence depends upon the truthfulness of the witness to whom itis made. In Ram Khilariv. State of Rajasthan, AIR 1999 SC 1002, the Supreme Court held that where an extra-judicial confession was made before a witness who was a close relative of the accused and the testimony of said witness was reliable and truthful, the convietion on the basis of extra judicial confession is proper. In another case, the Supreme Court has further held that the law does not require that the evidence of an ‘extra-judicial confession should be corroborated in all cases, When such confession was proved by an independent witness who was a responsible officer and one who bore no animus against the accused, there is hardly any justification to disbelieve it. Also, where the Court finds that the confession made by the accused to his friend was unambiguous and unmistakably conveyed that the accused was the perpetrator of the crime and the testimony of the friend was truthful, reliable and trustworthy, a conviction based on such ‘extra-judicial confession is proper and no corroboration is necessary. Much importance could not be given toLesson 11 = Indian Evidence Act, 1872 271 minor discrepancies and technical errors (Vinayak Shivajirao Pol v. State of Maharashtra, 1998 (1) Scale 159). Ilustrations 1. Aundertakes to collect rents from C on behalf of B. B sues A for not collecting rent due from C to B. ‘A denies that rent was due from C to B. A statement by C that he owed rent to B, is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B. 2. The question is, whether a horse sold by A to Bis sound Assays to B—'Go and ask C, C knows all about it”. C’s statement is an admission. 3, The question between A and B is, whether a certain deed is or is not forged. A affirms that itis genuine, B holds that itis forged. ‘A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged. 4, Ais accused of a crime committed by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because it A were dead, it would be admissible under Section 32, clause (2). 5, A and B are jointly tried for the murder of C. It is proved that A said: consider the effect of this confession as against B. and | murdered C”. The Court may 6. Ais on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—“A and | murdered C’ This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. (It there is joint trial Section 30 applies) Illustrations 5 and 6 are exceptions to the general rule that a confession is only evidence against the person who makes the confession. These are based on Section 30 of the Act. (i) Statements by persons who cannot be called as witnesses Certain statements made by persons who are dead, or cannot be found or produced without unreasonable delay or expense, makes the second exception to the general rule. However, the following conditions must be fulflled for the relevancy of the statements: (a) That the statement must relate to a fact in issue or relevant fact, (b) That the statement must fall under any of following categories: () the statement is made by a person as to the cause of this death or as to any of the circumstances resulting in his death; (ii) statement made in the course of business: (ii) Statement which is against the interest of the maker: (iv) a statement giving the opinion as to the public right or custom or matters of general interest;272 EPJI&GL (v) a statement made before the commencement of the controversy as to the relationship of persons, alive or dead, if the maker of the statement has special means of knowledge on the subject (vi) a statement made before the commencement of the controversy as to the relationship of persons deceased, made in any will or deed relating to family affairs to which any such deceased person belong: (vil) a statement in any will, deed or other document relating to any transaction by which a right or ‘custom was created, claimed, modified, etc.; (vi) a statement made by a number of persons expressing their feelings or impression: (ix) evidence given in a judicial proceeding or before a person authorised by law to take it, provided that the proceeding was between the same parties or their representatives in interest and the adverse party in the first proceeding had the right and opportunity to cross examine and the questions in issue were substantially the same as in the first proceeding, Mlustrations (a) The question is, whether A was murdered by 8: or ‘A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or ‘The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow, Statements made by A as to the course of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts. (b) The question is as to the date of A’s birth An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day, he attended A’s mother and delivered her of a son, is a relevant fact. (c) The question is, whether A and B were legally married. ‘The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a ctime, is relevant. (G) The question is, whether A, who is dead, was the father of B. Astatement by A that B was his own son, is a relevant fact. (e) A sues B for libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points. may be proved. (iii) Statements made under special circumstances The following statements become relevant on account of their having been made under special circumstances: () Entries made in books of account, including those maintained in an electronic form regularly kept in the course of business. Such entries, though relevant, cannot, alone, be sufficient to charge aLesson 11 = Indian Evidence Act, 1872 273 person with liabilty; (Section 34) (i) Entries made in public or official records or an electronic record made by a public servant in the discharge of his official duties, or by any other person in performance of a duty specially enjoined by the law; (Section 35) (ii) Statements made in published maps or charts generally offered for the public sale, or in maps or plans made under the authority of the Central Government or any State government; (Section 36) (iv) Statement as to fact of public nature contained in certain Acts or notification: (Section 37) (v) Statement as to any foreign law contained in books purporting to be printed or published by the Government of the foreign country, or in reports of decisions of that country. (Section 38) ‘When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made. (Section 39) GOIN aaa =a So SN sae The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant. However, there are some exceptions to this general rule. These are: (i Opinions of experts. (Section 45) Mlustrations (a) The question is, whether the death of A was caused by poison, ‘The opinions of experts as to the symptoms produced by the poision by which A is supposed to have died, are relevant. (b) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. Similarly the opinions of experts on typewritten documents as to whether a given douement is typed on a particular typewriter is relevant. ‘As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has to state the facts which he has seen, heard or perceived, and noted the conclusion, form of observations. The functions of drawing inferences from facts is a judicial function and must be performed by the Court However, to this general rule, there are some exceptions as indicated in Section 45. Opinions of experts are relevant upon a point of (a) foreign law (b) science (c) art (d) identity of hand writing (e) finger impression special knowledge of the subject matter of enquiry become relevant. (i) Facts which support or are inconsistent with the opinions of experts are also made relevant. (Section 46) (iii) Others: In addition to the opinions of experts, opinion of any other person is also relevant in the following cases:274 EPAJI&GL (a) Opinion as to the handwriting of a person if the person giving the opinion is acquainted with the handwriting of the person in question; (Section 47) (b) Opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate; (Section 47A) (©) Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom: (Section 48) (d) Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowiedge on the subject; (Section 49) (e) Opinion expressed by conduct as the existence of any relationship by persons having special means of knowiedge on the subject. (Section 50) FACTS OF WHICH EVIDENCE CANNOT BE GIVEN (PRIVILIGED COMMUNICATIONS) There are some facts of which evidence cannot be given though they are relevant, such as facts coming under Sections 122, 123, 126 and 127, where evidence is prohibited under those Sections, They are also referred to as ‘privileged communications’ Awitness though compellable to give evidence is privileged in respect of particular matters within the limits ‘of which he is not bound to answer questions while giving evidence. These are based on public policy and are as follows: () Evidence of a Judge or Magistrate in regard to certain matters; (Section 121) (i) Communications during marriage: (Section 122) (ii) Affairs of State; (Section 123) (iv) Official communications; (Section 124) (v) Source of information of a Magistrate or Police officer or Revenue officer as to commission of an offence or crime: (Section 125) (vi) In the case of professional communication between a client and his barrister, attorney or other professional or legal advisor (Sections 126 and 129). But this privilege is not absolute and the client is entitled to waive it Under Section 122 of the Act, communication between the husband and the wife during marriage is privileged and its disclosure cannot be enforced. This provision is based on the principle of domestic peace and confidence between the spouses. The Section contains two parts; the first part deals with the privilege of the witness while the second part of the Section deals with the privilege of the husband or wife of the witness, Evidence as to affairs of State Section 123 applies only to evidence derived from unpublished official record relating to affairs of State. According to Section 123, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department ‘concerned, who shall give or withhold such permission as he thinks fit. Protessional communications Section 126 to 129 deal with the professional communications between a legal adviser and a client, whichLesson 11 = Indian Evidence Act, 1872 275 are protected from disclosure. A client cannot be compelled and a legal adviser cannot be allowed without the express consent of his client to disclose oral or documentary communications passing between them in professional confidence. The rule is founded on the impossibility of conducting legal business without professional assistance and securing full and unreserved communication between the two. Under Sections 126 and 127 neither a legal adviser i. a barrister, attorney, pleader or vakil (Section 126) nor his interpreter, clerk or servant (Section 128) can be permitted to disclose any communication made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any document with which any such person has become acquainted in the course and for the purpose of such ‘employment. In general itis not open to a party to test the credit or impeach the “truthfulness of a witness offered by him. But the Court can in its discretion allow a party to cross examine his witness" if the witness unexpectedly turns hostile. (Section 154) CREP eae oe Se NS As discussed above, all facts (except two Sections 56 and 58) which are neither admitted nor are subject to judicial notice must be proved. The Act divides the subject of proof into two parts: (i) proof of facts other than the contents of documents; (i) proof of documents including proof of execution of documents and proof of ‘existence, condition and contents of documents, However, all facts except contents of documents or electronic records may be proved by oral evidence (Section 59) which must in all cases be “direct” (Section 60). The direct evidence means the evidence of the person who perceived the fact to which he deposes. Thus, the two broad rules regarding oral evidence are: (all facts except the contents of documients may be proved by oral evidence: (ii) oral evidence must in all cases be “direct”. Oral evidence means statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. But, if a witness is unable to speak he may give his evidence in any manner in which he can make it intelligible as by writing or by signs. (Section 119) Direct evidence In Section 60 of the Evidence Act, expression “oral evidence” has an altogether different meaning, It is used in the sense of “original evidence” as distinguished from "hearsay" evidence and it is not used in contradicition to "circumstantial" or "presumptive evidence”. According to Section 60 oral evidence must in all ‘cases whatever, be direct; that is to say: — iit refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ifitrefers to a fact which could be heard, it must be the evidence of a witness who says he heard it — if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceivad it by that sense or in that manner; — if itrefers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Thus, if the fact to be proved is one that could be seen, the person who saw the fact must appear in the Court to depose it, and if the fact to be proved is one that could be heard, the person who heard it must appear in the Court to depose before it and so on. In defining the direct evidence in Section 60, the Act276 EP-JI&GL impliedly enacts what is called the rule against hearsay. Since the evidence as to a fact which could be seen, by a person who did not see it, is not direct but hearsay and so is the evidence as to a statement, by a person who did hear it. Documentary evidence ‘A “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used for the purpose of recording that matter. Documents produced for the inspection of the Court is called Documentary Evidence. Section 60 provides that the contents of a document must be proved either by primary or by secondary evidence. Primary -_ crinene _ Secondary © — evidence Primary evidence ‘Primary evidence" means the document itself produced for the inspection of the Court (Section 62). The rule that the best evidence must be given of which the nature of the case permits has often been regarded as ‘expressing the great fundamental principles upon which the law of evidence depends. The general rule requiring primary evidence of producing documents is commonly said to be based on the best evidence principle and to be supported by the so called presumption that if inferior evidence is produced where better might be given, the latter would tell against the withholder. ‘Secondary evidence Secondary evidence is generally in the form of compared copies, certified copies or copies made by such mechanical processes as in themselves ensure accuracy. Section 63 defines the kind of secondary evidence permitted by the Act. According to Section 63, "secondary evidence” means and includes. (1) certiied copies given under the provisions hereatter contained; (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies: (3) copies made from or compared with the original (4) counterparts of documents as against the parties who did not execute them (6) oral accounts of the contents of a document given by some person who has himself seen it. IMlustrations (@) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if itis proved that the thing photographed was the original (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if itis shown that the copy made by the copying machine was made from the original. Section 65 stipulates the cases in which secondary evidence relating to documents may be given. As already stated, documents must be proved by primary evidence but in certain cases for example, where the document is lost or destroyed or the original is of such a nature as not to be easily, movable, or consists ofLesson 11 = Indian Evidence Act, 1872 277 Numerous documents, or is a public document or under some law by a certified copy, the existence, condition or contents of the document may be proved by secondary evidence. Special Provisions as to Evidence Relating to Electronic Record Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of Section 658, Under Section 658(1) any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. The conditions in respect of a computer output related above, have been stipulated under Section 65B(2) of the Evidence Act. Circumstantial evidence In English law the expression direct evidence is used to signity evidence relating to the ‘fact in issue’ (factum probandum) whereas the terms circumstantial evidence, presumptive evidence and indirect evidence are used to signify evidence which relates only to "relevant fact” (facta probandum). However, under Section 60 of the Evidence Act, the expression “direct evidence” has altogether a different meaning and it is not intended to exclude circumstantial evidence of things which could be seen, heard or felt. Thus, evidence whether direct or circumstantial under English law is "direct" evidence under Section 60. Before acting on circumstances put forward are satisfactorily proved and whether the proved circumstances are sufficient to bring the guilt to the accused the Court should not view in isolation the circumstantial evidence but it must take an overall view of the matter SSeS ‘The Act recognises some rules as to presumptions. Rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances. A presumption is not in itself an evidence but only makes a prima facie case for the party in whose favour it exists. A presumption is a rule of law that courts or juries shall or may draw a particular inference from a particular fact or from particular evidence unless and until the truth of such inference is disproved. There are three categories of presumptions: (presumptions of law, which is a rule of law that a particular inference shall be drawn by a court from articular circumstances. (ii) presumptions of fact, it is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved, (ii) mixed presumptions, they consider mainly certain inferences between the presumptions of law and presumptions of fact. ‘The terms presumption of law and presumption of fact are not defined by the Act. Section 4 only refers to the terms "conclusive proof”, “shall presume” and "may presume”. The term “conclusive proof” specifies those presumptions which in English Law are called irrebuttable presumptions of law: the term "shall presume” indicates rebuttable presumptions of law; the term “may presume’ indicates presumptions of fact. When we see a man knocked down by a speeding car and a few yards away, there is a car going, there is a presumption of fact that the car has knocked down the man, ESTOPPEL ‘The general rule of estoppel is when one person has by his declaration, act or omission, intentionally caused278 EP-JI&GL ‘or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing (Section 115). However, there is no estoppel against the Statute. Where the Statute prescribes a particular way of doing something, it has to be done in that manner only. Other relevant Sections are Sections 116 and 117. Principle of Estoppel Estoppel is based on the maxim ‘allegans contratia non est audiendus' ie. a person alleging contrary facts should not be heard. The principles of estoppel covers one kind of facts. it says that man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a man shall not say one thing at one time and later on say a different thing, ‘The doctrine of estoppel is based on the principle that it would be most inequitable and unjust that it one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chunder v. Gopal Chunden} Estoppel is a rule of evidence and does not give rise to a cause of action. Estoppel by record results from the judgement of a competent Court (Section 40, 41). It was laid down by the Privy Council in Mohori Bibee v. Dharmodas Ghosh, (1930) 30 Cal. 530 PC, that the rule of estoppel does not apply where the statement is made to a person who knows the real facts represented and is not accordingly misled by it. The principle is that in such a case the conduct of the person seeking to invoke rule of estoppel is in no sense the effect of the representation made to him. The main determining element is not the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct. In Biju Patnaik University of Tech. Orissa v. Sairam College, AIR 2010 (NOC) 691 (Orissa), one private University permitted to conduct special examination of students prosecuting studies under one time approval policy. After inspection, 67 students were permitted to appear in the examination and their results declared. However, university declined to issue degree certificates to the students on the ground that they had to ‘appear for further examination for another condensed course as per syllabus of university. It was held that ‘once students appeared in an examination and their results deciared, the university is estopped from taking decision withholding degree certficate after declaration of results. Different kinds of Estoppel:Lesson 11 = Indian Evidence Act, 1872 279 PSSM ae '* The law of Evidence may be defined as a system of rules for ascertaining controverted questions of fact in judicial inquiries. This system of ascertaining the facts, which are the essential elements of aright or liability ‘and is the primary and perhaps the most difficult function of the court, is regulated by a set of rules and principles known as law of Evidence”. '* The word evidence in the Act signifies only the instruments by means of which relevant facts are brought before the court, viz., witnesses and documents, and by means of which the court is convinced of these facts. * Evidence under the Act may be either oral or personal (Le. all statements which the court permits or requires to be made before it by witnesses), and documentary (documents produced for the inspection of the court), which may be adduced in order to prove a certain fact (principal fact) which is inissue. '* The general ule known as the hearsay rule is that what is stated about the fact in question is irrelevant. To this general rule there are three exceptions which are; ()) Admissions and confessions; (i) Statements as to certain matters under certain circumstances by persons who are not witnesses; and (ii) Statements made under special circumstances. '* All facts which are neither admitted nor are subject to judicial notice must be proved. The Act divides the subject of proof into two pars: (i) proof of facts other than the contents of documents; (i) proof of documents including proof of execution of documents and proof of existence, condition and contents of documents. * A presumption is a rule of law that courts or juries shall or may draw a particular inference from a particular fact or from particular evidence unless and unti the truth of such inference is disproved. Thare are thr categories of presumptions:() presumptions of law, which is a rule of law that a particular inference shall be drawn by @ court from particular circumstances; (i) presumptions of fact. itis a rule of law that a fact cothenvise doubtful may be inferred from a fact which is proved: (ii) mixed resumptions, they consider mainly certain inferences between the presumptions of law and presumptions of fact. * The general rule of estoppel is when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed. in any suit or proceeding between himself and such person or his representative to deny the truth ofthat thing (These are meant for re-capitulation only. Answers to these questions are not to be submitted for evaluation) 1. Whatis oral, documentary and circumstantial evidence? Differentiate between Primary Evidence and Secondary Evidence Explain in Bde Prncpal of Etoppe Write a short note on Admissions and Confession. State the cases in which opinion of expert is relevant. seen280 EP-JI&GL