KRISHNA INSTITUTE OF LAW

(Approved by BCI affiliated to CCSU, Meerut)

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Phone no- +9643031960, 9643028427

LL.B. – 5th Sem

Law of Evidence

Evidence

The origin of the term ‘evidence’ can be traced to the Latin words “evident” or “evidere” –
meaning to discover, determine or arrive at the truth. Evidence also implies – to make clear,
certain, notorious. Evidence plays a key role in the judicial process by supporting or building an
argument before the court, with respect to proving or disproving a matter of fact or controversy,
between the parties.

Classification of evidence

1. Direct and circumstantial evidence

Direct evidence directly addresses the fact in issue or the matter of controversy between parties.
It includes both the statement of witnesses and documentary evidence. For example, ‘A’
witnessed ‘B’ killing ‘C’ with a knife. ‘A’s witness testimony of the murder of ‘C’ by ‘B’, is direct
evidence. Direct evidence takes precedence over circumstantial evidence. Direct evidence
depends on the credibility of the witness testimony and the documents submitted.

Whereas, circumstantial evidence is based upon relevant facts that prove or disprove the fact in
issue. Circumstantial evidence must prove the guilt of the accused beyond doubt if it is to be
admissible in court. Circumstantial evidence takes the indirect route to prove or disprove the
fact in issue; however, it must not be confused with secondary evidence.

2. Real and personal evidence

Real evidence consists of the assumptions or conclusions the court draws from the information
available to it. For example, DNA found at the crime scene; the nervous behaviour of the accused
before the judge; fingerprints found on the murder weapon, etc. Personal evidence is obtained
through human agency.

3. Original and unoriginal evidence

Original evidence is firsthand evidence, which a witness has personally experienced through his
own senses. Whereas unoriginal evidence is secondary or hearsay and has been learned
indirectly through a third party.
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4. Substantive and non-substantive evidence

Substantive evidence is that evidence which does not need to be corroborated and serves to
prove or disprove a fact in issue. Substantive evidence can be both circumstantial and direct.
Non-substantive evidence does not hold enough weight by itself and is not sufficient to prove or
disprove a fact.

5. Positive and negative evidence

Positive evidence proves that an event has taken place or that a certain fact exists. Whereas,
negative evidence proves that a fact does not exist.

6. Prosecution evidence and defence evidence

Evidence used by the prosecution to prove the guilt of the defendant or accused is called
prosecution evidence. On the other hand, the evidence used by the defendant to prove his
innocence is called defence evidence.

Oral evidence

Oral evidence can be defined as the statements made by witnesses which are allowed or needed
by the court. These statements by witnesses help determine the matter in issue or controversy
between the parties. When a witness orally makes a statement it is regarded as oral evidence.
Witness testimony has also been called ‘living proof.’ However, in the cases where a witness is
unable to speak, then communication through signs or writing is also admissible as oral
evidence.

Usually, all evidence that is not written in documents is oral evidence and is sufficient to prove a
fact or title. However, according to Section 60, in the presence of both documentary evidence
and oral evidence, the former takes precedence.

Oral evidence must be direct i.e., the witness making the statement must have seen or heard, or
experienced the event first-hand.

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been growing in regards
to usage; as earlier it was not considered to be as precise and blunt as documentary but its need
and importance has been constantly subjected to rapid growth. Oral evidence is also equally
important as

 It stimulates a person and extracts what a person has seen or what he wants to say in
regards to the trial.
 Oral evidence is comparatively easier to refer.

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  The importance has been explained by the Bombay High Court in one of the cases that if
the oral evidence is proved beyond reasonable doubt it can also be enough for passing
conviction.

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence
needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be
fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to be
pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For acting
out one, the other needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is taken into regards
must be direct. The word direct does not include any category of hearsay as its main element is
vested in the word “must”. Every statement under oral evidence must be direct. Now let’s focus
on some conditions which need to be fulfilled to make oral evidence admissible;

This involves certain cases in which the word “direct” is involved :-

1. It refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it – It refers to evidence which has been given by the person who has actually seen or
observed the matter by their own eyes, This will be actuated as direct evidence. For
example: if A saw that B is hitting C. A will be an eyewitness to the crime scene and his
testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it – It refers to evidence which has been given by the person who was present and
has actually heard the matter by themselves, this will come under direct evidence. For
example: if A overheard B’s conversation that stated; that he is going to kill C tomorrow
under the bridge, A’s testimony will be that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner, it
must be the evidence of person who says he perceived it by that sense or manner –
Meaning such evidence that has been given by the person who has perceived it in any other
manner or by any other senses but it has been perceived by that person itself. For example:
through sense of smell or taste.

4. If it refers to an opinion or to grounds on which that opinion is held, it must be the

evidence of the person who holds that opinion on those grounds – It means when a
person holds any opinion on any matter or incident, only his testimony on the ground of
which his opinion is formed will be admissible in the court. For example: A thinks that B is
not a good guy, so his testimony of that opinion will be termed under direct evidence.

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 Hearsay evidence

Whenever information passes through indirect channels, such as rumours or gossip, it can be
termed as ‘hearsay.’ Hearsay evidence is that information which has not been obtained through
direct means, and has not been experienced by the witness firsthand. Hearsay evidence is not
admissible in court and does not hold evidentiary value.

However, hearsay evidence is admissible in the case of the following exceptions:

It is said that “hearsay evidence is no evidence.” Direct evidence is more reliable and acceptable
in court. But there are some exceptions to this rule. Here are five instances when hearsay
evidence is accepted by the court:

1. Res Gestae

The rule of res gestae means ‘The facts which form part of the same transaction.’ This rule is
given under section 6 of the Indian Evidence Act. The statement of a person may be proved in
the court through another person who appears as a witness in court if the fact which he states in
court forms a part of the same transaction.

2. Admission

Admission is also an exception to the rule that says hearsay evidence is no evidence. Section 17
of the Indian Evidence Act defines admission as a statement, either oral or in the form of a
document or electronic form, which gives inference to any fact in issue.

If a person in the court makes a statement against his own interests, then the court accepts such
a statement on the ground that a person shall never make a statement against his own interests.

3. Confessions

Confession means when a person admits his guilt in court. Confession has nowhere been defined
in the Indian Evidence Act. Section 24 to section 30 of the Indian Evidence Act deals with the
provisions relating to confession.

If a person gives an extra-judicial confession that is outside the court, it may be proved through
the testimony of that person to whom such confession was made. Though the witness did not
hear himself or saw anything related to the offence. But the confession by a person may be
proved through his testimony in court.

4. Dying Declaration

Section 32 of the Indian Evidence Act talks about the statement of a person who cannot be called
as a witness in court.

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There might be a situation when a person is on his death bed or suffering from any disability
due to which he could not appear before the court. In such cases, if the person gives his
statement to any other person relating to his death or cause of death, then the person to whom
such statement has been transmitted may appear before the court as a witness and give hearsay
evidence as to what he heard from the declarant.

5. Evidence Given in Former Proceedings

If the person to be called as a witness dies or due to some other reason is not able to appear
before the court, then the statements given by such person in former or previous proceedings
may be used as a piece of evidence for proving the truth in subsequent proceedings.

Document
A document within the meaning of this Act, is any writing, marks, figures inscribed on a surface
for the purpose of recording a matter. In R v. Daye (1908) the Court observed that the notches
made by bakers and milkmen on wood to indicate the amount of bread or milk supplied are also
documents. The surface upon which the writing or marks are inscribed is not restricted to
paper. Writings, words in photographs, maps, plans, inscriptions on metallic surfaces – all these
fall within the category of document.

Documentary evidence

Documentary evidence is covered by Section 61-90 of the Act. All documents submitted to the
court for scrutiny fall under the umbrella of documentary evidence. Documentary evidence
holds precedence as compared to oral evidence, in terms of both credibility and permanence.
Documentary evidence is also called ‘dead proof.’ Due to the improvement in technology and the
coming up of legislation such as the IT Act, 2000, electronic evidence has also been included
within the purview of documentary evidence.

Documentary evidence can be of two types:

1. Primary evidence

Primary evidence includes the original document; a document executed in separate parts; a
document that has been manufactured or produced by one uniform, mass process (for example,
photographs, lithographs, etc).

2. Secondary evidence

Secondary evidence includes certified copies of the original document. Also, when original
documents are used to make a large number of copies through a mechanical process, for
example, by printing, photocopying etc.

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 Difference between primary and secondary evidence
[Link]. PRIMARY EVIDENCE SECONDARY EVIDENCE

Section 62 of the Evidence Act defines Section 63 of the Evidence Act defines
1.
primary evidence. secondary evidence.

It is used in the absence of primary

It is considered the best or finest
2. evidence and is considered as lower
quality of evidence in a court of law.
quality of evidence.

The original document or work that Any and/or all kinds of copies made of the
can be produced before the court of original document/work as mentioned
3.
law for inspection can be considered under Section 63, form part of the
primary evidence. secondary evidence.

Permission is to be sought from the court

Primary evidence can be presented to
to lead secondary evidence on the
4. the court without serving any prior
grounds of the unavailability or loss of
notice.
original documents.

It has high evidentiary value in the

It has low evidentiary value in court as it
5. court as it is the main source of
is an alternative source of evidence.
evidence.

In case of loss of birth certificate, Copy of

the 10th marksheet if it has Date of Birth
Birth Certificate issued by the MCD is is admissible or any ID Proof i.e. Voter
6.
primary evidence. Card or Aadhar Card are also admissible
and are secondary evidence of the birth
certificate.

Proved, Disproved and Not Proved

Proved

When the court believes beyond a reasonable doubt in the existence of a certain fact or believes
that a reasonable man would be likely to act in a certain manner on the basis of his belief that
said fact exists, then the fact is said to be “proved.”

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Disproved

When the court believes beyond reasonable doubt that a fact does not exist, and that a
reasonable man would upon knowing the details of the case, act on the belief that the fact does
not exist, the fact is said to be “disproved.”

Not proved

A fact is said to be “not proved” when it is neither proved nor disproved, and a reasonable man
would not believe in the existence or the non-existence of the fact.

Fact

‘Fact’ may be defined as: Any thing, state of things, relation of things, that can be sensed
(external fact).

For instance –

 When certain things are placed in a certain way/pattern, it is a fact.

 When a person sees or hears something, it is a fact.

 The words spoken by a person, is a fact.

 Any mental condition of which any person is conscious (internal fact).

For instance–

 The opinion of a person.

 The intentions of a person.

 A person acting in good faith/fraudulently.

 The deliberate choice of a person’s words.

 Feeling a certain sensation at a certain time.

 A person’s reputation.

Types of Fact

1. Physical and psychological facts

Physical facts are those that can be discovered through the use of a person’s senses. For
instance, observing the arrangement of certain objects, hearing the distinct sound of a horn, etc.
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However, the law of evidence is not restricted to physical facts “only”. Beyond, physical facts lie
psychological facts which are based on the mental condition of a person. For instance, when a
person commits fraud, his intention to deceive the other party is also a fact.

2. Positive and negative facts

When the existence of a situation or state of things can be confirmed, it is a positive fact. For
instance, in a property dispute case, the deceased left a will to bequeath his property. The
existence of the will is a positive fact. On the other hand, the non-existence of a situation or state
of things is a negative fact. For instance, the lack of a weapon at the scene of a murder.

Facts in issue

Facts in issue are those facts that are sought to be proved and are also called “principal facts” or
factum probandum. When the rights and liabilities of the parties are dependent on a fact that is
in dispute or controversy, that fact is in issue.

For example, ‘X’ is accused of defaming ‘Y’ through libel. The possible facts may be in issue: that
‘X’ caused damage to ‘Y’s reputation; ‘Y’s business suffered losses due to ‘X’s defamation; ‘X’
wrote and published defamatory statements about ‘Y’ out of malice, etc.

Facts in issue determine the arguments of both the plaintiffs and defendants. The parties must
prove that the facts in issue lean toward their pleadings in order to sway the court’s decision in
their favour. The substantive law applicable to the offence determines what constitutes the facts
in issue. In criminal cases, facts in issue depend on the contents of the charge-sheet, whereas, in
civil cases the framing of issues takes place.

Facts in issue form the foundation upon which the parties argue their case, and when these facts
are proved to the satisfaction of the court, a decision can be made.

Relevant facts

Relevant facts are those which are needed to prove or disprove a fact in issue. Relevant facts are
also called evidentiary facts (factum probans). These facts are not in issue – they are not the
main issue of controversy or dispute between the parties. Rather, relevant or evidentiary facts
dig deeper into the context or circumstances of the facts in issue, and help to draw inferences
about them.

Admissions and confessions, statements by those who are not witnesses, precedents from case
laws, statements made under special circumstances, facts which form a chain of logic with facts
in issue, third party opinions, and evidence as to the character of a person – all these fall under
the category of relevant facts.

Relevant facts indicate a relationship between facts, which according to a sound chain of logic
and common sense, either prove or disprove the existence of each other. Relevant facts act as

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supplementary material to sway the opinion of the court in favour of the party making the
argument with respect to the facts in issue.

For example, ‘A’ is accused of committing theft. A relevant fact would be that ‘A’ has had a
history of pickpocketing and shoplifting, and has been prosecuted before. The fact in issue
would be – whether A has committed theft.

Burden of proof under the Indian Evidence Act

Under the Indian Evidence Act, 1872 the burden of proof is explained. According to Section
101 of the Act, the burden of proof lies on the person making any claim or asserting any fact.
Whoever wants the court to give any decision in his favor, must prove that the facts pertaining
to that request exist. For example, if A wants to approach the court to get a verdict in his favor,
he must prove the facts that he is asserting. Along with it, Section 101-110 lay down provisions
as to the burden of proof. Section 114 of the Indian Evidence Act says that the court may
presume certain things. In continuation of this Section, we saw the insertion of Section 114-A
which presumes the absence of consent in certain prosecutions of rape.

Burden of Proof in Criminal & Civil Cases

When you’re charged with a crime or named as a defendant in a personal injury lawsuit, the
other party has what is known as a burden of proof. The burden of proof is basically an
obligation to prove what’s being alleged in the case. A legal case – criminal or civil – cannot be
successful if the burden of proof isn’t satisfied.

Criminal Cases: Beyond a Reasonable Doubt

The burden of proof in criminal cases is beyond a reasonable doubt. You cannot be convicted by
a judge or jury if there is reasonable uncertainty that you’re guilty of the crime. Surprisingly,
there’s no hard-and-fast definition or instruction for what “beyond a reasonable doubt” means.

Whether or not reasonable doubt exists will ultimately depend on how a judge or jury views a
particular case. The decision should be based on “reason and common sense after careful and
impartial consideration of all evidence” in a case. Some courts explain that beyond a reasonable
doubt means that there is “proof of such a convincing character that a reasonable person would
not hesitate to rely and act upon it.”

This is an incredibly high burden of proof. As a result, the best way to defend yourself when
you’re accused of a crime is by asserting a very strong defense. Any legitimate doubt can prevent
the state from satisfying its burden of proof.

Example: Let’s say that you’re charged in connection with a robbery. The state’s case relies
heavily on eye-witness testimony. During cross-examination, your attorney is able to poke many
holes in the witness’s testimony and put his credibility into question. In fact, your attorney even
gets the witness to admit that they’re not 100 percent sure that you are the person they saw

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robbing the store. Here, there’s a legitimate chance that you may have been misidentified by the
witness. A jury could have reasonable doubt as to your guilt.

Civil Cases: Preponderance of the Evidence

The burden of proof in civil lawsuits – including personal injury cases – is by a preponderance of
the evidence. Preponderance of the evidence means that it’s more likely that something is true
than untrue. A victim in a personal injury lawsuit only has to convince a judge or jury that
there’s a “greater than 50 percent chance” that their claim is true.

It’s the quality of the evidence, rather than the quantity, that will be important when
determining if there is a preponderance of the evidence.

Example: You’re named as the defendant in a personal injury lawsuit after a recent car accident.
The victim has some, but not a lot, of evidence to support the argument that you are responsible
for her injuries. However, the evidence she does have is quite persuasive, including an expert’s
virtual recreation of the incident. You don’t have much to offer in your own defense. A jury finds
that, based on the victim’s evidence, it’s more likely than not that you caused her injuries.

Leading Question
SECTION 141- LEADING QUESTIONS

The expression ‘Leading Question’ is defined in section 141. It says that question suggesting the
answer which the person putting it wishes or aspects to receive is called a leading Question.
In any proceeding, the object of chief Examination is known questioning of witness by the party
who called him and to enable the witness to tell court by his own mouth the relevant facts of the
case.
Example: It is relevant to tell the court as to where a witness lives; the question to be asked to
him should be ‘Where do you live’? And then he may tell where he lives. If the question is framed
like this “Do you live in such & such place” the witness will pick up the hint and simply answer
‘Yes’. This is a leading Question. It puts the answer in the mouth of the witness and all that he
has to do is to throw it back.

Rules regarding Leading Questions

SECTION 142- WHEN THEY MUST NOT BE ASKED?

This section tells us if there is some objection by the adverse party that question couldn’t be
asked in examination in chief and also it cannot be asked in re examination. Only it can be asked
when there is approval of court. Court can overrule the objection of adverse parties. It is on the
discretion of court that it overrides the objection or not based upon the various circumstances
but in the matters which are introductory in nature, settled and already sufficiently proven the
court must permit the question and overrule the objection. Three exceptions has been given

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under this. In those three exceptions the there is no discretionary power given to the court of
law and questioner can ask without any boundations.

SECTION 143- WHEN THEY MAY BE ASKED?

Court cannot deny the asking of leading questions in the matter of cross examination. There is
no discretionary power up to the court to overrule the objection of opposite party in cross
examination. They can be asked until opposite party challenges are there in examination in chief
and re examination. Thus, court of law can override the objection. When the case is of
undisputed nature, the case in question has already been proved sufficiently and when the
nature is introductory court can’t overrule the objection.

SECTION 154- QUESTION BY PARTY TO HIS OWN WITNESS

Under this section the person who called the witness and if he didn’t support the proceedings.
Then, he can be declared as hostile with the permission of court. After court declared the person
as hostile the other party is given permission for the cross examination right to that party who
has done examination in chief earlier. Then the question arises that the right to cross examine
has been given to them but what will be the benefit to the person who called his own witness.
The legislation has not used the word hostile is exact language. Leading Question can be asked in
Sec. 154 in examination in chief when witness is hostiled court can give permission to continue
further.

Estoppel

Section 115 of the Indian Evidence Act, 1872 provides with the meaning of estoppel as when one
person either by his act or omission, or by declaration, has made another person believe
something to be true and persuaded that person to act upon it, then in no case can he or his
representative deny the truth of that thing later in the suit or in the proceedings. In simple
words, estoppel means one cannot contradict, deny or declare to be false the previous statement
made by him in the Court. For example A, an agent of C, mortgaged his property to B which he
was in the possession of but was not the owner. B, the mortgagee, in good faith, believing the
representation to be true took the mortgage. Thereafter, he obtained a decree and the property
was sold. The real owner of the property, C, claimed that it was his property and that A had no
power to mortgage them. The court would stop A from making such a claim under the doctrine
of estoppel.

Example - Simran, a leading entrepreneur, wants to buy a car. Raj is her good friend who owns a
classic car of great worth. When Simran contacts Raj to help her in purchasing a car, he says that
she can buy his car which he has been planning to sell for some time now. Simran buys his car.
Later on, the car becomes Raj’s property. Raj takes the defense that when he sold that car to
Simran, he had no title over it. The court held that Raj would be liable and will have to prove his
want of title.

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Conditions for application of Doctrine of Estoppel

The following conditions are to be satisfied in order to apply the doctrine of estoppel:

 The representation must be made by one person to another person.

 The representation made must be as to facts and not as to the law.

 The representation must be made as to an existing fact.

 The representation must be made in a manner which makes the other person believe that
it is true.

 The person to whom the representation is being made must act upon that belief.

 The person to whom the representation would be made should suffer a loss by such
representation.

Provisions and case laws related to estoppel

Section 115

It defines estoppel as a principle which prohibits a person from denying what was earlier said
by him in the Court. The court in Pickard v. Sears said that estoppel is where:

 One party by his words or actions makes a representation

 The other party believing in his words acts on that

 Or alters his position then the party would not be allowed to deny the things he previously
said.

In the third clause, the altering of the position should be such that going back would be unjust or
unfair in the eyes of law, as established in the case of Pratima Chowdhury v. Kalpana Mukherjee.

Necessary Elements of Representation

 The representation made can be done in two ways:

 By words

 Through conduct which includes negligence

In Bhagwati Vanaspati Traders v. senior Superintendent of Post Offices, Meerut, the

plaintiff purchased one N.S.C. for which he paid only a certain amount and not the entire amount
of money. The defendant closed the account of the plaintiff and refunded the amount without
any interest on the ground that it was not opened in according to the rules and regulations. On
the plea of estoppel, the court said that the plaintiff himself had purchased the N.S.C. and that no
misrepresentation was made to him by the defendant.
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Section 116

The section states that during the continuance of the tenancy, the tenant of the immovable
property or any person claiming through such tenancy can deny to the fact that at the beginning
of the tenancy it was the landlord who had the title over the immovable property. Further, the
Section also explains that a person who came upon an immovable property by the license cannot
deny the fact that the person from whom he got the license, that is, in whose possession the
immovable property, had the title at the time when he got his license.

Section 117

The section states that the acceptor of the bills of exchange cannot deny the person who is
supposed to draw the bills, from drawing it or endorsing it. Also no bailee or licensee can deny
the fact that at the time when the bailment and license began, the bailor and the licensor had the
authority to make bailment or to give license. The person accepting the bills of exchange can
deny that the bills of exchange were really drawn by the very person who showed to have
drawn it. If the bailor mistakenly delivers the goods to some third party instead of the bailee, he
can prove that a third party has the right over the goods bailed against the bailor.

Dying Declaration

Dying Declaration is a statement made by the person while he was dying and states the reason
for his death. The statement given by the dying person can be circumstantial or tells the cause
for his death. Hence, the only statement given just before the death of a person is called Dying
Declaration under section 32 (1). The person who is conscious of Compos Mentis and knows
that death is about to happen can make a declaration and state the cause of his death and that
statement will be Admissible and treated as Evidence in the Court. Declaration made by the
deceased person can be in oral, written and by conduct. The word Dying Declaration explains
the word itself.

The statement made by the deceased person will be treated as Evidence and Admissible in a
Court of law..

Requirements of dying declaration

According to section 32 clause (1) of Indian Evidence Act, the requirement of dying declaration
is as follows:

1. The statement made by the deceased may be oral or written. But in some cases it can be
made with sign and gesture depends on the condition of the deceased

2. The statement must be as:

 Cause of death- when the statement is made by the person as to the cause of his death
or as to any of the circumstances of the transaction which was the reason for his death
not cover all the incident which are not relevant in order to determine the cause

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  Circumstances of the transaction- the statement made by the deceased is only related to
the circumstances of the transaction will result in the death of the deceased,
remoteness or having no nexus which can not be connected with the transaction have
no value.

 Resulted in the death- the deceased statement should have the cause and circumstances
that will clearly reason for his death or ultimately result in his death.

Elements of Dying Declaration

 Written or verbal,
 Of relevant facts,
 Made by a person who is dead.
Such statement is relevant when the statement is made by the person as to:

 The cause of his death.

 Any circumstance of the transaction that resulted in his death.
Such statements are relevant:

 Whether the person who made them was or was not at the time when they were made under
the expectation of death.
 Whatever may be the nature of the proceeding in which the cause of death comes into
question.
Types of Dying Declaration

1. Gesture and Signs

In the case of Queen-Empress v. Abdullah] the appellant was charged with the offence of
murder before the court of session. That he had murdered one DULARI, a prostitute by cutting
her throat through RAZOR. It seems that one-morning dulari with her throat cut was taken to
the police station and from there to the dispensary. She was alive till the morning. The post-
mortem report shows that the windpipe and the anterior wall of the gullet had been cut through.
When Dulari was taken to the police station, she was questioned by her mother in the presence
of a sub-inspector. She was again questioned by the sub-inspector, deputy magistrate and
subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs. Magistrate asked
dulari, as who had wounded her, but due to the injured condition dulari was unable to speak.
After that, The magistrate mentioned several names one by one and asked if they had wounded
her. Dulari moves her hand forward and backwards and made negative and affirmative signs.
Subsequently, the magistrate asked whether Abdullah had wounded her, for that dulari waved
her hand made the sign in the affirmative, the magistrate recorded the statement. After that
question was put to her that if she been wounded with a knife or sword. In this regard, dulari

14
makes a negative sign, again magistrate asked her if she had been wounded with the RAZOR. She
in answer to this made an affirmative sign.

2. Oral and written

When the person gives the name of the murderer to a person present and written by any of
them then it is a relevant dying declaration. However, people may dispose of the name of the
mugger orally.

An oral dying declaration is admissible in evidence as an exception to the general rule of

evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration made
before his wife, father-in-law and other near relatives were made in the conscious state.

3. Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be admissible as
evidence. When the condition of the deceased is grave and at his own request a statement made
by him in the presence of the doctor was later taken by the police but could not be completed as
the deceased fell into a coma from which he could not recover. It was held that the dying
declaration was not admissible in court as the declaration appears to be incomplete on the face
of it. But the statement, though it is incomplete in the sense but conveys the declarant all
necessary information or what he wanted to state, yet stated as complete in respect of certain
fact then the statement would not be excluded on the ground of its being incomplete.

4. Question- Answer form

Dying Declaration can be made in the form of Question-answer. the deceased, in some of her
statement, did not state the actual part played by the appellant. She merely answered the
questions put to her. The court held that when questions are put differently then the answer will
also appear to be different. At first glance, the detailed description of the offence may appear to
be missing but the statement of the deceased construed reasonably.

Exception of dying declaration

1. If there is no question for consideration about the cause of death of the deceased. For
example, if a person in his declaration state anything which is not remote or having a
connection with the cause of death than the statement is not relevant and hence not be
admissible.

2. The declarant must be competent to give a dying declaration, if the declaration is made
by the child then the statement will not be admissible in court as it was observed in
case of Amar Singh v. State of M.P[27] that without the proof of mental fitness and
physical fitness the statement would not be considered reliable.

15
 3. The statement which is inconsistent has no value and can not be considered as
evidentiary in nature.

4. The statement made by the deceased should be free from any influential pressure and
should be made spontaneous.

5. It is perfectly allowed to the court if they reject any untrue statement which
contradicting in nature.

6. If the statement is incomplete in the sense which means it can not answer the relevant
questions which are necessary to found guilty, and on the counterpart, statement
deliver nothing so it will not be deemed to consider.

Evidentiary value of dying declaration

In Khushal Rao v. State of Bombay Apex Court laid down the following principles related to
dying declaration :

1. There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.

2. A dying declaration is not a weaker kind of evidence than any other piece of evidence;

3. Each case must be determined on its own facts keeping in view the circumstances in which
the dying declaration was made.

4. A dying declaration stands on the same footing as other pieces of evidence & has to be
judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence.

5. A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, as far as practicable in the
words of the maker of the declaration stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the infirmities of
human memory & human character.

STAGES OF A WITNESS’S EXAMINATION

1. Examination-In-Chief

The examination by the party who calls a witness is referred to as a direct examination. The
testimony is first examined in chief and then cross-examined if requested by the opponent.

When a witness appears in court, he is administered an oath or affirmation. His name and
address are recorded. The party calling the witness then has the authority to question him in
order to induce all material facts within his knowledge that tend to prove his (the party calling
the witness) case. This is known as examination-in-chief.

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OBJECT OF EXAMINATION-IN-CHIEF

The objective of cross-examination-in-chief is to elicit the facts and to prove pertinent facts in
favour of the party who called the witnesses. The aim of his examination is, in other phrases, to
obtain all facts from the witnesses regarding the cases of the parties he is aware of. It must be
limited to the facts concerned, and without the permission of the court, leading questions cannot
be asked.

2. Cross-Examination

The adverse party’s cross-examination of a witness is known as cross-examination. A party’s

opponent has the right to cross-examine his chief witness after he has been examined.

The importance of cross-examination is the questioning of witnesses summoned by one party’s

attorney with the goal of either obtaining a favorable admission or discrediting the witness.

OBJECT OF THE CROSS-EXAMINATION

The objective of cross-examination is to determine whether the witness’s statements are true.
It’s an attempt to dissect a witness or show that his testimony can’t be trusted.

Cross-main examination’s purpose was to examine the accuracy, authenticity, and value of the
evidence presented in chief, to shift the facts already stated by the witness, to identify and
expose differences, and to produce suppressed evidence to substantiate the cross-examining
party’s case.

Questions Lawful In Cross-Examination (Section-146)

In addition to the questions listed above, testimony may be asked those questions that tend to
test his veracity during cross-examination: –

 To discover more about him and what he does in his various roles in life, or

 To try to discredit his reputation by causing harm to his character, even if the answers to
such questions may tend to criminate him or reveal him to a penalty or forfeiture, whether
directly or indirectly.

3. Re-Examination

Re-examination is the examination of a testimony when he has been cross-examined by the

defendant who called him. If the party who called the witness wishes and if it is necessary, he
may re-examine him. The re-examination must be restricted to the objections faced during
cross-examination.

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THE OBJECT OF RE-EXAMINATION

Re- examination’s purpose is to ask any questions which may be required if the opposing party
has the right to cross-examine the testimony at that point so that the witness should provide a
proper explanation or interpretation of expression during cross-examination.

Confession

The most satisfactory evidence in a case is the confession made by the accused. The basic
application of it rests on the truth and accuracy of the said confession. It comes out from a great
sense of guilt. Confession can be the decision-makers in a trial. In the Indian Evidence Act,
1872 the confessions are not explicitly defined but it comes under the category of admission, the
accused admits to his guilt.

The confession of an accused cannot be taken as the sole reason for conviction, it should be
corroborated with other evidence. However, in a few instances, a confession made by the
accused may result in mistreatment of the subject, due to its high probative value. Under the
Indian evidence act, Section 24 to Section 30 deals with “confession”. Under the Criminal
Procedure Code, Section 164, 281, and 463 deals with confessions.

Meaning of confession

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the
law of Evidence defines confession as “confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed “ A confession must either admit in
terms the offence or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a
confession”.

Kinds of Confession Under Indian Evidence Act

1. Judicial Confessions.

Confessions that are made before Magistrate or court in the course of judicial proceedings are
Judicial confessions.

2. Extra-judicial Confessions.
Confessions that are made by the party elsewhere than before a Magistrate or court are extra-
judicial confessions.

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Grounds for Relevancy of Confession
In Shankara vs the State of Rajasthan, a double test for deciding the acceptability of a confession
was given.
 whether the confession was perfectly voluntary.
 if so, whether it is true and trustworthy

The voluntariness of a confession is a condition precedent to the confession being true and
trustworthy.

When is a confession irrelevant?

Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence Act, 1872 deals with
condition that when can confession be irrelevant.

Section 24 of the same Act describes different instances when a confession on the basis of such
instances becomes irrelevant. Section 24 of Indian Evidence Act provides that a confession made
by a person who is accused of some offence is irrelevant if such confession comes out of any
inducement, threat or promise and such instances have proceeded from a person in authority
like police, magistrate, court etc., the other condition of this section is that inducement, threat or
promise should be in reference to charge of any offence and all such inducements, threat or
promise should give benefit of temporal nature.

For better understanding, we may divide the complete structure into 4 different
essentials that are:

 The confession must be out of inducement, threat or promise, inducement, etc.

 Such confession should proceed from a person in authority.

 It should relate to the charge in question.

 It should have the benefit of temporal nature or disadvantage.

Thus, when these conditions are fulfilled then the confession becomes irrelevant.

Can the court convict an accused solely on the basis of his confession?

A conviction cannot be based solely on a confessional statement especially when circumstantial

evidence is doubtful, said the Bombay high court while acquitting a convict of charges of
murder, 20 years after he was convicted by the sessions court in Mumbai.

The court noted that the prosecution’s case, rests only on circumstantial evidence, and is not
free from doubt. The court held that “it is very unsafe to base the conviction on such
confessional statement especially when the appellant (accused) was not warned that the
statement may be used against him.” A division bench of justice AS Oka and justice Shrihari
19
Davare was hearing an appeal filed by Andhra Pradesh resident Laxman Gangaram who was
convicted for the murder of his son at Charkop in 1989.

The prosecution argued that apart from the confession, circumstantial evidence of the last seen
together as well as the chain of circumstances point to the guilt of the accused. The defence,
however, pointed out that a conviction cannot be based solely on inculpatory statement and that
the confessional statement of the accused under Section 313 of CrPC can lend support to the
evidence led by the prosecution.

The court considered remanding the case for re-examination, however, since the incident
happened 23 years back, the court observed that it will be unfair to the accused to explain the
evidence after a span of 20 years.

Admission

The word ‘Admission’ expressed in the Evidence Act means “When any person voluntarily
acknowledges the existence of any facts in issue or facts”. Like in the case of confession we
discovered that confession is not much described in the Evidence Act in the same manner the
Indian Evidence Act also has not done much effective work on expressing, the term ‘Admission’
in an outspread sense.

Section 17 of Indian Evidence Act, defines admission as any statement made in either form such
as oral, documentary or in electronic form which has enough probative value to suggest or
conclude any inference as to any fact in issue or relevant fact.

SECTION 18- WHO CAN MAKE AN ADMISSION

Section 18 of the Indian Evidence Act lays down the rules regarding as to who can make an
admission. According to this section, there are five classes of persons whose statements will be
considered as an admission in a suit. These five classes are:-

I. BY PARTIES TO PROCEEDINGS: The statements made by the parties to a proceeding as

against himself is considered as a relevant admission. Under this Section, the term ‘parties’
not only means the persons who appear on the record in that capacity but also includes
those persons who are parties to a suit without appearing. Persons who have an interest in
the subject matter of the suit but are not parties on the record are also considered as parties
in the proceedings and their statements have the same relevancy as the parties on record.
Similarly, a person who although appears as a party on the record but has no real interest in
the subject matter will not have any effect through his admission as against the person he is
appearing on behalf of.

II. ADMISSION BY THE AGENT: The statements made by an agent in a suit would be
admissible as against the person he is representing. The statements made by an agent are,
however, binding only when they are made during the continuance of his agency. So, when
the agent’s right to interference has come to an end any statement made by him after that
will not have any effect on the principal.
20
III. STATEMENTS MADE IN REPRESENTATIVE CHARACTER: When a person such as trustees,
administers, executors etc., sue or are sued in a representative character, any statement
made by them will only be admissible if made in their representative character. Any
declarations made by them in their personal capacity will not be taken as an admission.

IV. PERSONS INTERESTED IN THE SUBJECT-MATTER: In any such suit where several
persons are interested jointly in the subject-matter of the suit, then any admission made by
anyone of the parties will be taken as an admission against himself as well as the other
parties jointly interested in the subject matter. It does not matter whether the persons
jointly interested in the subject-matter are suing or being sued jointly or separately.
However, for this rule to apply there has to be prima facie foundation showing that joint
interest exists between the parties suing or being sued.

V. PERSONS FROM WHOM THE PARTIES DERIVE INTEREST: Any statement made by the
predecessor-in-title from who the party to the suit derives his title will be admissible. But
this will only be held as an admission if the predecessor-in-title made the declaration while
still holding the title and not after the title has been transferred. The statement made by the
former owner will not be considered as an admission as against the parties if it was made
title has been passed.

SECTION 21- PROOF OF ADMISSION AGAINST PERSONS MAKING THEM AND BY OR ON

THEIR BEHALF

Admission may be used against the party making the admission but it cannot be used by the
party who makes the Admission for his own use. This Section further lays down three
exceptions to this rule. These exceptions are:-

I. ADMISSION FALLING UNDER SECTION 32: An Admission can be used by the person for
his own use if the person making such Admission is dead. In this case, such admission will
be relevant as between the third person under Section 32. Section 32 lays down that
statements made by persons dead or who cannot be found may be proved if it was made
under the circumstances mentioned in the Section.

II. STATE OF BODY AND MIND: An Admission made by a person regarding the existence of
the state of body or mind relevant can be used by the person making such Admission if such
a state of body or mind existed.

III. STATEMENT RELEVANT OTHERWISE THAN AS ADMISSION: An Admission made by a

person may be used by the person making it if it is proved that the statement is relevant
otherwise than as Admission.

Difference between Confession and Admission

S.
Confession Admission
No.
1. The confession is something which is made When any person voluntarily
21
 by the person who is charged with any acknowledges the existence of any
criminal offences and such statements may facts in issue or facts.
infer any reasoning for concluding or
suggesting that he is guilty of a crime.
The concept of confession usually deals The concept of admission usually deals
with the criminal proceedings and there is with the civil proceedings and section
2.
no such specific section 17 specifically deal with the definition
defining confession. of admission.
Admissions may be operated as
If the confessions are purposefully and are
estoppels because they are not
made on someone’s own will then it may be
3. conclusive as to the facts admitted by
accepted as conclusive of the facts
the person who in his statement admit
confessed by the confessor.
some facts.
Admissions may be used with respect
to the person who has admitted any
Confessions are always used or go against
4. facts or statements under the
the confessor of the statements.
exception of Section 21 of the Indian
Evidence Act.
As it is previously observed that
admission cannot be used against the
Confessions confessed by more than one person who is admitting the facts by
person jointly for the same offence can be any statements as they don’t have
5. considered against other accused of the much probative evidentiary value.
same crime under Section 30 of the Indian Hence the admission made by the
Evidence Act. different personalities of the same suit
cannot be used as evidence against
other persons.
Admission gives the conclusion about
Confession is the direct admission of
the liability of the person who is
6. matter or facts of the cases either in the
admitting any facts or matter either in
form of a written or oral statement.
the form of oral or written statements.

Expert opinion

The term “Expert opinion” refers to a belief or judgment about something given by an expert on
the subject. The opinion of a skilled and experienced person may be taken when the issue is
related to some technicalities. Generally, the expert does not witness to the fact, despite that, the
opinion of an expert becomes relevant due to the circumstances. However, the provisions stated
in Section 45 to 51 are the exception to the above-stated rule. Now the question may arise who
is to be considered as an expert and how the expert opinion is relevant and admissible as
evidence in any case in the court of law?

22
WHO IS EXPERT?

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

QUALIFICATION OF AN EXPERT

The law requires that there should at least be a profession of special qualification that the part
of a person who comes forward to dispose to matters lying beyond common knowledge.

 An ‘Expert’ witness is one who has devoted time and study to a special branch of learning

 He must have special skill and qualifications required for his profession

 The person who has made the subject upon which he speaks a matter of particular study,
practice, or observation will be considered as an expert witness

 He must have experienced in the related field.

Circumstances when their opinion is Relevant:

1. Opinion of examiner of Electronic Evidence (Section 45A): 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.

Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be
an expert.

2. Facts bearing upon opinions of experts (Section 46): Facts, not otherwise relevant, are
relevant if they support or are inconsistent with the opinion of experts when such opinions
are relevant.

3. Opinions as to handwriting, when relevant (Section 47): When the Court has to form an
opinion as to the person by whom document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is supposed to be written or
signed that it was or was not written or signed by that person, is a relevant fact.

23
 Explanation – A person is said to be acquainted with the handwriting of another person
when he has seen that person write, or when he has received document purporting to be
written by that person in answer to documents written by himself to under his authority and
addressed to that person, or when in the ordinary course of business document purporting to
be written by that person have been habitually submitted to him.

4. Opinion as to digital signature when relevant (Section 47A): When the Court has to form
an opinion as to the "digital signature" of any person, the opinion of the Certifying Authority
which has issued the Digital Signature Certificate is a relevant fact.

5. Opinion as to existence of right or custom when relevant (Section 48): When the Court
has to form an opinion as to existence of any general custom or right, the opinions as to the
existence of such custom or rights, of persons who would be likely to know of its existence if
it existed, are relevant.

Explanation – The expression “general custom or right” includes customs or right common
The Orient Tavern any considerable class of persons.

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.

6. Opinion as to usage’s, tenants, etc., when relevant (Section 49): When the Court has to
form an opinion as to - the usage’s and tenants of any body of men or family, the constitution
and government of any religious or charitable foundation, or the meaning of words or terms
used in particular districts or by particular classes of people, the opinions of persons having
special means of knowledge thereon, are relevant facts.

7. Opinion on relationship, when relevant (Section 50): When the Court has to form an
opinion as to the relationship of one person to another, the opinion, expressed by conduct, as
to the existence of such relationship, or any person who, as a member of the family or
otherwise, has special means of knowledge on the subject, is a relevant fact:

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.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated
as such by members of the family, is relevant.

8. Grounds of opinion when relevant (Section 51): 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.

24
 Privileged communication

Meaning of Privileged Communication

Privileged legal communications are confidential conversations that a witness cannot be

compelled to disclose, even though the communication is related to relevant facts. The court
cannot force a witness to disclose such interactions.

Example of Privileged Communication

 Communication between a client and a lawyer is confidential and does not have to be
disclosed in court.
 Husbands and spouses also have the right to privileged communication, which means they
do not have to testify against each other in court.
 Patients and their doctors in various jurisdictions are protected under privileged
communication because they are enmeshed in a fiduciary relationship, i.e., a relationship
based on trust. If a doctor is forced to expose the conversation between him and his
patient, the foundation for such a connection will be shattered.

Confidentiality and Privileged Communication

This is commonly acknowledged." Confidentiality refers to the professional's ethical obligation

not to reveal information obtained from a client to any other person or organisation without the
client's consent or under valid legal force. Furthermore, "the need to keep things private is
guided by ethics." The right to withhold information is protected by law." The right to life and
personal liberty, which includes the right to privacy, is guaranteed under Article 21 of the
Constitution of India.

Circumstances - When privilege can be claimed?

1. Communications during the marriage – Section 122

This section bars the husband or wife from disclosing the communication between them during
their marriage’s subsistence. But it does not bar the communication to be proved through any
other means.

In ‘Ram Bharose vs State of UP‘, the court affirmed that any communication between husband
and wife during the wedlock by the husband to his wife or by his wife to her husband is
prevented from being proved in the court of law.

Exceptions to section 122 of the Indian Evidence Act:

1. An extra act or conduct can be proved.

2. Evidence by a third party can be disclosed.

25
3. Waiver of privilege: A wife may testify against the husband if her husband consents to it or vice
versa.
4. The suit between husband and wife.

2. Evidence as to affair of state – Section 123

This section prohibits a person from giving a document as evidence that is:

1. An unpublished official record, or

2. Related to the affairs of the state.
However, it may be given with permission of the concerned department’s head, who may give or
withhold such permission.

Section 123 read with section 162 of the Evidence Act – the final authority to decide whether the
unpublished document can be adduced as evidence or not rests with the court.

3. Official communication – Section 124

This section prohibits a public officer from disclosing communication made to them in official
confidence, where public interest would suffer by its disclosure. In both cases, the public
interest is paramount.

4. Information as to the commission of offences – Section 125

This section prohibits magistrates, police officers from disclosing any information received by
them regarding the commission of an offence. Similarly, a revenue officer cannot be compelled
to reveal any information as to when he got the information regarding the commission of
offence related to public revenue.

5. Professional communication – Section 126

This section prohibits barrister, attorney, pleader or vakil from disclosing any information:

 made to him, or
 on behalf of his client, or
 any advice given by him to his client,
in the course and for purpose of his employment.

Further, it bars the barrister, attorney, pleader or vakil to state the contents or conditions of any
document with which he became acquainted in course or for the purpose of his employment.

26
Exceptions to section 126 of the Indian Evidence Act:

1. Communications made in furtherance of illegal purpose are not protected.

2. Any fact observed by the barrister, attorney, pleader or vakil in the course of employment to
be fraud or crime being committed since the commencement of employment is not protected.
3. Barrister, attorney, pleader or vakil can disclose the communication if the client gives express
consent.
Section 127 states that the provisions of section 126 apply to interpleader, clerks or servants of
barrister, attorney, pleader or vakil.

6. Privilege not waived by volunteering evidence – Section 128

This section lays down that if there is some secret communication between the client and lawyer
and the lawyer appears as a witness, he does not waive the privilege afforded by section 126.
But if the client questions the lawyer regarding the secret communication in the court of law, his
consent may be deemed to be given.

7. Confidential communication with the legal advisor – Section 129

This section applies where the client is being interrogated. He cannot be compelled to disclose
any secret communication between him and his legal advisor unless he offers himself as a
witness.

Testify

Who may testify?

Any person who has witnessed the event is competent to testify, unless – the Court considers
that they are unable to understand the questions posed to them, or unable to give rational
answers as prescribed in Section 118.

Rational answers should not be expected from those of tender age, extreme old age, or a person
with a mental disability.

The section says that generally, a lunatic does not have the capacity to testify unless his lunacy
does not prevent him from understanding the question and give a rational answer.

Can a child testify?

A small child of even 6 or 7 years of age can testify if the Court is satisfied that they are capable
of giving a rational testimony.

27
In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole eyewitness of murder
was a child of 13 years old, who worked as a house servant where the incident took place.

He identified the accused persons in the Court. However, the accused persons had no prior
animosity with the deceased and were acquitted as the case could not be proved against them
beyond reasonable doubts.

Witness unable to communicate verbally

Section 119 of the Act says that a person who is not able to communicate verbally can testify by
way of writing or signs.

A person who has taken a vow of silence and is unable to speak as a result of that vow will fall
under this category for the purpose of this Section.

Can judges testify?

A judge or a magistrate is not compelled to answer any question regarding his own conduct in
the Court, or anything that came to his knowledge in the Court – except when asked via special
order by a Superior Court as stated in Section 121.

He may, however, be subject to examination regarding other matters that happened in his
presence while he was acting as a judge or a magistrate.

This section gives a judge or a magistrate the privilege of a witness and if he wishes to give it
away, no one can raise any objection.

So, if a magistrate has been summoned to testify regarding his conduct in the Court, no one can
raise any objection if he is willing to do so.

A magistrate or a judge is a competent witness and they can testify if they want to but they are
not compelled to answer any question regarding their conduct in the Court.

Can a Judge testify in a case being tried by him?

We have already seen that a judge can be a competent witness if he wants, but what if the case is
being tried by himself?

In the case of Empress v Donnelly, the High Court of Calcutta stated that a Judge before whom a
case is being tried must conceal any fact that he knows regarding the case unless he is the sole
judge and cannot depose as a witness.

It was held that such a judge cannot be impartial on deciding the admissibility of his own
testimony. He will not be capable of comparing his own testimony against that of others.

28
If he has to testify, then he must leave the bench and give away his privileges in order to act as a
witness in the case.

Can accomplice be a witness?

Section 133 of the Act says that an accomplice to a crime is competent to be a witness against
the accused. The conviction made on the basis of such testimony is not illegal.

An accomplice is a person who is guilty of helping the accused to commit a crime. He can be
appropriately described as a partner in the crime of the accused.

In the case of C.M. Sharma v. The State of A.P, it was held that if a person has no other option
than to bribe a public officer for getting his work done, such a person will not be considered as
an accomplice.

Cases of bribery are difficult to corroborate as bribes are usually taken where no one else can
see, but, in this case, there was a shadow witness who accompanied the bribe giver (a contractor
in this case) and the case could be corroborated with his help.

It is also clear from this case that an injured person or a victim will be a competent witness in a
case. This type of witness is called ‘injured witness’.

Hostile Witness

A witness becomes hostile when he makes a statement against the interests of the party who
called him. When the party’s own witness denies to give a statement in his favour before the
court, then it is said that the witness has become hostile.
There can be many reasons for becoming a hostile witness. It may be the reason that the other
party is threatening the witness. Or he is in fear that if he gives a statement against the accused,
his life will be in danger or any other reason.

Can a party cross-examine its own hostile witness?

Section 154 of the Indian Evidence Act talks about the hostile witness. This section enables the
court to permit the party to cross-examine his own witness, who has become hostile.

The general rule is that a party can cross-examine opposite party witnesses, but it is an
exception to this rule. If the witness becomes hostile, then the party may cross-examine its own
witness with the permission of the court.

It’s the discretionary power of the court to permit the party for cross-examining its own witness.
If the court is satisfied with the fact that, in the interest of justice and fair hearing, the party must
be allowed to cross-examine, then only the court permits.

29
What can be asked in cross examination of hostile witness?

If the witness of the party turns hostile, he may be asked:

3. Leading questions under section 143 of the Evidence Act to testify his truthfulness.

4. Questions related to previous statements given in writing under section 145 of the Evidence
Act. This section permits contradiction as to former statements in writing.

5. Questions which tend to test the veracity of witness and his status in life under section 146
of the Evidence Act.

Evidentiary Value of Hostile Witness

If the witness turns hostile and gives a statement against the party who calls him, then what
would be the credibility of such a statement which is made by the hostile witness in the court?

Evidence of character is relevant in civil cases

Section 52 of the Indian Evidence Act provides that in civil cases, a fact pertaining to the
character of an individual is not relevant. It lays the principle that the character of a party as a
piece of evidence can’t be used to manifest that conduct attributed to him is probable or
improbable.

Illustration-

 ‘A’, a businessman is charged with fraud.

 In this case, no evidence of the fact can be treated as relevant which states that he is an
honest man i.e. the character is such that he can never commit fraud.

 Neither can the opposite party present evidence of the fact that A’s character had been
so trickery that he must have committed the fraud.

The reasons behind the irrelevance are that a case has to be decided based on the facts of the
case and not the character of the parties. Evidence of conduct doesn’t just delay the proceedings
but also hampers and impairs the mind of the judge. In civil cases, previous convictions of the
accused person are irrelevant.

There are a few exceptions to Section 52-

 Section 55 of the Evidence Act provides that in civil cases, evidence of the good or bad
character of the person that is to receive the amount of damages is relevant. The character
of the original plaintiff is relevant.

For example- In a case of the action of damages for rape or seduction, the character of the
plaintiff is relevant as it is likely to affect the damages that the plaintiff ought to receive.

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  When the character of the party is itself a fact in issue then the evidence pertaining to the
character of that party is relevant.

For example- if divorce is sought on the ground of cruelty of husband, in such case
evidence pertaining to the character of the husband will be relevant as the cruel character is
itself a fact in issue.

In the case of Scott v. Sampson, the court held that the term ‘character’ should mean a man’s
reputation and nothing more than “general evidence of reputation”.

Evidence of previous good character is relevant in criminal cases

Unlike civil cases where the character is irrelevant, in criminal cases it is relevant. Section 53 of
The Indian Evidence Act provides that in criminal cases, the good character of the accused
person is relevant. The reason behind this is the basic human psychology that a person of good
character will not generally resort to a criminal act. If goodness is proved it helps in a
presumption of non-commission of the offence by that individual.

Evidence of good character is always admissible. In a doubtful case, it may be used to tilt the
balance in favour of the accused but in a case where there is positive evidence of guilt of the
accused then the good character cannot outweigh the positive evidence. It depends on the
discretion of the court that how much weight the evidence of the good character has to be given
while deciding the case.

Previous bad character not relevant, except in Reply

According to Section 54 of the Indian Evidence Act, evidence pertaining to the fact that the
accused has a bad character is not relevant in criminal cases. In other words, the prosecution
cannot present evidence of the accused’s bad character as a part of the main case.

There are certain exceptions to this section-

 When the accused has submitted any evidence of his good character, in such a case
to rebut, the prosecution can present evidence pertaining to the bad character of the
accused.

 Explanation 1 to Section 54 provides that when the character is itself a fact in issue then
evidence of bad character can be submitted.

Illustration: In a defamation case, the character of the plaintiff becomes a fact in issue. Section
110 of the Code of Criminal Procedure provides that if a person is by habit a robber, a
housebreaker, etc. then he is to be bound down.

Bad character isn’t defined in Indian law but it amounts to the general meaning as interpreted
by the society. Explanation 2 of section 54 provides that evidence showing any previous
conviction is also relevant as evidence of bad character in criminal cases. According to Section

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71 of the Indian Penal Code, any person who is already a previous convict should be sentenced a
longer term of imprisonment than that is awarded ordinarily.

Accomplice

‘Accomplice’ is a person who has taken part in an act for which he will be liable in that criminal
act, by way of his presence at the place of crime, even if he was absent from that place while it
was committed because he was responsible for abetting or aiding the crime. The evidence
provided by the accomplice is usually considered untrustworthy but due to his involvement in
the case when there are no witnesses his evidence with the help of corroboration can be
admitted.

Who is an Accomplice?

The term accomplice has not been defined under the Indian Evidence Act therefore while
deciding a case the Judiciary tends to use the literal meaning of the term, as it is presumed that
the intention of the legislature was the same.

In the case of Chandan v. Emperor, the court while deciding the case defined the term
accomplice and stated that he is the one who is involved with the offender or offenders “in the
commission of a crime or the one who voluntarily helps other offenders in the commission of
the crime”. The court further stated that accomplice includes particeps criminis that mean a
partner in crime.

Categorization of Accomplice

There are three modes by which an accomplice can take part in the crime, first principles in the
first degree or second degree, second accessories before the fact and lastly accessories after the
fact.

1. Principles in the first and second degree

A person who commits the crime is considered as the principle of first degree whereas if a
person who is only present and assisting during the crime is known as the principle of the
second degree. In the case of Ismail v. Emperor[7], it was held that a person is considered as an
accomplice under both the first and the second degree.

2. Accessories before the facts

A person who abets, insights, encourages or procures the commission of the crime and does not
participate in the criminal act is an accessory before the fact. If the accomplice only has the
knowledge of the crime and does not participate further, they are not considered as an
accomplice.

Therefore, in the case of Jagannath v. Emperor, the court said that a person will be considered
as an accomplice if the crime for which the accused is tried are the same.

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3. Accessories after the facts

A person who protects the accused after knowing that he has committed the crime and further
helps him from being arrested as well as from being punished, he is a known harbourer. Three
conditions need to be fulfilled to be considered as an accessory after the fact, the crime must be
complete, secondly, the accessory must know about the crime being committed and lastly, the
accessory must assist the principal accused.

Evidentiary Value of an Accomplice – The Need for Corroboration

Due to the status of the accomplice, the testimony given by him is not considered as a reliable
piece of evidence convicting any accused and therefore it is required as per the Evidence Act to
verify the testimony corroboration with other material evidence is necessary. Corroborate is
nowhere defined and as per the Black Law’s dictionary, “it means to strengthen, to make a
statement or testimony more credible by confirming facts or evidence”. [8]To strengthen any
evidence and increase its evidentiary value corroborative evidence is used and is also
understood as a supplementary testimony.

Who is not an accomplice?

In some cases persons are not accomplice:-

 When a person, under threat of death or another form of pressure which he is unable to
resist, commits a crime along with others, he is not a willing participant in it but a victim
of such circumstances.
 A person who merely witnesses a crime, and does not give information about it to anyone
else out of terror, is not an accomplice.
 In Prakash Chand v State, the Court laid down that detectives, paid ‘informers,’ and ‘trap
or decoy witnesses are not accomplices. A court may convict on the uncorroborated
testimony of trap witnesses if the Court feels that there is truthfulness in testimony
presented by the trap witness.

“Conclusive proof”

When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof
of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.

According to Dictionary meaning "Conclusive proof refers to presumption which cannot be

overcome or changed by any additional evidence or argument.

According to Section 4 of the Indian Evidence Act, 1872 “Conclusive proof” – Where 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.

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Example - 'ABC' and 'XYZ' are married but divorced. In this case, when the question arises
whether 'ABC' and 'XYZ' are husband and wife if the decree of divorce is submitted to the Court,
The court shall presume that they are no longer husband and wife from the date of such decree
of divorce.

In the above example, the Divorce decree is regarded as Conclusive proof.

Provisions relating to conclusive proof or Irrebuttable presumptions of law -

Section 41 Section 112 and Section 113 of the Indian Evidence Act, 1872 speaks
about conclusive proof or Irrebuttable presumption of law as stated below –

 Section 41 the Indian Evidence Act, 1872 deals with "relevancy of certain judgments in
probate, etc jurisdiction"

 Section 112 of the said Act, deals with "Birth during marriage, conclusive proof of
legitimacy".

 Section 113 of the Indian Evidence Act, deals with "Proof of cession of territory"

Can a dumb person be a witness?

Every person is competent to give evidence if he satisfied the test of being able to understand
the questions which are put to him, and he is in a position to give rational answer to those
questions. Any person who satisfies these tests shall be competent to testify, child, deaf and
dumb persons can give evidence. Earlier it was thought that deaf and dumb persons were
regarded as idiots and were not competent to give evidence. But now modern science reveals
that deaf and dumb persons are much more intelligent than any other normal [Link] and
Dumb are competent to give evidence. they may give evidence either by signs or through an
interpreter or in writing. Section 119 of the Indian Evidence Act deals with the deaf and dumb
witness.

Deaf and Dumb :

According to Section 119 "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, evidence so given shall be deemed to be oral
evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the
assistance of an interpreter or a special educator in recording the statement, and such statement
shall be video-graphed."

1. The deaf and dumb must understand the nature of an act. The child need not understand
it.

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 2. The deaf and Dumb can give his evidence by means of signs Under Section 119 of Indian
Evidence Act.

Disputed handwriting of a person proved

Section 67 does not prescribe any particular mode of proof of signature • handwriting of a
person. However, the following modes of proving signature or writing are recognized by the Act,
viz.

1. by calling the person who signed or wrote the document;

2. by calling a person in whose presence the document was signed or written;
3. by calling a handwriting expert (Sec. 45);
4. by calling a person acquainted with the handwriting of the person executing the document
(Sec. 47);
5. by comparing in court the disputed signature/writing with some admitted
signature/writing (Sec. 73);
6. by proof of admission by the person who is alleged to have signed or written the document,
that he signed or wrote it; or
7. by the statement of a deceased professional scribe, made in the ordinary course of business,
that the signature on the document is that of a particular person.
8. Any other circumstantial evidence.

According to Section 73, when the Court has to satisfy itself whether the signature, writing or
seal on a document is genuinely that of a person whose signature, etc. it purports to be, the
Court may compare the same with another signature, etc. which is admitted or proved to be that
of the person concerned although that signature, etc. has not been produced or proved for any
other purpose.

This section applies also, with necessary modifications, to finger impressions. Section 73 also
enables the court to require any person present in the court to write any words or figures to
enable the court to compare them with the words or figures alleged to have been written by
such person.

In the landmark case of Ram Narain v. State of UP, the Supreme Court has discussed proving
disputed handwriting. In this case, a child was kidnapped. The parent of the child received a
handwritten postcard followed by an inland letter demanding Rs.1,000 and Rs. 5,000,
respectively as a ransom for the child. The author of the letters was traced and a handwriting
expert testified the letters to be in the handwriting of the accused. Solely on the basis of this
evidence the accused was convicted by the lower courts. The Supreme Court upheld the
conviction.

The Court said: “Both under Sec. 45 and Sec. 47 the evidence is an opinion, in the former by a
scientific comparison and in the latter on the basis of familiarity resulting from frequent
observation. In either case, the court must satisfy itself by such means as are open that the

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opinion may be acted upon. One such means is to apply its own observation to the admitted or
proved writings, not become a handwriting expert but to verify the opinion of the witness.

This is not to say that the court may play the role of an expert, but to say that the court may
accept the fact only when it has satisfied itself on its own observation that it is safe to accept the
opinion of the expert or the other witness”.

Evidentiary Value of Retracted Confession

A retracted confession is a statement made by an accused person before the trial begins, by
which he admits to having committed the offence but which he rejects at the trial.

It is unsafe to base the conviction on a retracted confession unless it is corroborated by

trustworthy evidence. Here are two important cases related to the evidentiary value of a
retracted confession.

Bharat vs State of UP, 1971

Justice Hidayatullah observed that a court might take into account the retracted confession. But
it must look for the reasons for the making of the confession as well as for its retraction. And
must weigh both of them to determine whether the retraction affects the voluntary nature of the
confession or not.

Manjit Singh vs CBI, 2011

Considering the question of whether retracted confessions of the co-accused could be relied
upon to convict the accused, the court held that the retracted statements could be used against
the accused as well as co-accused, provided that such statements should be truthful and
voluntary when made.

In the said case, two accused persons made confessional statements, and subsequently, they
retracted from their statements.

The court observed that: A confessional statement given under section 15 of the Terrorist and
Disruptive Activities Act (TADA ) shall not be discarded merely for the reason that the same has
been retracted.

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