1.

Discuss in detail the “Statements made by persons that cannot be called as witnesses”

Answer:

Synopsis-

1. Introduction

1. As a general rule of law, oral evidence is required to be direct as under Section 60 of the IEA
1872 and the oral evidence is required to be stated before the court by the person who received
the first-hand knowledge of the facts.
2. When any witness appears before the court he needs to give his testimony on oath and there are
also the provisions of the order in which a witness is examined i.e examination-in-chief, cross-
examination and re-examination as under Section 138 of the Act.
3. But there is a certain class of people whose statements are recorded but are not considered to be a
witness.
4. Such Statement by persons who cannot be called as witnesses are dealt with under 32 and 33 of
the Act.

2. Hearsay Rule

1. A fact to be proved by oral evidence must be stated before the court by the person who has
firsthand knowledge on the facts to be proved.
2. The secondhand evidence or the evidence which a person gives based on what he gets to know
from other persons is known as ‘hearsay evidence’.
3. Such Hearsay evidence is not admissible under the law of evidence,
4. A witness who appears before the court to give evidence on his firsthand knowledge , takes an
oath and is further the opposing party has the right to cross examine him on his account. At the
same time, he must give a testimony which may expose him to all the penalties in case of
falsehood of such evidence.
5. Hearsay evidence is excluded from admissibility on the grounds that:
 He does not produce such evidence on oath
 The opposing part has no opportunity to cross examine such person or the original
source of the information
 He is immune from all penalties of falsehood in such evidence
6. The hearsay rule is mainly based on two major considerations:
1. The necessity of the evidence.
2. The circumstantial guarantees of trustworthiness.
7. The hearsay evidence is excluded because they are considered untrustworthy.
8. However there are certain circumstances where such evidence is admissible. These exceptions are
as follows:
1) Section 6 - Relevancy of facts forming part of same transaction.
2) Sections 17 to 31 - Admissions and Confessions
3) Section 32 – Dying Declaration
4) Section 33
 9. Section 32 and 33 are exceptions to the general rule and under these sections the hearsay evidence
is admissible.
10. Under this section, indirect evidence is relevant as held in the case of Biro v. Atma Ram

3. Section 32(1)

As per Section 32, the statements, written or oral, of relevant facts made by a person

1) Who is dead
2) Who cannot be found
3) Who has become incapable of giving evidence
4) Whose attendance cannot be procured without unreasonable delay or expenses according to the
court

Shall be considered to be relevant in the following circumstances:

1. When it relates to the cause of death: As per Section 32(1), any statement made by a person
concerning the cause of their death or the circumstances leading to their death is considered
relevant. This statement is known as ‘dying declaration.’ Such dying declaration repeated by
another person during the course of a trial shall be admissible as evidence.

2. Essentials of dying declaration:

1) A statement shall be made which can be either oral or documentary
2) It must be made by a person who is dead
3) It must relate to the cause of death or to the circumstances which resulted in his death
4) Expectance of death is not necessary
5) Cause of death must be in question either in civil or criminal proceeding
3. Example:
 If a person, A, says, "I was shot by B" and then dies from the gunshot wound, A’s
statement is relevant in establishing the cause of death. It directly connects the action
(shooting) to the person (B) responsible for the death.
 If a person, C, tells a friend, "D threatened me and said he would kill me if I didn't
give him my money," and then C is later found dead under suspicious circumstances,
this statement is relevant in understanding the events that led to C’s death. It
provides context and potential motives.
4. When it is made in the course of business
5. When it is made against the interest of the maker
6. When it involves giving an opinion as to a public right or custom or matters of general
interest
7. When it relates to the existence of a relationship
8. When it is made in the will or deed relating to family affairs
9. When the document relates to transaction mentioned u/s 13 (13. Facts relevant when right or
custom is in question)
 10. When it is made by several persons and expresses feelings which are relevant to the matter in
question

It is necessary for the statement to be made by the people mentioned under this section and in the
given circumstances for Section 32 to be applicable.

4. Dying declaration

1. The term “dying declaration” is not defined under the Evidence Act but it can be interpreted
according to sub-section (1) of section 32.
2. A dying declaration is an exception to the rule of hearsay, when such evidence relates to the cause
of death or any circumstance of the transaction which results in the cause of death, is admissible
as evidence. This was held in the case of Ram Bihari Yadav vs. State of Bihar.
3. The same shall be relevant irrespective of the fact as to whether the person expected or did not
expect his death.
4. In the case Sharad Sarda vs State of Maharashtra, it does not matter whether the death was
caused by homicide or suicide, as long as the statement relates to the cause of death.
5. This principle of making dying declaration admissible is based on the premise that a person dying
does not lie.
6. A person who makes a dying declaration must however be competent at the time of making such
statement, otherwise it will be inadmissible.
7. In such cases, the person i.e the victim is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice.
8. Section 32 deals with cases related to that person who is dead or who cannot be found.
9. There are two types of statements which are made admissible by section 32(1):
 A statement stating the cause of death
 Statement related to any circumstances which resulted in death.
10. There are certain conditions which shall be fulfilled for a dying declaration to become admissible
as an exception the rule of hearsay. These conditions are as follows:
1) Cause of Death: A statement qualifies as a dying declaration when it pertains to the
cause of the declarant's death or any circumstances or transactions directly resulting in
their death. For example, if a person states that they were stabbed by someone before
their demise, this statement is admissible as a dying declaration.

2) Time Gap and Immortality: The time gap between the statement and the death of the
declarant is immaterial for considering it as a dying declaration. Even if the person
survives for a few days after making the statement, it retains its character as a dying
declaration.

3) Actual Cause of Death: To qualify as a dying declaration, it must be proven that the
cause of death was the injury received during the incident for which the accused is
being prosecuted. If the death is attributed to another cause, such as a disease like
cancer, the statement may not be considered a dying declaration.
 4) Circumstances Resulting in Death: Statements related to any circumstances or
transactions that directly or indirectly resulted in death are also admissible as dying
declarations. This expands the scope beyond just the immediate cause of death.

5) Intention to Use: There is no requirement for the intention to use the statement as a
dying declaration at the time of recording it. Even if the initial intention was not to use it
as such, if the person making the statement later dies, it can be treated as a dying
declaration.

6) Survival of Declarant: If the person making the statement survives and does not die, the
statement is not considered a dying declaration but may be treated as a confession
statement.

7) Expectation of Death: The validity of a dying declaration is not affected by whether the
declarant expected death. However, the expectation of death may affect the weight
attached to the declaration. Statements made when the declarant knows they are about to
die are generally considered more reliable.

8) Proximate Cause: The statement must have a proximate relationship with the actual
occurrence leading to death, rather than being remote. It should directly relate to the
cause of death or the circumstances surrounding it, and it must be made by the deceased
person themselves.

5. Section 33: Relevancy of Certain Evidence in Subsequent Proceedings

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is
relevant for proving the truth of the facts stated in a subsequent judicial proceeding or a later stage of the
same judicial proceeding under the following circumstances:

1) Witness is dead: If the witness who gave the evidence in the previous proceeding has passed
away.
2) Witness cannot be found: If the witness cannot be located despite reasonable efforts.
3) Witness is incapable of giving evidence: If the witness has become incapable of giving evidence
due to reasons such as mental illness or other incapacitating conditions.
4) Witness is kept out of the way by the adverse party: If the witness is deliberately kept away from
the proceedings by the opposing party.
5) Unreasonable delay or expense: If the presence of the witness cannot be secured without causing
unreasonable delay or incurring excessive expense.

Conditions for Admissibility

For the evidence to be admissible in subsequent proceedings, the following conditions must be met:

a) Same Parties or Representatives: The previous proceeding must have been between the same
parties or their representatives in interest.
 b) Right and Opportunity to Cross-Examine: The adverse party in the first proceeding must have
had the right and opportunity to cross-examine the witness.
c) Substantially the Same Issues: The questions in issue in both the proceedings must be
substantially the same.

Example:

 If evidence was presented in a trial involving Party A and Party B, the same evidence can be
used in a subsequent trial involving Party A and Party B's legal representatives.
 During a criminal trial, the defense had the opportunity to cross-examine a witness. If that
witness later becomes unavailable, the testimony can be used in a retrial or appeal.
 Evidence given in a civil suit about the ownership of property can be used in a subsequent
proceeding if the issue of ownership remains central to the dispute.

6. Conclusion

Unser the IEA, certain statements made by persons who cannot be called as witnesses are considered
relevant and admissible under the law under specific circumstances. These situations are outlined in
Section 32 of the Indian Evidence Act. One of the most significant of these statements is the dying
declaration. However, the reliability and credibility of such declarations are always scrutinized based on
the specific facts and circumstances of each case. Section 33 of the Indian Evidence Act ensures that
relevant and crucial evidence is not rendered inadmissible merely because of the unavailability of a
witness. It provides a mechanism to use prior testimony under specified conditions, thereby promoting
judicial efficiency and fairness.

2. Explain the concept of opinions of experts and state its evidentiary value
Answer:

Introduction

1) As stated by the Delhi High Court in VLS Finance Ltd. v. CIT (2000), the term
“opinion” means something more than merely relating to gossip or hearsay; it means
judgment or belief, that is a belief or conviction resulting from what one thinks on a
particular question.
2) The opinions or beliefs of third persons are, as a general rule, irrelevant, and therefore,
inadmissible. Witnesses are to state those facts only which they themselves saw or heard,
etc.
3) It is the function of the judge or jury to form their own conclusion or opinion on the facts
stated.
4) The Opinions of third person are provided under Sections 45 –51 of the Indian Evidence
Act, 1872.

Section 45: Opinions of Experts

1) When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to
identity of handwriting or finger impressions, the opinions upon that point of persons specially
 skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger
impressions are relevant facts.
2) Such persons are called experts.

Who is an Expert?

1) An ‘expert’ witness is one who has devoted time and study to a special branch of learning and
thus is specially skilled on those points on which he is asked to state his opinion. His evidence on
such points is admissible to enable the tribunal to come to a satisfactory conclusion.
2) In Bal Krishna Das Agrawal v. Radha Devi and others (1989), SC held that Expert is a person
who by his training and experience has acquired the ability to express an opinion.
Illustrations
a) The question is, whether the death of A was caused by poison.
- The opinion of experts as to the symptoms produced by the poison by which A is supposed to
have died, are relevant.
b) The question is whether a certain document was written by A.
- Another document is produced which is proved or admitted to have been written by A.
- The opinions of experts on the question whether the two documents were written by the same
person or by different persons, are relevant.

Sections 45A to 51
Section 45A - Opinion of Examiner of Electronic Evidence
1) When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion
of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology
Act, 2000 (21 of 2000), is a relevant fact.
2) Explanation appended to the section - For the purposes of this section, an Examiner of Electronic
Evidence shall be an expert.

Section 46: Facts bearing upon opinions of experts

1) Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of
experts, when such opinions are relevant.
2) Illustrations
(a) The question is whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts
affirm or deny being the symptoms of that poison, is relevant.
3) The opinion of an expert is open to corroboration or rebuttal. All the evidence which supports or
rebuts the opinion of experts is admissible and relevant.

Section 47: Opinion as to handwriting, when relevant

1) 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 that person’s
handwriting.
2) The explanation attached to the Section gives guidance as to who is considered to be acquainted
with another’s handwriting. It includes a person:
 a. Who has seen that person write, or
b. Who has received documents written by that person in answer to documents written by himself or
under his authority and addressed to that person, or
c. Who has in the ordinary course of business, received documents written by that person or such
documents are habitually submitted to him.
Illustration:
The question is, whether a given letter is in the handwriting of A, a merchant in London.
B is a Merchant in Calcutta, who has written letters addressed to A and received letters purporting to be
written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s
broker, to whom B habitually submitted the letters purporting to be written by A.
The opinion of B, C and D on the question whether the letter is in the handwriting of A are relevant,
though neither B, C nor D ever saw A write.

In Fakruddin v. State of MP (1967), SC held that handwriting may be proved by evidence of a witness in
whose presence the writing was made, and this would be direct evidence and if it is available the evidence
of any other kind is rendered unnecessary.

Modes of proving Handwriting

The IEA recognizes the following modes of proving handwriting:

a. By the evidence of the writer himself.

b. By the opinion of an expert (Section 45).
c. By the evidence of a person who is acquainted with the handwriting of the person in question
(Section 47).
d. By the court itself comparing the handwriting (Section 73).

Section 47-A: Opinion as to electronic signature when relevant

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the
Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

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

When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as
to the existence of such custom or right, of persons who would be likely to know of its existence if it
existed, are relevant.

Illustration:
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this Section.
The provision provides that only those persons who are likely aware about the custom in question are
competent to give opinion as evidence under this section.

In Brijlal v. V.M. Chandra Prabha (1971), Gujarat High Court held that a person giving opinion under
Section 48 of the IEA should have personal knowledge about the facts to be proved. Such an opinion
must be based upon some information.
Section 49: Opinions as to usages, tenets, etc., when relevant
When the Court has to form an opinion as to -
a. The usages and tenets of any body of men or family,
b. The constitution and government of any religious or charitable foundation, or
c. The meaning of words or terms used in particular districts or by particular classes of people
d. The opinions of persons having special means of knowledge thereon are, relevant facts.

Section 50: Opinion on relationship, when relevant

1) When the Court has to form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a
member of the family or otherwise, has special means of knowledge on the subject, is a relevant
fact.
Illustrations
(a) The question is whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife is relevant.

2) Relationship includes relations by blood, marriage or adoption.

3) It may be noted that under Section 32 of IEA, which also contains a provision for proving
relationships, the statements of dead persons are relevant; while, under Section 50 the opinion of
a person alive is relevant.

Section 51: Grounds of opinion, when relevant

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant.
Illustration:
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
The opinion of an expert by itself may be relevant but would carry little weightage unless supported by a
clear statement.

3. What is the meaning of Burden of Proof? Explain the law relating to Burden of proof and
presumptions under it.
Answer:

Synopsis-
1. Introduction
1) Every legal proceeding seeks to establish some sort of right or liability.
2) These commitments and rights are predicated on facts that must be convincingly
established in court.
3) Who must submit the case’s evidence and persuade the court of its validity is specified in
Sections 101 to 114.
 4) While Sections 101 to 103 discuss the duty of proof broadly, Sections 104 to 111 deal
with situations where the burden of proof falls on a specific party.
5) These principles are referred regarded as the “Burden of Proof” rules.

2. Meaning of Burden of Proof

1) Burden of Proof is not defined under the act.
2) The legal requirement or duty of parties to establish facts that will assist the court in
reaching a decision in their favour is known as the burden of proof.
3) It is the responsibility in litigation to establish a fact.
4) It has been derived from the latin phrase “onus probandi” which refers to the
responsibility placed on one party to prove or disprove a disputed fact or element of a
case.
5) As per this rule, If the person on whom the burden is passed fails to provide any
evidence, the issue must be decided against him.
6) This legal requirement differs in case of criminal or civil matters.
7) In case of criminal cases, the degree of burden of proof is higher compared to in case of
civil matters. The burden of proof must be proved beyond a reasonable doubt in a
criminal matter. However in a civil matter it shall be proved by preponderance of
evidence.
8) Beyond a reasonable doubt means that the evidence presented by the prosecution must
be so convincing that there is no reasonable doubt in the mind of a rational person
regarding the defendant’s guilt.
9) In civil cases, the burden of proof usually lies with the plaintiff, who must establish their
case by a preponderance of the evidence (i.e., more likely than not)

3. Burden of Proof u/s 101 of the Indian Evidence Act

1) The “Burden of proof” is discussed in Section 101 of the Indian Evidence Act of 1872.
2) According to this clause, whoever wants the court to give decision in favour of his legal
rights and obligations must prove that the facts exist.
3) The burden of proof is stated to be on a person when they have a responsibility or
obligation to establish a fact.
4) The burden of proof lies on the person who moves to the court or places the
responsibility on the person making the assertion (the claimant) to prove the facts upon
which their claim is based.
5) This burden under the section 101 is primary, permanent and non-shifting in nature.
6) In case of criminal matters, the burden of proof will lie upon the prosecution and in case
of civil matters; it will lie on the plaintiff.

There is an essential difference between in burden of proof and onus of proof. As per the
case Ranchodbhai Somabhai vs. Babubhai 1982, BOP lies on the person who has to prove
a fact and this burden never shifts, however the onus of the proof has a shifting nature.
Shifting of onus is a continuous process in the evaluation of evidence.

4. Section 102: On whom burden of proof lies

1) This section attempts to locate the party and decide on whom will the burden lie during a
particular stage of the case.
2) Burden of proof has 2 meanings:
 Burden of proof to establish guilt of the entire case – constant and permanent u/s 101
 Burden of proof as a matter of adducing evidence – shifting
3) Section 102 deals with who has the burden of giving evidence at a particular point of time
4) It states that the onus of proof or the turn of giving evidence lies upon the party who would fail, if
no evidence is given from either side.
5) This section further clarifies that the burden of proof lies on the person who stands to lose if no
evidence is presented. It essentially means that in the absence of evidence, the party with the
burden of proof would lose the case.
6) This burden is shifting or temporary in nature as the onus shifts upon the person who would fail if
no evidence is given by either side.
7) Example: Sunil has filed a case stating that the land which is in possession of Anil belongs to
him. In this case, Sunil must prove this fact, for his case would fail if no evidence were given on
either side.

5. Section 103: Burden of proof as to particular fact.

1) As per this section, the Burden of Proof for a specific fact will lie on that party which seeks
the court to believe and to act upon its existence. Unless the legislation expressly states that
the burden of proof rests with a certain party.
2) Example: A sues B for theft. A wants to prove that B has made confession of such theft to C.
To prove such fact of admission the burden shall lie on A.
3) Thus, the party which wishes the court to believe that his opponent made an admission, must
prove the fact of admission
4) This clause therefore states that the maker of an assertion must provide evidence to support it.
5) Example 2: Chirag says that at the time of his neighbour’s murder, he was not at home and
was at his uncle’s place. In this case, it is upon Chirag to prove that he was at his uncle’s
place.

6. Sections 104 to 111:

I. Section 104- Burden of proving fact to be proved to make evidence admissible

1) According to this provision, it is the responsibility of the person who intends to provide
evidence for the latter fact to establish the earlier fact when it is required to do so in order
for them to provide evidence for the latter fact.
2) It deal with cases where in order to have a fact be admissible it is required to prove
another fact first.
3) The admissibility of a fact depends upon the proof of another fact and the party who
wants to prove it will have to prove the fact on which the admissibility of it depends.
4) Example: A wishes to prove a dying declaration by B. A must prove B’s death.
II. Section 105 - Burden of proving that case of accused comes within exceptions
1) This section is only applicable to criminal cases
 2) As per this section, If a case falls within exception under the IPC or any other
law, the burden of proving shall lie on the accused.
3) A presumption that such circumstances don’t exist will be made by the court.
4) The accused will have to state his defense. An accused person alone has the
burden of proving that his specific circumstances fall under an exception to the
said clause.
5) As per the general principle, the court presumes that the accused is innocent until
proven guilty by the prosecution.
6) Once the guilt is proved, then the Burden of Proof shifts upon the accused to
prove his defense by raising an exception under IPC or any other law.
7) The specific responsibility placed on the accused under Section 105 does not
conflict with the general burden, which always falls on the prosecution and never
changes.
8) Case law: K.M Nanavati Case 1962
III. Section 106 - Burden of proving fact especially within knowledge
1) The exception to Section 101 is Section 106.
2) As per this section, a person who is aware of a particular fact carries the onus of
proving such a fact.
3) It states that when a fact is specifically within the knowledge of a person, that
person is responsible for establishing that fact.
4) The reasoning behind this Section is that such a person is in a better position to
show the reality, especially when it is within his knowledge.
5) It is based on the principle of “Res Ispa Loquiter” which means ‘the thing speaks
for itself’.
6) The prosecution has to establish that the facts from which reasonable inference
can be drawn – regarding the existence of facts – which are within the special
knowledge of accused.
7) The Burden of proof will rest on the accused then who is aware of such
particular fact.
8) Example: A is charged with not having a ticket. The burden of proof shall rest on
A to prove if he has or does not have a ticket as the existence of such ticket is a
particular fact which is known to A.
9) Example 2: The body of B was found in the house of A. The onus is upon A to
establish that even if the body of the deceased was recovered from his house, his
involvement in the crime is negligible.
IV. Section 107 - . Burden of proving death of person known to have been alive within thirty
years.
1) This section provides that where there is a question whether a man is alive or
dead and if it is shown that he was alive within a period of 30 years, the burden
of proving that he is dead is on the person who affirms it.
2) Once it is shown or proved that a man was alive within a period of thirty years a
presumption is allowed to be raised under this provision as to the continuance of
life of such person.
 3) It is based on the principle ‘continuity of things’, ‘Once a thing is shown to exist,
the law shall presume that it continues to exist until the contrary is shown.’
V. Section 108 - Burden of proving that person is alive who has not been heard of for seven
years
1) This section qualifies the operation and effect of the presumption which Section
107 raises.
2) According to this section, the burden of proving that a man is alive shifts to the
person who affirms that he is alive when it is disputed whether he is alive or
dead.
3) Where it is established that a person remains unheard of for 7 years by those who
would ordinarily have heard of him had he been alive, the court shall presume him
alive.
4) Independent proof is required because there is only a basic presumption of death and
not of the time of death.
VI. Section 109 - Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent
1) According to this clause, the law presumes that any relationship or condition of
affairs between individuals who have acted as partners, landlords and tenants, or
principals and agents will continue to exist unless the contrary is established.
2) When it is proven that people were in the aforementioned relationships and that
they have been functioning in those capacities—a presumption may be made that
they are still in those relationships.
3) The burden of demonstrating that they do not stand or cease to stand in such a
relationship is on those who wish to refute this presumption.
VII. Section 110 - Burden of proof as to ownership
1) When a person is demonstrated to be in possession of any property, Section 110
permits to raise a presumption that he is the owner of such property and the
burden of demonstrating that he is not the owner is on the person who affirms
that he is.
2) Possession is the primary indicator of ownership, hence anyone wishing to
dispose of the possessor must prove that they have the legal authority to do so.
3) The rule will not hold true if the possession was obtained through deception or
force.
4) The term “possession” in this clause must be construed as an actual current
possession rather than a legal one.
5) But in cases where there is a statutory presumption of ownership in favour of the
government, it will not be applicable.
VIII. Section 111 - Proof of good faith in transactions where one party is in relation of active
confidence
1) According to this clause, the duty of demonstrating the good faith of a transaction
lies with the party who is in a position of active confidence with the other party
whenever a doubt regarding the transaction’s good faith arises between the
parties.
 2) When two parties enter into a transaction while on equal footing, it is presumed
that both parties have good faith; however, when they are on unequal footing and
one party is in a position of active confidence over the other, it is their
responsibility to demonstrate that both parties have good faith.

7. Sections 112 to 114A

112: Birth during marriage, conclusive proof of legitimacy

1) Deals with proof of legitimacy of a child

2) When a child is born during continuance of a valid marriage or within 280 days after the
dissolution of such marriage where the mother remains unmarried, it shall be conclusive proof
that such child is legitimate child.
3) The parties to the marriage should have had access to each other at any time when the child could
have been begotten.
4) This section provides an irrebuttable presumption of law

113A: Presumption as to abetment of suicide by a married woman

1) the court may assume that a woman’s suicide was encouraged or that she was exposed to cruelty
by her husband or any of his family if it occurs within seven years of the date of their marriage.
2) The husband or his kin is required to provide evidence to overcome the assumption.

113B: Presumption as to dowry death.

1) The term 'dowry death' is defined under Section 304-B of the Indian Penal Code. It refers to the
death of a woman caused by burns or bodily injury or occurring under suspicious circumstances
within seven years of marriage
2) For the presumption to arise under Section 113-B, there must be evidence showing that the
woman was subjected to cruelty or harassment by her husband or his relatives.
3) This harassment or cruelty must be in connection with the demand for dowry and must have
occurred shortly before her death.
4) When the above conditions are met, the court shall presume that the accused has caused the
dowry death.
5) This means that the burden of proof shifts to the accused to rebut this presumption.

114A: Presumption as to absence of consent in certain prosecution for rape

1) The new rule has the effect of giving the court a presumptive answer when determining whether
sexual activity between a man and woman occurred with or without consent when the woman
testifies in court that it did not occur with her consent.
2) The onus of demonstrating consent is now placed on the accused.
3) He commits a crime if he is unable to demonstrate that there was consent.
4) The following conditions have to be satisfied in order to raise an adverse presumption against the
accused for rape as to the absence of consent:
 The fact of sexual intercourse between the accused and the victim must be proved.
  The question must be before the court whether such inter-course was with or without the
consent of the alleged victim.
 The statement of the victim before the court that she had not consented.

8. Conclusion:

The burden of proof is a fundamental concept in both civil and criminal law, ensuring that the party
making an assertion bears the responsibility of proving it. This principle maintains fairness and balance in
legal proceedings by requiring parties to substantiate their claims with appropriate evidence.

4. Discuss presumptions as to Document

Answer:
Synopsis-
1. Introduction
1) The Indian Evidence Act accepts two forms of evidence, documentary evidence and oral
evidence.
2) According to the Act, the documents which are produced for the inspection of the court
are called documentary evidence.
3) The documents are mainly of two types: private document and public document.
4) The Indian Evidence Act, 1872 (IEA), establishes various presumptions concerning the
authenticity and veracity of documents, particularly under Sections 79 to 80.
5) These sections provide guidelines for courts to assume certain facts about documents
unless proven otherwise.

2. Public Documents
(Meaning of Documents)
1) The interpretation clause of the Indian evidence act defines the term document.
2) According to Section 3 of the Indian Evidence Act, document means any matter
expressed or described upon any substance and it can be in various means of letters,
figures or marks, or by more than one of those means, intended to be used, or which may
be used, for the purpose of recording particular information or matter.
3) There are various examples given for documents in the act like map, plan, caricature and
letters.
4) Any words which are printed and lithographed are considered to be documents according
to the Indian Evidence Act.
5) Section 74 of the Indian evidence act provides the definition of the term Public
document.
6) According to this Section, the following documents are considered public documents:
a. The documents forming the acts or records of acts of sovereign authority;
b. The documents forming the acts or records of acts of official bodies and
tribunals;
c. The documents forming the acts or records of acts of various officers like public
officers, legislative, judicial officers and executive working in any part of India;
 d. The public records which are kept in the state of private documents also come
under this category.
7) Every other document which does not come under the above-mentioned category is
considered as private documents according to Section 75 of the Indian Evidence Act.
8) Section 76 of the Indian Evidence Act provides the power to public officers to provide
certified copies of public documents when it is necessary and when the person has the
right to demand copies and ask for the copy of the document.

3. Presumption as to documents – Sections 79 to 90

Presumption as to documents is primarily governed by Sections 79 to 90 of the Indian Evidence
Act, 1872. These sections outline the presumptions that the courts may draw regarding the
genuineness, authenticity, and accuracy of certain documents, thereby facilitating a more
efficient and reliable adjudication process.
According to the Indian Evidence Act, the presumption is of two types. There are certain cases in
which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined
in Section 4 of the IEA. According to this Section,
 “May presume” means whenever it is mentioned by this Act that the Court may presume a fact, it
may either consider such fact as proved, unless and until it is disproved or may call for proof of it.
 “Shall presume” means whenever it is mentioned in this Act that the Court shall presume a fact, it
shall consider such fact as proved, unless and until it is disproved.

The sections for Presumption as to documents are as follows:

1) Presumption of genuineness of certified copies: S.79
1. Section 79 deals with the presumption regarding the genuineness of certified
copies of documents.
2. When a document is produced from proper custody, and it is in a condition that
creates no suspicion, the law presumes that it is genuine.
3. This presumption serves as a practical tool for the courts in accepting documents
that have been maintained in an appropriate manner.
4. Section 79 states that the court shall presume every document purporting to be a
certified copy of any public document, which is certified by the officer who is in
custody of such original public document, to be genuine.
5. In Ram Chandra Agarwal v. Anandilal Podar (AIR 1954 SC 44) the Supreme
Court emphasized that Section 79 creates a strong presumption of genuineness
when a document is produced from proper custody and is in a condition that
arouses no suspicion.
2) Presumption as to documents produced as record of evidence: S.80
1. Section 80 establishes a presumption regarding the authenticity of documents
produced as a record of evidence.
2. Record of evidence includes written statements, depositions, and other forms of
evidence recorded during judicial or quasi-judicial proceedings.
3. The court presumes that any document produced for inspection, which is
presented as a record or memorandum of evidence given by a witness in a
judicial proceeding, is genuine.
 4. This presumption applies to documents produced before an officer who is legally
authorized to take such evidence.
5. Types of Documents Covered:
 Records of Evidence: These can include depositions, affidavits, or any
memorandum of oral evidence provided by a witness during judicial
proceedings.
 Statements or Confessions by Accused Persons: These documents can be
statements or confessions given by prisoners or accused individuals. The court
presumes these are genuine if they appear to be signed by a magistrate or another
officer authorized by law to record such statements or confessions.
6. The section presumes that the processes of recording evidence and statements
have been conducted regularly and lawfully, and the documents reflect an
accurate account of what transpired.
7. It helps in avoiding unnecessary delays by accepting the documents at face
value, subject to rebuttal by contrary evidence.

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

Documents: S.81
As per Section 81, the court presumes the following documents to be genuine, according
to this Section:
1. Official Gazettes:
- The court presumes the genuineness of documents purporting to be the London
Gazette or any Official Gazette, including the Government Gazette of any colony,
dependency, or possession of the British Crown.
2. Newspapers or Journals:
- The court presumes the genuineness of documents purporting to be newspapers or
journals. This means that newspapers and journals are accepted as authentic without
requiring further proof of their authenticity.
3. Private Acts of Parliament:
- The court presumes the genuineness of documents purporting to be copies of private
Acts of Parliament of the United Kingdom printed by the Queen’s Printer. This
ensures that such legislative documents are accepted as authentic and reliable.
4. Documents Required by Law to be Kept:
- The court presumes the genuineness of any document that purports to be directed by
law to be kept by any person, provided it is kept substantially in the required form
and is produced from proper custody.

The Court also presumes the Official gazettes kept in the electronic form is genuine if it
is kept in the substantial form mentioned in the law as u/s 81A

4) Presumption as to Maps and Plans made by Government authorities: S. 83

1. This section establishes a presumption regarding the authenticity and accuracy of
maps or plans purportedly made by the authority of the Central Government or
any State Government.
 2. When a map or plan claims to have been created under governmental authority,
the court accepts this claim without requiring further proof of authorization.
3. The court shall also presume that these maps or plans are accurate.
4. However, if a map or plan is made specifically for the purposes of a legal case,
its accuracy must be independently proven in court.
5. For maps or plans prepared for a particular legal case, parties must present
evidence, such as expert testimony or corroborating data, to prove the
document’s accuracy. This process ensures that such documents meet the
required standards of proof.
6. Examples of maps or plans presumed to be accurate under this section include
cadastral maps, land survey reports, city planning documents, and other official
cartographic records.
5) Presumption as to Collections of Laws and Reports of Decisions: S.84
1. Section 84 of the Indian Evidence Act, 1872, deals with the presumption
regarding the genuineness of certain books.
2. According to this Section, the court presumes every book which contains laws
and reports of the decisions of the Courts of the country to be genuine if the
book is printed or published by the authority of the government.
3. If a book claims to be published under the authority of a government and
contains laws or court decisions, the court accepts it as genuine without
requiring further proof of authenticity.
6) Presumption as to Power of attorney: S.85
1. Section 85 deals with the presumption regarding the execution and
authentication of a power-of-attorney.
2. As per this section, the court shall presume that every document alleging to be a
power-of-attorney and executed before an authorized officer, Notary Public, any
court, or a Magistrate, is properly executed and authenticated.
7) Presumption as to Books, Maps, Charts: S.87
1. Section 87 deals with the presumption regarding books, maps, and charts that
contain matters of public or general interest.
2. The court presumes the genuineness of any book containing information on
matters of public or general interest, written and published by the person
mentioned in the book.
3. The court presumes the accuracy of published charts related to the case.
4. The court presumes the correctness of the time and place of publication as
mentioned in the book or chart.
8) Presumption as to telegraphic messages: S.88
1. Section 88 deals with the presumption regarding telegraphic messages.
2. The court presumes that a telegraphic message delivered to a recipient was
indeed transmitted from the telegraph office from which it alleges to have been
sent.
3. The court does not presume the identity of the person who delivered the message
for transmission.
9) Presumption as to Electronic Messages: S.88A
 1. Section 88A deals with the presumption regarding electronic messages,
reflecting the modern context of communication.
2. The court presumes that an electronic message forwarded by the originator to the
addressee corresponds with the message fed into the computer for transmission.
3. The terms "addressee" and "originator" follow the definitions in the Information
Technology Act, 2000.
4. This presumption is crucial given the widespread use of electronic
communications.

10) Presumption as to Due Execution of Documents Not Produced: S.89

1. Section 89 addresses the presumption regarding documents that are called for
inspection but not produced.
2. The court presumes that if a document is called for and not produced after
notice, it is attested, stamped, and executed as required by law.
3. This presumption prevents parties from withholding documents without
justification.

11) Presumption as to Documents Thirty Years Old: S.90

1. Section 90 deals with the presumption regarding documents that are thirty years
old.
2. The court presumes the authenticity of documents over thirty years old if they
come from proper custody.
3. Proper custody means the document is found in a place where it would naturally
be kept and by a person who would naturally have it.
4. The court presumes that signatures and handwriting in such documents are
genuine.
12) Presumption as to Electronic Records of Five Years Old: S.90A
1. Section 90A deals with the presumption regarding electronic records that are
five years old.
2. The court presumes the authenticity of electronic records older than five years if
they come from proper custody.
3. Similar to Section 90, proper custody for electronic records means the records
are kept where they would naturally be and by a person who would naturally
have them.
4. The court presumes that the digital signature corresponds to the person whose
custody the record is in, or to the person who authorized it.
5. Custody is considered proper if it can be shown to have a legitimate origin.

4. Conclusion

The Sections make the investigation easier and fast. The Court has to follow all the
presumptions and it can only change its notion on presumptions when it is necessary.
The documents have a lot of evidentiary value and it is important to investigate them
properly and also save the Court’s valuable time at the same time. Thus the
 presumptions regarding the documents are a very essential part of the Indian
Evidence Act.

1. Cross- examination is a double edged weapon. Explain

Answer:
Synopsis-
1. Introduction
1) Before a witness is examined, it is crucial to determine their competency. Competency
refers to the legal fitness of a person to give testimony.
2) Sections 118 to 121 under Chapter 10 of the Act, outline who may testify, stating that all
persons shall be competent to testify unless they are incapable of understanding the
questions put to them or of giving rational answers.
3) To dispense Justice, it is of great importance to test the veracity of a witness.
4) Once a witness is deemed competent, the examination process begins. This process is
divided into three stages as per Section 138:
a. Examination-in-Chief (Direct Examination)
b. Cross-Examination
c. Re-Examination
5) To dispense justice effectively, it is essential to test the veracity of witnesses. After
determining a witness's competency, their examination is a critical step in court
proceedings, aiding in uncovering the truth.
6) Section 137 of Indian Evidence Act, 1872 (IEA) defines Cross Examination as the
examination of a witness by the adverse party.

2. Types and Order of Examination

The Act outlines three types of examination in Section 138:

1. Examination-in-Chief: The initial examination of a witness by the party who calls them.

2. Cross-Examination: The examination of the witness by the opposing party.

3. Re-Examination: Any follow-up examination by the party who called the witness to clarify
matters raised during cross-examination.

The re-examination must focus on explaining matters referred to in cross-examination. If new

matters are introduced with the court's permission, the adverse party is allowed to further cross-
examine the witness on these new points.

3. Object of Cross examination

  The primary purpose of cross-examination is to test the credibility of the witness and impeach
their credit.
 Cross Examination is often treated as a power tool by which the defense can extract truth from
the falsehood in the evidence of a witness.

6. Relevant Sections
1) Section 138 specifies that cross-examination must relate to relevant facts but is not confined to the
facts testified in the examination-in-chief. Leading questions, as defined in Section 143, can be
asked during cross-examination. Section 146 permits the following questions:
1. To test the witness's veracity.
2. To discover the witness's identity and life circumstances.
3. To shake the witness's credit by injuring their character, even if the answers could incriminate the
witness or expose them to a penalty.
2) Section 140 allows for the cross-examination and re-examination of witnesses who testify about the
character of a party or other witnesses.
3) However, in prosecutions under certain sections of the Indian Penal Code (IPC) related to sexual
offenses (e.g., sections 376, 376A-E), it is not permissible to question the victim about their general
immoral character or previous sexual experiences to prove consent.
4) Under Section 139 of the IEA, a person summoned to produce a document does not become a witness
merely by producing it. Such a person cannot be cross-examined unless they are formally called as a
witness.
5) Section 154 of the IEA permits a party to cross-examine their own witness under certain conditions.
The court may, at its discretion, allow the party calling the witness to put questions that could be
asked during cross-examination by the adverse party. This provision helps in situations where a
witness turns hostile or their testimony deviates from previous statements.

6. Effect of cross-examining on Testimony in certain cases

1) Where No Cross-Examination Takes Place: If a witness's testimony in the examination-in-

chief is not cross-examined, it is presumed accepted as true unless inherently unreliable.
2) No Opportunity Given to Cross-Examine a Witness: The testimony of a witness who is not
subjected to cross-examination cannot be considered.
3) Where Witness Does Not Appear for Cross-Examination: As observed in Gopal Sarvan v.
Satya Narayan (1988), a witness's testimony holds no value if they do not appear for cross-
examination after being examined-in-chief.
4) No Cross-Examination in Certain Cases: Section 139 ensures that a person called merely to
produce a document cannot be cross-examined unless they are also called as a witness.

7. Cross examination is a double-edged weapon

Cross-examination is a double-edged weapon due to its potential to both discredit and inadvertently
strengthen a witness's testimony. Effective cross-examination can expose falsehoods and inconsistencies,
undermining the witness's credibility. Conversely, poorly executed cross-examination can reinforce the
witness's statements and diminish the cross-examiner's position. Thus, cross-examination requires
strategic planning and skillful execution to be truly effective in revealing the truth.
2. Discuss the law relating to facts which need not be proved.
Answer:

Introduction-
As a general rule of law, the party to a suit is required to establish his cause before the Court by
adducing either oral or documentary evidence which includes electronic evidence. However,
under certain scenarios, provided under the Indian Evidence Act, 1872 where the parties to a suit
are not required to provide evidence in favor of their assertions.
Section 56 to Section 58 under the Chapter 3 of the Indian Evidence Act contains the provisions
related to non-imperativeness of admission of evidence by the parties to the suit before the Court
to endorse the credulity of their statements.
It deals with Facts which need not be proved by the parties.

Sections 56 to 58
Section 56: Fact Judicially noticeable need not be proved -
1. Any judicially noticeable fact does not require to be proven before the Court.
2. The phrase “taking judicial notice” means recognizing something without proof of being
existing or truthful.
3. Judicial notice is the acknowledgement by the Court on certain matters which are so infamous
or transparently established that their existential evidence is deemed inessential.
4. The reason behind this is that such facts are expected to be within the ambit of knowledge of
the Judge and therefore any attempt of proving them would indirectly undermine the judicial
competency.
Section 57: Facts of which Court must take judicial notice –
According to Section 57 of the Indian Evidence Act, 1872, the Court shall judicially notice the
following facts:
 All existing laws within the territory of India;
 All previously enacted legislations or future legislations made by the UK Parliament, and all local
and personal legislations made under its direction;
 Articles of war for the Indian Army, or Navy, or Airforce;
 Proceedings of Legislative Bodies
 Accession and Sign Manual of the Sovereign
(Accession refers to the attainment or acquisition of a position of rank or power; and Sign Manual
is the signature of the Sovereign, by affixation of which it expresses its pleasure either by order,
or commission, or warrant.)
 Seals Recognized by English Courts
 Public Officials and Their Signatures
 Existence and Symbols of Recognized States
 Divisions of Time and Geography, Public Holidays
 Hostilities and Their Duration
 Court Officials and Legal Representatives
 Rules of the Road, either at land or at sea.
 In all these cases, including all matters related to public history, literature, science or art, the
Court may refer to appropriate books or documents.
On being called upon to take judicial cognizance by any person, the Court may refuse to do so
unless and until that person produces any such book or document which it may consider
necessary to enable it to do so.

Section 58: Facts admitted need not be proved -

Section 58 of the Indian Evidence Act, 1872 deals with the facts that do not require proof in
certain circumstances
No fact requires to be proved
- If the parties to a suit or their agents agree to admit a fact at the hearing
- If parties agree to admit certain facts in writing before the hearing
- Facts that are admitted through pleadings, under existing rules of pleading, are deemed admitted

However, the Court by exercising its discretionary potency may require the admission of such
facts in some other way for submission.
Example:
In a contract dispute, if both parties agree that the contract was signed on a specific date, this fact
can be admitted, and no further proof is required. However, if the court feels that the date of
signing is critical to understanding the full context of the case, it can require additional evidence
to substantiate this fact.

3. Define Proved, Not Proved, Disproved, May presume, Shall Presume and Conclusive Proof.
Answer:
Synopsis
1. Introduction
The terms Proved, Not proved and Disproved are defined under the Section 3 of the IEA and the
terms May presume, Shall presume and conclusive proof are dealt with under Section 4 of the
Act. The court after examining the evidence adduced before it by the parties, comes to a
conclusion as to the existence or not existence of a fact. Matters placed before a court in relation
to a case if believed and appreciated by the court are proved as evidence and if are not believed
to exist or considered false are said to be disproved in a court. The law of evidence also provides
that a court can take into consideration facts even without calling for proof and thus the court has
the power to presume certain facts. The provisions dealing with proof and presumption are stated
in Section 3 and 4 respectively.

2. Proof
1) Proof means anything which serves to convince the mind of the truth or falsehood of a
fact or proposition.
2) In State of West Bengal v. Orilal Jaiswal 1994 Supreme Court held that proof is the
effect of evidence.
3) It is considered with establishment of material facts in issue in each particular case
by proper legal means to the satisfaction of the court by evidence, admissions,
presumptions, judicial notice, etc.
4) Such proof does not mean rigid mathematical demonstration but it must be such as
would induce a man of ordinary prudence to come to a conclusion.
5) The proof of facts therefore does not depend on the accuracy of statements but on the
probability of having a fact exist.
6) Section 3 deals with the Interpretation clause which defines the terms proved, disproved
and not proved.

Proved

1) Section 3 of the Indian Evidence Act defines ‘proved’.

2) According to this Section, a fact is said to be proved when after considering the
matters before it, the Court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of a particular case,
to act upon supposition that it exists.
3) When a fact is proved, the court gives the judgment in favour of the person who
proves the fact on the basis of some oral or documentary evidence.
4) The court is satisfied with the evidence and comes to a positive conclusion after
considering and appreciating the facts.
5) In M. Narsimha Rao v. State of A.P., AIR 2001 SC 318 Supreme Court held
that proof does not mean proof to rigid mathematical demonstration but such
evidence as would induce a reasonable man to come to a conclusion.
6) It depends upon degree of possibility of having existed.

Disproved

1) Section 3 provides that a fact is said to be disproved when, after

considering the matters before it, the court either believes that it does not
exist or considers its non existence so probable that a prudent man ought
(to act upon a supposition that it does) not exist.
2) Thus, this standard of proof should be of ordinary prudence in person who will
judge its existence or non-existence from the standard of circumstances before
him.
3) The definition of the term ‘disproved’ is only the converse proposition of
‘proved’
4) In the case of Chaturbhiug Pandey v. Collector of Raigad, AIR 1969 SC
225 Supreme Court held that under Section 3 the proof or disproof of a
fact is to be tested on the touchstone of belief of the court or the
probability or otherwise of a prudent man.
5) There is no standard by which the weight of the evidence of the parties
can be ascertained.

Not proved

1) Section 3 provides that a fact is said to be not proved when it is neither proved
nor disproved.
 2) In other words, the man of ordinary prudence neither believes that the fact
exists nor he believes that it does not exist.
3) There is a difference between ‘disproved’ and ‘not proved’.
4) The word ‘disprove’ is akin to ‘false’. What is disproved may normally be
taken to be a false thing. When a fact is said to be disproved, a person
arrives at the firm and fixed decision after considering the matters before
it.
5) On the other hand, a fact which is ‘not proved’ may be true or false. A doubt
lingers about its truth. The phrase ‘not proved’ is the result of careful scrutiny
of the person of ordinary prudence that the fact neither exists with certainty
nor its non-existence is proved with certainty.
6) Thus, ‘not proved’ is a provision between existence and non-existence of
the fact in the mind of a man of ordinary prudence.

3. Standard of Proof:
The standard of proof in civil and criminal cases are different. In a civil case a mere
preponderance of probability is sufficient basis of decision, on the other hand, in criminal
cases a much higher degree of proof is needed before a person is convicted and his guilt
must be proved beyond reasonable doubt. In criminal cases the accused is always presumed
to be innocent until the prosecution proves him guilty and the evidence must exclude every
reasonable doubt of the guilt of the accused.

4. ‘Matters before it’:

Section 3, while defining the team ‘proved’, used the expression ‘matters before it’ instead of
evidence which shows that the court can consider all other matters than evidence such as
demeanor of witnesses, local inquiry conducted by the court, etc. for reaching to the
conclusion.

5. Presumption
1) Black's Law Dictionary defines presumption as a legal inference, or assumption that a
fact exits, based on the known or proven existence or some other fact or group of facts.
2) Presumption is an inference of a fact drawn from certain other proved facts.
3) It is not evidence in itself but an inference of the existence or non-existence of a fact.
4) It is raised when court presumes the existence of a fact on the basis of certain other facts.
5) The effect of presumption is that the party in whose favour the presumption is raised is
not required to prove that fact.
6) There are 3 types of presumptions. They are as follows:
I. Presumption of fact (May Presume)
II. Presumption of Law
a. Rebuttable Presumption (Shall Presume)
b. Irrebuttable Presumption (Conclusive Proof)
III. Mixed Presumptions
Presumption of Fact:

1. Presumption of fact is inferences which are naturally drawn from observation of the course of nature
and the constitution of human mind.
2. These presumptions are generally rebuttable.
3. Section 4 of Indian Evidence Act, 1872 (IEA) defines May Presume, Shall Presume and Conclusive
Proof.
4. Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact
as proved, unless and until it is disproved, or may call for proof of it.
5. Whenever the expression “may presume” has been used in the Act, a discretion has been given to the
Court to presume a fact or refuse to raise such a presumption.
6. It is directory in nature and depends upon the discretion of court.
7. The court thus may, either
- Raise the presumption, or
- Refuse it

8. In case the court raises the presumption the party will be absolved of liability to prove and in case the
presumption is refused, the party will be required to prove the fact.
9. Example:
“May presume” has been used under sections 86 to 88, Section 90, 90A, 1113 and 114.
Section 90 of IEA provides that when a document is thirty years old and is produced from a
proper custody, the court may presume that the document was duly attested and signed by the
person by whom it purported.

Presumption of Law

Presumption of Law is of 2 kinds

a. Rebuttable Presumption:
- These presumptions are predefined legal rules that establish certain facts as being true based on
the existence of other proven facts, unless these presumptions are rebutted by evidence to the
contrary.
- They are mandatory in nature
- But can be challenged and overturned by presenting evidence to the contrary.
- Section 4 provides the definition of ‘Shall presume’ and as per the Section, 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.
- Where the expression “shall presume” has been used, the Court shall mandatorily presume in
that event and there is no discretion left with the Court as there is a legislative command to raise
a presumption.
- The court is thus duty bound to regard a fact as proved, until and unless it is disproved.
- Example: Sections 79 to 85, Section 113B and 114A
S.113B: Presumption as to dowry death
 b. Irrebuttable Presumption:
- The conclusive or irrebuttable presumptions of law are those legal rules which are not dominated
by any evidence that the fact is otherwise.
- Section 4 defines ‘Conclusiove proof.’ As per the section, when one fact is declared by this Act
to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of disproving it.
- It is well settled that where an Act enjoins any evidence to be treated as conclusive proof of
certain factual situation or legal hypothesis, no other evidence may be adduced to contradict or
vary the aforesaid conclusiveness.
- It is mandatory in nature and unlike under the provision of ‘Shall presume’, such proof is not
rebuttable.
- Examples: Sections 41, 112 and 113
S.112: Birth during marriage, conclusive proof of legitimacy

Mixed Presumptions

Mixed Presumptions of law and fact are chiefly confined to the English law and so it is not necessary to
presume subject here.

Difference between Presumption of Fact and Presumption of Law

Aspect Presumption of Fact Presumption of Law

Based on logic, human experience,
Basis and the law of nature. Based on the provisions of law.
Always rebuttable and goes away Conclusive unless rebutted as
when explained or rebutted by provided under the rule giving rise to
Rebuttability establishment of positive proof. the presumption.
Position Uncertain and transitory. Certain and uniform.
The court can ignore presumption of The court cannot ignore presumption
Judicial Discretion fact however strong it is. of law.
Derived from the law of nature, Derived from established judicial
prevalent customs, and human norms and have become part of legal
Derivation experience. rules.
The court can exercise its discretion
while drawing presumption of fact; it Presumption of law is mandatory;
Exercise of Discretion is discretionary. the court is bound to draw it.

6. Conclusion:

Term Definition
A fact believed to exist or considered so probable that a prudent person would
Proved act on its existence.
Not Proved A fact that is neither proved nor disproved.
A fact believed not to exist or considered so improbable that a prudent person
Disproved would act on its non-existence.
May Presume The court has discretion to presume a fact exists unless disproved, but is not
 compelled to do so.
The court is mandated to presume a fact exists unless disproved, with no
Shall Presume discretion otherwise.
Conclusive Proof One fact conclusively proves another, and no contrary evidence is allowed.

10. All Confessions are admission but all admissions are not confessions. Discuss.
11. Define fact, fact-in-issue and relevant fact and explain facts forming parts of the same
transaction. Handwritten
12. Discuss the relevancy of Motive, Preparation and previous or subsequent conduct.
Answer:
Motive, Preparation and Previous or Subsequent Conduct - Section 8
It provides that:
 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
relevant fact.
 The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to a fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1-The word "conduct" in this Section does not include statements, unless those
statements accompany and explain acts other than statements, but this explanation is not to affect
the relevancy of statements under any other section of this Act.
Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his
presence and hearing, which affects such conduct, is relevant.
It can be explained by following illustrations:
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort
money from A by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that,
at the time when the bond was alleged to be made, B required money for a particular purpose, is
relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was administered to B, is
relevant.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
 The fact that he said he had been robbed, without making any complaint, is not relevant, as conduct
under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as
corroborative evidence under section 157.

Constituents of this Section

i. Motive
- Motive is something which compels a man to do a particular act. It primarily refers to the
underlying reason or purpose that drives a person to commit a crime.
- In the case of Tara Devi v. State of UP (1991): SC held that previous threats, previous
altercations, or previous litigations between parties are admitted to show motive. The mere
existence of motive is by itself not an incriminating circumstance.

ii. Preparation
- Evidence indicating the preparation for the commission of a crime is consistently admissible.
The persuasive value of both preparation and prior attempts relies on the presumption that the
accused formed an intention to commit an offense, and this intention persisted until the means
and opportunity were discovered to carry it out.

iii. Conduct
- Conduct refers to the outward actions and behaviors of an individual, while character can be
described as the perception or impression that others have of a person.
- In the case of R.M.Malkani v. State of Maharasthra (1973): Conversation over telephone for
settling details for passing bribe- money was recorded by secret instruments, was held to be
evidence of conduct.

13. Explain the term “Evidence”. Discuss Various Kinds of Evidence. Handwritten
14. Discuss the rules relating to exclusion of oral by documentary evidence.
Answer:

1. Introduction

1) The Indian Evidence Act (IEA) of 1872 provides a comprehensive framework for the
rules and regulations regarding the admissibility of evidence in courts of law.
2) The best evidence rule is one of the cardinal principles of the law of evidence that in all
cases the best evidence in possession of the party must always be given.
3) Sections 91 and 92 specifically deal with the exclusion of oral evidence in relation to
written documents, which provide for practical application of the rule of best evidence

2. Best Evidence Rule

1) The rule of best evidence is a fundamental principle in the law of evidence which mandates that
the best available evidence must be presented in court.
 2) This rule is based on the idea that original documents and primary sources of evidence are more
reliable than secondary sources, such as copies or oral testimonies.
3) The rule ensures the authenticity, accuracy, and completeness of the evidence which is presented
in courts.
4) This rule is applied in the IEA under the following sections:
A. Section 60: Oral Evidence Must Be Direct
B. Section 64: Proof of Documents by Primary Evidence
C. Section 91: Exclusion of Oral Evidence by Documentary Evidence
5) Sections 91 and 92 of the IEA specifically emphasize the exclusion of oral evidence when
documentary evidence is available, upholding the rule of best evidence.
6) This rule is crucial in ensuring that the most reliable and accurate evidence is presented in legal
proceedings.

3. Exclusion of Oral Evidence

Section 91 and 92 of the Act deal with the provisions for exclusion of oral evidence. The Sectiona are as
follows:

I. Section 91:
1) This section can be split in two parts. It talks about:
- Transactions which are not compulsorily required by law to be in writing
- Transactions which are compulsorily required to be in writing.
2) The first part of this Section refers to transactions voluntarily reduced to writing. It does not
deal with all kinds of documents/transactions but only those which are dispositive in nature.
3) The second part of this Section refers to transactions which are required by law to be in
writing. The documents covered by this part are wider in scope as they may or may not be of
dispositive in nature.
Part 1
1) This Section in terms of the first part deals with the evidence of terms of contracts, grants and
other dispositions of property reduced to form of document.
2) This Section says the terms of a document must be proved by the document itself or by
secondary evidence where it is admissible under the Act and not by oral evidence.
3) According to the Section, where a thing is in writing, it shall be proved by such writing only.
4) No oral evidence shall be allowed to prove the contents of the written document.
5) This Section can be read as follows:
When the terms of a contract, or of a grant, or of any other disposition of property, have been
reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
6) Thus, the essential factor of this provision is that any term of a document is to be proved by a
documentary evidence and anything other than terms may be proved by oral evidence.
Part 2
1) In case of documents under part two, which are transactions required by law to be in writing
compulsorily, they shall be proved by documentary evidence only and no oral evidence shall be
allowed to be given. It is thus, compulsory for these transactions to be reduced to writing or
document.
2) Example of such transactions may be – Sale of immovable property above Rs. 100 or Statements
made u/s 64 of CrPC. Contents of such can be proved by documentary evidence only.

Effect of Registration
1. Registration Act 1908 deals with provisions with the registration of documents. Section 17 and
49(c) are provisions under the Registration Act which prevail over Section 91 of the Indian
Evidence Act.
2. Section 17 deals with Documents compulsorily required to be registered and Section 49(c)
deals with effect of Non-Registration. As per section 49(c) states that in case where, a document
which was required to be compulsorily registered is not registered, No oral or documentary
evidence can be given.
3. Thus Section 49(c) of the Registration Act prevails Section 91 of the IEA
4. A document which is not registered cannot be produced as evidence as an effect of the
Registration Act over the IEA.

Explanations u/s Section 91

1) Explanation 1– This section applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document, and to cases in which
they are contained in more documents than one.
2) Explanation 2 – Where there are more originals than one, one original only needs to be
proved.
3) Explanation 3 - The statement, in any document whatever, of a fact other than the facts
referred to in this section, shall not preclude the admission of oral evidence as to the same
fact.

Exceptions u/s 91

1) When a public officer is required by law to be appointed in writing, and when it is

shown that any particular person has acted as such an officer, the writing by which he
is appointed need not be proved.
2) Wills admitted to probate in India may be proved by the probate.

Illustrations of Section 91 of IEA

a) If a contract is contained in several letters, all the letters in which it is contained must be
proved.
b) If a bill of exchange is drawn in a set of three, one only needs to be proved.
c) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The
evidence is admissible.
 Application of Section 91 of IEA

This Section applies in two situations:

1) When the terms of a contract, or a grant, or of any other disposition of property have
been reduced the form of a document.
2) In all cases in which any matter is required by law to be reduced in the form of a
document. In such cases, no evidence shall be given in the proof of the terms of such
contract, grant or other disposition of property or of such matter except:
- The document itself.
- Secondary evidence of its contents in cases in which secondary evidence is admissible.

II. Section 92
1) This section deals with Exclusion of Evidence of Oral Agreement
2) It further excludes oral evidence in cases where the terms of any such contract, grant, or other
disposition of property have been proved by the document itself and acts as a supplement or
continuation to section 91.
3) As per this Section, once the document is established as the source of the terms, no oral
evidence contradicting, varying, adding to, or subtracting from its terms is admissible.
4) If the terms under section 91 are proved by giving documentary evidence, then any
contravention, alteration or variation made to such terms cannot be proved by giving oral
evidence.
5) The written document is considered conclusive proof of the terms, and oral agreements that
contradict or modify these terms are generally not allowed.
6) There are certain Exceptions to the provision. Section 92 includes six provisos that outline
exceptions to this rule, permitting oral evidence under certain circumstances and they are as
follows:
a. Proviso (1): Facts Invalidating the Document
 "Any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto; such as fraud, intimidation,
illegality, want of due execution, want of capacity in any contracting party, want or
failure of consideration, or mistake in fact or law."
 This proviso allows oral evidence to prove facts that would render the document
invalid or voidable. This includes:
- Fraud: If the document was created through fraudulent means.
- Intimidation: If a party was forced to enter into the contract under duress.
- Illegality: If the subject matter of the document is illegal.
- Want of Due Execution: If the document was not properly executed.
- Want of Capacity: If a party lacked the legal capacity to contract.
- Failure of Consideration: If the consideration promised in the contract was not
provided.
- Mistake in Fact or Law: If there was a fundamental mistake in the understanding of the
terms or the law.
b. Proviso (2): Separate Oral Agreements on Matters Silent in the Document
  "The existence of any separate oral agreement as to any matter on which a
document is silent and which is not inconsistent with its terms may be proved."
 This proviso applies when the written document is silent on a specific matter.
 The oral agreement must not be inconsistent with the terms of the written
document.
 The oral agreement must be a separate, subsequent agreement entered into after
the written document.
 If there is a written contract between parties, and they later agree orally on a
matter that the written contract does not cover, this oral agreement can be proven
in court as long as it does not conflict with the written contract.

c. Proviso (3): Condition Precedent

 It deals with separate oral agreement containing a condition precedent.
 In case parties enter into a separate legal agreement and such oral agreement
contains a condition precedent on contract, grant or disposition then such can be
proved by oral evidence.
d. Proviso (4): Subsequent Oral Agreements to Rescind or Modify
 This provision deals with documents which are not required to be in writing ore
to be registered by law.
 It allows for the proof of a subsequent oral agreement that changes or cancels the
original written contract
 In case such a document is in writing and a subsequent oral agreement which is
not in continuation with such document is enetered into by the parties to modify
or rescind the terms of the document, then such oral agreement may be proved
by oral evidence
e. Proviso (5): Usage or Custom
 It allows for the proof of customary practices or usages that are typically part of
such contracts, provided they do not contradict the explicit terms of the written
document.
 Any custom or usage which is common in trade and is not entered into contract
can be proved by oral evidence provided that it is not inconsistent with the
terms.

f. Proviso (6): Relationship of Document Language to Existing Facts

 It deals with ambiguity in terms of a contract.
 As per this provision oral evidence to clarify how the language of the document
relates to the actual situation or context at the time the document was executed
can be given.
 Ambiguity in terms of surrounding circumstances at the time of making the
document can be proved by oral evidence
4. Conclusion

Sections 91 and 92 of the IEA emphasize the exclusion of oral evidence when documentary evidence is
available, upholding the rule of best evidence. This rule is crucial in ensuring that the most reliable and
accurate evidence is presented in legal proceedings.

15. Explain the law relating to competency and compellability of witnesses.

Answer:
Synopsis-
1. Introduction
(i) A witness is someone who testifies as to what she saw or other-wise perceived about the events
underlying a case.
(ii) Before a witness is examined, it is crucial to determine their competency. Competency refers to
the legal fitness, the ability, capacity or qualification of a witness of a person to give testimony.
(iii) It stipulates who may give evidence in court and the circumstances under which he or she can be
allowed to testify.
(iv) It has to be determined that a witness standing in a court of law is qualified to be ‘heard’ by the
court.
(v) A court is competent if it has been given jurisdiction by statute or constitution to hear particular
types of lawsuits. For example, the Supreme Court hears and determines any dispute between
the Indian Government and one or more States.
(vi) As per Section 118, the general rule regulating the competency of witness in court is that all
persons are competent to testify as witnesses unless the court discovers that they are unable to
understand the questions put to them or from giving rational answers to those questions by
reason of tender age, extreme old age, disease (whether of body or mind) or any similar case.

2. Meaning of Competency and Compellability

1) Competence on its own implies the ability to do something well while compellability connotes the
ability to use coercion on an individual to do that which he ought to do or something that is necessary
for him to do.
2) One can therefore hold that competence can be taken to mean the ability to give evidence while
compellability becomes a legal obligation to give evidence.
3) A distinguishing mark runs through this definition in that whereas competence refers to the general
ability of an individual to testify, compellability connotes an obligation to testify enforceable by law.
4) Competency should not be confused with credibility or reliability. At the stage when the question of
competency is being decided upon; judges or magistrates do not decide whether a witness is, or will
be, telling the truth or giving accurate evidence. Questions about credibility and reliability relate to
the weight of the evidence, not to the competency of the witness.
5) Compellability is a state of a competent witness being forced or ordered to give evidence in court
even when he is not willing to do so.
6) The general rule is that all competent witnesses are compellable, that is, can be compelled to give
evidence in court of law.
7) However, there are certain exceptions to this rule
 3. Sections 118 of the Indian Evidence Act
Under the Indian Evidence Law, every person is competent to testify as a witness as long as he
understands the questions put by the court and gives rational answers thereof.
Religion caste, sex, age play no role at all in deciding he competency of a witness.
Once a court is satisfied that the person has the mentally capability to answer the questions
rationally, he is allowed to give his testimony and help in completing the story involved in the
case.
Section 118, Indian Evidence Act, 1872 states the qualification of the persons who can testify.
The section is reiterated as below:
S.118 Who may testify: All persons shall be competent to testify unless the Court considers that
they are prevented from understanding the questions put to them, or from giving rational answers
to those questions, by tender years, extreme old age, disease, whether of body or mind, or any
other cause of the same kind.
Therefore, the disqualifications as provided in the act are:
1. Tender age
2. Extreme old age
3. Disease of mind or body which renders the person incompetent to understand the questions and
answer rationally.
4. Any other cause for instance unconsciousness, drunkenness, extreme bodily pain etc.

5. Types of Witnesses and their Competency

a) Dumb Witnesses:
As per Section 119 of IEA, a witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs; but such writing must be
written, and the signs made in open Court.
The evidence so given shall be deemed to be oral evidence.
b) Child Witnesses:
Children can be admitted as evidence, but the standard of scrutiny is to be maintained while
ascertaining how much importance must be placed on each testimony.
When the child goes into a witness box it is the general practice for the judge to ask a few
questions to see that the child is intelligible enough to give rational answers to those questions
and has the rough idea between truth and falsehood.
In Surya Narayana v. State of Karnataka (2001), the Supreme Court held that a child of tender
age be allowed to testify if he has intellectual capacity to understand questions and give rational
answers thereto.
c) Hostile Witnesses:
A hostile witness, also known as an adverse witness or an unfavorable witness, is a witness at
trial whose testimony on direct examination is either openly antagonistic or appears to be
contrary to the legal position of the party who called the witness.
A witness becomes hostile when he makes a statement against the interests of the party who
called him.
 Section 154 of IEA allows a party calling a witness, with the permission of the court, to put
leading questions and cross-examine him when it is found that the witness has turned hostile or
unwilling to answer questions put to him.

6. Exceptions:
(1) These exceptions manifest under the public policy and privilege immunities.
(2) In case a witness cannot be legally compelled to testify in court of competent
jurisdiction,such a witness is said to enjoy a certain privilege
(3) A privilege is a right legally conferred upon an individual not to testify in court of law or
produce certain items as real evidence.
(4) It only covers matters which directly affect the litigant or witness; for instance, legal
professional privilege or privilege against self-incrimination
(5) Public policy immunity deals with matters that can jeopardise the safety and well-being
of the state such as national security, police matters, local government
matters,confidential matters and proceedings in Parliament
(6) Privilege immunities and public policy immunities do manifest as follows:-
i) The accused cannot be compelled to give evidence that incriminates him
ii) Spousal Privilege or Communications during marriage – S122
iii) Communications under sections 121 to 129

6. Relevant Sections

1) Section 120 of IEA

According to Section 120 of IEA, in all civil proceedings the parties to the suit, and the husband or wife
of any party to the suit, shall be competent witnesses. Further, in criminal proceedings against any person,
the husband or wife of such person, respectively, shall be a competent witness.

In the case of Shyam Singh v. Shaiwalini Ghosh (1947), Calcutta High Court held that the husband and
wife are both competent witnesses against each other in civil and criminal cases. They are competent
witnesses to prove that there has been no conjugation between them during the marriage.

2) Section 133 of IEA

It states that an accomplice shall be a competent witness against an accused person and a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an 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, every one participating in its commission is an
accomplice.

7. Conclusion
The law regarding the competency and compellability of witnesses aims to balance the principles of
justice, fairness, and truth-seeking in legal proceedings, while also respecting individual rights and
privileges.

16. Discuss Statement made under special circumstances

Answer:

Synopsis-
1. Introduction
1) The Indian Evidence Act, 1872 (IEA) came into force on 1st September 1872 and
consists of 11 Chapters and 167 Sections.
2) The concept of statements made under special circumstances is dealt with by Chapter II
of the IEA under Sections 34-38 whereas Section 39 mentions about how much of a
statement is to be proved.
2. Statements Made under Special Circumstances (34 to 39)
Relevant provisions of IEA are described as under: NOTED
1) Section 34: Entries in books of account when relevant
2) Section 35: Relevancy of entry in public record made in performance of duty
3) Section 36: Relevancy of statements in maps, charts and plans
4) Section 37: Relevancy of statement as to fact of public nature contained in certain Acts
or notifications
5) Section 38: Relevancy of statements as to any law contained in law-books
6) Section 39 What evidence to be given when statement forms part of a conversation,
document, electronic record, book or series of letters or paper
3. Conclusion
The Indian Evidence Act's provisions on statements made under special circumstances strike a
balance between accepting relevant evidence and ensuring its reliability. They require
corroboration, regular maintenance, and official capacity of records, emphasizing the need for a
complete understanding of context. These measures help maintain the integrity of the judicial
process.

Short notes
1. Hostile Witness
2. Dumb Witness
3. Retracted Confession
4. Electronic Evidence
5. Oral Evidence
6. Improper Admission
7. Doctrine of Res Gestae
8. Impeaching Credit of Witness
9. Private and Public Document
10. Examination – in – chief
11. Fact, Fact-in-issue and Relevant Fact