UNIT I

LECTURE 1:- INTRODUCTION OF BSA, CHANGES BROUGHT BY THE BSA, 2023

QUESTION: Discuss the aim and objects of the BSA, 2023?

ANSWER: INTRODUCTION

The Bharatiya Sakshya Adhiniyam, 2023 is a legislation that seeks to consolidate and provide general rules
and principles of evidence for fair trial in India. The Bharatiya Sakshya Adhiniyam, 2023 is a response to
the need for a more efficient and effective legal system in India. The Indian legal system is known for its
complexity, delays, and high costs, which often make it difficult for ordinary citizens to access justice. The
experience of seven decades of Indian Democracy calls for comprehensive review of criminal laws
including IEA, 1872 to meet the contemporary needs of the people. The Indian Evidence Act does not
address the technological advancement undergone in the nation during last few decades.

The golden thread which runs through the web of the administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other
to his innocence, the view which is favourable to the accused should be adopted. In criminal trials, an
accused is presumed to be innocent till proved guilty beyond reasonable doubt, and the Adhiniyam plays an
important role, as appreciation of evidence and consequential findings of facts are crucial. A great care must
be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two
inferences; the one in favour of the accused must be accepted. In civil cases, issues may be proved by
preponderance of evidence. Regarding hearsay evidence it is true that in courts of law hearsay evidence is
not admissible except to the extent permitted by this Adhiniyam.

Objectives of the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 seeks to achieve several objectives:

1. The Adhiniyam seeks to address the challenges mentioned above by introducing more precise and
uniform rules of practice of courts in dealing with facts and circumstances of the case by means of
evidence.

2. It has several key provisions that are aimed at improving the quality of evidence presented in legal
proceedings. One of the most significant provisions is the admissibility of electronic or digital records as
evidence. It provides that electronic or digital records shall have the same legal effect, validity, and
enforceability as paper records. This is expected to increase the use of electronic evidence in legal
proceedings, which is becoming increasingly important in the digital age.

3. The mode of recording evidence in general for both civil and criminal proceedings is incorporated in
Bharatiya Sakshya Adhiniyam. A miscarriage of justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent.

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4. The Adhiniyam aims to provide a comprehensive framework for determining the relevancy of facts in
legal proceedings. It seeks to ensure that only relevant facts are admitted as evidence in court, and irrelevant
facts are excluded.

5. The Adhiniyam also aims to ensure that the rules of evidence are applied uniformly across all courts in
India. It also seeks to promote fairness and transparency in legal proceedings and to ensure that the rights of
all parties are protected.

6. To improve the quality of evidence presented in legal proceedings, which is essential for ensuring fair and
just outcomes.

7. To reduce the time and costs associated with litigation, which is a major challenge in the Indian legal
system.

8. To improve access to justice for all citizens, particularly those who are marginalized or disadvantaged.

9. To bring clarity and uniformity in the rules of evidence across all courts in India.

10. To expand the scope of secondary evidence to include copies made from original by mechanical
processes, copies made from or compared with the original, counterparts of documents as against the parties
who did not execute them and oral accounts of the contents of a document given by some person who has
himself seen it.

Newly added sections/clauses-

1. The Adhiniyam provides that electronic or digital records will have the same legal effect as other paper
records. Documentary evidence includes information in electronic records that have been printed or stored
in optical or magnetic media produced by a computer. Such information may have been stored or processed
by a combination of computers or different computers. This will also include records on emails, server logs,
smartphones, locational evidence, and voicemails.

2. New clause of Joint Trial-When two or more persons are jointly tried for the same offence, the confession
made by one person may go against other persons also.

3. It says that oral evidence must be direct and by direct it means if it refers to a fact that could be seen, it
must be the evidence of a witness who says he saw it, if the evidence is to be led about the fact which has
been heard, the witness produced must say that he heard it, if the evidence is to be given about a fact which
can be perceived by any other sense or in that manner and if the evidence is to be given about an opinion or
as to ground on which opinion is to be given about an opinion or as to ground on which opinion is to be held
the witness produced must himself he holds that opinion.

4. The scope of Primary Evidence has been expanded in Sec. 57 by adding more explanations. Electronic
and digitals records are now also a part of Primary Evidence.

5. New clauses 6, 7 and 8 have been added under Section 58 to expand its scope.

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LECTURE 2:- DEFINITION CLAUSE: FACT, FACT IN ISSUE, RELEVANT FACTS.

QUESTION: Write a short note on the following:

a. Court and
b. Fact in issue. [2012, 2014, 2017]
c. Relevant facts.
a. COURT

According to section 2(a) of the BSA, 2023. “Court‟ includes all Judges and Magistrates and all person
except arbitrators, legally authorized to take evidence.

Etymologically the word “court” means King’s Durbar. It is also understood in the sense of:

1. The place where justice is administered, and

2. The person or persons who administer justice.

The expression “court” is defined in the Evidence Act in the latter sense.

According to the definition given in Sec.2 of the Act the court does not mean the four walls of the premises
where justices is administered but it means and includes all Judges, Magistrates and such other persons who
are legally authorized to take evidence.

The above definition under Sec.2 is not exhaustive. The expression “court” is not confined only to regular
courts. It also includes any person who administers justice and is authorised to take evidence.

For example, Commissioners appointed under the Code of Civil procedure, 1908 and the Code of Criminal
Procedure, 1973.

b. FACT IN ISSUE

In simple words fact in issue means those facts, which are disputed between the parties. Any fact becomes
disputed between the parties when it is asserted by one and denied by the other party. Fact in issue are the
facts which constitutes the central point of any suit or proceeding and decision thereon is necessary to reach
on the conclusion of the case.

According to section 2(g) “fact in issue means and includes any fact from which either by itself or in
connection with other facts, the existence, non- existence, nature or extent of any right, liability or
disability is asserted or denied.”

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Thus it can be said that the fact in issue are the substantive facts provided in substantive law. They are also
known by their Latin name “Factum Probandum” or that which is to be proved. The explanation to the
definition says- “Whenever, under the provisions of the law for the time being in force relating to Civil
Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue,
is a fact in issue.”

c. RELEVANT FACT

Generally speaking it is said to be relevant to another if by itself or in connection with other facts it renders
the existence of fact in issue either probable or improbable.

The term ‘relevant fact’ is defined under section 2(k) of BSA, 2023, according to which any fact is said to
be relevant fact to another when the one is connected with the other in ways referred to in the provision of
this act relating to the relevancy of the fact.

The relevancy of facts is given under Section 3 to Section 50 of the Adhiniyam. Thus it is clear that the
relevant fact means any two facts are so related to each other that one itself connection other facts proves or
renders probable, the existence of the non-existence of the other.

DIFFERENCE BETWEEN THE RELEVANT FACTS AND THE FACT IN ISSUE:

1. Fact in issue are the facts which are disputed while relevant facts are not disputed directly but on the
basis of them, the existence or the non-existence of fact in issue are decided.

2. The decision in any suit is based on the fact in issue while relevant facts help the court in reaching to
the decision.

3. Fact in issue contains the averment of any right or liability while relevant fact are not so.

4. Fact in issue is the reason of any proceeding while relevant facts are means to decide the fact in
issue.

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LECTURE 3:- DEFINITION CLAUSE: EVIDENCE AND TYPES OF EVIDENCES.

QUESTION: Explain the word Evidence in reference to BSA, 2023. What are the various types of
evidences?

ANSWER: EVIDENCE: MEANING

The word evidence signifies only the instrument by means of which the relevant facts are brought before the
court. The instruments adopted for this purpose are witness and documents.

In simple words evidence includes all the legal means excluding the mere argument which tends to prove or
disprove ant fact the truth of which is submitted to the judicial decision.

According to section 2(e) of BSA, 2023, evidence means and includes-

“All statements which the court permits or requires to be made before it by witness in relation to the matter
of fact under inquiry. Such statements are called oral evidence.

All documents including electronic records produced for the inspection of the court. Such documents are
called documentary evidences.”

So it is clear from the definition given that it considers only the statements and the documents as evidence.
The definition given is an exhaustive definition as every kind of evidence ultimately be reduced to the
category of oral evidence or the documentary evidence. But the definition given is defective one as it does
not mention some other kind of evidence which very important. For e.g. circumstantial evidence, real
evidence etc.

KINDS OF EVIDENCE:

DOCUMENTARY EVIDENCE: - when a document id produced in a case in support of case of the party
producing it, the document becomes the documentary evidence in the case. The best evidence is the
production of the document itself.

ORAL EVIDENCE: - It means the statement by the witness before the court in relation to matter of fact
under the inquiry. Oral evidence must always be direct in the sense that the person who actually perceived
the fact with his own sense must be produced to speak such fact and not the person who derived the
knowledge of such fact from the other. With regards to the oral evidence, direct evidence is the best
evidence since it will be thorough and accurate due to its reliance on one’s own sense.

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REAL EVIDENCE: - strictly speaking it does not fall within the definition of evidence given in the Act
but when oral evidence has to be given with respect to existence or condition of any material thing other
than documents, the material objects have to be produced before the court for the inspection. So in many
cases, stolen property, weapons used in the commission of the offence and various other articles associated
with the crime are produced.

DIRECT EVIDENCE: - it means any fact which without intervention of any other fact proves the
existence of the fact in issue. For e.g. A is tried for causing grievous hurt to B with the club. C deposes the
fact that he saw the accused inflicting the blow, which caused the grievous hurt. The evidence being
adduced by C is direct evidence.

CIRCUMSTANTIAL EVIDENCE: Circumstances sometimes speak as forcefully as does the direct

evidences. When any special inference is drawn from the circumstances surrounding any fact then it is
called circumstantial evidence. It is that which relates to a series of facts other than fact in issue.
Circumstantial evidence assumes importance when direct evidence is lacking.

HEARSAY EVIDENCES: It means the statement of a person who has not seen the happening of the
transaction himself but has heard of it from others. For example, a person who has himself witnessed an
accident can give an account of it to the court but his wife, who has heard of it from him, cannot give
evidence of what her husband told her, her knowledge being hearsay. In this connection section 55 is
relevant, which says that oral evidences in all cases must be direct.

PRIMARY AND SECONDARY EVIDENCE: The presentation of the thing in original form is called
primary evidence. Section 57 of BSA, 2023 enumerates the list of the primary evidences.

Any other thing which is declared to be admissible by this Act of a proof of fact, in absence of its primary
evidence, is called as secondary evidence. Section 58 provides the list of secondary evidences; however the
conditions, in which secondary evidences may be given, are provided under section 60.

SUBSTANTIVE, NON SUBSTANTIVE AND CORROBORATIVE EVIDENCE:

Substantive evidence is that on which reliance can be placed for decision of the case.

Non-substantive evidence is that which alone is not sufficient for the decision unless it is supported by the
corroborative evidences.

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Corroborative evidence is the one which cannot be used independently and which can be used only to
corroborate other evidences. For example, confession of Co-accused under section 24.

RELEVANCE OF EVIDENCES OBTAINED BY UNDESIRABLE MEANS: The Supreme Court has

made it clear in Pushpa Devi M. Jatia v. ML Wadhawan, 1987, SC that where evidence offered comes
within the meaning of its definition. The court can act on it and need not to concern itself with the method
by which the evidence in question was obtained. The court cited the observation of Sir Lawrence Jenkins
in Birendra Kumar Ghosh v. Emperor, 1910 to the effect that “Relevant evidence remains relevant even if
it was obtained in the course of search and seizure in violation of provision of CrPC.”

EVIDENCE OBTAINED IN INVESTIGATION OF OTHER CRIMES: In Ronny v. State of

Maharashtra, 1998, SC the Supreme Court laid down that the germane question was not in what connection
or investigation the fact which constitute good evidence came into light, but weather the evidence which is
so collected is relevant and admissible for establishing the charge in present case.

CONFESSION OF CO-ACCUSED: The confession of co-accused is not evidence in the real sense of the
word because he does not make his statement on the oath and is also not cross examined. But the testimony
of an approver is evidence because it is made on oath and he's cross examined.

The written statement of an accused is also no evidence for the same reason being not subject to cross
examination.

DEPARTMENTAL INQUIRY: Evidence recorded in departmental enquiry is not evidence in a strict

sense of words as per provision of Indian Evidence Act.

VIDEO CONFERENCING: Recording of evidence through video conferencing has been approved by the
Supreme Court in the case of State of Maharashtra v. Doctor Praful B. Desai, 2003, SC. This can be
afforded in criminal cases too as per case of Bola Murali Krishna v. Smt. S.B. Bola Prathima, 2007, AP.

FIRST INFORMATION REPORT:

An FIR does not constitute substantive evidence but it can be used for corroborating and contradicting.

In Shyam Nandan Singh v. State of Bihar, 1994, SC it was held that FIR may sometimes be considered as
a part of same transaction.

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In A. Nagesia v. State of Bihar, 1996, SC it was held that where the accused himself lodged the fir, his act
of lodging fir was held admissible as evidence of his conduct against him under Section 8 of Indian
Evidence Act.

PANCHNAMA: Neither the content of punchnama nor the statement of those, who signed it, constitutes
any evidence. They have to appear as witness and the panchnama can be used as a record for refreshing
memory.

POST MORTEM AND INJURY REPORT:- good scientific evidence.

TRACKER DOG:- the discovery of the fact with the help of tracker dog is a scientific evidence. (Abdul
Razak v. State, 1969)

In Gade Lakshmi Mangraju v. State of AP, 2001, SC the Supreme Court also referred to its earlier
decisions and pointed out the weakness of the evidence based on tracker dogs.

In Dinesh v. State of Assam, 2008, SC it was held that service of sniffer dogs may be taken for the purpose
of investigation but that cannot be taken as evidence for establishing the guilt of the accused.

TAPE RECORDING: In Rama Reddy v. V.V. Giri, 1971, SC it was held that it may used as evidence and
it may also be used for contradicting or corroborating under section 145 and 157 of IEA.

They are relevant on satisfying the following:-

1. The voice of the person speaking must be indentifying by the maker of the record or other person
known to him.
2. There should not be any chance of tempering with the record.
3. The subject matter recorded has to be shown to be relevant according to the rule of relevancy in the
Evidence Act.

PERSONAL OBSERVATION OF THE JUDGE: A judge should not use his personal observation as
evidence because in this way he becomes a witness without being cross-examined. In a case a session judge
ordered to put on the pair of shoes recovered by the police. He then observed and got recorded, “the shoes
fit to the feet of the accused although he complained that the shoes were too tight for the feet.” The Supreme
Court held that the learned judge was not entitled to allow his view or observation to take the place of
evidence because such a view or observation could not be tested by cross examination. (Pritam Singh v.
State of Punjab, 1956, SC)

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LECTURE 4:- CIRCUMSTANTIAL EVIDENCES: MEANING AND THEIR VALUE.

QUESTION: What do you understand by Circumstantial evidence? What test has been laid down by
the Supreme Court to determine the value of Circumstantial evidences? [2012, 2014]

ANSWER: CIRCUMSTANTIAL EVIDENCE: Circumstances sometimes speak as forcefully as does the

direct evidences. When any special inference is drawn from the circumstances surrounding any fact then it
is called circumstantial evidence. It is that which relates to a series of facts other than fact in issue.
Circumstantial evidence assumes importance when direct evidence is lacking.

Circumstantial evidences are made admissible because it cannot be expected to get direct evidences in every
case.

The most fundamental and the basic decision on the circumstantial evidence is Hanumant Govind v. State
of MP, 1952, SC which is uniformly followed by the supreme court in Taufil v. State of UP, 1969, SC and
Ram Gopal v. State of Maharashtra, 1972 SC. In Hanumant Govind’s case what Mahajan J. Observed
can be elaborated in the following points:-

1. Circumstances, from which the conclusion of guilt is to be drawn, should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any other hypothesis except that the accused is
guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved and,
5. There must be a chain of evidences so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
possibilities, the act must have been done by the accused.

These five Golden principles constitute the Panchsheel of the proof of the case based on circumstantial
evidences. (Sharad Birdi Chand v. state of Maharashtra)

In Bodh Raj v. State of Jammu and Kashmir, 2002, SC. The Supreme Court held that the conviction can be
based solely on circumstantial evidence. However it should be tested by the touchstone of the law relating to
the circumstantial evidences laid down in Hanumant’s case.

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LECTURE 5:- PRESUMPTION: MAY PRESUME, SHALL PRESUME, CONCLUSIVE PROOF

QUESTION: What is Presumption? How many types of presumption are there? What is the
difference between presumption of fact and presumption of law? Differentiate between may
presume, shall presume and conclusive proof. [2019]

ANSWER: PRESUMPTION

Every fact, on the basis of which party proceeding wants to take judgment, must be proved. No court can,
while deciding a case, place reliance on a fact unless and until it has been proved according to the rules laid
down in the Indian Evidence Act. But the law of evidence has provided that the court can take into
consideration certain facts even without calling for proof of them i.e. Court may presume certain things.

In law of evidence, the word presumption is used to designate an inference, affirmative or negative, of the
existence of some fact, drawn by the court by process of probable reasoning from some matter of fact either
judicially noticed or admitted or established by legal evidence to the satisfaction of the court.

There are three kinds of presentations-

1. Presumption of law (rebuttable or irrebuttable).

2. Presumption of fact.

3. Mixed presumption of law and fact.

IRREBUTTABLE PRESUMPTION OF LAW:

They are those legal rules which are not overcome by any evidence that the fact is otherwise. A well-known
instance of irrebuttable presumption of law can be found in section 20 of BNS, 2023, wherein it is laid down
that, “nothing is an offense which is done by a child under the age of seven years.” If in a criminal case it is
shown that the accused is below seven years of age, he shall be presumed to be innocent. No evidence will
be allowed to prove that the accused was guilty. They are indicated in the Evidence Act by the expression
‘conclusive proof’. (Section 35, 116 of BSA, 2023)

REBUTTABLE PRESUMPTION OF LAW:

It arises when the presumption of law are certain legal rules, defining the amount of evidence requisite to
support a particular allegation, which may either be explained or rebutted by evidence to the contrary, but
are conclusive in the absence of such evidences.

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 These are indicated in the BSA, 2023 by the expression “Shall presume”. (Section 78 to 87, 91 and 108)

PRESUMPTION OF FACT:

These are the inferences which the mind naturally and logically draws from given facts without the help of
legal directions. Such inferences are drawn not by virtue of any rule of law but by the spontaneous operation
of the reasoning faculty. They are rebuttable as their evidentiary effect may be negated by contrary proof.
They are indicated in the Indian evidence Act by the expression “May presume” and mentioned in section
88 to 90, 92 and 119.

May presume Shall presume Conclusive Proof

It means presumption of It means presumption of It is also an artificial presumption

fact. The court may law. It is an artificial created by law. The court is bound
1. Meaning
presume a factor call for presumption created by to presume a fact as proved. It is
further evidence for its law. The court shall held conclusive for greater
satisfaction before presume a fact as proved certainty and on public policy.
presuming it or may not unless disproved.
presume it.

It is the discretionary It is directory in the sense It is mandatory presumption which

power of the court. that the law directs the means that the court is bound to
2. Discretion
court to presume certain accept a fact as proved.
facts.

Rebuttable It is rebuttable. It is rebuttable. It is irrebuttable. Both

nature corroborative and opposing
3.
evidences are forbidden.

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LECTURE 6:- RELATION BETWEEN ADMISSIBILITY AND RELEVANCY.

QUESTION: Relevancy and admissibility are neither synonyms nor co-extensive”. Explain this
statement. (2016, 2018, 2021, 2022)

Or

QUESTION: All admissible facts are relevant but all relevant facts are not admissible”. Explain
this statement? (2019)

ANSWER: RELEVANCY AND ADMISSIBILITY

RELEVANCY:

The word relevancy is not defined under the act. According to Phipson, “Relevancy means the connection
of events as cause and effect. What is nearly meant by a relevant fact is a fact which has a certain degree of
probative value.”

In normal sense relevancy means the interconnection of the facts. The relevancy is based on reason and
human experiences. Relevancy is based on two things-

1. Inter-relation between facts and,

2. The probative value of facts.

So the relevancy is the capacity of a fact that makes it admissible before the Court.

ADMISSIBILITY:

Admissibility is also not defined under Act. Admissibility is meant for the admission of any fact as evidence
by the court. The admissibility of any fact is the question of law or and it is to be decided by the court.
Admissibility is the means and the methods of admitting the relevant facts. Admissibility is the capacity of a
fact to be admitted by the court as evidence.

The expression relevancy and admissibility are not synonyms because their legal implications are different,
as more often, facts that are relevant may not be admissible. For example- the communication between
husband and wife, the communication between advocate and his client are relevant but not admissible and
the fact which is admissible may not necessarily be relevant. For example- questions permitted to be cross-
examined to test the veracity or to impeach the credit of a witness though not relevant but are admissible.

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Section 141 of the BSA, 2023 clearly provides that even though the facts are connected to each other, their
admissibility should be decided by the court. Thus, it is clear that relevancy and admissibility are not the
same things.

So, as a general rule, relevant facts are admissible in evidence but all relevant facts are not necessarily
admissible. If any fact is prevented by legal provisions from being admitted then it shall not be admissible
though it may be relevant. in Ram Bihari Yadav v. State of Bihar, 1998, SC the Supreme Court speaking
through Mohammed Qadari J. said that “More often than not the expression relevancy and admissibility
are used as synonyms but there is legal implications are different because facts which are relevant may not
be admissible for example the communication between the spouses during the marriage, communication
between advocate and his client.”

The question of relevancy should be decided as and when it is raised and should not be reserved until the
date of the judgment in the case. Where the court is in doubt as to the relevancy of a particular piece of
evidence it should declare in favour of relevancy. If relevant evidence is so mixed up with irrelevant
evidence as to make it impossible to separate one from another, the whole of the evidence is to be rejected.
But where the relevant material is quite independent of the irrelevant material the relevant will be admitted
and the other part will be rejected.

The question of relevancy is a question of law and can be raised at any stage. But if the evidence is relevant
but the proof of it is improper and the evidence is admitted, no objection can be taken afterwards. To take an
example, secondary evidence may be given if the loss of original evidence is proved. If at the trial secondary
evidence is given of the content of a relevant document and no objection is raised, afterwards it cannot be
objected that the evidence has been given improperly.

DIFFERENCE BETWEEN ADMISSIBILITY AND RELEVANCY

Admissibility relevancy

1. Not based on logic but strict rules Based on logic and probability.

2. Rules of admissibility section 51 of the Rules of relevancy are described from sections

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 BSA, 2023. 3 to 50 of the BSA, 2023.

3. Rules of admissibility declared whether Rules of Relevancy declare what is relevant.

evidence is to be admitted or to be
excluded.

4. The facts which are admissible are Facts which are relevant are not necessarily
necessarily relevant. admissible.

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LECTURE 7:- PRINCIPLE OF RES-GEATAE.

QUESTION: Explain the doctrine of Res-Gestae with the help of relevant case laws? (2014, 2015,
2017, 2019)

ANSWER: RELEVANCY OF FACTS FORMING PART OF THE SAME TRANSACTION:

SECTION 4

The phrase the ‘res gestae’ is of Latin origin which literally means “things done” and when translated into
English means “things said or done in the course of the transaction”. So we can normally say that the
facts which surround the happening of an event are called its res- gestae. Every fact is part of other facts.
Every fact story is made of certain acts, omissions, and statements. Every such act or omission or statement
which throws light upon the nature of the transaction or which reveals its true quality or character should
come under the part of the same transaction or res gestae.

Peter Murphy, “To state a fact or event in isolation without reference to its antecedents in time, place or
surrounding circumstances, may render the fact, difficult or even impossible to comprehend. Other facts or
circumstances may be closely connected with the fact in issue as to be, in reality, part and the parcel of the
same transaction. Such ancillary facts are described as forming part of the res gestae of the fact in issue
and maybe proved.”

The above definition of res gestae is very broad and uncertain under English law so it is adopted under
certain limits. The doctrine of res-gestae is contained impliedly under the section 4, 5, 6, 7 and 12 of the
BSA, 2023.

SECTION 4: RELEVANCY OF PART OF THE SAME TRANSACTION: Under section 4 those facts
are declared relevant which though not in issue, are so connected with the fact in issue as to form part of the
same transaction. It is not necessary that all those facts which form part of the same transaction happen at
the same time and place. They may occur at different times and places.

MEANING OF TRANSACTION: A transaction is a group of facts so connected together as to be referred

to by a single name as a crime, as a contract, as a wrong or any other subject of inquiry that may be in issue.

Roughly, a transaction may be described as any physical act or series of connected physical acts together
with the words accompanying such act or acts.

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ACT OR OMISSION AS RES-GESTAE: So far as acts and omissions accompanying a transaction are
concerned, much difficulty does not arise. Nature of the transaction itself indicates what should be its
essential parts. Where, for example, there is a conspiracy to overthrow the Government of India by force,
funds for the purpose are raised at Calcutta, arms and ammunition at Madras and task force is trained at
Bombay. All these acts though isolated in time and place, are still a part of the same transaction.

STATEMENTS AS RES-GESTAE: The statement may also accompany physical happening. An injured
person, for example, is naturally bound to cry. He may cry under pain or for help or spell out the name and
description of his attacker.

In the application of this principle, the court has been very cautious, for statements can easily be concocted.
Hence the principle is that the statement should have been made so soon before or after or along with the
incident that there was hardly any time to deliberate and thereby to fabricate a false story.

One of the earliest and the clearest illustration is the decision of Holt CJ. In Thompson v. Trevenion, 1695.
It was held that “if sufficient time elapsed to allow the intervention of a false tale, obviously the evidence
would be unreliable.” The subsequent case of R v. Bedingfield, 1879, QB shows the value of time in this
connection. A woman, with her throat cut, came suddenly out of a room in which she had been injured and
shortly before she died, said, “Oh dear aunt, see what Bedingfield has done to me.” Blackburn CJ. held
that the statement was not admissible. Here it was something stated by her after it was all over.

The principle of the decision in Bedingfield’s case was approved by the House of Lords in R v. Christie,
1914. In which statement made by a young boy to his mother, shortly after the incident of assault on him by
the offender, was held not to be res-gestae, as it is so separate by the time and circumstances that it could
not be said to be the part of the same transaction.

Looking at this state of uncertainty, the Privy Council in Rutten v. Regina tried to lay down more scientific
formula. In this case, the caller, a woman, giving her address in distress requested the telephone operator to
connect to the police but the call could not be completed as it ended suddenly. When the police went to her
home, she was found dead. In this case, the call by the woman and whatever she said was held to be res-
gestae. Lord Wilberforce, who delivered the judgment of the board, said, “The test should not be the
uncertain one, whether the making of the statement was in some sense part of the event or transaction…..As
regards statements made after the event it must be for the judge to satisfy himself that the statement was so
clearly made in the circumstances of spontaneity or involvement in the event that the possibility of
concoction can be disregarded.”

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In State of Andhra Pradesh v. Panna Satyanarayana, 2000, SC the accused murdered his wife and
daughter. The father of the deceased wife stated that the father of the accused told him on the phone that his
son had killed the deceased. The Supreme Court held this statement to be not relevant.

In Sanwal Das v. State of Bihar, 1974, SC at the time of murder the cry of the deceased that “save me” and
that of the children that “their mother is being killed” were held relevant as res- gestae.

In R.M. Malkani v. State of Maharashtra, the tape-recorded conversation was held relevant under this
section.

RES-GESTAE AND HEARSAY EVIDENCE: Hearsay evidence means the statement of a person who
has not seen the happening of the transaction but has heard of it from others.

In R v. Foster, 1834 the witness had only seen the speeding vehicle but not the accident. The injured person
explained to him the nature of the accident. He was allowed to give evidence of what the deceased said,
although it was only a derived knowledge, as being part of res gestae. Thus the doctrine of res-gestae
constitutes an exception to the principle of hearsay.

FIR AS RES-GESTAE: In Shyam Nandan Singh v. State of Bihar, 1991, SC the Supreme Court stated
that if a witness is present at the scene of the occurrence, sees the whole event, makes cry about the offence
being committed, when people of vicinity reach, he tells them about the occurrence and then goes to the
police station and made FIR. The making of the FIR was held to be relevant as res-gestae.

CRITICISM: The res-gestae doctrine has often been criticized. According to Professor Stone, “no
evidentiary problem is so shrouded in doubt and confusion.” It was the opinion of Professor Wighmore
that the rule is not only useless but also harmful. It is useless because every part of it is covered by some
other rule, for example, declaration as to state of mind or health. It is harmful because it causes confusion
about the limitation of the other rules. The precise limits of res-gestae are themselves not easy to define.
Facts differ so greatly that no principle can be laid down as to matter that will form part of transaction.

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LECTURE 8:- RELEVANCY OF MOTIVE, PREPARATION AND CONDUCT.

QUESTION: Explain the relevancy of Motive, Preparation and conduct under section 6 of Bharitiya
Sakshya Adhiniyam, 2023?

ANSWER: MOTIVE, PREPARATION AND CONDUCT: SECTION 6

Section 6 of the BSA, 2023 lays down the provisions relating to the relevancy of three principle facts, which
are very important in connection with every kind of civil or criminal cases. These are:

i. Motive

ii. Preparation; and

iii. Conduct.

SECTION 6 RUNS AS FOLLOWS:

“Any fact is relevant which show or constitutes a motive or preparation for any facts 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 any facts 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 facts 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 his presence
and hearing which affects such conduct is relevant.

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.

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 (b) A sues b upon a bond for the payment of money. B denies the making of the bond.”

1. MOTIVE:

The word “motive” means “the reason behind the act or conduct or an act to be achieved in doing an act.”
Salmond describes motive as “the ulterior intent”. It may be good or bad.

Motive is the moving power, which impels one to do an act. In other words, a motive is that, which moves a
man to do a particular act. It is and emotion of state of mind, which leads a man to do an act. Motive by
itself is no crime, however heinous it may by. But once a crime has been committed, the evidence of motive
becomes important. Therefore, evidence of the existence of a motive for the charged is admissible.

Motive differs from intention. Intention refers to immediate consequences, whereas, motive refers to
ultimate purpose with which an act is done. An act may be done with bad intention but good motive.

For example, a thief steals money and helps the poor. To establish liability whether civil or criminal, motive
is generally irrelevant but an enquiry into motive is often of great importance, particularly in cases of
circumstantial evidence. It helps in estimating probabilities and thus fixing the crime upon the proper person
and in some cases, it is strongly instrumental in determining the degree of offence. It may also be an
important factor in evidencing the state of mind, which is material for establishing a particular offence.

Proof of motive: Motive cannot always be shown directly. It has to be inferred from the facts and
circumstances in evidence.

For example, A is tried for murder of B. The fact that B was present at the scene of the offence, while A
was murdering C. B tried to extort money from A, by threatening him to reveal in the public that A
murdered C are relevant.

Similarly, A sues B upon a bond for the payment of money, B denies the execution of the bond. The fact
that, at the time, when the bond is alleged to have been made, b required money for a particular purpose is
relevant to show his motive.

Importance of evidence of motive: Motive is a relevant factor in all criminal cases, whether based on the
testimony of eye witnesses or circumstantial evidence. Motive alone is not sufficient evidence to establish
that the crime in question has been committed by a particular person. Where a crime is to be proved beyond
reasonable doubt, it is not necessary to consider the evidence of motive. Inadequacy of motive does not

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affect the cogent evidence but is important, whether evidence is doubtful. (Matadin v. Emperor, 1931,
Oudh ).

Sukh Ram v. State of M.P. AIR 1992 SC 758:

It was laid down in this case that absence of motive may not be relevant, where there is overwhelming
evidence against the accused but it is a plus point where evidence against him is only circumstantial. It is
therefore, not proper to consider the evidence of motive before examining the evidence as to commission of
the crime.

2. PREPARATION:

Section 6, Para I of the BSA, 2023 says “Any fact is relevant which shows constitutes a motive or
preparation for any fact in issue or relevant fact”.

Preparation consists in arranging the means necessary for the commission of a crime.

Every crime is necessarily preceded by preparation. For the commission of any crime preparation must be
there. Illustration (c) to Sec. 6, says:

“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.”

The facts that a day prior to the murder of B, A went to the druggist shop and obtained a particular poison,
is relevant to show that he made necessary preparation for committing the crime.

There are four stages in commission of a crime/an offence viz.

i) Intention;
ii) Preparation;
iii) Attempt; and
iv) Accomplishment/Completed act.

The first (intention) is not punishable. The second stage in Commission of a Crime is preparation, which is
punishable in creation cases. The third stage „attempt” is exempted from criminal liability in rare cases in
respect of minor offences. Preparation consists in devising or arranging means necessary for commission of
an offence.

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Mohan Lal v. Emperor, 1937:- In this case, the accused was charged with cheating for importing goods
without paying proper customs duty by deceiving customs authorities. The evidence of his previous visits to
the port trying to make certain arrangements whereby he could import goods without paying duty was held
admissible under this Section.

The preparation on part of the accused may be, to accomplish the crime, to prevent discovery of crime or it
may be to aid the escape of the criminal and avert suspicion.

3. CONDUCT:

The second paragraph of Sec. 6 deals with the relevancy of conduct. It says.

“The conduct of any party, or of any agent of any party to any suit or proceeding, in reference to such suit
or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person,
an offence against whom is 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 subsequent thereto”.

Conduct is different from the character. Conduct is what a person is in the estimation of others.

Paragraph 2 to Sec. 6 deals with the relevancy of the conduct of the following persons:

1. Parties to the suit and of their agents.

2. Person, an offence against whom is the subject of proceedings.

Against whom admissible: The conduct of any person, if relevant under Section 6, is admissible only
against himself and not against any other person. The conduct of an accused is not, therefore, admissible,
against a co-accused.

Conditions of admissibility: The conduct is admissible only if the following conditions are satisfied:

i) It must be in reference to the suit or proceeding or in reference to any fact in issue therein or
relevant thereto.

ii) It must directly influence or be influenced by any fact in issue or relevant fact.

The conduct remains inadmissible, if any one of the above two conditions is not satisfied.

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Statement accompanying or explaining conduct:- Evidence can be given of a statement, which either
accompanies some conduct or explains acts other than statements.

Previous conduct: The fact that two months before his death the deceased had lodged complaint with the
police expressing apprehension of death or injury would be relevant as previous conduct of the deceased,
such conduct being influenced by his fear of injury.

Habeeb Mohammed v. State of Hyderabad, 1954, S.C.:

The allegation against the appellant was that he was acting in pursuance of the policy of the Ittehad-ul-
Muslimeen and that he wanted to exterminate Hindus. It was held by the Supreme Court that he was entitled
to lead evidence to show that his behavior towards the Hindus throughout his official career has been very
good and could possibly think exterminating them.

Subsequent conduct: The conduct of an accused soon after and incident plays an important role in
determining the guilt of the accused and in ascertaining his state of mid. When a person is accused of a
crime the fact that after the alleged crime he destroyed or concealed evidence or prevented the presence or
procured the absence of persons who might have been witnesses or suborned person to give false evidence
is relevant. Where murder and robbery have been shown to be parts of the same transaction, recent and
unexplained possession of stolen property would be presumptive evidence against a person on the charge of
robbery as well as murder. Disappearance of the accused after occurrence is a conduct, which in the absence
of any plausible explanation might be taken into account against him.

To be an absconder under Section 6 it is not necessary that they should run away from his house. It is
sufficient even if he hides himself in his own house to evade the process of law.

Balmukund Ram v. Ghansam Ram, 1895, Cal:- In this case, the landlord of a house was found in the
midnight in a room of his tenant in which the tenant and his wife were sleeping. Upon being detected the
accused was subjected to severe treatment but did not utter a word of protection of innocence nor made any
show of remonstrance. In his trial under Section 45 of I.P.C. it was held that judging from time, place and
conduct of the accused it was impossible to suppose that trespass was with innocent intention.

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LECTURE 9:- RELEVANCY OF TEST IDENTIFICATION PARADE.

QUESTION: What is test Identification parade? Explain the evidentiary value of test identification
parade? (2015, 2019)

ANSWER: TEST IDENTIFICATION PARADE: SECTION 7

Identification is the process by which the identity of the accused person is established. In this process the
suspected person is placed in a line with other person of similar look and the witness is called to identify the
accused.

The necessity of test identification arises when witness does not know the accused before that event but he
can recognise him, if accused comes before him.

OBJECT: Thus, test identification parade is meant to test the veracity of the witness and his capacity to
identify unknown persons.

In Rama Nathan v. State of Tamil Nadu, 1978, SC. the Supreme Court held that the purpose of the test
identification parade is to test and strengthen the trustworthiness of the evidence of a witness in the court.

VALUE: In Ram Babu v. state of UP, 2010, SC, it was held that test identification parade is not a piece of
substantive evidence. The evidence generated by the identification parade can be used as corroborative
evidence.

In Delhi administration v. VC Shukla, 1980, SC and Hare Krishna Singh v. State of Bihar, 1988, SC it
was held that identification of the accused by the witness for the first time in the court without being tested
by a prior test identification parade was valueless. The Supreme Court also held that where one of the
witnesses failed to identify the accused at the identification parade, Identification by him of the accused in
the court was valueless.

WHEN NOT NECESSARY: In Jadu Nath Singh v. State of UP, 1971, SC, it was held that if the witness
is already acquainted with the accused then an identification parade is not necessary and it would be only a
waste of time.

L. Chaurasia v. State of Maharashtra, 1968- if the witness was shown the picture of the accused before the
test identification parade, the test identification parade becomes valueless.

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Lali alias and others v. State of Rajasthan 2005- if the accused was arrested and detained in the custody
before complainant and witness, the test identification parade by the witness is of no use.

WEATHER IDENTIFICATION PARADE VIOLETS ARTICLE 20(3): In Pyare Lal v. State, it was
held by the Supreme Court that identification parade does not amount to a violation of the right against self-
incrimination. The same view was adopted by the Supreme Court in State v. Kathi Kalu, 1961, SC.

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LECTURE 10:- RELEVANCY OF STATEMENTS AND ACTS DONE IN FURTHERANCE OF
CONSPIRACY.

QUESTION: Explain the relevancy of things said or done in furtherance of conspiracy? (2018,
2019)

ANSWER: SECTION 8: CONSPIRACY

SECTION 8 deals with the relevancy of evidence in the conspiracy cases. The term conspiracy simply
means the combination of two or more minds for an unlawful purpose. Section 61(1) of the BNS, 2023 Lays
down that when two or more persons agree to do or cause to be done-

1. Any illegal act or,

2. An act which is not illegal but done by illegal means.

Such an agreement is designated as a criminal conspiracy.

The conditions for the relevancy under section 8 of the BSA, 2023, are-

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

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

3. The act must have been done in furtherance of their common intention.

If the above conditions are fulfilled the evidence of such an act can be given for the following two purposes-

1. To prove the existence of the conspiracy and,

2. To show that the particular person was a party to the conspiracy.

REASONABLE GROUND TO BELIEVE THE EXISTENCE OF CONSPIRACY: A court cannot use

anything said, done or written by one alleged member of the conspiracy, in evidence against him or against
all unless there is reasonable ground to believe that the conspiracy between them exists.

Only a prima facie case of the conspiracy has to be made out to bring the section into operation. The fact
that the two accused, one of whom actually caused the death, were seen together before the event, isolating
themselves on the rooftop and making every possible effort to conceal their conversation from the family

~ 25 ~
members, were held to be a prima facie proof of conspiracy so as to punish one for the action of the other.
(Kehar Singh v. State Delhi administration, 1988, SC)

ACT IN FURTHERANCE OF COMMON INTENTION: Things said, done or written by one person
will be admissible against him and others only, when that thing was said, done or written in furtherance of
their common intention.

In Mirza Akbar v. Emperor, 1940, PC there were certain letters that consists of the conspiracy of murder
between a female Prisoner and her lover. It was held that letters were relevant under section 10 as their
terms were consistent with the conspiracy to cause the death and they were written at the time when the
conspiracy was going on.

In Badri Rai v. State of Bihar, 1968, SC in this case Ram ji and Badri were prosecuted for conspiracy under
section 61(1) of the BNS, 2023. The court said that when both the accused approached the inspector and
requested him to hush the case, this clearly shows that they had conspired to bribe the public servant. The
statement and the offer to bribe had a clear reference to their common intention and were therefore relevant
against both.

It has been pointed out by the Supreme Court in Bhagwat Swaroop v. State of Maharashtra, 1965, SC that
the act and the statement of conspirators can only be used for the purpose of proving the existence of a
conspiracy or that particular person was a part of it. In Shradul Singh v. State of Bombay, 1957, SC it was
held that section 8 is based on the theory of agency.

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LECTURE 11:- PLEA OF ALIBI

QUESTION:- Write a short note on the relevancy and evidentiary value of Plea of Alibi? (2017)

ANSWER: PLEA OF ALIBI: SECTION 11(1)

Evidence can be given of facts that have no other connection with the main facts of a case except that they
are inconsistent with the fact in issue or a relevant fact. Their inconsistency with the main fact of the case is
sufficient to warrant their relevancy. This section enables a person charged with a crime to take what is
commonly called the Plea of Alibi which means his presence elsewhere at the time of the crime. His
presence elsewhere is inconsistent with the fact that he should be present at the place of the crime. Where,
for example, a person is charged with murder which took place at Calcutta, he can take a defence that on the
day in question he was in Bombay. In order to prove his presence in Bombay, he may show his attendance
at some place, for example, the fact that he visited a doctor or a vakil and he noted his visit in a professional
diary or that he posted a letter written by himself on that day from Bombay for that he encashed a cheque at
Bombay.

It is well settled that the burden of substantiating the plea of alibi and making it reasonable probable lies on
the person who sets it up. In Gauri Shankar v. state of UP, 1990 the Supreme Court has stated “The plea of
alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by
reason of his presence at another place. the plea can, therefore, succeed only if it is shown that the accused
was so far away at the relevant time that he could not be present at the place where the crime was
committed.”

Applying this to the facts of the case the court held that the plea of alibi was not established as the gap
between the factory where the accused worked and where he was present at 8:30 a.m. and the place of
murder which took place at 9:00 a.m. was so short that the accused could have easily reached there. (Dudh
Nath Pandey v. State of UP, 1981, SC)

MEANING OF PRESENCE ELSEWHERE:

A distance of 400-500 yards between the place of occurrence and the place where the accused claimed to be
present (present in a Panchayat meeting) was held to be not amounting to the presence elsewhere. It could
not be impossibility that one could be present at both the places more or less simultaneously. (Munshi
Prasad v. State of Bihar, 2001, SC)

EVIDENTIARY VALUE OF PLEA OF ALIBI:

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The fact that the accused advanced a false Plea of alibi cannot by itself be proof of the fact that he was
responsible for the offence. (Govinda v. state of MP, 2005, SC)

In Bhubooni Sahu v. King Emperor, 1949, PC the Privy Council was of opinion that evidence being
proved through disinterested and impartial witness, no doubt will have greater evidentiary value, but very
often a witness may not be in a position to offer such cognate alibi evidence. For example, where a person
who is accused of committing a crime but in fact was sleeping in his house at that time, can give alibi
evidence only through his family members. In such a case, it is not possible for him to prove the alibi
through disinterested and impartial witness.

In Shankar Lal v. State of Maharashtra, it was held that no presumption of guilt against the accused can be
drawn if he advances the plea of alibi but failed to establish it.

In Vijay Pal v. State of Delhi (NCT), 2015, SC the Supreme Court held that the burden on the accused is
rather heavy and he is required to establish the plea of alibi with certitude. The plea can succeed only if it is
shown that the accused was so far away at the relevant time that he could not be present at the place where
the offence was committed.

STATE OF MIND OR BODY OR BODILY FEELING (SECTION–14)

Section 14 of the Indian Evidence Act, 1872 deals with the proof of “Facts showing the existence of any
state of mind or of body or bodily felling”. It runs as follows:

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence,
rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of mind or
body or bodily felling, is in issue or relevant.

Explanation–1: A fact relevant as showing the existence of a relevant state of mind must that the state of
mind exists, not generally, but in reference to the particular matter in questions.

Explanation–2: But where, upon the trial of a person accused of an offence, the previous commission by
the accused of an offence is relevant within the meaning of this section, the previous conviction of such
person shall also be a relevant fact.

Illustrations: A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in
possession of a particular stolen article.

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The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to
show that he knew each and all of the articles of which he his charged.

STATE OF MIND: Facts showing the state of mind constitute Intention, Knowledge, Good Faith,
Negligence, and Rashness, ill will or good will. For the purpose of showing the existence of state of mind, it
is not possible to provide direct evidence.

Brain, C.J. observed, “It is common knowledge that thought of a man cannot be tried for devil knoweth not
what passes in one’s mind. But it is now well established that the state of one’s mind is as much a fact as the
state of his digestion. If need not be directly proved by confession by the accused or by the evidence of a
person who had an admission from the accused about his intention.”

STATE OF BODY OR BODILY FEELING: The condition of one's body or his bodily felling may help a
lot in finding the truth. Thus, where it is alleged that A was murdered by administering poison to him his
statements regarding his condition and bodily felling may help in finding whether poison was given to him
and which type of poison was administered.

FACTS BEARING ON QUESTION WHETHER ACT WAS ACCIDENTAL OR INTENTIONAL:

SECTION 15

Section 14 and 15 of the Evidence Act are overlapping. Section 15 is an application of the general rule laid
down in Section 14. Section 15 of the Evidence Act deals with “Facts bearing on question whether act was
accidental or incidental”. It reads as follows:

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

Illustrations:

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

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

~ 29 ~
 UNIT II

LECTURE 1:- ADMISSIONS: DEFINITION, TYPES AND EVIDENTIARY VALUE.

QUESTION: - What do you understand by admissions? What are the essential conditions for the
relevancy of admissions? (2014, 2019)
OR
QUESTION: - Explain admissions? Who can make them? Can a third person make a relevant
admission?
OR
QUESTION: - What are the types of admissions? Whether silence amounts to an admission? Explain
with the help of relevant case laws? (2018)

ANSWER: SECTION 15: ADMISSION

Section 15 of the Baritiya Sakshya Adhiniyam, 2023 points to three things. It first defines admission in
the terms of a statement which may be oral or documentary or in electronic form. Secondly, the sections say
that admission will be relevant only if it is made by any of the person as is specified in this act. The list is to
be found in section 18 onwards. Thirdly, the section says that it will be relevant only in the circumstances
mentioned in this Act. Such circumstances are mentioned in sections 18- 30.

The definition has been amended so as to include in its folds, the statement recorded in an electronic form.
Section 15 provides-

“An admission is a statement, oral or documentary or contained in electronic form, which suggests any
inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.”

About the definition of admission, the section says that admission is a statement that suggests some
inference as to the existence of a fact in issue or fact relevant to the issue.

REASONS FOR ADMISSIBILITY OF ADMISSIONS:

1. Admissions as a waiver of proof.

2. Admissions as a statement against interest.

3. Admission against evidence of contradictory statement.

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 4. Admission as evidence of truth.

KINDS OF ADMISSIONS:

1. FORMAL OR JUDICIAL ADMISSIONS:

An admission that is made as a part of a proceeding so that it is recorded in the file of the court is called
formal or judicial admission. Admissions expressly made in the preceding prior to the trial are sometimes
called formal or express admissions, to distinguish them from those informal or casual statements made by a
party against his interest, which may be proved by the witness.

In KK Chari v. RM Sheshadri, 1973, SC explaining the weight of a judicial admission as compared with
informal or casual admission, the learned judge said, “Admissions, if true and clear, are by far the best
proof of the fact admitted. Admissions in pleading or judicial admissions, admissible under section 58, made
by the parties or their agents at or before hearing of the case, stands on a higher footing then evidentiary
admissions. The former class of admissions is fully binding upon the parties that make them and constitute a
waiver of proof. They, by themselves, can be the foundation of the right of the parties. On the other hand,
evidentiary admissions, which are receivable at the trial as evidence, are by themselves not conclusive. They
can be shown wrong”

2. INFORMAL OR CASUAL ADMISSIONS:

Admissions may occur in the ordinary course of life or in the course of business or in a casual or
informal conversation. The admission may be in writing or in oral. Written admissions may occur in the
course of correspondence, in the letters, books, business Diaries or account books or passbooks or other
records.

Thus every written or oral statement by a party about the fact of the case is an admission against him. If
there is a document against him, any statement made by him about the content of the document is an
admission against him even if the document itself is not provable on account of want of a stamp.

3. ADMISSION BY CONDUCT:

Active or passive conduct made in circumstances becomes evidence of an admission. Actions of a person
often speak louder than his words. An illustration of active conduct is found in the case of Moviarity v.
London Leaham and Dover Ry. 1870, QB The plaintiff sued the railway company for personal injuries.
Evidence was submitted that he had been going about pursuing certain person to appear for him even when

~2~
they were not present at the accident. The court said that this species of evidence is receivable as an
admission by the party that the case he is putting forward is not true. It was an admission by conduct and
receivable on that ground.

4. ADMISSION BY SILENCE:

Where a statement, substantially affecting person’s material interest, is made in his presence and the
circumstances are such that he would certainly objected had it been incorrect, the silence on the part of such
person can be deemed as an admission of the statement.

In Bessela v. Stern, 1877 in an action for breach of promise of marriage, it was proved that the plaintiff said
to the defendant, “You always promised me to marry me and you do not keep your words.” the defendant
did not deny the allegation but offered her hush money.

His silence as to the promise of marriage was held to be an admission. Bratt LJ laid down, “the question is,
would it have been natural at the time when the women made the statement that the man should have
contradicted it? If so, the jury had a right to consider that he is not denying evidence of truth of what she
said.”

PERSON WHOSE ADMISSIONS ARE RELEVANT: Section 16, 17 and 18 of the Baritiya Sakshya
Adhiniyam, 2023 Lays down the list of persons whose admissions constitutes evidence against party. These
persons are-

1. Parties to the suit or proceeding.

2. Agent of parties authorized in this behalf.

3. The statement made by a person occupying representative character but such a statement must be
made during the period when he holds such character.

4. The statement made by the third person-

A. The statement made by a person having pecuniary or property interest

B. The statement made by person from whom the parties derived their interest, if the above
statements are made when the person making it held that interest.

5. Person whose position or liability is in issue with respect to the parties. (Section 17)

~3~
 6. Statement of person expressly referred to in this behalf. (Section 18)

Section 17 deals with the statement of persons whose position is in issue, though they are not a party to the
case.

For example, A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies
that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact
as against A, if A denies that C did owe rent to B.

Section 18 says that when a party makes reference to a third person for information, any statement made by
that person about the subject matter of reference, is an admission against the party making the reference.

For example, the question is whether a horse sold by A to B is sound. A says to B, “go and ask C, C knows
all about it.” C’s statement is an admission.

WHO CAN PROVE ADMISSIONS: SECTION 19:

This section lays down the principle as to proof of admissions. The section is based upon the principle that
admission is evidence against the party who has made the admission and therefore, it can be proved against
him. He himself cannot prove his own statement “Otherwise every man, if he were in the difficulty or in the
view of one, might make declarations to suit his own case and then lodged them in proof of his case”. (R v.
Hardy, 1794)

Section 19 of the Baritiya Sakshya Adhiniyam, 2023 says that admission can be proved by the maker or
on his behalf or by his representative only under the three following circumstances-

1. When it is of such a nature, that if the person making it were dead, it would be relevant as between
him and third-person under Section 26.

2. An admission may be proved by or on behalf of the person making it when it consists of a statement
of the existence of any state of mind or body, relevant or in issue, made at or about the time when
such a state of mind or body existed and is accompanied by conduct rendering its falsehood
improbable.

3. An admission may be proved by or on behalf of the person making it, if it is relevant otherwise then
as an admission.

EFFECT OF ADMISSION:

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Stating the effect of an admission section 25 of BSA says that admissions are not conclusive proof of the
matter admitted but they may operate as estoppel under the various provision of the act.

This provision is further supplemented by section 53 of BSA. This section provides that fact admitted need
not be proved. it says that “No fact need to be proved in any proceeding which the parties thereto or their
agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under
their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their
pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise
than by such admissions.”

Section 53 of BSA provides for the effect of what is known as judicial admissions. Such admissions are
definitely stronger evidence than evidentiary admissions. Speaking of difference in their effect in Nagindas
Ramdas v. Dalpatram Ichcha Ram, 1974, SC Sarkari J. of Supreme Court observed the above effect of
the judicial admissions.

1. ADMISSION NOT CONCLUSIVE PROOF:

Firstly, admission does not constitute conclusive proof of the facts admitted. It is only a prima facie proof.
An admission being not conclusive proof of the fact admitted, evidence can be given to disprove it. But until
evidence to the contrary is given, an admission can safely be presumed to be true.

It has been held by the Supreme Court in a number of cases that admission is substantive evidence of the
fact admitted and that admissions duly proved are admissible evidence irrespective of whether a party
making them appears in a witness box or not and whether the party when appearing as a witness, was
confronted with those statements in case he made a statement contrary to his admissions. (Bharat Singh v.
Bhagirath, 1996, SC)

2. WEAVER OF PROOF:
Secondly, judicial admissions are waiver of proof, that is to say, it is the proof of the fact admitted and no
further proof is necessary. Though, the court in its discretion may require further proof. (Section 53)

3. ESTOPPEL OF THE PARTY ADMITTING:

Thirdly, where an admission operates as an estoppel, the party admitting the fact will not be allowed to go
against the fact admitted. Estoppel will arise under section 121 of BSA when the admission amounts to a
representation that the facts stated are true and the other party has acted and altered his position on the basis
of that representation.

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LECTURE 2:- CONFESSION: DEFINITION, TYPES OF CONFESSION, INCULPATORY AND
EXCULPATORY CONFESSIONS.

QUESTION: What are the types of confession? Explain the difference between judicial confession
and extra judicial confession?
OR
QUESTION: With the help of decided case laws through light on the evidentiary value of confession?
(2023)

ANSWER: DEFINITION OF CONFESSION:

The term confession is nowhere defined in the Baritiya Sakshya Adhiniyam, 2023. All the provisions
relating to confession occur under the heading of “Admission”. This shows the legislative intent of not
distinguishing between admission and confession, so far as the definition is concerned.

The definition of confession appearing in “Stephen's digest of the law of evidence” is more or less to the
same effect. A confession is an admission made, at or any time, by a person charged with the crime, stating
or suggesting the inference that he committed that crime.

The Privy Council, however, did not accept this definition for the purpose of the Baritiya Sakshya
Adhiniyam, 2023. Considering the matter in Pakala Narayana Swami v. Emperor, 1939, PC 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. For example, an admission that the accused is the owner of and was in the
recent possession of the knife or the revolver which caused death with no explanation of any other men's
possession, is not a confession. The definition is not contained in the Indian Evidence Act 1872 (now BSA)
and in that Act it would not be consistent with the natural use of language to construe a confession as a
statement by an accused suggesting the inference that he committed the crime.”

CONFESSIONS CARRYING INCULPATORY AND EXCULPATORY STATEMENTS:

The definition attempted by the Privy Council has found favour with the Supreme Court in its decision in
Palvinder Kaur v. State of Punjab, 1952, SC the Supreme Court approved the Privy Council’s decision in
Pakala Narayana Swami v. Emperor, 1939, PC over to scores. Firstly, that the definition of confession is
that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence
and secondly, that a mixed-up statement which even though contains some confessional statement will still
lead to an acquittal, is no confession.

~6~
In this case, Palvinder made a statement that the phial of medicine was kept near by the liquid photo
developer, which is a quick poison, and the husband while going for the medicine swallowed the developer
and died and that she got afraid and with the help of absconding accused, packed the body in the trunk and
disposed it into the well.

The statement thus consisted of partly guilty and partly innocent remarks. It was partly inculpatory in the
sense that it confessed to something wrong and partly exculpatory in the sense that it would totally absolve
her of any guilt. The lower court sorted out exculpatory part and acting on inculpatory part announced her to
be guilty of the murder of her husband by poisoning him but the Supreme Court did not countenance such
approach. The Supreme Court, therefore, accepted the inculpatory part of the statement and rejected the
exculpatory part. In doing so, it contravened the well-accepted rule regarding the use of confession that they
must either be accepted as a whole or rejected as a whole.

In Emperor v. Balmukund. 1930, it was held that the court must accept or reject the confession as a whole
and the court cannot accept only the inculpatory part while rejecting the exculpatory part as inherently
incredible.

In Hanumant v. State of MP the Supreme Court expressed the same view but in its decision in Nishikant
Jha v. State of Bihar, 1959, SC it was held that if there is sufficient corroborative evidence to support
inculpatory part and to discredit the exculpatory part, then the conviction can be based on it.

in Keshoram v. State, 1978, SC the Supreme Court adopted this approach again.

In these two cases, the court did not mean to overrule the judgment of the Palvinder’s case, Hanumant’s
case or Balmukund’s case as in all three cases there was no other evidence on record except the statement of
the accused.

EXCEPTIONS: - There are exceptions to the principle that the confessions must be accepted as a whole or
rejected as a whole-

1. It is permissible to believe one part of the confessional statement which is inculpatory if there are
other evidences on record to prove its correctness.

2. If the exculpatory part of the statement is inheritably improbable, it may be rejected and the
inculpatory part be admitted.

KINDS OF CONFESSION:

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 1. JUDICIAL CONFESSION:

Judicial confessions are those which are made before the magistrate or in the court in the due course of legal
proceedings. Such confessions need not be proved. (Section 53 of BSA)

2. EXTRAJUDICIAL CONFESSIONS:

Extra-judicial confessions are those which are made by the accused elsewhere than before a magistrate or in
court. It may consist of conversation to oneself which may be produced in evidence, if overheard by
another.

in Sahoo v. State of UP, 1966, SC the accused murdered his daughter-in-law with whom he was always
quarrelling and was seen on the day of murder saying words to the effect, “I have finished her and with her,
all daily quarrels”. The statement was held to be confession relevant in evidence and held for a confession
to be relevant it is not necessary that it is made before any other person.

EXTRA-JUDICIAL CONFESSION MUST BE VOLUNTARY:

It is the fundamental principle that a confession made outside the court is admissible only if it is voluntary.

In Chattar Singh v. State of Haryana, 2009, SC it was held that the value of confession is determined by
the person to whom the confession is made and who appears to testify it. In Rahim Baig v. State of UP,
1973, SC the Supreme Court remarked that an extra-judicial confession to afford a piece of reliable
evidence must stand the test of reproduction of exact words, the reason and motive for confession and the
persons selected in whom the confidence is reposed.

In Pandurang Patil v. State of Maharashtra, 2004, SC it was held that trusting a person who was a
classmate and also very close, was held to be natural.

In Jagata v. State of Haryana, 1974, SC it was held that an extra-judicial confession is by nature of thing a
weak piece of evidence.

In State of Rajasthan v. Raja Ram, 2003, SC the Supreme Court stated that it is not open to any court to
start with the presumption that an extra-judicial confession is a weak type of evidence. The court held that
an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be accepted and made
the basis of conviction of the accused but the confession has to be proved like any other fact.

~8~
In recognition of this principle, the Baritiya Sakshya Adhiniyam, 2023 indicates in sections 22 to section
23 (Sec. 24, 25 and 26 of IEA, 1872), the circumstances in which a confession is not voluntary and
therefore not relevant. The circumstances are-

1. The confession must not be made under the impression of inducement, threat or promise proceeded
by a person in authority. (section 22 of BSA) (Sec 24 & 28 of IEA)

2. The confession must not be made to the police officers. (section 23(1) of BSA) (section 25 of IEA)

3. The confession must not be made in police custody except in the immediate presence of the
magistrate. (section 23(2) of BSA) (section 26 of IEA)

SECTION 22 of BSA: CONFESSION MADE UNDER THE IMPRESSION OF INDUCEMENT,

THREAT OR PROMISE:

Section 22 of BSA lays down that a confession would be irrelevant if it is made under the impression of
inducement, threat or promise proceeding from a person in authority. The conditions for applicability of this
section are-

1. The confession must be the result of inducement, threat or promise.

2. Inducement threat for a promise must proceed from the person in authority.

3. It should relate to the charge in question and,

4. It should hold out some worldly benefit or advantage.

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

1. INDUCEMENT, THREAT OR PROMISE:

Confession should be free and voluntary. If it proceeds from remorse and a desire to make reparation for
crime, it is admissible. If it flows from hope or fear excited by a person in authority, it is inadmissible.

Where a prisoner was told by a constable that he need not say anything about to criminate him but what he
did say would be taken down and used in evidence against him, it was held that such words did not amount
to threat or promise to induce the prisoner to confess. In R v. Richardson, 1967 It was pointed out that
“where the admission to speak the truth has been coupled with any expression important that it would be

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better for him to do so. The confession was not receivable. The objectionable words being that it would be
better to speak the truth. The words you had better carry hidden threat or inducement.”

A well-known illustration is R. v. Thompson, 1893 the prisoner was charged with the embezzlement of the
money of a company which employed him. Evidence was offered to show that he was not only confessed to
the chairman of the company but also returned some money through his brother. The chairman admitted that
before he received the confession he had asked the prisoner’s brother: “It will be the right thing for your
brother to make a statement or to make a clear breast of it.” there was no threat or promise in addition to
these words, nor there was any proof that the chairman’s statement was, in fact communicated to the
prisoner prior to his confession.

2. PERSON IN AUTHORITY:

The second requirement is that the inducement, threat or promise should proceed from a person in authority.
The expression definitely refers to the government officials: magistrate, even though not acting as such in
the case, their clerks, corners, police constables, wardens and other having custody of prisoners. About this
there is no doubt. Every government official will be person in authority for whom the accused think that he
is capable of influencing the course of prosecution (R. v. Middleton, 1974). A senior military officer is a
person in authority over those below him. (R. v. Smith 1959). Even a private person can, in circumstances,
be a person in authority over the employee if the charge related to the contract of employment.

A village mukhia and the president of village panchayat have been held to be the person in authority
(Emperor v. Aushibibi). So is the padhan of village (Lallan v. State, 1969) but not an ordinary punch where
he has not authority to interfere.

A purely private person cannot be regarded as a person in authority for this purpose even if he is able to
exert some influence upon the accused. R. v. Gibbons, 1823 is a case of this kind. A surgeon was called as a
witness to prove the confession made to him by a prisoner who was charged with murder. The surgeon was
attending the prisoner at the time when the statements were made, so that he was a person in authority. The
surgeon told the court that he held out no threat or promise to the prisoner but a woman present on the
occasion had told the prisoner that she had better tell the truth and the prisoner confessed to the surgeon.
Park J. laid down that as no inducement has been held out by the surgeon to whom the confession was
made and the only inducement held out being by a person having no sort of authority; it must be presumed
that the confession to the surgeon was free from any defect and voluntary confession.

3. INDUCEMENT, THREAT OR PROMISE SHOULD BE IN REFERENCE TO CHARGE:

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Thirdly, the inducement threat or promise should be in reference to the charge in question. This is
specifically so stated in this section which says that the inducement must have “reference to the charge
against the accused person”. Therefore, it is necessary for the confession to be excluded from evidence that
the accused should labour under influence in reference to the charge in question.

In Reg. v. shutter Lord Atkinson held that in our view inducement will not vitiate a confession when the
offered benefit has no bearing on the course of prosecution and on this point the textbooks writers speak
with one voice.

His Lordship then referred to Reg. v. Smith, 1959 in which a soldier was accused of murder during a
barrack room fight. Soon after the fight the Sergeant major put his company on parade and said that they
would be kept there until he learned who was responsible. After a time Smith confessed. The inducement
clearly was that if the culprit confessed, his comrades would be released. It had nothing to do with any
impeding charge. But it was held sufficient to make the confession inadmissible.

4. BENEFIT OF TEMPORAL NATURE:

The last condition for section 22 of BSA to come into play is that the inducement, threat or promise must be
such as is sufficient in the opinion of the court to give the accused person grounds which would appear to
him reasonable, for supposing that by making the confession he would gain any advantage or avoid any evil
of temporal nature in reference to the proceedings against him. Therefore, the evil which is threatened to
him or benefit which is promised to him must be of material, worldly or temporal nature.

Mere moral or spiritual inducements will not vitiate a confession. For example, where the accused is told
“Be sure to tell the truth or you have committed one sin, do not commit another and tell the truth” (R v.
Sleeman, 1853) a confession made in response to this is valid. The same is true where the accused is taken
to the temple or church and is told to tell the truth in the presence of almighty.

CONFESSION AFTER REMOVAL OF IMPRESSION CAUSED BY THREAT, INDUCEMENT

OR PROMISE:

First proviso of Section 22 of BSA provides that when at the time of confession the impression created in
the mind of the accused by threat, promise or inducement was no longer there, the concession would be
relevant.

SECTION 23 (1): CONFESSION TO THE POLICE OFFICER NOT TO BE PROVED:

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REASON FOR EXCLUSION OF CONFESSION TO POLICE:

If confession to police were allowed to be proved in evidence, the police would torture the accused and thus
force him to confess a crime which he might not have committed. A confession so obtained would naturally
be unreliable as it would not be voluntary.

EFFECT OF POLICE PRESENCE:

The mere presence of policeman should not have this effect. Where the confession is being made to
someone else and the policeman is only casually present and overhears it, this will not destroy the voluntary
nature of the confession. But where that person is a secret agent of the police deputed for the very purpose
of receiving a confession, the statement so made will suffer from the blemish of being a confession to
police. (Emperor v. Hari Piari, 1926, All)

In a rather unusual case, the accused left a letter recording his confession near the dead body of his victim
with the sole object that it should be discovered by the police, the Supreme Court held that the confession
was relevant. There was not even a shadow of a policeman when the letter was being written and planted.
(Sita ram v. State, 1966, SC)

WHO IS A POLICE OFFICER:

A police officer means for this purpose a member of a regular police force but the Supreme Court has held
that the expression would include any person who is clothed with the powers of a police officer. Therefore,
excise inspector and sub-inspectors enjoying police powers were held to be police officers. (Raja Ram
Jaiswal v. State of Bihar, 1964, SC)

A police Patil has been held to be police officer (Ram Singh v. State of Maharashtra, 1999). An officer
under state reserve force who was posted at flag hosting for law and order to be not a police officer for the
purpose of section 25 because he was not vested with the powers of investigation (State of Gujarat v.
Anirudh Singh, 1997, SC).

In reference to the custom officers the Supreme Court did not find them possessing the powers of a police
officer and held them to be outside the purview of section 25 (State of Punjab v. Barkat Ram, 1962, SC).

Simultaneously, officers under NDPS Act, 1985 have been held to be not police officers though they are
vested with some powers of officers in charge of a police station. (Ram Singh v. Central Bureau of
narcotics, 2011, SC)

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SECTION 23 (2) of BSA: CONFESSION IN POLICE CUSTODY:

No confession is made to anybody, while the person making it is in police custody, is provable. The section
will come into play when the person in police custody is in conversation with any person other than the
police officer and confesses his guilt. The section is based upon the same fear, namely that the police would
torture the accused and forced him to confess.

MEANING OF POLICE CUSTODY: Police custody means police control even if it be exercised in a
home, in an open place or in the course of journey and not necessarily in the walls of a prison. All
circumstances, in which the accused remains in the custody of a police while inquiries are made by them,
have been considered to fall within the purview of statutory bar. The courts have declined to recognise in
this context any distinction between lawful and unlawful police custody. Moreover, the concept of police
custody does not necessarily connote the immediate presence of police officers, so long as the accused
person are aware that the place where they are detained is really accessible to police. Therefore, where a
woman arrested for murder of a young boy, was left in the custody of villagers while the chowkidar, who
arrested her, left for the police station and she confessed in his absence (Emperor v. Jagiya, 1938, Pat) and
while the accused being carried on a Tonga was left alone by policeman in the custody of Tonga driver and
he told to his criminality to Tonga driver (R. v. Lester, 1985), the confession in each case was held to be
irrelevant.

PRESENCE OF MAGISTRATE: The section recognises one exception. If the accused confesses while in
the police custody but in the immediate presence of magistrate, the confession will be valid. Immediate
presence of magistrate means his presence in the same room where the confession is being recorded. His
presence in the adjoining room cannot afford the same degree of protection against torture. (Zwing Lee
Ariel v. State of MP, 1954, SC)

PROVISO OF SECTION 23 (2): CONFESSION TO POLICE AND CONSEQUENTIAL

DISCOVERIES:

Under the Baritiya Sakshya Adhiniyam, 2023 there are two situations in which confession to police are
admitted in evidence-

a) One is when the statement is made in the immediate presence of magistrate and
b) The second when the statement leads to the discovery of fact connected with the crime. The
discovery assures the truth of the statement and makes it reliable even if it was extorted. This is so
provided under proviso of section 23(2) of the Baritiya Sakshya Adhiniyam, 2023.

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The proviso of section 23(2) is quite apparently laid out as an exception to the preceding clauses which
deals with confession in police custody and other involuntary confessions. Therefore, it seems that the
intention of the legislature is that all objections to the validity of that part of the statement are washed off
which leads to the discovery of an article connected with the crime.

Disclosure alone does not connect the accused with the crime. It has to be shown that there is a close link
between the material objective discovered and its use in the commission of the offense. (Mustaqeen v. State
of Rajasthan, 2011, SC)

SECTION 23(2) AND PROVISO OF 23(2) COMPARED: Privy Council in Pulukuri Kottaya v.
Emperor, 1947, PC explained the relationship between section 23(2) and proviso of 23(2). Their Lordships
said, “The ban was presumably inspired by the fear of the legislature that a person under police influence
might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban, be
the inclusion in the confession, of information relating to an object subsequently produced, the ban will lose
its effect. On normal principles of construction their Lordship think that the proviso of section 26 added by
section 27 (now respectively section 23(2) and proviso of section 23(2)) should not be held to nullify the
substance of the section. In their lordship’s view it is fallacious to treat the fact discovered as equivalent to
the object produced. The fact discovered embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given must relate distinctly to this fact.”

MEANING OF THE FACT DISCOVERED: Discovery of fact means something more than the thing
produced. This discovery of the fact arises by the reason of the fact that the information given by the
accused exhibits his knowledge or mental consciousness. Only the information, which is distinctly related to
the discovery, is provable. The rest of the information has to be excluded. The word distinctly means
directly, indubitably, strictly, unmistakably. The phrase refers to that part of information which is the direct
and immediate cause of discovery. Only such information is admissible whether it amounts to confession or
not. (State of Delhi v. Navjot Sandhu, 2005, SC)

CONSTITUTIONAL VALIDITY UPHELD: In State of UP v. Deoman Upadhayaya, 1960, SC the

statement of the accused to the police and consequential discovery of the gandasa when seen in the
background of his anger with ‘Sukhdei', the borrowing of gandasa, some person having seen him running
towards the tank, taking bath in it and his disappearance, left no doubt that he was guilty and the session
judge accordingly convicted him.

He appealed to the High Court, among others on the ground that section 27of IEA (now proviso of section
23(2) of BSA) was violative of constitution of India. The High Court declared section 27 27of IEA (now

~ 14 ~
proviso of section 23(2) of BSA) to be unconstitutional. The High Court excluded the statement of the
accused and without it there being no not much evidences and therefore, he was acquitted. The state
appealed to the Supreme Court where by a majority, this section was declared to be constitutional and the
conviction of Deoman was restored. The Supreme Court held that the part of the statement of the accused by
which he said that he had killed ‘Sukhdai’ was not relevant. This should be excluded but the rest was
relevant and even then there was sufficient proof of his guilt. The discussion in the Supreme Court cantered
round the constitutional validity of section 27 of the Indian Evidence Act (now proviso of section 23(2) of
BSA).

The court rejected the suggestion that the provision of section 161 of the CrPC (section 180 of BNSS) and
those of 27of IEA (now proviso of section 23(2) of BSA) were discriminatory and therefore violative of
article 14 of the Indian constitution. Under the Code of criminal procedure, if a person, not in police
custody, has given some information to the police in consequence of which something connected with a
crime is discovered, the information is not provable against him, if he is subsequently prosecuted for the
crime. But if he was in police custody at the time when he gave the information, it would have become
provable against him. Therefore, the classification is between a person not in custody and those in custody.
The Supreme Court held that the classification is reasonable. The reason for the classification is to
encourage people not in custody to give information about crime.

SECOND PROVISO OF SECTION 22: CONFESSION OTHERWISE RELEVANT NOT TO

BECOME IRRELEVANT:

Second proviso of section 22 says that a confession otherwise relevant not to become irrelevant because-

 It is made on the promise of secrecy or

 In consequence of deception practiced on accused person or
 When he was drunk or
 It was made in answer to such question of which he need not to have answered or
 He was not warned that he was not bound to make such confession.

SECTION 24 of BSA: CONFESSION OF CO ACCUSED:

When more than one person is being jointly tried for one and the same offense or offenses, they are called
co-accused. Anyone of them is at liberty to confess to his own guilt and his confession will have the full
force of evidence against him. But when he records a confession implicating himself as well as his other co-
accused, that is called the confession of co-accused and the question arises what is its value against the other

~ 15 ~
non-confessing co-accused. Some guidance is to be found in section 24 of BSA, which provides that such a
confession is relevant against all the accused persons. (State of Tamil Nadu v. Nalini, 1999, SC)

The section says that such a confession may be taken into consideration against all of them, leaving the
weight of the confession to the discretion of the court. Their Lordship of Privy Council observed, “The
confession may be considered by the court, but the section does not say that the confession is to amount to
proof. Clearly there must be other evidences. The confession is only one element in the consideration of all
the facts proved in the case. It can be put into the scale and weight with the other evidences.” (Bhubooni
Sahu v. The King, 1949, PC)

In Bhubooni Shau v. The King, 1949, PC Their Lordship laid down that confession of co-accused is not
evidence in strict sense.

In Kashmira Singh v. state of MP, 1952, SC it was held that when confession of the co-accused is proved it
becomes relevant against him and against the person whom he inculpates by such confession but the
evidentiary value of such confession is very weak against such co-accused.

The court pointed out that confession of a co-accused is obviously evidence of very weak type and a man
should not be deprived of his life and liberty only on the basis of uncorroborated confession of co-accused.

In NCT of Delhi v. Navjot Sandhu, 2005, SC it was held that such a confession cannot be given status of
substantive evidence so as to form basis of conviction in itself.

Sir Lawrrance Jenkins in Emperor v. Lalit Mohan, said that such a confession can only be used to land
assurance to the other evidences against an accused. (R. Janki Ram v. State, 2006, SC)

ACQUITTAL OF CONFESSING CO-ACCUSED: Where the confessing co-accused was acquitted of

the main offense and the other accused raised the plea that the confession of such accused should cease to be
admissible, The Supreme Court held that such plea was not tenable. The confessional statement of the co-
accused was recorded by the magistrate under section 183 of BNSS and both the accused were jointly tried.
Therefore, the requirements of section 24 of BSA were satisfied. The evidence became relevant and did not
seize to be so because of the acquittal. (Prakash Dhawal v. State of Maharashtra, 2002, SC)

EVIDENTIARY VALUE OF CONFESSION: Confessions are considered highly reliable because no

rational person would make an admission against himself unless prompted by his conscience to tell the
truth. (State of Delhi v. Navjot Sandhu, 2005, SC).

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The evidentiary value of a confession has been explained by the Supreme Court in a quiet a few cases and
the one among them is the decision of Sarkaria J. in Shankaria v. State of Rajasthan, 1978, SC. The
learned judge said, “It is well settled that a confession, if voluntary and truthfully made, is an efficacious
proof of guilt. Therefore, when in a capital case the prosecution demands conviction of the accused
primarily on the basis of the confession recorded under section 164 CrPC (section 183 of BNSS), The court
must apply a double test-

1. Whether the confession was perfectly voluntary,

2. If so, whether it is true and trustworthy.

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the first test is satisfied, the
court must, before acting upon the confession, reach the finding that what is stated therein is true and
reliable.

If on such examination and comparison the confession appears to be a probable catalogue of the event and
naturally fits in with the rest of the evidences and the surrounding circumstances, it may be taken to have
satisfied the second test.”

RETRACTED CONFESSION: When a person having once recorded a confession which is relevant, goes
back up on it, saying either that he never confessed or that he wrongly confessed, that is called a retracted
confession. When a confession is retracted, the following effects follow-

1. Generally, the retraction of a confession does not create any effect, if the confession was true and
credible.
2. Retraction of confession does not destroy or decrease the evidentiary value of the confession.
3. In case of retracted confession, it is the duty of the court to examine cautiously that whether the
confession was made voluntary or not.
In Bharath v. State of UP, 1971, SC Hidayatullah J. observed, “A court may take into account the
retracted confession but it must look for the reason for the making of the confession as well as for its
retraction and must wait the two to determine, whether the retraction affects the voluntary nature of the
confession or not.”
In Sanjay Dutt v. State of Maharashtra, 2013, SC the Supreme Court observed, “There is no denial of the
fact that the judicial confessions made are usually retracted. Retracted confessions are good confessions if
held to have been made voluntarily and in accordance with the provisions of the law. Corroboration of the
confessional statement is not a rule of law but a rule of prudence. Weather in a given case, corroboration is
sufficient, would depend upon the fact and the circumstances of the case.”

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LECTURE 3:- DYING DECLARATION.

QUESTION: What do you understand by dying declaration what are the essential condition of its
relevancy also mention the evidentiary value of a dying declaration with the help of decided
judgments? (2015, 2016)

ANSWER: DYING DECLARATION: SEC. 26 of BSA

THE PRINCIPLE BEHIND: - Section 26 is an exception to the principal of excluding hearsay how to
evidence. Principle behind this section is that a person who has the firsthand knowledge of the fact of the
case but who, for a reason stated in the section such as death or disability cannot appear before the court,
then his knowledge should be transmitted to the court to some other person.

MEANING OF DYING DECLARATION:-

A dying declaration is a statement oral or verbal related to cause of death or to any of the circumstances of
the transaction which resulted in his death made by a person before dying. The statement will be relevant in
every case or proceeding in which the cause of person’s death comes into question. The clause further states
that such statement are relevant whether the person who made them was or was not, at the time when they
were made under the expectation of death and irrespective of nature of the proceeding in which the cause of
his death comes into question. This clause is a significant departure from the English law. Under the English
law dying declaration is relevant only when the charge is that of Murder or manslaughter. Moreover, such
declaration would be admissible only if the maker was under the under settled and hopeless expectation of
death.

ELEMENTS OF DYING DECLARATION UNDER SECTION 26(a) of BSA:-

 The person who has made the statement must have died.
 Case statement must be late to the cause of death or any of the circumstances of the transaction
which resulted into his death.
 The statement must have been made in a case in which cause of his death came into question.
 Weather at the time of making statement such person was under the expectation of death or not.
 The nature of the preceding maybe either of criminal or civil.

REASON FOR ADMISSIBILITY OF DYING DECLARATION: - The admissibility of dying

declaration is based on Maxim “Moriture Praesumntur Mentiri” which means a person who is about to die
would not lie. It is said that the truth sits on the lips of the person who is about to die.

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Dying declarations are admissible mainly of two reasons:

1) Firstly, the victim being the sole eyewitness of the crime that yes perpetrated upon him.
2) Secondly they are the declaration made by the person under expectation of death are presumed to be
true.

In Pakala Narayan Swami v. Emperor, 1939, PC the main issue before the court was whether the statement
of the deceased to his wife that he was going to the accused was admissible. Their Lordship observed, “It
has been suggested that for the statement making it must be at any rate be near death, that the
“circumstances” can only include acts done when and where that was caused. Their lordships are of opinion
that the natural meaning of the word used does not convey any of these limitations. The statement may be
made before the cause of death has arisen or before the deceased has any reason to anticipate being killed.
The circumstances must be circumstances of the transaction; general expression indicating fear or suspicion
weather of particular individual or otherwise and not directly related to the occasion of death will not be
admissible.

The Supreme Court in Kaushal Rao v. State of Bombay, 1958, SC accepted the principle laid down in
Pakala Narayana Swami. The Supreme Court observed that it was not an absolute rule of law that other
evidence must corroborate a dying declaration. A dying declaration even if uncorroborated can form the sole
basis of conviction but each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made. It cannot be laid down as a General proposition that a dying
declaration stand on the same footing as another piece of evidence and has to be judged in the light of
surrounding circumstances and with the reference to principal governing of weighing of evidences.

THE DECLARANT MUST HAVE DIED:- The person who made a dying declaration must be dead. If
person is able to survive after making a dying declaration then such declaration would not be admissible
under Section 26(a) of BSA as a dying declaration although it may be admissible under section 160 of BSA
(Sec. 157 of Indian Evidence Act) as corroborative evidence.

THE DECLARATION MUST BE AS TO CAUSE OF DEATH OR AS TO ANY OF THE

TRANSACTION WHICH RESULTED IN DEATH:-

Any declaration if it pertains to the cause of the death of the declarant and also as the circumstances that
brought about the death is provable under Sec. 26(a) of BSA as dying declaration.

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Sometimes letter written even 5 year prior to the event are admissible under Section 26(a) of BSA. In case
of Ranjit Singh v. State of Punjab, 1952, HP. In this case deceased has written to his brother that the
relationship with his wife is not cordial and that he also apprehended danger to his life from his wife. So,
these letter which were written by the disease 5 year prior to the incident were sought to be proved. It was
held that the letters are admissible under Sec. 32(1) of IEA as a dying declaration because they alleged of
the circumstances that brought about his death.

In Bhagirathv. State of Haryana, 1997, SC the court held that it was not necessary that while recording
statement of deceased, there must have been intention to use the statement as dying declaration.

THE CAUSE OF THE DEATH OF DECLARANT MUST BEEN QUESTION:- For a dying
declaration to be admissible in evidence, it is necessary that the cause of the death of a person making the
dying declaration must be an issue but not the cause of death of some other person.

In Ratan Gond v. State of Madhya Pradesh, 1959, SC the accused was charged with the murder of a girl
name Baisakhi. According to the prosecution version the mother of the deceased Baisakhi went to forest for
the purpose of plucking wild berries leaving her two daughters Baisakhi and Agni in the house and when
she return back she found Agni alone in the house. When she inquired, Agni informed the mother that the
accused molested her sister Baisakhi and he also caused her death in the course of the transaction. Agni also
made a similar statement to other persons viz. to the sarpanch and then to the police constable. But before
her statement could be recorded in judicial proceeding Agni also died and her statement was sought to be
proved under Sec. 26(a) of BSA. It was held that declaration made by Agni is inadmissible because it is not
as to the cause of her death. It is as to the cause of her sister’s death.

INCOMPLETE DYING DECLARATION:- An incomplete dying declaration is inadmissible but if the

statement, though incomplete in the sense that the declarant could not state all that he wanted to state, yet
whatever, he stated is complete in respect of certain facts, the statement would not be excluded on the
ground of being incomplete. In the case of Abdul Sattar v. State of Mysore, 1956, SC the deceased stated “I
was going home when I came near the house of Abdul Majid Sattar shot me from the bush. He ran away, I
saw”. The dying man was in no condition to answer any further. Their Lordship held, “under the
circumstances the statement, though incomplete was complete insofar as the accused Abdul Sattar having
short the deceased was concerned and could certainly be relied upon.”

DECLARANT MUST BE IN A FIT STATE OF MIND:- In state of Rajasthan v. Teja Ram, 1999, SC
the victim sustained brain injuries. His brain function was impaired. Dying declaration made by him was not
relied upon as he was not in fit state of mind while making the dying declaration.

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In state of Orissa v. Parshuram Naik, 1997, SC the accused alleged to have poured petrol on the body of
wife and let fire. Extensive burn injuries was sustained by the deceased wife. Oral dying declaration to her
mother was not accepted as it was found that the deceased was not medically fit to make the statement.

In Arvind Kumar v. State of Rajasthan, 2009, SC it is well settled that one of the important test of
credibility of dying declaration is that the person who recorded it must be satisfied that the deceased was in
a fit state of mind. For placing implicit Reliance on dying declaration court must be satisfied that the
deceased was in a fit state of mind to narrate the correct fact of occurrence. If the capacity of the maker of
the statement to narrate the fact is found to be impaired, such dying declaration should be rejected as it is
highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be promoted
and physical as well as mental fitness of the maker is to be proved by the prosecution.

EVIDENTIARY VALUE OF DYING DECLARATION:- The relevancy and evidentiary value of dying
declaration has been discussed by the court in various cases. In recent case of Parveen Ali v. state of Assam,
2013, the evidently value of dying declaration has been discussed at length holding that the conviction can
be made solely on the basis of dying declaration. In Kaushal Rao v. State of Bombay, Kusa v.State of
Orissa, and in Meesala Ramakrishnan v. State of Andhra Pradesh it has been held that the law is well
settled that the conviction can be founded solely on the basis of dying declaration, if the same inspires full
confidence. In Ranjit Singh v. State of Punjab it has been held that conviction can be recorded on the basis
of dying declaration alone, if the same is wholly reliable, but in the event there exist any suspicion as
regards the correctness or otherwise of the said dying declaration, the court in arriving at the judgment of
conviction shell look for some corroborating evidences.

There is no rule which prohibits the courts from taking a dying declaration into consideration for the
purpose of sustaining any conviction in the absence of any evidence. But the following consideration would
lend assurance and strength to the credibility of dying declaration-

1. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. If the dying declaration is coherent, consistent and trustworthy and appears
to have been made voluntary, conviction can be based on it even if there is no corroboration.
2. Each case must go by its own facts.
3. A dying declaration is not a weaker kind of evidence than any other piece of evidence.
4. A dying declaration which has been properly recorded by a competent magistrate, that is to say
in the form of question and answers and, as far as practicable, in the words of the maker of the

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 declaration, is reliable. But it is not necessary to record the declaration in the form of question
and answer, if it is in terms of the actual words spoken by the deceased.
5. To test the reliability of dying declaration, the court has to keep in view the circumstances like
the opportunity of the dying man of observation, for example, whether there was sufficient light
if the crime was committed at night, whether the capacity of the declarant was not impaired at
the time of the statement, that the statement has been consistent throughout, that the statement
has been made at the earliest possible opportunity and was not the result of tutoring by interested
parties.

A dying declaration is not necessarily to be recorded by a magistrate. It should inspire confidence and
should not appear to be tutored.

Where for some unexplained reasons the person who noted down the statement was not produced, the
declaration was not accepted as an evidence.(Govinda Narayan v. State of Rajasthan, 1993, SC)

WHERE THERE IS MORE THAN ONE DYING DECLARATION:- In Harbans Lal v. State of
Haryana, 1993, SC two declarations were presented. The doctor recorded one dying declaration and the
other dying declaration was written by a person and attested by Sarpanch. The dying declaration made to the
doctor was held admissible as it has given full description of the accused and there were no inherent faults.
The second dying declaration was held inadmissible because it was not exactly known when it came into
existence and, moreover, it was not mentioned in FIR.

In Harjeet Kaur v. State of Punjab, 1999, SC the circumstances clearly showed the deceased was not a free
person at the time of making first dying declaration. The reasons given, for not considering dying
declaration as voluntary and true were convincing. The second dying declaration cannot be regarded as
untrue because it was contradictory to her earlier statement.

DISTINCTION BETWEEN ENGLISH AND INDIAN LAW:-

1. Under English law a dying declaration is provable only in criminal cases but not in civil cases. Only
in case of homicide the dying declarations are provable under English law, but in Indian law a
dying declaration can be provided in civil as well as criminal cases.
2. The second distinguishing feature is that under English law that dying declaration must have been
made under expectation of death, that is, a person making the dying declaration must be sure and
hundred percent confident of his death. If a person making the dying declaration has even a Ray of

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 hope of survival, then the dying declaration made by him is not admissible. But under Indian law it
is immaterial whether the declaration is made under expectation of death or not.
3. The third distinguishing feature is that under English law a person making a dying declaration must
be competent. He must have capacity to make a dying declaration. It means that dying declaration
made by infant cannot be relied upon. There is no such thing in India law. In Indian law every
person is supposed to be competent person whether he is a person of majority or not. He may make
a declaration.

FIR AS DYING DECLARATION:- A report made by the deceased relating as to the cause of death or as
to any of the circumstances of the transaction which resulted in his death shall be relevant as dying
declaration under Section 26(a) of BSA.

STATEMENT BY GESTURE: - In the case of Queen Empress v. Abdullah the deceased whose throat
was split by the accused was unable to speak. When the name of “Abdullah” was taken she moved her hand
up and down. This was understood to be signed of affirmation and was admissible as dying declaration.

WHERE DECLARANT SURVIVES:- If the person making the statement is not dead his statement would
not be admissible as a dying declaration under Section 26(a) of BSA but it can be used under section 160 of
the Baritiya Sakshya Adhiniyam, 2023 at the time of his examination or as a confessional statement.
When a victim making a dying declaration survives the said declaration does not remain substantive
evidence. (Sunder Singh v. State of Uttaranchal, 2010, SC).The statement in such cases can be used for
contradiction under section 148 of the Baritiya Sakshya Adhiniyam, 2023 (section 145 of Indian
Evidence Act) in case that declarant appears as a witness. (Ram Prasad v. State of Maharashtra, 1999, SC)

SECTION 27

Section 27 of the Baritiya Sakshya Adhiniyam, 2023 (Section 33 of the Evidence Act) deals with
relevancy of certain evidence for proving, in subsequent proceedings, the truth of certain facts therein
stated‟. It runs as follows:

“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it,
is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later state of the same
judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or
is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot
be obtained without „an amount of delay or expense which, under the circumstances of the case, the
Court considers unreasonable:

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Provided––

 That the proceeding was between the same parties or their representatives in interest.
 That the adverse party in the first proceeding had the right and opportunity to cross-examine.
 That the questions‟ in issue were substantially the same in the first as in the second proceedings.

Explanation:- A criminal trial inquiry shall be deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section.

Section 27 of BSA recognises the relevancy of evidence given by a witness in a judicial proceeding to
prove a particular fact when such witness is dead or cannot be found or is incapable of giving evidence
or is kept out of the way by the adverse party or whose presence cannot be obtained without an amount
of delay or expense. It provides that the truthness of a fact can be proved by using the evidence given by
a witness relating to that fact. However such evidence can be used to prove the said fact either in the
same case or in another case, on the circumstances laid down by the said section.

CONDITIONS: - For application of Section 27 of BSA, the following conditions (as applicable
to Section 26) are to be satisfied.

(i) the maker of the statement is dead; or

(ii) cannot be found; or

(iii) has become incapable of giving evidence; or

(iv) his evidence cannot be procured without unreasonable delay or expense; or

(v) Is kept out of the „way of the adverse party.

The first 4 conditions are common to Section 26 and 27. But the 5th condition is peculiar to Section 27.

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LECTURE 4:- RELEVANCY OF JUDGMENT.

QUESTION: What is judgment in rem and judgment in personam? Explain the relevancy of
judgment as per the provisions of Bharitiya Sakshya Adhiniyam?

ANSWE: JUDGMENTS OF COURTS OF JUSTICE, WHEN RELEVANT: SECTION 34- 38

Section 34- 38 of the Baritiya Sakshya Adhiniyam, 2023 (Section 40 to 44 of the Indian Evidence Act),
1872 lay down the provisions relating to Judgment of Court of Justice, when relevant. Section 34 of BSA
deals with pervious judgments relevant to bar a suit or trial. Section 35 deals with the relevancy of certain
judgments in probate etc. jurisdiction. Section 36 deals with relevancy and effect of judgments, orders or
decrees other than those mentioned in Section 35. Section 37 relates to judgments etc. other than those
mentioned in Section 34 to 36, when relevant. Section 38 speaks about fraud or collusion in obtaining
judgment or incompetence of court, may be proved.

KIND OF JUDGMENTS: Judgments are categorized/classified in to two kinds, namely–

1. Judgments in rem; and

2. Judgments in personam

1. JUDGMENTS IN REM: Judgments affecting the legal status of some subject matters, persons or
things are called “Judgments in rem”. E.g. Divorce Court Judgment, grant of probate or administration
etc. Such judgments are conclusive evidence against all the persons, whether parties to it or not.
2. JUDGMENTS IN PERSONAM: Judgments in personam are all the ordinary judgments not affecting
the status of any subject matter, any person or anything. In such judgments, the rights of the parties to
the suit or proceedings are determined.

Under Sections 34 to 38 of BSA, a judgment is not relevant to prove that the plaintiff has filed a false case.
(Hassan Abdullah v. State of Gujarat, 1962 Guj).

DISTINCTION BETWEEN ‘JUDGMENT IN REM’ AND ‘JUDGMENT IN PERSONAM

JUDGMENT-IN-REM JUDGMENT-IN-PERSONAM

Judgments-in-rem is adjudication Judgment-in-personam are all the ordinary judgments

pronounced upon the status of a person or not affecting the status of any subject matter, any
1.
a thing by a competent or a thing by a

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 competent court to the world generally. person or anything.

Judgment of a court in exercise of probate, The judgments of the civil court are the judgments-in-
matrimonial or insolvency jurisdiction personam.
2.
confirming or taking away any legal
character are judgments in rem.

3. It is binding on all persons, whether they It is binding on the parties to the suit only.
are parties to those proceedings or not.

Section 34 of BSA provides for “pervious judgments relevant to bar a second suit or trial.” It runs as
follows: “The existence of any judgments, order or decree which by law prevents any Court from taking
cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to
take cognizance of such suit, or to hold such trial.”

Section 34 of BSA permits evidence of the previous judgment, order or decree, which by law prevents any
court from taking cognizance of a suit or holding a trial, when the question arises whether such court ought
to take cognizance of such suit or hold such trial. The object of Section 34 of BSA is to avoid multiplicity of
suits and to save the precious time of the court. This provision is incorporated under Section 11 of the Code
of Civil Procedure, 1908, which deals with the doctrine of Res-Judicata.

RELEVANCY OF CERTAIN JUDGMENTS IN PROBATE, ETC., JURISDICTION (SECTION 41):

Section 35 of BSA deals with judgments-in-rem, which bind not only the parties and their representatives
but the whole world. A judgment-in-rem under Sec. 35 of BSA shall be conclusive in civil as well as
criminal proceedings. Section 35 runs as follows:

“A final judgment, order decree of a competent Court, in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, which confers upon or takes away from any person to any legal character, or which
declares any person to be entitled to any such character, or to be entitled to any specific thing, not as
against any specified person but absolutely, is relevant when the existence of any such legal character, or
the title of any such person to any such thing is relevant.”

Such judgment, order decree is conclusive proof-

1. That any legal character which it confers accrued at the time when such judgment, order or decree
came into operation;

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 2. That any legal character, to which it declares any such person to be entitled, accrued to that person at
the time when such judgment, order or decree declares it to have accrued to that person;
3. That any legal character which it takes away from any such person ceased at the time from which
such judgment, order or decree declared that it had ceased or should cease; and
4. That anything to which it declares any person to be so entitled was the property of that person at the
time from which such judgment, order or decree declares that it has been or should be his property.

Section 35 of BSA deals with what is known as judgments in re. Under this section a final judgment, order
or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction
which confers upon or takes away from any person any legal character or which declares any person to be
entitled to any such character or to be entitled to any specific thing absolutely (not as against some specific
person) is relevant when existence of any such legal character or title to any such things is relevant.

A judgment in rem under this section shall be conclusive in civil as well as criminal proceedings.

CONDITIONS: For application of Section 35, the following conditions are to be satisfied:

(i) The judgment should be final judgment, not an interim one;

(ii) The court must be competent;

(iii) The judgment must be in exercise of any of the following four types of jurisdictions mentioned in
the Section viz. probate, admiralty, matrimonial and insolvency;

(iv) Such judgment must confer upon or take away from any person any legal character or declare that
any person is entitled to such character, or declare that any person is entitled to any specific thing
absolutely.

RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS OR DECREES, OTHER THAN THOSE

MENTIONED IN SECTION 35 (SECTION 36 of BSA):

According to Section 36, Judgments, Orders or Decrees other than those mentioned in Section 35, are
relevant if they relate to matters of public nature relevant to the enquiry; but such judgments, orders or
decrees are not conclusive proof of that which they state

Illustration: A sues B for trespass on his land. B alleges the existence of a public right of way over the
land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a

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

JUDGMENTS ETC. OTHER THAN THOSE MENTIONED IN SECTIONS 34 TO 36 of BSA,

WHEN RELEVANT (SECTION 37):

Section 37 of BSA provides that judgments, orders or decrees, which are not mentioned in Section 40, 41
are not relevant unless the existence of such judgment, order or decree is a fact in issue or a relevant fact
under some other section of the Evidence Act. It runs as follows:

Judgments, orders or decrees, other than those mentioned in Section 34, 35 and 36 are irrelevant, unless the
existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of
BSA.

ILLUSTRATIONS:

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that matter
alleged to be libelous is true, and the circumstances are such that it is probably true in each case, or in
neither. A obtains a decree against C for damages on the ground that C failed to make out his
justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A‟s wife. B denies that C is A‟s wife, but the Court convicts B of
adultery. Afterwards, C is prosecuted for bigamy in marrying B during A‟s lifetime. C says that she
never was A‟s wife. The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted. A afterwards, sues C for the cow, which B
had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B. C, B‟s son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is
relevant as a fact in issue.

(f) A is tried for the murder of B. The facts that B prosecuted A for libel and that A was convicted and
sentenced is relevant under Section 6 of BSA as showing the motive for the facts in issue.

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FRAUD OR COLLUSION IN OBTAINING JUDGMENT, OR INCOMPETENCE OF COURT,
MAY BE PROVED (SECTION 38 of BSA):

The general rule is, a judgment of a competent court shall be binding on the parties operating as res-judicata
in subsequent proceedings between the same parties. Section 38 contains exceptions to this general rule.
According to Section 38, a judgment is liable to be annulled /impeached on the ground of a) want of
jurisdiction; b) fraud; and c) collusion. It runs as follows:

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under
Section 34, 35 or 36 and which has been proved by the adverse party, was delivered by a Court no
competent to deliver it, or was obtained by fraud or collusion.

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LECTURE 5:- RELEVANCY OF OPINION.

QUESTION: Who is expert? What is the relevancy of Expert Opinion? Explain the evidentiary value
of expert opinion? (2014)

ANSWER: RELEVANCY OF OPINION (SECTION 39-45)

The general rule is every witness is a witness of fact and not of opinion. But under Sec. 39 – Sec.45 of BSA,
a third person who is unaware of the fact may render his opinion on a particular point. This is admissible
and known as ‘Expert Opinion’. ‘Opinion’ here means something more than mere gossip or hearsay. It must
be based on some belief, reasoning or result.

Another general principle is that witness should speak of what he knows and not what he believes. But
section 39- 45 of BSA forms an exception to even this general principle provided the third person is an
expert. The exceptions to the general principle are more prominent then the principles themselves. The
reason is that there are many matters which require professional and specialised knowledge with the court
might not possess and therefore the court shall have to rely on those who possess it.

WHO IS AN EXPERT:-

This section permits only the evidence of an expert to be cited in evidence. Expert is one who is especially
skilled on the matter. But the section does not refer to any particular attainment, standard of study or
experience, which would qualify a person to give evidence as an expert. The question of competency of
witness as an expert is to be decided by the judge himself.

The subject on which an expert is competent to testify are mentioned in section 39 of BSA itself and they
are-

1. Foreign law
2. Matters of science
3. Question of art
4. Identity of handwriting
5. Of finger impression

FOREIGN LAW:-

It means any law, which is not in force in India. A law which is in force in India, is not foreign law even if it
is of foreign origin. In the case of Aziz Bano v. Mohd Ibrahim Hussain, 1975 the Allahabad High Court

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observed that Shia law on marriage though of foreign origin cannot be said to be foreign law because it is
the law of land and in force in India.

SCIENCE OR ART:-

Expert opinion is relevant on all questions on points of science or art. The term ‘science’ or ‘art’ have not to
be taken in any technical sense, but as including anything that requires specialised knowledge, skill, study or
experience or is otherwise beyond the comprehension of layman. Medical evidence dance about the ages,
soundness of Mind, cause of Death etc. are example which involves science. Genuineness of musical tone,
photography, painting etc. are examples of art and the opinion of artist, art critic, Museum officers, dealers
are admissible.

However, no formal qualifications are necessary to qualify a witness as an expert. An instructive illustration
is to be found in the decision of Mysore High Court in Abdul Rahim v. State of Mysore, 1972 where the
opinion of a professional goldsmith as to the purity of a gold in question was held to be relevant as the
opinion of expert, though he had no formal qualification, his only qualification being his experience.

In Hanumant v. state of Madhya Pradesh, 1952, SC it was held by the Supreme Court that opinion of a
person in reference to a particular typing is made by a particular typing machine, is not an expert opinion.
However this judgment was largely criticized on the basis that the case contains the question which is
beyond the knowledge of an ordinary person. Therefore, it must be considered a question of science or art.

IDENTITY OF HANDWRITING OR FINGER IMPRESSION:-

When the court has to decide about the identity of handwriting of a certain person or The Identity of certain
person’s finger impression, the court may receive the evidence of person who has acquired and expertise on
the on the matter. Apart from person possessing professional qualification on the subject, the court may
receive the evidence of a person who is otherwise acquainted with the subject. In R. v. Silverlock, 1894, QB
the court observed that “a solicitor might be treated as an expert in handwriting even if he has acquired his
knowledge as an amateur.”

EVIDENTIARY VALUE OF EXPERT EVIDENCE:-

The Act only provides about the relevancy of expert opinion but gives no guidance as to its value. The value
of expert opinion has to be viewed in the light of many adverse factors.

1. Firstly, there is a danger of error or deliberate falsehood.

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 2. Secondly, his evidence is an opinion and human judgment are fallible.
3. Thirdly, it must be borne in mind that an expert witness however, impartial he may wish to be, is
likely to be unconsciously prejudiced in favour of one side which calls him.

These factors seriously reduce the probative value of expert evidence. The reliability of such evidence has
therefore, to be tested the same way in which any other piece of evidence is tested. The court should,
therefore, call upon the expert to explain the reason for his opinion and then form its own opinion as to
whether or not the expert opinion is satisfactory. The court should not surrender its own opinion to that of
the expert. In the case of Ram Narayan v. state of Uttar Pradesh, 1973, SC the Supreme Court upheld
conviction of the accused on the charge of kidnapping on the basis of the evidence of an expert that the
letter by which the ransom for the child was demanded was in the handwriting of the accused. Dua J.
himself compared the handwriting in question with a proven handwriting of the accused and satisfied
himself and held that no further corroboration was necessary.

In Murari Lal v. State of Madhya Pradesh, 1980, SC the Supreme Court concluded that “we are firmly of
opinion that there is no rule of law nor any rule of prudence, which has crystallized into a rule of law that
the evidence of the opinion of handwriting expert must never be acted upon unless substantially
corroborated but having due regards to the imperfect nature of the science of identification of handwriting,
the approach should be one of caution. Reason for the opinion must be carefully probed and examined. All
other relevant evidence must be considered. In appropriate cases co-operation must be sought. In cases
where the reason for the opinion are convincing and there is no reliable evidence throwing a doubt, the
uncorroborated testimony of a handwriting expert may be accepted.

However an expert should be an independent person and not an associate of the company in whose favour
his opinion was expressed. (Novopan India Limited v. CCE & Company, 1994)

In Mohammed Aman v. State of Rajasthan, 1997, SC it was observed that it is unsafe to accept footprints
evidence, when the sample footprints were not taken before the magistrate. In Pritam Singh v. State of
Punjab, 1956, SC it was observed that the science of identification of footprints being a rudimentary science
cannot be relied upon. However, the track evidence can be relied upon as circumstances which along with
other circumstances would point to the identity of the culprit though by itself it would not be enough to
carry conviction in the minds of the Court.

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 UNIT III

LECTURE 1:- FACTS NEED NOT TO BE PROVED.

QUESTION: What are the Judicial Noticeable facts? Explain with the help of relevant provisions of
Bhartiya Sakshya Adhiniyam? (2015) (UP PCS-J 2023)

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 BNS, where the parties to a suit are not required to provide evidence in favour of their
assertions.

Section 51 to Section 53 of the BNS 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.

Facts which are judicially noticeable need not be proven

According to Section 51 of the BSA, the facts of which the Court will take judicial notice need not be
proved.

Simply put, any judicially noticeable fact does not require to be proven before the Court. Now for
comprehending this statement, first understanding the meaning of the clause “taking judicial notice” is
necessary.

This expression means recognizing something without proof of being existing or truthful. 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. The clear 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.

According to Lord Stephen, certain facts are so notorious by nature or have such authentic assertion and
accessible publications that they do not require any proof. The Court, if it is unknown to such facts, can
inform itself about them, in prior to taking evidence. These facts are deemed to be judicially noticed.

This Section has to be understood in union with Section 52, reckoning the instances when the Court shall
take judicial notice such that adducing any evidence would be unnecessary.

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Facts of which the Court must take judicial notice

According to Section 52 of the BSA, 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;

This refers to the Articles contained in the Army Act (XLVI of 1950), for soldiers, officers, etc.

 The Parliamentary proceedings of the United Kingdom, the Indian Constituent Assembly, and any
other provincial or State Legislature;

This refers to all legislative and other proceedings by the Parliament of the United Kingdom. Indian
Constituent Assembly referred to the Central Legislature of the British India, however, subsequent to
Independence it refers to the legislative and other proceedings held in the Upper House and the Lower
House of the Parliament. The provincial or the State Legislatures refer to the Legislative Assemblies located
in all the States constituting the Union of India. For Eg: the State of West Bengal, Andhra Pradesh,
Maharashtra, etc.

 The accession and the sign manual of the existing Sovereign of the United Kingdom and Ireland;

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. Here the Sovereign refers to the King or Queen of the United Kingdom.

 The Seals of all the Indian Courts, the seals of all the Courts outside India established under the
jurisdiction of the Central Government or the Representative of the Crown, the Seals of the
Admiralty Courts and of Public Notaries, and all other seals which any person is authorized of
using under the Constitution or a Parliamentary Act of the U.K. or an Act or Regulation having a
legal operation in India;

 The accession to office, names, titles, functions, and signatures of the persons occupying any
public office, in any state, if the fact of their appointment has been declared by notification in the
Official Gazette;

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  The recognition of the existence, title, and national flag of every State or Sovereign by the
Government of India;

 The time divisions, the geographical divisions of the world, public festivals, facts and holidays
which are promulgated by notification in the Official Gazette;

 The territories which are located under the paramountcy of the Government of India;

 Any “notification” related to commencement, continuance, and termination of animosity

between any other State or body of persons and the Government of India;

In simpler words, any declaration by the Government of India in relation to the beginning of hostility,
continuation of hostility, and end of such hostility. For Eg: Declaration of War, continuation of war, and end
of war.

 The identity of the judicial officers and members, including their deputies, subordinate officers,
assistants, including all the officers acting towards executing the judicial process. Also of all the
advocates, the attorneys, the proctors, the vakils, the pleaders and other persons legally
authorized to appear or act before the Court;

 The rule of the road, either at land or at sea.

In case of road, the horses and all other forms of vehicle should keep to the left side of the road. At sea, it is
the rule that ships and steamboats, on coming across, shold port their helms for passing on the port or left
side of each other; steam boats should stay away from the route of sailing ships; and every vessel, while
overtaking another vessel should stay away from its way.

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.

Facts admitted need not be proved

According to Section 53 of the BSA, no fact requires to be proved in any suit which the parties to the suit,
or their agents agree of admission at the hearing, or which they agree to admit in writing, prior to the

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hearing or which they under any existing rule of pleading are deemed to have been admitted through their
pleadings.

However, the Court by exercising its discretionary potency may require the admission of such facts in some
other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the hearing.

2. Facts which the parties to the suit or their agents agree to admit, prior to the hearing, in writing.

3. Facts deemed to be already admitted by the parties to the suit through pleadings.

Case laws

Onkar Nath and Ors v. the Delhi Administration

In this case, the appellants were Union Leaders of the Northern Railwaymen’s Union. They were accused of
instigating other workmen towards striking and were booked under Rules 118 & 119 of the Defence Of
India Rules, 1971. They were sentenced with 6 months of rigorous imprisonment by the Metropolitan
Magistrate of Delhi. The conviction order was upheld in a Revision Appeal by the Additional Sessions
Judge of the Delhi High Court.

However, the previous judicial decisions were set aside by the Supreme Court, which observed that mere
summary instead of the exact words cannot be deemed as the ground for conviction. The statement of the
only witness may although be truthful cannot be relied upon, in absence of the exact words which were
delivered at the meeting by the accused. The list of facts of which the Court shall take Judicial notice under
Section 51 to be read with Section 52 is non-exhaustive, and shall, therefore, depend upon the discretion of
the Court and vary from case to case.

Conclusion

In the light of the above provisions from the BSA and the judicial decisions, it can be concluded that facts
judicially noticeable by the Courts, such as laws operating in India; articles of war; governmental seals;
facts related to legislative, executive and judicial proceedings in India or any other Sovereign or State
recognized by the government of India; the rule of the road, at the land or at sea, etc; need not be proved by
the parties to a Suit.

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It is imperative for providing evidence under Section 52 of the BSA that exact words and not the gist of the
assertion is necessary for the purpose of conviction as mere gist is insufficient. Also, every notification or
order made by the Central Government under the empowerment of any legislation is deemed as an operating
law under Section 52.

Also, the facts admitted by the parties to a suit either prior to or at the hearing by themselves or their agents
need not be endorsed with evidence. Such admission includes written admission.

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LECTURE 2:- RULE OF DIRECTNESS OF ORAL EVIDENCES.

QUESTION: What do you understand by directness of oral evidence? Explain with the help of
relevant case laws? Are there any exceptions to the rule of directness of oral evidence? (2016, 2018)
(UP PCS-J)

ANSWER: RULE OF DIRECTNESS: SECTION 55 of the BSA

Oral evidence must be direct. This means that a witness can tell the court of only a fact of which he has the
first and personal knowledge in the sense that he perceived the fact by any of the five senses. Where, for
example, the question is whether a particular statement was made, a person who heard the making of this
statement may give evidence in court that it was made in his presence or hearing. This will be direct oral
evidence.

If, on the other hand, the statement was not made in his presence or hearing and he subsequently came to
know of it through some other source, he cannot appear as a witness, for his knowledge is derived
knowledge and is nothing but hearsay and it is a maxim of law that hearsay evidence is not relevant. It has
been observed in R v. Eriswell, 1870 “No one ever conceived that an agreement could be proved by a
witness swearing that he heard another say that such an agreement was made.” This is why section 60
requires that oral evidence must be direct, and then gives the meaning of direct oral evidence.

REASON FOR EXCLUSION OF HEARSAY EVIDENCE: The reason for the laxity is that the law
cannot afford to help to hold the social and psychological reality out of the Court room. People’s memories
are fragile and short. Details fall out of mind rapidly with time. Subsequent publicity, discussions and
suggestive questioning all exert their influence. This may lead to the exclusion of evidence which is superior
in trustworthiness to evidence which is freely admitted. To minimize the chances, the court have modified
the rigid rule as to direct evidence by a number of exceptions.

The section 55 of BSA, thus, excludes hearsay evidence. Hearsay means the statement of a witness not
based on his personal knowledge but on what he heard from others.

Thus in all cases the evidence has to be that of a person who himself witnessed the happening of the fact of
which he gives evidence in whatever way the fact was capable of being witnessed. Such a witness is called
an eye-witness or a witness of the fact and the principle is known as that of direct oral evidence or of the
exclusion of hearsay evidence.

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FOR EXAMPLE: -In R. v. Gibson, 1887, QB the accused was prosecuted for causing hurt by throwing a
stone at the prosecutor. So soon as he was hit by the stone, a woman who saw a man throwing the stone
drew his attention towards the house and said, “The person who threw the stone went in there.” Very soon
thereafter he was caught and arrested in that house. But the above statement was held to be not relevant. The
prosecutor himself had not seen any person throwing a stone at him and their after entering a particular
house and, therefore, the statement was hearsay.

EXCEPTION TO HEARSAY: The law regarding hearsay evidences has been described by House of
Lords to be technical rather “absurdly technical” (Myers v. Director of Prosecution, 1965). It is very
difficult to make any general statement about the law of hearsay evidences which is entirely accurate. The
rule has never been absolute. A number of exceptions have become well established-

1. RES GESTAE (SECTION 4 of the BSA):

The statement of a person may be proved through another person who appears as a witness if the statement
is a part of the transaction in issue. It has been said that the rule admits of certain carefully safeguarded and
limited exceptions one of which is that words may be proved when they form part of the res gestae.

2. ADMISSION AND CONFESSION:

An admission of liability or confession of guilt which takes place outside the court is proved through the
testimony of a witness to whom the admission or the confession was made. Such a witness is not a witness
of fact, for he had not seen or observed the main occurrence through any of his senses, but had only heard
about it from the mouth of the party who admitted his liability or confessed to his guilt. It follows that
admission and confession constitute an exception to the hearsay rule.

3. STATEMENT RELEVANT UNDER SECTION 26:

Statement which are admitted under Section 32 are mostly the statement of a deceased person or persons
who are not available as witness. The evidence of their statement in the circumstances mentioned in the
section is received through the testimony of a person who heard their statement or otherwise acquired
knowledge of the statement. The evidence of such a statement is, therefore, the evidence of hearsay and is
especially declared to be relevant.

4. STATEMENT IN PUBLIC DOCUMENTS:

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Statement in public documents, such as, the Act of Parliament, official books and registers, can be proved
by the production of the document and it is not necessary to produce before the court the draftsman of the
document.

5. EVIDENCE IN FORM OF PROCEEDING:-Section 27 of the BSA, provides that evidence given

by the witness in a proceeding can be used as evidence of the truth of the fact is stated in any
subsequent proceeding between the same parties and their privies, provided that the witness has died
or is, for some other reason, unavailable.
6. STATEMENT OF EXPERTS IN TREATIES SECTION 55 PROVISO:

The proviso of Sec. 55 of BSA recognises this exception. it says that the opinions of expert expressed in
any treaties commonly offered for sale and the grounds on which such opinion are held, may be proved by
the production of such treaties if the author is dead or cannot be found or has become incapable of giving
evidence, or cannot be called as witness without an amount of delay or expenses which the court regards as
unreasonable. Thus the opinion of an expert can be cited in his absence only if it has been expressed in a
book form and the expert himself is either dead or otherwise unavailable as a witness.

The precaution in using such evidence was thus explained by Kripal J. of Supreme Court in Hashmatullah
v. State Of MP, 1996, SC “every article published or a book written cannot ipso facto be regarded as
conclusive or worthy of acceptance. What is stated therein may only be a view of the author and may not be
based on the data which is scientifically collected from a reliable source.”

7. MISCELLANEOUS [WHETHER EXCEPTION CAN BE EXTENDED]:-

In Woodward v. Goulstone, 1886, LORD HARSCHELL expressed himself against the desirability of
extending the exceptions. His Lordship said “it appears to me that if that view be adopted the extension of
these principles to the cases like the present would equally afford authority for many additional exceptions
hitherto unknown to the law and I cannot help feeling that for the courts to add at will from time to time any
new exception which appears to be capable of being supported in principle similar to those which have been
long established would be introducing a dangerous uncertainty into the law of evidence.”

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LECTURE 3:- PRIMARY AND SECONDARY EVIDENCES AND PUBLIC AND PRIVATE
DOCUMENTS

QUESTION: What are the primary evidences and secondary evidences?

ANSWER: PROOF OF CONTENTS OF DOCUMENTS (SEC. 56 of BSA)

Document has been defined in Sec. 2 of the Act. It reads, "Document means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that matter". The most common
document with which we have to deal is a document, which is described by letters. The contents of
documents must be proved either by primary or secondary evidence. It means that there is no other method
allowed by law for proving the contents of documents.

PRIMARY EVIDENCE (SEC. 57 of the BSA)

Primary evidence means the original document itself produced for the inspection of the court.

According to section 57 Of the BSA, the expression 'primary evidence' includes:

1. The document itself produced for the inspection of the Court.

2. Explanation 1.— Where a document is executed in several parts, each part is primary evidence of
the document.

3. Explanation 2.— Where a document is executed in counterpart, each counterpart being executed by
one or some of the parties only, each counterpart is primary evidence as against the parties executing
it.

4. Explanation 3.— Where a number of documents are all made by one uniform process, as in the case
of printing, lithography or photography, each is primary evidence of the contents of the rest; but,
where they are all copies of a common original, they are not primary evidence of the contents of the
original.

5. Explanation 4.— Where an electronic or digital record is created or stored, and such storage occurs
simultaneously or sequentially in multiple files, each such file is primary evidence.

6. Explanation 5.— Where an electronic or digital record is produced from proper custody, such
electronic and digital record is primary evidence unless it is disputed.

7. Explanation 6.— Where a video recording is simultaneously stored in electronic form and
transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

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 8. Explanation 7.— Where an electronic or digital record is stored in multiple storage spaces in a
computer resource, each such automated storage, including temporary files, is primary evidence.

SECONDARY EVIDENCE (SEC. 58 of the BSA)

Secondary evidence of a document is defined in Sec. 58. It includes the following:

i. Certified copies given under the provisions hereinafter contained;

ii. Copies made from the original by mechanical processes which in themselves ensure the accuracy of
the copy, and copies compared with such copies;

iii. Copies made from or compared with the original;

iv. Counterparts of documents as against the parties who did not execute them;

v. Oral accounts of the contents of a document given by some person who has himself seen it;

vi. Oral admissions;

vii. Written admissions;

viii. Evidence of a person who has examined a document, the original of which consists of numerous
accounts or other documents which cannot conveniently be examined in Court, and who is skilled in
the examination of such documents

The most unique amongst the types of secondary evidences is the oral account of the contents of a
document. But, there are two conditions for the relevancy of such evidence.

 Firstly, the party offering oral evidence must be entitled to give secondary evidence of the document.
The circumstances in which secondary evidence can be given are listed in Sec. 60 of the BSA. Thus
any one of the circumstances mentioned in Sec. 60 of the BSA should exist so as to enable the party
to give secondary evidence of the document in question, for example, that the original has been lost
or destroyed.
 The second condition is that oral account of the contents of a document must be that of a person who
has himself seen it. Once these conditions are satisfied the party can give oral evidence of the
contents of the document even if he has an attested copy in his possession.

The above-mentioned types of secondary evidence do not constitute as between themselves the degrees of
secondary evidence. All the categories mentioned are of equal ranking. Law makes no distinction between
one class of secondary evidence and another.

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 The Allahabad High Court has held that Sec. 63 (now sec. 58 of BSA) is not exhaustive of all the kinds of
secondary evidence. The Court allowed evidence of draft notes from which the final notice was prepared.
The court observed that Sec. 58 of the BSA is not restricted to its five clauses but leaves enough scope for
cases, which do not strictly fall within any of those enumerated therein. The court said that usage of the term
'includes'; leaves some scope for a case like the present one. The court must however, be satisfied that the
document sought to be introduced as secondary evidence is a faithful and accurate reproduction or draft of
the final document whose copy it purports to be.

Newspaper reports do not come within the scope of secondary evidence. In the case of Quamarul Islam v.
S.K. Islam, AIR 1994 SC 1773 the Supreme Court didn't take into account a newspaper report of speech of
a winning candidate. The court said the reporter should have been produced or at least his original report
should have been submitted, In U. Sree. v. U. Srinivas (2013) 2 SCC 114, it is reiterated that mere
admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of court to
decide question of admissibility of a document in secondary evidence before making endorsement thereon

The question was whether a Photostat copy of a letter alleged to have been written by the wife to her father
could have been admitted as secondary evidence. The High Court observed that when the said letter was
summoned from the father, he denied its existence. Thus, the High Court opined that when the efforts were
made to get the primary evidence (i.e. the aforesaid letter) and it could not be obtained, the secondary
evidence (i.e. the Photostat copy of that letter) could be adduced and that would be admissible under Section
60 of the BSA.

Mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the
court to decide the question of admissibility of a document in secondary evidence before making
endorsement thereon. In the present case, the Family Judge (i.e. the trial Judge) has not discussed anything
relating to foundational evidence. The High Court has only mentioned that when the letter was summoned
and there was a denial, the secondary evidence is admissible. Such a view is neither legally sound nor in
consonance with the pronouncements of the Supreme Court. Hence the said photocopy of the letter was
inadmissible in evidence.

PUBLIC DOCUMENT (SEC.74 (1) of BSA)

Section 74 (1) lays down two kinds of public document:

1. Document forming the acts or record of the act of sovereign authority, namely, the Parliament and the
Legislative Assemblies, or of the official bodies and tribunals, and of public offices, legislative, judicial

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 and executive, of any part of India or of the Commonwealth, or of a foreign country, are public
documents.
2. Private documents which are registered in public offices also become public documents. For example, the
memorandum and the article of company are registered with the registrar of companies and, therefore,
they are public documents.

In Kunti Devi v. Radheshyam, 1978, All. a private document, such as, for example, an application for a
licence, which is filed in Government office and is produced therefrom does not become a public documents
so as to dispense with the necessity of primary by primary evidence.
In State v. Bhola Pal, 1995a post-mortem report is not a public document so as to amount to proof of
identity of the dead without producing the doctor in evidence.
In Kabul Singh v. Ram Singh, 1986,All.An agreement entered into between a Maharaja setting up a
Gurdwara and statutory body constituted by the central government for management of place of worship,
was held to be a public document and, therefore, requiring no formal proof.
In Faisal Shaikh v. Abdul Rehman Mia, 1991A private waqf deed which is recorded in office of sub-
registrar is a public document. This should be compared with the decision of Guwahati High Court where it
was held that a private sale deed registered under Indian Registration Act, is not a public document and
therefore a certified copy is not admissible in evidence under section 76 of the BSA. (Narattam Das v.
Masaddar Ali 1991). In this case the court followed the Privy Council’s judgment in Gopaldas v. Thakur ji,
1943, PC where their lordship held at the original receipt executed by any individual and registered under
the Indian Registration Act is not a public record of private document within the meaning of section
74(1)(b) as the original has to be returned to the party under section 61(2) of Registration Act.
Entries made by a police officer in the site inspection map and side memo have been held to be public
document.(Rajasthan State Road Transport Corporation v. Nand kishor, 2001).
A certified copy of power of attorney registered in office of sub-registrar has been held to be public
document within the meaning of section 74. It was accordingly admissible under section 75 of the BSA.
In State v. K. Narsimhan Chari, 2005, SC and order sanctioning prosecution of an officer has been held to
be a public document. In Roshan Lalv. Jagdish Chand, 2008 record of development authority have been
held to be public document.
In State of Andhra Pradesh v. J.K. traders of Ramakrishna, 70 M.M. Theatre, 2011A certificate as to
damage caused to the property of the petitioner in riots issued by District Collector was held to be not a
public document.
In Shyam Lal v. Sanjeev Kumar, 2009, SC the school leaving certificate is a document which falls within
the ambit of section 74 Of the BSA. It is admissible per se without formal proof.

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In Bhai Jayanti Nanda v. Jagannath Mahaprabhu, 2014 a plaint is not a public document. The pleading of
a party have been held to be not in a category of public document. Soumendra Kumar Chainyv. Utkal
University, 2008 a certified copy of written statement filed in a court is not admissible because it is not a .
In Anita Malhotra v. apparel export Promotion Council, 2012, SC it was held that a certified copy of
annual return of company filed with the registrar of companies under Companies Act has been held to be a
public document under section 74(1)(b) Of the BSA.

S.N. PUBLIC DOCUMENT PRIVATE DOCUMENT

Public document has prepared by public Private documents are those documents which are
servants in discharge of his public duties. prepared by person for his private interest under his
1.
private right.

Public documents are available for Private documents are kept in custody of the person to
inspection in public offices for public whom it belongs and it is not available for general
2.
during appointed time after payment of inspection to public.
fixed fees.

The secondary copy of public document is Before approving one of condition laid down under
to be admitted in judicial proceedings. section 60 of the BSA the secondary evidence of
3.
original document is not to be admitted in judicial
proceedings.

4. As general rule, the public document is As general rule, the private document is to be proved
proved by secondary evidences. by original i.e. by primary evidence.

The court is bound with Resume the No presumption is made about genuineness of original
genuineness of public document from their document from secondary evidence of private
5.
duly certified secondary copies. document except in some exceptional circumstances.

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LECTURE 4:- CONDITIONS IN WHICH SECONDARY EVIDENCES ARE ADMISSIBLE.

QUESTION: Mention those conditions in which secondary evidences are admissible? Explain the rule
relating to the notice as to the admissibility of secondary evidences? (2017)

ANSWER: CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY

BE GIVEN (SEC. 60 of BSA)

The circumstances in which secondary evidence can be given are strictly regulated by the Act. Such
circumstances are listed in Sec. 60 of BSA. The section provides that secondary evidence can be given in
the following cases:-

1. When the original is shown or appears to have been in the possession or power-

(a) Of a person against whom the document is sought to be proved.

(b) Of any person out of reach of, or not subject to the process of the Court, or

(c) Any person legally bound to produce it, and although due notice has been given to him in accordance
with the terms of Sec. 64 of BSA, he does not produce it.

2. When the existence, condition or contents have been proved to be admitted in writing by the party
against whom the document is to be proved or by his representative-in-interest.

3. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or neglect, produce it in reasonable time.

4. When the original is of such a nature as not to be easily movable. This would include case of bulky
documents.

5. When the original is a public document within the meaning of Sec. 74.

6. When the original is a document of which the BSA or any other law of the country permits
certified copies to be given in evidence.

7. When the original consists of numerous accounts or other documents which cannot be conveniently
examined in the Court and the fact to be proved is the general result of the whole collection.

Types of secondary evidence in different situations

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Where the documents is in the possession of a party who does not even after notice produce it, or when the
original has been lost or destroyed or when it is not easily movable, any kind of secondary evidence can be
given. When the contents of the document have been admitted by the party against whom it has to be proved
his written admission can be given as secondary evidence.

Where the original is a public document or is a document of which the law permits certified copies the only
secondary evidence admissible is that of certified copies and no other secondary evidence can be given.
Where the original is a bulky document, which cannot be conveniently examined in the Court, the only kind
of secondary evidence allowed is the evidence of the general result of the document given by a person who
has himself examined it and is an expert or is skilled in the examination of such documents.

In M/s. Prakash Chand Kapoor Chand Vs. Inderjit Singh, 2006 (3) RCR (Civil) 700, it was observed that
for leading secondary evidence of original document, applicant must establish the execution and existence
of the original and loss thereof to make out a prima facie case for permission to lead secondary evidence. If
the applicant has been holding photocopy of the original which he wants to adduce in secondary evidence,
he must prove as to how and from where he obtained the same in case the document was not required to be
retained in duplicate or triplicate. If the applicant fails to lay such foundation for permission to lead
secondary evidence, he is not entitled to the same.

In Marwari Kumhar v. Bhagwan Puri Guru Ganeshpuri, 2000 SC, the Court observed that the ordinary
copy of the judgment which is a public document is admissible in evidence, when the case of the party that
the original was no longer available in Court records and the certified copy was lost has not been
disbelieved.

RULE AS TO NOTICE TO PRODUCE (SEC. 64 of BSA)

Clause (a) of Sec. 60 of BSA lays down that where the original document is in the possession of an
opponent he should be given notice to produce the document and if he fails to comply with the notice,
secondary evidence of the document becomes admissible. It is in reference to this that Sec. 64 of BSA lays
down rules as to notice to produce original documents. The section requires that the party who has
possession of the original or his attorney or pleader, should be given a notice to produce. Notice should be
given in a manner as is prescribed by the law in the particular case and if there is no law on the point, such
notice should be given as the Court considers reasonable under the circumstances of the case.

Exceptions - When notice not necessary

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Such notice is, however, not necessary in the following cases and secondary evidence can be given without
notice. (1) When the document is a notice by itself.

Illustration One K was a director of a company. He was charged for having wrongfully kept possession of
articles belonging to the company. The defence of K was that a sum of Rs. 29450 was due to him from the
company as arrears of salary, for which he had issued a registered notice to the directors of the company and
hence he was prosecuted. At the trial, the accused filed a certified copy of that notice. He did not give to the
company a notice to produce the original notice. The magistrate refused to admit the paper in evidence on
the ground that the original had not been summoned. His Lordship of the Madras High Court held, "When a
document sought to be summoned is itself a notice sent by one party to the other and a copy of the notice is
produced by the sender, it seems to me that under Sec. 64 it is not obligatory to summon the original
notice."

(2) When the nature of the case itself makes it clear to the party in possession that he will be required to
produce it. In a prosecution case under Motor Vehicles Act, 1939 (Sec. 112) the owner and driver know the
requirement to produce the original permit. If they do not care to produce the original, the prosecution is
entitled to produce secondary evidence. The rational is that a party who fails to produce original which is
likely to throw light on the point of controversy, must be subjected to an adverse inference that it would
have gone against the party's own contention on the point.

(3) When it appears or is proved that the other party has obtained possession of the original by fraud or
force. (4) When the adverse party or his agent already has the original in the court.

(5) When the adverse party or his agent has admitted that the original has been lost.

(6) When the person in possession of the original is out of reach of the Court or is not subject to the process
of the court, for eg., that he is a foreign ambassador and, therefore, the court has no jurisdiction over him.

Effect of Refusal to Produce Original after Notice

Subject to the exceptions mentioned above, where the original is in the possession of the opposite party, a
notice has to be given to him to produce the original and it is only upon his refusal to do so that secondary
evidence can be given. But, there may arise a situation, where the opposite party fails to produce the original
when demanded, but at a subsequent stage of the trial offers to produce the original one. He cannot be
allowed to do so. This was the rule laid down in the case of Doed Thomson v. Hodgson, (1860) 9 L.J. Q. B.

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327. Therefore, if a person had an opportunity, and had declined to produce the writing he can't afterwards
bring forward its content.

Where the original rent note was alleged to be in the possession of the opposite party and he did not produce
it despite several notices and adjournments, it was held that the plaintiff's application for production of
secondary evidence should not have been rejected on the ground that the copy of the note was of doubtful
veracity (Nawab Singh v. Inderjit J. Kaur, AIR 1999 SC 1668}

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LECTURE 5:- PROOF OF HANDWRITING.

QUESTION: What are the ways by which handwriting of a person is proved in the court? (2015)

ANSWER: PROOF OF SIGNATURE AND HANDWRITING OF PERSON ALLEGED TO HAVE

SIGNED OR WRITTEN DOCUMENT PRODUCED (SEC. 65 of BSA)

Mere filing of a document in a Court is not enough to make the document a part of the record. This is
preliminary to be attended to before the content of the document can be regarded as evidence. This is called
the authentication of writing or the proof of its genuineness. This section lays down that when a document
filed before a Court, is alleged to have been signed or written wholly or partly by any person it must be
proved, that it was signed or written by that person whose signature or writing it purports to be. The
executant can be called to prove his own handwriting and signature. Where the document is written by one
person and signed by another, the handwriting of the former as well as that of the latter have to be proved.

The modes of proving a signature are as follows:

1. By calling a person who signed or wrote a document.

2. By calling a person in whose presence the document was signed or written.

3. By calling a handwriting expert.

4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to
be singed or written.

PROOF AS TO ELECTRONIC SIGNATURE (SEC. 66 of BSA)

Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to
have been affixed to an electronic record the fact that such electronic signature is the electronic signature of
the subscriber must be proved

PROOF OF EXECUTION OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED (SEC. 67 of

BSA)

The word 'execution' means that the party by affixing his signature or mark has signified to the contents of
the document in the presence of at least two witnesses. These witnesses are known as attesting witnesses
and the documents will be signed with their addresses as a proof that the document has been executed in
their presence. According to Sec. 67 of BSA, whenever a document which requires compulsory attestation is

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produced before the Court as documentary evidence, then at least one attesting witness shall be called and
examined to prove the execution of the document. The principle will apply only if at least one of the
attesting witnesses is alive, capable of giving evidence and subject to the process of the Court. The section
further provides that no attesting witness need be called in the case of document not being a will which has
been registered according to provisions of Indian Registration of 1908. But, if the party whose signature the
documents purports to bear has specifically denied it then at least attesting witness shall have to be called.
Thus an examination of attesting witness is necessary only when the execution of the document has been
specifically denied. If not so denied, the evidence furnished by the registration certificate under Sec. 63 of
the Registration Act coupled with the presumption under illustration (e) of Sec. 119 of BSA would be more
than sufficient.

Where in a case of a 'will' the only attesting witness surviving and summoned was able to prove nothing, the
will was held to be not proved. {Rameshwari Devi v. Syham Lal 1980 All. Where the defendant admitted
that the mortgage deed was executed but that its purpose was to circumvent the new Rent control legislation
it was held that execution of deed was not specifically denied and therefore, it was not necessary to call any
attesting witness. {State of Haryana v. Raj Kaur, AIR 2001 P & H 322}.

The legal requirement is complied with when one of the attesting witnesses is produced. Neither it is
necessary to produce the other witness even if available, nor is there any obligation to explain why the other
witness has not been produced, then what is to be done if no attesting witness is available? Sec. 68 of BSA
provides the answer.

In the case of Rasommal I. Fernandez v. Joosa Mariyan, 2000 SC; the question of proof of execution in
suit for partition of house. Plaintiff denied the execution of gift deed. It was held that when the execution of
gift deed was denied by executant there was no need of calling the attesting witness but the denial should
not be vague. While recording findings as to denial, pleading of the parties must be considered. But if the
defendant denies that execution of deed other than will, the attesting witness must be called but if the
plaintiff himself denied the execution of deed attesting witness need not be called.

It has been held that if one attesting witness is called and he resiles, the document may be proved by other
evidence and the other attesting witnesses need not be called. (Hassan Ali vs. Gurudas Kapali, 1929 Cal )

In the case of Kalyan Singh v. Chhoti, 1990 SC, the Court held that it would be open to the Court to look
into the surrounding circumstances as well as inherent probabilities of the case to reach a proper conclusion
on the evidence adduced by the party. In H. Venkatachala Iyengar v. B.N. Thimmajamma 1959, SC, the

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court held that where there are suspicious circumstances, the onus would be on the propounder to explain
them to the satisfaction of the court before the will could be accepted as genuine.

In Vinode Mohan v. Sham Chandra, 1950 Cal, a scribe can be held to be an attesting witness only, if apart
from having seen the document in the presence of the testator he has also signed as a witness.

PROOF WHERE NOT ATTESTING WITNESS FOUND (SEC. 68 of BSA)

If no attesting witness is available or if the document is executed in the United Kingdom, two things should
be proved. Firstly it should be proved that the signature of the person executing the document is in his
handwriting and secondly that the signature of at least one attesting witness is in his handwriting. Where all
the attesting witnesses of a will were dead, the court allowed the will to be proved in the manner of any
other document. {Balwant Vs. Minabai, AIR 1991 MP 11}

ADMISSION OF EXECUTION BY PARTY TO ATTESTED DOCUMENT (SEC. 69 of BSA)

Another situation of not calling attesting witness is when the executant himself or his representative-in-
interest has admitted the execution of the document. It means that when a party admits execution of the
document, he also admits the entire series of facts, which would give validity to the document. The
admission of execution means not only admission of signature, but also of attestation of signatures. The
admission under the section should be clear and unqualified. If there is any controversy about the execution
of the document then this section shall not apply and an attesting witness shall be called to prove the
execution as required under Sec. 67 of BSA. Another condition for the application of Sec. 69 of BSA is that
the document must be duly attested and required by law to be attested.

PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION (SEC. 70 of BSA)

Sec. 70 of BSA provides that if the attesting witness denies or do not recollect the execution of the
document, other independent evidences may be adduced to prove it.

1. Sometimes it happens that the attesting witness collides with the opposite party and denies the attestation
of the document, or

2. The attesting witness does not remember the execution of the document, or

3. The attesting witness turns hostile and tries to mislead the Court about the execution of the document.

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Then the Court may discard his evidence and may direct the party concerned to prove the execution of the
document by any other evidence. 'By other evidence' includes the calling of second attesting witness, or
other person including expert and non-expert witnesses. Thus, this section is another exception to the
general principle laid down in Sec. 67.

Aid of section 70 can be taken only when the attesting witnesses, who have been called, deny or fail to
recollect the execution of the document. section 70 of BSA has no application to a case where one attesting
witness, who alone had been summoned, has failed to prove the execution of the Will and other attesting
witnesses though are available to prove the execution of the same, for reasons best known, have not been
summoned before the Court (Janki Narayan v Narayan Namdeo 2003 SC).

PROOF OF DOCUMENT NOT REQUIRED BY LAW TO BE ATTESTED (SEC. 71 of BSA)

If a document is not required to be attested by law, but the parties get it attested by witnesses, it may be
proved like a deed which is not required by law to be attested.
COMPARISON OF SIGNATURE, WRITING OR SEAL WITH OTHERS ADMITTED OR
PROVED- (SEC. 72 of BSA)
Sec. 72 of BSA lays down that when the Court has to satisfy itself about the genuineness of the seal or
signature on a document, it may compare the same with another signature or seal which is admitted or
proved to be that of the person concerned. But it is necessary that the handwriting with which the
comparison is to be attempted should itself be the original writing and not a photograph of it. The
comparison can be done by the Court itself, or it may appoint an expert to do the same.
According to a decision of the Patna High Court, the Court can direct even a stranger to give a specimen of
his handwriting. The Court directed a defendant's son who was present in the Court to give sample of his
handwriting though he was not a party to the case.
Garre Mallikharjuna Rao v. Nalabothu Punniah (2013) 4 SCC 546 - The opinion of a handwriting expert
is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There
is no legal bar to prevent the court from comparing signatures or handwriting, by using its own eyes to
compare the disputed writing with the admitted writing and then from applying its own observation to prove
the said handwriting to be the same or different, as the case may be, but in doing so, the court cannot itself
become an expert in this regard and must refrain from playing the role of an expert, for the simple reason
that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon
itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court
must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is
susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The

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court therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely
upon the comparison made by it. However, where there is an opinion whether of an expert, or of any
witness, the court may then apply its own observation by comparing the signatures, or handwritings for
providing a decisive weight or influence to its decision.

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LECTURE 6:- BURDEN OF PROOF: MEANING, TYPES AND STANDARD OF BURDEN OF
PROOF

QUESTION: What do you understand by burden of proof? What is the difference between burden of
proof and onus of proof? What are the different standards of burden of proof in Civil and criminal
cases? (2022, 2023)

ANSWER: OF THE BURDEN OF PROOF

S-104 of BSA -Whoever desires any court to give judgment as to any legal right or liability dependent on
the existence of facts which he asserts, must prove that those facts exist. In another word when a person is
bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The party on
whom the onus of proof lies must, in order to succeed, establish a prima facie case.

The expression means two different things. It means something that a party is required to prove an
allegation before judgment can be given in its favour, it also means that on a contested issue one of the two
contending parties has to introduce evidence. The burden will, at the beginning of a trial, lie on one party,
but during the course of the trial it may shift from one side to another. (Deena v. Union of India, 1983, SC)

The term “onus probandi” in its proper use, merely means that, if a fact has to be proved, the person whose
interest it is to prove it, should adduce some evidence, however slight, upon which a court could find the
fact he desires the court to find. It does not mean that he shall call all conceivable or available evidence. It
merely means that the evidence he lays before the court should be sufficient. Where there is an admission by
a party the burden of proof shifts and it is for the party making the admission to explain it away.

CIVIL CASES:

In the matter of proof, in a civil case, a defendant cannot take up the same stand as an accused in a criminal
case. In civil cases, unlike criminal ones, it cannot be said that the benefit of reasonable doubt must
necessarily go to the defendant. Even the preponderance of probability may serve as a good basis for
decision. (Himmat Mal v. Shah Magaji Khubji, 1953, Raj.)

In a tort action for malicious prosecution, the plaintiff failed to prove that the criminal complaint was lodged
againsed him without any reasonable and probable cause. His suit failed. (Philip v. Hindu Madhan Dharma
Paripalana Sabha, 2003).

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In a claim of damages for breach of contract, the burden is on the complainant to show the basis on which
the damages claimed by him have been quantified. (Usha Beltron Ltd. v. Nand Kishore Parasramka, 2001)
– The case required proof of market price for assessment of damages.

CRIMINAL CASES: In the criminal trial the burden of proving the guilt of the accused beyond all
reasonable doubts always rest on the prosecution and on its failure it cannot fall back upon the evidence
adduced by the accused in support of his defense to rest his case solely thereon. (Jarnail Singh v. State of
Punjab, 1996, SC– The prosecution cannot take undue advantage of the defence put by the accused even if
the same was found to be false and improbable. In a criminal trial burden of proof squarely rests upon
prosecution.

In an accusatory system, such as that prevailing in India, it is for the prosecution to prove beyond reasonable
doubt that the accused committed the offence, it is not for the court to speculate as to how the crime has
been committed.

Recovery of articles by itself does not connect anybody with the crime. Connection of the accused with the
article must be proved beyond a reasonable doubt.

Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and
justice delivery system is the innocence of the alleged accused and till the charges are proved beyond
reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting
or punishing an accused does not arise, merely by carried away by heinous nature of the crime or the
gruesome manner in which it was found to have been committed.

Courts dealing with criminal cases at least should constantly remember that there is a long mental distance
between may be true and must be true and this basic and golden rule only helps to maintain the vital
distinction between conjunctures and sure conclusions to be arrived by the touch stone of a dispassionate
judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as
quality and credibility of the evidence brought on record.(Ashish Batham v. State of M.P, 2002, SC)

MORE SERIOUS THE CRIME, MORE STRICT PROOF WOULD BE REQUISITE:

Examples: - The possession of small quantity of psychotropic substance for personal use requires the
prosecution to prove its allegation of commercial possession beyond reasonable doubt. It is enough for the
accused in his defence to satisfy the judicial mind on a preponderance of probability (Offence under NDPS
Act)

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PLEA OF ALIBI (HIS PRESENCE ELSEWHERE)- In Soma Bhai v. State of Gujrat, 1975 SC were it
was taken to be a settled law that a plea of alibi has got to be proved to the satisfaction of the court.

In State of Maharashtra v. Narsinga Rao Gangaram Pimple, 1984 it was held that- “The plea of alibi
must be proved with absolute certainty so as to completely, exclude the possibility of the presence of the
accused at the place of occurrence.”

In the cases where the evidence is of such a nature that conclusion cannot be arrived at as to who started the
fight or how the quarrel started, the benefit of doubt should be given to the accused. Other examples are :-
Proof of good faith, blank signature, whole evidence on record, presumption as to consideration and
dishonour of cheques, gift deed, will caste claim etc.

ON WHOM BURDEN OF PROOF LIES: SECTION 105 of BSA: The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given on either side.

Example: - A sues B for money due on a bond. The execution of the bond is admitted, but B says that it
was obtained by fraud, which A denies. If no evidence is given on either side, A would succeed, as the bond
is not disputed and fraud is not proved. The phrase “burden of proof” has two meanings- one, the burden of
proof as a matter of law and pleading, and the other the burden of establishing a case. The former is fixed as
a question on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not
constant but shifts as soon as the party adduces sufficient evidence to raise a presumption in his favour.

The burden of proof lies upon the party, whether plaintiff or defendant, who substantially asserts the
affirmative of the issue. In another word the party on whom the burden of proof lies begins. In criminal
cases the prosecution has to prove the ingredients of the offence.

BURDEN OF PROOF AS TO PARTICULAR FACT: SECTION 106 of BSA

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

For Example, A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A
must prove the admission, B wishes the court to believe that, at the time in question, he was elsewhere
(Alibi). He must prove it.

The burden of proving a particular fact lies on the party as indicated in the section irrespective of the fact
whether it is an affirmative or negative of the issue.

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CLAIM FOR SETTING ASIDE GIFT DEED- The plaintiff filed a suit for a declaration that the gift deed
relating to his property was null and void because at the time of its execution ha was a minor. His birth
certificate was neither exhibited nor proved through other witnesses. It was for him to prove his age and not
for the defendant. The suit was filed 3 years after attaining majority. He was held not entitled to the relief
claimed. (Habib Ullah Bhat v. Juna, 2003 J&K)

BURDEN OF PROVING FACT TO BE PROVED TO MAKE EVIDENCE ADMISSIBLE:

SECTION 107 of BSA

The burden of proving any fact necessary to be proved to enable any person to give evidence of any other
fact is on the person who wishes to such evidence.

EXAMPLE.- A wishes to prove a dying declaration by B. A must prove B’s death. A wishes to prove, by
secondary evidence, the contents of a lost document. A must prove that the document has been lost.

PRINCIPLE- Whenever it is necessary to prove any fact, in order to render evidence of any other fact,
admissible, the burden of proving that fact is on the person who wants to give such evidence. Kalooram v.
Mangilal, 1984 MP -A person seeking to recover possession has to prove that he was dispossessed within
12 years.

Mahboob Sab v. Union of India, 2011- Where the Railways contentions was that the person who died by
falling from a train was not a bonafide passenger being without ticket, the court said that it was for the
Railways to prove that fact.

SECTION 108 of BSA: Burden of proving that the case of the accused comes within exceptions.-
When a person is accused of any offence, the burden of proving the existence of circumstance bringing the
case within any of the general exceptions in the BNS or within any special exceptions or proviso contained
in any other part of the same code, or in any law defining the offence, is upon him, and the court shall
presume the absence of such circumstances.

Ex. -A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of
the act. (The burden of proof is on A).

The onus of establishing an exception shifts to the accused when he pleads an exception. In Subodh Tiwari
v. State of Assam, 1988, Gau. It was held that the court never presumes the existence of circumstances
which entitle the accused to his defense.

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Brindaban Prasad v. State of Bihar, 1964- If on a consideration of the evidence as a whole, a reasonable
doubt is created in the mind of the court as to the guilt of the accused he would be entitled to acquittal.

Rizam v. State of Chhattisgarh, 2003- The burden on the accused to prove his defense stands discharged by
showing preponderance of probability in his favor.

PRESUMPTION OF INNOCENCE- In criminal cases, the rule is that the legal burden of proving every
element of the offence and the guilt of the accused, lies from first to last on the prosecution. The prosecution
must disprove any defence or explanation raised by the accused, even if it appears ‘affirmative in nature.
(Woolmington v. DPP, 1935, AC)

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LECTURE 7:- BURDEN OF PROOF IN SPECIFIC SITUATIONS.

QUESTION: Write a short note on the following:

a) Presumption of death and life.

b) Possession is 9 by 10 of ownership.
c) Proof of legitimacy.
d) Presumption of dowry death.

ANSWER: BURDEN OF PROVING FACT SPECIALLY WITHIN KNOWLEDGE: SECTION 109

of BSA:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon
him. For example, A is charged with travelling on a railway without a ticket. The burden of proving that he
had a ticket is on him.

Principle: - Where the knowledge of the subject-matter of an allegation is peculiarly within the province of
one party to a suit the burden of proof must lie there also.

Where a person was found in possession of gold with foreign markings, the S.C. held that burden lay upon
him to account for his possession. (State of Maharashtra v. Natarwarlal Damodardas soni, 1980, SC)

Especially- This word means facts that are pre-eminently or exceptionally within the knowledge of the
person.

BURDEN OF PROVING NEGLIGENCE AND RES-IPSA-LOQUITUR- It has been considered by the

Privy Council that the burden of proving negligence always rests with the plaintiff, even when the maxim
res-ipsa-loquitur applies. Once the initial burden of showing the setting of the mishap is discharged, this
maxim will relieve the plaintiff of showing further evidence of negligence.

Payment of rent - In an eviction proceedings on the ground of default in payment of rent, the burden lies
on the tenant to prove payment.

BURDON OF PROVING SURVIVAL AND DEATH (SECTION 110 & 111 of BSA):

It has been laid down under Section 110 of BSA that if a person is proved to have been living within 30
years it shall be presumed that he is alive and the burden of proving he is dead lies on that person who
affirms that he is dead. Section 111 of BSA on the other hand lays down that when it is proved that a person

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has not been heard of for 7 years by those who would naturally have heard of him if he had been alive the
burden of proving that he is living is shifting to the person who affirms it. There is no universal rule about
the presumption of date of death. Section 111 of BSA enacts a rebuttable presumption about a person who
has not been heard of for seven years. In this context the presumption is the same in English and Indian
Law. The presumption made under Section 111 of BSA is not exhaustive. The meaning of these two
sections will be clear by taking examples: The question arises when did A died. No proof about the exact
date of death is available. This question arose in 1950. One of the parties files the deed of mortgage
executed by A in 1922. Now for the time being upon the proof of this fact it will be presumed that A was
alive on the date of the suit and the burden shifts to the other side who tries to prove otherwise. Now the
other side who tries to prove that A was dead adduces evidence that nothing was heard about A by the
members of his family, his relations and friends since 1942. This evidence being led presumption about A’s
being alive will be changed and it shall be presumed that he is dead. Now if the other party wants to prove
that he is alive he may succeed only if he proves by direct evidence that A is alive. It is clear that if a man is
said to be alive between 30 years he may be presumed to be alive on the date of issue unless and until it is
proved that he has not been heard of for more than 7 years by those who must have heard of him had he
been alive (his friends, relations) and the moment this fact is proved, the presumption about the person
being alive is lost, to the contrary it is presumed that he is dead.

BURDEN OF PROOF AS TO RELATIONSHIP: SECTION 112 of BSA: Section 112 of BSA is

applicable on 3 types of relations:

1) Partners

2) Landlord and tenants

3) Principal and agent

According to this section when the question is whether persons are partners, landlord and tenant, or
principal and agent, and it has been shown that they have been acting as such, the burden of proving that
they do not stand or have ceased to stand, to each other in those relationships respectively, is on the person
who affirms it. This section declares that once it is shown that a person stands in relationship of partners of a
firm, landlord and tenant, or principal and agent, it shall be presumed that they continue is such relationship
unless it is proved that they had ceased to stand so.

BURDEN OF PROOF AS TO OWNERSHIP: SECTION 113 of BSA:- When the question is whether
any persons is owner of anything of which he is shown to be in possession, the burden of proving that he is

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not the owner is on the person who affirms that he is not the owner. Possession is prima facie proof of title.
And so it has been laid down by Section 113, of BSA that when the question is whether any person is owner
of any property and when it is shown that one person is in possession of it, it shall be presumed that the
person in possession of the property is owner of it and the burden of proving that he is not the owner is on
the person who affirms that he is not the owner. The fact of possession suggests ownership. The proverb
“potiorest condition possidents, embodies the principle of Section 113 of BSA. The principle of this
section does not apply where the possession has been obtained by fraud or force.

ESSENTIAL ELEMENTS: - For the purpose of this section the following conditions are required to be
proved.

1. The possession of plaintiff must not prima facie be unlawful.

2. The ownership over such thing or property should not be proved.

This section comes into operation only when the question of ownership arises. Question of possession is a
mixed question of Law and fact.

PROOF OF GOOD FAITH: SECTION 114 of BSA:- Where there is a question as to the good faith of a
transaction between parties, one of whom stands to the other in a position of active confidence the burden of
proving the good faith of the transaction is on the party who is in a position of active confidence.

Illustrations:

• The good faith of a sale by a client to attorney is in question in a suit brought by the client. The burden of
proving the good faith of the transaction is on the attorney.

• The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son.
The burden of proving thee good faith of the transaction is on the father.

PRESUMPTION OF LEGITIMACY: SECTION 116 of BSA

Section 116 of BSA deals with the presumption of legitimacy of a child. The effect of the presumption is
that a child born to a married parents, is conclusively presumed to be their child. The same presumption
arises where the marriage was dissolved and the child was born within 280 days after dissolution provided
that the mother remaining unmarried in the meantime.

The essential conditions for the presumption to arise are-

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 1. The child should have being born during the continuance of a valid marriage and if the marriage was
dissolved within 280 days after its dissolution, the mother remaining unmarried.
2. The parties to the marriage should have had access to each other at any time when the child could
have been begotten.

OBJECT OF SECTION 116 of BSA:- “The presumption of legitimacy is the presumption of law, and not
mere inference to be drawn from the process of logical reasoning for the fact of marriage and, birth or
conception during wedlock. It is a presumption founded on public policy which requires that every child
born during wedlock shall be deemed to be legitimate unless the contrary is proved.” the law does not want
the legitimacy of a new born children to be any matter of doubt or uncertainty. Someone must be charged
with the responsibility and the most expedient choice is the person to whom the mother is married at the
time of the birth. Thus the presumption will apply to children conceived before marriage as also to those
born after dissolution of marriage provided the other prerequisite are present. (Chilukuri Venkateswarlu v.
Venkatanarayana, 1954, SC)

ACCESS TO EACH OTHER:- The presumption of legitimacy largely depends upon the presumed fact
that the parties to the marriage have necessary access to each other. That is why the presumption is allowed
to be over-thrown by proving that there was no access of husband to his wife at about the time when the
child could have been begotten but it has been pointed out by the supreme court in Chilukuri
Venkateswarlu v. Venkatanarayana, 1954, SC that as the presumption of legitimacy is highly favoured by
law it is necessary that prove of non-access must be clear and satisfactory.

Even the illness of a husband may not be sufficient to displace the presumption of access, unless the illness
is totally disabling. In a case before the Privy Council Narendra Nath Pahari v. Ram govind Pahari, 1901,
a child was born within 280 days of husband’s death. The evidence was offered of the fact that about the
time while the child was conceived the husband was suffering from Carbuncle and died of illness within 14
days. Their lordship held the child to be legitimate. No witness has been called to say that the deceased
could not have had connection with his wife at any time when she was living with him and in the absence of
such evidence their Lordship cannot say that non-access has been proved.

The presumption applies with equal force even where the child is born within few days or even hours after
the marriage. The decision of Madras High Court in Sethu v. Palani, 1925 is an illustration in point. In this
case it was held that the marriage of the mother to one person is not considered to be the proof of the lack of
access to any other person. the court concluded if a man marries a woman not knowing that she is pregnant,
he could, by showing that he could not have had access to the women when the pregnancy commenced,

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make out that the child is not his. But if a person knowing that a woman is pregnant marries her, the child of
the woman though born immediately after the marriage becomes in law his child unless the man prove that
he had no access to the women when he could have been begotten.

MEANING OF ACCESS:- The Supreme Court considered the meaning of word “access” in Kamti Devi v.
Poshi Ram, 2001, SC Thomas J. summarised the position as follows: “Earlier there was a controversy as to
what is true import of the word access. Some High Court held that access means actual sexual intercourse
between the spouses. However, the controversy came to a rest when the Privy Council held in Karapaya
Servai v. Mayandi 1934 PC that the word “access” connotes only existence of opportunity for marital
intercourse. The said legal principle gained approval of Supreme Court when the three judge bench held in
Chilukuri Venkateswarlu v. Venkata narayana, 1954, SC that the law has been correctly laid down therein.

VASECTOMY OPERATION AND PRESUMPTION OF LEGITIMACY: - In a case before Kerala

High Court (Chandramathi v. Fazhetti Balan, 1982) a married woman became pregnant even after her
husband had undergone vasectomy operation. The court held that vasectomy was not sufficient by itself to
overthrow the presumption of legitimacy. No proof was offered to show whether the operation was
successful not. Nor there was any evidence showing that the parties had no access before the conception.
Going further the same High Court has held that where the semen of the husband who had undergone
vasectomy operation was tested and showed absence of sperms, it would not displace the presumption of
legitimacy because it may be that the test was not properly handled. (Chirutha kutty v. Subramanian, 1987)

DNA TEST AND PRESUMPTION OF LEGITIMACY:- The conclusive presumption under section 116
of BSA cannot be overthrown out by DNA test. Non-access should have been proved (Kamti Devi v. Poshi
Ram, 2001, SC). Even the presumption applies with equal force where the child is born within few days or
even few hours after the marriage (Sethu v. Palani, 1925.)

STANDARD OF PROOF AND REBUTTAL OF PRESUMPTION:- The Supreme Court observed that
“the standard of proof in such cases must at least be of a degree in between the two as to ensure that there
was no possibility of the child being conceived through the plaintiff’s husband. in Gautam Kundu v. state
of West Bengal, 1993, SC this court after considering and early three judge bench decision in Dukhtar
Jahan v. Mohammed Farooq, 1987, SC held that this presumption can only be displaced by a strong
preponderance of evidence and not by a mere balance of probabilities.

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 PRESUMPTION OF ABETMENT OF SUICIDE: SECTION 117

This section was inserted in Indian Evidence Act, 1872 by virtue of Criminal Law Second Amendment
Act 1983.This section has retrospective application and therefore, applies to cases where the offence was
committed prior to the insertion of this section. (Gurbachan Singh v. Satpal Singh 1990 SC)

SECTION 117 of BSA: PRESUMPTION AS TO ABETMENT OF SUICIDE BY A MARRIED

WOMAN:

When the question is whether the commission of suicide by a woman had been abetted by her husband or
any relative of a husband and it is shown that she had committed suicide within a period of 7 years from the
date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the
court may presume, having regards to all the other circumstances of the case, that such suicide has been
abetted by her husband or by such relative of her husband.

OBJECT: -The object of this section is to prevent killing of women in homes. In case of inside home,
generally outside evidence cannot be found. The presumption under the section may be made, if the
following elements are proved-

1) Married woman had committed suicide.

2) Suicide must have been committed within 7 years of her marriage.
3) It was shown that she was subjected to cruelty by her husband or his relatives.
4) The court may having regards to the circumstances of case presume that husband or his relatives has
abated her suicide.

INSTIGATION BY CONDUCT:-

In Girija Shankar v. State of Madhya Pradesh, 1989, MP the husband and his relative caused cruelty on
wife and they started to search another wife. On commission of suicide by wife, the husband and his
relatives were convicted under section 108 of BNS (section 306 of IPC). The court held that it is not
necessary that instigation can only be made by words. Instigation can also be caused by conduct.

In Ramesh Kumar v. State of Chhattisgarh, 2001, SC the Supreme Court held that the statements made
due to quarrels and without considering the effect of consequences, cannot be treated as inducement.

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In Hansraj v. State of Haryana, 2004,SC mere allegation that there were quarrels resulting in physical
assault because the husband being Bhang addict were regarded by SC to be Slender on evidence to raise the
presumption under this section.

PRESUMPTION AS TO DOWRY DEATH (SECTION 118 of BSA)

Dowry death is defined under section 80 of BNS (section 304B of IPC). It covers a kind of death which is
not natural, occurring within 7 years of marriage and is preceded by cruelty or harassment in connection
with dowry. The combined study of section 80 of BNS and Section 118 of BSA lays down that the
presumption under section 118 of BSA will rise only on proof of following Essentials-

1. The question before the court must be whether the accused has committed dowry death of a woman.
2. The death of a woman must be a natural, that is to say, that she must have died by any burn or bodily
injury or died under abnormal circumstances.
3. Such death must have occurred within 7 years of her marriage.
4. The woman was subjected to cruelty or harassment by her husband or relatives for or in connection
with any demand for dowry.
5. Search cruelty or harassment was caused soon before her death.
MEANING OF SOON BEFORE DEATH:-It has been held by the Supreme Court that the terms “soon
before” used in Section 118 of BSA not imply “immediately before” as these are not synonyms.

The presumption as to dowry death operates only in case in which prosecution proof that soon before her
death, the victim was subjected to cruelty or harassment for dowry demand. The expression does not
indicate any fixed period. It depends upon the application of the proximity test. There should be existence of
proximate and live link between the death and effect of cruelty. The stray incident of cruelty would not
bring the case within the scope of the presumption. (Hiralal v. State of Delhi, 2003, SC).In reference to the
connotation of the word “soon before” as used under Section 118 of BSA the Supreme Court observed that
their scope cannot be limited to a fixed time limit. The expression should normally imply that interval
between cruelty harassment and death should not be such as to disrupt approximate live link. The cruelty
should not have become too stale before event. The expression is pregnant with the test of proximity.
(Kailash v. state Of MP, 2007, SC)
It is a relative expression and therefore no straight jacket formula can be laid down as to what length of time
would be considered “soon before”. The court have to see in each case, whether the requirement of “soon
before” was satisfied on the fact of the case.

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In Bhola Ram v. State of UP, 2014, SC it was held that a mere demand for dowry is not enough for
conviction. The demand must be accompanied by cruelty and harassment. If it is proved that there was an
intention to cause death of victim on the part of culprit or even the conditions of offence of murder are
fulfilled, section 103 of BNS must be applied along with the charge under Sec. 80 of BNS.(Rajveer Raju v.
State of Hriyana, 2012, SC)

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LECTURE 8:- ESTOPPEL

QUESTION: What do you understand by estoppel? What are the essential conditions for the
application of rule of estoppel? (2015, 2016, 2017, 2019)

ANSWER: ESTOPPEL: SECTION 121 of BSA

Estoppel is the principal of law by which a person is held bound by representation, made by him or arising
out of his conduct. If, for example, a person made a statement intending some other person should act upon
it, he will be estopped, that is, will be prevented from the denying truth of his statement once the other
person has altered his position on the basis of the statement.

The foundation of the doctor is that person cannot approbate and reprobate at the same time.(Purushottam
v. Bhagwat Sharan, 2003, MP)

The principle of estoppel is incorporated in section 121 of BSA.

SECTION 121: ESTOPPEL:- when one person has, by his declaration , act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his
representative shall be allowed in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.

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

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

The illustration appended to the section is based upon the facts of Pickard v. Sears, 1837.The principle of
estoppel by conduct was for the first time clearly formulated in this case. The court said, “Where one by his
words or conduct willfully causes another to believe in the existence of certain state of things and induces
him to act on that belief, or to alter his previous position the former, is precluded from averring against the
latter a different state of things as existing at that time.”

CONDITIONS FOR APPLICABILITY OF THE DOCTRINE:-

In order to hold a person bound by estoppel under section 121 of BSA, the requirements of the section
should be met, and they can be grouped under two headings-

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 1. Firstly there should be a representation that a certain state of thing is true, and
2. Secondly, the person to whom such representation is made should have acted on the belief of it and
altered his position by so acting and the alteration is such that it would be iniquitous to required him
to revert back to his original position.

REPRESENTATION:- Representation of the existence of a fact may arise in anyway. Anything done
which has the effect of creating in the mind of the other a belief as to the existence of the fact represented
will do. Section 121 of BSA itself says that a representation may arise from a declaration, act or omission.
Statements, written or oral, conduct active or passive, may amount to representation in the particular
circumstances of the case. An illustration of Representation by conduct is to be found in the decision of
Privy Council in Sarat Chundra Dey v. Gopal Chandra Laha, 1892, PC. In this case the undivided
property of a disease Muslim, which includes some share of daughter and son along with the widow, was
mortgaged by the mother through the agency of son. Subsequently both the son and daughter sold their
share in the property to plaintiff. The plaintiff started suit to recover the mortgaged part of the property from
the mortgagee defendant. It was contended on behalf of defendant that there was representation on part of
son and daughter and he acted on that representation. The Privy Council held that the son was so estopped
from his representation but there was no estoppel against daughter. As regards the daughter, the defendant
was not able to refer to any representation or conduct on her part which could by her from challenging the
validity of the mortgage. There was no case of estoppel presented against her on account of personal
representations, act or omissions. It follows that to the extent of her interest the claim of the plaintiff to the
position of the property must be allowed. But as regards the son, the court said that he really represented the
mother in the whole transaction. He acted as Mukhtar on her behalf under a power of attorney.
In Mehboob Shah v. Syed Ismail, 1995, SC here also the son’s land was sold by his father. The son attested
the sale deed and made no objection. He was not allowed to dispute his father’s capacity to sell on his
behalf.
A representation may arise from an ‘omission’ to do an act which one’s duty requires him to do.

In Mercantile Bank of India Limited v. Central Bank of India Limited, 1937, PC the Privy Council held
that an estoppel will arise when the failure to perform one’s duty has misled another and also the duty
should be a kind of legal obligation.
RELIANCE AND ALTERATION OF POSITION:
To invoke the benefit of estoppel it has to be proved that the Representation has been acted upon. Estoppel
can only arise if a party to a proceeding has altered his position on the face of a representation or promise
made by other.

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In Govind Ji Jevat and co. v. Shree Saraswat Mills Ltd., 1982, Bom.The acceptance of compensation under
an arbitrator’s award has been held to constitute an estoppel, so as to prevent an attack on the validity of the
award.

In G. Sarana v. Lucknow University, 1976, SC in this case it was mentioned that the conduct of appearing
before a selection committee without any objection as to the constitution of the committee would create an
estoppel preventing the candidate from challenging the constitution of the committee, even if the decision
was against him.

PROMISSORY ESTOPPEL:

The principle of promissory estoppel found its roots as an exception to the doctrine of consideration in the
law of contract. Whenever a person hold out of promise of a favour or concession to another, and the latter
changes his position by relying upon his words, he will not be permitted afterwards to say that his promise
was without consideration. The glorious example is Central London Property Trust Limited v. High Trees
House Limited, 1947, KB a block of flats was left out for a period of ten years on an agreement for rent.
War intervened and flats fell vacant. The lessee was not able to pay the full rent. The landlord agreed to
reduce it to half and went on receiving half went till the war end. Normal conditions brought people back to
cities. Flats were again fully occupied. The landlord demanded full rent for the future and also arrears for
the period during which only half rent was paid. The court held that the landlord was entitled to restore the
full rent, because it was only a concession given by him and he had the right to withdraw the concession for
future he had held out a concession and held himself been acting on it by accepting half rent. He was,
therefore, is estopped from saying that his agreement to accept only the half rent was without consideration.

APPLICABILITY AGAINST STATE:

The Supreme Court commented upon the doctrine of promissory estoppel in Motilal padampat Sugar Mills
v. State of UP, 1979, SC and considered its application against the State. There was news in the papers that
the State of UP would grant exemption from sales tax for 3 years to new industrial units. The petitioner
wanted to set up a Vanaspati plant. He applied to the Director of Industries and the chief secretary and both
confirm the availability of exemption. The petitioner proceeded with his plans but the State Government
abrogated its policy of exemption. The petitioner applied for an order that the State Government should be
estopped from going back up on the declared exception. The Supreme Court allowed the petition holding
that the Government was bound by its declared intention. The learned Judge said:

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“it is, however, necessary to make it clear that though the doctrine has been called in various judgments
and textbooks as promissory estoppel, and it has been variously described as “equitable estoppel”, “qusai
estoppel” and “new estoppel”, but it is a doctrine evolved by equity in order to prevent injustice where a
promise made by a person knowing that it would be acted on by the person to whom it is made and in fact
it is so acted on and it is inequitable to allow the party making the promise to go back upon it. The
doctrine of promissory estoppel need not, therefore, be confined to the limitations of estoppel in the strict
sense of word.”

THE SCOPE OF THE DOCTRINE:

The scope of the plea of doctrine of promissory estoppel against the government may be summed up as
follows:-

1. The claim of promissory estoppel is not available against the exercise of Legislative function of the
State.(Excise Commissioner UP v. Ram Kumar, 1976, SC)
2. The Doctrine cannot be invoked for preventing the government form discharging its function under
the law or to act contrary to law.(Mohammed Fida Karim v. State of Bihar, 1992, SC)
3. When an officer of the government acts outside the scope of is authority, the plea of promissory
estoppel is not available.
4. When the officer act within the scope of his Authority under a scheme and enters into an agreement
and makes a representation and a person acting on that representation puts himself in a
disadvantageous position, the court is entitled to require the officer to act according to the scheme
and the agreement or representation
5. The officer would be justified in changing the terms of agreement to the prejudice of the other party
on special circumstances, such as difficult foreign exchange position or other matters which have a
bearing on general interest of the State.(American dry fruit stores v. Union of India, 1990,Bom.)
6. Actual detriment is not necessary, only it is necessary that promisee has altered his position.

KINDS OF ESTOPPEL:

1. ESTOPPEL BY RECORD:

The doctrine of res judicata is an example of estoppel by record. Every party has a right to appeal against
what he may consider to be a wrong decision. If he does not do so or having done so, loses appeal, he
cannot afterwards rake up the same issue again and between the same parties. Not only the parties, their
privies also, such as legal Heirs, executive, administrators and assigns, all become equally bound by the

~ 39 ~
decision. This kind of estoppel is dealt with under the section 10 and 11 of Civil Procedure Code 1908 and
section 34-38 of BSA, 2023. It is the final decision that has the effect of estoppel (Ghasiram v. Kundan bai,
1941). A judgment in personam binds the parties and privies. A judgment in rem is a declaration which is
effective against the whole world. Where payment is accepted under an arbitration award, the party who has
received such benefit cannot afterwards challenge the award.(Govind Ji Jevat and co. v. Shree Saraswat
Mills ltd., 1982,Bom.)

2. ESTOPPEL BY DEED:

Those who make themselves party to a deed, they and their privies cannot deny the actual basis on which
the deed was entered into. The deed may, however, be challenged if it is affected by vitiating factors like
fraud or misrepresentation. Where a lessee makes a deed of sub-lease, it will operate to the extent of his
right as a lessee, for example, the sub-lessee will be bound by the period of original lease, though not
mentioned in sub-lease (P.G. Hariharan v. Padarill, 1994, Ker.)

3. ESTOPPEL IN PAIS:

Estoppel by conduct arises when a person takes a particular position by his conduct. where a person induces
another to enter into a contract with him on the basis of facts which are fraudulently or innocently
misrepresented, he would be bound by his statements and would not be permitted to get rid of the contract
by setting forth his own fraud etc.( Carr v. London to Western Rly. Co.)

Conduct of appearing before a selection committee without any protest as to the irregularity in its
constitution known to the candidate would estop him from challenging the validity of the selection on that
basis. (G. Sraranv. Lucknow University, 1976, SC)

LIMITATIONS OF ESTOPPEL:

1. No estoppel against law or statute: - A rule of law cannot be nullified by resorting to the doctrine
of estoppel.
2. No estoppel against the Sovereign acts:-

The Supreme Court has laid down that it is well settled that there cannot be any estoppel against the
Government in the exercise of its sovereign, legislative and executive functions. (B.E.G. Fisherman Co-op.
Society v. Sipahi Singh, 1977, SC)

3. No estoppel against unlawful transfer of property

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A valid trust was created by the owner in respect of his property. The donating owner was himself one of
the trustees. The owed a sum of money by way of income tax for which reason the authorities seized the
property and disposed it off by public auction to recover taxes dues from sale proceeds. It was held that the
trustee were not estopped from challenging the sale irrespective of the fact that they were aware of the
notification of sale. (Institute of Education v. Sri Sowear A. Siddanna Endowment, 2003)

4. No estoppel when the court has no jurisdiction.

5. No estoppel against minor. (Mohribibi v. Dharmodas Ghosh, 1903)
6. No estoppel where the facts were known to both parties.

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 UNIT IV

LECTURE 1:- WHO MAY TESTIFY, COMMUNICATION DURING MARRIAGE, EVIDENCE AS

TO THE AFFAIRS OF STATE, PROFESSIONAL COMMUNICATIONS

QUESTION: Write a short note on the following:

a) WHO MAY TESTIFY,
b) COMMUNICATION DURING MARRIAGE,
c) EVIDENCE AS TO THE AFFAIRS OF STATE,
d) PROFESSIONAL COMMUNICATIONS

ANSWER:

SECTION 124 of BSA: WHO MAY TESTIFY

A competent witness is the one who cannot be prevented by any law from appearing and giving evidence in
the court.

The Bharitiya Sakshya Adhiniyam, 2023 does not declare any person as incompetent witness. This section
provides that all person are competent to testify, unless they are, in the opinion of the court, unable to
understand the question put to them or to give rational answer to those questions due to tender age, extreme
old age, disease etc.

Therefore no person is particularly declared to be as incompetent. It is completely left to the decision of the
court to see whether the person who appears as witness is capable of understanding the question and giving
a rational answer to them.

CHILD WITNESS: No age is fixed for a competent child witness. The intellectual capacity of the child to
understand question and to give a rational answer thereto, is the sole test of his testimonial competency and
not any particular age.

It should be rest in the mind that children can be easily influenced for fear of punishment, hope of reward
etc. So the court must be very careful in accepting a child’s testimony.

Therefore, before the evidence of child witnesses is recorded, the court must, by preliminary examination,
test his capacity to understand and give rational answers and must form his opinion as to his competency.

The Privy Council considered the question of a child witness in Mohammed Sugal v. The King, 1946, PC.
In this case the girl not more than 10 years old was tendered as the only eyewitness but she was not able to
understand the nature of the oath. Their lordship held that such unsworn evidence was admissible in the

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circumstances of the case and a court can receive the evidence of a person who does not understand the
nature of the oath but is otherwise competent to testify and understanding the question put and being able to
give a rational answer.

In Bhagwan Singh v. State of MP, 2003, SC it was told by the child that the bride was burnt to the death
and no deficiency was made out in the said statement. It was held valid.

In Suresh Kumar v. State of UP, 1981, SC the Supreme Court accepted the evidence of a child of 5 years
who was the sole witness of the murder by the domestic servant.

UNCHASTE WOMEN: In State of Maharashtra v. Madhukar N. Mardinkar, 1991, SC. It was held that
an unchaste woman is a competent witness.

UNSOUND MIND WITNESS: The explanation attached to section 124 of BSA makes it clear that a
lunatic is not incompetent to testify, unless he is prevented by his lunacy to understand the question put to
him and giving rational answers to them.

INTERESTED WITNESS: An interested witness means a person who wants to see that the accused gets
convicted because of his own animus or otherwise.

In Sunil Kundu v. State of Jharkhand, 2013, SC the Supreme Court held that the testimony of an interested
witness cannot be mechanically overlooked, if it is consistent, it can be relied upon and conviction can be
based on it.

VICTIM OF RAPE: In a State of Maharashtra v. CK Jain, 1990, SC the Supreme Court observed that the
Indian Evidence Act nowhere says that the evidence of a victim cannot be accepted unless it is corroborated
in material particulars. The same degree of care and caution must attach in the evaluation of her evidence as
in the case of an injured complaint or otherwise and no more.

In Krishna Kumar Malik v. State of Haryana, 2011, SC the court held that the solitary evidence of the
prosecutrix is sufficient, provided the same inspires the confidence of the court and appears to be absolutely
trustworthy and should be of sterling quality.

Section 125 witness unable to communicate verbally

Section 126 husband and wife to be competent witness

~2~
 Question:- Discuss the admissibility of statement made between spouses during the continuance of
marriage? Explain its exception with the help of relevant case laws? (2017)
ANSWER: COMMUNICATION DURING MARRIAGE: SECTION 128 of BSA
Section 128 of BSA prevents the communication between a man and his wife from being disclosed.
Marriage inspires confidence and confidence inspires openness of heart and feeling. This enables a married
person to make a clear breast of everything to his or her spouse. Naturally, therefore, such matters should be
free from the risk of being disclosed. The policy of protection is, thus, stated by an American judge,
“Communications and transactions between husband and wife were early recognised as privileged and
neither was a competent witness to testify such transactions or communications and neither could be
compelled to disclose what took place between them. From experience, it was found that far less evil would
result from the exclusion of such testimony then from its admission. It may, in individual case, work
hardship, but the destruction of confidence between husband and wife would cause much misery and affect
the marriage relation. This rule is founded upon the sound public policy. Those living in the marriage
relation should not be compelled or allowed to betray the mutual trust and confidence which such relation
implies”. (Stillman v. Stillman)
The ban applies to all kinds of communications that may take place between a man and his wife. Such
communications remain protected even after the dissolution of the marriage but those made either before or
after its dissolution, are not protected. (M.C. Varghese v. TJ Ponnan)
PROTECTION WHEN NOT AVAILABLE: - The privilege admits certain exceptions also. These are as-
1. ACTS APART FROM COMMUNICATIONS: A wife can testify as to what her husband did on a
certain occasion, though, not as to what he said to her. The best authority is the decision of the Supreme
Court in Ram Bharosa v. State of UP, 1954, SC. The accused was on a trial for murdering the neighbour
for the purpose of robbing some ornaments and then to present them to his wife. While presenting them to
his wife he said that he had gone to the middle house (where the deceased lived) to get them. His wife told
the court that she saw one early morning her husband coming down the roof. He then went inside the
busha Kothari and had a bath. He put back the same clothes and came to her to present the things. It was
held that what the husband said to his wife was not admissible but she could testify as to what she saw.
2. EVIDENCE BY A THIRD PERSON: Communications or conversations between husband and wife,
taking place in the presence of a third person or when overheard by a third person, can be testified by the
third person. (Queen Empress v. Donoghue, 1899, Mad)
3. WAIVER OF PRIVILEGE: Evidence of a privileged communication can be given by a spouse with the
consent of the party who made the communication or with the consent of his representative-in-interest.
This is known as waiver of privilege. Waiver may take place by reason of advance consent to the

~3~
 disclosure or by the fact that the husband or the wife has gone to the witness box to testify and the other
spouse has not, in good time, objected to the disclosure.
4. CRIMES OR SUITS BETWEEN MARRIED PERSONS: The closing words of the section 128 of
BSA clearly recognises this exception by providing that such communication maybe disclosed in the suits
between married persons or proceedings in which one married person is being prosecuted for any crime
committed against the other. (Nagendra Nath Mukherjee v. State, 1951, Cal)

EVIDENCE AS TO THE AFFAIRS OF STATE: SECTION 129 of BSA

Section 129 of BSA protects the unpublished state records from being disclosed. Unpublished state records
are not to be used or disclosed except with the permission of the head of the concerned department.

Section 129 must be read in conjunction with section 165 of BSA. Section 165 provides that when a person
has been summoned to prove a document, he should produce it, even if he has any objection to its
production. The court will decide the validity of its objection. When read together, the effect is that the final
decision whether the permission should be granted or not, shell rest with courts. In Sate of Punjab v. Sukh
dev Sing Sodhi, 1961, SC the Supreme Court expressed its view that a valid claim under section 123
proceeds on the basis of the theory that the publication of the document in question would cause injury to
the public interest. It was also held that the court is bound to hold the preliminary inquiry into the character
of the document but in no case can the court inspect the document itself.

The judgment was overruled by the Supreme Court in the State of UP v. Raj Narayan, 1975, SC where it
was held that if the court is not satisfied with the reason cited in the affidavit, it may inspect the document
itself and if thinks fit order disclosure.

In RK Jain v. Union of India, 1993, SC the Supreme Court reaffirmed the view taken in Raj Narayan’s
case.

In SP Gupta v. Union of India, 1982, SC it was held that even though the advice of the council of minister
was protected from the judicial scrutiny by virtue of article 74 of the Indian constitution but the materials on
which the advice is based cannot be said to have become a part of advice and therefore is not protected from
disclosure.

In S.R. Bommai v. Union of India, 1994, SC it was held that privilege under article 74 is not affected by
section 129 of BSA. Both are distinctly available.

~4~
QUESTION: What are the professional Communications? When does a lawyer entitle to disclose
information given by his client? (2022)

ANSWER:- SECTION 132 of BSA: PROFESSIONAL COMMUNICATIONS

Section 132 of BSA says that “No barrister, attorney, pleader or vakil shall at any time be permitted,
unless with his client’s express consent, to disclose any communication made to him in the course and for
the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or
to state the contents or condition of any document with which he has become acquainted in the course and
for the purpose of his professional employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment”

RIGHT TO INFORMATION ACT, 2005:

The application of section 132 of BSA for protecting communication between the lawyers and the clients is
not obliterated by the RTI Act and has to be given effect to, notwithstanding RTI act. (Venkatachalam v.
Govindan Chettiar, 2010)

EXCEPTIONS:

The privilege provided under section 132 of BSA is subject to few exceptions. These are-

1. COMMUNICATION MADE IN FURTHERANCE OF ILLEGAL PURPOSE:

These communications are not protected from disclosure. For example, a client consulted a lawyer for the
purpose of drawing up a bill of sale, which was alleged to be fraudulent. The communication was held to be
not privileged, for the consultation was for an illegal purpose. (R. v. Cox & Railton, 1884, QB)

Illustration (b) appended to section 132 is on this point. Illustration (b) of this section is-

“A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on
which I request you to sue”. This communication, being made in furtherance of a criminal purpose, is not
protected from disclosure.”

2. CRIME OR FRAUD TAKEN PLACE SINCE EMPLOYMENT BEGAN:

If a lawyer finds in the course of his employment that any crime or fraud has been committed since the
employment began, he can disclose such information.

The illustration (c) is relevant on this point. Illustration (c) of this section is-

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“A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the
proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to
have been embezzled, which entry was not in the book at the commencement of his employment. This being a
fact observed by B in the course of his employment, showing that a fraud has been committed since th e
commencement of the proceedings, it is not protected from disclosure.”

3. DISCLOSURE WITHIN EXPRESS CONSENT OF CLIENT:

Such communications can be disclosed within express consent of the client. The prohibition is for the
benefit of the client and he may waive it, if he deems it advisable. The waiver should be expressed. The
death of a client does not amount to waver.

4. INFORMATION FALLING INTO THE HANDS OF THIRD PERSON

If the communication is overheard by a third person, he may be compelled to disclose it. The prohibition
works against the lawyer and not against a third person. (Webster v. James Chapman & Co. 1989)

5. LAWYERS SUIT AGAINST CLIENT:

Lastly, if the lawyer himself sues the client for his professional services. He may disclose so much of
information as is relevant to the issue.

The privilege is not available in respect of a document which has already been put on records. (Daya
Shankar Dubey v. subhash Kumar, 1992.)

~6~
LECTURE 2:- EVIDENCE OF ACCOMPLICE

QUESTION: Who is an accomplice? What does Bhartiya Sakshya Adhiniyam provides as to the
value of evidence of an accomplice? Explain with the help of relevant case laws? (2015) (UP PCS-J)

ANSWER: WHO IS AN ACCOMPLICE?

An accomplice means a person who has taken part in the commission of a crime. When an offense is
committed by more than one person in concert, everyone participating in it, is an accomplice. Conspirators
lay their plot in secret, they executed ruthlessly and do not leave much evidence behind; often, therefore, the
police has to select one of them for the purpose of being converted into witness. He is pardoned subject to
the condition that he will give evidence against his former partners in crime. He is the known as ‘an
accomplice’ or ‘turned witnesses’ or ‘an approver’. He appears as a witness for the prosecution against the
accused person with whom he acted together in the commission of a crime.

The question “who is an accomplice” was answered by House of Lords in Davis v. Director of
prosecution, 1954. Lord Simonds held that “There is in the authorities no formal definition of term
‘accomplice’ but it appears that a person who are participes crimines in respect of actual crime charged,
whether as a principal or as accessories, before or after the fact, or person committing, procuring or aiding
and abetting. This is surely the primary natural meaning of the term accomplice.”

This definition was followed by the Supreme Court of India in RK Dalmia v. Delhi administration, 1962,
SC.

ACCOMPLICE UNDER BHARITIYA SAKSHYA ADHINIYAM, 2023:

There are two provisions in the BSA which deals with the evidence of accomplice. Section 138
categorically declares that an accomplice is a competent witness and the court may convict on the basis of
such evidence and the conviction will not be illegal simply because it proceeds upon the uncorroborated
testimony of an accomplice. The other dealing matter is in the illustration (b) of section 119 which says
that the court may presume that an accomplice is an unworthy of credit unless corroborated in material
particulars.

Therefore, there is an apparent contradiction between these two declarations which should first be resolved.
section 138 is a clear authorization to the courts to convict on an uncorroborated testimony of an
accomplice, but since such a witness, being criminal himself, may not always be trustworthy, the courts are
guided by the illustration (b) appeared to section 119, which says that, if it is necessary the court should

~7~
presume that he is unreliable unless his statements are supported or verified by some independent evidences.
A statement to this effect is to be found in the judgment of Chandrachud J. in Dagdu v. State of
Maharashtra, 1977, SC. “There is no antithesis between section 138 and illustration (b) of section 119
because the illustration only says that the court may presume. It does not seek to raise a conclusive and
irrebuttable presumption. Reading the two together, the position which emerges is that though an
accomplice is a competent witness and though a conviction may lawfully rest on his uncorroborated
testimony, yet the court is entitled to presume and may indeed be justified in presuming that no reliance can
be placed on the evidence of accomplice unless that evidence is corroborated in material particulars, by
which it is meant that there has to be some independent evidences tending to incriminate the particula r
accused in the commission of a crime. It is hazardous as a matter of prudence, to proceed upon a self-
confessed criminal, in so far as an approver is concerned, his evidence has to be testified in terms of pardon
tendered to him.”

CORROBORATION AS A RULE OF CAUTION:

The reasons, why corroboration has been considered necessary, are that-

1. He has been criminal himself and therefore, his testimony should not carry the same respect as that
of a law abiding citizen.
2. He has been faithless to his companions and maybe faithless to the court because he has motive to
shift the guilt from himself to his former companions.
3. If he is an approver, he has been favoured by the State and is, therefore, likely to favour the State.
(Joga Gola v. State of Gujrat, 1982, SC)

These reasons dictate the necessity of corroboration. The principles to be followed were summed up by
House of Lords in Davis v. DPP, 1954.

In Bhubooni Sahu v. The King, 1949, PC it was held that “The corroboration of testimony of an
accomplice must be by some independent evidences. The previous statement of an accomplice even recorded
under section 183 of BNSS cannot be used for the corroboration of the testimony because an accomplice
cannot corroborate himself. It is highly unsafe to convict without corroboration.”

In Mahadeo v. The King, 1936, PC It was held that the evidence of one accomplice cannot be used for the
corroboration of the evidence of other accomplice.

Apart from the requirment of corroboration the Supreme Court has observed in Jasbir Singh v. Vipin
Kumar, 2001, SC, “The evidence of an approver does not differ from the evidence of any other witness

~8~
except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the
evidence of an approver is found to be trustworthy and acceptable, then that evidence might well be decisive
in securing a conviction.”

NATURE AND EXTENT OF CORROBORATION:

As to the nature and extent of corroboration Lord Reading held in R. v. Stubbs, 1855 that “Such
corroboration does not mean that there must be confirmation of all the circumstances of the crime, that is
unnecessary. It is sufficient, if there is confirmation as to material circumstances of the crime and of the
identity of the prisoner. The corroboration need not to be direct evidence that the accused committed the
crime. It is sufficient that it is merely a circumstantial evidence is of his connection with the crime.”

The evidence of the approval implicating several accused persons in the commission of the offense should
not merely be corroborated in general; it must also be corroborated qua each accused by some independent
credible evidence. All that is required is that, there must be some additional evidence rendering it probable
that the story of the accomplice is true in respect of each accused person. Corroboration can be both by
direct or circumstantial evidences. (Devendran v. State of Tamil Nadu, 1997, SC)

ACCOMPLICE AND CO-ACCUSED:

1. An accomplice is a person, who is a guilty associate in a crime. While a Co-accused is a person who
is accused of having committed a crime with another person. He may be an accomplice or may not
be an accomplice.
2. An accomplice, partially or totally, accepts his participation in crime and tenders evidence that any
Co-accused was also involved in the crime.

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LECTURE 3: EXAMINATION OF WITNESS: TYPES AND ODER OF EXAMINATION.

QUESTION: What are the various types of examination? What is the nature of examination in chief,
cross examination and re-examination? What is the order of examinations?

ANSWER: OF THE EXAMINATION OF WITNESSES: SECTION 140-168 of BSA:

Section 140 of BSA lay down that the order in which witnesses are to be produced shall be regulated by the
law and practice for the time being relating to Civil and Criminal Procedure respectively. The order of
examination of witnesses involves two things:

(1) Which party is to examine his witnesses first;

(2) In what order the witnesses are to be examined by a party. Order XVIII of C.P.C. and the Chapters IXX,
XX, XXI, XXII OF BNSS deal with the manners of the examination of witnesses

In civil cases the party who has the right to begin, i.e., on whom the burden of proof lies examines his
witnesses first. In criminal cases the prosecution has to examine its witnesses first.

THE ORDER OF EXAMINATION OF WITNESSES:-Primarily it is lawyer’s privilege to determine the

order in which the witnesses should be produced and examined. The arrangement of witnesses is a matter of
experience and skill. Though the counsel has discretion to produce his witnesses in the order he likes, this
section gives the court a power to dictate the order in which the witnesses may be produced.

EXCLUSION OF WITNESSES FROM COURT-ROOM:-When the evidence of a party begins the

witnesses must be kept out of the court room. They should be examined one by one and when witness is
being examined other witnesses to be examined afterwards must not be allowed to remain in the court-room.
If he is present in the court-room he should be asked to go out. If a witness remains in the court-room while
another witness is being examined his examination cannot be refused, only a note is to be made to the extent
that he was present in the court-room when another witness was being examined. (Subh Karan v.
Kedarnath, 1941, All)

EXAMINATION-IN-CHIEF [SECTION 142 of BSA]:- The examination of witness by the party who
calls him shall be called his examination-in-chief.

CROSS-EXAMINATION: The examination of a witness by the adverse party shall be called his cross-
examination.

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RE-EXAMINATION: The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination. Where a party not subjecting to cross examination in
spite of order of Court it is not safe to rely on examination-in-chief.

DIFFERENCE BETWEEN EXAMINATION-IN-CHIEF, CROSS-EXAMINATION AND RE-

EXAMINATION

EXAMINATION-IN-CHIEF CROSS-EXAMINATION RE-EXAMINATION

1. Examination-in-Chief is the 1. Cross examination is 1. Re-examination is examination of
examination of witness by a examination of witness by witness to remove inconsistency
person calling to him. opposite party. which may have arisen during
examination-in-chief and cross
examination.
2. The order of examination-in- 2. The cross-examination is 2. The order of re-examination is last.
chief is first. second in order.
3. The purpose of examination- 3. The purpose of cross- 3. The purpose of re-exami-nation is to
in-chief is to take such examination to test the veracity remove inconsistency which may
testimony for which he is of witness by impeaching his have arisen during examination-in-
called by party. credit. chief and cross-exa-mination.
4. No leading question may be 4. Leading question may freely be 4. Leading question cannot be asked in
asked in examination-in-chief asked in cross examination. re-examination and no new matter
without permission of court. should be in introduced in re-
examination without permission of
Court.
5. Examination-in-chief is part 5. Cross-examination is most 5. Re-examination is not necessary it is
and parcel of a judicial essential for extracting the truth not essential part of judicial
proceeding. and is essential part of judicial proceeding.
proceedings.

ORDER OF EXAMINATION [SECTION 143 of BSA]:- Witnesses shall be first examined-in-chief then
(if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The
examination and cross-examination must relate to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his examination-in-chief.

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DIRECTION OF RE-EXAMINATION:- The re-examination shall be directed to explanation of matters
referred to in cross-examination; and if, new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter. The object of examination-in-
chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the
witness. The witness can give evidence of fact only and no evidence of law. Cross-examination, if properly
conducted, is one of the most useful efficacious means of discovering the truth. Cross examination is not
confined to matter proved in examination-in-chief, the slightest examination-in-chief even for formal proof
gives right to the cross-examiner to put questions about the whole of his case. If nay party has a right to
participate in inquiry or trial, then, such party cross-examines the witness(s) after they are examined by the
Court during enquiry under Section 143 of BSA.
ADMISSIBILITY OF EVIDENCE OF PERSON WITH UNFINISHED CROSS-EXAMINATION:-
Where evidence of defendant was recorded on commission. Cross-examination was only partly held but
there was death of defendant in the meantime. It was held that his evidence will not be inadmissible as there
was no provision under law that if witness was not cross-examined either in full or part his evidence would
be absolutely rendered inadmissible. It was further held that how much weight shall be attached should be
decided considering other facts and circumstances surrounding it and provisions of Section 27 of BSA will
not be applicable in such a case. (Dever Park Builders Pvt. Ltd. v. Madhuri Jalan, 2002, Cal). If a witness
after being examine up to the stage of examination does not subject to cross-examination in spite of the
order of the Court, the examination-in-chief cannot be relied upon. (Gopal Saran v. Satyanarayan, 1989,
SC).
EFFECT OF NOT GIVING OPPORTUNITY TO CROSS-EXAMINE A WITNESS:-If no opportunity
is given to cross-examine a witness his evidence must be excluded from consideration. The evidence of
witness, examined before the charge is framed, but not produced for cross-examination, is not admissible.
(Sanatan Das v. DasarathiTah, 1959, Cal).
RE-EXAMINATION:- This party who called the witness may, if he likes and if it be necessary, re-
examine him. The re-examination must be confined to the explanation of matters arising in cross-
examination. The proper purpose for re-examination is by asking questions as may be proper to draw forth
an explanation or meaning of expressions used by the witness in cross-examination, if they are doubtful.
New matters may, however, be introduced by permission of the Court and if that is done, the adverse party
has a right to cross-examine the witness on that points. The purpose of re-examination is only to get the
clarification of some doubts created in the cross-examination. (Pannayar v. State of Tamil Nadu, 2010,
SC). There is no warrant that re-examination should be limited to one or two questions and so if the
exigency requires any number of questions can be asked in re-examination. (Rashmi alias Rameshwar v.
State of M.P., 1999, SC).

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LECTURE 4:- LEADING QUESTIONS AND LAWFUL QUESTIONS AND IMPEACHING
CREDIT OF WITNESS.

QUESTION: Explain the following:

a) Leading questions
b) Hostile witness
c) Impeaching credit of witness

ANSWER: LEADING QUESTIONS: SECTION 146 of BSA

Section 146(1) of BSA defines “leading question.” Section 146(2) of BSA lays down that leading questions
must not be put in examination-in-chief or re-examination except with the permission of the Court. It also
lays down that the court should permit leading questions in examination-in-chief and re-examination as to
the matters which are introductory, which are undisputed or which has already been sufficiently proved in
the opinion of the Court. Section 146(3) of BSA lays down that leading questions may be put in cross-
examination.

Section 146(1) of BSA lay down that if a question suggests as answer which the person putting the question
wishes to receive it is a leading question. A question is leading one when it indicates to the witness the real
or supposed fact which the examiner expect and desires to be confirmed by the answer. Whether a question
is leading is to be determined by the circumstances in which the question arises. For example, is the
plaintiff your brother? Have you not lived for 10 years with him? It this boy 10 years of age? Is not your
Shyam? Do you reside at Allahabad? Are you not in service of Shyam? Have you not lived for ten years
with Shyam?

In these questions, the examiner clearly suggests the answer. In such questions the person putting the
questions is really giving answer instead of receiving in from the witness. In leading questions while the
examiner pretends ignorance and is asking for information but he really gives the answer himself instead of
receiving it.

Generally, the answer to the leading questions is giving by “yes” or “no”. But it cannot be said that in order
to stamp a question leading the answer to it must be as “yes” or “no”. Section 146 of BSA lay down that
leading questions should not be put in examination-in-chief or re-examination if they are objected to. The
Court may permit leading question to draw the attention of the witness which cannot otherwise be called to
matter under inquiry trial or investigation. The witness must account for what he himself had seen. The
section provides exceptions to the general rule stated above. Leading questions may be put in examination-
in-chief or re-examination by the order of the Court:

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 (1) As to matter which are introductory;
(2) Which are undisputed; or
(3) Which in the opinion of the Court have already been proved?

Besides these exceptions under Section 157 of BSA, a Court can allow a party examination his own witness
to put leading questions by way of cross-examination.

IF OBJECTED TO:- It should be borne in mind that if the opposite side makes any objection, leading
questions may not be put in examination-in-chief or re-examination but such questions may be put in
examination-in-chief or re-examination if the Court overrules objection. Section 146 of BSA lays down that
leading questions may be put in cross-examination.

NO MISLEADING QUESTION IN CROSS-EXAMINATION:- A counsel cannot put question in cross-

examination assuming that some facts have been proved or admitted though he can put leading questions.
Suppose a witness appears for the plaintiff, the defendant tries to show that the witness is a servant of the
plaintiff and so he is an interested witness. The proper question to be put by the defendant in cross-
examination would be “Are you a servant of the plaintiff?” A question “How long have you been in service
of the plaintiff?” is not proper as it assumes that the fact that the witness is a servant of the plaintiff has
either been proved or it has been admitted by the witness Suppose, the case of a wife against her husband is
that he misbehaves and beats her but the husband denies the allegation. The husband appears in Court to
deny the allegation. The cross-examiner cannot put a question “May I ask if you have left off beating your
wife?” Such questions are misleading.

EXCLUSION OF EVIDENCE: SECTION 156 of BSA

This section deals with ‘Exclusion of evidence to contradict answers to questions testing veracity
(correctness). According to it:- When a witness has been asked and has answered any question which is
relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence
shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false
evidence.

Explanation 1:- If a witness is asked whether he has been previously convicted of any crime and denies it,
evidence may be given of his previous conviction.
Explanation 2:- If a witness is asked any question tending to impeach his impartiality, and answers it by
denying the facts suggested, he may be contradicted. Illustrations:- A claim againsed an underwriter is
resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a

~ 14 ~
fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The Evidence is
inadmissible.

OBJECT: The object of the section is to prevent trials being spun out to an unreasonable length. If
every answer given by a witness upon the additional facts mentioned in section 149 of BSA could be made
the subject of fresh inquiry, a trial might never end. These matters are after all not of the first importance,
beyond what is comprised in the exceptions.
PRINCIPLE:- When a witness deposes to facts which are relevant, evidence may be given in contradiction
of what he has stated. But when what he deposes to affects only his credit, no evidence to contradict him can
be led for the sole purpose of shaking his credit by injuring his character. However, a witness answering
falsely can be proceeded against for giving false evidence under section 229 of the BNS. There are two
exceptions to this: - 1. Previous conviction when denied can be proved by section 334 of BNSS. and any
fact tending to impeach his impartiality when denied can be proved.

HOSTILE WITNESS: SECTION 157 of BSA

A witness is generally deposed to state in favour of the person preceding him. He will mostly not be inclined
to state anything favourable to the opponent if he can help it. It is, therefore, allowed that the opponent, in
order to illicit the truth, may cross-examine the witness, put leading questions and impeach his credit under
Sections 148 of BSA and 149 of BSA. On the same ground the person examining a witness is not allowed
to put those questions which may be put in cross-examination.

But there are cases where the rule is to be relaxed at the discretion of the court, as for instance, where is a
surprise and the witness unexpectedly turns hostile. In such cases the party proceeding should be given
permission to test his veracity and to impeach his credit. A witness whether of one party or another should
not be given more credit than he relay deserves.

In Murugesan and others v. S. Pethaperumal, 1999, Madars High Court said:

“It is clear from Section 157 of BSA (Section 154 of IEA) that discretion is conferred on Court to permit
cross-examination of witness by the party who calls it and it does not contain any condition or guidance,
which may govern the exercise of such discretion. But it is always expected that the court have to exercise
such discretion judiciously and properly in the interest of justice. A party will generally be not allowed to
cross-examine his own witness and declare the same to be hostile. Unless the court is satisfied that the
statement of witness exhibits an element of hostility or that he has realised form material statement of where
the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him
to get out the truth. There must be some material to show that the witness is not speaking the truth or has

~ 15 ~
exhibited the element of hostility to the party for whom he is deposing before the witness can b e declared
hostile and the party examining the witness is allowed to cross-examine. Merely because the witness is
speaking the truth which may not suit the party on whose behalf he is deposing and the same is favourable
to other side the discretion to allow the party concerned to cross examine its own witness not be exercised.

This section allows a party, with the permission of the court to cross-examine his own witness in the same
way as the adverse party. Such cross-examination means that he can be asked:-

(a) Leading question under Section 146 of BSA,

(b) Question relating to his previous statement in writing under Section 148 of BSA, and
(c) Questions which tend to test his veracity, to discover who he is and what is his position if life or to
shake his credit under Section 149 of BSA.

The terms hostile, adverse, unfavourable witness are alien to BSA. Those are the terms of English Law. The
rule of permitting a party calling the witness to cross examine are relaxed under common law by evolving
the terms hostile witness and unfavourable witness. Under the common law the hostile witness is described
as one who is not desirous of telling the truth at the instance of the party telling him and unfavourable
witness is one called by the party to prove particular fact in issue. In India the right to cross examines the
witness by the party calling him is governed by provisions of BSA. Section 146(2) of BSA requires that the
leading questions cannot be put in examination in chief or re-examination without permission of the Court.
The Court can however permit leading questions as to matter which are introductory or undisputed or which
in its opinion already been satisfactorily proved. Section 157 of BSA authorises the Court in discretion to
permit the person who calls the witness to put any question to him which might be put in cross-examination.
The Court is under legal obligation to exercise the discretion in judicious manner. [Ganga Singh v. State of
Rajasthan, 2001 SC].

ADVERSE OR HOSTILE WITNESS:-A hostile witness is one who from the manner in which he gives
the evidence shows that he is not desirous of telling the truth to the court. A witness cannot be said to be
hostile whenever his testimony is such that it does not support the case of the party calling him or is not
accord with the evidence of other witnesses. Tulsi Ram Sahu v. R.C. Pal, 1953 Cal., and the inference of
the hostility of a witness would be drawn from the answer given by him and to some extent from the
demeanor.

VALUE OF THE EVIDENCE OF A HOSTILE WITNESS:-The fact that a witness is dealt with under
Section 157 of BSA, even when under that section he is cross-examined to discredit, in no way warrants a
direction to the jury that they are bound in law to place no reliance on his evidence or that the party who

~ 16 ~
called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a
witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of
the opposite party. The whole of the evidence so far as it affects both the parties favourably must go to the
jury for what it is worth.” It is not correct to say that when a witness is cross-examined by the party calling
him, his evidence cannot be believed in part and disbelieved in part but must be excluded from the
consideration altogether. The correct rule is that either side may rely upon his evidence and that the whole
of the evidence so far as it affects both parties favourably or unfavourable must be considered for what it is
worth. It is settled law that the evidence of a hostile witness cannot be discarded an it can used to
corroborate other reliable evidence if such reliable evidence exists on the record.

Balu Sonba Shinde v. State of Maharashtra, 2002, it was held by Supreme Court that the evidence of
hostile witness need not be rejected ispo facto on that account. The party may advantageous portion therein.
However Court has to be extremely cautious and circumspect in such acceptance.

IMPEACHING CREDIT OF WITNESS: SECTION 158 of BSA

The court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge
in the litigation. Sometimes, the witness called by the party turns hostile and it is not safe to rely upon such
evidence. Then, the parties may be provided with an opportunity to give independent testimony by
impeaching the credit of witness.
This section enables the parties to give independent testimony as to the character of a witness in order to
indicate that he is unworthy of belief by the court. Its provisions apply to both criminal and civil cases.
Section 158 of the BSA, 2023 deals with “Impeaching credit of witness”. According to it: - The credit of a
witness may be impeached in the following ways by the adverse party or with the consent of the court, by
the party who calls him:-

1. By the evidence of persons who testify that they, from their knowledge of the witness, believe him to
be unworthy of credit;
2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any
other corrupt inducement to give his evidence;
3. By proof of former statement inconsistent with any part of his evidence which is liable to be
contradicted.
Explanation: - A witness declaring another witness to be unworthy of credit may not, upon his
examination–in–Chief, give reasons for his belief, but he may be asked his reasons in cross-examination,
and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be
charged with giving false evidence.

~ 17 ~
Illustration:- A is indicted for the murder of B. C says that B, when dying, declared that A had given B the
wound of which died. Evidence is offered to show that, on a previous occasion, C said that the wound was
not given by A or in his presence. The evidence is admissible.

~ 18 ~
LECTURE 5:- IMPROPER ADMISSION AND REJECTION OF EVIDENCES.

QUESTION: Write a short note on the following:

a) Refreshing memory by witness: 162- 164 of BSA
b) Production of documents: section 165-167 of BSA
c) Of improper admission and rejection of evidence: section 169 of BSA

ANSWER:

A. REFRESHING MEMORY BY WITNESS: SECTION 162- 164 of BSA

A witness allowed to refresh his memory, respecting anything upon which he is questioned, may refresh by
means of writing. It is not necessary that the document, used for refreshing the memory should be relevant.
It should be borne in mind that for refreshing memory the document or writing may not be admissible nut
facts tried to be proved must be admissible under this section. When a witness is examined to state about a
fact, three distinct elements are present. First, witness must have observed the fact in question. Secondly, the
witness must have recollection of the fact observed. Thirdly, he must communicate his recollection to the
Court. Thus, the element recollection stands between the element of observation of knowledge which is
produced, and the element of communication. If a witness has no recollection of a fact observed by him,
certainly, cannot narrate it before a tribunal. There are two sorts of recollectionpresent recollection and
past recollection. In the case of the present recollection, the witness either clearly remembers the facts to be
stated by him or he can recollect it by refreshing his memory by some writing, etc. In the case of the past
recollection the witness does not remember the facts observed by him and cannot revive it by refreshing his
memory, but there was a time when he did have a sufficient recollection and when it was recorded so that he
can depend on this record to prove the fact. Section 162 of BSA deals with present recollection while
Section 163 of BSA refers to past recollection. Documents which being seen bring conviction to the mind to
witness can be used for refreshing his memory. Section 162 of BSA lays down that a witness, while under
examination, may refresh his memory by looking into a writing made by himself at the time of the
transaction or so soon afterwards that in the opinion of the Court it is likely that the transaction was fresh in
his memory, or made by some other person but read by the witness so soon after the transaction that the
Court considers that it is likely that the transaction was fresh in his memory when he read it. The section
also allows a witness to refresh his memory by looking into a copy of a document, referred to above, with
the permission of the Court provided the Court is satisfied for the non-production of the original. Under this
section, accepts are allowed to refresh their memory with reference to professional treatise. The secondary
evidence by oral account of the contents of documents can be given by a person who has himself seen the
original or the copies made from the original or copies compared with the original. Where the notes noted

~ 19 ~
down at the time of inspection of documents were not the true copies of the originals they could cannot be
tendered as secondary evidence in any form either by making or reproducing its contents by way of
refreshing memory under Section 162 of BSA.

REFRESHING MEMORY BY ANY WRITING:-The section does not contemplate any particular or
special sort of document for refreshing the memory of a witness. Any document fulfilling the conditions of
Section 162 of BSA may be used for the purpose. Memoranda kept by the witness of some transactions
though the accounts were not regularly kept, were allowed to be used for refreshing memory. An account
book, horoscope, a private note book, loose sheets of accounts said to be prepared at the time of audit, have
been held to be admissible for refreshing the memory of a witness.

AT THE TIME OF TRANSACTION OR SOON AFTER IT:- Before a witness is allowed to refresh his
memory from any writing made by him, the requirements of Section 162 of BSA, should be complied with.
It must be shown that the writing was made by the deponent at the time of the transaction or so soon after
that the Court considers it likely that the transaction was at the time fresh in his memory. A doctor, when he
entered into the witness-box was given a slip of paper by a pleader. After looking at the slip the doctor
deposed that he examined the complainant and found injuries on his person. He did not depose as to what
the slip of paper was when it was made. It was held that the evidence was inadmissible.

TESTIMONY TO FACTS STATED IN DOCUMENT MENTIONED IN SECTION 162 & SECTION

163:- A witness may also testify to facts mentioned in any such documents as is mentioned in Section 162
of BSA, although he has no specific recollection of the facts themselves, if he is issue that the facts were
correctly recorded in the document.

Illustration–A book-keeper may testify to facts recorded by him in books regularly kept in the course of
business, if he knows that the books were correctly kept, although he has forgotten the particular
transactions entered.

RIGHT OF ADVERSE PARTY AS TO WRITING USED TO REFRESH MEMORY [SECTION 164

of BSA]:- Any writing referred to under the provisions of the two last preceding sections must be produced
and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness
thereupon.

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 B. PRODUCTION OF DOCUMENTS: SECTION 165-167 of BSA

Section 165 of BSA provides as “A witness summoned to produce a document shall, if it is in his
possession or -power, bring it to Court, notwithstanding any objection which there may be to its production
or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence
to enable it to determine on its admissibility.

TRANSLATION OF DOCUMENTS:- If for such a purpose it is necessary to cause any document to be

translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the
document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have
committed an offence under Section 198 of BNS.

The section deals with the production of documents in answer to summons and it seems that the section
makes it obligatory on the witness to produce the document summoned by the Court and he has no right to
decide whether the documents shall be produced.

This section makes it incumbent upon a witness to produce a document, if it is in his possession or power to
bring it into court notwithstanding any objection which there may be to its production or to its admissibility.
The objection has to be decided by the court.

But section precludes the court from inspecting any document which refers to matters of State. In cases of
such documents the court must decide the point of privilege on some other material.

Section 166 of BSA gives provision for the production of document by one party to the suit or proceeding
on instance of the other.

Under Section 166 of BSA the party is bound to give the opponent’s document as evidence, in the case if
the three conditions are fulfilled:-

(1) The first condition is that the document should be required by that party to be produced in evidence.
(2) The second condition is that it should be inspected by the party.
(3) The third condition is that the party producing the document should require the party calling for it to
put it in evidence.

Such documents need to further proof and should be admitted too.

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USING AS EVIDENCE, OF DOCUMENT PRODUCTION OF WHICH WAS REFUSED ON
NOTICE [SECTION 167]:- When a party refuses to produce a document which he has notice to produce,
he cannot afterwards use the document as evidence without the consent of the other party or the order of the
Court.

Illustration:- A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the
document and B refuse to produce it. A gives secondary evidence of its contents. B seeks to produce the
document itself to contradict the secondary evidence given by A, or in order to show that the agreement is
not stamped. He cannot do so.

C. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE: SECTION 169 of BSA

No The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal
of any decision in any case, if it shall appear to the Court before which such objection is raised that,
independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision,
or that, if the rejected evidence had been received, it ought not to have varied the decision.

This section lays down that the improper admission or rejection of evidence is not a ground for reversal of
judgment or for a new trial of the case, if the Court considers that independently of the evidence improperly
admitted, there was evidence enough to justify the decision, or that, if the rejected evidence has been
admitted it ought not have varied that decision. When therefore, the appeal is grounded on the improper
exclusion or admission of evidence, the appellant must be prepared to show, not only that there has been an
improper admission or exclusion but that a mockery of justice has been thereby caused.

The section applies to civil and criminal cases.

EFFECT OF IMPROPER ADMISSION OR REJECTION IN CIVIL CASES: SEC. 169 of BSA

The improper admission or rejection of evidence is not ispo facto ground for new trial, where there is ample
evidence to justify decision irrespective of the admission or the rejection of the evidence.

But it should be borne in mind that the reception of inadmissible evidence is less injurious than the rejection
of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted
can well be excluded from consideration whereas in the latter case the evidence wrongly rejected can only
be brought on record by having recourse to further proceeding

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