Indian Evidence Act, 1872

The Indian Evidence Act, is comprehensive because it defines some notions (idea,
thought) of the law of evidence and also consolidate and amend it.

The Act is not expansive because if there is an express provision on the point, the
Court has to follow it and can not depart from it. But, if there is no provision on
the point, theCourt can follow the principles of Common Law.

The Act is procedural in nature, except one except one Chapter (ch.-VllI, Stopple, ss-
115-117).

The Law of Evidence is Lex fori, it means local forum, it applies at a specific place,
i.e. India.

The Act applies to civil as well as criminal proceeding, and all judicial proceedings.

Under the Evidence Act, the rule of estoppels is substantive law and all the sections
are procedural law.

Function of the Law of Evidence –

The function is to lay down rules according to which the facts ata case can be proved
or disproved before a Court of Law. The mean which can be used to prove a fact
are all controlled bythe rules and principles laid down by the law of evidence.

Sec-1 – Short title –

This Act may be called the Indian Evidence Act, 1872 (Act No.1 of 1872)

Extent –

It extends – to whole of India except the state of Jammu andKashmir.

It applies to all judicial proceedings in or before any Court,including Courts

Marshal, other than Court marshal (Victoria).

It shall not apply to affidavits presented to any Court or officer,nor to proceedings

before an arbitrator.

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Commencement –

It shall come into force on the first day of September, 1872.

Sec-3 – Interpretation Clause (Definition)

"Court" –

"Court" includes all Judges, and Magistrates and all persons,except arbitrators,
legally authorised to take evidence.

"Fact" - "Fact" means and includes –

1. any thing state of things, or relation of things, capable ifbeing perceived

by the senses;

Illustrations -(a) That ma man heard or saw somethingis a fact

(b) That a man said certain words is a facts. (all these externalfacts)

2. any mental condition of which any person is conscious.

Illustrations -(a) That a man holds certain opinion.

(b) That a man has certain intention.

(c) That a man acts is good faith or fraudulently is a fact.
(d) That a man has certain reputation is a fact. (all these
internal fact)

"Facts in issue – (Principal fact or Factum fact to be

proved probandium)

Fact in issue means and includes –

"Facts in issue – (Principal fact or Factum fact to be proved probandium)

Difference bet ween fact in issue and relevant fact

Facts in issue are those facts on which the right and liability of parties to the suit is
rest (depend)/based. Relevant facts are those facts which make the existence of fact
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in issue or other relevant fact either highly probable or improbable.

Facts in issue are facts upon which the judgment of Court is based on. Relevant
facts have only probative value.

Facts issue are called the principal fact or facture probandum (fact to be proved).
Relevant fact is called the evidentiary fact or facture probandi (fact by which fact in
issues can be proved.)

Fact in issue is a necessary ingredient of a right and liakility. Relevant facts is not a
necessary ingredient of right and liability.

Facts in issue are those facts which are denied by one party and asserted by other
party. A relevant fact is a fact which is advanced by the parties to prove the
existence or non- existence of the fact in issue.

Fact in issue are those facts which are the matter of contention.

any fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature,, or extent of any right, liability or disability, asserted or denied
in any suit or proceeding. For – e. g. Suppose 'A' is charged with murder of 'B'
before 'A' is convicted, the prosecution has to establish the following things, namely
– that A caused B's death

that A intended to caused B's death that it was

a case of homicide

All these facts are in issue because each of the above factsdirectly affect the
liability of 'A'.

In Civil matters - Fact in issue is framing of issue.''

In Cr. matters - Fact in issue is ''Charge''.

Relevant fact – (Evidentiary fact or Factum Probondi)

Sec- 3 defines the tern ''relevant fact'' as follows – "One fact is said to be relevant to
another when the one is connected with the other in any the ways referred to in

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sections 6 to 55. In short relevant facts are facts so connected with each other as
they make the existence or non-existence of fact in issue highly probable or
improbable. In other words, relevant fact mean fact by which the fact in issue can be
proved.

Substantive Evi. & Corroborate Evi. :-

When evidence is given of fact in issue or R.F. it is called substantive evidence. But
some ten. there are several evidence which are not substantive end not admission
by them selves but become admissible to corroborate or to support substantive
evidence, bready give suppose It same accident the lodge FIR. He become
prosecution within. In cannot he tell about evident. It is substantive evidence
admissible to corroborate histestimony

According to Sec. 3 evidence is of two types

Direct evidence and circumstantial evidence

" All statements given by witnesses before a Court in relation to matters which was
directly seen or perceived by senses are called direct evidence."

Circumstantial evidence means evidence of circumstances. Suppose 'A' is charged

with murder of B. At the trial a witness 'C' on behalf of prosecution gives evidence
that he saw 'A' stabbing 'B'. In another Circumstances. 'D' an another prosecution
witness deposes in Court that he saw 'A' running with a blood stained knife from
spot.

In the first case the evidence given by 'C' is a direct evidence because it is the
evidence of fact in issue, i.e. evidence of very question which Court has to desired.

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In second case D's evidence is a circumstantial evidence and relevant because it is
given to prove the fact in issue.

R. Vs Richardson

This is a case of circumstances. In this case there was no direct evidence. The
conviction was based on circumstantial evidence. In this case a young girl was killed
in her cottage. It was found that she was pregnant. On examining the ground about
the cottage there was discovered the footsteps of person who had seemingly been
running hastily from the cottage by an indirect road. The print of footsteps were
accurately measured and an exact impression taken of them and it appeared that
they were those of a person who must have worn shoes, the soles of which had
been newly mended, and which had iron knobs in them. It was also found that the
murder was committed by left handed person.

William Rechardson, the young man to whom the shoe belonged and upon his
examination he acknowledges that he was left handed. It then came out that
Rechardson had been acquainted with the deceased and had on one occasion been
with her in a wood in circumstances that led to a suspicion thathe had Cr. intercourse
with her.

State of U.P. Vs R.P. Mittal

1 The Circumstances from which the conclusion is drawnshould be fully

established.

2 The Circumstances should be conclusive in nature.

3 All the facts so established should be consistent only with thehypothesis of guilt
and inconsistent with innocence.

4 The circumstances should exclude the possibility of guilt of onperson other than
accused to a moral certainty.

Evidence obtained by undesirable/illegal means –

The S.C. has made it clear in Pushpadevi M. Jatia Vs M.L. Wadhawan, that where

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"evidence offered comes within the meaning of its definition the Court can act on it
and need not concern itself with the method by which the evidence in question was
obtained.

The Court cited the observation of Sir LAWRENCE in B.K. Ghose Vs

Emperor, to the effect that relevant evidence remains relevant even if it was obtained
in the course of a search or seizure in violation of the provisions of Cr.P.C.

The S.C. sustained the conviction for a murder of a child on the basis of
circumstantial evidence only. The case before the Court was – Har Dayal Vs State
of UP. In this case there was no eye witness to the fact of the murder, ut the tell tale
circumstances had made the chain so complete that within all human probabit by the
child was kidnapped, murdered and thrown into the well by none but by the
accused. The accused

used to beat his wife and therefore, she had gone back to her parents. He tries his
best and even played fal bricks with his father and brother-in-laws, but she refused to
rejoin him went back uttering a threat that he would teach them a lesion of their life.
He was seen taking away the ten year old child of his wife's brother. The child
remained missing and when the accusedwas traced in his village and surrounded
by the father of the child and some others he confessed to have taken away the child
and promised to return but instead managed to escape. On a villager's report the
body of the child was recovered from a well and dully identified. The S.C. sustained
the conviction and death sentence.

Circumstances sometimes speak as forcefully as does the direct evidence. There is

a quiet little village touched by a road which ends these. Occasionally a driver who
belongs to the village comes there with his lorry (truck) for night rests. The nights on
which the truck came, a man of the village was found lying dead by the side of the
road. The position of his body and the nature of injuries left no doubt that he was
dragged by a vehicle for a little distance and then one wheel ran over him. The facts
tell the story beyond a shadow of doubt that it is the work, of the village lorry and that
it must have been negligently handled. Such is the force of circumstances.

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PART – 1 RELEVANCY OF FACTS Sec. 5 – Evidence to beconfined to facts in
issue and relevant facts

Sec – 5 provides that 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 which are
relevant under Sectionsto 55, and of no others.

Sec – 6 – Relevancy of facts forming part of sametransaction –

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

Illustration –

a A is accused of the murder of B by beating him. Whatever was said or done

by A or B or the by- standards at the beating or so shortly before or after it as to form
part of the transaction, is a relevant.

b A is accused of waging war against the Govt. of India by taking part in armed riot in
which property is destroyed, troops are attacked and goals are broken open. These
facts are relevant.

c 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.

Doctrine of Res-Gestae (Part of same transaction) –

Sec- 6 of Indian Evidence Act, is based on the English doctrine of "Res-Gestae",

though this word has been avoided by this section. The phrase is Latin which literally
means "Things "done" and when translated into English mean "things done in the
course of a transaction."

Every case that comes before a Court of law has a fact story behind it. Every fact
story is made of certain acts, omission or statement as throws some light upon the

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nature of the transaction or reveals its true quality or character should be held
as a part of the transaction and the evidence of it should be received.

For Example : Ratten Vs The Queen

A man was prosecuted for the murder of his wife. His defence was that the shot
went off accidently. There was evidence tothe effect that the deceased telephoned
to say. "Get me the Police plz. Before the operator could connect the police, the
caller, who spoke in distress, gave her address and the call

suddenly ended. Thereafter the police came to the house and found the body of a
dead woman.

Her call and the words she spoke were held to be relevant as res gestae which
brought about her death. Her call in distress showed that the shooting in question
was intentional and not accidental.

Acts or Omissions as Res-Gestae :-

Nature of the transaction itself indicates what should be its essential parts.
Where, for eg- there is a conspiracy to over through the Govt. V of India by force,
Funds for the purpose are raised at Calcutta, arms and ammunition at Madras and a
task force is trained at Bombay. All these facts, though isolated in time and space,
are still the parts of the same transaction butthus not become R.G. in England.

Statements as Res-Gestae :-

Statement may also accompany physical happenings. For eg – An Injured person is

naturally bound to cry for help and spelt the name of the assailant / attacker. Thes
words uttered by the injured person are also part of re-gestae.

R. Vs Foster :

In This case a witness saw the vehicle driven by at a very rapid rate, but did not see
the accident. Immediately after, on hearing the victim groan, he went up to him and
asked him what was the matter. The deceased then made a statement as to the
causes of the injury.

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The court held that "what the deceased said at the instant, as to the cause of the
accident is clearly admissible."

R. Vs Beding Field

A woman, with her throat cut, came suddenly out of a room, in which she had been
injured and shortly before she died, said : "Oh dear Aunt, See what Beding field has
done to me.:

The Court held that the statement was not admission. The Court also held that the
words uttered/spoken can only be admitted as res-gestae if it is a spontaneous
(voluntary) and contemporaneous (at the same time) results of the incidence. If there
is a gap of time between words uttered/Spoken and the incidence, the court may
reject to admit that words s res-jestae.

In the instant case there was something stated by her after it was all over.

R Vs. Christie,

This was a case of an indecent assault upon a young boy, Shortly after the incident
the boy made certain statements to his mother b; which he described the offence
and the man who assaulted him.

The evidence of the statement was rejected and remarked that the boy's statement
was so separated by time and circumstances from the actual commission of crime
that it was not admissible as part of the res-jestae.

Thompson Vs. Trevanion.

It was held that "what the wife said immediately upon hurt being received and before
that she had time to devise or contrive anything for her own advantage, might be
given in evidence." If sufficient time elapsed to allow the invention of a false tale,
obviously the evidence would be unreliable."

Res-Gestae and Hearsay –

Hearsay evidence means the statement of a person who has not seen the
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happening of the transaction, but has heard of it from others. Hearsay evidence is
not allowed, but such evidence can be given if it is a part of the transaction.

For eg – In R. Vs Foster, the witness had only seen the speedy vehicle, but not the
accident. The injured person explained him the nature of the accident. He was
allowed to give evidence of what the deceased said, although it was only a derived
knowledge, it being a part of res gestae.

Thus the doctrine of res gestae constitutes an exception to the principle of hearsay
and Sec. 60

Tape recording – R. M. Malkani Vs State of Maharashtra,

The S.C. has held that the contemporaneous tape-record of relevant conversation is
a relevant fact and admissible as res- gestae U/s 6 and section 7 and 8 also.

Yusufali Vs State of Maharashtra

The tape itself becomes the primary and direct evidence of what has been said and
recorded. Dealing with the relevancy ofsuch evidence the learned Judge said –

"Tape recorded conversation is admissible provided,

First – The conversation is relevant to the matters in issue;

Secondly – There should be the identification of the voice;

Thirdly – The accuracy of the tape recorded conversation is proved by

eliminating the possibility of erasing the tape record.

A contemporaneous tape record of a relevant conversation is arelevant fact u/s 6 as

res gestae.

Sec – 7 Facts which are the occasion, cause, or effect, immediate or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things under which
they happened,or which afforded an opportunity for their occurrence or transaction
are relevant.

The following things are relevant u/s 7 – 1Facts

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constituting the occasion ; Tec (a)2Facts which show

the cause ;

3The effects of the principal facts; (b)

4Facts which provide the opportunity for the happening of theprincipal fact, and:
(c)

5Facts which constitute the state of things under which theprincipal facts -
happened.

Occasion –

Evidence can be given of the set of the circumstances which constituted the occasion
for the happening of the principal fact.

For example – In R. Vs Richardson, the fact that the deceased girl was alone in her
cottage at the time of the murder is relevant as it constituted the occasion for the
murder.

Illustation –The question is whether A robbed B. The facts that, shortly before the
robbery, B went to a fair within money in his possession and that he showed it
to third persons, arerelevant.

Cause – Evidence can be given of the set of circumstances which constitute the
cause for the happening of the principal fact. "Cause" often explain why a particular
act was done. It helps the Court to connect a person with the act. In R. Vs
Richardson case, the fact that the deceased girl was pregnant by illicit relation from
Richardson, is the cause for the murder.

Effects - Every act leaves behind it certain effects which not only record the
happening of the act, b.. also throw light upon the nature of the act, i.e. whether it is
suicide or murder.

For example – In R. Vs Richardson's case where a young girl was killed in her
cottage, 'the prints of the footsteps showed that they were those of a person who
must have worn shoes, the soles of which had been newly mended and which had
iron knobs or nails in them.' This is one of the effects of the facts in issue.

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Illustration – (b)

The question is whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder
was committed, are relevant as these are the effects of murder.

Opportunity – The circumstances which provide anopportunity for the happening of

a fact in issue are relevant. This may involve a break from the normal routine of this
life. In
R. Vs Richardson case, the fact that Richardson left his fellow workers at about the
time of the murder under the pretence of going to a cottage was relevant as this gave
the accused his opportunity.

Illustration – The question is whether A poisoned B. The fact that the accused knew
the habits of the deceased which facilitated the poisoning is relevant. In other words
the fact of the accused's knowledge of the deceased's habits was held to be relevant
as it afforded an opportunity to the accused.

State of things – The facts which constitute the state of things under which or in the
background of which the principal facts happened are relevant.

For eg – Where A shoots his wife B and said that the shootwas accidental. But
it was proved that B had illicit relation with another man and A was unhappy with her,
was relevant fact.

Sec. 8 Any fact is relevant which shows or constitute a motive or preparation for
any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in
reference to such suit or proceeding. (Plaintiff, defendant and their agents in a civil
suit and of the accused in Cr. proceeding but not the agent of the accused.) and –
The conduct of any person an offence against whom is the subject of any
proceeding is relevant, if such conduct influences or is influenced by any fact in issue
or relevant fact, and whether it was previous or subsequent thereto. (It includes the
conduct of an injured person. It is separately mentioned because in many Cr.

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proceedings the injured person is not a party.)

The following things are relevant u/s 8 –1Motive –

Sec (a) & (b)

2Preparation ; and – (c) & (d)

3Conduct. (e) (i)

Motive – Sec. 8 says that facts which show a motive for any facts in issue or
relevant facts, are relevant. Therefore, evidence of the existence of a motive for the
crime charged is admissible. Evidence of the motive helps the Court to connect the
accused with the deed.

For example – In R. Vs Richardson case, the fact that the accused was the father of
the child of which the deceased was pregnant at the time was held to be relevant as
he might have killed the girl to save his character.

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

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

Preparation – Sec-8 provides that acts of preparation are relevant. The act of
purchasing a pistol for the purpose of shooting down a man is by itself no offence.
But once anoffence has been committed, the evidence of preparation

becomes most important for the crime must have been committed by the men who
was preparing for it.

For Example – The sharpening of a knife before an affray in which the knife was
used is relevant as an act of preparation.

Illustration - A is tried for the murder of B by poison. The fact that, before the death
of B, a procured poison similar to that which was administered to B, is relevant.
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Conduct – Guilty mind begets quality conduct." A man's conduct is always
influenced by what he has been doing before or after the act. The evidence of
persons specified in Sec 8 is relevant whether it is previous or subsequent to the
crime.

Illustration – A is accused of a crime. The facts that, he destroyed or concealed

evidence, or prevented the presence or procured the absence of persons who might
have been witnesses, or suborned (prepared) persons to give false evidence
respecting it, are relevant. The fact that, after the commission of the alleged crime,
he absconded or attempted toconceal things which were used in committing crime.

Statements as conduct –

Generally statements are not relevant as conduct under Sec. 8. But under two
circumstances, statements are relevant as conduct under this section. These are as
follows –

Explanation – 1 – Evidence can be given of a statement which either accompanies

some conduct or explains acts other than statements.

For Example – Complaints : The act of an injured person in making a complaint

about the offence done to him is a conduct and the words in which the complaint is
made is a statement accompanies that conduct and, therefore, both. are relevant
u/Expl. 1.

Illustration – 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 complain was made, are relevant.

Explanation – 2 (f, g, h) The second explanation says that "when the conduct of any
person is relevant, any statement made to him or in his presence or hearing, which
affects such conduct is relevant." In other words, statements affecting conduct are
relevant u/exp. 2.

Illustration – (a)The question is whether A robbed B. The facts that, after B was
robbed, C said in A's presence – the police are coming to look for the man who
robbed B', and that immediatelyafter wards A ran away, are relevant.

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(b)Whether A owes SB Rupees, 1000/- Admission by conduct
i.e. silent on saying so.

Sec – 9

The following facts are relevant u/s 9 –1

1Facts necessary to introduce or explain a fact in issue or a relevant fact.

2Facts which support or rebut an inference

3Facts which establish the identify of anything or person, i.e. eys, colour etc.

4Facts which fix time or place.

5Facts which show the relation of parties. Introductory

or explanatory facts –

Evidence is allowed of facts which are necessary to introduce the main fact or some
relevant fact.

Illustration – (a) The question is whether a given document is a "will made by 'A',
evidence may be given of the state of A's property and of family at the date of the
alleged will as it may be necessary to introduce the circumstances in which the
willbe came necessary.

Evidence of explanatory facts is allowed for the same reason.

Illustration – (f) Where a person is tried for leading certain people to a riot by
marching at the head of them. The cries of the mob may be given in evidence being
explanatory of the nature of the transaction.

A person accused of theft, is seen giving the stolen property to his wife and
instructing her that she should hide the property. His statement is relevant as
explanatory of the fact that he had some reason for hiding the property.

R. Vs. Lord George Garden

Facts which support or rebut inferences –

Evidence can be given of facts which support or rebut an inference suggested by a

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fact in issue or relevant fact.

Illustration – (C) A is accused of a crime. The fact that, soon after the commission
of crimes 'A' absconded from his house, is relevant u/s 8 as 'conduct' subsequent to
and affected by facts in issue because it suggests the inference that he is guilty.

The fact that, at the time when he left home, he had sudden and urgent
business at the ;ace to which he went, is relevant because it rebuts the inference.

If after absconding, he was arrested in a railway train travelling without ticket or in

shabby dress, this will be relevant as these facts support the inference that he is
guilty.

Identify of anything or person - Where the Court has to know the identify of
anything or any person, any fact which establishes such identify is relevant. The
identify of a person can be established by the evidence of persons who know him.

Cases : Tichborne case, Dr. Cripen's case

In this case a doctor was prosecute for the murder of his wife. The body of his wife,
as discovered from his house, was mutilated beyond recognition. The fact that the
wife had been carlier operated upon her abdomen and that part having been
recovered showed marks of the operation was held to be relevant to establish his
identify.

Identification Parade -

The evidence of test identification parade is received under thissection.

Identification parade have been in common use for a very dong time for the object of
placing suspect in a line-up with other persons for identification. The purpose is to
find out whether he is the operator of the crime.

This is necessary where the name of the affender is not mentioned by those who
claim to be eye witnesses of the incident, but they claim that although they did not
know him earlier, they could recall his features in sufficient details and would also be
able to identify him it and when they happen to see him arain.

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Identify of things –

A case before the S.C. arose out of murder and robbery. The police recovered
robbed articles which comprised valuable sarees and ornaments. A lady of the
house was called and identified then in the court as articles belonging to the
deceased. It was held to be relevant u/s – 9.

Time or place of happening -

Sec-9 provides that evidence can be given of facts which will show the time or place
of the happening of the facts in issue or relevant fact.

Illustration – The question is whether a given document is the will of 'A'. The state of
A's properly and of his family at the date of the alleged will may be relevant fact.

For example – The report of an expert is relevant fix the time of murder and the
marks of struggle on it relevant to fix the place of crime

Relation of parties – Sec. 9 provides that the facts which showthe relation of parties
by whom a fact in issue or relevant fact was transacted are relevant.

In an action for damages for defamation, the state of the previous relations of the
parties will be relevant.

Illustration – (b) A sues B for libel imputing disgraceful conduct to A: B affirms that
the matter alleged to be libelous is true.

The position and relations of the parties at the time when the libel was published
may be relevant facts.

Sect -10

Evidence to prove conspiracy

The special feature of the rule is that any thing said, done or written by any member
of the conspiracy is an evidence against the other members even if they are done I n
their absence and without their knowledge.

The following condition are required to be fulfilled under this sec –

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1There must be a reasonable ground to believe that two or more persons have
entered into a conspiracy.

2The act in question must have been done after the time whenthe intention to
conspire was first entertained by any of them.

3The act must have been done in reference to their commondesign/intention.

The evidence such an act can be given for the following twopurposes –

1To prove the existence of the conspiracy, and

2To whow that a particular person was a party to conspiracy.

R. Vs Black and Tye

Black and tye were charged with conspiracy to dodge (fraud) by the customs by
passing goods without paying full duty. Tye made certain entries in two books. One
of them was used for carrying out the fraud and the entries were necessary for that
purpose. But other was for his private record, or convenience, such as, the
counterfoil of his cheqe book.

It was held that the entries in the former book were admissible against Black, but
latter were not the essence of the decision seems to be that evidence of an act of a
conspirator is relevant against others if the act was done to carry out the conspiracy
tothe furtherance of common intention.

Mirza Akbar Vs Emperor.

One Ali Askar was married to Mt. Mehr Taj but she was in love with Mirza Akbar. Ali
Askar was murdered by Umar Sher. When Mirza Akbar appeared a the place he
asserted that Umar Sher was innocent. Umar Sher's main defence was absence of
motive. It appeared that he was hired to commit murder by Mirza Akbar and Mehar
Taj. Accordingly all three were prosecuted for murder and conspiracy to murder.

Her letters and statements were admitted in evidence against Mirza Akbar as being
the things said and writes ..

In Mirza Akbar Vs Emperor Case,

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324018 18
The privy Council held that the decision of English case Queen Vs Black & Tye. was
incorporated in Sec. to of Indian Evidence Act, 1872.

It was reaffirmed by S.C. in case of Sardul Singh Vs State of Bombay.

In this case S.C. held that the principle underlined in Sec-10 is that the act,
statement or writing of Co-conspirator is relevant against other conspirator based on
theory of Agency. Sec- 10 isbased on this theory.

Emperor Vs Vaishampayan, is also known as lamington shooting conspiracy case.

Sec – 11When facts not otherwise relevant becomerelevant –

Sec. 11 provides that the facts not otherwise relevant are relevant –

1if they are inconsistent with any fact in issue or relevant fact – (inconsistencies)

Plea of alibi – The Principle of English doctrine "the plea of alibi" has been
incorporated under sec-11 of Indian Evidence Act, which means plea of elsewhere.

Sec – 11 says that evidence can be given of facts that they are inconsistent with a
fact in issue or relevant fact. This sec. enables a person charged with a crime to take
the plea of alibi which means his presence elsewhere is inconsistent with the fact
that he should be present at the place of the crime.

Illustration – The qus. is whether A committed a crime at Calcutta on a

certain day.

The fact that, on that day. A was at Lahore is relevant. The fact that, near the time
when the crime was committed, A was at distance from the place of occurrence,
which would render it highly improbable that he committed it, is relevant.

2if they make the existence or non-existence of any fact in issue or relevant fact
highly probau or improbable – (Probabilities)

Sec. 11 provides that the evidence can be given of every fact which by itself or in
connection with other facts makes theexistence ….. improbable

For example – If there are 5 persons in a room and one of them is murdered

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in circumstances which show that it is the handiwork (done by hand of any one or
more of them. Evidence will be allowed of every fact which makes it probable which
oneof then caused the death or which one of then was probably notconnected with it.

Illustration – The que is whether A committed a crime the circumstances are such
that the crime must have been committed either by A, B, C or D, Every fact which
show that the crime could have been committed by no one elese and that it was not
committed by either B, C or D, i

Note :- Stephen felt that "Facts relevant u/s 11 would, in most cases, be relevant
under other Sections

Reg Vs Parbhudas Where to prove the offen of forgery against the accused ,
evidence was offered of other forged documents

found in his possession, as this would make it probable that hecommitted the
forgery.

The above facts are also relevant u/s 14 to establish theknowledge and intention.

Sec. 15 Facts bearing on question whether act wasaccidental or

intentional –

When there is a question whether on act was accidental or intentional or done with a
particular knowledge or intention, the fact that such act formed port of a series of
similar occurrences, in each of which the person doing the act was concerned, is
relevant.

Illustration -

A is accused of burning down his house in order to obtain money for which it is
insured.

The fact that A lived in several houses successively each of which he insured, in
each of which a fire occurred, and after each of which fires A received payment from
a different insurance office are relevant as tending to show that the fires were not
accidental.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324020 20
Brides in bath case,

In this case a lady was found dead in her bathroom and the husband was charges
for murder. The main defence of the accused / husband is that the death of her wife
is accidental.

It has been proved that the husband had already killed his previous wife's X, Y and Z
in like

Relevancy of similar facts – for the purposes of law of evidence, a fact is said to be
similar to another when it is similarto a fact in issue.

For e.g. If a person is sued for selling beer of bad quality a similar fact will be the
sale of bad beer by the defendant to another persons.

If a doctor is sued for negligently performing a surgical operation, a similar fact

will be negligent operation in othercases.

If a person is prosecuted for theft, a similar fact will be thefts committed by him on
other occasions.

English Law – In English law, general principle is that the evidence of similar fact is
not relevant and therefore not allowed (Makin Vs Attorney Gen. for New South
Wales)

Every case has to be decided/tried on the basis of its own facts and not the facts and
decisions of other cases.

For Example – A person is charged with theft, the fact that he has been guilty of
several thefts before, will not prove that he is also guilty in present case.

Indian Law The Indian Evidence Act, 1872 does not anywhere mention the words
"similar facts." It does not contain any provision regarding the admissibility or non-
admissibility of similar facts.

For example – In emperor Vs Panchudas, at the trial of certain persons for robbery
and murder, the Court refured to receive of the evidence of other robberies
committed by the same accused in the same style.

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Exceptions of non –admissibility of similar facts –

In following circumstances the evidence of similar facts can be given –

1Sec – 15 to prove design or to overthrow the defence of accident –

The evidence of similar fact can be given to overthrow the defence accident and to
prove that the act was intentional and not accident. And the act was done with
particular knowledge or intention. (Makin Vs A.G.N.S. Wales case)

2Sec. 14 : To prove mental element

The evidence of similar facts cab be given to show that theparticular at is done
by knowledge or intention etc.

Hales Vs Kerrs

Evidence of similar fact can also be offered to prove the negligent state of mind. In
this case damages were claimed from a barber for negligence in sharing the plaintiff
with a ditry razor and thereby infecting him with ring worm. Evidence of two witnesses
who had been saved at the defendant's shop and similarly infected was half to be
relevant.

1Sec – 9 To establish the identify of accused –

Evidence of similar fact can be given to identify a peson

/accused u/s – 9.

2To show modus operandi –

Evidence of similar fact can be given to show the modes in which the thing etc.
operates and also to show the mode of operation (Emperor Vs Panchudas)

ADMISSION (S. 17 -23)

Sec-17 – Definition of "admission" –

An admission is a statement, oral or document or in electronicfrom, which suggests

any inference as to any fact in issue or

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relevant fact, and which is mode by any of the persons, andunder the
circumstances, hereinafter mentioned.

The section points three things –

1Definition of admission says that an admission is a statement which suggests some

inference as to the existence of a fact in issue or relevant fact to the issue.

2By whom admission is made (Sr. 18-20) 3Under which

circumstances adm. cab be made.

Definition of admission says that an admission is a statement which suggests some

inference as to the existence of a fact in issue or relevant fact to the issue.

For e.g. – A person is sued for recovery of loan and there is an entry in his account
books regarding the fact of the loan that is an admission on his part of his liability or
if he makes any statement to the effect that "he does owe money" that will also be an
admission being a direct acknowledgement of liability.

Form of admission

Admissions are of two types –1Formal

or judicial admission

An admission which is made as part of the ju. proceedings so that it is recorded in

the file of the Court, that is called a formal or ju. admissions and u/s 58 it need not to
be proved.

Leading case :- Nagindas Ramdas V/s Dalpatram Ichharam.

This is an action for eviction. The parties made a compromisein a court which was
executable as decree. The tenant, according to the above compromise agreed to
withdraw his defence and vacate unconditionally on a date stated, but subsequently
refused to do so.

The Court held – "If the tenant infact admits that the landlord is entitled to

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324023 23
possession, it is open to the Court to act on that admission and make an order for
possession in favour of the landlord without further inquiry."

2Informal or extra judicial admissions –

Such admissions may be made in the ordinary course of life, or in the Course of
business, or in casual or informal conversation.

The admissions may be in writing or oral. writing admissions may occur in the course
of correspondence, in letters, books, business diaries or accounts books or
pass books or otherrecords.

Pumping Vs D.P.P.

The mate of ship, charged with the murder a woman, wrote a letter to his wife
which was tantamount ¼dksfV esa vkrk gS½ to confession of the crime and gave it to
the seaman for posting who instead handed it over to the caption and the captain to
thepolice, the letter was allowed to be prove as an admission.

Reasons for admission of admissions

An admission of fact is a substantive piece of evidence. Several reasons have been

suggested for receiving admissions in evidence. These are as follows –

1Admissions as waiver of proof

First reason is that if a party has admitted a fact, it dispenses with the necessity of
proving that fact against him. Sec. 58 provides, formal adm. need not be proved.

2Admissions as statement against interest of maker –

An admission being a statement against the interest of the maker, should be

supposed to be true. It is highly improbable that a person will voluntarily make a false
statement against hisown interest.

3Admissions as evidence of contradictory statements –

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There is a contradictory between the party's statement and hiscase. This kind of
contradiction discredits his case.

3Admissions as evidence of truth.

Admissions by conduct –

Sec-17 says that admission can only be in form of the statement oral or
documentary or in ele form. It does not contain any provision regarding the
conduct as admission because the explanation of Sec. 8 already make the
provisions regarding the admissibility of conduct as admission.

Illustration – (g) Sec-8 – The qus. is, whether A woes B rupees 10000/-. The facts
that A asked C to lend him money, and that B said to C in A's presence and hearing
– "I advise you not to trust A, for he owes D 10000/-". and that A went away without
making any answer, are relevant fact and this is an admission by conduct.

Admission is a hearsay evidence -

An admission is a hear say evidence because in case of extra judicial or informal

admission, any person to whom admission is made can give evidence to that effect in
a Court.

For. eg – A sues B for recovery of Rs. 10000/- loan. B denies and B makes
statement to C, a third person, that he had taken

Loan. B's statement is an admission and (may give evidence as witness of it although
C was not present at the time of the loan and had only heard from. B.)

We can say that admission constitute an exception to the (60) hearsay rule. This is
admissible under Sec. 17.

By whom admission made

The effects of sections 18, 19 and 20, when put together, is thatthe admissions of
following persons are relevant –

1Parties to suit or proceeding (Sec-18). Plaintiff and defendant.2Agents of parties if

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324025 25
authorsed (Sec - 18). Advocate.

3Persons occupying representative character. (Sec. 18).

Trustees, receivers, executors, administrators etc.

4Statements of third persons – This category would include thestatements of the

following persons –

(a) persons having pecuniary or proprietary interest

In subject matter of the suit although he is not party toproceeding (Sec 18 (1))

For e.g. An admission by joint owner was held to be evidenceagainst other joint
owners.

(b) Persons from whom the parties derived their interest

Sec – 18 (2) admissions of such persons are relevant if they are made during
the continuance of the interest of the persons making the admission . A person of
this kind is called a ''predecessor-in-title.

For e.g. - The question is whether a certain person has a tenancy interest in a
particular property, a statement made by the former owner of the property about the
tenancy is relevant in the case.

(a) Persons whose position is in issue or relevant though he is not a party to the suit
his statement is admissible as evidence u/s 119

Illustration – A undertakes to collect rents for B. B uses 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 B rent is an admission, and is relevant fact against A.

(b) Persons expressly referred to, by the parties to the suit (Sec - 20)

Illustration – The question is, whether a horse sold by A to B issound.

A says to B- "Go and ask C, C knows all about it " C's statement is an admission.
Any statement by C about the horseis an admission against A.

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Proof of Admission

"Admission is statement against person making Give its exceptions.

Sec – 21 is based upon the principle that on admission is an evidence against the
party who has made it and, therefore, it can not be proved by person who made the
admission. It is because nobody shall give untruth statement against himself.

Illustration –

The qus. b/w A and B is, whether a certain deed is or is not forged. A affirms that it is
genuine B that it is 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 can not prove a statement by himself that the deed is genuine, nor can B
prove statement by himself that the deed is forged.

Exception – "admission must be self – harming"

Sec – 21 also provides that in certain exception circumstances given U/s – 21, the
admissions may be self favouring and it must be proved by maker their of. These are
as follows –

Sec- 21 (1) :- When the statement should have been relevant as Dying
declaration or as that of a deceasedperson U/s 32 .

An admission may be proved by the person making it when it is of when it is of such

nature that if the person making it were dead, it would be relevant as b/w third
persons U/s 32.

Illustration – (a)The Captain of a ship is sued by the ship owner for casting away
the ship by negligence. The Capain was maintaining a diary in the ordinary course
of his duty in which he recorded the couse that the ship followed and which showed
that the ship was not taken out of her course. Indeed his book would be relevant in
any case or proceeding in which the caused of the loss of the ship was in question.
In such circumstances the captain can prove the contents of his diary though they
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324027 27
operate in his favour.

(b) The que. is whether a person was present at ascertain place on a certain day.
He may show a letter written by him and posted by him from some other place, as
this proves his presence at the other place. Thus his own statement is in his favour
and relevant to show that he was present at some other place. This will also be
relevant U/s 11(1) as being the evidence of alibi/an inconsistent fact.

Sec – 21 (2) Statement as to bodily feeling or state of mind –

This sub-section provides that an admission may be proved by the existence of any
state of mind or body relevant or in issue, made at or about the time which such
state of mind or body existed, and is accompanied by conduct rendering its
falsehoodimprobable.

Illustration – (a)A is accused of receiving stolen goods knowing them to be stolen.

He offers to prove that he refused tosell them below their value.

(b) A is accused of fraudulently having in his possession counterfeit coin which he

knew to be counterfeit. he offers to prove that he asked a skill person to examine the
coin, as he doubted either it was counterfeit or not, and that person did examine it
and told him it was genuine.

A may prove these facts for the reasons stated in the illustration.

Sec – 21 (3) : When otherwise relevant –

This exception is that a person may prove his own statement when it is otherwise
relevant than an admission, i.e. any of the provisions relating to relevancy. In
otherwords an admission may be proved by or on behalf of the person making it, if it
is relevant otherwise than as an admission.

Statements when relevant –

1A person may prove his own statement U/s 6 if it is a part of same transaction. The
doctrine of res gestae covers such statements.

2A Statement may be proved by or on behalf of the person making it U/s 8 if it

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accompanies or explains acts other than statement or if it influenced it conduct of a
person whose conduct is relevant. For eg. A says to B, "You have not paid back my
money." and B walks away in silence, A may prove his own statement as it has
unfenced the conduct of a person whose conduct relevant.

3A statement may be proved by or on behalf of person making it U/s 14 if the

statement explains his state of mind body or bodily feeling. For eg – whether a
person has been guilty of cruelty towards his wife. He may prove his statements
made shortly before or after the alleged cruelty which explain his love and affection
for and his feeling towards his wife.

4A Statement many be proved on behalf the person making it if it is relevant under

any of the clauses of Sec – 32.

Effect of admissions/Evidentiary value of admissions –

The S.c. in case of Nagindas Ramdas Vs Dalpatram

Iccharam, observed that judicial admission is admissible U/s

58 which is made during the course of proceeding by parties or their agents, is

stronger piece of evidence than informal or extra judicial admission or a
evidentiary admission, made rut of the court.

Sec – 31 Admission not conclusive proof but may estop.

After analyising the sections 58 and 31 of this Act, we concludethat –

1According to sec – 31 admissions are not conclusive proof of the fact admitted. It is
a prima facie proof of the fact. The admission is a substantive piece of evidence of
the fact admitted and if it duly prove it constitute a good evidence.

2According to sec. 31 admission operates as stopped, the party admitting the fact will
not be allowed to go against the fact admitted.

3According to Scc - 58 facts admitted in proceeding by parties does not require any
proof i.e. waiver of proof.

If adm. are proved maker of can not contradict or deny it (stopped) but he con
challenge it on grounds of fact of voluntariness, cr coplusor or decrees
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324029 29
CONFESSION

The term "confession" is not defined in the Evidence Act, All the provisions relating to
confessions come under the heading of "admission". the definition of "admission" as
given in Sec – 17 becomes applicable to confession also.

Sec – 17 defines "admission" as a statement oral or documentary, which suggest

any inference as to any fact in issue or relevant fact."

If such a statement is made by a party to a civil proceeding it will be called on

"admission and if it is made by a party charged with a crime it will be called a
confession.

Thus a confession is a statement made by a person charged with a crime suggesting

an inference as to any fact in issue or as to relevant facts.

Confessions carrying inculpatory and exculpatory statement, irrelevant

The S.c. in its decision in Palvinder Kuur Vs State of Panjab, AIR 1952 approved the
privy Council decision in Pakala Narayan Swami Vs Emperor, AIR, 1939 over two
points –

Firstly - That the definition of confession is that it must either admit the guilt in terms
or admit substantially all the facts which constitute the offence,

Secondly- That a mixed up statement which even though contains some

confessional statement, will still lead to acquittal, is no confession. (mixed up
statement inculpatory as well as exculpatory is no confession.)

In Palvinder Kaur case the statement consisted of partly guilty (inculpatory) and
partly innocent (exculpatory).

The Lower Court sorted out exculpatory part and acting on the inculpatory part
announced the accused to be guilty of murder of her husband. But the S.C. did not
face this approach .

English Law - Under English Law the confession is not rejected only on the ground
that it contains ex-culpatory part also. The principle of English Law is that : the

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324030 30
whole statementmust be left to the Jury who may attach different weight to different
parts of it.

In Nishi Kant Jha Vs State of Bihar, 1959 the S.C. have beeninfluenced by English
Law but it did not mean to overrule Palvinder Kaur, Hanumant etc. case.

Types / form of confession –

1Judicial confession –

When confession is made before & Magistre U/s - 164 Cr.

P.C., it is called judicial confession. Sec – 229, 241, 252.

2Extra- Ju. Confession :-

When confession is made to oneself which may be produced in evidence if

overheard to another. For eg – Sahoo Vs State of
U.P. The accused who was charged with the murder of his daughter-in-law with
whom he as always quarrelling was seen on the day of murder going out of home,
saying words to the effect: "I have finest her and with her the daily quarrels."

The statement was held to be a confession relevant in evidence. It is not necessary

for relevancy of confession that it…

S. 163 Cr.P.C. : No inducement to be offered

Sec 24 - Confession caused by inducement, threat or promise,when irrelevant in

Cr. proceeding –

To attract the provisions of sec-24, the following things mustbe established –

1The confession must be the result of inducement threat orpromise :

2The inducement etc. should proceed from person in authority.

3The inducement etc. must relate to the charge in question;and.

4It should hold out some worldly benefit or disadvantage.

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When there conditions are present, the confession is said to benot free and will not
be receivable in evidence.

Inducement, threat or promise –

(1) Where the accused was told by Magistrate,

(i) "Tell me where the things are and It will be favourable ot you"or

(ii) "If you do not tell the truth you may get yourself into troubleand it will be worse
for you"

(iii) If you make a clear breast of it, I will see you acquittal.

(2) A sailor's confession in response to the captains words that" if you do not tell
me, I will give you to the police.

Confessions obtained in response to these statements were held to be irrelevant.

Person in authority –The inducement, threat or promise should proceed from a

person in authority the expression "person in authority" definitely refers to Govt.
officials –

Magistrates, their clerks Cornoers /Captain of ship/Sarpanch of village/Police

Constables/ Wardens, and Other having custody of
prisoners/Searchers/Prosecutors, and their wives & attoneys.

Every Govt. officials will be person in authority about whom the accused thinks that
he is capable of influencing the course of prosecution.

A surgeon attending a prisoner is person in authority. but a woman who is standing

there and told the prisoner that it is better to tell the truth and that the prisoner
confessed this crime to the surgeon, is relevant because inducement given by her is
not based by sec. 24

Inducement etc. should be in reference to charge –

It is necessary for the confession to be excluded from evidence that the accused

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should labour under influence that in reference to the charge in questions his
position would bebetter or worse according as he confesses or not.

For eg – Where a person charged with murder, was made of confess to a Panchayat
which threatened his removal from the caste for life, the confession was held to be
relevant, because the threat had nothing to do with the charge. (Emperor Vs
Mohan Lal)

Benefit of temporal nature –

The last condition for sec- 24 to come into play is that the inducement, evil etc. which
is threatened to accused or the benefit which is promised to him must be of material,
worldly or tempora nature. Mere moral or spiritual inducements or exhortations will
not vitiate the confession.

For eg – Where the accused is told. "Be sure to tell the truth:. or "You have
committed one sin, don't commit another and tell the truth, "a confession made in
response to this is valid.

Similarity, where the accused is taken to temple or church and is told to tell the truth
in the presence of the almighty/God, The confession made by the accused in this
response to this statement is valid because sec.-24 is applicable only to temporal or
worldly evil or benefit and not spiritual. and not spiritual.

Confession to Police –

Sec – 25 Confession to police officer not to be proved -

No confession to police officer, shah be proved as against aperson accused of

any offence.

Who is police officer –

A police officer means a member of the regular police force, but the S.C. has held
that the expression "police officer" would include any person who is clothed with the
powers of a police officer.

Customs Officers and officers under the NDPS Act, 1985 have been held to be not

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police officers though they are vested with some of the powers of officer-in-charge of
a P.S. Hence confession made to there officers can be proved as against the
accused person.

Excise inspectors and sub-inspectors enjoying police powers were held to be police
officers. Hence confession made to them is irrelevant and can not be proved as
against the accused person.

Case :- Sita Ram Vs State In this case the accused left letter recording his
confession near the dead body of his victim with the object that it should be
discovered by the police, the S.C. held the confession to be relevant. There was not
even the shadow of a policeman when the letter was being written, and planted.

Exceptions –

In some circumstances statement to police by accused personcan be proved

against him –

1 A special Legislation ay change the system of excluding confessions to police is

relevant then such confession can be used against the accused person.

For eg - N S A, TADA, POTA

2 A statement which does not amount to confession is not hit by the bar of Sec-
25. Hence those statement which does not come under the definition of confession
can be proved against the accused. for eg-

The accused has given a statement to police that in his presence the witness has
been murdered. This statement is not confession and can be used against the
accused to show his presence at the time of murder.

3 Only that part of confessional FIR is admissible which does not amount to a
confession or which comes under the scope of sec 27. The non-confessional part of
the FIR can be used as evidence against the informant accused as showing his
conduct u/s 8.

Police custody

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Sec- 26 : Confession by accused while in custody of policenot to be proved
against him

No confession made by any person whilst he is in the custody of a police officer,

unless it is made in the immediate presence of a Magistrate shall be proved as
against such person.

What is police custody –

Police custody means police control even if it be exercised in a home, in a open

place or in the course of a journey and not necessarily in the walls of a prison.

Illustration 1 –

Emperor Vs Jagia, where a woman arrested for the murder of a young boy was left in
the custody of villagers while the chaukidar (watchman) who arrested her left for the
police station and she confessed in his absence is irrelevant.

Illustration 2 –

R Vs Lester, while the accused being carried on a tonga was left alone by the
policeman in the custody of tonga driver where the accused told his criminality to
tonga driver, the confession was held to be irrelevant.

Illustration 3 –

Where the accused was taken to a doctor for treatment, the policeman standing
outside at the door, the accused confessedto that doctor was held to be irrelevant.

An accused made his confession to two persons of the locality. Subsequently, the
confession was reduced to writing inside the
P.S. on the accused being brought there.

The S.C. said that such extra judicial confession was not hit by Sec-26.

Presence of Magistrate –

Sec – 26 recognizes one exceptions of the accused confesses while in police

custody but in the immediate presence of a Magistrate, the confession will be valid

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Immediate presence of Magistrate means his presence in the same room where the
confession being recorded.

A confession made while the accused is in judicial custody or lock up will be

relevant, even if the accused is being guardedby policeman.

Sec-26 provides that confession to any person (other than police) while in police
custody can not be proved against that person. But this sec has an exception to the
rule above.

Sec -27 gives an exception to sec 26 and provides that if any person while in police
custody gives information, whether confessional or not and due to information given
by him certain things are discovered then that part of statement of which discovery is
made, can be proved against that person. Reason behind it, due to such discovery
such part of statement isdeemed to be truth.

For eg – A the accused told to the police officer in his custody that he murdered B
and the knife by which he has murdered B put it someplace. After discovery such
knife was discovered from the place informed by the accused.

According to sec- 27 the statement that "knife is put in some particular place: can be
proved against A but his statement that"he murdered B" can't be proved

In Pulukuri kottaya Vs Emperor. Case the scope of Sec- 27 was explained by the
privy council. In this case the Accused has confessed to police that he and his
friends murdered 'A' and the 'Gadasa' by which the murdered him is put behind
bush. After wards, record of that Gadasa look place at very spot where
accused informed it.

The H.C. of Madras admitted the whole of the above statements of …. and an this
basis convicted all of them.

The accused has appealed in privy council and P.C. acquitted them. It observed that
H.C. has wrongly acted on adopting the total statement accused, it is riolation of sec-
27. He told that only that part of confession in which accused told about the place of
'Gadasa' is relevant and rest of statement can not be used against accused. Only on
the basis part of that statement (recovery of Gadasa) accuse can not be convicted.
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324036 36
Constitutional Validity –

In State of UP Vs Deoman Upadhaya,

S.C. has held that Sec 27 of I & A nad Sec-162 Cr.P.C. are not apposite to each
other. further held that sec 27 is constitutionally valid and does not violate Art-14.

The main objection of accused was that if a person is in police custody, any
statement given by him can be used against him u/s 27 of I&A but if a person is not
in police custody and any statement given by him during investigation, u/s 162 it can
not be used against him – It is vilation of Art. 14 of constitution.

S.C. held that both sections are designed for different purposes. Sec 162 Cr. P.C. is
for the purpose of investigation while accused is not in police custody, whereas Sec
27 I & A is applicable only when accused is in police custody. So both sections are
different. Hence Sec-27 is not violative of Art. 14.

Kathi Kalu Vs state of Bombay

In this case S.C. helf that sec – 27 is constitutionally valid and does not violate of Art
20 (3) of Constitution.

P. Cotaiyar Vs Emperor. It was held that sec 27 is an exceptionof 26 only

Mohd. Inayatullah Vs State of Maharastra, Sec. 27 is anexecption of sections 25

and 26.

Mistri Vs R S.C. held that Sec. 27 is an exception to sec- 24, 25and 26.

Aghnoo Nagesia Vs Stare of Bihar

S.C. held that confessional statement includes not only the admission of the offence
but also other in criminal facts relevant of offence such as motive, preparation.
Concealment of weapons and conduct, intention knowledge of accused.

Sec 28 - If such confession as is referred to in Sec 24 is made after the impression

caused by any such inducement threat or promise has, in the opinion of the court,
been fully removed it isrelevant.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324037 37
Sec 28 deals with the validity of confession which is made after the effect of
inducement is already over. Once the mind is set free from the fear created by
threats of evil or from hopes of advantage from confessing any confession made is
likely to be free and voluntary and there can hardly be any objection to its validity.

Sec. 29 Confession otherwise relevant not to becomeirrelevant

because of promise of secrecy, etc.-

A confession, unlike an admission (sec 23) is relevant even if it is made under

promise of secrecy etc. According to this sec- confession is relevant even if it is
obtained under the following circumstances –

1By Making a promise that it will be kept secret or that evidence of it shall not
be given against him

If may be recalled that an admission made in civil cases under promise that evidence
of it shall not be given is not relevant, the policy being that litigants should be
encouraged to compromise their differences. That policy has no relevance in cr.
cases because here the public interest lies in prosecuting criminals and not
compromising with them. Consequently, therefore, where an accused person is
persuaded to confess by assuring him of the secrecy of his statements the
confession is nevertheless relevant.

2By Practicing a deception on the accused for the purpose of obtaining his
confession –

Where the confession is the outcome of a froud peing palyed with the accused, it is
nevertheless relevant. thus, for eg –

Where the two accused persons were left in a room where they thought they were
recording their conversation, the confessionsthus recorded were held to be relevant.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324038 38
3When accused was drunk –

A confession abstained by intoxicating the accused is equally relevant. The law is

concerned to see that the accused confessed his quilt is free and voluntary.

4In answer to questions which he need hane. answered –

Such a confession will be relevant even if the accused is not questions or that his
warned that he was not bound to answer such questions or that his answer will be
used in evidence against him.

The principle given in Sec. 29 is applicable to extra ju. confession only for recording
confession before the Court the provisions of sec- 164 (3) would have to be followed.
State of UP Vs Singhara Singh – SC held sec – 164 Cr. P.C. overrides sec.-29 I & A.

Overrides sec 29

Sec - 30

Consideration of proved confession affecting person making itand others jointly

under trial for same offence –

According to Sec 30

When more persons than one are being tried jointly for thesame offence and
a confession made by one of such persons

affecting himself and son other of such persons is proved, the Court may take into
consideration such confession as against such other persons as well as against the
person making such confession.

Confession of co-accused –

When more than one persons are being jointly tried for the same offence they are
called co-accused. When he records a confession implicating himself as well as his
other co-accused, that is called the confession of co-accused and the question arises
what is its value against the other non-confessing co- accused. Sec 30 provides in
this respect that such confessionis relevant against all the accused persons, leaving

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324039 39
the weightof the confession to the discretion of the court. - Richa

Bhuboni Sahu Vs The king, AIR 1949 1949 P.C.

In this case the privy Council held that confession is not recarded on oath, nor it is
given in the present of accused and not its truth can be tested by cross examination.
It is a very weak type of evidence.

The S.C. accepted the above observation about the effect of sec. 30.

Kashmira Singh Vs State of M.P. AIR, 1952 SC

Kashmira was working as an Asstt. food procurement inspector in M.P. Kashmira

and another inspector were suspended on a complaint made by food inspector that
they are misusing their post. about six month later a five years old child of the food
inspector was reported missing and found from a well packed in a bag. suspicion
naturally attached to the removed inspectors and ultimately Kashmira and
Gurubachan were brought before court as those who conspired and killed the child.

Gurubachan confessed implication himself and kashmira and with the help of his
confession the prosecution was able to give some shape to its story.

On the basis of Gurubachan's confession, which played on important part in a

verification the projection story, Gurubachan and Kashmira was convicted and
sentenced to death; Gurubachan never appealed and was, therefore, executed in
due course . But Kashmira carried the matter of his conviction to the S.C. and he
was acquitted.

Without the confession of his co-accused there was not much evidence against him
and the S.C. held that confession of co- accused is a very west piece of evidence
and only on this basis no other accused can be convicted for conviction, confession
ofco-accused must be corroborated with other evidence.

Evidentiary value of confession –

Confessions are considered highly reliable because no rational person would make
an admission against himself. The evidentiary value of confession has been
explained by the S.C. in quite a few cases and one among them is –

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324040 40
Shankaria Vs State of Rajasthan

In the above case the S.C. held that confession properly recorded u/s 164 Cr.P.C. is
a very strong piece of evidence and the Court may convict any person accused of
any offence only on the basis of this confession, if tow conditions are fulfilled –

1The confession must be voluntarily made ; and 2It must be true

and trustworthy.

In other types of confession which are not made properly, i.e.- extra judicial
confession, it is also a good piece of evidence if it is voluntarily made and
trustworthy. Further it must also be corroborated with other material evidence.

Retracted Confession – When a person, having one recorded a confession which is

relevant goes back upon it, saying either that he never confessed or that he wrongly
confessed, that is called a retracted confession.

Does this destroy the evidentiary value of the confession as originally recorded?

The S.C. has stated that a retracted confession may form the basis of conviction if it
receives some general corroboration from other independent evidence. But if the
Court is satisfied that the confession properly recorded was voluntarily it should be
acted upon.

Pyare Lal Bhargava Vs State of Rajasthan –

The S.C. observed that as, however, the confession was a retracted on it could be
acted upon only if substantially corroborated by independent. circumstances. It is
not necessary that retracted confession should be corroborated in each material
particular, it is sufficient that there is a general corroboration of the important
incidents mentioned in the confession.

Difference between admission and confession –

There are may common features between an admission and a confession. All the
provisions relating to them are given under the heading of "admission is more
comprehensive and includesconfession also.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324041 41
First - Since the provisions relating to confessional occur under the heading
"admission". it follows that the word "admission" is more comprehensive and
includes confession also.

SecondlyThough the def of admission given in Sec-17 should equally apply to

confessions also because then term "confession" is nowhere independently defined
yet it has been held by the P.C. in Pakala Naryan Swami Vs The King, and as
affirmed by the SC in Palvinder kaur Vs State of Panjab, that a confession must go
further and admit the quilt in terms orsubstantially the facts from which guilt follows.

Thirdly A confession is the admission of guilt in reference to a crime and, therefore

runs against the interest of the accused. The term "admission: on the other hand,
refers to every statement whether it runs in favour of or against the interest of maker.

Fourthly The conditions of relevancy are different. An admission made to any

person whatsoever is relevant whether he be a policemen or a person in authority or
whether it was the result of an inducement or a promise. But in the case of
confession, it must be free and voluntary.

Fifthly An admission made under the promise of secrecy is not relevant (U/s - 23)
but confession is relevant U/s – 29.

Sixthly By virtue of the provisions in sec-30 the confession of an accused person is

relevant against all his co-accused who are tried with him for the same offence. In
case of admission, statement of a co-plaintiff or co-defendant are no evidence
against the other.

Seventh A confession can only be made by a person who committed the crime or
who has participated in crime but admission can be made by party to a suit as well
as other persons who are mentioned in Sec- 18, 19 and 20, who are not parties to
the case.

Lastly- The effect of an admission is that it does not constitute a conclusive proof
but operates as estoppels (U/s-31) but as to the evidence value of conf there is no
provision in I & A, but court accept it as there is no provision in I & A, but court
acceptit as good proof of guild.
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324042 42
Statements by persons who cannot be fond/called as witness–

Sec – 32 - Cases in which statements of relevant for by person who is dead or

can't be found etc., is relevant –

Sec 32 is an exception to the principle of excluding hearsay evidence. The principle

of the Sec is that a person who has the first hand knowledge of the facts of a case,
but who, for

reasons stated in the section, such as death or disability, is not able to appear before
the course then his knowledge should be transmitted to the court through some other
person.

This section comes into play when the person whose statements, written or verbal,
or relevant fact made by a person, are sought to be proved to died, or can not be
found, or has become inkpad of giving evidence or whose attendance can not
procured at an amount of delay expense which under the circumstances of the case
appears to the court to be unreasonable, Sec-30 enumerates clause by the cases in
which such absentee statements can be cited in evidence.

Dying declaration or statements relating to cause of deal

Sec-32(1) provides that when any person has been died, his statement can be
proved in a court when it is made by him as to the cause of his death or as to any
of the circumstances of the transaction which resulted in his death. This statement
will be relevant in every case and proceeding in which cause of that person's death
comes into question.

Conditions for admissibility of dying declaration –1Person making

the statement must have died.

2Statement must have been made as tot the cause of his death or as to the
circumstances of the transaction which resulted in his death.

3The cause of his death must be in question.4The

statement must be complete.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324043 43
5The declarant must be competent person at the time ofmaking the statement, i.e.
sound state of mind.

6Anticipation of death is not necessary in India.

Reason for admissibility of D.d. d.

Dying declaration is made on the principle that a person will not make a false
statement who is going to die. Though the D.D. is a statement not made on oath and
cross examination of it is notpossible yet because of solemnity of occasion which
insuresthe truth more than a positive oath.

Pakala Narayan Swami Vs Emperor, 1939 P.C.

This case is based on the circumstances of the transaction which resulted in death. It
was also held that anticipation death at the time of making statement B not
necessary.

In this case the deceased made a statement to his wife that he is going to
barahampur for recovery of his money from accursed. After two days his dead
body was found in a steel

trunk at puri station. The Court has accepted the statement of deceased which w as
given to his wife regarding his movement to accused, as a d.d. as it includes the
circumstances of the transaction which resulted in his death. The P.C. also observed
that the anticipation of death at the time of making the statement is not necessary.

In India it is not necessary that time of death and declaration must be very near –

Kamla Vs State of Panjab, 1993

In this case the deceased woman has writes letters to hersisters and parents
regarding her made by her-in-Lows. After 3 months of her letters she has died in her
matrimonial home. The Court has treated these letters as dying declaration.

FIR as dying declaration –

Where an inured person lodged a FIR named and then died, itwas held to be
relevant as dying declaration.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324044 44
To whom statement (d d) may be made -

The statement may be made to any person such as Doctor, Police, Brother, Sister,
Parents, stranger etc. and that statement is admissible in Court.

Dying declaration may be oral or witten or bny sign or bygesture –

Queen Empress Vs Abdulla

A statement made by signs is also admissible. This was laid down by the full Bench
of Allahabad H.C. in the above case. In this case the deceased was prostitute;
she was assaulted by the accused Abdullah by cutting her throat. Deceased was
unable to speak due to her throat cut. She made an indication by her hands toward
the Abdullah. This such identification (gesture) was treated as statement (d d) of the
deceased.

Chandrasekhar Vs The King

The P.C. upheld the observation made by S.C. that the value of the sign language
would depend upon as to who recorded the signs, what gesturer and rods were
made, what were the questions skid, whether simple or complicated and how
effective and understandable the gestures and rods were.

Distinction between English Law and Indian Law –

1In English Las d. d. is relevant only in Cr. cases where the cause of his death is in
question, but in Indian Law such statements are relevant both in civil as well as Cr.
proceedings.
{Para 2 of sec 32 (z)}

2Under English Law d. d. must have been made under the expectation of death of
the person making it, but in Indian Law there is no such requirement is necessary.

Pakala Narayana Swami case

English case – R vs Mead, R Vs Jeking

Where declarant survives -

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324045 45
Where the declarant survives, his statement can not be used asa d. d. As long as the
declarnt is alive, it would remain only in the realm of a statement recorded during
investigation. If his survives and appears to give evidence, his declaration if made
before Magistrate, can be used to corroborate or contradict his testimony.

Evidentiary value of dying declaration –

Generally dying declaration is treated as weak piece of evidence because it was not
made on oath and cross examination of it is also not possible. In these statement
shouldbe necessary.

But in Kaushal Rao Vs State of Maharashtra case the S.C. has approved the
decision of P.C. in Pakala Narayana Swami Vs Emperor case. In the above case the
deceased person had noned the accused kaushal Rao and others to his brother
and

he told him that these persons have injured him. further he repeated this statement
to police officer, to Doctor and to a Magistrate.

In these circumstances the S.C, has propounded that –

1Dying declaration is not a weaker kind of evidence than any other piece of
evidence.

2It can be sole basis of conviction without its corroboration.

3Each case must be determined on its own facts and circumstances, keeping in view
the circumstances in which d.d.is made

Sec- 32 (2) Statement of relevant fact is made in the course of business –When
the statement was made by a person in the ordinary course of business, and in
particular when it consists of any entry or memorandum made by him in books kept
in the ordinary course of business, or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt of money, goods, securities
or property of any kind; or of a document used in commerce written or signed by him;
or of the date of a letter or other document usually dated, written or signed by him, is
relevant.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324046 46
Illustration – The qus is as to the date of A; 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.

A is accused of crime committed by him at Culcutta. 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, ifA were dead, it would
be admissible u/s - 32 (2)

Sec-32 (5) When statement relates to existence of relationship–

When statement relates to the existence of any relationship by blood, marriage or

adoption the person making the statement had special means of knowledge and
when statement wasmade before the question in dispute was raised.

Illustration – The qus. is whether A, who is dead was thefather of B.

A statement by A that B was son, is relevant.

Sec-33 :- Relevancy of evidence recorded in prior Judicial proceedings –

Sometimes it so happens that a person who has personal knowledge of the facts of
case did appear before a Court and his testimony was recorded, but at a later
stage of the

proceeding or in a subsequent proceeding, he is not available as a witness : in such

cases sec. 33 applies. The sec-declares that the testimony so recorded is relevant
for the purpose of proving the truth of the fact which it states.

Under this section the non-availability of witness may be due to death, can not be
found or incapable of giving evidence or is kept out of the way by the adverse party,
of if his presence can not be obtained without an amount of delay or expense which,
under the circumstances of the case, the court considers unreasonable.

Judgment of courts when relevant

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Qus. Generally previous judgments are not relevant in subsequent cases? Give its
exceptions.

Ans. Relevancy of judgments – Generally previous judgments are not relevant in

any subsequent case or proceeding. The principle behind it is that every case has to
be decided upon its own facts as they exist between the parties to itand not
by reference to the judgments in other cases.

For eg – If an action is started against a manufacturer for supplying defective goods

and the court holds to be not liable. Subsequently another person starts an action
against the same

manufacturer, for supplying the same kind of defective goods. The previous
judgment is not relevant in subsequent case.

Probate- the officially verified copy of a will together with certificates of its having
been proved which is delivered to the executor.

A court having Juri, under the 9.5 Act 1925, to pronomcs upon the genainehess of
declosed per will

Admirality Jori: Jori to desired cases origing out of war claim Insolerncy Jero Jori

whether person is insolvent or not.

A.M.S. - First part of sec-43 provides that judgments orders or decrees, other than
those mentioned in Section – 40, 41, 42 and 43, are irrelevant. Thus the above
sections are exceptions to the general principle that pre Judgments are not relevant
in subsequent proceedings. These are as follows –

1Sec - 40 :- Judgments to bar a second suit or trial –

A judgment which has the effect of res-judicata" or double jeopardy (300) is relevant
in every further proceeding to preventthe court from taking cognizance of the case.0

2Sec – 41 :- Judgments in probate etc, jurisdiction :-

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324048 48
Judgments for the purposes of relevancy are of two kinds,namely,-

1Judgments in rem, and

2Judgments in personam.

According to the Section, a judgment in rem dealing with the status or legal character
of a person can be pronounced only by the courts exercising the following kinds of
jurisdiction :-

1Probate Jurisdiction

2Matrimonial Jurisdiction

3Admiralty Jurisdiction

4Insolvancy Jurisdiction

Such a judgment is a conclusive proof/evidence for and against all persons whether
parties or stranger, of the matters actually decided. This Judgment is relevant in
further proceeding where the question in issue relates to status or legal character of
a person.

Sec – 42 –

Judgment relating to nature of public right are relevant insubsequent proceeding but
are not conclusive evidence.

For eg –

A sues B for trespass on is land. B alleges the existence of a public right of way over
the land, which A denies.

The existence of a decree in favour of a defendant, in a suit by A against C for a

trespass on the same land in which C alleged the existence of the same right of way,
is relevant, but it is not conclusive proof that the right of way exists.

Sec 43 :

The second part of sec – B provides that if judgment is not relevant in Ss – 40, 41,
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324049 49
42 then it will not relevant in further proceeding accept when it is relevant otherwise
than as judgment, i.e. it is relevant in any other section of this chapter or is a fact
in issue.

Illustration – (a) A has obtained a decree for the possession of land against B. B's
son C murders A in consequence.

The existence of the judgment is relevant, as showi motive for acrime.

(b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the
court convicts B of adultery. After words, C is prosecuted for bigamy in marrying B
during A's lifetime. C says that she never was A's wife.

The judgment against B is irrelevant as against

Sec – 44 Evidentiary value of judgments

Any party to a suit or proceeding may show that any judgment, order or decree
which is relevant u/s's – 40, 41, or 42 and which has been proved by the adverse
party, was delivered bya court not competent to deliver it , or was obtained by fraud
or collusion.

Thus its value may be demolished by showing the above reasons.

Opinions of 3rd persons when relevant

Evidence of opinion –

The general principal of the law of evidence is that every witness is a witness of fact
and not of opinion. This means that a person who appears before a court is entitled
to tell/depose the court only the facts of which he bas personal knowledge and
not his opinion about the facts. he should speak of what he knows and not what he
believes. The formation of opinion is a task of the court.

The S.C. of India in Mobarak Ali Ahmad Vs State of Bombay held that if a
witness were permitted to express his opinion, t would amount to delegation of Ju.
function.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324050 50
Exceptions –

In certain matters Court has to admit the opinion of witnesses like experts. Reason
for admissibility of opinion of expert is that certain technical matters which came
before the court require professional and specialized knowledge which Court may
not possess and may therefore, rely on those who possess such knowledge.
Opinions of experts are made relevant u/s 45 of I & A.

Who is an expert –

Sec – 45 permits only the opinion of or expert to be cited in evidence. so a

question arise who is an expert? But at this point the evidence Art is silent. It
does not refer any educationalqualification etc. for becoming an expert.

Generally, a witness is considered as an expert if he is skilled in any particular art,

trade or profession, and possessed of peculiar qualifications are necessary fro
becoming a witness asan expert.

In Abdul Rahman Vs State of Mysore where the opinion of professional goldsmith

as to the purity of the gold in question was held to be relevant as the opinion of an
expert, though he had no formal qualifications, his only qualification being his
experience.

Subjects on which experts can testify –

Sec- 45 provides that the opinion experts can be allowed onlyon the following
points –

1Foreign Law, 2matters of

science,3questions of arts

4Identity of handwriting, or5of finger

impression.

Foreign law -

Who can be regarded as an expert of foreign Law It wassuggested that he should be

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324051 51
practitioner on law of that country.

Matters of science or art –

Where the fatal wounds in question could have been inflicted by the deceased
himself or only by someone else, the opinion of a medical man would have been
relevant.

A person was prosecuted for stabbing his wife to death and he claimed to have done
so in sleep. The med evidence of a psychiatrist on the question of automatism was
allowed. The expert medi or scientific evidence was admissible to assist the

juri in distinguishing between genuine and fraudulent automatism.

"Selvi & other Vs state of Karnatka 2009

In this care S.C. has referred to admit the opinion of expert on brain mapping,
polygraph, Norco-test. Its main reason act to court is that these tests are in their
preliminary stage of development and further test and documents are required to
establish it as the evidence.

Further these test if conducted with—consent of accused, thenit is ……………. and

violation of Art 20 (3) of Constitution.

Identify of handwriting or finger impression -3

The court may receive the evidence of a person who has acquired an expertise on
the identify of handwriting of certain person or the identify of a certain person's finger
impression.

In the court observes that a solicitor (Advocate) might be treated as an expert in

handwriting even if he had acquired his knowledge as an amateur (new learner).

Evidentiary value of opinion of experts –

Sec – 45 only makes the opinion of expert relevant but it doesnot provide the
value of this type of evidence.

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Generally opinion of expert is considered to a light value because it may likely to
be prejudiced in favour of the side callas thim. So evidence of expert should be
approached with considerable caution. In many cases court has held that general
corroboration is necessary and the court is not bound by the opinion of expert.

Ram Narain Vs State of U.P. (handwriting) Sec. 46 Facts

bearing upon expert opinion

Sec. 46 provides that when the opinion of an expert is relevant and has been cited,
any fact which will either support his opinion or contradict it will also become
relevant.

In support of expert evidence it is open to the party to produce statements from outs
lading books or from experiments or other acts upon which the opinion of expert is
based.

When experts expres opposite views, in the matter the Judge has to decide the
issue.

Sec. 47 Opinion as to handwriting, when relevant –

When the court has to determine the question whether a document is written or
signed by a certain person, the court can admit the opinion of a person who is
acquainted with thatperson's handwriting.

Explanation – Explanation attached to the section gives guidance as to who is

considered to be acquainted with another's handwriting. It includes a person –

1Who has seen that person writing, or

2Who has received documents written by that person in answer to documents written
by himself and addressed to that person, or

3Who has in the ordinary course of business, received documents written by that
person or such documents are habitually. submitted to him.

Fakhruddin Vs State of M.P.

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In reference to Ist point it has been held by S.C. that handwriting may be proved by
the evidence of a witness in whose presence the writing was done and this would be
direct and it is available not any other evidence is necessary.

Illustration – The question is, whether a given letter is in the handwriting of A, a

merchant in Landon.

B is merchant in Calcutta, who has written letters addressed to A and received

Letters purporting to be written by him.

C is B's clerk, whom B habitually submitted the letters purporting to be written by A

for the purpose of advising him thereon.

The opinions of B, C and D on the above question are relevant though neither B, C
nor D ever saw A write.

Modes of proving Handwriting –

Sections 45 and 47 put together, recognized the following nodes of proving

handwriting -

1By the evidence of the writer himself (admission).2By the opinion

of an expert

Ram Narain vs State of UP

In this case a child was kidnapped. The parents of the child received a handwritten
post-card followed by an inland letter demanding Rs 1000 and Rs 5000, respectively
as ransom for the child. The author of the letters was traced and a handwritingexpert
testified the letters to be in handwring of the accused on soled on the basis of this
evidence the accused was convicted.

3By the evidence of person who is acquainted with the handwriting of the person in
question.

4U/s – 73 by the Court itself comparing the handwriting in question with the proven
handwriting of that person.

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"Sodium pentetol"

Brain mapping test, lie detector test, Norco test etc. is not admissible as scientific
evidence –

Ranjit Singh Brahmajeet Singh Sharma Vs State of M.P. AIR 2005 The S.C. held
that those are investigation tools and helps the investigation agency and not
admissible as scientific evidence

Selvi & other Vs Karnatka – 2009Relevancy

of character

Ss-52-55

1Relevancy of character in civil cases – Ss 52, 55 2Relevancy of

character in criminal cases – Ss 53. 54.In Civil cases –

Sec-52 lays down the general principle that the evidence of a party's character can
not be given For, the purpose of showing that it renders the conduct imputed to him
as probable or improbable.

In other words, in civil cases, generally, character is irrelevant.

For eg- (Teaching)

If a person is charged with negligent driving he can not give evidence of the fact that
his character and conduct has been such that he could not have been guilty of
negligence. Similarly, his opposite party cannot give evidence of the fact that his
character and conduct had been so bad that he must havebeen negligent.

Reason is that every case must be decides upon its own facts.

But it has certain except, i.e. in certa cases character of persons becomes relevant.
There are as follows-

When character affecting the amount of damages–

Sec – 55 provides that in civil cases, character of any person is relevant when it
affects the amount of damages which anyperson ought to receive.

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This exception has been after used in actions for damages for defamation, or for
kidnapping, or rape or for breach of promise of marriage.

When Character is in issue –

Evidence can be given of a party's character when his character is itself a fact in
issue.

For eg – Where an action is brought for divorce on the ground of cruelty, the curel
character of the husband/defendant, being a fact in issue, the plaintiff can lead
evidence of it.

Although these is no direct provision on the point relating to civil cases, this followed
from Sec-5 which provides that evidence can be given of relevant facts or facts in
issue. Similarly exp. of Sec 54.

When character appears from other relevant evidence -

A fact which is otherwise relevant (not as character) can not be excluded from
evidence. This appears from the last concluding line of Sec. 52.

For eg – Where a journalist is described as an exploiter and he sues for damages for
defamation and if the defendant takes the defence that whatever he has said is true,
he will have to lead evidence to prove the exploitation which the plaintiff has been
practicing. Such evidence will also bring to light the real character of the plaintiff and
the court can take note of this

In maintenance cases u/s 125 Cr. P.C. also

In criminal Cases –

Sec. 53 : In cr. cases previous good character relevant :

In criminal proceedings, the fact that the person accused is of a good character, is
relevant.

The main purpose of criminal law is not to make the affender / accused criminal but
to give chance, if he has good character before committing the crime, to reform
himself. For this purpose'Probation System' is in force in India.

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Sec. 54 : In cr. cases previous bad character not relevant, except in reply –

Sec. 54 provides that generally bad character of any person is irrelevant in criminal
proceedings.

But in following cases, bad character of a person is relevant-

1To rebut prior evidence of good character (sec. 54) –

While the prosecution has no right to introduce the evidence of the bad character of
the accused, if the accused himself has made an issue about his character by giving
evidence that he is a man of good character, the prosecution can rebut or contradict
such evidence by adducing evidence his bad character. Sec. 54 recognises this
exception.

2When character is in issue –

The ban imposed by sec. 54 upon the relevancy of the badcharacter of the
accused is not applicable where his character

is itself a fact in Issue for it may afford a defence to the accused and therefore, the
accused can adduce evidence of her bad character.

3When character is otherwise relevant –

Evidence can always be given of facts which are relevant under any of the provisions
relating to relevancy given in Ss 6 to 55 even if such facts incidentally involve or
reveal the character of the accused or of the prosecutor.

For eg – If his bad character will show on essential state of mind (intention,
knowledge) it will be relevant u/s 14, and

if it is essential to show design or system to over through the defence of accident, it

will be relevant u/s 15.

Explanation of Sec. 55 –

Expl. provides that in Ss- 52, 53, 54 and 55, the word "character" includes both
reputation and disposition (nature);

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Except a provided in Sec. 54, evidence may be given only of general reputation and
genera disposition, and not of particular acts by which reputation or disposition is
shown.

"A man's character, it is sometimes said is what he in fact is whereas his reputation
is what other people think he is."

Reputation of person means the estimation in which public hold him. This is not
based upon personal knowledge of person.

Disposition of person mean his nature, and it can be spoken only by persons
having personal knowledge. For ex. husband & wife may how reputation of having
couple put their near friendsknow they quarrel character/

Que: Whether previous conviction of person is relevant insubsequent

proceedings.

Ans : In civil cases : Previous conviction of a person is not relevant though it arises
out of the same facts on which the civilcase has been filed this rule was laid down in

Hollington Vs Hewthorn & Comp. LtdIn criminal

cases :

Previous conviction of a person is relevant in subsequent following cases –

1To show bad character (Examination 2 of Sec. 54) 2To show mental

attitude (Explanation 2 of Sec. 14) 3To overthrow the defence of

accident (Sec. 15)

4To enhance the punishment (Sec. 75 IPC, 236 & 248 Cr. P.C.
)

PART – II ON PROOF

Facts which need not be proved –

The general rule is that all facts in issue and relevant facts must be proved by
evidence either by oral or documentary.

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To this rule there are certain exceptions. There are certain facts which the court shall
admit without any proof. These are following –

Sec 56, (2) Sec 58 (3) presumptions

Facts presumed by the Court – Sec 114

The I & A makes provisions that Court may shall presume certain facts. These facts
need not be proved.

Illustration – There is a presumption of death arising from seven years unexplained

absence. Here, the death is presumed to exist.

MODES OF PROOF

A fact may be prove either by oral evidence of the fact or by documentary evidence,
if any this means there are two methods/modes of proving a fact. One is by
producing witness of fact, which is called oral evidence, and the other, by producing
a document which records the fact in question and this is called documentary
evidence. This is the effect of Sec-59

which provides that all facts except the contents of documentsor ele. records may
be proved by oral evidence.

Oral evidence must be direct, i.e. hearsay evidence mustbe excuted – Sec -
60

A/c to Sec-60 oral evidence must be direct. This means that the witness must tell to
the Court the facts of which he has first hand knowledge. It means that he must have
been perceived the facts by any one of the five senses i.e. the person who saw. or
heard the happening of any incident must personally tell to the court about that
incident and the person who has not seen the happening of the incidence can not
give evidence in the Court. so this sections excludes the hearsay evidence because
the person giving such evidence has no responsibility if he has been questioned
about his testimony truthorthy. He has a line of escape by saying that "I do not
know but so and so told me." So it is not possible to fix the responsibility in hearsay
evidence

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. This is why hearsay evidence, generally. not admissible.

Exceptions exclusion of hearsay evidence :

In certain circumstances hearsay evidence is admissible, theseare follows –

1Res Gestae (Sec 6)

2Admissions and confessions (Sec-17-31)

3Statements relevant u/s 32

4Evidence in former proceedings (sec- 33) 5Statements in

publice documents such Acts.

6Statements of experts expressed in any treatise/books (Sec-60, proviso)

Chapter – 5 Documentary Evidence

The expression "Documentary evidence" as it is defined inSec.-3, means :

All documents produced for the inspection of the court : are called documentary
evidence.

The expression document" is defined in Sec-3 as follows 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 recoding that
matter.

Sec. 61: Proof of contents of documents –

The Contents of document may be proved either by primaryevidence or by

secondary evidence.

Primary evidence

Sec-62 defines the e expression "primary evidence of a document. Accordingly the

following four are included in primary evidence –

1The original documents itself produced for the inspection of the court

2Where a document is executed in counterparts each counterpart is primary

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evidence against the party signing it .

3Where a document is executed in counterparts each counterpart is primary

evidence against the party signing it.

For eg – In the case of a cheque, the main cheque is signed by the drawer so that it
is a P.C. against him and the counterfoil may be signed by the payee of cheque so
that it will be a P.C. against the payee.

4Where a number of documents are all made by one uniform process, as in the case
of printing. lithography, or photography, each is primary evidence of the contents of
document.

Secondary evidence

Secondary evidence of a document is defined in Sec-63. Itincludes the

following –

1Certified copies of the original document;

2Copies made from the original by mechanical processes which in themselves

assure the accuracy of the copy; andcopies compared with such copies;

3Counterparts of documents as against the parties who did not sign it.

4Oral account of the contents of a document given by a person who has himself
seen the document.

5Oral account of the contents of a document given by a person who has himself
seen the document.

Illustration for clause 3 - A copy made from a copy, but after wards compared with
the original, is secondary evidence but the copy not so compared is not s.e. of
the original, although the cope from which it was made was compared with the
original.

Proof by Primary evidence

Sec- 64 – Proof of documents by primary evidence –

Documents must be proved by primary evidence except in the cases hereinafter

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324061 61
mentioned.

Sec 64 embodies the principles that a document must be proved by, its primary
evidence, But his sec- may defeat substantial justice, so sec- 65 embodies.

Any one of the grounds on which secondary evidence becomes admissible would
have to be proved in the first place.

When secondary evidence can be given –

Sec-65 : Cases in which secondary evidence relating documents may be given

–

A-. 1 When the original is shown or appears to be in possession or power of party

who does not, even after notice u/s-66, produce it, or

2When the original has been destroyed or lost.

3When the original is of such a nature as not to be easily movable (bulky)

B-When the contents of documents of document has been admitted by a party

against whom it has to be proved then their written admission can be given as
secondary evidence.

C-In case of public document etc only certified copy of the document can be given as
secondary evidence.

D- When the originals consists of numerous accounts or which cannot be

conveniently be examined in court, and the fact to be proved is the general result of
the whole collection, any person who has examined them, and who is skilled in the
examination of such documents may be produced as secondary evidence.

of person out of reach of or not subject to the process of the court, or

any person legally bound to produce it, and although due notice has been given to
him in accordance with the terms o f sec- 66,he does not produce it.

Sec- 67 " Proof of signature and handwriting –

Sec- 47 If a document is alleged to be signed or to have been written by any person,

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the signature or the handwriting of so much of the documents as is alleged to be in
that person's handwriting must be proved to be in his handwriting.

Digital signature

Sec- 47 A provides that where the court has to from an opinion as to the digital
signature of any person can be proved as per the provisions of Sec 73 A.

Sec- 67A : Proof of digital signature –

In case of any signature other than secure d.s., the d.s. of person can be proved as
per the provision of sec A

Sec-73A. Sec 73 A provides that in order to ascertain whet h a

d.s. is that of the person by whom it purports to have bee affixed, the Court may
direct – (a) that person or controller or the certifying Aut. to produce d.s.c. (b)
any other person to

apply the public key listed in d.s.c. and verify the d.s. purportedto have been affixed
by that person.

Sec. 68 : Proof of execution of attested document -

The principle laid down in the section is that whenever & document, the execution of
which is required by law to be attested, is produced before a court as evidence, at
least one attesting witness shall be called to prove the execution of the document.
This principal will apply only if at least one of the attesting witnesses is alive, capable
of giving evidence andsubject to the process of court.

Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in
accordance with the provisions of the Indian Registration Act 1908 unless its
execution by the person by whom it purports to have been executed is specifically
denied.

Sec- 69 : Proof where no attesting witness found –

If no attesting witness I s available or if the document is executed in the U.K.

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(Landon), two then should be proved, Firstly – the signature of the fess on executing
the document is in his handwriting and Secondary the signature of at least one
attesting witness is in his handwriting.

Sec. 74 : Public documents –

It provides the public document into two kind – 1Document forming the

acts or records of the acts –(i)of the sovereign authority ;

(ii) of official bodies and tribunal, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country.

Private documents which are registered in public office also become public
documents. for eg- the munorandur and articles of a company are registered with the
Registrar of companies and therefore, they become public documents.

Sec. 75: Private documents All other documents are private.

Example of public / private documents –

(a)Insurance policy is not public document. (b)Post mortem

report is not public document.(c)Panchnama is not public

document. (d)Electoral role is a public document (e)Paddy

register is a public document. (f)Waqf deed is a public

document.

(g)Site plan made by I.O., map etc. are public document.

Sec- 76 : Proof of public documents –

Sec – 76 provides that public documents can be proved by producing certified

copies. It means that public documents are always provable by secondary evidence.
Sec- 76, therefore makes I t the duty of the officer who has the custody of a public
document to issue a certified copy of the public document on demand.

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CHAPTER – 6 Of the exclusion of oral by docu. evidence

One of the fundamental principles of the Law of evidence is that in all cases the best.
evidence should be given. Where the fact to be proved is embodied in a document,
the document is the best evidence of the fact. Such fact should, therefore, be
proved by the document if self, i.e. by the primary or secondary evidence of the
document. The maxim of the law is that whatever is in writing must be proved by the
writing.

Sec-91 incorporates the above principle. It provides that when a contract, grant or
some other disposition of property is reduced to the form of a document or is
required by law to be reduced to a document, no evidence shall be given for
theproof of it except the primary or secondary evidence of the writing itself.

For eg – Transfers of immovable property of the value of Rs.

100 or upwards are required by law to be in writing. Thus writing becomes it
own evidence and excludes all other kinds of evidence. The writing excludes oral
evidence altogether.

Thus his sec – 91 forbids proof of the contents of a writing otherwise than by writing
itself.

Ambiguous Documents(Ss – 93 - 100)

When a document is ambiguous, that is, either its language does not show the clear
sense of the document or its application to facts creates doubt then the question
arises that whether this ambiguous can be removed by giving oral evidence.

For this purpose ambiguities are of two kinds –

(1) Patent ambiguity, and (Ss-93 and 94)

(2) Latent ambiguity (Ss – 95-97)
Patent ambiguity

A patent ambiguity means a defect which is apparent on the face of the document.
The document is apparently defective. Any person reading the document with
ordinary diligence would at once observe the defect. In such cases the principle is
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that oral evidence is not allowed to remove the defect. The reason

for the rule is that the document being clearly or apparently defective, this fact must
be or could have been known to the parties and if they did not care to remove it them
it is too late to remove it which a dispute has arisen.

First kind of patent ambiguity is given u/s 93. According to this section, when d
language used in a document is, on its face, ambiguous or defective, evidence may
not be given of facts which would show its meaning or supply its defects.

Illustration :- A agrees, in writing, to sell a horse to B for Rs. 1000 or Rs 1500.

Evidence can't be given to show which price was to be given.

Illustration :- A deed contains blanks. Evidence can not be given of facts which
would show how they were meant to be filled.

Second kind of patent ambiguity is given u/s 94 According to this sec. when
language used in a document is plain in itself, and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to
such facts.

Illustration : A sells to B, by deed "my estate at Rampur containing 100 bighas-

evidence may not be given of the fact

that the estate meant to be sold was one situated at a differentplace and of a
different size.

Latent ambiguity

A latent defect means a defect which is not apparent on the face of the record.
There is nothing apparently wrong with its language. But when the attempt is made
to apply it to the facts stated in it, it comes out that it does not accurately apply to
those facts. Thus the defect is not in the language used in the document, but in the
application of the Language to the facts stated in it, such a hidden defect is known as
a latent defect.

The general principle is that evidence can be given to remove such defects.

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First kind of latent ambiguity is given u/s 95. According to this section when language
used in a document is plain / clear in itself, but is unmeaning in reference to existing
facts, evidence may be given to show that it was used in a peculiar sense.

Illustration – A sells to B, by deed. "my house in Calcutta. A had no house in

Calcutta, but it appears that he had house at Hawrah, of which B had been in
possession since the execution of the deed.

These facts may be proved to show that the deed related to thehouse of Hawrah.

Second type of latent ambiguity is given u/s 96 According to this section when
the language of document is clear and is intended to apply to only one thing or one
set of facts but in its application to the existing fact it is difficult to say to which
particular thing it was intended to apply, oral evidence can be given to clarify such
defects.

Illustration – A agrees to B, for Rs 1000 " my white horse A has two white
horses. Oral evidence may be given of facts which show which of them was meant.

Third type of latent ambiguity is given u/s 97. According to this section when the
language used applies partly to one set existing facts, and party to another set of
existing facts, but the whole of it does not apply correctly to either, evidence may be
given to show to which of the two it was meant to apply.

Illustration – A agrees to sell to B "my land at X in the occupation of Y." A has land
at X, but not in it occupation of Y, and he has land in the occupation of Y but it is not
at X,evidence may be given to show to which he meant to sell

Miscellaneous – Besides above, there are some other points concerning a

document on which extrinsic can be given. Sec 98 deals with such type of defect. It
provides that, evidence can be

given of the meaning of illegible (unreadable) or technical expressions.

Illustration – A, sculptor, agrees to sell to B. "All my models", A has both models

and modeling tools. Evidence may be given to show which he meant to sell.

Sec-98 permits evidence to be given of the meaning of words or marks of illegible

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(unreadable) character or words which are not commonly of intelligent character,
foreign words, obsolete words, technical, local and provincial expressions. Thus Oral
evidence is admissible for the purpose of explaining artistic words and symbols used
in a document.

PART – III

CH- 7 Of Burden of Proof

Definition of "burden of proof " -

The expression "burden of proof" is defined in Sec- 101 in these words–

When a person is bound to prove the existence of any fact, it is said that the burdens
of proof lies on that person.

The Question is which out of two parties has to prove a fact. The answer decides the
question as to burden of proof.

Sec-101 Provides that burden to prove the fact/case lies on the party who wants the
court to give judgment on the facts asserted by him. It never…………..

Illustration – A desire a court to give judgment that B shall be punished for a crime
which A says B has committed.

A must prove the existence of those facts.

Sec-102 provides that the onus or burden of giving evidence lies on person who
would fail if no evidence is given in that case. It continuously shifts.

For eg – In civil cases burden of proof lies on plaintiff because according to sec-101
he wants the court to give judgment on the basis on the facts stated by him in his

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plaint.

In cr. cases generally burden of proof lies on prosecution because he wants court to
give judgment in his favour and convict the accused.

Sec-103 Provides that the burden of proving of particular fact is on the person who
wants court to believe the existence of that particular fact.

For eg – Illustration – A prosecutes B for theft and wishes the court to believe that
B confessed the theft to C. A must prove the confession B wishes the court to
believe that, at the time in question, he was elsewhere. He must prove it.

In this illustration, According to Sec-101 the burden of proof lies on A because he

wants Court to give judgment and wants conviction of B.

According to sec. 102 onus / responsibility of giving evidence is also on A because if

neither A nor B give any evidence, A well lose his case.

Further in the given illustration A wants the court to believe that at the time of
commission of crime, he was elsewhere, it is a particular fact and according to sec-
103 responsibility to prove it. lies on B.

Difference between burden of proof and onus of proof.

Ranchodbhai Somabhai Babubhai, AIR 1982 Guj,

The distinction between burden and onus has been exemplified by the Gujrat H.C. as
follows – Burden of proof lies on the person who has to prove a fact and it never
shifts, but the onus of proof shifts, Such shifting of onus is a continuous process in
the evaluation of evidence.

Note : (Burden of proof and presumptions are ante poll/opposite to each other)

Que :-"Prosecution has to prove his case beyondreasonable

doubt" Comment.

Ans :- Presumptions of innocence – It is a general principleof cr. Law that every

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person accused of any offence always presumed to be innocence and it is the duty
of prosecution to prove the accused's guilt beyond reasonable doubt.

It means burden of proof in cr. cases lies on prosecution and as per sections 101 and
102 burden of proof as well as onus of proof (burden of giving evidence) lies on
prosecution.

The common Law maxim is based on burden of proof and presumption of under
Indian Cr. Juristpru.

Woolmington Vs Director of P. Ps

The House of Lord of held that there is already presumption of innocence and there
is burden lord down on prosecution to establish the guilt of accused and not on the
accused to prove his innocence.

K.M. Nanawati Vs State of Maharashtra, AIR 1962.

Execptions

The general principle that "burden of proof lies on prosecution" has certain
exceptions –

1Sec-105 provides that if the accoused wants to take benefit of general exception
u/cr IV IPC, it is his duty to prove that his case falls in the circumstances of general
exception.

For eg - Sec084, 82 etc. There is presumption to be same.

2If evidence Act provides any presumption against accused then prosecution has not
to prove and it is now duty of accusedto rebut that presumptions.

Sec – 106 Burden of proving fact especially withinknowledge

This sec- provides that when any fact is especially within the knowledge of any
person the burden of proving that fact is uponhim.

Illustration – A is charged with travelling on a railway without a ticket. The burden of

proving that he had a ticket is on him.

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In the case of plea of alibi, since only the person raising the plea knows where
he was at the time, burden lies on him to prove that fact.

Application of the principle –

Res ipsa loquiture (things itself speak)

The principle stated in Sec. 106 is an application of theprinciple of res ipsa

loquiture.

Scott Vs London and katherin Docks Cong

Where a pedestrian was electrocuted from a live wire which was hanging on the
road from an electric poll the court presumed that it must have been due to
negligent management. The burden was on Electro city Board to show proper
management which they failed to do and therefore, the maxim "Res ipsa loquitur"
became applicable.

Presumption of survivorship

Sec – 107 provides that when the question is whether a man is alive or dead and it is
shown that he was alive within 30 years, the burden of proving that he is dead is on
the person who affirms it.

Presumption of death

Sec – 108 provides that if a person is not heard of for seven years, the presumption
is that he has died and if any body alleges that he is sties alive he must prove that
fact thus seven year absence creates rebuttable presumption of death.

No presumption as to time of death

Leading case: Mohd. Sharif Vs bonde Ali

The court held that Sec. 108 gives only a presumption of death and it does not give
any presumption regarding time of death. If the time death is a vital fact then those
who wants to prove the

time of death, burden of proof lies not him prove the time of death by giving
additional evidence.
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324071 71
Nepeam Vs Doe d Knight

The court held that where a person goes abroad, and is not heard of for seven years
the Law presumes the fact that such person is dead, but not that he died at the
beginning or at the end of any particular period during these seven years : and it is
the duty of party to prove the precise time of death of the person by additional
evidence.

Proof of ownership Sec – 110

Possession of anything is a symbol of owners possession is prima facie proof of

ownership. Possession is 9/10 of ownership.

So that if a person is shown to be in possession of something there is the prismatic

that he is the owner. If any body alleges that the party in possession is not the
owner, h must prove that fact. Sec – 110 incorporates this principle.

Practical application of Sec-110- Theft –

Possession of stolen goods.Sec- 145 Cr. P.C.

Limitation Act – Adverse possession of 204

Presumptions –

When the court presumes the existence of a fact that is known as a presumption.
The effect of a presumption is that a party in whose favour a fact is presumed is
relieved of the initial burden of proof. The court presumes the existence of the fact in
his favour and may act on it unless the contrary is shown.

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Kinds of presumption –

1- Presumption of fact (may presume) 2-

Presumption of Law (shall presume)

Presumption of fact – (may presume)

Sec. 4 provides that whenever it is provided by this Act that the court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved or
may call for proof ofit.

A presumption of this kind is wholly in the discretion of court. The court may or may
not presume the existence of the fact in question.

For eg – If a person is shown to be in possession of stolen goods soon after the

theft, the court may presume that he was the thief himself or had knowledge of the
fact that the propertyin question was stolen.

All the presumptions stated in Sec. 114 are of this kind. This kind of presumptions
are always rebuttable, i.e. evidence effect of presumption can be negativated by
contrary proved.

Presumption of Law – (Shall presume)

Sec – 4 provides that whenever it is directed by this Act that the Court shall presume
a fact, it shall regard such fact as proved, unless and until it is disproved.

This type of presumptions are always obligation i.e. the court has no option and is
bound to take fact as proved unless the party interested in disproving it, produces
sufficient evidence forthat purpose.

Kinds There are two kinds of presumptions of Law – 1-Rebuttable

presumption of Law.

2- Irrebuttable (Conclusive proof) presumption of law

Examples of rebuttable presumptions –
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324073 73
Sec - 105 I & A – The court shall presume the absence ofGeneral
Exception given in Ch-IV IPC.

Sec - 113 B- Presumption as to dowry death.

Sec – 114 - Presumption as to absence of consent inrape (376 (2)

a,b,c,d,e,g) Ss-107 & 108 also

Irrebutable presumption of Law

It says that "when one fact is declared by this Act to be conclusive proof of another
the court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence tobe given for the purpose of disproving it.

Example of irrebutable presumption of LawSec – 41-

Judgment in rem

Sec- 112 I & A- Conclusive proof of legitimacySec – 113 I &

A- Proof of cession Territory

Difference between Presumption of fact and Law :-

1- Whenever it is provided by I & A that the "Court may presume" the fact, i.e. in
case of presumption of fact, the court

has discretion either presume such fact as proved or not or call for further proof of it.

But in case of presumption of law the court has no discretion and it B mandatory on
the court to presume such fact as proved.

2- Presumptions of fact are always rebuttable but presumption of law in case of

conclusive proof (i.e. in Sec. 41, 112, 113) is not rebuttable

For eg – Where the defence has proved that his client is below 7 years of age and
entitled to get defence u/s 82 IPC, the court shall presume conclusively it and shall
not allow the evidenceto be given for crime.

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 Rebuttable presumption Irrebutable (conclusive)
presume

It means the presumption which on It means that no contraryevidence is

be overthrown by contrary evidence allowed to disprove it.

The court regards such fact as The court shall on proof of one fact
proved unless and until it isdisproved. regard the other fact as proved, it is also.

For eg – Sec. 105 I & A, 107, 108, Known as conclusive proof and in
113A, 114A(Absence ofconsent) such no further evidence shall be
allowed todisprove it.

Mathura rape case For eg

Sec- 82 IPC

Tuka ram Vs State Sec. 41 I & A Sec.

Maharastra
112 I & A Sec. 113 I

&A

Minor's contract void

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Presumption of Legitimacy – Sec 112 –

Sec. 112 deals with the presumption of legitimacy of child. The effect of this
provision is that a child born to a married parents is conclusively presumed to be
their child. The same presumption arises where the marriage was dissolved and the
child was born within 280 day after dissolution, the mother remaining unmarried in
the meantime.

Access to each other –

This is the best condition by which the conclusive presumption of legistimacy can
be overthrown by showing the fact that at the time when the child was begotten the
husband and wife hasano access to each other.

D N A Test –

The conclusive presumption u/s – 112 can not be thrown out by DNA test. Non
access should have been proved. S.C. held, DNA test is relevant but not conclusive
proof to overthrow the presumption u/s 112. Banarsi Das Vs Teeku Datta, 2005.

Illustration

A intentionally and falsely leads B to believe that certain lands belong to A, and
thereby induces B to buy and pay for it.

The Land afterwards becomes the property of A, and A seeksto set aside the sale
on the ground that, at the time of the sale, he had no title. He must not be
allowed to prove his want oftitle.

Essential ingredients of Sec. 115 –

1-A representation made by a person to another that a certainstate of thing is true,

and

2-The other person believes it and acts upon it and thereby hisposition.

Representation –
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Representation of the existence o f a fact may arise in any way.Anything done which
has the effect of creating in the mind ofthe other a belief as to the existence of the
fact represented. Sec – 115 itself says that a representation may aris from a
statement, act or omission. Statement may be oral or written.

Example –

Example of representation by conduct /act is the judgment of privy council in

Sarat Chander Dey Vs Gopal Chander Laha In this case a Muslim died leaving
behind some property, and a son, a daughter and a widow. The whole property was
in the possession of widow. The whole property was mortgaged through the agency
of son to Sarat Chander. Subsequently both the son and the daughter sold their
shares in the property to the plaintiff, Gopal Chander.

The plaintiff started the present case to recover the possession of the property from
mortgagee on the ground that the mortgage is void because the mother has not
entitled to mortgage the shares of her son and daughter.

The defendant claimed that the son and the daughters should not be permitted to
say that the mortgage is void because they had allowed the mother to remain in
possession and son had

acted on her behalf in executing the mortgage. That was representation that the
mother had right to mortgage. The mortgagee acted on his representation. Thus he
contended that the son and the daughter should be held bound by an stopped and
the sale of property is invalid.

The P.C. held that the daughter is not stopped by the mortgage because there was
no rale/represent in case o f mortgage. Only share of daughter is transfer to the
purchaser and rest son and mother's she remains in title of mortgagee.

Example of representation by statement –

Illustration of Sec – 115 & Piccard Vs Sears case

A, intentionally and falsely leads B to believe that certain land belongs to A, and
thereby induces B to buy and pay for it.

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The land afterwards becomes the property of A and A seeks to set aside the sale on
the ground that, at the time of the sale, hehad title.

He must not be allowed to prove his want title. he is stopped by Sec. 115.

Example of representation by omission or silence –

A representation may also from an "Omission to do an act which one's duty requires
one to do. The duty should be a kind of legal obligation, this was pointed by privy
council in –

Merchants pledged railway receipt of goods booked with railway in a bank for a
Loan. Subsequently they took back the receipts from the bank under the pretence of
clearing goods from the railways. They repledged the receipts with another Bank and
obtained advance from it.

The qus arose b/w the two Banks as to who had a prior claim on the goods
represented by the receipt.

The 2nd Bank contended that by returning the receipt to merchants without
impressing upon receipt the stamp of pledge the Bank had made representation by
omission that the receipts were free from all claims and the 2 nd Bank was misled by
this fact.

The P.C. held that the first Bank owed no legal duty to second bank, so not bound by
the stopple

Estoppels against educational institutions –

Where a University had issued a marks sheet showing, on account of some

miscalculation, higher marks on the basis of which the candidate was admitted a
higher course, the

University was not permitted afterwards to say that the marks sheet was wrong.

Sri Krisna Vs Kurukshetra University

The S.C. held that once a candidate has been admitted to an examination his
candidature can not afterwards be cancelled even if his from carried certain

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324078 78
infirmities.

Where a candidate was allowed to appear at a pre law admission test and has been
admitted and still in the final year course, the University was not permitted to cancel
the admission only on the ground that he had obtained a lower percentage of marks
at the qualifying examination, then was prescribed. There was no fraud in the
candidate.

Representation should of fact not of law or opinion etc.

C.M. Arumugam Vs S. Rajgopal, (1976) 1 SCc, 8.

S.C. held that the submission by a party in H. that he has abandoned Hinduism and
embraced Christian is a declaration of fact and the H.S. having acted on it he was
not entitled to contradict his statement. S. Sundaram case, waive

2-Reliance and alteration of position –

The second condition necessary to create on estoppels is thatthe plaintiff

altered his position on the basis of the

representation made by the defendant and he would suffer a loss if the represent is
allowed to revert from his statement.

Where the plaintiff has reason to belief or by reasonable inquiryhe may know the true
fact of the representation, he shall not begiven any benefit under this section.

PROMISSORY ESTOPPEL

The principle of promissory estoppels found its root as an exception to the doctrine
of consideration in the Law of contract.

Whenever a person holds out a promise of a favour or concession to another, and

the latter changes his position by relying upon his words, he will not be permitted
afterwards to say that his promise was without consideration.

Promissory estoppels against Govt. –

In Certain conditions promissory estoppels is also applicable against the State

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M.P. Sugar Mills Vs State of U.P. (1979)

There was news in the papers that the State of U.P. would grant exemption from
sales tax for three years to new Industrial units. The Petitioner wanted to set up a
vanaspati plant. He applied to the Director of Industries and the Chief
Secretary

and both confirmed the availability of the exemption the petitioner proceeded his
plants. But the State Govt. abrogated his policy of exemption. The S.C. held that S.
Govt is bound by its declared intention.

Equitable estoppels

The Govt. caused delay in communicating adverse remarks to the employee. The
employee also male a belated representation. The Govt. was held bound on
equitable considerations to consider the representation on merits and not to reject it
because of delay.

Exceptions to :Doctrine of estoppels"

1-No estoppels against minor (Minor cann't contract)2-No estoppels

against point of law

3- No estoppels against sovereign acts

4- When true fact about representation is known to both parties.

5- If the other party neglect in his part as, it is his duty to makethe inquiry about
the fact and he neglected it.

Some specific estopples

Sec- 116- Provides that where any person comes in thepossession of immovable
property as a tenant or a licensee, he

can not be allowed to challenge the better title of Landlord or licensor. he must be
remained as tenant and licensee against Landlord & Licensor.

Sec - 117- is also of the above kind as it provides as estoppleof bill of exchange,

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bailee or license.

CHAPTER – IX OF WITNESSES (Ss – 118 - 134)

Who may testify / competence of witnesses – (118-121)

Sec- 118 provides that all persons shall be competent to testify unless the Court
feels that he is not able to understand the questions put him or to give rational
(reasonable) answers to them. This may be due to tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind.

Explanation –

A lunatic can not be declared to be incompetent unless his lunacy prevents him from
understanding or answering questions put to him.

Taylor Vs Hnderton

CHILD WITNESS –

Taylor Vs Anderton Privy Council held a girl of 10 years of age to be competent to

testify but she was not able to understand the nature of an oath. Their Lordship held
that such unswar evidence was admissible and pointed out that it is a sound rule in
practice not to act on the uncorroborated evidence of child, whether sworn or
unsworn. A child witness who has not taken oath can not be prosecuted for giving
false evidence.

Dumb witness –

Sec – 119 provides that a witness who is unable to speak may give evidence in any
other manner in which he can make it intelligible a be writing or by signs ; but such
writing must be written and the signs made in open court Evidence so given shall be
deemed to be oral evidence.

Parties to suit or proceeding –

Sec- 120 provides that in a civil proceeding, the parties to the suit are competent
witnesses. It follows that the plaintiff and defendant can give evidence against each
other.
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Husband and wife –

Sec. – 120provides that in civil proceed the husband or wife of any party to the suit is
a competent witness. Similarly in a cr. proceeding against any person, the husband
or wife of such person shall be a competent witness.

Judges and Magistrates –

Sec. 121 provides that a Judge or Magistrate is a competent witness. If he saw

something happen, he can testify to it even if it happended before him when he was
presiding as Judge or Magistrate. For eg –

If the accused attempted to shoot down a witness while he was testifying before j
Judge, the Judge may be questioned as to what he saw.

Judicial Privilege –

Sec. 121 provides that no Judge can be questioned as to his ju. conduct or as to any
ma—that came to his knowledge while acting as such Judge or Magistrate. It
includes arbitrator alsoby S.C.

Exception of above privilege –

1-By special order of superior Court.2-Other

matte non-jus-

3-He can waive his privilege and voluntarily offer to explain –conduct as such
Judg. or Magistrate.

4-

PRIVILEDGED COMMUNICATIONS(Ss 122-132)

The general rule is that every witness has to give answer any relevant question
asked to him. But there are certain matters which a witness can not either be
compelled to disclose or even if the witness is willing to disclose, he will not he
permitted to do so. Such matters are known as privileged communications. This has
been mentioned in Ss – 122 -132.

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Section – 122 :- Communications during marriage –

Sec-122 prevents communications b/w a man and his wife from being disclosed. It
provides that no person who is or has been married shall be compelled to disclose
any communication & remain protected even after dissolution of marri..

Exceptions – Protection when not available :-

1Acts apart from Communications –

A wife can testify as to what her husband did on certain occasion though not as to
what he said to her. In Ram Bharose Vs State of U.P. the Court held that what the
husband said his wife was not admissible, but she could testify to his conduct.

2Evidence by third person –

Communications or conversations b/w husband and wife taking place in the presence
of a 3rd husband and wife taking place in the presence of a 3rd person, or which
overheard by a third person, can be testified by the 3rd person. The privilege is that
of the parties to marriage, and not of others.

Queen – empress Vs Donoghue,

In a madras case, a confession was made by a mar, to his wife in the presence of
three other persons. The court allowed the

confession to be proved through those other persons but not through the wife.

3Waiver of privilege –

Evidence of privileged communication can be given by a spouse with the consent of

the party who made the communication.

4Crimes or suits b/w married persons –

The communications may be disclosed in suits or proceeding b/w married persons. If

the husb. is being prosecuted for an offence which he has committed against his
wife. Wife may disclose any communication made to her by her husband.

Sec. 123

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Evidence as to affairs of State 123 Vs 162

Sec - 123 is based on. the latin maxim – 'solus populi est supreme Lex' – i.e., welfare
of public is highest law.

Sec – 123 protects unpublished official record relating to the affairs of the state from
being disclosed. It can be disclosed with the permission (absolute discretion) of the
head of the Department.

Sc – 162 provides that when a person has been summoned to produce a document,
h e shall ring it to the court,

notwithstanding any objection which there may be to its production or to its

admissibility the validity of such objection shall be decided on by the court.

It further provides that the Court may inspect the document unless it refers to matters
of state or take other evidence to enable it to determine on I its admissibility.

Qus :- Who will decide that the unpublished official records are related to affairs of
the State ?

Sec – 126 Professional communications –

Sec – 126 provides that communications made by a client to this vakil (Advocate) for
the purposes of his professional employment are not permitted to be disclosed. After
ceasing of employment this protection also applies. The reason behind it is to
encourage litigants communicate fully and frankly with their Lawyers without any fear
that the information can be usedgains him.

Conditions –

1- The communications should have been made to an

Advocate.

2- The communications must have been made by the client.

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Exceptions –

This privilege is subject to a few exceptions.

1- Communications made in furtherance of an illegal

purpose are not protected.

For eg – A, a client says to B, an advocate – I wish to obtain possession of property

by the use of a for fooged deed on which I request you to sue."

This communication, being made in furtherance of a cr. purpose, is not protected

from disclosure.

2- Crime or fraud since employment began –

If a lawyer finds in the courses of his employment that any crime or fraud has
been committed since the employment began, he can disclose such information.

Illustration – A person charged with embezzles and that the entry was not there
when he first saw the account books of the accused debiting him with the amount
which he is alleged to have embezales and that the entry was not there when he first
saw the account-books. Since this is the subsequent fraud the lawyer can disclose it.

1- Disclosure with express consent of client –

The prohibition is for the benefit of the client, and he may waiveit. The wairing should
be express. The death of client does not amount to waive.

2- Information falling into hands of 3rd person –

If the communication is over hear by third person, he can be compelled to disclose it.

After hearing a client whom a vakil refused to take a case, protection of sec 126 will
continue.

3- Lawyer's suit against client –

If the Lawyer himself sues the client for his professional service (recovery of fees) he
may disclose so much of the information as is relevant to the issue.

Non-compellable witness: - Certain witness can not be compelled to answer but they
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324085 85
can on there will can discover in mattes. There one s---

1-Sec – 121 Judge/Magistrate 2-Sec

124 public office

Witness not excused from answering an ground that answer will criminate- Sec -132
provides that when a question put to a witness is relevant to the matter in issue the
witness can be compelled to answer it and he can not be excused from

answering it simply because the answer would tend to criminate him or expose him
to civil or cr. liability.

Exception – According to the proviso of sec – 132 if a witness has been compelled to
give an answer, his answer shall not be proved against him in any civil or Cr.
proceedings. But if the answer is false, the witness may be prosecuted for giving
false evidence.

It is to be noted that the protection arises only as against answers which a witness is
compelled to give and not as against those which he voluntarily answers without any
compulsion.

Sec. 133 Evidence of accomplice

Sec 133 Vs 114

Accomplice –

An accomplice means a person who has taken part in the commission of a crime.
When an offence is committed by more than one person in concert, everyone
participating in its commission is an accomplice. When they are facing trial, they are
called co-accused.

The Police has to select one of them for the purpose of being converted into a
witness. He is pardoned under Sec 306 Cr.

P.C. subject to the condition that he will give evidence against his former partner's in
the crime. He is then known as an accomplice, turned witness or an approver. He
appears as witness for the prosecution against the accused persons with whom he

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acted together in commission of crime.

Who is an accomplice ? -

There is no formal definition of the term "accomplice" The following persons, if called
as witness for the prosecution, have been treated as an accomplice.

It was held in Davis Vs Director of P. Prosecution and followed by S.C. in R.K.

Dalmia Vs Dehli Administration

1-Persons who participated in commission f crime2-Persons who

received stolen property.

3-Abettor of the crime, can be treated as an accomplice.

What is the value of evidence of former criminal turn as witness?

General corroboration is necessary –

Sec – 133 gives a rule of law that court convict accused on the basis of
uncorroborated evidence of accomplice and such conviction would not be illegal.

Where as Illust. (b) Sec. 114 gives general rule of caution that corroboration is
necessary.

In case of Bhuboni Sahu Vs The King (P.C.) and followed by

S.C. in case of

Rameshwar Vs State of Rajasthan

Held that Sec – 133 and Illust. (b) of Sec-114 are not oppos— to each other. The
combined effect of both sections evidence that the conviction only on the basis of an
accomplice is not illegal but general rule of caution is that the testimony of
accomplice should corroborated with some other material particulars/facts the
corroboration is necessary due to following reasons –

1- He has been criminal himself, and, therefore, his testim should not carry the same
respect as that of law obidingperson.

2- He has been faithless to his companions and may be faithless to the Court

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because he has motive to shift the guilt from himself of his former companion

3- If he is an approved has been favoured. by the state and is therefore, likely to

favour the State.

Confession of co-accused and evidence of

accomplice/appr

1- The confession of co-accused is relevant evidence u/s 30. It is a very weak piece
of evidence as the co-accused is not subject to cross-examination etc. But when an
accomplice become approver and appear in Court as ordinary witness and gives
evidence of oath and is also subject to cross-examination etc. his evidence is
stronger type in comparison to confession of co-accused.

2- Because accomplice appears as witness and apposite party has an opportunity to

cross examine him but this co-accused is not appear as within, cross, ex. is not
possible.

3- Accomplice gives his evidence on oath and of he tell a lie, he is liable for
prosecution for giving false evidence but the co- accused is not a witness so no oath
can be administered to himand in case of giving false confession / evidence he is not
liablefor any prosecution for giving false evidence.

In the above circumstances evidence of an accomplice is a stronger piece of

evidence in comparison to confession of co- accused.

Sec – 134

No particular number of witnesses necessary –

Sec -134 declares that no particular no. of witness shall in any case be required for
the proof of any fact.

The S.C. has in a number of cases sustained convictions on the basis of testimony
of a sole witness. It held that such sole witness must be reliable.

Where an offence involves a large number of offenders and victims, a conviction can
be sustained only if it is supported by two or three or even more witnesses.
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CHAPTER – X (Ss – 135 – 66) Of the Examination ofWitnesses Sec –
137

Examination – in – chief –

Every witness is first examined by the partly who has called him and this is know as
examination-in-Chief.

Cross – Examination –

After the examination-in Chief, the witness is questioned by the opposite party and
his is known as cross-examination.

Re-examination –

If the party who has called a witness seeks to question him again after the cross-
examination, that is known as re- examination

Sec – 138

Order of examination

The order of examination is laid down in Sec – 138. According to the 1st para every
witness shall first be examined by the party who has called him, them by the opposite
party (if it so desires) and then, if the party calling him so desires, be re-examined.

2nd para of the section provides that the examination-in-chief and the cross-
examination must be confined to relevant facts. But the Cross examination need not
be confined to the facts to which the witness testified on his examination-in-Chief

It means cross-examination can extend to all the relevant facts,whether touched in

examination in chief or not.

Direction of Re-examination –

3rd para of Sec. 138 makes direction of re-examination. According to this para, the
proper limit of re-examination is to confine it to an explanation of the matters dealt
with in cross- examination. If new matter is, by permission of court, introduced in re-
examination, the Adverse party may further cross examine the witness on that
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matter.

Sec – 139 No cross examination of person called toproduce

documents

Sec-139 provides that a person summoned to produce a document does not become
a witness by the mere fact that he produces it and can not be cross examined unless
and until he is called s witness.

Sec – 140 Witness to character

Witness to character may be cross examined and also be re-examined.

Que :- What questions may be asked in Examination-in-Chief ?

Ans :-(1)According to Para 2nd of Sec 138, the question asked in examination-in-
chief must relate to the relevant facts of the case.

(2) According to Sec. 142 leading questions may be asked in examination in chief
unless objected by the adve party.

Purpose of Cross-examination -

1- To examine the witness on the matter on which he has givenevidence in ex-in-

Chief and to illicit suppressed facts.

2- To impeach the credit of witness (Sec. 155)

3- To test the veracity (truthness) of witness (Sec- 146)

Qus: What questions may be asked in Cross-examination?
Ans: (1) According to para 2nd of Sec-138, question asto relevant facts
of the case and it need not be confined to statement give in chief

(2) According to Sec -140, questions as to witness of character.

(3) U/s- 143, leading question can be asked in cross.
(4) U/s – 145 questions relating to previous statement in writingto contradict such
witness.

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(5) U/s – 146 (1), questions which tend to test the veracity of
witness.

(6) U/s – 146 (2), questions which tend to test the veracity ofwitness.

(7) U/s – 146 (3) question which tend to shake his credit byimpeaching his
credit (Sec-155)

Que:- What questions can not be asked in Cross-examination –

Ans :-(1) Provision of Sec – 146 questions from prosecute as to her general immoral
character.

(2) Sec – 151, Indecent and scandalous question.

(3) Sec – 149, No question without reasonable ground.
(4) Sec – 152 Que. intended to insult or annoy to witness.
(5) Sec- 154 No question from hostile witness without courts.

Leading questions (Ss-141-143)

The purpose of an examination-in-chief is to enable the witness to tell to the court by

his own mouth the relevant facts of the case. The witness should be left to tel the
story in his own words. The question should not be framed as to suggest the answer.
Any such question wh suggests to the witness the answer which the party putty
question is expected to receive is known as "Leading question.

If such question is permitted in Ex. in chief, the Lawyer questioning the him would be
bale to construct through the mouth of the witness a story that suits his client. A
fair trail of the accused is not possible in the prosecution can ask leading questions
on a material part of the evidence against the accused this would offend the right of
the accused to a fair trial as ensbrineo in article - 21

Definition –

The expression "Leading question" is defined in Sec 141. It says that any
question suggesting the answer which the person patting it wishes or expects to

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receive, is called a leading question.

for eg Where it is relevant to tell to the court as to where a witness lives, the
question to be asked, to him should be

"Where do you live?" and them he may to where he lives. But if the question is
framed like this "do you live in such and such place", the witness well pick up the hint
and simply answer "Yes." This is leading question, it puts the answer in the mouth
the witness and all that he has to do is to throw it back.

The total effect of provisions of Sec – 142 and 145 is that leading questions can be
asked in following cases-

1- Acc to 142, where the leading questions it not object by the a Adverse party, it
may be asked in examination in chief.
2- According to Sec-142, where the adverse party has objected but the court has
given the permission, it can be asked in Ex. inchief.
3- According to 2nd para of Sec – 142, it can be asked where it deals with matters
which are introductory in nature or undisputed or which have already been proved.
4- According to Sec - 143 , leading question may always be asked in cross-
examination.

Sec-145 Cross examination as to previous writtenstatement –

This section applies when the same person makes two contradictory statements.
Following statements may be used for the purpose of contradiction –

1-F.I.R.

2- Statements recorded u/s 161 Cr. P.C.

3- Evidence recorded in criminal proceedings.4-Statements
in police case diary.

Evidentiary value of F.I.R. -

The FIR is not a substantive piece of evidence. The F.I.R. and the statements
contained in it can not be used as evidence against the person accused. It can also
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324092 92
not be used against the maker if it is inculpatory in nature It can be used for
corroborating or contradicting the maker only if he appears as witness.

If informant was the victim and has died and the F.I.R. contains the reason for his
death, it can be used as dying declaration u/s32 (1).

F.I.R. can be used to show the conduct of victim u/s – 8.

Qus: "All admissible evidence is relevant, but al relevantevidence is not

necessarily admissible" Comment.

Or

"Admissibility and relevancy are not synonyms." Comment

Ans: Generally it is seen that the facts which are relevant are admissible. But in
certain exceptional circumstances, there are certain facts which are relevant but not
admissible.

For eg – Privileged communications (Ss – 122 -126). Similarly in general, fact which
are admissible in evidence Act must be relevant but certain facts which are not
relevant u/ Evidence Actthough admissible in evidence Act.

For eg - Question Lawful in Cross Examination (Sec-146)

Impeaching credit of witness (Sec - 155)

In the above circumstances we can say that the admissibility and relevancy are not
the same thing or synonyms.

Sec – 146 Questions lawful in cross-examination

In the course of a cross examination a witness can be asked all questions relating to
the relevant facts if the case. But in addition to such questions, the witness can also
be questioned as to his character etc.

Thus a witness can be asked questions:-

1- To test his veracity;

2- To dis-cover who is he and what is his position in life3-To shake his
credit by injuring his character.
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324093 93
Such questions can be asked even if the answer might tend directly or indirectly to
criminate the witness or to expose him toa penalty or forfeiture.

Provided that in rape case, the court shall not permit to put questions in cross ex. of
the prosecutrix as to her generalimmoral charter.

S – 147 supplements sec- 146. It provides that whes any witness is compelled to
gives answer, then sec – 132 will apply,
i.e. the answer shall not be used in any cr. proceeding.

Sec – 155 Impeaching credit of witness –

The credit of witness is generally impeach by the opposite party. But when the
witness has become hostile, hi credit may be impeached, with the permission of
Court, by the every party who has called him.

In following way his credit may be impeached unworthy ofcredit.

1- By producing witness who testify from their personal knowledge

2- Corrupt inducement – By showing that the witness has either taken bribe or has
accepted the offer of a bribe or some other corrupt inducement for giving his
evidence.

3- By former statement – By showing earlier statements of the witness which

contradict his present statements.

Sec – 149 Question not to be asked without reasonablegrounds –

No such questions to be asked unless the person asking it has reasonable grounds
for thinking it has reasonable grounds for thinking that the imputation which it
conveys is well-founded.

for eg - An Advocate is informed that an imp. witness is a dakait. This is a

reasonable ground for asking whether he is a dakait.

If the witness is not giving satisfactory answer about his mode of life or means of
living. This is reasonable ground for asking whether he is dakait.

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324094 94
Penalty – When any Adv. asks que. without reasonable ground them U/s – 150 the
court may report the circumstances of case to H.S. or S.B.C. (Bar Council) against
Advocate.

Sec – 154 Hostile witness – Cross ex. with Courtpermission

Where a witness makes statements against the interest of theparty who has called
him, he is known as a hostile witness.

S 154 declares that the court may permit the party who has called a witness to put
such questions which are asked in cros ex. to discredit him.

Subsec – (2) of Sec-154 has been added by Cr. Law (And) Act, 2005 which provides
that the party who has called such witness may rely on any part of the evidence
which favours him.

Sec- 159 Refreshing memory –

Sec – 164 Use of document not produced on notice –

When a party has been called upon by the other party toproduce a document but the
request was refused, he can not afterwards us the document as evidence without the
consent ofthe party or the order of the Court.

Sec – 167 No new trial for improper admission or rejectionof evidence –

Sometimes improper evidence may happen to be admitted. This means that

evidence of irrelevant facts has been admitted. It can also happen that evidence
which was relevant and should have been admitted was rejected.

What is to be done in such cases? Should there be a new trial or several of

decision?

This section says that an improper admission or rejection of evidence by itself is not
a ground for a new trial or reversal of the decision.

This section says further says that reversal or new trial can be ordered only if it
appears to the court that if the improperly admitted evidence had been rejected or
the improperly rejected evidence had been admitted, the decision would have been
AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324095 95
different.

In other words, if independently of the evidence objected to and admitted, there was
sufficient evidence to justify the decision, then the decision should not be disturbed,
or if the rejected evidence has been received, ought not to have varied the decision,
then the decision should not be disturbed.

The provision applies to civil as well as criminal cases. The

H.C. has the power to remand the case for retrial in cases of wrongful rejection or
admission of a material evidence.

Questions under I &A

Qus- "All admissible evidence is relevant, but all relevant evidence is not necessarily
admissible." Comment-

Qus:- Distinguish b/w direct and circumstantial evidence. Can a person be convicted
on circumstantial evidence alone?

Qus :- Distinguish b/w Rebuttable and irrefutable

presumptions?

Qus :- "Hearsay evidence is no evidence. "Explain and state itsexcept

Qus :- What is fact in issue? Illustrate your answer.

Qus :- Explain the reason for exclusion of hearsay evidence. To what extent has the
principle of exclusion of hearsay evidence been adopted in I & A.?

Qus :- Discuss fully evidentiary value of retracted confession.

Qus :- "Relevance and admissibility are neither synonymous nor is the one
included in other. Elucidated this statement.

Qus :- Relevancy of confession against co-accused.

Qus :- "What do you understand by conclusive and rebuttablepresumption"

Qus :- Whether Judgment in a previous case is admissible asan evidence in a

subsequent case? If so, for what purpose?

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324096 96
Qus:- Who is an expert? Analyse the evidentiary value of it ?

Qus:- The Law contained in Sec – 133 is not a good Law andhence the practice
of the court is otherwise. Examine?

Qus:- To prove his title, the complainant produces an unattested photo copy of a
document on the ground that original document is lost. Whether it can be admitted
as secondary evidence?

Qus:- What to you understand by "admission" and "confession"? Distinguish and

explain their evidentiary values.

Qus:- "Oral evidence in all cases must be direct" Exceptions.

Qus:- Whether an admission can be used by the maker of the admission in his own
favour ? If so, in what circumstances, Explain?

Qus:- When a witness is cross examined, what other questions can be asked in
addition to the questions relating to the incident.

Qus:- How the Court would decide that a particular question is proper or improper ?
Explain Law relating to leading questions. Who can put leading questions?

What are the powers of Court to put questions to a witness?

Qus:- Who are accomplice U/ I & A ? Under what circumstance conviction can be
based on testimony of an accomplice.

Qus:- Estoppel is a complex legal notion, involving or combination of several

essential elements, the statement to be acted upon, acted on the f—of it, resulting
diriment to the actor?

AMIT LAW INSTITUTE , 8 MARUTI PURAM, FAIZABAD ROAD, LUCKNOW, MOB 0945209324097 97