1

Factual Matrix

Police receives a phone call regarding a man being found injured near GTB
Nagar Metro Station. Rushing to the spot, the police found the victim, identified
him as A, in a critical condition. Police takes the Injured A to the nearby
hospital. On their way to the hospital, the police tries to inquire from A about
his injuries. A tells them that a person named X has shot him. On reaching the
hospital, the injured A is declared brought dead.

Police gets the post mortem and autopsy done and it is found that the cause of
death is the gunshot wound. Police swings into action and Sub-Inspector Rajesh
is the Investigation Officer (IO) in this case.

In his search to collect evidence, the IO finds a laptop belonging to A, revealing

a menacing email from someone identified as X demanding money under threat
of death. IO takes out the print out of this email. Further examination of the
scene yielded a diary belonging to X, chronicling A's distress over financial
disputes and threats from X.

Thereafter, the IO enquires about the incident from nearby shopkeepers.

Shopkeeper B reported seeing a tall, dusky man fleeing the scene, while
Shopkeeper C recalled seeing A and X together moments before the incident.
Another Shopkeeper D informed the police that his father told him about the
ongoing feud between A and X over a property deal gone sour, wherein entire
payment was made by X and he has been trying to recover the same the from A.
Another shopkeeper E told the police that he has no idea who killed A, but he
knows X is a person of bad character and is fully capable of killing A.

On the basis of this information, the police conducted a TIP wherein

Shopkeeper B recognized X as the accused. The police took X into custody.

The accused X while in custody, made a confession to the police that A owed
him money for the property that they had purchased together and he has not

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 2

been returning the same for a while now and hence X had gone to recover the
same. But A started hurling abuses at him and about his mother, causing X to
lose his temper and he ended up firing at A in a fit of rage. He also told the
police that he has hidden his pistol near the 42nd milestone on GT Karnal Road.

The IO completes the investigation and files a Challan, on the basis of evidence
collected and the statements of the witnesses recorded. The prosecution relies
on the following:

1. Print out of the Email

2. Diary of the Deceased
3. Ballistic Report
4. Statement of the Doctor, who conducted and prepared the Post Mortem
Report.
5. Statement of an Officer from the Registrar’s Office to prove the sale
deed.
6. Statement of Shopkeeper B, who identified X during TIP.
7. Statement of Shopkeeper C, who last saw the accused and deceased
together.
8. Statement of Shopkeeper D, who told that his father told him about the
ongoing dispute between the deceased and accused.
9. Statement of another witness E, who told the police that X is a person of
bad character.
10. Investigating Officer

On the other hand, the accused X pleads the following:

1. Plea of Alibi
2. That the impugned diary is not in the handwriting of deceased A
3. That the confession has been made to the police as a result of physical
torture.

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Can Courts Admit Evidence which has been obtained Illegally or
Improperly?
Illegality or impropriety in obtaining the evidence will not affect its
admissibility, if it is otherwise relevant.
In Kuruma v. The Queen (1955) AC 197 the Privy Council laid down that if
the evidence is admissible, the court is not concernedhow it was obtained.
These observations of the Privy Council were quoted with approval by the
Supreme Court in Pooran Mal v. Director of Inspection AIR 1974 SC 348.
That was a case dealing with a challenge that a search and seizure were in
contravention of the provisions of Section 132 of the Income Tax Act.
Rejecting the challenge, the Supreme Court held that even assuming that the
search and seizure were illegal, still the material seized was liable to be used
in evidence.
The legal position regarding the question of admissibility of the tape recorded
conversation illegally collected or obtained was discussed in
R.M. Malkani v. State of Maharasthra (1973 1 ) SCC 471. In that case, the
Court clarified that a contemporaneous tape record of a relevant conversation
is a relevant fact and is admissible as res gestae under S.7 of the Evidence Act,
even if it is recorded illegally.
The SC has repelled the contention that obtaining evidence illegallyby using
tape recordings or photographs offend Articles 20(3) and 21 of the
Constitution of India (Yusufalli Esmail Nagree v. The State of
Maharashtra, AIR 1968 SC 147).

Law Commission’s suggestion –

The Commission suggested incorporation of Section 166A of the Indian
Evidence Act for giving courts the discretionary power to exclude illegally or
improperly obtained evidence.
But the suggestion of Law Commission has not been accepted.
Exception in cases of illegally recovered contraband—
This rule cannot be applied to use illegally recovered contraband as evidence
of possession. Status like Narcotic Drugs and Psychotropic Substances Act,
Abkari Act etc. raise a presumption of guilt if possession of illegal article is
established. Such laws have stringent provisions for search and seizure, as the
mere possession of the article can lead to punishment. Unlawful possession of
the contraband is necessary for recording conviction under the NDPS Act.
This has been clarified by the Constitution bench in State of Punjab v. Baldev
Singh (1999) 6 SCC 172.
The Constitution bench held that the dictum in Pooran Mal cannot be applied
in cases of unlawful seizure of contraband.
The Court held that an illicit article seized from the person of an accused,
during search conducted in violation of the safeguards provided in Section 50
of the Act, cannot by itself be used as admissible evidence of proof of unlawful
possession of the contraband on the accused.
Fruits of poisonous tree; doctrine of US –
In 1920 the US Supreme Court in the case of Lumber Co. v. U.S. held that if
during an illegal search, the key to the post box is found and this box contains
a crucial document which will prove the guilt of the defendant, this document
will not be admissible in the court as evidence as it is a fruit of an unlawful
search, that is, a poisonous tree.
In 1914, the U.S. Supreme Court in the case of Weeks v. United States
wherein a federal agent conducted a search for gambling evidence without a
warrant at Fremont Weeks house and this evidence was used at the trial,
while the trial court convicted Weeks for gambling, the Supreme Court held
that the use of this evidence was barred by the Fourth Amendment, Weeks
was acquitted and the doctrine of "Fruits of the Poisonous Tree" was born.
Exclusionary rule in the US –
 The exclusionary rule is enshrined in the fourth amendment of the
American Constitution.
 In the USA the evidence is not admissible if it was obtained in an
unlawful search of his/her property, such search conducted or abetted by
persons under the authority of United States. In addition to this, all the
 information which is obtained by such illegal search is also inadmissible.
 All the pieces of evidence which are collected in breach of the fourth
amendment are rejected as the concept of fruit of the poisonous tree is
applicable.
 It means that if the tree (evidence) is tainted then the fruit is alsoaffected.
 Fruit, the evidence is product of an illegal, the poisonous tree. The
principle was laid down in Nardone v. United States.
 This principle has some exceptions as well. The exclusionary rules does
not apply to the third person.
 The rule is not valid when the evidence was obtained by a private
individual instead of from state official.
The US SC held in US v. Calendra.
This rule of excluding ‘fruits of a poisonous tree’ has a limited application in
India under Sections 24, 25 and 26 of the Indian Evidence Act which bar the
admissibility of confessions made topolice officers, custodial confessions etc.
Right to Privacy v. Fruits of Poisonous Tree: Analysis
However, another significant aspect to be noted here is that until then right to
privacy under Article 21 of the Constitutionwas not recognized by the
Supreme Court. After its recognition, the scope of section 5 of the Indian
Evidence Act, 1872 can be further explored and there is a possibility
that the Indian Courts take a stand similar to that of the U.S. Supreme Court.
The admissibility of the illegally obtained evidence can now be questioned
before the Court.
No statute can contradict the fundamental rights enshrined under the Indian
Constitution. Section 5 of the Indian Evidence Act, 1872 has now to be read
with Article 20(3) (rights against self-incrimination) and Article 21(right to
privacy) of the Indian Constitution. This will lead to a position similar to that
in the United States, that is, effectively excluding illegally procured evidence
based on the principles of reliability, protectiveness, disciplinary and judicial
integrity.
 1

DOCTRINE OF RES GESTAE

Section 6: Relevancy of facts forming part of same transaction

(Now, Section 4 of Bhartiya Sakshay Adhiniyam, 2023)

Res Gestae is a Latin term which means ‘things done’. Section 6 of the
Indian Evidence Act, 1872 (now, Section 4 of BSA, 2023) is the actual adoption of
the English doctrine of Res Gestae, though the use of the ward has been avoided in
the section.

 Res Gestae means a fact or transaction or an event. – Taylor

“Res gestae” may be defined as those circumstances which are automatic and
undersigned incident of a particular litigated act and which are admissible when
illustrative of such acts.

Res gestae includes the relevancy of those facts which are ‘part of same
transaction’. Therefore it is necessary to examine what is the transaction. A
transaction is a group of facts so connected together as to be referred to by a
single name, as a crime, a contract, a wrong or any other subject of inquiry which
may be in issue.

 Statements as Res Gestae:

The question is to what extent such statements can be regarded as parts of

the transaction. Some important guidelines in this regard are:

 Spontaneous and simultaneous utterance is a part of the transaction, e.g.

what a person states during an occurrence in respect of the occurrence itself.

 Statement must be contemporaneous with the fact, i.e., statement made

either “during or immediately before or after its occurrence”, and of such a
nature that the event speak for themselves (and not what the people say
when talking about the event). The words must be at least de recentie.

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 2

Spontaneity therefore is the real test for same transaction. Under Section 6 any
of the following facts can be relevant

a. any communication made on the spot or immediately after the incident.

b. any sound created on the spot or immediately after.

c. any spontaneous conduct by the accused, victim or bystanders.

 Statement of bystanders witnessing a transaction are relevant if they are

made while the transaction is in progress or so shortly before or after it, as to
form part of same transaction.

If ‘A’ assaults ‘B’ on the neck with a knife and this is seen by bystanders who
exclaim, ‘A’ is killing ‘B’, the exclamation is as much part of the transaction of
murder as the gushing out of the blood from the wound inflicted on the neck with
the only difference that the latter is a physical reaction to the act whereas the
former is the psychological reaction through perception.

In order to fall within the terms of Res Gestae, it is essential that the fact should
have been so connected with the main fact that it can be said to be a part of the
transaction. The real test for Res Gestae is that the said fact is so intimately inter-
woven with the principle facts that it can be called a part of the transaction.

In R v/s. Foster (1834), the prisoner was charged with manslaughter in killing a
person by driving over him. A witness saw the vehicle driven by at a very rapid
rate, but did not see the accident. Immediately after, on hearing the victim groan,
he went up to him and asked him what was the matter. The deceased then made a
statement as to the cause of the injury. The Court held that “what the deceased
said at the instant, as to the cause of the accident, is clearly admissible.”

In R v. Bedingfield (1879) - In this English Case where a woman with throat

cut came out of the room shouting, “Oh dear Aunt see what Bedingfield has done
to me”. Cockburn C.J held that the statement was not admissible as res gestae as

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 3

it was made after the incident was over. The statement should be an exclamation
“forced out of a witness by the emotion generated by an event” rather than a
subsequent narrative. This judgment was highly criticized for its strict
interpretation.

“Anything uttered by the deceased at the time the act was being done would be
admissible, as, for instance if she has been heard to say something, as “don’t
Harry”. But here it was something, stated by here after it as all over. The statement
was also held to be not relevant as a dying declaration because she did not have the
time to reflect that she was dying. The result and the reason given seem to be
contradictory.

Then came the judgment of R v/s. Christie (1914) in which an assault was
made on a young boy. Soon after such assault, the boy made certain statements to
his mother narrating of the offence and the man who assaulted him. Herein Lord
Atkinson has opined that the statement made by the boy was so separated by
time and circumstances from the actual commission of the crime that it does
not form part of Res Gestae.

In Rattan vs. Queen (1971), an English case, a phone call was received by the
police headquarter with the lady on the phone call stating that kindly connect me to
police officer. Before connecting the call to the police the call was disconnected.
The police traced the phone call location and reached at the address of the alleged
lady where the police found the lady as dead. The husband stated that he
mistakenly fired at her wife and she died. The court held that the husband is liable
for murder and the phone call made by the lady was held admissible as forming
part of the same transaction.

In an Indian Case of Rattan Singh v/s. State of Himachal Pradesh (1997) SC,
a woman was shot dead by the gun during the night. When the accused fired at the
deceased, the deceased shouted and other members hearing the noise of the bullet

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 4

as well as the woman entered her room. The woman said that she was shot dead by
the appellant and died. The statement given by her was held admissible as a part
of same transaction because the statement was the natural outcome of the
incident.

In G. Vijayavardhan Rao v. State of A.P. AIR 1996 SC 2971 it was held that
if the statement is made after the act is over and its maker has had the time for
reflection and deliberation (fabrication); and/or it is a mere narration of past
events, then it is not relevant. The statement should be an exclamation “forced
out of a witness by the emotion generated by an event”. Here, the considerable
interval between the act of carnage and the recording of the statement by the
magistrate made the evidence inadmissible.

In this case, the accused had snuck into a passenger bus with petrol and match-
box and the put the bus ablaze, thereby roasting and causing the death of 23
passengers. The Supreme court held that if there was a reasonable time lapse
between the occurrence of the incident and recording statement of the accused then
that statement will remain outside of the purview of doctrine of Res Gestae as it
gave immense time to accused to fabricate the statement or to think the statement
in his/her favour.

In Sukhar v. State of U.P. (1999) SC, a victim was shot at by the accused and
he raised an alarm. When a witness rushed to the spot, the victim told him that it
was the accused who shot at him. The victim survived and so the accused was
charged with an offence under Section 307, IPC. However, during the pendency of
the trial, the victim died because of some other cause. The question arose whether
the witness could give evidence of what the victim told him. In the present case,
the Court held that the evidence of the witness is admissible as res gestae.

In State of Andhra Pradesh v. Panna Satyanarayan (2000) SC, the accused

murdered his wife and daughter. The father of the deceased wife stated that father

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 5

of accused told him on telephone that his son had killed the deceased. There was
no finding as to whether the information given by accused’s father to the
deceased’s father that the accused had killed the deceased was either of the time
commission of the crime or immediately thereafter so as to form the part of same
transaction. The statement was held to be not relevant under Section 6.

In Sawal Das v. State of Bihar (1974) SC at the time of murder, the cry of
deceased ‘save me’ and that of the children that their mother was being killed are
relevant as res gestae.

Test for Admission of evidence under Res Gestae

 Real test of Section 6 of IEA (now Section 4 of BSA, 2023) is as to

whether the fact in question occurred in the same transaction, either at the
time of happening of fact in issue or before that or after that. “Transaction”
is a continuity of events without any external interference so as to mould
the sequence of events.

 A good working test of deciding what transaction is; is proximity of time,

unity or proximity of place, continuity of actions, and community of
purpose. But the main test must be continuity of action and community of
purpose.

Criticism of the Doctrine:

The res gestae doctrine has often been criticized. It was the opinion of
PROFESSOR WIGMORE 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,
declarations as to the state of mind or health. It is harmful because it causes
confusion about the limitations of the other rules.

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 Section 7

Occasion, Cause, Effect, Etc. –

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

Illustrations –

a. The question is whether A robbed B.

The facts that shortly before the robbery, B went to a fair with money in his
possession, and that he showed it, or mentioned the fact that he had it, to third
persons, are relevant.

b. The question is whether A murdered B.

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

c. The question is whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison and habits of B
known to A, which, afforded an opportunity for the administration of poison are
relevant facts.

Illustration: The question is, whether A poisoned B. The state of B`s health before
the symptoms ascribed to poison and habits of B, known to A, which afforded an
opportunity for the administration of poison, are relevant facts.

The section thus provides for the relevancy of the following kindsof facts:

1. Facts constituting the occasion

 2. Facts which show the cause
3. The effects of the principal facts
4. Facts which provide the opportunity for the happening of the principal fact,
and

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

Scope:

The scope of Section 7 is wider than Section 6. Section 6 deals with relevant facts
forming part of the same transaction, whereas Section 7 provides for the relevancy of
several classes of facts. Sometimes, it is difficult to prove whether fact forms part of
the same transaction, but there are several collateral facts which are not part of the
same transaction, are required to be judicially considered for ends of justice provided
they constitute the occasion, cause or effect or provide opportunity for the happening
of the facts in issue. “Evidence relating to collateral facts is admissible when such
facts will, if established, establish reasonable presumption as to the matter in dispute
and when such evidence is reasonably conclusive.” The relevancy is determined by
human experience.

Section 7 based on inductive logic– Under Section 7, the relevancy of facts is to

be determined by human experience. What has been the effect of a particular cause
and what has been a constant cause of a particular effect in the past, will be the
same in future.

If a living being is cut into pieces on the ground there shall be bleeding and the
blood will be found on the place of occurence. By his induction whenever a man
finds human blood in a great quantity on a particular place he may reasonably infer
that some living being was cut into pieces or at least severely injured there.
Occasion- It is also a circumstance or set of circumstances. State of things and
occasion may overlap. Occasion is a set of circumstances at one particular point of
time (and if it remains for a longer period, it becomes state of things). If the
circumstances of occasion exist over a period I time, it remains occasion, but also
becomes a state of things (overlap). Evidence can always be given of the set of
circumstances which constituted the occasion for the happening of the principal
fact. For example, in R. v. Richardson, the facts of which have been noted before,
the fact that the deceased girl was alone in her cottage at the time of the murder is
relevant as itconstituted the occasion for the murder.

Cause – Evidence can be given of the set of circumstances whichconstitute the cause
for the happening of the principal fact. “Cause” often explains why a particular act
was done. It helps thecourt to connect a person with the act.

The act in question must have been done by the person who had the cause for it. If
for example, a person is running short of money that may cause him to take a loan.
And, if he denies the fact of the loan, evidence can be given of the circumstances
which became the cause of the loan. In this respect the word “cause” more or less
means the same thing as does the word “motive” in section 8.

The word “cause” is however, broader than the word “motive”. Where, for example,
soon after an election the winning candidate is murdered, the election and
somebody’s defeat at it is the causeof the murder and beyond that cause there may be
no motive in it.

Effects – Every act leaves behind certain effects which not only record the
happening of the act, but also throw light upon the nature of the act.

One of the important facts which connects a person with the act in question is the
footprints on the scene of the crime and the finger impressions upon the objects
that he might have touched.
In R. v. Richardson (Wills on Circumstantial Evidence, P. 225), where a young
girl was killed in her cottage, “the prints of the footsteps showed that they were
those of a person who must have worn shoes, the soles of which had been newly
mended and which had iron knobs or nails in them. This is one of the effects of the
facts in issue.

The fact that the accused Richardson’s shoes corresponded exactly with this
impression in dimensions, shape of the foot, form of the sole, and the number and
position of the nails, was relevant as it so surely established Richardson’s presence
at the place of the crime.

Opportunity – The circumstances which provide an opportunityfor the happening

of a fact in issue are relevant. Often a person has to carve out for himself an
opportunity to do the act in question.

This may involve a break from the normal routine of his life.

In R. v. Richardson for example, the fact that Richardson left his fellow workers at
about the time of the murder under the pretence of going to a smith’s shop was
relevant as this gave the accused his opportunity.

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

Section 7, would allow evidence of the state of relations betweenthe parties, and, in
the case of murder, the state of the health of the deceased and his habits, etc.

In Ratten v. Reginam ((1971) 3 AII E.R. 801), for example, where the accused
was prosecuted for shooting down his wife and he took the defence of accident, the
fact that the accused was unhappy with his wife and was carrying an affair with
another woman was held to be relevant as it constituted the state of things in which
the principal fact, namely, the shooting down, happened.
In a murder trial evidence was led to the effect that when it became cloudy and
stormy, when the electricity failed and when it became very dark the murder was
committed. In this case the fact of murder is principal fact and the other facts show
the state of things under which the principal fact happened.

In Spencer Cooper’s trial for murder, the body of the deceased was found in a
river. The question in issue was whether she has committed suicide by jumping and
drowning in the river or had been killed and thrown into the water. The stomach of
the deceased contained no water. The prosecution wanted to adduce evidence of
expert doctors to the effect that a person who dies inwater the stomach must contain
water. On the other hand the defence tried to adduce evidence to the effect that a
person dyingin the water does not necessarily take water inside his belly. Nowin this
case facts in issue are (1) whether the deceased was killed outside and thrown into the
water, or (2) she jumped into the water and died of drowning.

These facts which being the general consequences of drowning are relevant under
Section 7.

In a case, the plaintiff brought an action against a barber for negligent use of razor
by which he had caused the plaintiff to have barber’s itch. The plaintiff adduced
evidence to prove and he was allowed to prove that he never went to another
barber’s shop and that two other persons who had been shaved by the defendant
acquired the itch. These facts were allowed as they constituted the state of things in
which the plaintiff (acquired itch).

Section 7 is extension of the principal of Res Gestae Section 7 leaves the

transaction beside, provides for the admission of several classes of facts, which
though do not possibly form part of the transaction, are yet connected with it in
particular modes and so they are relevant with the transaction under enquiry.

Last Seen Together Theory

Last seen together theory derives its origin from the concept of opportunity under
Section 7, i.e., if the accused was found together with the victim the last when the
victim was seen alive. In such cases, if there are other incriminating facts against the
accused, then the court may presume that the accused was the one who caused the
death.

The burden of rebutting that presumption would lie upon the accused. The accused
can rebut that presumption by either proving that he had separated from the victim
before his death or by proving that some third factor (person) had intervened or by
proving that he himself was not physically in a condition to kill the victim. The time-
gap is also important in raising the presumption and also the place where two were
seen together is important.

 Navneetha Krishnan v. State (by Inspector of Police) (2018, SC): In the

cases of last seen together, the law presumes that it was the person who was
last seen in the company of the victim was the one who committed the murder.
However, the presumption is rebuttable but last seen theory alone is not
sufficient for conviction. There has to be other strong circumstantial
evidences. A person cannot be convicted solely on the basis of last seen
theory. It requires corroboration.
 State of Goa v. Sanjay Thakran & Anr. (2007, SC): If the time gap between
the last seen together and the death is too small, then the possibility of the
interference by negligible. a third person/factor is almost negligible.
 State of Chhattisgarh V. Chandrapal (2022, SC): In Absence of any other
links in the chain of circumstantial evidence, the accused cannot be convicted
solely on the basis of "Last seen together", even if version of the prosecution
witness in this regard in believed.
 1

Section 8 of IEA, 1872: Motive, Preparation and

Previous or Subsequent Conduct
(Now, Section 6 of Bharatiya Sakshya Adhiniyam, 2023)
Section 8 of IEA, 1872 (now, Section 6 of BSA, 2023) provides for the
relevancy of three principal facts. They are:
1. Motive
2. Preparation, and
3. Conduct
1. Preparation:
Preparation consists in arranging the means necessary for the commission
of a crime. Every crime is necessarily preceded by preparation.
Illustration: "A is tried for the murder of B, by poison. The fact that, before
the death of B, A produced poison similar to that which was administered to B
is relevant."
There are Four Stages in Commission of Crime:
1. Intention
2. Preparation
3. Attempt
4. Accomplishment / Complete act.
The first, intention is not punishable. The second stage in commission of
a crime is preparation. Mere preparation is not punishable under the penal
code except under special circumstances.
The following are the instances under the IPC which punishes preparation of
an offence:
i. Preparation to wage war against the Government of India (S. 122 IPC);
ii. Preparation to commit depredations on the territories of a friendly country
(S. 126 IPC);

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 2

iii. Preparation to commit dacoity (S. 399 and 402 IPC);

iv. Offences relation to counterfeit coins and stamps (S. 233, 234, 235, 256,
257 IPC);
v. Possession of counter it coins false weights and forged documents (S. 242,
243, 259 & 266 IPC).
Though not always punishable, evidence tending to show that the accused
made preparation to commit a crime, is always admissible.
2. Motive:
Motive- A motive is that which moves a man to do a particular act. It is
that which is in the mind of a man and which moves him to act.
Salmond describes motive as "the ulterior intent". It may be good or bad.
Motive by itself is no crime, however heinous it may be. Once a crime has
been committed, the evidence of motive becomes important. Therefore,
evidence of the existence of a motive for the crime charged is relevant.
Existence of a motive for committing crime is not an absolute
requirement of law but it is always a relevant factor (Algypandi v. State of
Tamil Nadu, AIR 2012 SC 2405).
 Intention v/s. Motive- Motive should not be confused with intention. Unless
stated otherwise, intention is an element of crime, whereas motive is not.
Motive may be a relevant factor to be considered in awarding punishment to
the accused. Sometimes, motive may overlap with intention as well.
Whereas, Intention is an act of the will directing an act or a deliberate
omission. It shows the nature of the act which the man believes he is doing. If
a man fires at a tiger, but the aim is missed and a man is killed, he intends to
kill the tiger. His intention is not to kill the man. The motive to kill the tiger
might have been to get rid of the danger from it to men or to get its hide.
Similarly, an act may be done with bad intention but good motive.
Example: A thief steals money and helps the poor.
When there is positive, clear, cogent and reliable ocular testimony,

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motive in criminal cases is not at all relevant. The mere fact of a strong motive
to commit the crime cannot be of any assistance to the accused. The motive
behind a crime and absence of motive both are relevant for assessing evidence
(Darbara Singh v. State of Punjab, AIR 2013 SC 840 at P. 844).
 Motive not a substantive evidence --- The proof of motive alone cannot be
sufficient to convict the accused as it is not substantive evidence but only
corroborative in nature (State of Punjab v. Bittu, AIR 2016 SC 146).
3. Conduct:
The conduct is the expression in outward behavior of the quality or
conduct operating to produce those effects.
 Whose Conduct is Relevant?
Paragraph 2 of Section 8, IEA, 1872 (Now, Section 6 of BSA, 2023)
deals with the relevancy of the conduct of the following persons:
i. Parties to the suit and of their agents.
ii. Person, an offense against whom is the subject of a proceeding, i.e. Victim.
It must be borne in mind that the conduct of a party alone is admissible.
The conduct of a person who is not a party to the suit or proceeding is not
admissible.
In the case of Deshraj Sharma v/s. State of Punjab (1951), it was held that the
conduct of a man is admissible only against him. The conduct of one accused is
not relevant against a co-accused.
In Sardul Singh v/s. State of Bombay (1957) SC, it was held that the conduct of
a conspirator who was dead and so not an accused at the time, was held
inadmissible.
If the FIR is given by accused himself, the fact of his giving information is
admissible against him as evidence of his conduct, under Section 8 of IEA, 1872
(Aghnoo Nagesia v/s. State of Bihar (1966) SC)
 Which Conduct is Relevant?
It is a conduct which is directly and immediately influenced by a fact

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 4

in issue or relevant fact but it does not include action resulting from some
intermediate cause. A conduct to be relevant under section 8 need not be
contemporaneous. It may be antecedent or subsequent to the fact in issue or
relevant fact.
In this regards, the following facts are relevant in criminal cases:
i. Conduct of the accused shortly before or after the commission of offence
which influenced or was influenced by his commission.
ii. Statement made by him which accompany and explain the conduct.
iii. Statement made to him or in his presence and hearing which affects his
conduct.
Example: When a person is accused of a crime, the fact that before or at the
time of or after the alleged crime he destroyed or concealed evidence or prevented
the presence or procured the absence of the persons who might have been
witnesses, to give false evidence respecting it is relevant as a conduct in reference
to the proceeding.
 What are the 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 other two conditions is not
satisfied.
 Statements of a party to a proceeding accompanying and
explaining acts
 Mere Statements are Not Conduct
The Explanation 1 makes it clear that the mere statements do not constitute
'conduct' unless those statements "accompany and explain acts other than
statements". Such statements accompanying the acts are considered to be

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 5

evidence of res gestae.

Example: The question is, whether ‘A’ was raped. The fact that, shortly after the
alleged rape, ‘A’ made a complaint relating to the crime, the circumstances under
which, and the terms in which, the complaint was made, are relevant. The fact that,
without making a complaint, ‘A’ said that ‘A’ had been raped is not relevant as
conduct under this section.
Therefore, the statements must amount to complaints to be admissible. A
mere statement is not relevant. The essential difference between the two is that a
complaint is made with a view to redress or punish and must be made to someone
like the police, a parent or some other person to whom the complainant looked for
assistance and protection; whereas a statement is “expressive of feeling.”
 Can the statement of witnesses recorded by Police under Section 161
Cr.P.C. form conduct under Section 8 IEA, 1872?
In Prakash Chand v. State (Delhi Admn.), 1979 Cri LJ 329 – “What is
excluded by Section 162 Cr.P.C. is the statement made to a Police Officer in the
course of investigation and not the evidence relating to the conduct of an accused
person (not amounting to a statement) when confronted or questioned by a Police
Officer during the course of an investigation.”
 Statement of another affecting conduct of a party to a proceedings –
Explanation II
Under this Explanation another class of statements i.e., the statements, affecting
the conduct of a person, whose conduct is relevant under this section is admissible.
The question is whether ‘A’ murdered ‘B’. During the enquiry one ‘C’ said in
the presence of ‘A’ “the sub-inspector is coming to arrest the man who has
murdered B”. Hearing these words of ‘C’, ‘A’ runs away. At trial of ‘A’, the
words spoken by ‘C’ that the sub-inspector was coming to arrest the murderer, and
after hearing that the conduct of ‘A’s running away are relevant together.

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SECTION 9 of IEA, 1872

(Now, Section 7 of Bharatiya Sakshya Adhiniyam, 2023)
Facts necessary to explain or introduce relevant facts.
 Evidence is always allowed of facts which are necessary to
introduce or explain the main fact or some relevant fact.
 Introductory Facts:
It would be practically impossible, in conducting a suit or proceeding to
jump directly on the main fact. Facts which are introductory of a relevant fact
are often of a great help in understanding the real nature of the transaction,
and in supplying the missing link.
 Explanatory Facts:
Evidence of explanatory facts is allowed for the same reason.
For example: A person is tried for leading certain people to a riot by
marching at the head of them. The cries of the mob may be given in evidence
being explanatory of the nature of the transaction.
A person, accused of theft, is seen giving the stolen property to his wife
and instructing her that she should hide the property. His statement is
relevant as explanatory of the fact that he had some reason for hiding the
property.
 Evidence can be given of facts which support or rebut an inference
suggested by a fact in issue or relevant fact.
In R. v/s. Egestor, the prisoner was charged with robbing the
complainant of a coat by threatening to accuse him of an unnatural crime.
The evidence was tried to be adduced to the effect that on the following night
he was attempting to rob another person of his coat.
The fact that the accused was trying to rob another man was not in issue
in the present case, but this fact was allowed only because it supported the
inference that the man must have committed robbery on the date in question.
For example, a person is accused of a crime. The fact that soon after
the crime he absconded from his house is relevant under Section 8 as a
‘conduct’ affected by the facts. Such a conduct is relevant because it suggests
the inferences that he is guilty.

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 2

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

ticket or in shabby dress, this will be relevant as these facts support the
inference that he is guilty.
 Facts which contradict the inference of guilt will also be Relevant.
It will be equality relevant for him to show that he left home because he
had urgent and sudden business to attend. The details of such business are
not relevant except in so far as they are necessary to show that the business
was really sudden and urgent.
 Facts which fix the Time or Place:
Whatever facts will help the court to fix the time or place of the
happening of the relevant fact can be admitted in evidence.
Example- Post Mortem Report.
 Facts which show the Relation of parties:
Lastly, the section provides that the facts which show the relation of the
parties by whom a fact in issue or a relevant fact was transacted are relevant.
In an action for damages for defamation, the state of the previous relations of
the parties will be relevant.

 Facts which establish the Identity of Things:

Facts which establish the identity of anything, or person whose identity
is relevant, are relevant.

IDENTITY

Person Property

Stolen
Dead Alive Property or
Weapons

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 Identity of Things:
In Earabhadrappa v. State of Karnataka, AIR 1983 SC 446, a case
relating to murder and robbery, the police recovered robbed articles which
comprised valuable sarees and ornaments. A lady of the house was called
and she identified them in the Court as articles belonging to the deceased.
The question was about the admissibility of the evidence.
The Supreme Court said” “it is a matter of common knowledge that
ladies have an uncanny sense of identifying their own belongings,
particularly articles of personal use in the family.”
 Identity of Person:
When a person’s identity is being investigated in a matter, identification
may be done by observations of the special and unique feature, finger prints,
foot prints, photographs, through physical indicators like marks, signs, or
injuries on the body. Medical assessments, including bone structure, skeletal
features, age estimation, and voice analysis, are also employed for
identification purposes.
The "Test Identification Parade" (TIP) is one of the methods for
establishing the identity of the accused. The power to conduct TIP is derived
from Section 54A Cr.P.C. 1973 (now, Section 54 of BNSS, 2023).
 What is TIP?
Test Identification is a process by which the identity of the persons,
things or animals concerned in the offence under investigation or trial is
established, through a test parade.
The necessity for holding an identification parade can arise only when
the accused are not previously known to the witnesses.
It is desirable that a test identification parade should be conducted as
soon as after the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown to the witnesses prior to
the test identification parade.
 How is TIP done?
Witnesses who claim to have seen the culprits at the time of occurrence
are to identify them from the midst of other persons. Identification

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 4

proceedings in their legal effect amount simply to this, that certain persons are
brought to jail or some other place and make statements either express or
implied that certain individuals whom they point out are persons whom they
recognise as having been concerned in the crime. TIP does not constitute
substantive evidence.
 What is the Evidentiary Value of TIP?
In Santokh Singh v. Izhar Hussain, 1973 (2) SCC 406, it was
observed Identification tests do not constitute substantive evidence. They are
primarily meant for the purpose of helping the investigating agency with an
assurance that their progress with the investigation into the offence is
proceeding on the right lines. The identification can only be used as
corroborative of the statement in court.
 Who can Conduct TIP?
 TIP Conducted by Police Officer:
Section 54A Cr.P.C. 1973 (now, Section 54 BNSS, 2023) empowers the
police officer to request the court for conducting TIP. However, if the TIP is
conducted before the police officer himself, the same is hit by Section 162
Cr.P.C. 1973.
The same was held in Ramkishan Mithanlal Sharma v. State of
Bombay, AIR 1955 SC 104 and therefore such a statement can be used only
for the purposes stated in S. 162 Cr.P.C. i.e., for the purpose of contradiction.
However, if police have only arranged the test identification parade but
same was got conducted by independent witnesses/persons or executive or
judicial magistrate, it can be used both for corroboration and contradiction.
 TIP Conducted by Judicial Magistrate:
TIP conducted before a Judicial Magistrate holds higher credibility as
a TIP conducted by a Judicial Magistrate can retain evidential value under
Section 80 of the Evidence Act 1872 (now, Section 79 of BSA, 2023).
 TIP Conducted by Executive Magistrate:
S. 291A of the Criminal Procedure Code (now, Section 327 BNSS,
2023) makes report of TIP by Executive Magistrate per-se admissible without
calling him as a witness to prove the report subject to the order of the court.

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 5

 Is TIP Violative of Article 20(3) of the Constitution of India?

Article 20(3) of the Constitution of India is also not violated by compelling an
accused to stand up and show his face for the purpose of identification. It does
not amount to giving of testimony as to the final facts. He can also be ordered
to disclose any scar or mark on his body for the purpose of identification.
 Can accused demand TIP?
Generally speaking, accused cannot demand TIP as a matter of right but
if demanded, it should be considered in the facts and circumstances of the
case. If the prosecution turns down the request of the accused for
identification, it runs the risk of the veracity of the eye witness being
challenged on that ground (Lajjaram vs State, 1955 Cri LJ 1547).
 What is the Effect of Non-holding of TIP?
Failure to hold Test of Identification Parade is not fatal in all cases.
In Rameshwar Singh v. State of Jammu and Kashmir, AIR 1972 SC
102, it was held that identification of accused by the witnesses soon after the
former’s arrest is of vital importance in the interest of justice on the fair play,
both to the accused and the prosecution.
 What is the Effect of delay in conducting TIP?
The delay in conducting the TIP may affect its credibility depending
on the facts and circumstances of each case.
There may be situations where the occurrence or incident has left deep
impact on the witness that it gets etched in his memory and a person may be
able to re-collect the perpetrator even after a long gap of time.
 Can TIP be conducted by Voice, Photograph, Gait, Skull Super-
Imposition Technique, Footprints?
 Identification by Voice:
In Mohan Singh vs. State of Bihar, AIR 2011 SC 3534, the court held
that identification of accused from voice is possible if there is evidence to
show that witness was closely acquainted with the accused to identify him
from his voice.

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 6

 Identification by Photograph:
TIP can be done by photograph. It is not illegal. Photo identification or
TIP during investigation is an aid in investigation and do not form the
substantive evidence.
It was held that photo identification or TIP before the Magistrate, are all
aides in investigation and do not form substantive evidence. Substantive
evidence is the evidence of the witness in the court on oath.
It can be brought under Section 8 of IEA, 1872 (now, Section 6 of BSA,
2023) as evidence of conduct of a witness in photo identifying the accused in
the presence of an IO or the Magistrate, during the course of an investigation.
(Sidharth Vashist @ Manu Sharma vs. State (Delhi), AIR 2010 SC
2351).
 Identification by Gait:
A witness can identify a person, with whom he is fairly acquainted or is
in intimate terms, from his voice, gaits, features etc. even when the light is
insufficient to see his face. (Hussain vs. The State of UP and another, AIR
1981 SC 2072)
 Identification by Skull Super-Imposition technique:
In Ram Lochan Ahir v. State of W.B. AIR 1963 SC 1074, it was held
that "The question at issue in the case is the identity of the skeleton. That
identity could be established by its physical or visual examination with
reference to any peculiar features in it which would mark it out as belonging
to the person whose bones or skeleton it is stated to be. Similarly the size of
the bones, their angularity or curvature, the prominences or the recessions
would be features which on examination and comparison might serve to
establish the "identity of a thing'' within the meaning of Section 9 of IEA,
1872 (now Section 7 of BSA, 2023).
The outlines of the skull which is seen in the superimposed photograph
show the prominences, the width of the jaw bones and their shape, the
general contours of the cheek bones, the position of the eye cavity and the
comparison of these with the contour etc. of the face of the deceased as seen
in the photograph serve to prove that features found in the skull and the

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 7

features in the bones of the face of the deceased are identical or at least not
dissimilar. It appears to us that such evidence would clearly be within
Section 9 of the IEA, 1872 (now Section 7 of BSA, 2023)."
Recently this method was also employed in Sheena Bora’s Murder
Case, where the skeleton recovered from the forest was identified to be that
of Sheena Bora.
 Identification by Footprints:
The evidence of expert tracker as to identity of footprints is also
admissible under section 9 of IEA, 1872 (now Section 7 of BSA, 2023).
In Pritam Singh v. State pf Punjab AIR 1956 SC 415, it was
observed that ‘the science of identification of foot-prints is no doubt a
rudimentary science and not much reliance can be placed on the result of
such identification. The track evidence, however, can be relied upon as a
circumstance 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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 1

Section 10 of Indian Evidence Act, 1872 / Section 8 of Bhartiya Sakshya

Adhiniyam
Things said or done by conspirator in reference to common design.—Where
there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one
of them, is a relevant fact as against each of the persons believed to so
conspiring, as well for the purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person was a party to it.
Illustration
1. Reasonable ground exists for believing that A has joined in a conspiracy to
wage war against the 1[Government of India].
2. The facts that B procured arms in Europe for the purpose of the conspiracy, C
collected money in Calcutta for a like object, D persuaded persons to join the
conspiracy in Bombay, E published writings advocating the object in view at
Agra, and F transmitted from Delhi to G at Kabul the money which C had
collected at Calcutta, and the contents of a letter written by H giving an
account of the conspiracy, are each relevant, both to prove the existence of
the conspiracy, and to prove A’s complicity in it, although he may have been
ignorant of all of them, and although the persons by whom they were done
were strangers to him, and although they may have taken place before he
joined the conspiracy or after he left it.
What is Conspiracy?
It is defined under Section 120A of Indian Penal Code, 1860 as
When two or more persons agree—
To do an illegal act, or
To do an act which is not illegal by illegal means.
Section 10 Indian Evidence Act, deals only with evidence relevant to prove the
existence of conspiracy and to show that a particular person was party to the
conspiracy.

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Section-8 -– It is an exception to rule that one cannot be criminally

responsible for acts and statements of others based on the principle of agency.
The rule is founded on identity of interest and community of purpose existing
between parties.
There should be, a prima facie evidence that the person was a party to the
conspiracy before his acts can be used against the co-conspirator.
Once such prima facie evidence exists, anything said, done or written byone of
the conspirators in reference to the common intention, after the said intention
was first entertained, is relevant against the others.
Direct evidence is seldom available. it is to be inferred fromcircumstances.
The conditions of relevancy under this section are-
There must be a reasonable ground to believe that two or more persons
have entered into a conspiracy.
The act in question must be done after the time when the intention to
conspire was first entertained by any one of them.
The act must have been done in reference to their common intention.
In Bhagwan Swarup Lal Bishan Lal vs. State of Maharashtra, AIR 1965 SC
682-
The court stated the following points on this:
i. Perusal of S. 10 indicates that it will come into operation only
when court is satisfied that there is reasonable ground to believe
that two or more persons have conspired together to commit an
offence or actionable wrong (Tort).
ii. It implies that there should be prima facie evidence that person was
party to consipracy before his acts etc. can be used against other
iii. If aforesaid condition is satisfied, then anything said, done or written
by one conspirator in reference to the common intention after the
said intention was entertained is relevant against other

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iv. It is relevant for two purposes:

a. To prove the existence of conspiracy
b. That person was a party to the conspiracy.
 It cannot be used in favour of other party for the purpose of showing
that such a person was not party to the conspiracy.
v. The expression ‘in reference to common intention” is very
comprehensive with the result that anything said, done or written
by a co-conspirator after conspiracy was formed will be evidence
against others before he entered into conspiracy or after he left it.
Sardul Singh Caveeshar vs. State of Maharashtra, 1964 (2) SCR 378 The
expression “ in reference to their common intention” is very comprehensive
and it appears to have been designedly used to give it a wider scope than the
words “in furtherance of’ in the English law; with the result, anything said,
done or written by a co-conspirator, after the conspiracy was formed, will be
evidence against the other before he entered the field of conspiracy or after he
left it ”
Why Section 8?
 This section has been deliberately enacted in order to make such acts and
statements of a co-conspirator admissible against the whole body of
conspirators because of the nature of the crime. A conspiracy is hatched
in secrecy, and executed in darkness. Naturally, therefore, it is not feasible
for the prosecution to connect each isolated act or statement of one
accused with the acts or statements of the others, unless there is a
common bond linking all of them together.
Reasonable ground to believe existence of conspiracy
Existence of conspiracy and its objective can be inferred from surrounding
circumstances and conduct of persons involved.
This section comes into play where there is a reasonable ground to believe the
existence of a conspiracy.

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As in the case of Kehar Singh Vs. State (Delhi Administration) 1968, SC,
the fact that the two accused, one of whom actually cause death, were seen
together before the event isolating themselves on a roof top and making every
possible effort to conceal their conversation from family members, was held
to be enough prima facie proof of conspiracy,so as to punish one for the action
of other.
R. Vs. Blake and Tye (1844)
Blake and Tye were charged with conspiracy to dodge the customs by passing
goods without paying fuel duty. Tye made certain entries in two books. One of
them was used for carrying out the fraud and the entries were necessary for-
that purpose. But the other was for his private record, or convenience such as
the counterfoil of his cheque book. It was held that the entries in the former
book were admissible against Blake, but thelater were not.
Upon the first point, the evidence was clearly receivable, as it was an entry
made in course of transaction which could not have been proud by any other
means, with regard to the other piece of evidence, it is a mere statement of
what this party was doing. A mere statement made by one conspirator, or an
act that he may choose to do which is not necessary to carry the conspiracy to
its end, is not evidence to effect other.
The essence of the decision seems to be that evidence of an act of a
conspirator is relevant against others only if the act was done to carry out
the conspiracy. The act should relate to the furtherance of common object.
Similarly, in the case, CBI Vs. V C Shukla (1998, SC), the entries in the diary
of a person showing the name of certain person to whom payments were
supposed to have been made were held to be not sufficient to create a
reasonable ground to believe that a conspiracy existed between the persons
whose names were mentioned and the person who was keeping the diary.
Common Intention (When it ceases and what are its effects)
 Things said, done or written while the conspiracy was on foot are
relevant as evidence of the common intention, once reasonable ground
has been shown to believe in its existence.

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 Hence, any narrative or statement or confession made to a third party

after the common intention or conspiracy was no longer operating and
had ceased to exist, is not admissible against the other party. There is
then no common intention of the conspirators to which the statement
can have reference.
 The agreement to conspire may be inferred from circumstances which
raise a presumption of a concerted plan to carry out an unlawful design.
 A confession by a conspirator made to a Magistrate after arrest
disclosing the existence of a conspiracy, its objects and the names of its
members, is not admissible under this section against the co-
conspirators jointly tried with him, but only under Section 30.
In the case of Mirza Akbar Vs. Emperor (1940, PC),
One Ali Azgar was shot by Umar Sher, soon thereafter Umar Sher was
apprehended and that time he was holding a single barrel gun which smelt as
freshy discharged. At that time Mirza Akbar appeared and asserted that Umar
Sher is innocent and should be released. Umar Sher pleaded the defence that
he did not have a motive. It appeared that the wife of Ali Azgar is Mehar Teja
who was in love with Mirza Akbar hired Umar Sher to kill Ali Azgar,
Two evidences of conspiracy between Mehar Teja and Mirza Akbar were—
A few love letters exchanged between Mehar Teja and Mirza Akbar, wherein it
appeared to have been written in refrence of their commonintention
Statement of Mehar Teja made before the magistrate after her arrest with
respect to conspiracy.
It was held that the letters were relevant under section 10 as their terms were
only consistent with a conspiracy between the prisoners to procure the death
of Ali Azgar and they were written at a time when the conspiracy was going
on and for the purpose of attaining their object, confession before magistrate
was held to be not relevant under section 10 as it was made after the object
of the conspiracy had already been attained andhad come to an end.

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In State of (NCT of Delhi) vs. Navjot Sandhu and others, AIR 2005 SC
3820, a question was again debated as to whether any statement made by an
accused after his arrest, whether as a confession or otherwise, falls within the
ambit of S. 10 of the Evidence Act held that those would not fall within the
ambit of S. 10.
THe law is well settled that the statements made by the conspirators after
they are arrested cannot be brought within the ambit of Section 10 of the
Evidence Act, because by that time the conspiracy would have ended.
The offence of conspiracy is built on the principle of agency.
In the case of, Badri Rai Vs. State of Bihar (1958, SC), Badri Rai and Ram Ji
were tried for criminal conspiracy to bribe the police inspector. As per the
facts, both Ram ji and Badri Rai approached the police inspector and
requested him to hush up the case against Ramji. The inspector called them to
the police station and meanwhile informed his seniors. Only Badri Rai
reached the police station and gave the inspector a bribe to hush up the case
against Ram ji. He was caught. The supreme Court held that when the offer of
money was made to the inspector, Ramji was accompanying Badri is a
relevant factor against Ramji. The statement and offer of bribe had clear
reference to their common intention and as such anything said or done by any
of them, in reference to their conspiracy to bribe are relevant against the
others also. Thus, it is a relevant fact for establishing conspiracy between
Ramji and Badri Rai
Mohammed Ajmal Amir Kasab Vs. state of Maharashtra (AIR2012, SC
The court held that the transcript of conversations between collaborators
abroad and terrorists, being not confessional statements, they were
admissible in evidence against all the accused persons.
Normally, a conspirator’s connection with the conspiracy would get snapped
after he is nabbed by the police and kept in their custody because he would
thereby cease to agent of the other conspirators.
A confessional statement made by a person who is no more alive would lose
its evidentiary value for the purpose of section 10.

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Agreement necessary but not direct meeting

Though to establish the charge of conspiracy, there must be agreement, there
need not be proof of direct meeting or combination not need the parties be
brought into each other’s presence, the agreement may be inferred from
circumstances raising a presumption of common concerted plan to carry out
the unlawful design.
 In Government of NCT of Delhi v. Jaspal Singh (2003) 10 SCC 586,
it has been held that once there is sufficient material to reasonable
believe that there was concert and connection between persons
charged with a common design, it is immaterial whether they were
strangers to each other, or ignorant of actual role of each of them or
they did not perform any one or more of such acts by joint efforts. It
is not necessary that all should have joined in the scheme from the
first; those who come in at later stage are equally guilty, provided
the agreement is proved.
So, it is not necessary that all should have joined in the scheme from the
first, those who come in at a later stage are equally guilty, provided the
agreement be proved.

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ADMISSION-NOTES I
Bharatiya Sakshya Adhiniyam (BSA), 2023.
 Admission: Section 15, BSA, 2023 (Section 17 of IEA, 1872)
 The BSA defines Admission, under section 15, as a statement which may
be oral or documentary or in electronic form, which suggests any
inference as to any fact in issue or relevant facts, and which is made by
any of the persons, and under the circumstances, hereinafter mentioned.
 Statements per se don’t constitute admission, rather only those statements
which fulfill the conditions of Section 15 to 21 of the BSA, 2023 (Section
17-21 of IEA, 1872) constitutes admission.
 Out of the aforesaid statements only those will be admission, which are
self harming in nature or such other self serving statements which fall
within the exception of Section 19 of BSA, 2023 (Section 21 of IEA).
Thus, Admissions are the species of which statement is genus.
 Example: When a person is sued for a recovery of loan and there is an
entry in his account book and then that entry of loan is an admission on his
part. If he makes some statement that he does owe the money that will also
be admission, being direct acknowledgment of his liability.
● Admission can be divided into Judicial and Non-Judicial admissions
or Formal and Informal admissions.
Judicial admissions are those expressly made in the proceedings prior to the
trial. Such admissions are made before the court. Examples: Order VIII Rule 3,
Rule 5; Order X Rule 1; Order XI; Order XII; Order XIV of CPC.
 The judicial admissions if true and clear are by far the best proof of fact
admitted. Judicial admissions stand on a higher footing than non-judicial or
informal admissions.
 Such admissions are admissible under Section 53 of BSA, 2023 (Section 58
of IEA) and thus constitute a waiver of proof.
Admissions made outside the court are informal or extra judicial admissions,
which need to be proved by way of leading evidence.

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● Chapter III -- Facts which need not be proved

Judicial Notice (Sec. 51) Admitted (sec. 53)

Chapter 3 (Sec. 51-53) of BSA, 2023 deals with matter of which no proof is
required. It provides only two cases, i.e. –
i. Fact judicially noticeable need not be proved (Sec. 51, BSA)
ii. Facts admitted need not be proved (Sec. 53, BSA)
However, there is a third category as well, of which no proof is necessary i.e.,
facts which are presumed to exist (presumption of law).

Question) Can there be admission by Conduct?

As per Section 15 of BSA, 2023 (Section 17 of IEA), an admission is a
statement. In such a case a conduct in the strict sense doesn’t fall in the category
of admission. However, where the conduct of an individual amounts to a
statement, it may certainly fall in the categories of admission, but if it is a
conduct simplicitor, it will not be relevant as statement but will fall under
Section 6 of BSA, 2023 (Section 8 of IEA) as previous or subsequent conduct.
‘Silence’ may amount to admission if it is coupled with a duty to speak
In Bissla v/s. Stern (1877), the allegation was that ‘A’ promised to marry
‘B’ and ‘B’ alleges that ‘A’ has committed a breach of his promise. Upon being
asked whether ‘A’ made any such promise to marry ‘B’, ‘A’ kept quiet. There
was also evidence that ‘A’ tried to pay hush money to ‘B’ so that she keeps quiet.
In this case the conduct of ‘A’ of offering hush money to ‘B’ was taken as
admission by the court.
● For the purpose of admission, it is not necessary that the statement is
communicated to a specific individual.
E.g. – A communication between husband and wife is no doubt privileged but it
can be proved by a third party who over heard them or otherwise get permission
of them; or a person was speaking to himself and someone overheard him. These
may amount to admission.

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 Who can make Admissions?

Section 16 to 18 of BSA, 2023 (Section 18 to 20 of IEA) provides the persons
who can make admission.
the combined effect of Sections 18, 19 and 20, when put together
make the admission of the following parties relevant.

Admission

Parties to proceedings Agents Representative Third Parties

Partnership -Sec. 16(1): Proprietary

Civil Criminal Karta or pecuniary interest

Co-defendant -Sec. 16(2): From whom interest derived

Guardian -Sec. 17:person whose position must be

Counsel proved as against the party to the suit

-Sec. 18: if third party referred.

1. Parties to proceedings:
● The phrase "the party to the proceeding" in Section 16 of BSA (Section 18
of IEA) includes not merely the plaintiff and defendant in a civil case, but
also the accused in a criminal case. It takes in also a complainant in a non-
cognizable case. In cognizable cases, however, a complainant becomes a
witness; and if he had made any relevant admissions, for example, in the
complaint, the procedure prescribed in Section 145 should be followed.
a. What is admitted by a party must be presumed to be true unless the contrary
is shown.
b. The proceedings may be civil or criminal.
c. A statement made by a party in a former suit between the same or different
parties is admissible.

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d. An admission made by parties witness cannot be treated as admission made

by the parties, such admission don’t bind the parties.

2. Agents:
The admission of an agent is admissible because the principal is bound by the
acts of his agent, done in the course of business and within the scope of his
authority.
For the purpose of admission strict proof of agency is not required. The
satisfaction of the court is important.
With respect to partnership:
According to Section 10 of the Indian Partnership Act, an admission or
representation made by a partners concerning of affair of the firm is evidence
against the firm. Thus, the acknowledgement of debt by a partnership is an
admission against the firm.
The Karta of a Joint Hindu Family:
Though not an agent in the technical sense but still for purpose of section 16 of
BSA, he is an agent of joint Hindu Family.
Counsel or Attorney:
Admission of fact made by a pleader in the conduct of a suit on his client behalf
are binding on the clients. However, the client is not bound by a statement or
admission which he or his lawyer is not authorized to make. A lawyer is not
implied or apparent authority to make an admission which would directly surrender
or conclude the substantial legal right of the client unless it is a step in
accomplishing the purpose for which the lawyer was employed.
Co-defendant:
The admission by one co-defendant will not be relevant against a co-defendant
because it would be unjust to bind the co- defendant by the admission of another
whom he has no opportunity to answer or cross-examine, it would rather give
plaintiff or other party on opportunity of defeating the opponent by unfair means.
Guardian:
The admission of a ‘guardian at litem’ or ‘next friend’ doesn’t bind the minor.

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3. Parties to be sue or sued in representative character

If a person is sued or is suing in a representative character or trustees,
administrators, managers or under Order I Rule 8 CPC, the statements made by
him earlier in the form of admissions will only fall within the preview of Section
16 of BSA, if when those statements were made while he was holding that
representative capacity.
4. Third Party
(i). Person having proprietary or pecuniary interest (Section 16 (i) of BSA)
When several persons are jointly interested in the subject matter of a suit, an
admission of any one of these person is receivable not only against himself but also
against the other defendants, whether they jointly sue or are being sued, provided
such statement should have been made by person concerned at the time when he
was having such proprietary or pecuniary interest.
Example --- In a suit for declaration of title, a statement by the suitor’s father that
the defendant was in possession was admitted (as the father, though not a party to
the suit, also had a pecuniary interest in the family property as well, so his
admission is also admissible).
(ii). Persons from whom the party have derived this interest (Sec. 16(2) of
BSA)
Privies are of three kinds:-
a. Privies in blood – heir, ancestor, co-processor
b. Privies in Law – Executor and Testator
c. Privies in estate or interest – As vendor and purchaser, donor and donee
and lessor and lessee.
 Section 17 and 18 of BSA, 2023 (Section 19 and 20 of IEA) carved out an
exception to the rule of privity, by making the admission made by stranger
valid against a party.
 Section 17 of BSA, 2023 (Section 19 of IEA) makes relevant the
statement of a stranger to the suit provided that the stranger is related to one of
the parties in such a manner that if the suit is filed between the stranger and that
party, then the statement of that stranger would have been an admission in that
suit, but such statement should have been made by the stranger when he had the
position or he is subject to liability.

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Therefore, the following conditions must be satisfied:

 The person making the statement must stand in some legal relationship
with either of the parties to the suit, which creates some liability of that
person.
 The admission by third person must have been made while he was in that
legal relationship.
Illustration: ‘A’ undertakes to collect rent 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 owned ‘B’ rent is an admission, and is a relevant fact
as against ‘A’, if ‘A’ denies that ‘C’ did owe rent to ‘B’.
Example -
When a landlord died and the tenant questioned the title of the lady living with
him saying that she was not the wife of the deceased landlord, a 33 years old
registered deed was produced which showed the landlord’s admission about the
lady was conclusively proof by such admission.

 Section 18, BSA 2023 (Section 20 of IEA) makes relevant a statement of a

stranger as admission, where the stranger was referred by the party to the suit
to other party, provided the statement was made by the person while acting on
such a reference.
Illustration: 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.
Case: In K.M Singh vs. Secretary Indian University Association (1992, SC), it
was alleged that the resignation given by the plaintiff was not voluntary and was
obtained under fraud, coercion, threat, during the proceeding the plaintiff moved
an application stating that if the official of association after taking oath at
Gurudwara and temple say that the plaintiff’s resignation is not under fraud,
coercion, then the case may be dismissed or deemed to be withdrawn. The
officials of the association took the Oath before the local commission appointed
by the Court and denied any factum of coercion or fraud. The plaintiff now
requested the court not to consider the same. But the Hon’ble Supreme Court held
the same to be valid under the section 20 of the Indian Evidence Act (now Section
18 of BSA, 2023)
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ADMISSION-NOTES II

Section 19, 20, 21 and 25 of Bharatiya Sakshya Adhiniyam (BSA), 2023

 Section 19 of BSA (Section 21 of IEA): When the admission will be

relevant.
Section 15 to 18 of BSA, 2023 provides as to what is an admission and who can
make an admission whereas Section 19 BSA, 2023 provides as to under what
circumstances an admission, so made will be relevant.
 As per Section 19 BSA, the admissions may be proved against the person
or his representative in interest i.e. the admissions can be used only if
they are self-harming.
 This principle is based on the logic that no person generally makes an
admission against himself. However, section 19 BSA itself provides
with three exceptions where an admission can be used by the party
making it in its own favour.
Thus, section 19 BSA makes room even for a statements which is self-serving
in nature.
 The exceptions are as follows:
1. An admission may be proved by or on behalf of a person making it
when it is of such a nature that, if the person making it were dead, it
would be relevant as between third persons u/s 26 BSA.
Illustration: Where a ship owner sues the caption of the ship for casting away
the ship by his negligence, the question is, can the captain show a diary
maintained by him in the ordinary course of his duty, which showed that the
ship was not taken out of the course.
Here, if the litigation was between the ship owner and the insurance
company and the question would have been whether the ship was lost due to
the negligence of the captain, who was dead, then such diary maintained in due

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 2

course would be relevant under clause (b) of Section 26, BSA 2023 as such,
same can be allowed to be proved as admission by the captain in the present
case between him and ship owner.
Example: The plaintiff sought to establish that ‘A’ and ‘B’ are brothers. One
of the plaintiff made a statement long ago in which he stated that ‘A’ allowed
to be proved by plaintiff as his own admission, because if the plaintiff after
making that statement was dead, the statement would have been admissible
under Section 26 (5), BSA 2023.

2. When the admission of a man consists of a statement of existence of any

state of mind or body is relevant and when it was made at or about the
time when such state of mind or body existed and is accompanied by
conduct rendering its falsehood improbable, it may be used by the person
who makes it even for his own use.
Example: A year after executing a gift deed in favour of ‘B’, ‘A’ files a suit
for cancellation of the same on the ground that he was so seriously ill that he
could not understand the content of gift deed. So, the question here is whether
at the time of gift A’s state of mind or body was such that he could understand
the contents of the gift deed.
‘A’ tries to prove that a day before executing gift deed, he wrote a letter
to ‘C’ telling him that ‘A’ was losing balance of mind and was suffering from
severe disease and doctors in the town could not diagnose the same. ‘A’ asked
‘C’ to bring some expert doctor. The doctor came and prescribed medicine and
charged Rs. 1000 as fees. Here, the statement of ‘A’ calling ‘C’ shows his state
of body and mind and coupled with his conduct of paying high consultation
fee to doctor makes its falsehood highly improbable and as such is relevant
under Section 19 exception 2.

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Note: Section 12 BSA, 2023 (Section 14 of IEA) provides that the state of
man’s mind and body is relevant. Similarly, the exception 2 to section 19 of
BSA 2023 also makes state of mind and body relevant but the pre requisite
condition for application of this exception is that it must be a statement
coupled with conduct which makes the falsehood of such a statement as
improbable.
The applicability of Section 12 BSA, 2023 is very wide but the exception can
only be used for a self-serving statement coupled with the conduct.

(3). An admission may be proved by or on behalf of a person making it, if

it is relevant otherwise than an admission.
 A party may prove his own statement under Section 4, BSA (Section 6 of
IEA) if it is a part of same transaction.
Example: Where immediately after a road accident a person pulled up to the
injured who then made a statement as to the cause of injury. The statement
may be proved by or on behalf of injured being part of same transaction.
 A statement may be proved under Section 7 of BSA if it accompanies or
explains acts other than statements or if it influenced the conduct is
relevant.
Example: The question is whether a person has been guilty of cruelty towards
his wife, he may prove his statement made shortly before or after the alleged
cruelty which explains his love and affection for and his feeling towards his
wife.
 Section 9, BSA 2023 (Highly probable/Improbable)
A plaintiff brought a suit against his son for recovery of possession of land
which stood in the name of son alleging that the same was acquired benami by
him, the defendant alleged that the land was purchased by his paternal
grandfather. The plaintiff answered that his father was dead before the

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 4

property was acquired. To prove that plaintiff produced a mortgage bond

executed by him before the purchase of suit property in which he described his
father as dead.
It was held that the statement was so made was admission under the present
exception as is also relevant under Section 9(2), BSA (Section 11(2) of IEA).

 Section 20, BSA: When oral admissions as to contents of documents

are relevant

Section 20, BSA 2023 (Section 22 of IEA) provides when oral

admissions as to contents of documents are relevant
 As per Section 20, BSA 2023, the contents of a document which is
capable of being produced must be proved by the instrument itself and
not by oral evidence. Oral admission as to content of document are
generally excluded, however it is only admissible when the party is
entitled to give secondary evidence of its content under Section 60 of
BSA, 2023 (Section 65 of IEA).
 Such oral admissions are also admissible when the genuineness of the
document is in question.
Example:-
i. With respect to the validity of a gift deed, one of the donor stated that he
was minor at the time of its execution. But in the gift deed itself he
admitted his age as 22. This admission was contained in a registered
deed. As such it was held to be binding upon him unless he could show
any vitiating circumstances like fraud, coercion etc.
ii. ‘A’ executed a deed of mortgage in favour of ‘B’. ‘B’ files a suit for the
possession of the property mortgaged on basis of that mortgage. During
the trial ‘A’ denied the execution of the mortgage. Now in this case ‘B’

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 5

cannot prove by oral evidence that he had before some persons admitted
that he had mortgaged the property to him. ‘B’ can prove the execution of
the mortgage and can get possession of the property only when he files
that deed of mortgage in the court and proves it.

 Section 21, BSA: Admissions in civil cases when relevant

For the application of Section 21 BSA (Section 23, IEA) any admission
which is otherwise relevant u/s 19 BSA in civil case is excluded, if it is
made on the express condition that it will not be used in evidence or from
the transaction the court infers the agreement of exclusion of admission in
the evidence.
Section 21, BSA is drafted with the object to encourage parties to
amicably settle the dispute.
A communication made without any dispute are not protected
from disclosure. Thus, the letters written without reference to any dispute
are not privileged even if they are marked without prejudice.
In Field v/s. Commissioner of Railways (1957) (Australian
Case), the plaintiff alleged that he sustained serious injuries when he was
alighting from a train and he claimed damages for the injuries. During his
medical examination, the plaintiff made a statement to the doctor stating it
was his own fault. The court held that the statement was one made on an
occasion which arose by reason of and in the course of the negotiations into
which the parties entered for the settlement of the action. The privilege of a
"without prejudice" communication was applicable to the statement here in
question, and that it was wrong to receive it in evidence.

Similarly, a statement which is not related to purpose of negotiation is

not protected even if the negotiations are without prejudice.

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The explanation to Section 21, BSA provides that an admission

made to a lawyer which he can be compelled to disclose u/s 132 BSA is not
protected even if it is made upon the condition that it shall not be used. As
such the communication made to a lawyer in furtherance of a crime are not
protected from disclosure.

 Section 25: Admissions are not conclusive proof, but may Estop

Q. What is the Evidentiary Value of the admission Section 25 of BSA,

2023?
 As per Section 25 of BSA, 2023 (Section 31 of IEA) ‘Admissions are
not conclusive proof of the matters admitted but they operate as
estoppel under the provisions herein contained”.
 Admissions under the evidence act are only piece of evidence. They
are not conclusive proof of the fact admitted but they operate as
estoppel under Section 121-123 of BSA (Section115-117 of IEA).
Admissions are only the prima facie evidence against the party making
the statement and shift the burden of proof.
 Effects of admission:
i. It constitutes only a substantive piece of evidence in the case and for
that reason can be relied upon for proving the truth of the facts
incorporated therein.
ii. It has the effect of the shifting the onus of proving to the contrary on
the party against whom it is produced with the result that it casts an

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 7

imperative duty on such party to explain it. In the absence of satisfactory

explanation it is presumed to be true.
iii. An admission to be a competent and have the value and effect as an
evidence must be clear, certain, and definite without any ambiguity,
vagueness or concession.

 Admission is a substantive evidence though they are not conclusive

proof of matter. If the admissions are not explained by the person by
whom it was made it is very strong piece of evidence against the matter.
 In Mritanjay Seth v Jadunath Basak [(2011)11SCC] it was held that an
admission make in court of law is a valid and relevant piece of evidence
to be used in other legal proceedings. Since an admission originates
(either orally or in written from) from the person against whom it is
sought to be produced it is a best possible form of evidence.
 In Ahmed Sahib Sayed Ismail [AIR 2012 SC 3320], it was held that
admission of the party in the proceeding either in the pleadings or oral is
the best evidence and same does not need further corroboration.
 X murdered Y and when charged he made a confession that ‘I wanted to
grab the land of Y, so I murdered him and took the possession’. Y’s son
‘A’ grows up and comes to know about all this and filed a suit for
recovery of plot against ‘B’ (son of X). Now to prove his ownership one
of the evidences which A brings is the confession of X. However, B said
that ‘I had inherited from my father and my father bought it from your
uncle. Therefore, it is mine.’ Now the question is whether the confession
of X is conclusive proof of the fact that the plot is now owned by X?
The answer is that the confession may not be a conclusive proof
but the same at least operates as estoppel and B is bound by such
statement.

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Q. What is the Distinction between Admission and estoppel?

 Admission is a statement, written or verbal, which gives inferences to the
rights and liability of parties’ i.e. fact in issue while estoppel is rule of
evidence and is prevents a person form retreating his earlier
representation.
 Admissions are not conclusive evidence it can be rebutted by the positive
proof, while estoppel is conclusive in nature.
 In some circumstances admission of the third person binds the parties to
the suit, while estoppel operates only against person making
representation and his legal representatives.

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NOTES-I
CONFESSION
Bharatiya Sakshya Adhiniyam (BSA), 2023
Q. What is ‘confession’?
Ans. The term ‘confession’ has not been defined anywhere in the Evidence
Act.
According to Mr. Justice Stephen, “confession is an admission made
at any time by a person charged with crime, stating or suggesting the
inference that he committed that crime”.
As per this definition a statement of an accused will amount to a
confession if it fulfils any of the following two conditions-
i. If he states that he committed the crime he is charged with, or
ii. If he makes a statement by which he does not clearly admit the
guilt, yet from the statement some inference may be drawn that he
might have committed the crime.
For a long time, the courts in India adopted this definition, but it was
discarded by judicial committee in Pakala Narayan Swami Case.
In Pakala Narayan Swami vs King Emperor (1939 PC), the accused
made a statement that the deceased had stayed at his house on 21st March,
for the night and left on the morning of 22nd, and the accused left on the
23rd Morning to Chhatrapur in connection with some Private business.
Later, body of deceased was discovered in steel trunk on 23rd march 1937.
It was held that the statement was not a confession because the
accused did not clearly and directly state that he committed the crime.
From the statement one may only draw an inference that he may have
committed the crime.
The Lord Atkin said, “A confession must either admit in terms the offence
or at any rate substantially all the facts which constitute the offence, i.e. an
admission of a gravely incriminating fact even a conclusively incriminating
fact is not of itself a confession.

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Example: A statement of a woman that she stabbed the person as he tried

to commit rape on her, was not held not to be a confession because the
statement contained the crime while defending herself.
Example: R was charged with murder. He wrote on piece of paper that they
(wife and 3 daughters) were not in this world. This was an admission. Had
he stated that I killed them, then it would have amounted to confession.
In Palvinder Kaur v/s. State of Punjab (1951) SC, the confession of
accused was that her husband consumed the medicine meant for washing
photos accidentally and suddenly fell down and expired. The bench
referred to the Privy Council’s judgement in Pakala Narayana Swami v. King
Emperor (1939), wherein the word confession as used under the Evidence
Act was elaborated. It was stated that when a confession infers that the
accused has committed a crime, such a confession cannot be construed as a
mere statement. A confession must either admit in terms of the offence or,
at any rate, substantially all the facts that constitute the offence. The
statement is of an exculpatory character when read as a whole. It does
not prove or suggest the commission of any offence under the IPC. Rather,
she exculpated herself from the commission of any offence. The Court held
that the statement does not amount to confession and thus cannot be
admitted as evidence in a court of law.
A statement that contains self-exculpatory matter cannot amount to a
confession if the exculpatory statement is of fact, which, if true, would
negate the offence alleged to be confessed.
 Provisions dealing with confession:
The substantive law regarding confession is codified under Section 22 to 24
and Section 79 of BSA, 2023 (Section 24 to 30 and Section 80 of IEA) and
adjective/procedural law is found under 162, 164, 281 and 463 Cr.P.C. and
Article 20 (3) of the Constitution of India.
 Requirements for a valid confession
 A confession to be admissible it is necessary that it must be in clear
and definite terms and un-mistakenly point out at the guilt of the
accused.

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 Confession to be voluntary- A confession, if voluntary and truthfully

made is an “efficacious proof of guilt.” A confession cannot be used
against an accused person unless the court is satisfied that it was
voluntary and at that stage the question whether it is true or false
does not arise.
The prerequisites for voluntariness are mentioned under
following Sections:
i. Section 22(1) BSA, 2023 (Section 24 of IEA): Confession caused by
inducement, threat or promise, when irrelevant in criminal
proceeding.
ii. Proviso 1 to Section 22 BSA, 2023 (Section 28 of IEA): Confession
made after removal of impression caused by inducement, threat or
promise, relevant.
iii. Proviso 2 to Section 22 of BSA, 2023 (Section 29 of IEA):
Confession otherwise relevant not to become irrelevant because of
promise of secrecy, etc.
If the facts and circumstances surrounding the making of a
confession appear to cast a doubt on the veracity or voluntariness of
the confession, the Court may refuse to act upon the confession, even
if it is admissible in evidence.
 Form of confession-A confession may occur in any form. It may be
written or oral.
 To whom the confession be made:
• It is not necessary for the relevancy of a confession that it should be
communicated to some other person.
In Sahu v/s. State of UP (1955) SC, where a person was talking to
himself, and another person overheard him saying that “I killed X”, the
court held that such a confession is relevant because communication of
confession is not necessary.
• It may even consist of conversation to oneself, which may be
produced in evidence if overheard by another. So, if the accused
goes around the village shouting that he had killed his wife, this
would amount to a confession. However, incriminating

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 4

statements made by a person while “talking in sleep” are not to

be admitted as one has no control over it.
It may be made to the court itself (Judicial confession) or to
anybody outside the court (extra judicial confession).
In R v/s. Sleeman (1833), a person enters a confession box in the
church to confess to the father, who ensured him his sins would be
forgiven. This confession was overheard by a third person. The question is
the confession, which was overheard admissible? A confession over heard
by someone else may be produced in evidence and Section 22 of BSA
will not be applicable as the gain or the avoidance of loss was not of
‘temporal’ nature.

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NOTES-II

CONFESSION

Section 22, Bharatiya Sakshya Adhiniyam (BSA), 2023

 Section 22 BSA, 2023: Confession caused by inducement, threat,

coercion or promise, when irrelevant in criminal proceeding.
 Principle behind section
Principle enshrined in Section 22 of BSA (section 24, 28, 29 of
IEA) is that the confession must be voluntary i.e., outcome of his own
free will, inspired by the sound of his own conscience to speak nothing
but truth. There is always a danger that the accused may be led to
incriminate himself falsely. Very often the police , while seeking to
obtain a character for activity and zeal, harass and oppress prisoners and
compel them to make confession of guilt although, they are innocent.
 Ingredients of Section 22 BSA (Section 24 of IEA)

In order to attract the prohibition in Section 22 of BSA, 2023, the

following facts must be established:

i. The statement is a confession.

ii. That such confession is made by the accused.
Accused person- This expression covers a person accused of an offence at the
trial whether or not he was accused of the offence when he made the
confession.
iii. That he has been made to a person in authority.
Threat, Inducement and Promise from a “person in authority”-“Person in
authority” means one who by virtue of his position wields some kind of
influence over the accused

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iv. The confession has been obtained by reason of inducement, threat or

promise proceeding from a person in authority.
v. Such inducement, threat or promise must have reference to the charge
against the accused.
Inducement must have reference to the charge against the accused person-
The inducement must have reference to escape from the charge. Relating to
the charge in the sense that the accused’s position in the contemplated
proceedings will or may be better or worse according to whether or not the
statement is made. An inducement relating to some collateral matter
unconnected with the charge will not exclude a confession. Mere exhortation
to speak the truth in the name of God cannot by itself amount to an
inducement.
vi. The inducement, threat or promise must in the opinion of the court be
sufficient to give the accused ground which would appear to him
reasonable for supposing that by making it he would gain the advantage
or avoid any evil of temporal nature in reference to the proceedings
against him.
The sufficiency of the inducement, threat or promise it has to be judged from
the point of view of the accused and not from the point of view of the person in
authority.
Further, the inducement must be of a temporal kind, i.e., not spiritual or
religious. Confessions obtained by spiritual exhortations are admissible in
evidence. A merely moral exhortation to tell the truth is not objectionable.
Therefore, any inducement having reference to a future state of reward or does
not affect the admissibility of confession, it must be of material, worldly or
temporal nature.
Example: In a case, the accused, a post-office clerk, under suspicion, fell at
his departmental inspector’s feet begging to be saved if he disclosed

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everything, and the inspector replied that he would try his utmost to save him
if he told the truth. The confession was held to be inadmissible as there was in
inducement by the inspector.

In Emperor v/s Jagiya (1933) Patna, the accused was left alone with the
tanga driver by the Police Officer, and she confessed to the Tanga Driver.
It was held the confession is irrelevant under Section 22 BSA as the
confession was made to a person in authority who was left in charge of her.

In Virowali v/s. State of J&K (1961) J&K, a woman, after falling ill,
confessed to the doctor that she had recently given birth to a child. She
admitted that, due to being unmarried and fearing the consequences, she had
thrown the newborn from the balcony, resulting in the child's death. She made
this confession after being reassured by the staff that they would save her. Such
a confession was held to be irrelevant as the same was made under inducement
with respect to charge and doctors treating were ‘persons in authority’.

In Emperor v/s. Mohd. Baksh, a sepoy got admitted in an army hospital.

The doctor, who was a Captain, asked him about how he got these injuries,
upon which the sepoy told him that he got these injuries while killing a man.
Such a confession was held to be relevant as there was no inducement/ threat/
promise with respect to charge. Doctors routinely ask about injuries, and
simply reporting to an authority figure does not suffice as a threat or
inducement.

In Satbir Singh v/s. State of Punjab (1977) SC, the officer having stated
to the accused that “now that the case has been registered he should state the
truth” held that the statement would generate in the accused’s mind some hope
or assurance that if he told the truth he would receive his support.

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 Proviso 1 to Section 22 BSA, 2023: Confession made after removal if

impression caused by inducement, threat or promise (Section 28 of
IEA)

If such a confession as is referred to in section 22 of BSA, is made after the

impression caused by any such inducement, threat or promise has, in the
opinion of the Court, been fully removed, it is relevant.
 In simpler words, a confession made after the removal of impression
caused by inducement, threat or promise is relevant.
Example: A patient is admitted in the hospital, the policeman says ‘since the
accused needs long treatment we will come to check him up after one week,
whether the accused can be taken into custody or not.’ And the doctor tells the
accused that ‘the police will not come here for a week and I will provide you
with the best treatment.’ With this understanding the accused makes a
confessional statement to a friend, who comes to visit him. In such case the
circumstances show that there was inducement, threat, promise or coercion
when the accused made the confession to his friend. Such a confession is
relevant as it is not hit by Section 22 BSA, 2023.
 Time between the inducement and the confession: A longer time interval
between the inducement and the confession may suggest that the
impression caused by the inducement has diminished.

 Proviso 2 to Section 22 BSA, 2023: Confession otherwise relevant not

to become irrelevant because of promise of secrecy, etc. (Section 29 of
IEA)
If such a confession is otherwise relevant, it does not become irrelevant
merely because it was made under a promise of secrecy, or in consequence of a

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 5

deception practiced on the accused person for the purpose of obtaining it, or
when he was drunk, or because it was made in answer to questions which he
need not have answered, whatever may have been the form of those questions,
or because he was not warned that he was not bound to make such confession,
and that evidence of it might be given against him.
Therefore, unlike without-prejudice statements in admissions, a confession
made under a promise of secrecy is admissible in court. The focus of the law is
on whether the confession is voluntary, so even if deception, fraud, intoxication
or the answering of unauthorised questions are involved, the confession can
still be considered admissible.

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NOTES-III

CONFESSION

Section 23, Bharatiya Sakshya Adhiniyam (BSA), 2023

 Confessions carrying Inculpatory and Exculpatory Statements:

In Emperor v. Balmukand (AIR 1939 PC 47) it was held that the

confession conspired of two elements:
i. An account of how the accused killed the woman
ii. An account of his reason for doing so
Can the court, if it is of the opinion that inculpatory part commands itself
and the exculpatory part is inherently incredible, act upon the former and
refuse to act upon the latter? The answer to the reference was that where there
is no other evidence to show affirmatively any portion of the exculpatory
element in the confession is false, the court must accept or reject the
confession as a whole and cannot only accept the inculpatory part while
rejecting the exculpatory part.

 In Nishikant Jha v/s. State of Bihar (1969) 5J SC, the accused was
charged with murdering his friend while travelling with him in a train. He
was seen washing his clothes in a river flowing near the station where the
murder was detected. The news spread to a nearby village and villagers
arrested the accused. Blood-stained clothes, papers and a knife were
recovered from him, and the blood on them agreed with the blood of the
deceased. He admitted washing blood-stained clothes, but explained the
presence of blood by two contradictory statements. In one of them he tried
to explain away the blood by saying that there was a struggle between two
persons in the compartment one of whom killed the other and some blood
spilled over him in the act of rescue. In the other version, he said that a
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 2

herd boy had robbed and injured him. The High Court did not accept these
explanations and confirmed the conviction for murder.
The Supreme Court upheld the conviction and pointed out that there was
nothing wrong in relying on a part of the statement and rejected the rest.
The court did not mean to overrule Palvinder Kaur or Balmukund but
distinguished the present case from them. Here there was enough evidence
to reject the exculpatory part of the statement of the appellant.
In the prosecution of Palvinder here w-as no other evidence of the
circumstances surrounding her husband’s death except her own statement,
and, therefore, the court had no choice but to hold that the statement should be
accepted or rejected as a whole. In Nishi Kant Jha’s case, the explanations
were inconsistent in themselves and also with the other evidence on record
and were therefore, so obviously false that there was no chance of justice
being miscarried in discarding them.

 Section 23, BSA 2023: Confession to Police Officer

 Section 23(1) BSA, 2023 (Section 25 of IEA): No confession made to a
police officer shall be proved as against a person accused of any offence.

 Whether the Confession in a Letter Addressed to a Police Officer hit

by Section 23, BSA 2023?
A husband was accused of Murder of his wife. Apart from other pieces of
evidence a letter containing a confession was found near the dead body.
This was letter dated September 14, 1962 addressee to the Sub Inspector and
bore the signature of the accused in Urdu.

• Three judges bench of the apex court in the case of Sita Ram versus State of
UP, AIR 1966 SC 1906, held that no doubt the letter contains a confession
and is also addressed to a police officer. That cannot make it a confession

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made to a police officer which is within the bar created by the Section 25
of IEA (now Section 23 of BSA).
The police officer was not nearby when the letter was written or
knew that it was being written. In such circumstances quite obviously, the
letter would not have been a confession to the police officer if the words sub
inspector had not been written. Nor do we think it can become one in similar
circumstances only because the words sub inspector had been written there.

• The question again cropped up in the case of Mohinder Singh alias

Gurbax Singh versus State of Punjab, 1985 (P& H). In this case an
accused had written a confessional letter addressed to the Senior
Superintendent of Police held that a confessional statement made to the
police in the course of Investigation would be hit by section 25 of IEA
(now Section 23 of BSA, 2023) and as such cannot be used against the
maker when he becomes an accused person.
 Confessional FIR –
Suppose, a person ‘A’ commits murder of his wife ‘B’ and thereafter, goes to
the police station and confesses his guilt and describe the factum and manner
of said murder to the police and the police, thereafter, arrested him and
registered an FIR u/s 302 Indian Penal Code, 1860, on the basis of the said
confession made by ‘A’. This is called "Confessional FIR". The Supreme
Court had examined the quagmire of evidentiary value of a confessional FIR
in Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
The brief facts of the case are that the appellant murdered Somra
and later Chamin and then Ratni and Dilu. The FIR of the offences was
lodged by the appellant himself at the police station, which was reduced to
writing by the officer in charge and the appellant affixed his left thumb
impression on it. Thereafter, the Sub-Inspector took cognizance of the
offence and arrested the appellant.

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The court held that if the FIR is given by the accused to a police officer
and amounts to a confessional statement, proof of the confession is
prohibited by Section 25 IEA. The confession includes not only the
admission of the offence but all other admissions of incriminating facts
related to the offence contained in the confessional statement. No part of the
confessional statement is receivable in evidence except to the extent that the
ban of Section 25, IEA is lifted by Section 27, IEA.
 Who is police officer?
The question to be considered is whether an officer (other than a "police
officer" as commonly understood) acting under a special statute and having
powers of investigation, can be treated as a "police officer" for the purpose of
Section 23 of BSA (Section 25 of IEA). If he could be treated as a "police
officer" for the purpose of Section 23 of BSA, then any confession made to
him cannot be proved as against a person accused of an offence.
If, on the other hand, such an officer is not a "police officer" within the
meaning of Section 23 of BSA, then any confession made to him by a person
accused of an offence will not be hit by Section 23 of BSA.

• In State of Punjab vs. Barkat Ram, AIR 1962, 3J, SC 276, the question
was whether a customs officer acting under the Land Customs Act, 1924 or
under the Sea Customs Act, 1878 or under the FERA Act, 1947 could be
treated as Police Officers within the meaning of Section 25 of IEA. The
court held that the customs officers are not police officers and are thus
outside the purview of section 25 of IEA (now Section 23 of BSA, 2023).
For the bar under Section 25 of IEA to apply, it is not necessary
that the police officer should actually be discharging any police duty and
that a confession made to any number of police of whatever rank and at
whichever time is hit by Section 25 of IEA. Example: An IPS Officer acting

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as a principal of Police Training College or a police constable both fall

under the ambit of term ‘Police Officer’.

• Illias v. Collector of Customs AIR 1970 SC 1065 – 5 Judges: Customs

Officer under the Customs Act, 1962 is not a "police officer".
Police Officer v/s. Customs Officer: The powers of police officer are for
detection and prevention of crime, whereas the powers of a custom officer
are for ensuring that dutiable goods do not enter the country without
payment of duty and the articles whose entry is prohibited are not brought
into the country and it is to ensure that limited powers of investigation are
given to them.

• In Raj Kumar Karwal v/s Union of India (1990), SC held that officers of
DRI (Department of Revenue Intelligence) acting under the NDPS Act are
not Police Officers.

• Similarly, officers under the Narcotic Drugs & Psychotropic Substances

Act, 1985 have been held to be not police officers though they are vested
with some of the powers of officers- in-charge of a police station (Ram
Singh vs. Central Bureau of Narcotics, AIR 2011 SC 2490).

• However, finally, in Tofan Singh v/s. State of Tamil Nadu (2021) SC, the
Court highlighted that the officers under the NDPS Act were exercising the
functions of police officers to conduct enquiries, and such officers were in a
position to compel or coerce individuals into recording confessions.
Therefore, officers under statutes like the NDPS Act should also be
construed as ‘police officers’ under Section 25 of IEA, 1872.
 Effect of Presence of Police
The mere presence of the policeman should not have this effect. Where the
confession is being given to someone else and the policeman is only casually

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present and overhears it that 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, it will suffer from the blemish of being a
confession to police (Emperor v. Har Piari, AIR 1926 AII 737).

 Statements during investigation and before accusation – A

confessional statement made by a person to the police even before he is
accused of any offence is equally irrelevant.

 Section 23(2) BSA, 2023 (Section 26 of IEA)

No confession made by any person while he is in the custody of a police
officer, unless it is made in the immediate presence of a Magistrate shall
be proved against him.
 Regarding the term ‘Magistrate’:
 In Dagadu Dharmaji Shindore vs. State of Maharashtra, 2005 AII
MR (Cri) 1450, the Bombay High Court held that the presence of
magistrate contemplated under section 26 of IEA (now Section23(2) of
BSA, 2023) cannot be other than the Magistrate following the mandatory
provisions of section 164 of CRPC.
 The Madras High Court and later the Gauhati High Court in Kartik
Chakraborty vs The State Of Assam on 26 October, 2017 also took the
view that the term "Magistrate" as referred to in Section 26 of IEA will
mean only a judicial magistrate.
 However, the division bench of Punjab and Haryana took a contrary view
in the case of state of Haryana versus Padam @ Parmod ( 2019 (P & H)
(D.B.)) holding that the term Magistrate in Section 26 of IEA includes
both executive as well as judicial magistrate.

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The judgment of the Punjab and Haryana high court seems more
appropriate and though there would certainly be a difference with regard
to proving the same.
 Recording of confession (Section 164 Cr.P.C.)
It stipulates that any Metropolitan Magistrate may irrespective of the fact
whether he has jurisdiction in the case or not, record any confession made
to him in the course of investigation under Chapter XII of Cr.P.C. or
under any other law for the time being enforce or at any time afterwards
before the commencement of inquiry or trial. The magistrate before
recording such confession is obligated to comply with following
requirements:

i. He shall explain to the person making the confession that he is not

bound to make it.

ii. If he does make it, it may be used against him.

iii. The Magistrate must satisfy himself that he is voluntarily making the
confession.

The Magistrate shall append a note stipulated in Section 164(4) Cr.P.C. at the
foot of the confession.

In Nazir Ahmad v/s. King Emperor (1936) Privy Council, it was held that
where a power is given to do a certain thing in a certain way, the thing must be
done in that way or not at all. Other methods are necessarily forbidden. The
court further held that such oral confessions should not be allowed to be brought
under Section 26 IEA as they are not recorded by the Magistrate in the manner
provided by Section 164 Cr.P.C. The Privy Council further observed that it
would lead to unsavoury situation if Magistrates are allowed to lead oral
evidence and become ordinary witnesses by deposing what they heard from the
accused.

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 Presumption as to documents produced as record of evidence:

Section 78 of BSA, 2023 (Section 80 of IEA)
The following points may be stated in this respect:

i. The expression “Statement or confession” of accused does not

include statement of witnesses recorded U/s 164 Cr.P.C. There are
three presumptions:

a. The document is genuine

b. Any statement as to the circumstances under which it was taken,

purporting to be made by the person signing it, are true

c. Such statement or confession was duly taken

ii. The section is based on maxim “Omnia praesumumtur Rite Esse

Acta” that is, all acts are presumed to be rightly done.

iii. If confession is recorded strictly in accordance with law, the usual

presumption is that it is voluntarily made and burden shifts on the
accused to prove otherwise.

iv. The section provides that court will presume that the confession was
duly recorded and the circumstances under which the confession was
recorded are such as have been set down in the record made by the
magistrate.

 Defect in recording Confession under Section 164: Effect of Section 463

If as a matter of fact the statement was duly recorded that is to say after the
required explanation had been given, but the Magistrate had failed to embody
that fact in the certificate, such a defect would be curable. However, if the
explanation had not in fact been made, the statement could not be held to have
been 'duly made', then the same is not curable.

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In State of UP vs Singhara Singh 1964 SC 358-It has been observed that the
section only permits oral evidence to prove that the procedure had actually been
followed in certain cases, where the record which ought to show that does not
on the face of it to do so (eg; memorandum is not attached)

In the case of Partap Singh versus The Crown, 1925 ILR 6 lah 415, it was
held that a defect in the form is curable by Section 463 Cr.P.C. i.e. if the
Magistrate has actually complied with the provisions of Section 164 Cr.P.C. but
the same is not reflected in the record, however, if there was no actual
compliance of Section 164 Cr.P.C. then this substantive defect is not curable,
even by the oral evidence of the Magistrate.

 Police Custody: The courts have declined to recognise in this context any
distinction between lawful and unlawful police custody.
 The concept of police custody does not necessarily connote the
immediate presence of police officers, so long as the accused persons
are aware that the place where they are detained is really accessible to
the police (Mat Bhagan v. State of Pepsu, AIR 1955 Pepso 33).
 An accused made his confession to two persons of the locality.
Subsequently, the confession was reduced to writing inside the police
station on the accused being brought there. The Supreme Court said that
such extra-judicial confession was not hit by section 26 of IEA. (State
of AP v. Gangula Satya Murthy, (1997) 1 SCC 272).
 The word ‘custody’ used in section 26 of IEA is to be understood in a
pragmatic sense. If any accused is within the general surveillance of the
police during which his movements are restricted, then it can be
regarded as custodial surveillance for the purposes of the section. If he
makes any confession during that period to any person, be he not a

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 10

police officer, such confession would be held within the banned

contours outlined in section 26 of IEA.
 Statements made to TV and press reporters by the accused person in the
presence of police and also in police custody were held to be
inadmissible (State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC
600).

 Confession given during Departmental Inquiry

In Kuldeep Singh v/s State of Punjab (1997) SC, where a confession is

made whilst in the departmental proceeding then it shall not fall within Section
25 or 26 of IEA as the bar in those section does not apply to departmental
inquiries.

Ques. If an accused makes a confession to a police officer or whilst in

custody, which is not admissible in court of law as per Section 25 or 26 of
IEA, 1872, can such a confession be used in a departmental inquiry?

Ans. It is well-settled that rule of evidence does not apply to the departmental
inquiry and it is the disciplinary authority which has to decide whether the
confession is voluntary or not.

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NOTES-IV

CONFESSION

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Proviso to Section 23 BSA, 2023 (Section 27 of IEA)

“Provided that when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it amounts to a confession
or not, as relates distinctly to the fact discovered, may be proved.”

The conditions prescribed in Section 27 for unwrapping the cover of ban against
admissibility of statement of the accused to the police have to be satisfied. They
are:

(1) The first condition necessary for bringing into operation is the
discovery of fact i.e. relevant fact from person accused of an
offence.

(2) That at time of receiving of information the accused must be in

police custody. If he goes voluntarily to the police and suffer a
statement he will be deemed to be in custody;

(3) The discovery of such fact must be deposed to i.e. Disclosure

statement must be proved by the prosecution;

(4) Only so much of information as related distinctly to that fact

thereby discovered is admissible. The rest of information has to be
excluded;

(5) The word distinctly, means directly indubitably, strictly

unmistakably. This phrase “distinctly” refers to that part of

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information supplied by accused which is immediate & direct cause

of discovery;

 It is settled that the expression “fact discovers” includes not only physical
object produced but also place from which it is produced and knowledge
of accused as this fact (Pulukuri Kottaya v. King Emperor, 1946).

 In State Of U. P vs Deoman Upadhyaya (1960 SC) upheld the

constitutional validity of Section 27 IEA, 1872.
 Whether Section 27 IEA is an exception to Section 24, 25 and 26 of
IEA?
Ans. Aghnoo Nagaesia vs. State of Bihar (1965 SC)

Section 27 partially lifts the ban imposed by Section 24. 25 and 26 in respect of
so much of the information whether it amounts to a confession or not, as relates
distinctly to the fact discovered in consequence of the information, if the other
conditions of the section are satisfied. Section 27 distinctly contemplates that
information leading to a discovery may be a part of the confession of the
accused and thus, fall within the purview of Section 24, 25 and 26. Section 27
thus shows that a confessional statement admitting the offence may contain
additional information as part of the confession.

Although this question was again discussed in Anter Singh vs. State of
Rajasthan (2004 SC) which held that the expression "provided that" together
with the phrase "whether it amounts to a confession or not" show that the
section is in the nature of an exception to the preceding provisions particularly
Section 25 and 26. But this case did not discussed about Section 24, because of
this reason we follow Agnoo Nagaesia case.

 The words ‘whether it amounts to confession or not’ occurring in proviso

to Section 23 Can apply to only to those cases where possession of the

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object or concealment of the object itself is an offence and not to any other
act of the accused confessing the commission of the offence.

Example: Where an unlicensed fire arms or narcotics drugs is revealed from a

place from the information of the accused, then even though his statement of
possession of firearms or drugs amounts to an offence, such admission
amounting to a confession cannot be excluded from the disclosure of the place
of concealment of the same. In such case, the recovery evidence itself may
attain the status of substantive evidence which can stand alone by itself.

 Evidentiary Value of Disclosure statement under Section 27 IEA (now

Proviso to Section 23, BSA 2023)
The disclosure statement made under Section 27 IEA (now Proviso to
Section 23, BSA 2023) has corroborative value.

Question 1. Should there not be formal arrest of the accused for the
applicability of Sec. 27 of the Evidence Act?

Ans. In Vikram Singh and Others vs. State of Punjab – 2010(3) SCC 56, the
Court held that on a bare reading of the provision would reveal that a "person
must be accused of any offence" and that he must be "in the custody of a police
officer" and it is not essential that such an accused must be under formal arrest.
Moreover in the light of the judgment in the Constitution Bench in State of
Uttar vs Deoman Upadhyaya AIR 1960 SC 1125 and the observation that the
words Section 27 "accused of any offence" are descriptive of the person making
the statement, the submission that this Section would be operable only after
formal arrest under Section 46(1) of the Code, cannot be accepted.

Question 2. After making a disclosure statement regarding the weapon of

offence, the accused does not lead the police to the place of concealment.
Instead, the Police Officer on the strength of the disclosure statement

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proceeds to the spot and takes out the weapon. Is it a recovery falling under
Sec. 27?

Ans. In State (NCT Delhi) v. Navjot Sandhu @ Afsan Guru (Parliament

attack case)(AIR 2005 SC 3820), the court held that the pointing out of a
material object by the accused himself is not necessary in order to attribute the
discovery to him. A person who makes a disclosure may himself lead the
investigating officer to the place where the object is concealed. That is one clear
instance of discovery of fact. But the scope of Section 27 is wider. Even if the
accused does not point out the place where the material object is kept, the
police, on the basis of information furnished by him, may launch an
investigation which confirms the information given by accused. Where the
information furnished by the person in custody is verified by the Police Officer
by going to the spot mentioned by the informant and finds it to be correct, that
amounts to discovery of fact within the meaning of Section 27, if the
information so furnished was the immediate and proximate cause of discovery.
If the Police Officer chooses not to take the informant- accused to the spot, it
will have no bearing on the point of admissibility under Section 27, though it
may be one of the aspects that goes into evaluation of that particular piece of
evidence.

Question 3. Situation A: The accused while in the custody of the police officer
makes a statement that ‘I have hidden the dagger beneath the tiles of the
cowshed of my neighbour Rajesh. I can show you the dagger which is so
hidden.’ Thereafter police goes to the spot and recovers the dagger.

Situation B: The accused while in the custody of the police officer makes a
statement that ‘I have hidden the dagger in a secret place. If I am taken there, I
shall show you the place and the dagger hidden there.’ After this, the accused

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 5

leads the police to the cowshed of his neighbour Rajesh and takes out the dagger
hidden beneath the tiles of the cowshed.

Answer: The distinction between Illustration A and Illustration B is this:

In Illustration A the accused person, in his disclosure statement given while in

the custody of the police officer, has revealed the place of concealment of the
weapon. The police officer who was in the dark about the place of concealment
of the weapon until the accused revealed the same was able to find out the
weapon from the information supplied by the accused and the officer could
himself recover the weapon without any further help, co-operation or assistance
by the accused. In other words, in Illustration A, the “information” given by the
accused while in the custody of the police officer, revealed a “fact
discovered” within the meaning of Section 27.

In Illustration B, the accused in his statement given while in the custody of the
police officer, has not revealed the place of concealment of the weapon. Until
the accused led the police party to the place of concealment of the weapon and
took out the weapon, that place continued to be a secret for the police officer. In
other words, in Illustration B, the accused did not, while he was in the custody
of the police officer, give any information regarding the “fact discovered”
within the meaning of Section 27.

Section 27 says that the "fact discovered" should be there in the

"information" received from an accused person while in the custody of the
police officer. It is this "information" (already given by the accused to the
police officer while in custody) which gets confirmed by the subsequent
recovery. It is not a requirement of law that the accused should himself lead
the police party to the place of concealment of the “weapon or object” and
take it out of the hidden place.

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 6

But, in Illustration B, the "information" given by the accused does not

reveal the "place" where the incriminating object is concealed by him. Hence,
there is no "information" given about the "fact discovered". On the contrary, the
accused is reserving to himself the "fact discovered" till he leads the police
party to the "place" of concealment of the weapon and then takes out the
weapon from its hiding place.

Hence, Illustration B does not fall under Section 27 of IEA. At best, the
action of the accused in Illustration B may amount to a "conduct" provable
under Section 8 of IEA.

In Babu Sahebagouda Rudragoudar & Ors. v/s. State of Karnataka

(2024) SC and Subramanya v. State of Karnataka 2022 SC it was held that
the statement of an accused recorded by a police officer under Section 27 of
IEA is basically a memorandum of the accused recorded by the IO during
interrogation which has been taken down in writing. When the IO steps into the
witness box for proving such statements, he would be required to narrate what
the accused stated to him. A general statement with regard to the disclosure
makes the disclosure inadmissible.

Question 4. A weapon is recovered on the basis of information made by the

accused during the investigation of another case, is it admissible?

In Perumal Raja v/s. State represented by Inspector of Police (2023) SC, the
Apex Court made these observations while hearing a criminal appeal filed by
the appellant (Perumal), who was convicted for the murder of the deceased
Rajini @ Rajinikanth. While the appellant was detained in another case relating
to the murder of Rajaram (Rajinikanth's father), he made a disclosure statement
concerning the murder of Rajinikanth. Importantly, the police, accordingly,
proceeded on the leads and recovered the parts of the deceased. Thus, the
appellant was arrested based on this disclosure statement. Consequently, the

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 7

Trial Court convicted the appellant for the murder of Rajnikanth under Section
302 of the IPC. The High Court affirmed this conviction and his sentence of life
imprisonment. Against this backdrop, SC held that such part of the information
given by the accused which led to discovery, and it is immaterial whether the
information was supplied in connection with the same crime or a different
crime.

Question 5. The husband who is subsequently made an accused voluntarily

goes to the police station soon after committing the brutal murder of his
wife and tells the Sub-Inspector that he butchered his wife to death and
revealed the place where he has concealed the chopper. The head constable
is sent to the place mentioned by the husband. The head constable finds the
chopper at the spot mentioned by the husband and recovers it. Is this
discovery of fact provable under Section 27 IEA (now, proviso Section 23
BSA, 2023)?

Answer: It is not essential that accused should accompany the police to the
place of recovery. It is sufficient if the recovery has been effected on basis of
the information provided by the accused. For the purpose of this section, it is
not required that the recovery has been effected by the same person to whom the
statement has been given. (State of UP v/s. Deoman Upadhyay 1960 SC).

Question 6. In a murder case it is proved that the weapon was kept

concealed in a bush by the side of a public road which was accessible to
all and sundry. Will the recovery of the weapon pursuant to the disclosure
statement of the accused, fall under Sec. 27 of IEA( now, proviso to Section
23, BSA 2023) ?

Ans. In State of Himachal Pradesh v. Jeet Singh 1999 SC, it was held that it
is fallacious notion that when recovery of any article was made from a place
which is open or accessible to others it would vitiate the evidence Section 27 of

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 8

IEA( now, proviso to Section 23, BSA 2023). The crucial question is not
whether the place was accessible to others or not but whether it was ordinarily
visible to others, if it is not then it is immaterial that the concealed place is
accessible to all.

Question 7. What is the value of recovery evidence where the custody of the
accused was obtained illegally?

Answer. In State Represented by Inspector of Police v/s. NMT Joy

Immaculate (2004) SC, it was held that such a statement does not become
inadmissible merely for the reason that custody of accused was obtained under
an illegal order of demand.

Question 8.Where the accused made a disclosure statement regarding the

weapon being concealed at a particular spot but the police finds no such
weapon, would the statement be admissible under Section 27?

Ans. In Narayana Pillai Vasudevan Pillai v/s. State of Kerala (1968) SC, it
was held that where on the basis of disclosure statement, the police party
reached the spot and do not find the weapon there but the investigation revealed
that a small girl had picked up the weapon from the spot mentioned by the
accused and had given it to another person. On questioning that person he
confirmed the statement of the girl and produced the weapon from the custody.
It was held that the disclosure statement and the subsequent recovery of the
weapon would fall under the ambit of Section 27 of IEA.

Question 9. Will the discovery evidence become inadmissible merely

because the police already knew where the objects were hidden?
Ans. In Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 it was
held that yes , because knowledge must be exclusive to accused .

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 9

Question 10. Is there a need for Independent Witnesses while making

recovery pursuant to the disclosure statement of accused?
Ans. In Mukesh v/s. State of NCT of Delhi (2017) SC it was observed that
“need of examining independent witnesses while making recoveries pursuant to
the disclosure statement of accused is a rule of caution evolved by the Judiciary
which aims at protecting the rights of the accused by ensuring transparency and
credibility in the investigation of a criminal case.

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 SECTION 26

Bharatiya Sakshya Adhiniyam (BSA), 2023

(Section 32 of IEA, 1872)

❖ Cases in which statement of relevant fact by person who is dead or

cannot be found, etc., is relevant.

As per Section 26(a) of BSA, 2023, statements, written or verbal, of

relevant facts made by:

i. a person who is dead, or

ii. who cannot be found, or
iii. who has become incapable of giving evidence, or
iv. whose attendance cannot be procured without an amount of delay or
expense which under the circumstances of the case appears to the Court
unreasonable,
Such statements are themselves relevant facts when the statement is made
by a person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person's
death comes into question. Such statements are relevant whether the person who
made them was or was not, at the time when they were made, under expectation
of death, and whatever may be the nature of the proceeding in which the cause of
his death comes into question.

⮚ What are the rules with respect to Burden of Proof?

Proof of these facts will have to be offered in the first instance to make the
evidence relevant. Thus, if the ground of relevancy is death of the person

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concerned his death must be proved, for if he is still alive, he must appear in
person.
● Section 107, BSA-Burden of proving fact to be proved to make
evidence admissible: The burden of proving any fact necessary to be
proved in order to enable any person to give evidence of any other fact is
on the person who wishes to give such evidence. (Section 104 in The Indian
Evidence Act, 1872).
Illustration: A wishes to prove a dying declaration by B. A must prove B's
death.
● Section 141 BSA: Judge to decide as to admissibility of evidence:
(1) When either party proposes to give evidence of any fact, the Judge may
ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the Judge shall admit the
evidence if he thinks that the fact, if proved, would be relevant, and not
otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last mentioned fact must be
proved before evidence is given of the fact first mentioned, unless the
party undertakes to give proof of such fact, and the Court is satisfied
with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit
evidence of the first fact to be given before the second fact is proved,
or require evidence to be given of the second fact before evidence is
given of the first fact.
Illustration- It is proposed to prove a statement about a relevant fact by a
person alleged to be dead, which statement is relevant under section 26 BSA.

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 The fact that the person is dead must be proved by the person proposing to
prove the statement, before evidence is given of the statement.

⮚ What is the principal behind section 26 BSA? Why is it admissible in

evidence?
Section 26 BSA, 2023 provides an exception to the principle of excluding
hearsay evidence.
The principle behind this section is that a person who has first-hand
knowledge of the facts of a case but who, for reasons stated in the section
such as death or disability cannot appear before the court, then his knowledge
should be transmitted to the court through some other persons.

The admissibility of dying declaration is based on the maxim: “Nemo

moriturus praesumiturmentire – No one at the point of death is presumed
to lie.” “A man will not meet his Maker witha lie in his mouth”. It is said
the truth sits on the lips of a person who is about to die.

Dying declarations are admissible for two reasons.

i. Firstly, the necessity; the victim being the sole eyewitness of the crime
that perpetrated upon him, excluding his evidence would defeat the end of
justice.
ii. Secondly, they are the declarations made by a person under expectation of
death and presumed to be true.
Above given are the two reasons on account of which a dying declaration is
made admissible.

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⮚ What do you mean by Dying Declaration? Whether a person making
the dying declaration be under the expectationof death?
Dying declaration means a statement by a person as to the cause of his death
or to the circumstances resulting in his death. So the statement must either
relate to the cause of death, like A while dying said the B poisoned him, or
to the circumstances as to the transaction, like in the case of Pakala
Naraynaswami vs. Emperor, (1939), where the wife of accused had
borrowed some money from the deceased. On 20th March, 1937 the deceased
received a letter, which was not signed by anybody, but from which it was
reasonably clear that the same had come from the accused’s wife, inviting
him to come that day or next day to Berhampur. The deceased’s widow told
the Court that on that day her husband showed her the letter and said that he
was going to Berhampur as Swami’s wife had written to him inviting him to
come to receive payment of his dues. On 23rd March his body cut into several
pieces was found in a steel trunk in a third classcompartment of a train at Puri
railway station.
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 as
dying declaration under Section 32(1) IEA or not.
Their lordship explaining the phrase ‘circumstances of the transaction’
observed: “The statement may be made before the cause of death has arisen,
or before the deceased has any reason to anticipate his death. The
circumstances must be circumstances of the transaction; general expression
indicating fear or suspicion whether of a particular individual or otherwise
and not directly related to the occasion of death will not be admissible”.
‘Circumstances’must have proximate relations to the actual occurrence
i.e. must be sufficiently or closely connected with actual transaction.

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 ⮚ Dying Declaration Under English Law
⮚ Under the English law the earliest statement or a declaration by a dying
man as to the cause of his death is admissible evidence in a trial.
⮚ Under the English law dying declaration is admissible only in cases of
homicide or manslaughter. "Where the death of the deceased is the subject
of the charge, and the circumstances of the death are the subject of the
dying declaration." Therefore, the dying declaration is not admissible in
civil cases as also in criminal cases excepting prosecution for homicide.
⮚ The Indian law does not insist on element of expectation of death while the
English law does.
⮚ Under English law it is necessary that the deceased should have completed
his statement, before dying. In India, if the deceased has narrated the full
story but fails to answer the last formal question as to “what more he wants
to say’, the declaration can be relied upon.

⮚ What are the conditions necessary for the admissibility of a dying

declaration?
i. The declarant must have died: The person who made the declaration
must be dead if the person is able to survive after making a dying
declaration, then such declaration would notbe admissible under Section
26 (1) of BSA as a dying declaration, although it may be admissible under
as corroborative evidence. So, the first condition is unless the declarant is
dead, the declaration cannot be admissible as a dying declaration.
ii. Injuries must have caused the ‘death’: The second condition is that the
injuries must have cause the death if a person dies not on account of injuries

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 which are inflicted on him but on account of some other reasons then the
dying declaration would not be admissible.
Suppose a person who has been assaulted, is admitted in the hospital
and he makes a dying declaration that such and such person has attacked
him, if the person dies not on account of the injuries sustained by him, but
on account of certain other element by him then the dying declaration
cannot be proved under Section 26(1) BSA.
iii. The declaration must be as to cause of the death or as to any of the
circumstances which resulted in the death: Any declaration which
pertains to the cause of the death of the declarant or as to the circumstances
that brought about the death is provable under Section 26(1) BSA as dying
declaration. Sometimes letters written even 5 years prior to the event are
admissible under Section 26(1) BSA.
In case of Ranjit Singh vs State of Punjab AIR 1952SC, the
deceased had written letter 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 letters which were written by the deceased five year prior to the
incident was sought to be proved.It was held that the letters are
admissible under Section 32 (1) IEA as dying declaration because they
alleged of the circumstances that brought about his death.
iv. The cause of the death of the declarant must be in question: For a dying
declaration to be admissible in evidence it is necessary that cause of death
of the person making the dying declaration must be an issue but not cause
of death of some other person.

⮚ Can a person make a dying declaration with respect to the death of

some other person or relative?

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 The answer to this can be derived from the word “cause of his death” used
in the section. From the bare reading it is manifestly clear that only the
statement as to one’s own death is relevant under Section 26(1) of BSA.

In Ratan Gond v. State of Madhya Pradesh 1959 SCR 1336, the accused was
charged with the rape and murder of a girl name Baisakhi. According to the
prosecution version the mother of the deceased Baisakhi went to forest for the
purpose of blocking wild berries leaving her two daughters Baisakhi and Agni in
the house and when she returned back, she found Agni alone in the house. When
she inquired Agni inform the mother that accused molested her sister Baisakhi
and he also caused her death in the course of that transaction. Agni also made a
similar statement to other person, to the sarpanch and to police constable. But
before her statement could be recorded in judicial proceeding Agni also died and
her statement was sought to be proved. It was held that the declaration made
by the 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.

However, the bench of Justice Adarsh Kumar Goel and Dipak Mishra in
the case Tejram Patil vs. State of Maharashtra, 2015(8) SCC 494, answered
the question. The matter pertained to homicide by the accused husband of the
deceased wife by pouring kerosene in presence of his mother in law. The deceased
wife who succumbed to the burn injuries and the mother both made separate
dying declarations (DD) before authorities. However, the fitness criteria for the
DD made by the deceased was omitted by the concerned police officer.

The question before the Court was where two persons die in the same
transaction, whether statement made by one person disclosing cause of death
of both persons in the same transaction would be taken as dying declaration
for both?

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 When two persons die in the same transaction and the circumstances of the
transaction which resulted in death of the person making the statement as well as
death of any other person are part of the same transaction, the same will be
relevant also about the cause of death of such other person.

Thus, the dying declaration of Prabhabai is admissible as to cause of her death as

well as the circumstances as to the cause of her daughter’s death, who died in the
same transaction.

⮚ Should the maker of the dying declaration have the intention to use
the statement as dying declaration?

In Bhagirath vs State of Haryana 1997 SC 234 the Court held that it was not
necessary that while recording statement of a deceased, there must have been
intention to use this statement as dying declaration.

Even otherwise, the term “circumstances as to transaction” used in the

section makes it clear that there is no such necessity of making such a statement.

⮚ Who can record a Dying Declaration and what is its form?

A statement of dying declarations could be made to any person – a doctor, a

magistrate, a friend or near relative, a police officer. However, a statement
recorded by a magistrate or doctor is considered as more reliable and that
recorded by a police officer or close relative require more scrutiny.

Whether police officer can record dying declaration?

In Prem Nath Yadav vs State of U.P (2022 SC) the Court upheld the
conviction based on dying declaration while stressing that there is no prohibition
that the police personnel should not record dying declaration and that such a dying
declaration is also admissible in evidence.

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 In Purshottam Chopra v/s. State NCT of Delhi (2020) SC observed that
merely because the deceased has suffered 100 per cent burn injuries, it cannot be
said that he or she was incapable to make a statement which could be acted upon
as dying declaration.
The extent of burn injuries, even to 100% would not, by itself, lead to a
conclusion that victim of such burn injuries may not be in a position to make the
statement. Irrespective of the extent and gravity of burn injuries, when the doctor
had certified him to be in fit state of mind to make the statement; and the person
recording the statement was also satisfied about his fitness for making such
statement; and when there does not appear any inherent or apparent defect, in our
view, the dying declaration cannot be discarded.
Therefore,
1. A dying declaration could be the sole basis of conviction even without
corroboration, if it inspires the confidence of the court.
2. The court must be satisfied that the declarant was in a fit state of mind at
the time of the making of statement, and that it was voluntarily made i.e.
which was not the result of tutoring, prompting or imagination.
3. Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.
4. Where the eye witness affirms that the deceased was not in a fit and
conscious state to make the statement, the medical opinion cannot prevail.
5. Though, the law does not provide as to whom to record a dying declaration
nor there is any prescribed format or procedure for the same, the only
concern for the person recording the DD is that the maker is in a fit state
of mind.

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 6. Though the presence of a magistrate is not absolutely necessary for
recoding a dying declaration but to ensure credibility it is expected that the
Magistrate shall record such dying declaration.
7. As regards a burn case, the percentage and the degree of burns would not
by itself be decisive of the credibility of the dying declaration and the
decisive factor would be the fitness and the conscious state of the declarant
to make the statement.

⮚ What is the Evidentiary value of dying declaration?

The relevancy and evidentiary value of a dying declaration has been discussed by
Supreme Court in Khushal Rao vs State of Bombay, AIR 1958 SC 22.

In this case, the deceased made four separate and identical declarations before
the doctor, police inspector, magistrate and to other persons, stating that he has
been assaulted by Khushal and one other person. The question was whether the
accused could be convicted only on the basis of this declaration, or the declaration
needed corroboration, the law in this regard is cogently laid down by Supreme
Court in the form of six prepositions:

1. It cannot be laid down as an absolute rule of law or even as a rule of

prudence that dying declaration cannot form the sole basis of
convection unless it is corroborated.
2. Each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made.
3. It cannot be laid down as a general proposition that a dying declaration
is a weaker kind of evidence than other pieces of evidence.

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 4. Dying declaration stands on the same footing as any other piece of
evidence and has to be judged in the light of surrounding circumstances,
with reference to principal governing weighing of evidence.
5. Dying declaration recorded by a competent magistrate in proper manner
in the form of question and answer, and in words of maker as far as
practicable stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all the
infirmities of human memory and character.
6. In order to test the reliability of a dying declaration, the court has to
keep in mind the circumstances like the opportunity of dying person for
observation e.g., whether there was sufficient light; whether the
capacity of a man to remember the facts stated had not been impaired
at the time of making the statement; that the statement had been
consistent throughout if he had several opportunity for making a dying
declaration and that the statement was made at the earliest opportunity
and was not the result of tutoring by interested parties

After such consideration, if the court is satisfied then there is no question of

doubt for the corroboration. If however the court feels it is not reliable,
corroboration is required. Hence the necessity of corroboration arises not from
any inherent weakness of dying declaration as a piece of evidence but from
the fact that the court doubts its veracity.

In Veerpal and Anr v/s. State of Uttar Pradesh (2022 SC) it is specifically
observed and held that there is neither a rule of la w nor of prudence to the effect
that a dying declaration cannot be acted upon without a corroboration. It is
observed and held that if the Court is satisfied that the dying declaration is true
and voluntary it can base its conviction on it, without corroboration.

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 In Naeem v/s. State of Uttar Pradesh (2024) SC, the court held that if
after careful scrutiny the court is satisfied that the dying declaration is true and
free from any effort to induce the deceased to make a false statement and it is
coherent and consistent, there shall be no legal impediment to make it the basis
of conviction even if there is no corroboration, i.e. the dying declaration can form
the sole basis of conviction.

⮚ Form of Dying Declaration:

No particular form of recording a dying declaration is prescribed. It could be

written, oral or even verbal (e.g. gestures).

Statement by Sign: In Queen Empress V. Abdullah (1885) ILR 7 ALL 385,

where the throat of the deceased girl was cut and she being unable to speak
indicated the name of the accused by the signs of her hand, this was held to be
relevant as dying declaration.

Statement through Gestures: In Mukesh vs. State of NCT of Delhi, AIR 2017
SC 2161, (Delhi Gang Rape case), the statement U/s 164 Cr.P.C. was recorded
by Metropolitan Magistrate, in the form of questions by putting her multiple-
choice questions. This statement was made through gestures and writings. It
subsequently became dying declaration.

The dying declaration recorded through nods and gestures is not only
admissible but also possesses evidentiary value. However, it will be evaluated on
the basis of the fact as to who recorded the statement. The fitness of the declarant
shall also be considered by the court.

In Meesala Ramakrishan vs. State of A.P., 1994 (4) SCC 182, the Apex Court,
while admitting the dying declaration made through gestures, made the following
observations:

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“That dying declaration recorded on the basis of nods and gestures is not only
admissible but possesses evidentiary value, the extent of which shall depend
upon who recorded the statement, whatis his educational attainment, what
gestures andnods were made, what were the questions asked – whether they
were simple or complicated – and how effective or understandable the nods and
gestures were”.

In Ramilaben Hasmukh Bhai Khristi Vs State Of Gujarat 2002 SCC 56, the
supreme court held that under the law dying declaration can form the sole basis
of conviction, if it is free from any kind of doubt and it has been recorded in the
manner as provided under law it may not be necessary for looking for
corroboration of such a dying declaration. As envisaged, a dying declaration is
generally to be recorded by an Executive Magistrate with the certificate of
medical doctor about the mental fitness of the declarant to make this statement.
It may be in form of questionand answer and the answers be written in the words
of the person making the declaration. But the court cannot be too technical or in
substance if it feels convinced about the trustworthiness of the statement which
may inspire confidence such a dying declaration can be acted upon without any
Corroboration.

⮚ What is the Effect of Multiple Dying Declarations?

In State of Punjab vs. Parveen Kumar , AIR 2005 SC 1277, court laid down
the following points while considering multiple dying declarations:

1. The court must be satisfied that dying declaration is truthful. If there are
two or more dying declarations giving different version, a serious doubt is
created about the truthfulness of dying declaration. If there is any other

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 reliable evidence on record, the court would consider such corroborative
evidence to test truthfulness of dying declaration.

2. When dying declaration are multiple and inconsistent with each other they
may be rejected unless there is other evidence on record from which it can
be found out that one is truthful and credit worthy.

3. If all dying declarations are consistent and some are merely elaborating or
giving in detail the circumstances of the transaction, all will be admitted.

4. When inconsistencies exist, the statement recorded by Magistrate or a

higher ranking officer can be relied upon if it demonstrates truthfulness and
freedom from suspicion.

However, if minor discrepancies or inconsistencies are there, it will not be

a ground to discard dying declaration.

In cases of several dying declaration which are inconsistent with each other, those
dying declaration which are corroborated by circumstantial evidences will be
admissible and be relied upon.

Divergent Dying Declarations: In Jagbir Singh V. State (NCT of Delhi)

(2019) : The supreme court expressed a view on divergent dying declarations that
the real point is to ascertain which contains the truth. When there are divergent
dying declarations it is not the law that the court must invariably prefer the
statement which is incriminatory and must reject the statement which does not
implicate the accused.”

Fitness Certificate: In Jagbir Singh’s case, the court further held that absence
of the certificate by a doctor is not fatal to act upon a dying declaration. However,

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the person who records the dying declaration must ensure that the patient was in
a fit condition, both mentally and physically to give the declaration.

In Bhagwan v/s. State of Maharashtra (2019) SC it was held that a certificate

of doctor regarding fitness of the declarant is not necessary, if the Officer
recording the statement of declarant is satisfied that he is in a position to make
the statement.

⮚ Is registration of F.I.R a pre condition for recording a dying

declaration?

No, FIR is not required for recording a dying declaration.

FIR as Dying Declaration- Where an injured person lodged the F.I.R and then
died, it was held to be relevant as a dying declaration [K. Ramachand Reddy v.
Public Prosecutor (1976) 3 SCC 104].

A report made by the deceased relating as to the cause of his death or as to

any of the circumstances of the transaction which resulted in his death shall be
relevant as dying declaration. (Mehmood Ilahi v State of UP, 1990 CrLj 885).
Similarly, a ‘complaint’ made to police could be taken as a dying declaration [Jai
Prakash v State of Haryana, 1999 CrLj 837 (SC)].

⮚ Can there be Severability of Dying Declaration?

In Godhu v/s. State of Rajasthan (1974) SC, it was held that if a part of dying
declaration has not been proved to be correct, it need not necessarily result in the
rejection of the whole of the dying declaration. However, where the correct and
the incorrect part of the dying declaration are so connected together that they
cannot be severed, then the entire dying declaration has to be rejected.

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 ⮚ Can a wife’s dying declaration /statement to be used to prove cruelty
even if husband has been acquitted of charge related to her death ?

In Surendran vs State of Kerala (2022 SC)-3J Bench: The Supreme Court held
that the dying declaration of a wife can be used to prove cruelty under Section
498A IPC even if the husband is acquitted of charges relating to her death. This
is subject to the satisfaction of the following two preconditions:

First is that her cause of death must come into question in the matter. The second
condition is that the prosecution will have to show that the evidence that is sought
to be admitted with respect to Section 498A of the IPC must also relate to the
circumstances of the transaction of the death.

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 SECTION 27, 28 & 29

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Relevancy of certain evidence for proving, in subsequent proceeding,

truth of facts therein stated.

Section 27 of BSA, 2023 (Section 33 of IEA, 1872) deals with 'Relevancy of

certain evidence for proving, in subsequent proceeding, the truth of facts therein
stated. Section 27 is also an exception to Hearsay Rule.

The evidence contemplated by this section is:

i. Evidence given by a witness in an earlier judicial proceeding or before

any person authorized by law to take evidence.
ii. The proceeding (i.e. earlier proceeding) was between the same parties or
their representatives in interest;
iii. The adverse party in the first proceeding had the right and opportunity to
cross examine;
iv. The questions in issue were substantially the same in the first as in the
second proceeding.
v. Such evidence is relevant in a subsequent proceeding, for the purpose is
of proving the truth of the facts which it states when

(a) the witness is dead, or

(b) the witness cannot be found, or

(c) the witness is incapable of giving evidence, or

(d) witness is kept out of the way by adverse party, or

 (e)witness's presence cannot be obtained without any amount of delay or
expense which, under the circumstance of the case, the Court considers
unreasonable.

Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding

between the prosecutor and the accused within the meaning of this section.

 Ingredients of Section 27 BSA, 2023

 ‘Previous statement in same proceeding’

Example: Section 200 or 202 Cr.P.C or Pre charge evidence in a complaint

proceeding; Order 22 Rule 5 in CPC.

However, in case of setting aside of exparte decree, previous statement is not

relevant as there was no opportunity of cross examination.

 ‘Other person authorised by law to take evidence’

Example: Section 41(2) of Registration Act: Statement regarding genuineness of

Will; or An Arbitrator or a Local Commissioner or a revenue Officer in mutation
proceedings.

 ‘Parties or Representative in Interest’

Parties must be the same but can be differently arranges, for instance the plaintiff
in the first suit may become defendant in the subsequent suit.

Example: Plaintiff v/s. Defendant- First Suit

Defendant v/s. Plaintiff-Second Suit

  Relationship between Criminal Proceedings vis-a-vis Civil

Example: A is murdered by B. Prosecution is instituted on the request of A’s

brother X. B, upon acquitted, files a suit for malicious prosecution against X. Here,
previous statement of witnesses can be proved.

 ‘Right and Opportunity of Cross Examination’

Both the right and opportunity to cross examine must exist. If only had a right but
no opportunity was given or if opportunity was given but there was no such right,
then it is not admissible.

 ‘Identity of Issues Involved’

Identity of issues depends on whether same evidence is to be adduced, though

different consequence may follow. Example: Earlier ‘A’ was tried for Section 324
IPC, but upon X’s death, he may be tried for Section 302 IPC.

Furthermore, identity of issues involved must be there because in previous

case parties were not without opportunity of examining on the very same point.
The subject matter of the suit need not be identical; it is only question in issue that
is to be identical.

However, it not necessary that all issues must be same.

 ‘Inability of witness to appear’

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.

 Waiver of Conditions under Section 27, BSA

In Dilip Kumar v/s. Nanad Ram 1970, the court held that if five conditions are
not fulfilled and party waives or raises no objection, statement will be admissible
under Section 27 of BSA in civil cases.

However, in Chanchal Singh v/s. Emperor 1946, it was held that accused
cannot waive in criminal proceedings. In a criminal case strict proof ought to be
given that the witness is incapable of giving evidence.

 Section 308 BNSS, 2023 r/w Section 335 BNSS, 2023

 Evidence to be taken in presence of accused---Section 308 BNSS, 2023
(Section 273 of Cr.P.C., 1973)

Except as otherwise expressly provided, all evidence taken in the course of

the trial or other proceeding shall be taken in the presence of the accused, or, when
his personal attendance is dispensed with, in the presence of his pleader.

 Record of evidence in absence of accused---Section 335 BNSS, 2023

(Section 299 of Cr.P.C., 1973)

If it is proved that an accused person has absconded, and that there is no

immediate prospect of arresting him, the Court competent to try or commit for
trial, such person for the offence complained of may, in his absence, examine the
witnesses (if any) produced on behalf of the prosecution, and record their
depositions and any such deposition may, on the arrest of such person, be given in
evidence against him on the inquiry into, or trial for, the offence with which he is
charged, if the deponent is dead or incapable of giving evidence or cannot be found
or his presence cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be unreasonable.

 Entries in books of account when relevant- Section 28, BSA 2023

(Section 34 of IEA, 1872)

Entries in the books of account, including those maintained in an electronic form,

regularly kept in the course of business are relevant whenever they refer to a matter
into which the Court has to inquire, but such statements shall not alone be
sufficient evidence to charge any person with liability.

 'Book’ is a collection of sheets of paper bound together with the intention

that such binding shall be permanent and papers used collectively in one
volume. Unbound sheets are not books.
 It must be noted that such an entry is relevant but that doesn’t carry much
evidentiary value, therefore it will need corroboration. So admissibility of a
document is one thing and its probative value is quite another.
 In Devender Kumar Sharma v/s. State of Rajasthan (2001) SC held that
entry in hotel register will be relevant under this section only if it has
pecuniary transactions.
 In CBI v/s, VC Shukla (Hawala Case) (1998) SC, it was held that spiral
notebooks are books within the meaning of Section 34 of IEA, 1872.
  Relevancy of entry in public record or an electronic record made in
performance of duty: Section 29 BSA, 2023 (Section 35 of IEA, 1872)
An entry in any public or other official book, register or record or an electronic
record, stating a fact in issue or relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in performance of a duty
specially enjoined by the law of the country in which such book, register or
record or an electronic record, is kept, is itself a relevant fact.
 Public book is not defined anywhere, however, Public document is defined
under Section 74 BSA, 2023 (Section 74 of IEA, 1872).
It is essentially a document which is made for the public use. Example: Birth &
Death Register can be used in ascertaining juvenility or minority in POCSO cases
or in case of kidnapping.
 Notes- Bharatiya Sakshya Adhiniyam (BSA), 2023

Confession of Co-Accused, Accomplice & Approver

 Confession of a Co-Accused
 Consideration of proved confession affecting person making it and others
jointly under trial for same offence
Section 24 BSA, 2023 (Section 30 of IEA, 1872) provides that “when
more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some other of
such persons is proved, the Court may take into consideration such confession
as against such other person as well as against the person who makes such
confession.”
Under this section a confession by one person may be taken into
consideration against another:
1. If both of them are tried jointly
2. If they are tried for the same offence, and
3. If the confession is legally proved

 What is the Evidentiary Value of Confession of a Co-Accused?

A confession of a co-accused is a very weak piece of evidence. It does
not come within the definition of ‘evidence’ contained in Section 2 of BSA. It is
not required to be given on oath, nor in the presence of the accused, and it
cannot be tested by cross-examination.
In Bhubani Sahu v. The King, (1949) 5 Bom LR 955, it was observed
that confession of a co-accused is a much weaker type of evidence than the
evidence of an approver which is not subject to any of those infirmities. The
confession of a co-accused can be used only in support of other evidence and
cannot be made the foundation of a conviction.
In Kashmira Singh vs. State of Madhya Pradesh, AIR 1952 SC 159,
The appellant Kashmira Singh has been convicted of the murder of a small boy
aged five, and has been sentenced to death. He was granted special leave to
appeal. Three other persons were tried along with him. They were his brother
Gurudayal Singh, his nephew Pritipalsingh (son of Gurudayal) and one
Gurubachan Singh. Gurudayal and Pritipal have been acquitted. Gurubachan
Singh confessed and was convicted. He was also sentenced to death.
Gurubachan's confession has played an important part in implicating the
appellant, and the question at once arises, how far and in what way the
confession of an accused person can be used against a co-accused?
The court held that the confession of an accused person against a co-
accused is not evidence in the ordinary sense of the term and such a confession
can only be used to tend assurance to other evidence against a co-accused. Such
a confession cannot be made tile foundation of a conviction and can only be
used in "support of other evidence."

 Explanations appended to Section 24 BSA, 2023

 Explanation I.—"Offence", as used in this section, includes the abetment
of, or attempt to commit, the offence.
 Newly added Explanation II.—A trial of more persons than one held in
the absence of the accused who has absconded or who fails to comply
with a proclamation issued under section 84 of the BNSS, 2023 (Section
82 of Cr.P.C) shall be deemed to be a joint trial for the purpose of this
section.
Note:- The newly added Section 356 BNSS, 2023: Inquiry trial or judgment in
absentia of proclaimed offender:
It provides that “Notwithstanding anything contained in this Sanhita or
in any other law for the time being in force, when a person declared as a
proclaimed offender, whether or not charged jointly, has absconded to evade
trial and there is no immediate prospect of arresting him, it shall be deemed to
operate as a waiver of the right of such person to be present and tried in
person, and the Court shall, after recording reasons in writing, in the interest
of justice, proceed with the trial in the like manner and with like effect as if he
was present, under this Sanhita and pronounce the judgment”.
This provision must be read with Section 308 BNSS, 2023 (Section 273
Cr.P.C. 1973) which provides that all evidence, in the course of the trial or
other proceeding, shall be taken in the presence of the accused.
Furthermore, Section 335 BNSS, 2023 (Section 299 Cr.P.C. 1973)
provides that if accused has absconded, and there is no immediate prospect of
arresting him, the court may, in his absence, examine the prosecution witnesses
and record their depositions. Such deposition may be given in evidence against
him, if the deponent is dead or incapable of giving evidence or cannot be found
or his presence cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be
unreasonable.
For understanding purposes (do not quote these examples in your
answer), let us take a look at the following situations:
Situation 1: Say, the accused (who had absconded earlier) is arrested, now as
per Section 308 BNSS, 2023, all the evidence shall now be taken in his
presence. Let’s assume one of the prosecution witnesses, whose evidence was
recorded earlier, has passed away by now. In such a situation, the evidence of
such a witness becomes relevant under Section 27 of BSA, 2023 (Section 33
IEA).
Situation 2: In State v/s. A & B, B has absconded. Under such a scenario, as
per Section 335 BNSS, 2023 (Section 299 Cr.P.C), the court may examine the
prosecution witnesses against ‘B’ in his absence. Upon his re-arrest, the
evidence shall be taken in his presence again.
Now, after the incorporation of Section 356 BNSS, 2023, the accused
who has absconded “to evade trial” and there is no immediate prospect of
arresting him, it shall be deemed to operate as a waiver of the right of such
person (here ‘B’) to be present and tried in person. Now if ‘B’ is rearrested, the
evidence recorded earlier against him remains relevant and there is no need to
take evidence in his presence again.
Such an accused had the right and the opportunity to have the evidence
recorded in his presence and cross examine the prosecution witnesses, but in his
quest to evade the trial/delay the trial, he failed to do so.
The Court shall, after recording reasons in writing, in the interest of
justice, proceed with the trial as if he was present and ‘pronounce the
judgment’.

 Accomplice
An accomplice is a person who is a guilty associate in crime or who
sustains such a relation to the criminal act that he can be jointly indicted with
the principal criminal. In simple words, an accomplice is a partner in crime.
Categories of Accomplice- The participation may be done in various ways. The
modes of taking part with a crime are treated under the head of –
(1) Principals in the first degree or second degree, and
(2) Accessories before the fact or
 (3) After the fact.

 Difference between Approver and Accomplice

An Accomplice is called an Approver if he is granted pardon under
Section 343-345 BNSS, 2023 (Section 306 Cr.P.C, 1973). An Accomplice by
becoming an Approver becomes prosecution witness.
However, evidence of an Accomplice as a witness is admissible even if
he is prosecuted and not granted pardon.
It can be said that all Accomplice do not become co-accused. If an
Accomplice is tendered pardon and becomes prosecution witness, he is no
more a co-accused. On the other hand, if tender of pardon does not take place
for whatever reasons and the accomplice is tried along with, he is known as the
co-accused.

 Accomplice under Section 133 IEA, 1872:

“An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
This section has to be read with illustration (b) of Section 114 of IEA,
1872 which states: “The Court may presume- That an accomplice is unworthy
of credit, unless he is corroborated in material particulars.”
After reading Section 133 and illustration (b) of 114 of IEA it can be said
that there is no antithesis between these two, because the illustration only says
that the court ‘may’ presume certain state of affairs. It does not seek to raise a
conclusive presumption.
Section 133 of IEA is a clear authorization to the courts to convict on the
corroborated testimony of an accomplice. Since such a witness, being criminal
himself, may not always be trustworthy, the courts are guided by the illustration
appended to Section 114 of IEA that, if it is necessary the court should presume
that he is unreliable unless his statements are supported or verified by some
independent evidence
Therefore, Section 133 of IEA lays down a rule of law. But Section
114, illustration (b) of IEA lays down a rule of prudence. This rule of
prudence has now come to be accepted as a rule of law by judicial legislation
both in Indian and English law.
In Somasundaram alias Somu v. The State, (2016)16 SCC 355, the SC
laid two tests for the purpose of testing the accomplice evidence:
i. The evidence of the accomplice must be credible and
ii. There must be corroboration of accomplice evidence.

Thus, the combined result of Sections 133 read with illustration (b) to
Section 114 of IEA is that it would be unsafe to convict an accused solely based
on uncorroborated testimony of an accomplice. The corroboration must be in
relation to the material particulars of the testimony of an accomplice.

Corroboration is necessary because there are some dangers in accepting

the uncorroborated testimony of an accomplice:
1. He is paricipes criminis (a participant in the commission of actual crime),
hence evidence comes from a tainted source. His testimony should not
carry the same respect as that of a law abiding citizen.
2. He has been faithless to his companions and may be faithless to the court
because he has motive to shift the guilt from himself to his former
companions. The paramount danger is that he may weave a story which
may implicate even the innocent with the guilty.
 3. If he is an approver (i.e. granted pardon), he has been favoured by the
State and is therefore likely to favour the state as a prosecut
ion witness.

 However, under the BSA 2023, the corresponding provision has undergone
some changes, and now there is no apparent conflict between the two
provisions.
Section 138 BSA, 2023 (earlier Section 133 IEA) now provides that “An
accomplice shall be a competent witness against an accused person; and a
conviction is not illegal if it proceeds upon the corroborated testimony of an
accomplice”
And Illustration (b) of Section 119 BSA, 2023 (earlier Illustration (b) of
Section 114 IEA) still provides that “an accomplice is unworthy of credit,
unless he is corroborated in material particulars.”
So, the apparent conflict between the provisions has been resolved under
the BSA, 2023 and the evidence of the accomplice must be corroborated in
material particulars in order to be relied upon.
 Judgments of Courts when relevant

Section 34-38

Bharatiya Sakshya Adhiniyam (BSA), 2023

Section 34-38 of BSA, 2023 (Section 40-44 of IEA, 1872) deal with
relevancy of Judgments. In common law system, judicial precedent is very
important source of law

 Judgments are of two types:

 Judgment in Rem: A judgment “in rem” amounts to a determination of
the status of a particular matter or an individual’s rights in respect of a
certain matter, but is conclusive not only between the competing parties
but also as against the world. Example: Admiralty, Insolvency,
Matrimonial and Probate matters.
 Judgment in Personam: A judgment “in personam” can be defined as a
judgment that defines, positively, claims against competing individuals in
respect of a particular matter, or to compel the performance of a
particular act. Example: Discharge of a debt, or the Payment of an award
for damages for breach of contract.
Judgments in personam bind the parties and their representatives in
interest or persons claiming under those parties.
Person Claiming under the Parties:
i. Privies in Interest/Estate: Donor-Donee, Lessor-Lessee, Vendor-Vendee
ii. Privies in Blood: Heirs/Coparcenary
iii. Privies in Law: Executor, Administrator
 The general rule is that all judgments in rem shall be relevant in future
cases whereas judgment in personam is not relevant as it creates private and
personal obligations, once they are discharged the matter is over.

 Previous judgments relevant to bar a second suit or trial

Section 34 BSA, 2023 (Section 40 IEA, 1872) provides that “the existence of
any judgment, 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.”

 A judgment which has the effect of res judicata is relevant in every case
in which it has that effect. Section 40 incorporates this principle.
 The objective behind this principle is to prevent ‘multiplicity of
litigation’.
 The principle applies to criminal proceedings also. If a person has been
once tried for an offence and either convicted or acquitted of it, he cannot
be tried again for the same offence (autre fois acquit or au4tre fois
convict) as provided under Section 337 BNS, 2023 (Section 300 Cr.P.C.
1973). Thus, the judgment by which he was acquitted or convicted will be
relevant to every case or proceeding in which he is charged with the same
offence.

 Relevancy of certain judgments in probate, etc., jurisdiction

Section 35 BSA, 2023 (Section 41 IEA, 1872) provides that any judgment
regarding the following matters shall be relevant:
 Probate
 Matrimonial
 Admiralty
  Insolvency
Any judgment that determines a right or a legal duty finally, or which
confers or decides a status of parties is conclusive proof i.e. it is relevant against
the whole world.
Note: Under the new BSA, 2023, this relevancy has been extended to the final
judgments, orders or decree of both, ‘competent courts or tribunals’.
 Insolvency: By exercising insolvency jurisdiction, the court can
determine legal status of a person whether he is insolvent or he is
discharged from insolvency or annulment of his insolvency. A judgment
of an insolvency court is a judgment in rem and binding on all.
 Admiralty: This jurisdiction with respect to maritime claims. The Court
decides cases arising out of war claims. The finding of a court of
admiralty jurisdiction is a judgment in rem.
 Matrimonial: By virtue of this jurisdiction, the court can decide the legal
status of a person whether she is married or widow or divorcee. The
judgment of a Matrimonial court is judgment in rem and is admissible. A
decree of nullity and divorce under the Law has the same effect.
 Probate: Probate jurisdiction means jurisdiction of a court under the
Indian Succession Act, 1925 in respect of testamentary and intestate
matters.
By exercising probate jurisdiction the court can pronounce the
genuineness of will of a deceased person and grant letter of probate in
favour of a person who may act for the deceased in execution of his will.
A judgment by a probate is a judgment in rem by which legal
character of a person is granted. A judgment of a court of probate is
conclusive proof and is binding on the entire world. The grant of probate
 is the decree of a court which no other court can set aside except for fraud
or want of jurisdiction.

 Relevancy and effect of judgments, orders or decrees, other than

those mentioned in section 35
Section 36 BSA, 2023 (Section 42 IEA, 1872) provides that “Judgments,
orders or decrees other than those mentioned in section 35 are relevant if they
relate to matters of a public nature relevant to the enquiry; but such
judgments, orders or decrees are not conclusive proof of that which they
state.”
But it should be remembered that judgments relating to matters of public
nature relevant under this section neither work as Res Judicata nor they are
Conclusive as judgments in rem. They can be used as any other evidence in the
proceeding.
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 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, 35 and 36

when relevant
Section 37 BSA, 2023 (Section 43 IEA, 1872) provides that judgments
which are not mentioned under Section 34-36 are irrelevant, but there are
two exceptions:
 1. When that judgment is a fact in issue- in that case that earlier
judgment shall also be relevant, even if it does not fall under these
sections.
Example:
1. A is charged with theft and with having been previously
convicted of theft. The previous conviction is relevant as a fact in
issue.
2. If the judgment is relevant otherwise under some other provision
of Adhiniyam.
Example:
1. A is tried for the murder of B. The fact that B prosecuted A for
libel and that A was convicted and sentenced is relevant under
section 6 as showing the motive for the fact in issue.
2. 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. A is
charged with theft and with having been previously convicted of
theft. The previous conviction is relevant as a fact in issue.

 Fraud or collusion in obtaining judgment, or incompetency of Court,

may be proved
Section 38 BSA, 2023 (Section 44 IEA, 1872) provides that “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 not competent to
deliver it, or was obtained by fraud or collusion.”
This is based on the maxim that ‘fraud defeats all solemn acts.’
 1

FACTS WHICH NEED NOT BE PROVED

Section 51-53

Bharatiya Sakshya Adhiniyam (BSA), 2023

For establishing any fact in the court of law we need to prove that fact
with the help of witnesses through proper procedure as is mentioned in the law.
Judicial notice occurs when a trial court accepts a fact as true without requiring
either party to introduce evidence supporting the noticed fact.

Therefore, Judicial notice is a rule in the law of evidence that allows a

fact to be introduced into evidence if the truth of that fact is so notorious or well
known, or so authoritatively attested, that it cannot reasonably be doubted.

Judicial notice is generally intended to save the parties, the court and the
jury the time and effort associated with proving facts that are a matter of
common knowledge.

 Classification of Facts
1. Facts are either physical or psychological.
2. Some facts are fact in issue and other are relevant fact. Only these are the
facts which may be proved.
However, there are certain facts that need not be proved:
i. Facts which are judicially noticeable
ii. Facts which are admitted.
iii. Facts which the court may or shall presume.

 Facts which are judicially noticeable

Section 51 BSA, 2023 (Section 56 IEA, 1872) provides that no fact of

which the Court will take judicial notice need be proved.

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 2

 Facts which are admitted

Section 52 BSA, 2023 (Section 57 IEA, 1872) provides that Court ‘shall’
take judicial notice of the facts mentioned under the section.
Therefore, it is mandatory to take judicial notice of facts which is
mentioned in list of section 52 BSA, 2023.
Section 52 BSA, 2023 is not exhaustive. They are well known facts, to
the public as well as the judges i.e. something which is in the public domain and
about which there is no dispute.

Example: Rules of Traffic (to drive on the left side in India); law of gravity,
matters of history etc.

In Massom Alam v/s. Union of India 91973) SC held that it will take
judicial notice of the fact as to when the war between India and Pakistan started
and ended in 1971.

In Laxmi v/s. State of Tamil Nadu (1988) SC held that court cannot
take judicial notice of a fact stated in a news item published in the newspaper.
The news item is in the nature of hearsay evidence.

 Facts admitted need not be proved

Section 53 BSA, 2023 (Section 58 IEA, 1872) provides that no fact
needs to be proved in any proceeding which:
i. the parties thereto or their agents agree to admit at the hearing, or
ii. which, before the hearing, they agree to admit by any writing under
their hands, or
iii. which by any rule of pleading in force at the time they are deemed
to have admitted by their pleadings.

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Provided that the Court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.

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Character when relevant

Section 46-50

Bharatiya Sakshya Adhiniyam (BSA), 2023

Section 46-50 of BSA, 2023 (Section 52-55 of IEA, 1872) provide when
character becomes relevant.

Section 50 BSA, 2023 (Section 55 of IEA, 1872) provides that the term
‘character’ includes both reputation and disposition. It is normally
established that reputation is the general opinion about an individual in the
eyes of the others whereas disposition is how that person is in real and what are
his inherent qualities.

 Admissibility of Character Evidence in Civil Suits

 Evidence of character is irrelevant in civil cases

Section 46 BSA, 2023 (Section 52 IEA, 1872) provides that “In civil
cases the fact that the character of any person concerned is such as to render
probable or improbable any conduct imputed to him, is irrelevant, except in so
far as such character appears from facts otherwise relevant.”

Thus, generally in civil cases, a fact pertaining to the character of an

individual is not relevant. It lays the principle that the character of a party as a
piece of evidence can’t be used to manifest that conduct attributed to him is
probable or improbable.

Illustration : ‘A’, a businessman is charged with fraud. In this case, no

evidence of the fact can be treated as relevant which states that he is an honest
man i.e. the character is such that he can never commit fraud. Neither can the
opposite party present evidence of the fact that A’s character had been so
trickery that he must have committed the fraud.

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

 There are a few exceptions to Section 46 BSA, 2023 (Section 52 IEA,

1872)
1. Character as affecting damages
Section 50 BSA, 2023 (Section 55 IEA, 1872) provides that “In civil
cases, the fact that the character of any person is such as to affect the amount of
damages which he ought to receive, is relevant.”
Note: Here character of the plaintiff is relevant.
 For instance, in cases of defamation, the evidence of the good or bad
character of the original plaintiff is relevant to decide the amount of
damages that the plaintiff is ought to receive.
 The explanation appended to the section further provides that the word
"character" includes both reputation and disposition.

Disposition is often referred to as what a person is in reality. A person’s

inherent qualities which he may have obtained through education, upbringing or
any material condition in life is called disposition. A bad reputed person may
have a good disposition.
Reputation is often referred to as the general estimation of a person. It is what
other people think about that individual. However, the evidence of those who do
not that individual but have heard of his reputation is not admissible in the
court.

 There is distinction between reputation and disposition is:

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i. Reputation means the general credit of the person among the public
but disposition means the inherent qualities of a person.
ii. Reputation is what other people think about him while disposition is
what he is in reality.
Therefore, a man may be reputed to be a good man but in reality he may
have a bad disposition.
As character includes both reputation as well as disposition, character
means the general credit of the person in the estimation of others plus the nature
and inherent qualities of a person. Although strictly speaking character is to be
distinguished from reputation, yet reputation is more commonly considered as
having reference to the dispositions or character of a person. Thus it is said of a
person that he bears a good reputation meaning that the person in question has
reputation for being a person of good character.

2. When the character is itself a fact in issue

Evidence can be given of a party’s character when his character is itself a
fact in issue.
Example: If divorce is sought on the ground of cruelty of husband, in such case
evidence pertaining to the character of the husband will be relevant as the cruel
character is itself a fact in issue.

3. When Character appears otherwise relevant

A fact which is otherwise relevant cannot be excluded from evidence
only because it incidentally exposes or throws light upon a party’s character.
This appears from the concluding words of Section 46 BSA, 2023 itself which
says that “except in so far as such character appears from facts otherwise
relevant. Thus if facts otherwise relevant show a party’s character also the
court can take note of it imputed to the party.

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Example: A journalist is described as an exploiter and he sues for damages for

defamation and if the defendant takes the defence that whatever he has said it
true, he will have to lead evidence to prove the exploitation which the plaintiff
has been practicing. Such evidence will also bring to light the real character of
the plaintiff and the court can take note of this.

 Admissibility of Character Evidence in Criminal Cases

 Evidence of previous good character is relevant in criminal cases

Unlike civil cases where the character is irrelevant, in criminal cases it is
relevant. Section 47 BSA, 2023 (Section 53 IEA, 1872) provides that in
criminal cases, the good character of the accused person is relevant.
The reason behind this is the basic human psychology that a person of
good character will not generally resort to a criminal act. If goodness is proved
it helps in a presumption of non-commission of the offence by that individual.

 Previous bad character not relevant, except in reply

Section 49 BSA, 2023 (Section 54 IEA, 1872) provides that “in criminal
proceedings, the fact that the accused has a bad character, is irrelevant, unless
evidence has been given that he has a good character, in which case it becomes
relevant.”
However, there are three exceptions to the rule of irrelevance of bad
character in criminal cases.
1. To rebut prior evidence of good character (Section 49 BSA)
The previous bad character is relevant in reply, if the evidence has been
given that he has good character.

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In Indian system of Law, an accused starts with a presumption of

innocence; his bad character is not relevant, unless he gives evidence of
good character in which case, by way of rebuttal, evidence of bad character
may be adduced. The prosecution gets the right to prove the bad character of
the accused.
In cases of defamation, malicious prosecution etc., the question of
reputation is to be considered. In such cases, the bad character of the party
may be adduced as evidence.

2. Where Character is in issue (Explanation 1 of Section 49, BSA)

The evidence of bad character can be proved in cases in which the bad
character is in issue.
In case of proceedings for keeping good behavior under Sections 128 and
129, BNSS, 2023 (Section 109 and 110, Cr.P.C.) and in proceedings for the
offence of dacoity under Sections 310(6) and 313, BNS (Section 400, and
401, IPC). The bad character of the person involved would be a fact in issue.
The evidence that the accused had committed similar criminal acts
previously is admissible upon the issue to decide whether the act was
intentional or accidental. If the evidence of bad character is introduced in
order to establish a relevant fact which cannot be proved separately the
evidence of bad character is admissible.

3. A previous conviction is relevant as evidence of bad character

(Explanation 2 of Section 49, BSA)
A previous conviction is not admissible in evidence against the accused,
except where he is liable to enhanced punishment, on account of previous
conviction, or unless evidence of good character be given, in which case the

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fact that the accused had been previously convicted of an offence is admissible
as evidence of bad character.

 Evidence of character or previous sexual experience not relevant in

certain cases
Section 48 BSA, 2023 (Section 53A IEA, 1872) provides “In a prosecution
for an offence under section 64, section 65, section 66, section 67, section 68,
section 69, section 70, section 71, section 74, section 75, section 76, section 77
or section 78 of the BNS, 2023 or for attempt to commit any such offence,
where the question of consent is in issue, evidence of the character of the
victim or of such person's previous sexual experience with any person shall
not be relevant on the issue of such consent or the quality of consent.”
Thus, when the consent or quality of consent is in question, then the
character of the victim is not relevant. Evidence pertaining to previous sexual
acts of the victim is also irrelevant.

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Opinions of third persons when relevant

Section 39-45

Bharatiya Sakshya Adhiniyam (BSA), 2023

Section 39-45 of BSA, 2023 (Section 45-51 of IEA, 1872) deals with
Opinion of Experts. There are many matters which require professional or
specialized knowledge which the court may not possess and may therefore, rely
on those who possess it.

For example, when the court has to determine the cause of a ship wreck or an
air crash, there may be many technical causes behind it and, therefore, the court
will need the assistance of technicians, they being better acquainted with such
causes.

 Who is an Expert?
As per Section 39 BSA, 2023 (Section 45, IEA 1872), an expert is one
who has acquired special knowledge, skill or experience in any point of foreign
law or science or art, or ‘any other field’; such knowledge, may have been
acquired by practice, observation or careful studies.
In view of language of this section it is necessary that before a person can
be characterised as an expert there must be some material on record to show that
he is one who is skilled on that particular science and is possessed of particular
knowledge concerning the same.
He is a person especially skilled in the subject on which he testifies. 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.

 No formal qualifications are necessary to qualify a witness as an

expert.

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Example: Where the opinion of a professional goldsmith as to the purity of the

gold in question was held to be relevant as the opinion of an expert, though he
had no formal qualifications, his only qualification being his experience. There
must be something to show that the expert is skilled and has an adequate
knowledge of the subject.
 Polygraph Tests
Polygraph or Lie Detector Test: It is a procedure that measures and records
several physiological indicators such as blood pressure, pulse, respiration,
and skin conductivity while a person is asked and answers a series of questions.

 A test similar to Polygraph was first done in the 19th century by

the Italian criminologist Cesare Lombroso, who used a
machine to measure changes in the blood pressure of criminal
suspects during interrogation.

 This test is based on the assumption that physiological

responses that are triggered when a person is lying are
different from what they would be otherwise.
 A numerical value is assigned to each response to conclude
whether the person is telling the truth, is deceiving, or is
uncertain.

 Narcoanalysis Test: It involves the injection of a drug, sodium

pentothal, which induces a hypnotic or sedated state in which the
subject's imagination is neutralized, and they are expected to
divulge information that is true.

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 3

 The drug, also referred to as truth serum, was used in larger doses
as anesthesia during surgery, and is said to have been used
during World War II for intelligence operations.
Recently, investigating agencies have sought to employ these tests in the
investigation, and are sometimes seen as being a softer alternative to
torture or "third degree" to extract the truth from suspects.

 Brain Mapping Test or P-300 test: In this test, the activity of the
brain of a suspect is measured during interrogation to find
out whether he is concealing any information.

 Limitations:

 None of these methods has been proven scientifically to have a

100% success rate, and remain contentious in the medical field
as well.

 The consequences of such tests on individuals from weaker

sections of society who are unaware of their fundamental
rights and unable to afford legal advice can be adverse.
 It may involve future abuse, harassment, and surveillance, even
leakage of the video material to the Press for a trial by the
media.

 Legal and Constitutional Aspects:

 In the Selvi vs State of Karnataka & Anr case (2010), the

Supreme Court ruled that no lie detector tests should be
a d min i s te r e d w itho u t t he c on s e nt o f th e a c c us e d.

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 Also, those who volunteer must have access to a lawyer and

have the physical, emotional, and legal implications of the
test explained to them by police and the lawyer.

 The results of the tests cannot be considered to be

"
confessions", but any information or material
subsequently discovered with the help of such a
voluntarily-taken test can be admitted as evidence
 The SC cited Article 20 (3) or Right against self-
incrimination which states that no accused can be
compelled to be a witness against himself.
 In the D.K. Basu vs. State of West Bengal case, 1997, the SC ruled
that involuntary administration of the polygraph and narcos
test will amount to cruel, inhuman, and degrading treatment in
the context of Article 21 or the Right to Life and Liberty. It may
also be violative of the Right to Privacy which is a part of the
Right to Life.
 However, in Sunil Bhati v/s. State of Rajasthan 2022 (High
Court of Rajasthan), when the question came up that what if
accused requests to undergo Narcoanalsysis and use it in his
defence, the court held that “Even if the Narco Analysis test may
not have an absolute binding impact upon the result of the trial,
it is certainly is a scientific technique recognized by law, and is
being utilized in the course of investigation, by prosecution
agencies as well as by the Courts, to support and corroborate the
main evidence. And thus, denying the petitioner an opportunity
to render such defence evidence at the appropriate stage, as is
statutorily provided to him, would not only be detrimental to the

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 5

cause of justice, but shall also be a clear violation of his

statutory right.”
 Sniffer Dogs’ Evidence
The Supreme court has in catena of cases has held that when the
services of a sniffer dog may be taken for the purpose of investigation, its
facilities cannot be taken as evidence for the purpose of establishing the
guilt. This is for the reason that there are several inherent infirmities in the
evidence based in a sniffer dogs or a tracker dog, along with the
possibility of the error on the part of the dog/master.
In Abdul Rajak Murtaja Dafedar v/s. State of Maharashtra
(1969) SC (3 Judges), two objections to the admission of evidence of
tracking dogs. Firstly, since the dog can neither be sworn nor cross
examined, the dog’s human companion (his master) must enter the box
and record the dog’s evidence, which is obviously hearsay.
Secondly, there is a belief that a person’s life and freedom in a criminal
case should not be predicated on the dog’s conclusion.
Thirdly, it is suggested that such evidence should be dismissed even if it
is strictly admissible under the rules of evidence since it is likely to have
excessively dramatic effect on the jury compared to its relative value.
In Dinesh Borthakur v. State of Assam (2008) SCC 697, it was
held that “it is settled that when the services of a sniffer dog may be taken
for the purpose of investigation, its facilities cannot be taken as evidence
for the purpose of establishing the guilt of the accused.”
In the light of these arguments, the evidence of a sniffer dog is
hearsay evidence as his master has to enter the box to give evidence.

 When can the testimony of an expert be admitted by court?

Before expert testimony can be admitted two things must be proved, namely

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 6

(1) the subject is such that expert testimony is necessary, and

(2) that the witness in question is really an expert, and that he is a truthful
witness.
Where the court was able to form its own opinion from facts and
circumstances of the case it can be said that expert opinion was not necessary.
Wherein some technical question is involved which can be answered by a
person specially skilled it can be said that expert opinion is necessary e.g. which
Weapon used.

 What is the probative value of an Expert opinion?

His evidence is only of advisory character.
The credibility of such witness depends on reasons stated in support of his
conclusions and the data and material furnished which form this basis of his
conclusion.
The act only provides about the relevancy of expert opinion but gives no
guidance as to its value.
Firstly, there is the danger of error or deliberate falsehood. These privileged
persons might be half blind, incompetent or even corrupt.
Secondly, his evidence is after all opinion, “human judgment is fallible.
Human knowledge is limited and imperfect.
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 the side
which calls him. These factors seriously reduce the probative value of expert
evidence.

 How should court deal with such expert evidence?

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 7

The court should, therefore, call upon the expert to explain the reasons for his
opinion and then form its own opinion as to whether or not the expert opinion is
satisfactory.

In case of any conflict between eye-evidence and the medical evidence,

the court will have to go by the evidence which inspires more confidence.

In S. Gopala Reddy v. State of Andhra Pradesh (AIR 1996 SC 2184),

the Supreme Court held that an expert evidence is weak type of evidence.
Courts do not consider it as conclusive and therefore it is not safe to rely
upon it without seeking independent and reliable corroboration.

 In case of Conflict between Expert Evidence and Direct or Ocular

Evidence

Where there is a conflict between the medical evidence and oral testimony
of witnesses, the evidence can be assessed only in two ways. A court can either
believe prosecution witness unreservedly and explain away the conflict by
holding that the witnesses have merely exaggerated incidence or rely upon the
medical evidence and approach the oral testimony with caution testing it in the
light of medical evidence.

In Darshan Singh v. State of Haryana, the Supreme Court held that where
there is inconsistency between eye witness on the point as to how the injury was
caused, the evidence of doctor cannot override unimpeachable testimony of
eye witness.

It must be noted that:

 In case of variance between medical evidence and ocular evidence,

ocular evidence gets primacy.

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 But when there is total inconsistency, the evidence is appreciated in

different perspective by the court and medical evidence assumes
importance while appreciating the evidence.

However, where the medical evidence goes far that it completely rules out all
possibility of the ocular evidence being true, the ocular evidence may be
disbelieved (Mahavir Singh v. State of M.P. AIR 2017 SC 5231 pp. 5237).

 Section 39(2) BSA, 2023 (Section 45A of Indian Evidence Act, 1872)
further provides “When in a proceeding, the court has to form an
opinion on any matter relating to any information transmitted or stored
in any computer resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence referred to in section
79A of the Information Technology Act, 2000, is a relevant fact.”

 Facts bearing upon opinions of experts

Section 40 BSA, 2023 (Section 46 IEA, 1872) provides that facts, which are
not otherwise relevant, become relevant if they support or are inconsistent with
the opinions of experts, when such opinions are relevant.

Illustrations:

a. The question is, whether A was poisoned by a certain poison. The

fact that other persons, who were poisoned by that poison, exhibited
certain symptoms which experts affirm or deny to be the symptoms
of that poison, is relevant.
b. The question is, whether an obstruction to a harbour is caused by a
certain sea-wall. The fact that other harbours similarly situated in
other respects, but where there were no such sea-walls, began to be
obstructed at about the same time, is relevant.

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 Opinion as to handwriting and signature, when relevant

Section 41 BSA, 2023 (Section 47 IEA, 1872) provides that “When the Court
has to form an opinion as to the person by whom any document was written or
signed, the opinion of any person acquainted with the handwriting of the person
by whom it is supposed to be written or signed that it was or was not written or
signed by that person, is a relevant fact.”

 Who is said to be a person acquainted with the handwriting of

another person?

The explanation appended to the section explains that a person is said to be

acquainted with the handwriting of another person when:

i. he has seen that person write, or

ii. when he has received documents purporting to be written by that
person in answer to documents written by himself or under his
authority and addressed to that person, or
iii. when, in the ordinary course of business, documents purporting to be
written by that person have been habitually submitted to him

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

merchant in Itanagar. B is a merchant in Bengaluru, who has written letters
addressed to A and received letters purporting to be written by him. C, is B's
clerk whose duty it was to examine and file B's correspondence. D is B's broker,
to whom B habitually submitted the letters purporting to be written by A for the
purpose of advising him thereon. The opinions of B, C and D on the question
whether the letter is in the handwriting of A are relevant, though neither B, C
nor D ever saw A write.

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 Evidentiary Value: Under Section 39 BSA (Section 45 IEA) the

opinion of the handwriting experts is relevant and under Section 41 BSA
(Section 47 IEA) opinion of any person acquainted with the handwriting
of the person who is alleged to have signed the document is admissible.
Section 41 BSA does not cover the statement of a person who deposes that
writing or signature in dispute was written in his presence.

Section 72 BSA, 2023 (Section 73 IEA, 1872) enables in order to

ascertain whether a signature, writing or seal is that of the person by whom it
purports to have been written or made, any signature, writing, or seal admitted
or proved to the satisfaction of the Court to have been written or made by that
person may be compared with the one which is to be proved, although that
signature, writing or seal has not been produced or proved for any other
purpose.

The clause (2) of the section also empowers the court to direct any person
present in the court to write any words or figures for the purpose of enabling the
court to compare them with the writing in question.

Therefore, Section 72 BSA, 2023 (Section 73 IEA, 1872) authorises the

court to compare the disputed document with an undisputed one for purpose of
deciding as to whether a particular document was written or signed by a person
by whom it is supposed to be written. What is required is that the writing with
which the comparison is to be made, shall be admitted or proved to have been
written by the person to whom it is attributed.

Comparison may be made either by witnesses acquainted with the

handwriting or by the court itself, or by an expert.

Under Section 311A Cr.P.C 1973, if a Magistrate of the first class is

satisfied that, for the purposes of any investigation or proceeding under this

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 11

Code, it is expedient to direct any person, including an accused person, to give

specimen signatures or handwriting, he may make an order to that effect and
in that case the person to whom the order relates shall be produced or shall
attend at the time and place specified in such order and shall give his specimen
signatures or handwriting.

Under the new corresponding Section 349 BSA, 2023, “if a Magistrate
of the first class is satisfied that, for the purposes of any investigation or
proceeding under this Sanhita, it is expedient to direct any person, including an
accused person, to give specimen signatures or finger impressions or
handwriting or voice sample, he may make an order to that effect and in that
case the person to whom the order relates shall be produced or shall attend at
the time and place specified in such order and shall give his specimen
signatures or finger impressions or handwriting or voice sample.”

Therefore, now the section includes the power to order to give his
signature, handwriting sample, finger impressions and voice samples also.

In Ajit Sawant Majagavi v. State of Karnataka (AIR 1997 SC3235),

the Supreme Court made following observation: “Section 73 of IEA does not
specify by whom the comparison shall be made. However, looking to other
provisions of the Act, it is clear that comparison may either be made by
handwriting expert, under Section 45 of IEA or by anyone who is familiar with
handwriting of the person concerned as provided by Section 47 of IEA or by the
court itself. As a matter of extreme caution and judicial sobriety the court
should not normally take itself the responsibility or handwriting and in the
event of slightest doubt, leave the matter to the wisdom of expert. But this
does not mean that the court has not the power to compare the disputed
signature as this power is already available to the court under Section 73 of
IEA.”

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In Ajay Kumar Parmar v. State of Rajasthan AIR 2013 SC 633, it

was held that “the Court cannot assume the role of an expert as the opinion
of the Court may not itself be conclusive and is susceptible to error, especially
when exercise is conducted by one, not conversant with the subject. As a matter
of prudence and caution, the Court should hesitate or be slow to base its
findings solely upon the basis of comparison made by it.”

In Santosh @ Bhure versus State (G.N.C.T.) of Delhi (2023) SC, it was held
that “The underlying principle is that though it is not impermissible to base a
finding with regard to authorship of a document solely on the opinion of a
handwriting expert but, as a rule of prudence, because of imperfect nature of the
science of identification of handwriting and its accepted fallibility, such opinion
has to be relied with caution and may be accepted if, on its own assessment, the
Court is satisfied that the internal and external evidence relating to the
document in question supports the opinion of the expert and it is safe to accept
his opinion.”

 Whether furnishing finger impressions or specimen of writing etc.

will be violative of the Article 20(3) of the Constitution?

The Supreme Court in State of Bombay v. Kathi Kalu Oghad, 1961 ALJ 936
has held that “the giving of finger impressions or specimen writing or of
signature by an accused person, though it may amount to furnishing evidence in
the larger sense, is not included within the expression ‘to be a witness’ and
hence is not violative of Article 20(3) of the Constitution.

 Opinion as to existence of general custom or right, when relevant

Section 42 BSA, 2023 (Section 48 IEA, 1872) provides that “When the
Court has to form an opinion as to the existence of any general custom or right,
the opinions, as to the existence of such custom or right, of persons who would
be likely to know of its existence if it existed, are relevant.”

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Explanation: The expression "general custom or right" includes customs or

rights common to any considerable class of persons.

Illustration: The right of the villagers of a particular village to use the water of
a particular well is a general right within the meaning of this section

 Opinion as to usages, tenets, etc., when relevant

Section 43 BSA, 2023 (Section 49 IEA, 1872) provides that When the Court
has to form an opinion as to:
(i) the usages and tenets of any body of men or family;
(ii) the constitution and governance of any religious or charitable
foundation; or
(iii) the meaning of words or terms used in particular districts or by
particular classes of people
Then the opinions of persons having special means of knowledge
thereon, are relevant facts.

Therefore, these matters can only be proved by persons having special means of
knowledge.

 Opinion on relationship, when relevant

Section 44 BSA, 2023 (Section 50 IEA, 1872) provides that “When the
Court has to form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such relationship, of any
person who, as a member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact.

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 14

Provided that such opinion shall not be sufficient to prove a marriage

in proceedings under the Divorce Act, 1869, or in prosecution under sections 82
and 84 of the Bharatiya Nyaya Sanhita, 2023.

Note: Section 26, clause (e) and Clause (f) BSA make provision for proving
relationship. Under that section the statements of dead persons having special
means of relationship are admissible. Under Section 44 of BSA the opinion of a
person alive is relevant regarding the relationship of one person to another.

Illustrations:
(a) The question is, whether A and B were married. The fact that they
were usually received and treated by their friends as husband and
wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that
A was always treated as such by members of the family, is relevant.

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EXECUTTION AND ATTESTATION OF DOCUMENTS

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Proof of execution of document required by law to be attested

For purposes of proof of execution of document, the Act divides
document into two classes; i.e.,
i. Documents not required by law to be attested;
ii. Documents required by law to be attested.
Whether a particular document is required by law to be attested or
not is not governed by the Evidence Act. For this, other laws have to be
considered e.g. Transfer of Property act, 1882, sale, mortgage, lease, gift,
exchange etc.

 Execution: Execution means signing, sealing and delivery of a

document. The term may be defined as a formal completion of a
deed. It is the last act o r series of acts which completes it.
The execution of a deed means signing, sealing and delivering. ‘To
execute’ means to go through all the formalities necessary for the validity
of a legal act.

 Attestation: Section 63 of the Indian Succession Act, 1925 and

Section 3 TPA defines attestation as follows:
Attestation in relation to an instrument means attested by 2
or more witnesses each of whom has seen the executant sign or
affix his mark to the instrument, or has seen some other person sign
the instrument in his presence and by the direction of the executant
or has received from the executant a personal acknowledgement
of his signature or mark, or of the signature of such other

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person, and each of whom has signed the instrument in the

presence of the executant; but it shall not be necessary that
more than 1 of such witnesses shall have been present at the
same time and no particular form of attestation shall be necessary.

Where a document is written, executed and attested in one ink

the presumption of due attestation is permissible under the maxim
"Omnia praesumuntur rite et solemniter esse acta". All things are
presumed to have been done correctly and solemnly.

Section 67 of BSA, 2023 (Section 68 of IEA, 1872) provides that if a

document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving its execution, if:
i. there be an attesting witness alive, and
ii. subject to the process of the Court and
iii. capable of giving evidence.

The proviso attached to the section further clarifies that it shall not
be necessary to call an attesting witness in proof of the execution of
any document, not being a will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908, unless its
execution by the person by whom it purports to have been executed is
specifically denied.
Thus, if the attestation is not specifically denied it is not necessary to
call any attesting witness. What has to be specifically denied is the
execution of the document and a mere denial of the genuineness of the

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document is not enough to indicate that the execution of the document was
denied.
The words “specifically denied” means specifically denied by the
party against whom it is sought to be used and not only by the executant.
Furthermore, the rule is not applicable to the wills (Wills are
governed by Section 67 of BSA, 2023 and Section 63(c) of Indian Succession
Act.)
 Proof where no attesting witness found
Section 68 BSA, 2023(Section 69 IEA, 1872) deals with a situation
where no attesting witness is found.
It provides that if no such attesting witness can be found, it must be
proved that:
i. the attestation of one attesting witness at least is in his
handwriting, and
ii. that the signature of the person executing the document is in
the handwriting of that person.

 Handwriting/Signature can be proved either by:

i. Admission by the party
ii. Expert Opinion (Section 39 BSA, 2023)
iii. Evidence of the Person Acquainted with the Handwriting of
that person (Section 41 BSA, 2023)
iv. Comparison by Court (Section 72 BSA, 2023)
v. Evidence by Eye Witnesss to the Signature.

Note: The words “if the document purports to have been executed in
the United Kingdom” have now been removed under the Section 68
BSA, 2023.

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 Admission of execution by party to attested document.

Section 69 BSA, 2023 (Section 70 IEA, 1872) provides the
admission of a party to an attested document of its execution by
himself shall be sufficient proof of its execution as against him,
though it be a document required by law to be attested.

 Proof when attesting witness denies execution.

If the attesting witness denies or does not recollect the
execution of the document, Section 70 BSA, 2023 (Section 71 IEA,
1872) provides that its execution may be proved by other evidence.
Where an attesting witness has denied all knowledge of the
matter, the case stands as if there was no attesting witness, and the
execution of the document may be proved by other independent
evidence.
This section is a sort of a safeguard introduced by the
legislature to the mandatory provisions, where it is not possible to
prove the execution of the will by calling attesting witnesses, though
alive. Thus, this section only operates if the attesting witness denies
or does not recollect the execution of the document or has turned
hostile.

 Proof of Will
The law of succession divides succession of property into the
following 2 categories:

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a. Intestate Succession- wherein the person died without drafting a

will and his property is divided amongst the legal heirs in
accordance with the personal laws; and
b. Testamentary Succession- wherein the property is divided in
accordance with the Will.
‘Will’ is governed by Section 63(c) of Indian Succession Act, 1925
read with Section 67 of BSA, 2023.

 What is a Will?
A ‘Will’ is an instrument of testamentary disposition of
property. It is a legally acknowledged mode of bequeathing a testator’s
property during his lifetime to be acted upon his/her death. Thus, a
will takes effect after the death of a person. It must also be proved
before the court that the Will of the testator is the last Will.
There is no format prescribed for Will however, there is no
such thing as an oral Will, i.e. it must be in writing. The registration
of a Will is optional.
A Will is required to fulfil all the formalities required under
Section 63 of the Indian Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be
signed by some other person in his presence and by his direction
and the said signature or affixation shall show that it was
intended to give effect to the writing as a Will;
(b)It is mandatory to get it attested by two or more witnesses,
though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or
affix his mark to the Will or has seen some other person sign the
Will, in the presence and by the direction of the testator, or has

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received from the testator a personal acknowledgment of such

signatures;
(d)Each of the attesting witnesses shall sign the Will in the presence
of the testator, however, the presence of all witnesses at the same
time is not required;
Proviso to Section 67, BSA 2023 (Section 68 IEA, 1872)
clearly specifies that it shall not be necessary to call an attesting
witness in proof of the execution of any document which has been
registered in accordance with the provisions of the Indian
Registration Act, 1908, unless its execution by the person by whom it
purports to have been executed is specifically denied. However, the
same is not applicable on Wills.
Registration of Will raises no presumption with respect to its
due execution or validity. The Will must still be proven in accordance
with the legal requirements outlined in Section 63 of the Indian
Succession Act, 1925, Section 67 of BSA, 2023 (Section 68 of the Indian
Evidence Act, 1872), and Section 68 BSA, 2023 (Section 69 of the
Indian Evidence Act, 1872), which deal with the cases where there is
no witness to attest to the execution of a document.
In Moturu Nalini Kanth V. Gainedi Kaliprasad (2023), the
Supreme Court examined a situation where a 70-year-old woman,
Venkubayamma, allegedly adopted a child less than a year old, Nalini
Kanth, just two months before her demise. The adoptee claimed that
Venkubayamma, through a registered Adoption Deed and a
subsequent Will, had bequeathed all her properties to him. The
Supreme Court noted that “the execution of an unprivileged will is
not automatically validated by mere registration; rather, the Will
must still be proven in accordance with the legal requirements

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outlined in Section 63 of the Indian Succession Act, 1925, Section

68 of the Indian Evidence Act, 1872, and Section 69 of the Indian
Evidence Act, 1872, which deal with the cases where there is no
witness to attest to the execution of a document.”
Thus, merely because a Will is registered there is no presumption
as ti the truthfulness of the Will.
The hon’ble Supreme Court in the case Shashi Kumar Bannerjee
& Ors. v/s. Subodh Kumar Bannerjee & Ors (1964) 5 Judges laid
that the mode of proving a will does not ordinarily differ from that of
proving any other document except as to special requirement of
attestation prescribed in case of Will by Section 63 of the Indian
Succession Act, 1925. The onus of proving the Will is on the
propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary capacity
and the signature of the testator as required by the law is sufficient to
discharge the onus.
However, where there are suspicious circumstances the onus
is upon the propounder to explain them to the satisfaction of the
court before the court accepts the Will as genuine. Even if the other
party does not raise any objection of suspicion, still it is for the
propounder to satisfy the conscience of the court.
On the conjoint reading of Section 63 of the Indian Succession Act,
1925 and Section 68 of the Indian Evidence Act, 1872 (Section 67 of
BSA, 2023), a Will is required to be attested and cannot be used in
evidence until at least one attesting witness has been called for the
purpose of proving its execution. If there is no attesting witness alive,
then it shall be proved by any other means as mention in Section 69 of
the Indian Evidence Act, 1872 (Section 68 of BSA, 2023).

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In the case of Meena Pradhan & Ors v/s. Kamla Pradhan

(2023) SC discussed the requirements under the Indian Succession
Act 1925 for valid will execution, including signing by the testator,
attestation by two witnesses, and testamentary capacity. The court
held that:
i. The court has to consider two aspects: Firstly, that the Will is
executed by the testator, and Secondly, that it was the last Will
executed by him.
ii. It is not required to be proved with mathematical accuracy,
but the test of satisfaction of the prudent mind has to be
applied.
iii. A Will is required to fulfil all the formalities required
under Section 63 of the Indian Succession Act.
iv. Whenever there exists any suspicion as to the execution of the
Will, it is the responsibility of the propounder to remove all
legitimate suspicions before it can be accepted as the testator's
last Will.
One who alleges fraud, fabrication, undue influence et
cetera has to prove the same. However, even in the absence of
such allegations, if there are circumstances giving rise to doubt,
then it becomes the duty of the propounder to dispel such
suspicious circumstances by giving a cogent and convincing
explanation.
v. Suspicious circumstances must be ‘real, germane and valid’
and not merely ‘the fantasy of the doubting mind.’
Whether a particular feature would qualify as
‘suspicious’ would depend on the facts and circumstances of
each case. Any circumstance raising suspicion legitimate in

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nature would qualify as a suspicious circumstance for example, a

shaky signature, a feeble mind, an unfair and unjust disposition
of property, the propounder himself taking a leading part in the
making of the Will under which he receives a substantial benefit,
etc.

 Presumption as to due execution, etc., of documents not

produced.
Section 91 BSA, 2023 (Section 89 IEA, 1872) provides that the
Court shall presume that every document, called for and not
produced after notice to produce, was attested, stamped and
executed in the manner required by law.
This section is based on the maxim “Omnia praesumuntur
contra spoliatorem” which means all presumption are against one
who wrongly dispossess another or no one shall take advantage of his
own wrong. The presumption is obligatory but rebuttable. If the
document is not produced after notice to produce, the court is
bound to presume that the document was properly stamped,
attested and executed.

 Presumption as to documents thirty years old

Section 92 BSA, 2023 (Section 90 IEA, 1872) provides that where
any document, purporting or proved to be thirty years old, is
produced from any custody which the Court in the particular case
considers proper, the Court may presume that:
 the signature and every other part of such document, which
purports to be in the handwriting of any particular person, is in
that person's handwriting, and,

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 in the case of a document executed or attested, that it was duly

executed and attested by the persons by whom it purports to
be executed and attested.
Illustration: A has been in possession of landed property for a long
time. He produces from his custody deeds relating to the land showing his
titles to it. The custody shall be proper.
Therefore, Section 92 BSA, 2023 (Section 90 IEA, 1872) which speaks
about presumption as to document 30 years old, which are usually
referred as old document; that are not only admissible in evidence. But,
further, it is presumed that the signature and hand writing contained
therein are those of that particular person, whose signature it bears or in
whose hand writing to it purports to be. This section does away the 'strict
rule of proof', by giving rare to a presumption of genuineness, provided
the document is 30 years old and produced from proper custody.
Conditions required for the application of Section 92 BSA,
2023:
i. The document should be thirty years old.
ii. The period of thirty years is to be counted from the date which the
document bears.
iii. It should be produced from proper custody.
iv. The presumption under Section 92 BSA lies only in respect of
original documents and not to copies or secondary evidence.
v. The thirty year period should be completed when the question of
proof of the document arises i.e. when it is exhibited in the court.
vi. The presumption is with respect to due and proper attestation and
execution and sign and handwriting.

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This rule is applicable on all kinds of document, public or

private and it is applicable irrespective of the fact whether such
document requires attestation or not.
A document is said to be in “proper custody” if they are in the place
in which they would naturally be and under the care of the person with
whom they would naturally be.

However, Section 92 BSA, 2023 (Section 90 IEA, 1872) is not

applicable on Wills.
In the case of Bharpur Singh v/s. Shamsher Singh (2009) SC, it
was held that a presumption regarding a document thirty years old does
not apply to a Will. A will has to be proved in terms of Section 63(c) of
Indian Succession Act read with Section 67 BSA, 2023(Section 68 of IEA,
1872).

 Presumption as to electronic records five years old

Section 93, BSA 2023 (Section 90A IEA, 1872) provides that Where any
electronic record, purporting or proved to be five years old, is produced
from any custody which the Court in the particular case considers proper,
the Court may presume that the electronic signature which purports to be
the electronic signature of any particular person was so affixed by him or
any person authorised by him in this behalf.
Explanation: The Explanation to section 81 shall also apply to this
section.

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THE EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY

EVIDENCE

Bharatiya Sakshya Adhiniyam (BSA), 2023

The provisions as to exclusion of oral by documentary evidence are an

extension of the rule of ‘best evidence’. Where the fact to be proved is
embodied in a document, the document (primary or secondary evidence of it) is
the best evidence of the fact. The maxim of law is whatever is in writing must
be proved by the writing. Section 94 and 95 of BSA, 2023 (Section 91 and 92 of
the IEA, 1872) incorporate this principle.

 Evidence of terms of contracts, grants and other dispositions of

property reduced to form of document
Section 94 BSA, 2023 (Section 91 IEA, 1872) provides that when the terms
of
 a contract, or
 of a grant, or
 of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any
matter is required by law to be reduced to the form of a document, no evidence
shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is
admissible under the provisions hereinbefore contained.
This rule is part of the rule of 'best evidence,' and it deals with the
exclusivity of documented evidence.

Question1: When does section 94 BSA, 2023 (Section 91 IEA, 1872) apply?

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Answer: The section extends to both types of transactions, namely:

i. which have voluntarily been made by writing and

ii. for which writing is compulsory.
The matters required by law to be in writing are public and judicial
records such as judgments, examination of witnesses, deeds of conveyance of
lands such as sale-deeds or mortgage-deeds of Rs. 100 or more, a partition-
deed, etc. Where registration of a document is compulsory under the
Registration Act, the document if unregistered will be inadmissible in evidence
and no other evidence of the contents of it can be received.

For example: A leases his house to B via a written lease. Latter, A files a suit
for arrears of rent and for ejectment. A alleges that the tenancy was from month
to month, while B contends that it ran from year to year. In that case, the terms
of the contract between the parties having been reduced to document, none of
them will be allowed to adduce oral evidence in the court. The document will
have to be produced in the court.

The Section does not apply to oral contracts. Thus, writing becomes its
own evidence and excludes all other kinds of evidence. The writing excludes
oral evidence altogether. It may be noted that an oral account of the contents of
document is not an oral evidence.
Further, the rule contained in the section applies to the terms and not
to the factum (or existence) of a contract, and evidence in proof of a factum
of a contract is not excluded.

Explanation 1: This section applies equally to cases in which the contracts

grants or dispositions of property referred to are contained in one document and
to cases in which they are contained in more documents than one.

Illustration (a): If a contract be contained in several letters, all the letters in

which it is contained must be proved.

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Explanation 2: Where there are more originals than one, one original only
need be proved.

Illustration (b): If a contract is contained in a bill of exchange, the bill of

exchange must be proved.

Illustration (c): If a bill of exchange is drawn in set of three, one only need be
proved.

Explanation 3: The statement, in any document whatever, of a fact other then

the facts referred to in this section, shall, not preclude the admission of oral
evidence as to the same fact.

Illustration (d): A contracts, in writing, with B, for the delivery of indigo upon
certain terms. The contract mentions the fact that B had paid A the price of
other indigo contracted for verbally on another occasion. Oral evidence is
offered that no payment was made for the other indigo. The evidence is
admissible.

Illustration (e): A gives B receipt for money paid by B. Oral evidence is

offered of the payment. The evidence is admissible.

 The words ‘terms’ means the material aspect of said contract, grant
or disposition which are the essence of the transaction. Thus,
restriction of the section will apply only to the essential terms and if
any question arises regarding anything else.
For example, regarding very existence of transaction or regarding any such
thing which was written in document but which was not an essential term, then
prohibition of this section will not apply.

Question 2: What are the exceptions given under section 94 BSA, 2023
(Section 91 IEA, 1872)?

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Answer: Section 94 BSA, 2023 (Section 91 IEA, 1872) lays down following
two exceptions:

Exception 1: Where the appointment of a public officer is required by law ‘’’ to

be made by writing and the question is whether an appointment was made, if it
is shown that a particular person has acted as such officer, that will be sufficient
proof and the writing need not be proved. When the question is whether A is a
High Court Judge, the warrant of appointment need not be proved, the only fact
that he is working as a High Court Judge will be proved. Similar is the case
when A appears before the court as a witness and says that he is a civil surgeon.

Exception 2: Wills admitted to probate in India may be proved by the probate.

The document containing the will need not be produced. The word ‘probate’
means the copy of a will certified under the seal of the court of competent
jurisdiction with a grant of administration to the estate of the testator.

 Exclusion of evidence of oral agreement

Section 95 BSA, 2023(Section 92 IEA, 1872) provides “when the terms of any
such contract, grant or other disposition of property, or any matter required by
law to be reduced to the form of a document, have been proved according to
section 94, no evidence of any oral agreement or statement shall be admitted, as
between the parties to any such instrument or their representatives in interest,
for the purpose of contradicting, varying, adding to, or subtracting from, its
terms.”

Question1: When does Section 95 BSA, 2023 (section 92 IEA, 1872) apply?
Answer: The principle of the section applies only to such contract, grant or
disposition on any matter required by law to be reduced to the form of a
document. It lays down that once a document has been proved by the primary or

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secondary evidence no oral evidence can be given to qualify the terms of the
document.
This section lays down rule of conclusivity i.e. once the terms have been
proved by document, such proof will be conclusive as far as oral evidence for
alteration is concerned.
Section 95 BSA, 2023 (section 92 IEA, 1872) applies only to the parties
of a transaction and those claiming under them. A person who is not a party to a
contract can adduce evidence to contradict, vary, add to or subtract from the
terms of a contract.

Question2: What is the scope and ambit of section 91 and section 92, IEA
1872 (now, Section 94 and 95 BSA, 2023)? What is the difference between
these two sections?
Answer: In Roop Kumar V Mohan Thedani (2003) 6 SCC 595 case, the
honourable SC observed that “Section 91 of IEA relates to evidence of terms of
contract, grants and other disposition of properties reduced to form of
document.
It merely forbids proof of the contents of a writing otherwise than by the writing
itself; it is covered by the ordinary rule of law of evidence.
In Section 92 of IEA, the legislature has prevented the oral evidence
being adduced for the purpose of varying the contract as between the parties to
the contract; but no such limitations are imposed under Section 91 IEA.
Section 91 and Section 92, IEA 1872 apply only when the document on
the face of it contains or appears to contain all the terms of the contract. Section
91 of IEA is concerned solely with the mode of proof of a document while
limitations imposed by Section 92 of IEA relate only to the parties to the
document.

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After the document has been produced to prove its terms under
Section 91 of IEA, provisions of Section 92 of IEA come into operation for
the purpose of excluding evidence of any oral agreement or statement for the
purpose of contradicting, varying, adding or subtracting from its terms.
Therefore, Section 91 & Section 92 of IEA are supplementary to each
other. Section 92 of IEA comes into operation only after the terms of the
document have been proved as per Section 91 of IEA. Section 92 of IEA would
be frustrated without the aid of Section 91 and Section 92 of IEA would be
infructuous without the aid of Section 92 of IEA.

 Difference between these two sections:

The two sections differ in some material particulars.
 Section 94 BSA, 2023 (Section 91 IEA, 1872) applies to all documents,
whether they purport to dispose of rights or not; whereas Section 95 BSA,
2023 (Section 92 IEA, 1872) applies to documents which can be
described as dispositive.
 Section 94 BSA, 2023 (Section 91 IEA, 1872) applies to documents,
which are both bilateral and unilateral, unlike Section 95 BSA, 2023
(Section 92 IEA, 1872), the application of which is confined to only
bilateral documents.
Both the sections are based on the “best evidence rule”, thus declaring a
doctrine of substantive law. It would be inconvenient that matters in writing
made by advice and on consideration, and which finally import the truth of the
agreement should be controlled by the party’s memory. Even a third party if he
wants to establish a particular contract between certain others when such
contract has been reduced to writing can only prove such contract by the
production of such writing.

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 Provisos:
As to the general rule that no oral evidence will be allowed to contradict
or vary the term of a document, there are six provisos as follows-

1. Validity of document- Proviso 1

“Any fact may be proved which would invalidate any document, or which
would entitle any person to any decree or order relating thereto; such as
fraud, intimidation, illegality, want of due execution, want of capacity in any
contracting party, 76[want or failure] of consideration, or mistake in fact or
law.”
The first proviso to Section 95 BSA, 2023 (Section 92 IEA, 1872) says
that evidence can be given of any fact which would invalidate the document in
question or which would entitle a party to any decree or order relating to the
document. The validity of a document may be questioned, for example, on the
ground that it was obtained by fraud, intimidation or illegality or that the
document was only duly executed or that one of the parties was incompetent to
contract or that there was a mistake of fact or law or that there was no
consideration or consideration had failed.

2. Separate Oral Agreement- Proviso 2

“ The existence of any separate oral agreement as to any matter on which a
document is silent, and which is not inconsistent with its terms, may be proved.

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In considering whether or not this proviso applies, the Court shall have regard
to the degree of formality of the document.”
Evidence can be given of an oral agreement on a matter on which the
document is silent. Such evidence is allowed subject to two conditions.
i. Firstly, the oral agreement should not be inconsistent with the terms
stated in the document and
ii. Secondly, in permitting the evidence of oral agreement the court shall
have regard to the degree of formality of the document. If the
document is extremely formal, evidence of an oral agreement shall not
be allowed even on matters on which the document is silent.
Illustration: A horse which is to be sold by a written agreement which says
nothing about the soundness of the horse. That an oral agreement was given
about the soundness of the horse may be proved.
3. Separate Oral agreement as condition precedent- Proviso 3
“The existence of any separate oral agreement, constituting a condition
precedent to the attaching of any obligation under any such contract, grant or
disposition of property, may be proved.”
The third proviso that the existence of any separate oral agreement
constituting condition precedent to the attaching of any obligation under the
document may be proved. If the document was signed and issued subject to a
condition which though not mentioned in the document, it was agreed between
the parties that the liability under the document would not arise until the
condition was fulfilled, such an oral agreement is allowed to be proved. {
Illustration (i) and (j), deal with this proviso}
Proving a condition precedent to a liability is something different from
proving that on the non-happening of a certain event, the document itself would
become void. The condition which can be proved by oral evidence should be a
condition of liability and not of the validity of the document. Therefore, an oral

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agreement according to which a document was to be a nullity if payment was not

made before the Registrar of documents was not allowed to be proved. (Chaggan
Lal vs. Jagjivan Das, AIR 1940 Bom. 54)

4. Recission or modification – Proviso 4

“The existence of any distinct subsequent oral agreement to rescind or modify
any such contract, grant or disposition of property, may be proved, except in
cases in which such contract grant or disposition of property is by law required
to be in writing, or has been registered according to the law in force for the
time being as to the registration of documents.”
The proviso permits proof of an oral agreement by which the document in
question was either rescinded or modified. To rescind a document means to set it
aside. To modify a document means to drop some of its terms. The rule contained
in this proviso is subject to one qualification stated in the proviso, itself, namely,
where the contract is one which is required by law to be in writing, or where it
has been registered according to the law relating to registration of documents,
then proof cannot be given of any oral agreement by which it was agreed either to
rescind the documents or to modify its terms.
In S. Saktivel (dead) Rep. By LRs Vs. Venugopal Pillai, AIR 2000 SC
2633 the Supreme Court held that proviso 4 of Section 92 of IEA provides that
where a contract or disposition not required by law to be in writing had been
arrived at orally then subsequent oral agreement modifying or rescinding the said
contract or disposition can be subsequent oral evidence and such evidence is
admissible. The second part of proviso 4 to Section 92 of IEA does not permit
leading a part (oral) evidence for providing a subsequent oral agreement
modifying or rescinding the registered document. The terms of a registered
document can be altered, rescinded or modified only by subsequent registered
document and not otherwise.

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5. Usages or Customs- Proviso 5

“Any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description, may be proved.”
Provided that the annexing of such incident would not be repugnant to, or
inconsistent with the express terms of the contract.
In many cases, business contracts operate subject to the usages or
customs of a particular trade or market. Merchants usually do not mention such
usages or customs in their agreement because they are matters of common
knowledge and are impliedly accepted by them. The proviso therefore provides
that the existence of any usage or a custom by which incidents are attached to a
particular type of contract can be proved. But this is subject to the condition that
the usage or custom of which proof is offered should not be against the express
terms of the document. The usage should not be repugnant to or
inconsistent with the document for otherwise it would nullify the document.
Where goods sold are to be carried by the railways, but the contract does not
mention as to who is to arrange for wagons, evidence may be offered that by the
custom of trade the seller had to arrange for wagons (Bijoy Krishna vs. N.B.
Sugar Mills, AIR 1949 Cal. 490)

6. Relation of Language to facts- Proviso 6

“Any fact may be proved which shows in what manner the language of a
document is related to existing facts.”

According to this last proviso, any fact may be proved which shows in
what manner the language of document is related to existing facts. The object is
to ascertain the real intentions of the parties but those intentions of the parties
must be gathered from the language of the document as explained by extrinsic
evidence. But no evidence of any intention inconsistent with the plain meaning of

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the words used will be admitted for the object is not to vary the language used,
but only to explain the clause in which the words are used by the parties to the
deed.

For example: A makes a grant to B in respect of some property situated in

village F and in his (A’s) cultivation. B files a suit for the possession of that land.
The document embodying the grant is filed and proved. B will be allowed to
prove by oral evidence as to what land was in possession of A at the time of the
grant. Another example- A makes a will of his property to his children. He does
not name them. Evidence may be given to prove as to who are his children.

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Section 96-103

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Exclusion of evidence against application of document to existing

facts
Section 96 BSA, 2023 (Section 93 IEA, 1872) provides that when the
language used in a document is, on its face, ambiguous or defective, evidence
may not be given of facts which would show its meaning or supply its defects.
 Illustrations:
(a) A agrees, in writing, to sell a horse to B for "one lakh rupees or one lakh
fifty thousand rupees". Evidence cannot be given to show which price was
to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would
show how they were meant to be filled.
 Section 96 BSA, 2023 (Section 93 IEA, 1872) refers to ambiguity or defect
'on its face'. This is known as 'patent ambiguity' as distinct from 'latent
ambiguity. Latent ambiguities are referred to in Sections 98, 99, 100 BSA,
2023 (sections 95, 96 and 97 IEA, 1872.)
 Patent Ambiguity: Patent ambiguity as the name suggests is apparent on the
face of the document; which can be discerned by a bare reading of the same.
Principles of patent ambiguities are laid down in Section 96 BSA, 2023
(Section 93 IEA, 1872).
 According to this section, patent ambiguity cannot be removed. When the
language of the document is ambiguous on the very face of it and no definite
meaning can be given to it, no extrinsic evidence is allowed to explain or
amend the instrument.

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 The reason is that when the parties did not care to remove or clear the
apparent defect, then it is too late to remove it at the time when the dispute
actually arises.
Thus, no evidence is allowed to remove a patent defect However, the
court ay if possible, fill up the gaps or blanks in a document with the help of
extrinsic evidence. It means that the statements in one part of a document can
be used to remove a defect in some other part.
 In the case of State of UP vs. Nanhoomal, AIR 1950 All 420; where the deed
had few blanks at places where the date of commencement should have been
mentioned, but in another part it said that the first instalment of rent would be
paid on a certain date, the Allahabad High Court held that the date of the
payment of the first instalment could reasonably be fixed as the date of
commencement.

 Exclusion of evidence against application of document to existing

facts
Section 97 BSA, 2023 (Section 94 IEA, 1872) provides that when language
used in a document is plain in itself, and when it applies accurately to existing
facts, evidence may not be given to show that it was not meant to apply to such
facts.
 Illustration:
A sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an
estate at Rampur containing 100 bighas. Evidence may not be given of the fact
that the estate meant to be sold was one situated at a different place and of a
different size.
 According to the section 97 BSA, 2023, when the language used in a
document is plain in itself and when it applies to existing fact then no
evidence can be given to show that it was not meant to apply to such fact.

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 Example: A executes a will to the effect “I beneath my estate to my daughter

Rani by name”. A has a daughter Rani by name. After A’s death trouble
arises for the possession and ownership of the legacy of A between Rani and
another daughter of A. Rani relies on the will. The other daughter tries to
advance evidence to prove that the intention of A was to will the estate to her.
It was by mistake that Rani’s name was mentioned in the will. This evidence
will be excluded by Section 97 BSA, 2023 (Section 94 IEA, 1872).
The rule embodied in this Section is based on common sense.
When any document comes before a court for interpretation, it will first try to
ascertain its meaning by working into the language itself. When the words
used in it are perfectly clear and free from ambiguity and there is no doubt or
difficulty as to the proper application of those words to existing facts, no oral
evidence will be allowed to show that the parties intended to mean other than
what they have said.

 Evidence as to document unmeaning reference to existing facts:

Section 98 BSA, 2023 (Section 95 IEA, 1872) provides that when language
used in a document is plain in itself, but is unmeaning in reference to existing
facts, evidence may be given to show that it was used in a peculiar sense.
 Illustration:
A sells to B, by deed, "my house in Kolkata". A had no house in Kolkata, but
it appears that he had a house at Howrah, of which B had been in possession
since the execution of the deed. These facts may be proved to show that the
deed related to the house at Howrah.
 Latent Defect: Latent defect is not apparent on the fact of the record.
Language of the document is correct, but the problem arises when it comes to
actually applying the terms of the document to the fact to which it was

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intended to apply. Principle regarding latent defect have been provided for in
Section 98, 99 and 100 BSA, 2023 (Section 95, 96 and 97 IEA, 1872).
 The instant section and the other two sections that follow it deal with latent
ambiguities. As per this section when the language of a document is plain in
itself but, in its application to the existing facts, it is meaningless, evidence can
be given to show as to how it was intended to apply to those facts.

 Evidence as to application of language which can apply to one only of

several persons
Section 99 BSA, 2023 (Section 96 IEA, 1872) provides that when the facts
are such that the language used might have been meant to apply to any one,
and could not have been meant to apply to more than one, of several persons or
things, evidence may be given of facts which show which of those persons or
things it was intended to apply to.
 Illustrations:
(a) A agrees to sell to B, for one thousand rupees, "my white horse". A has two
white horses. Evidence may be given of facts which show which of them was
meant.
(b) A agrees to accompany B to Ramgarh. Evidence may be given of facts
showing whether Ramgarh in Rajasthan or Ramgarh in Uttarakhand was
meant.
 This section deals with a different kind of latent ambiguity, that is,, when the
language of a document is clear and is intended to apply to only one thing or
one set of facts, but it is difficult to say to which particular thing it was intended
to apply, evidence can be offered to clarify this matter.
For example: A person agrees to sell by writing his horse. The document
is quite clear, but it turns out that the seller had two horses and the document

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 5

does not identify the one that was meant to be sold. Evidence can be given to
show which of the two horses was meant to be sold.

 Evidence as to application of language to one of two sets of facts, to

neither of which the whole correctly applies.
Section 100 BSA, 2023 (Section 97 IEA, 1872) provides that When the
language used applies partly to one set of existing facts, and partly to another
set of existing facts, but the whole of it does not apply correctly to either,
evidence may be given to show to which of the two it was meant to apply.

 Illustration:
A agrees to sell to B "my land at X in the occupation of Y". A has land at
X, but not in the occupation of Y, and he has land in the occupation of Y but it
is not at X. Evidence may be given of facts showing which he meant to sell.
 The principle of the section is that where the language of a document applies
partly to one set of facts and partly to another, but does not apply accurately to
either, evidence can be given to show to which facts the document was meant
to apply.

 Evidence as to meaning of illegible characters, etc.

Section 101 BSA, 2023 (Section 98 IEA, 1872) provides that Evidence may
be given to show the meaning of illegible or not commonly intelligible
characters, of foreign, obsolete, technical, local and regional expressions, of
abbreviations and of words used in a peculiar sense.
 Illustration:
A, sculptor, agrees to sell to B, "all my mods". A has both models and
modelling tools. Evidence may be given to show which he meant to sell.

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 A document may be couched in language that is not intelligible to ordinary

people on account of the use of illegible or not commonly intelligible
characters or when the writing is such that it is not possible to decipher it
without the help of experts or a person who is specially familiar with the
writing or when it is written in shorthand or cipher.
Such documents cannot be rejected as ambiguous merely because the
court does not possess that particular knowledge or skill which is necessary to
ascertain their true meaning. Experts or the persons possessing the requisite
knowledge may be called to explain the meaning of such items.

 Who may give evidence of agreement varying terms of document.

Section 102 BSA, 2023 (Section 99 IEA, 1872) provides that persons who are
not parties to a document, or their representatives in interest, may give evidence
of any facts tending to show a contemporaneous agreement varying the terms of
the document.
 Illustration:
A and B make a contract in writing that B shall sell A certain cotton, to be paid
for on delivery. At the same time, they make an oral agreement that three
months’ credit shall be given to A. This could not be shown as between A and
B, but it might be shown by C, if it affected his interests.
 As noted earlier, Section 95 BSA, 2023 (Section 92 IEA, 1872) is a bar on the
parties and their representatives-in-interest from giving evidence of a
contemporary agreement varying the terms of the document.
Under the instant section (Section 102 BSA, 2023 (Section 99 IEA,
1872)), even a third party, if he is affected by the document could lead oral
evidence varying the terms of a contract. This section only emphasises and

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 7

repeats the rule of Section 95 BSA, 2023 (Section 92 IEA, 1872). But, the
important distinction between the two is that Section 95 BSA, 2023 (Section 92
IEA, 1872) speaks only of contracts, grant or other disposition of property
whereas this section deals with all the documents, whether they are contracts or
not.

 Saving of provisions of Indian Succession Act relating to wills.

Section 103 BSA, 2023 (Section 100 IEA, 1872) provides that Nothing in this
Chapter shall be taken to affect any of the provisions of the Indian Succession
Act, 1925 as to the construction of wills.

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COMPETENCY OF WITNESS

Bharatiya Sakshya Adhiniyam (BSA), 2023

Chapter IX of the Bharatiya Sakshya Adhiniyam (BSA), 2023 discusses about

Witnesses.

 Who may testify?

Section 124 of BSA, 2023 (Section 118 of IEA, 1872) provides that “all
persons shall be competent to testify unless the Court considers that they are
prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether
of body or mind, or any other cause of the same kind.”

Therefore, aaccording to this section all persons are competent to

testify.
However, the section mentions two exceptions to this general rule i.e. all
persons shall be competent to testify unless:
1. They are incapable of understanding the question put to them because
of tender years, extreme old age, and disease whether of body or mind or
any other cause of the same kind.
2. They are incapable of giving rational answers to the question put to
them because of tender years, extreme old age, and disease whether of
body or mind or any other cause of the same kind.

Thus, no person in particular is declared to be incompetent. It is wholly

left to the discretion of the court to see whether the person who appears as a
witness is capable of understanding the questions put to him and of giving
rational answers to them.

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Further, the section clarifies in ‘Explanation’ that even a person of

unsound mind is a competent witness unless he unless he is prevented by his
unsoundness from understanding the questions put to him and giving rational
answers to them.

Note: The words ‘lunatic’ and ‘lunacy’ mentioned under the old Section 118
of IEA, 1872 have been replaced with the words ‘person of unsound mind’
and ‘unsoundness of mind’ respectively, under the new Section 124 of BSA,
2023.

 Child witness:
 A child may be allowed to testify if the court is satisfied that he/she has the
capacity to give rational testimony. No absolute age is fixed by law in which
they are specifically excluded from providing evidence on the ground that they
do not understand enough.
However, due to their young age and ability to be influenced, they
are believed to be naïve, prone to tutoring along with vulnerable to
suggestion.
 Thus, before examining a child as a witness the court should test his
intellectual capacity by putting a few simple and ordinary questions to him and
should also record a brief proceeding of the inquiry and record his opinion that
the child understands and gives rational answers. Therefore, before the
evidence of child witness is recorded, the court must by preliminary
examination test his capacity to understand and give rational answers and
must form his opinion as to the competency of the witness and thereafter
give a certificate o that effect.

 Administration of Oath to Child Witness:

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If the court is not satisfied as to the child’s capacity to depose it should

decline to examine him, but if it is satisfied as to this matter, it should
administer oath to the witness and examine him in the ordinary way unless
he is under 12 years of age and does not understand the nature of an oath
or affirmation.
Note: Under section 4 of the Oaths Act, 1969 all witnesses are to take oaths
or affirmation. The proviso says that sections 4 and 5 of the said Act shall not
apply to a child witness under 12 years of age.

 Examination of Child under POCSO, 2012

Under special acts like POCSO, 2012 special provisions have been made for
the protection and best interest of the child, such as:
 Under Section 33 of the Act while recording the examination-in-chief,
cross-examination or re-examination of the child, questions to be put to
the child must be put to the Special Court which shall in turn put those
questions to the child and if it considers necessary, permit frequent
breaks for the child during the trial.
 Further, the Special Court shall ensure that the identity of the child is
not disclosed at any time during the course of investigation or trial.
 Section 36 provides that the Special Court shall ensure that the child is
not exposed in anyway to the accused at the time of recording of the
evidence, while at the same time ensuring that the accused is in a
position to hear the statement of the child and communicate with his
advocate, hence the Court may record the statement of a child through
video conferencing or by utilising single visibility mirrors or curtains or
any other device.

 Witness unable to communicate verbally

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Section 125 of BSA, 2023 (Section 119 of IEA, 1872) provides

that “a witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs; but
such writing must be written and the signs made in open Court and
evidence so given shall be deemed to be oral evidence.”
Provided that if the witness is unable to communicate verbally,
the Court shall take the assistance of an interpreter or a special educator
in recording the statement, and such statement shall be videographed.

PRIVILEGED COMMUNICATIONS
There are certain matters which a witness cannot either be compelled to
disclose or even if the witness is willing to disclose, he will not be permitted to
do so. Such matters are known as privileged communications. The production
of certain communications and documents is either privileged from disclosure
or prohibited from being disclosed, as a matter of public policy or on the ground
that the interest of state is supreme and overrides that of an individual.

 Communications during marriage

Section 128 of BSA, 2023 (Section 122 of IEA, 1872) provides that “no
person who is or has been married, shall be compelled to disclose any
communication made to him during marriage by any person to whom he is or
has been married; nor shall he be permitted to disclose any such
communication, unless the person who made it, or his representative in interest,
consents, except in suits between married persons, or proceedings in which one
married person is prosecuted for any crime committed against the other.”

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 5

Therefore, the section neither compels nor permits husband or wife to

disclose any communication made during marriage by any person to whom
he/she is or has been married.
 Rationale:
This section rests on the ground that admission of communications made during
marriage will tend to disturb family peace, promote domestic broils and affect
the mutual confidence of husband and wife, which is one of the most important
aspects of conjugal life.
 Relevant Period for Invoking Privilege
The spousal privilege can only be invoked if a condition, ‘the communication
must have been made during the continuance of the marriage’ is satisfied. It
does not extend to communications made before or after marriage.
As long as the communication between two individuals is made
during the subsistence of the marriage, the spousal privilege continues to
exist even after the marriage has ended.

 Under what situations such communication can be disclosed?

Such communication will not be permitted to be disclosed except in the
following five cases: -
1. Acts apart from communications- The acts or conduct of spouses
apart from communications are not protected under this section. A
wife can testify as to what her husband did on a certain occasion, though
not as to what he said to her.
In Ram Bharose v. State of U.P. AIR 1954 SC 704, the accused
was being tried for murdering a 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

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 6

early morning her husband coming down from the roof. He then
went inside the fodder store and had a bath. He put back the same
clothes andcame to her to present the things.

The Supreme Court said that what the husband said to his wife
was not admissible, but she could testify as to his conduct. The
conduct of spouse is not covered under the provision.

2. Proof by third person- Communications or conversations between

husband and wife taking place in the presence of a third person, or when
overhead by a third person, can be testified by the third person. The
privilege is that of the parties to marriage and not of others.
In M.C. Verghese vs. T.J. Ponnan, AIR 1970 SC 1876, letters
written by husband to wife contained defamatory matters about father-
in-law. Father-in-law brings a suit for defamation and wants to give as
evidence the letters. Defence argued that letters are barred by Section
122 of IEA, 1872 and the same can be disclosed only with the consent of
the husband.
The Supreme Court, it was held that the bar would apply only
when the wife is called as witness. The bar applies only to husband or
wife and not to a third party. Since, the letters are in possession of the
father-in-law, as the wife handed over them to him, he can produce them
as evidence.
3. Waiver of Privilege – If the person who made the communication or his
representative-in-interest consents, the communication can be disclosed.
The phrase ‘representative-in-interest’ means a person other than the
spouse.
For example, in a suit between the son of A and a stranger. A’s widow
cannot say that she, as the representative-in-interest of A, consents to the
disclosure of the communication made by A to her and then disclose it.

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 7

4. In suits between married person- The last part of section says, it does
not apply in suits between the spouses, that is, when the spouses are
arrayed on opposite sides. For example, divorce proceedings. This is
because in such proceedings a substantial part of evidence is covered by
the communication between spouses.
5. In criminal proceeding- Where one spouse is being prosecuted for
crime committed against the other spouse, then marriage
communications are not protected from disclosure.

 Judges and Magistrates

Section 127 of BSA, 2023 (Section 121 of IEA, 1872) provides that “no
Judge or Magistrate shall, except upon the special order of some Court to
which he is subordinate, be compelled to answer any question as to his
own conduct in Court as such Judge or Magistrate, or as to anything
which came to his knowledge in Court as such Judge or Magistrate; but
he may be examined as to other matters which occurred in his presence
whilst he was so acting.”
Illustrations:
(a) A, on his trial before the Court of Session, says that a deposition was
improperly taken by B, the Magistrate. B cannot be compelled to
answer questions as to this, except upon the special order of a superior
Court.
(b) A is accused before the Court of Session of having given false
evidence before B, a Magistrate. B cannot be asked what A said,
except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a
police officer whilst on his trial before B, a Sessions Judge. B may be
examined as to what occurred.

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 8

Exceptions to Judicial Privilege

In the following cases, a Judge or a Magistrate can appear as a
witness:
i. With the order of the Superior Court to which he is subordinate.
ii. For facts which he has observed as ordinary man while he was acting
in his judicial capacity.
iii. The section only provides that he shall not be compelled but he can
waive his privilege and voluntarily offer to explain his conduct as
judicial officer.

 Information as to commission of offences

Section 131 of BSA, 2023 provides that “no Magistrate or police
officer shall be compelled to say ‘when’ he got any information as to the
commission of any offence, and no revenue officer shall be compelled to
say ‘when’ he got any information as to the commission of any offence
against the public revenue.”
The old provision of Section 125 of IEA, 1872 provided that no
Magistrate or police-officer shall be compelled to say ‘whence’ he got
any information as to the commission of any offence, and no revenue
officer shall be compelled to say ‘whence’ he got any information as to
the commission of any offence against the public revenue.
Note: The word ‘whence’ which means from which source, has now been
replaced with ‘when’.
Explanation.—"revenue officer" means any officer employed in or about
the business of any branch of the public revenue.

 Professional Communications

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Section 126 of IEA, 1872 provided 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.”

Under the new BSA, 2023, this section has now been amended
and the corresponding Section 132 of BSA 2023 provides that “No
advocate, shall at any time be permitted, unless with his client's express
consent, to:
i. disclose any communication made to him in the course and for the
purpose of his service as such advocate, by or on behalf of his
client, or
ii. 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 service, or
iii. to disclose any advice given by him to his client in the course and
for the purpose of such service.”

Note: The words "barrister, attorney, pleader or vakil" have been

replaced by "advocate". Word "employment" is replaced by
"professional service".

 Capacity as Advocate: It should be borne in mind that this privilege can

be claimed by one only in his capacity as advocate. Therefore, no

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 10

privilege attaches to communication to an attorney or pleader consulted as

a friend and not as attorney or pleader.

 Waiver of Privilege: The privilege given by the section can be waived by

the client and not by the legal adviser. The waiver consists in the express
consent of the client. If the client gives his consent the communication so
made may be disclosed by the advocate otherwise not.

 Illustration: A, a client, says to B, an advocate—"I have committed

forgery, and I wish you to defend me". As the defence of a man known to
be guilty is not a criminal purpose, this communication is protected from
disclosure.

 Proviso: The proviso appended to the section provides that:

Provided that nothing in this section shall protect from disclosure of:
a. any such communication made in furtherance of any illegal purpose;
Illustration (b): A, a client, says to B, an advocate—"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
b. any fact observed by any advocate, in the course of his service as such,
showing that any crime or fraud has been committed since the
commencement of his service.
Illustration (c): A, being charged with embezzlement, retains B, an
advocate, 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 professional service. This being a fact observed

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by B in the course of his service, showing that a fraud has been

committed since the commencement of the proceedings, it is not
protected from disclosure.

 Section 132(2) BSA, 2023 further provides that it is immaterial whether

the attention of such advocate referred to in the proviso to sub-section (1),
was or was not directed to such fact by or on behalf of his client.
 Explanation: The obligation stated in this section continues after the
professional service has ceased.
Therefore, the bar does not apply to communications made before
the relationship came into existence or after it has ceased. But if the
communication is made during the existence of the relationship the
privilege does not get terminated by the death of parties.
 Rationale: The reason for this prohibition is to protect the clients and
encourage litigants to communicate fully with their lawyers without any
fear that the information given by them can be passed on to the opponent
or to the court. In the absence of this prohibition, it would have been
difficult for anybody to get the best professional advice.
 Section 132(3) BSA, 2023 (earlier under Section 127 of IEA, 1872)
provides that the provisions of this section shall apply to interpreters, and
the clerks or employees of advocates.

 Privilege not waived by volunteering evidence

Section 133 of BSA, 2023 (Section 128 of IEA, 1872) provides that “If
any party to a suit gives evidence therein at his own instance or otherwise, he
shall not be deemed to have consented thereby to such disclosure as is
mentioned in section 132; and, if any party to a suit or proceeding calls any
such advocate, as a witness, he shall be deemed to have consented to such

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 12

disclosure only if he questions such advocate, on matters which, but for such
question, he would not be at liberty to disclose.”

Thus, Section 133 of BSA is the supplement to Section 132 and clarifies
that if a party making the communication himself or at his own instance or
otherwise gives evidence of the matter covered by the communication, it shall
not be deemed that he has given his consent for the disclosure of the
confidential communication.
Merely calling the legal practitioner as a witness shall not be deemed
that the party summoning has consenting to disclose the communication.
For disclosing the communication “express consent” of the party is
required.
Exception: If the client during examination of the legal practitioner as witness
asked the question on confidential communication, it shall be deemed that he
consented to the disclosure.
 Confidential communication with legal advisers
Section 134 of BSA, 2023 (Section 129 of IEA, 1872) provides that “no
one shall be compelled to disclose to the Court any confidential
communication which has taken place between him and his legal adviser,
unless he offers himself as a witness, in which case he may be compelled to
disclose any such communications as may appear to the Court necessary to be
known in order to explain any evidence which he has given, but no others.”
The protection under this section is available to the client i.e. the client
cannot be compelled to disclose the confidential information.
The effect of the section is that a person cannot be compelled to disclose
any confidential commission, which has taken place between him and legal
professional adviser, But, if he offers himself as a witness, he may be
compelled by the court to disclose such matters to the extent to which court

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 13

thinks it is necessary for the purpose of explaining the evidence which he

has given, but not more than that.

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 1

DNA Test for Paternity (Section 112 Indian Evidence Act, 1872)

Factual Matrix:-

Situation I:-

‘X’ and ‘Y’ got married in 2005 according to Hindu Rites and Customs.
Thereafter, during the subsistence of valid marriage a child named ‘Z’ was born
in the year 2009. By that time the relationship between husband and wife
became sour and the husband filed for divorce on the grounds of adultery and
infidelity of wife. He also filed an application seeking a direction that children
born to the wife be subjected to deoxyribonucleic acid test (for brevity “DNA”),
with a view to ascertain his paternity. This application was filed in the divorce
proceeding.

Situation II:-

‘A’, an adult, claims ‘B’ to be his biological father and files a suit for
declaration. Additionally, an application was filed seeking a direction that his
father be subjected to DNA test. Moreover, the mother and the legal father of
‘A’ both admitted the fact that there was no access at the relevant point of time
between the parties.

Answer to situation No. I:-

Under situation number I, it is to be noted that the child was begotten during the
subsistence of valid marriage. Thus, conclusive presumption provided under
section 112 r/w section 4 of Indian Evidence Act, 1860 (for short ‘IEA’) and
section 116 r/w section 2(1)(b) of Bhartiya Nyaya Sanhita, 2023(for short
‘BNS’) as to legitimacy of child comes into existence.

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BARE PROVISION:

Section 112 of Indian Evidence Act- The fact that any person was born during
the continuance of a valid marriage between his mother and any man, or within
two hundred and eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access to each
other at any time when he could have been begotten.”

This section is based on the well-known maxim “pater est quem nuptioe
demonstrant” (he is the father whom the marriage indicates). The idea behind
this provision was to establish a conclusive presumption in favour of the
legitimacy of a child to not subject him or her to the stigma of being a bastard.

From a plain reading of the aforesaid, it is evident that a child born during the
continuance of a valid marriage shall be a conclusive proof that the child is a
legitimate child of the man to whom the lady giving birth is married. The
provision makes the legitimacy of the child to be a conclusive proof, if the
conditions aforesaid are satisfied.

It can be rebutted only if it is shown that the parties to the marriage have no
access to each other at any time when the child could have been begotten. This
presumption can only be displaced by a strong preponderance of evidence, and
not by a mere balance of probabilities.

It is to be noted that mere proving access of mother with any other person is not
sufficient. Non-access between married couples must be proved.

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 3

It is pertinent to answer here whether non-access can be proved through DNA

tests.

No doubt, DNA testing is the most legitimate and scientifically perfect means,
which the husband could use to establish his assertion of infidelity.

However, as per Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia (20
February, 2023) the question as to whether a DNA test should be permitted on
the child, is to be analysed through the prism of the child and not through the
prism of the parents. The child cannot be used as a pawn to show that the
mother of the child was living in adultery. It is always open to the respondent-
husband to prove by other evidence, the adulterous conduct of the wife, but the
child’s right to identity should not be allowed to be sacrificed.

Also, in the above mentioned case the following principles as to DNA test were
summarised which are as follows:-

i. That a DNA test of a minor child is not to be ordered routinely, in

matrimonial disputes. Proof by way of DNA profiling is to be directed in
matrimonial disputes involving allegations of infidelity, only in matters where
there is no other mode of proving such assertions.

ii. DNA tests of children born during the subsistence of a valid marriage may be
directed, only when there is sufficient prima-facie material to dislodge the
presumption under Section 112 of the Evidence Act. Further, if no plea has
been raised as to non-access, in order to rebut the presumption under Section
112 of the Evidence Act, a DNA test may not be directed.

iii. A Court would not be justified in mechanically directing a DNA test of a

child, in a case where the paternity of a child is not directly in issue, but is
merely collateral to the proceeding.

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 4

iv. Merely because either of the parties has disputed a factum of paternity, it
does not mean that the Court should direct a DNA test or such other test to
resolve the controversy. The parties should be directed to lead evidence to prove
or disprove the factum of paternity and only if the Court finds it impossible to
draw an inference based on such evidence, or the controversy in issue cannot be
resolved without DNA test, it may direct DNA test and not otherwise. In other
words, only in exceptional and deserving cases, where such a test becomes
indispensable to resolve the controversy the Court can direct such test.

v. While directing DNA tests as a means to prove adultery, the Court is to be

mindful of the consequences thereof on the children born out of adultery,
including inheritance-related consequences, social stigma, etc.

Therefore, by applying above law on the situation I, it is concluded that an

application seeking DNA test of child be rejected as child is presumed to be
begotten during the subsistence of valid marriage as welfare of child is of
paramount consideration.

However, there may be cases under which DNA tests are allowed in order to
avoid vagrancy and bastardization.

On this note, let us discuss situation number II.

Answer to situation number II:-

Under situation number II, demand for a DNA test is made by an alleged son.
Thus, upon considering this fact and after analysing the purpose of section 112
of IEA and Section 116 of BNS, which is to protect the legitimacy of child, the
paternity action by ‘A’, claiming ‘B’ to be his biological father is maintainable
in law. The same was held in the case of Narayan Dutt Tiwari vs. Rohit
Shekhar (2012 SCC 5

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 5

Chairperson’s Comment:- With the advancement of technology, the results of

DNA tests are considered as more reliable and authentic. However, courts in
India cannot order DNA tests as a matter of course in order to protect the
interest of children.

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 1

BURDEN OF PROOF AND STANDARD OF PROOF

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Chapter VII- Section 104-120 BSA, 2023 (Sections 107 to 114A, IEA
1872) deals with ‘Burden of Proof’. There are three interrelated concepts
which need to be understood:

1- Burden of Proof

2- Onus of Proof

3- Standard of Proof

I. Burden of Proof:
 Burden of proof means the obligation to prove a fact. Burden of proof is a
matter of law and policy. It means that Burden of Proof is fixed by law. It is a
matter of introducing evidence.
 The burden of proof is of 2 kinds:
i. Burden of Proof on Pleadings
ii. Burden of adducing Evidence
The burden that arises from the pleadings depends upon the facts asserted or
denied and is determined by the rules of substantive law.
 According to Section 104 BSA, 2023 (section 101 IEA, 1872)-- “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.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.”
 In criminal cases burden of establishing the charge against the accused lies on
the prosecution. Here it is not the accused who has to prove his innocence
because he is presumed to be innocent till his guilt is proved. That is why

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 2

prosecution has to prove his case and this comes into operation. In civil cases
burden of proof is on the party who asserts the facts.
 Illustration (a): A desires a Court to give judgment that B shall be punished
for a crime which A says B has committed. A must prove that B has
committed the crime.
 Illustration (b): A desires a Court to give judgment that he is entitled to
certain land in the possession of B, by reason of facts which he asserts, and
which B denies, to be true. A must prove the existence of those facts.

 On whom Burden of proof lies:

 According to Section 105 BSA, 2023 (section 102 IEA, 1872), “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.”
 The Section uses words ‘Suit or Proceedings’. Thus, as a general rule, the
Burden of Proof in a Civil Suit lies on the plaintiff and on the State or
Prosecution in criminal proceedings.
 Illustration (a): A sues B for land of which B is in possession, and which, as
A asserts, was left to A by the will of C, B's father. If no evidence were given
on either side, B would be entitled to retain his possession. Therefore, the
burden of proof is on A.
 Illustration (b): 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 were given on either side, A would succeed, as the bond is not
disputed and the fraud is not proved. Therefore, the burden of proof is on B.

II. Onus of Proof:

 Section 106 BSA, 2023 (section 103 IEA, 1872) talks about the concept of
‘Onus of Proof’. It oscillates between the parties.

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 According to the section, “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.”
 Thus, onus of proof keeps on shifting between the parties. The party which
is alleging something or wants Court to believe in what it is alleging is
required to furnish the proof of it.
 Illustration (a): 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. He must
prove it.
B wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove it.

III. Standard of Proof:

 While the concepts of Burden of Proof and Onus of Proof deals with who
shall prove; Standard of Proof deals with how much is required to be
proved.
 Standard of proof is more in criminal law, i.e. ‘beyond reasonable doubt’
than in civil law, i.e. ‘preponderance of probability’.

 Concept of Reverse Burden of Proof-

 The burden of proof in a criminal case is on the prosecution and the standard
of proof required works on the principle of ‘beyond reasonable doubt’. There
lies Presumption of innocence", which merely means that, the accused person
can't be held guilty until the prosecution can prove him guilty beyond a
certain reasonable doubt.

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 4

 However, the reverse burden constitutes an exception to this presumption.

The culpability of the offence is presumed and the burden of negating the
mens rea shifts on the accused. Example: Section 113B and Section 304B.
 Burden of proving fact to be proved to make evidence admissible
Section 107 BSA, 2023 (Section104 IEA, 1872) provides that “the burden of
proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give such
evidence.”
Illustrations:
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost.

 Burden of proving that case of accused comes within exceptions

Section 108 BSA, 2023 (Section105 IEA, 1872) provides that “when a
person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the
Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso
contained in any other part of the said Sanhita, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such
circumstances.”
 Thus, the section is applicable in criminal cases only.
 General Exceptions, provided under Section 14-44 of BNS, 2023 (Section
75-106 IPC, 1860) are available with respect to all kinds of offences and they
completely exonerate a person from criminal liability.

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 Specific Exceptions are provided for specific or particular offences, such as

exceptions appended to offences of murder or defamation. These exceptions
either exonerate or reduce the criminal liability.
For instance, if the case falls under the exceptions provided for
Offence of Murder, the criminal liability may get reduced to culpable
homicide not amounting to murder.
 Standard of Proof required: The burden of proof is on the prosecution to
prove the guilt of the accused. But, where the accused pleads any special
defences open to him, the burden lies on the accused and he can prove the
defence by 'preponderance of probabilities' and need not prove his defence
beyond reasonable doubt.
 In Rizwan & Ors v/s. State of Chhattisgarh (2003) SC, it was held that the
burden to establish the plea of private defence is on the accused. It stands
discharged by showing preponderance of probabilities in favour of his plea.
 Note: ‘Plea of alibi’ is not an exception under substantive law, but rather a
rule of evidence. It is a relevant fact under the evidence law and all facts
need to be proved beyond reasonable doubt.
 Illustrations:
(a) 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.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he
was deprived of the power of self-control. The burden of proof is on A.
(c) Section 117 of the BNS, 2023 provides that whoever, except in the case
provided for by sub-section (2) of section 122, voluntarily causes grievous
hurt, shall be subject to certain punishments. A is charged with voluntarily
causing grievous hurt under section 117. The burden of proving the
circumstances bringing the case under sub-section (2) of section 122 lies
on A.

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 Burden of proving fact especially within knowledge

Section 109 BSA, 2023 (Section106 IEA, 1872) provides that “when any
fact is especially within the knowledge of any person, the burden of proving
that fact is upon him.”
When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.

Illustrations:
(a) A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.

 Burden of proving death of person known to have been alive within

thirty years.
Section 110 BSA, 2023 (Section107 IEA, 1872) provides that “When the
question is whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the person who
affirms it.”
 This section is based on the principle of the continuity of the things.
Once a state of things is shown to exist, the law presumes that it
continues to exist for a period for which such state of things ordinary
lasts. This principle also applies to continuity of the life at least for 30
years.

 Burden of proving that person is alive who has not been heard of for
seven years

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Section 111 BSA, 2023 (Section108 IEA, 1872) provides that “When the
question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of
him if he had been alive, the burden of proving that he is alive is shifted to
the person who affirms it.”
 This is known as ‘civil death’.
 Section 110 and 111 BSA, 2023 have to be read together. Section 110
BSA, 2023 is based on the principle of continuity of life, whereas
Section 111 BSA, 2023 is regarded as an exception to Section 110
BSA.
 The question which arises before the court is that whether A is alive or
dead? There is no presumption of automatic death.
In Parmeshwari vs Parkash Chander (1989) P&H HC, a woman
was asked to enter into a karewa marriage with her brother-in-law in 1969 for
the procreation of children because her husband became a lunatic and was
discharged from the Army. He was not heard of after his discharge and was
presumed to be dead in 1961. However, when she was ill-treated by her
brother-in-law and thrown out of the house, she filed for divorce, but all the
allegations were denied by the opposite party. The brother-in-law (allegedly
second husband) objected that there was no relationship of husband and wife
between him and she was the wife of his elder brother, who was still alive and
there had been no divorce of the lawful marriage between them. It was denied
that the whereabouts of first husband were not known and he was presumed to
be civilly dead or became lunatic during the period of his service. It was
further alleged that the child was born out of her first marriage and she was
aware of his whereabouts.
Under Section 13(1)(vii) HMA, 1955 if the spouse has not been heard
of as being alive for a period of 7 years or more by those persons who would

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 8

naturally have heard of it, had that party been alive; then it is a ground for
divorce. However, it is a ground for divorce under the law. It is not automatic
dissolution of marriage as he cannot be presumed to be dead without a civil
suit seeking declaration of his death. She should have filed for divorce, without
which the second marriage will be deemed to be bigamy and non-est in the
eyes of law.
 Date or time of death: Furthermore, the section only relates to presumption of
death and not to the date or time of death. If an issue arises relating to date or
time of death, same has to be determined on evidence, direct or circumstantial
and not by assumption or presumption.
 The person will be presumed to be dead from the date of filling of the case.
 In L. I. C. Of India Vs. Anuradha, 2004 (S.C.), a man bought a life insurance
policy in 1986. He paid premium for a period of two years, after which he
disappeared in 1988. In 1996, his wife approached the LIC for release of
benefits under the policy proceedings on an assumption that her husband was
dead as having not been heard of for a period of more than seven years. The
LIC turned down the claim of the wife relying on Rule 14 of the Insurance
Manual which reads as under: "Where a person is reported missing, it is to be
advised to the claimant that Life insured will be presumed to be dead after
seven years or production of the decree from the court of law and in the
meantime policy is to be kept in force by making payment of premium
regularly."
The Supreme Court examined Sections 107 and 108 of IEA, 1872 which
deal with the burden of proving whether a person is alive or dead after seven
years of being unheard of. The Court concluded that while the presumption of
death after seven years is valid, it does not specify the exact time of death.
Therefore, claimants must prove the date or time of death with evidence. As the
insurance premiums were not paid after his disappearance, the policies lapsed.

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 Therefore, the presumption raised under Section 111 BSA, 2023 (Section108
IEA, 1872) is a limited presumption confined only to presuming the factum
of death of the person whose life or death is in issue. Though it will be
presumed that the person is dead but there is no presumption as to the date
or time of death or as to the facts and circumstances under which the person
may have died.
 An occasion for raising the presumption would arise only when a question
is raised in the court, tribunal or before an authority who is called upon to
decide as to whether a person is alive or dead. So long as the dispute is not
raised before any forum and in any legal proceedings, the occasion for
raising the presumption does not arise.
 Case of Simultaneous Death: This is an important factor in case say both
father and son died in a same car crash. This holds importance for the matters of
succession. According to Section 21 of the Hindu Succession Act, 1956, in
cases where two people die simultaneously and there is ambiguity as to who
survived whom, it is presumed that the younger person between the two
survived the other.

 Burden of proof as to relationship in the cases of partners, landlord

and tenant, principal and agent
Section 112 BSA, 2023 (Section109 IEA, 1872) provides that “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.”
 The section lays down the principle dealing with the presumption of the
continuity of relationship between persons or a state of things.

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 When certain persons have been shown to be related to each other, the
presumption is that the relationship continues and if one of them says that
they are no more related, he must prove the non-existence of relationship.

 Burden of proof as to ownership

Section 113 BSA, 2023 (Section110 IEA, 1872) provides that “when the
question is whether any person is owner of anything of which he is shown to be
in possession, the burden of proving that he is not the owner is on the person
who affirms that he is not the owner.”
 The section is based on the principle that Possession is the nine-tenth of
ownership. The phrase means that when someone physically possesses
something, there is a stronger legal claim that it belongs to them than
anyone else.
 This section gives weight to the principle that possession is prima facie
evidence of complete title, anyone who intends to oust the possessor must
establish a right to do so it is an evidence of complete title.

 Proof of good faith in transactions where one party is in relation of

active confidence
Section 114 BSA, 2023 (Section111 IEA, 1872) provides that “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.”
 This section imposes a duty of good faith upon the person occupying
the position of trust and confidence. The law requires that the party

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 11

enjoying confidence must act in good faith towards the other, and the
burden lie upon him to prove that he did act in a good faith.
 Illustrations:
(a) The good faith of a sale by a client to an advocate is in question in a suit
brought by the client. The burden of proving the good faith of the
transaction is on the advocate.
(b) 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 the good faith of the
transaction is on the father.

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EXAMINATION OF WITNESSES

Bharatiya Sakshya Adhiniyam (BSA), 2023

Chapter X of the BSA deals with examination of witnesses.

 Order of production and examination of witnesses

Section 140 BSA, 2023 (Section 135 IEA, 1872) provides that “The order in
which witnesses are produced and examined shall be regulated by the law and
practice for the time being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the discretion of the
Court.”
The order of examination of witnesses involves two things:
i. which party is to examine his witnesses first ;
ii. in what order the witnesses are to be examined by a party.
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.

 Examination of witnesses
Section 142 BSA, 2023 (Section 137 IEA, 1872) provides:
Examination-in-chief. –– 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.
Re-examination. ––The examination of a witness, subsequent to the cross-
examination by the party who called him, shall be called his re-examination.
 Examination-in-chief- When a witness is present before the court, he is
given oath or affirmation. His name and address is taken down. Then it is
the province of the party by whom the witness is called to examine him for

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the purpose of eliciting from the witness, all the material facts within his
knowledge which ten to prove his (party calling the witness) case. This is
called examination-in-chief.
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- After the party calling a witness has finished the
examination-in-chief, the opposite party has a right to cross-examine the
witness.
Cross-examination is not confined to matters proved in examination-in-chief, the
slightest examination-in-chief even for formal proof gives right to the cross-
examiner to put question about the whole of his case.
 Re-examination- The 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.
New matters may be introduced by the permission of the Court. In such case, the
other party has a right to cross-examine the witness on that point.

Examination-in- Cross-Examination Re-Examination

chief

1. Examination-in- 1. Cross examination 1. Re-Examination is

chief is the is examination of examination of witness
examination of witness by opposite to re-move
witness by a person party. inconsistency which
calling to him. may have arisen during
examination-in-chief
and cross-examination

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2. The order of 2. The cross- 2. The order of re-

examination-in- examination is examination is last.
chief is first. second in order.

3. The purpose of 3. The purpose of 3. The purpose of re-

examination-in- cross-examination examination is to
chief is to take such to test the veracity remove inconsistency
testimony for which of witness by which may have arisen
he is called by party. impeaching his during examination-in-
credit. chief and cross-
examination.

4. No leading 4. Leading question 4. Leading question

question may be may freely be asked cannot be asked in re-
asked in in cross- examination and no
examination-in- examination new matter should be
chief without introduced in re-
permission of court. examination without
permission of Court.

5. Examination-in- 5. Cross-examination 5. Re-examination is not

chief is part and is most essential for necessary it is not
parcel of a judicial extracting the truth essential part of
proceeding. and is essential part judicial proceeding.
of judicial
proceedings.

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 Order of examinations:
Section 143 BSA, 2023 (Section 138 IEA, 1872) provides that
“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-in-chief 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.
The re-examination shall be directed to the 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.”
 Scope:
 The scope of examination-in-chief of any witness is to elicit the evidence
relevant to the issues and favorable to the party calling him as witness and
it must relate to relevant facts of the case.
 Whereas cross examination is done to impeach the credit of the
witness. Impeaching the credit of witness has been provided under Section
158 of BSA, 2023 (section 155 of IEA, 1872). The object of cross
examination is to destroy or weaken the case of the opponent by
discrediting the witness.
‘Credit of a witness’ means his trustworthiness or reliability. The general
rule is the cross examination is done by adverse party and a party calling
the witness is not permitted to cross examine such witness, unless the
witness has turned hostile.
 The party who calls the witness may re-examine him after cross-
examination in order to reconcile the discrepancies that have arisen during
cross-examination.

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The object of re-examination is to seek explanation or clarification from

the witnesses on matters, which arose during cross-examination and may
be unfavourably construed against the party calling the witness
The scope of Re-examination must be limited to explanation of the
matters appearing in the cross-examination. Furthermore, as a general rule,
no new fact can be introduced in re-examination, unless the court permits
otherwise. When new facts are introduced during re-examination, the
adverse party shall have the right to cross-examine the witnesses only on
those new facts. Leading question cannot be asked during re-examination
without the permission of the court.

 Credibility & Credit of a witness

Credit of a witness may include his antecedents, character, impartiality and
consistency. But credibility of a witness depends on matters such as
opportunity for and power of observation of witness and his capacity to
recollect and explain what he remembers.

 Cross-examination of person called to produce a document

Section 144 BSA, 2023 (Section 139 IEA, 1872) provides that “A
person summoned to produce a document does not become a witness by
the mere fact that he produces it, and cannot be cross-examined unless
and until he is called as a witness.”
Therefore, any person summoned merely to produce a document shall be
deemed to have complied with the summons, if he causes such document to
be produced instead of attending personally to produce the same.

 Witnesses to character

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Section 145 BSA, 2023 (Section 140 IEA, 1872) provides that
“Witnesses to character may be cross-examined and re-examined.”

 Leading questions
Section 146 BSA, 2023 (Section 141 IEA, 1872) provides that
“Any question suggesting the answer which the person putting it wishes
or expects to receive, is called a leading question.”
Thus, two conditions for a leading question are:
1- It is suggestive of the answer the person putting it wishes to obtain, or
2- It is suggestive of the answer which the person putting it expects to
receive.
If either of the above condition is satisfied, the question is a leading
question.
Therefore, a leading question is a question which suggests an
answer. It is a question which itself contains the answer. In other words a
leading question is one which leads the witness to the answer to be given
by him.
Clause (2) of the Section 146 BSA further provides that “Leading
questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with the
permission of the Court.”
Clause (3) clarifies that “the Court shall permit leading questions as to
matters which are introductory or undisputed, or which have, in its
opinion, been already sufficiently proved.”
Clause (4) provides “Leading questions may be asked in cross-
examination.”

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Thus, the section 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. Leading questions may be asked in
cross-examination.
Note: Section 141, 142 & 143 IEA, 1872 have been merged within
Section 146 BSA, 2023.

The total effect of provisions regarding the asking of leading

questions can be summarized as under:
a. Where they are not objected to by the adverse party;
b. Where the adverse party objects but the court overrules the objection;
c. Where they deal with the matter of undisputed or introductory nature of
the matter in question has already been satisfactorily proved; and
d. Lading questions may always be asked in cross-examination

 Leading Questions may work like a double-edged sword.

In Balu Sudam Khalde and Another versus the State of
Maharashtra (2023) SC, it was held that “Suggestions made to the
witness by the defence counsel and the reply to such suggestions would
definitely form part of the evidence and can be relied upon by the Court
along with other evidence on record to determine the guilt of the accused.
The suggestion made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any manner
would definitely bind the accused and the accused cannot get away on

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 19

the plea that his counsel had no implied authority to make suggestions in
the nature of admissions against his client.”

For instance in Rakesh Kumar alias Babli v. State of Haryana

reported in (1987) SC, in his cross-examination, PW 4, Sube Singh,
stated that the accused Dharam Vir, was wearing a shirt of white colour.
It was suggested to him on behalf of the accused that Dharam Vir was
wearing a shirt of cream colour. In answer to that suggestion, PW 4 said:
“It is not correct that Dharam Vir accused was wearing a shirt of cream
colour and not a white colour at that time.”
The court held that the learned Sessions Judge has rightly observed
that the above suggestion at least proves the presence of accused Dharam
Vir, on the spot at the time of occurrence.”

Another instance is of Tarun Bora alias Alok Hazarika v. State

of Assam (2002) SC in cross-examination the witness stated as under:
"Accused Tarun Bora did not blind my eyes nor he assaulted me." This
part of cross-examination is suggestive of the presence of accused Tarun
Bora in the whole episode. This will clearly suggest the presence of the
accused Tarun Bora as admitted. The only denial is the accused did not
participate in blind-folding the eyes of the witness nor assaulted him.”

 Is there a substantive impact of Leading Questions?

Suggestions by itself are not sufficient to hold the accused guilty if they are
incriminating in any manner or are in the form of admission in the absence of
any other reliable evidence on record. It is true that a suggestion has no
evidentiary value but this proposition of law would not hold good at all times
and in a given case during the course of cross-examination the defence counsel

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 20

may put such a suggestion the answer to which may directly go against the
accused, as held in Balu Sudam Khalde and Another versus the State of
Maharashtra (2023).
Furthermore, it is a cardinal principle of criminal jurisprudence that the
initial burden to establish the case against the accused beyond reasonable
doubt rests on the prosecution. It is also an elementary principle of law that the
prosecution has to prove its case on its own legs and cannot derive
advantage or benefit from the weakness of the defence.
However, it would all depend upon the nature of the suggestions and with
what idea in mind such suggestions are made to the witness.
For instance: A case where the accused would plead right of a private
defence. Here it is admitted that he’s killed the person, though in private
defence. Such a defence is always available to the accused but although if such
a defence is not taken specifically during the course of trial yet if the evidence
on record suggests that the accused had inflicted injuries on the deceased in
exercise of his right of private defence then the Court can definitely take into
consideration such defence in determining the guilt of the accused.
However, if a specific question is put to a witness by way of a suggestion
indicative of exercise of right of private defence then the Court would well be
justified in taking into consideration such suggestion and if the presence of the
accused is established the same would definitely be admissible in evidence.

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Section 126, Bharatiya Sakshya Adhiniyam (BSA), 2023

Birth during marriage, conclusive proof of legitimacy

Section 126 BSA, 2023 (Section 112 IEA, 1872) provides that “The fact that
any person was born during the continuance of a valid marriage between his
mother and any man, or within 280 days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate child of
that man, unless it can be shown that the parties to the marriage had no access to
each other at any time when he could have been begotten.”

 The section is based on presumption of public policy and public morality.

 Accordingly, the fact that any person was born:
a. During the continuance of a valid marriage between his mother and any
man, or
b. Within two hundred and eighty days after its dissolution, the mother
remaining unmarried,

Shall be conclusive proof that he/she is the legitimate child of that man unless
the parties had no access to each other at any time when he could have been
begotten. Anyone of the aforesaid facts is sufficient to establish its legitimacy,
and shift the burden of proof to the party, seeking to establish the contrary.

 The legislative intent behind this section is that once the validity of marriage
is proved then there is strong presumption about the legitimacy of children
born from the wedlock. The presumption of legitimacy is a presumption of
law, not a mere inference to be drawn by a process of logical reasoning from
the fact of marriage and birth or conception during wedlock.
 This section is based on the well-known maxim “pater est quem nuptioe
demonstrant” (he is the father whom the marriage indicates). The idea

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behind this provision was to establish a conclusive presumption in favour of

the legitimacy of a child to not subject him or her to the stigma of being a
bastard.
 Under Section 126 BSA, 2023 (Section 112 IEA, 1872), the only way to
rebut the presumption is the proof of "non-
access" between the parties to marriage. The phrase "non-access" implies
non-existence of opportunity for physical intercourse. This presumption can
only be displaced by a strong preponderance of evidence, and not by a mere
balance of probabilities. It is to be noted that mere proving access of mother
with any other person is not sufficient. Non-access between married couples
must be proved.

 The issue which arises is when a husband alleges adultery against his wife
and claims his child to be illegitimate, whether non-access can be proved
through deoxyribonucleic acid test (for brevity “DNA”)?

In Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia (20

February, 2023) the question as to whether a DNA test should be permitted
on the child, is to be analysed through the prism of the child and not through
the prism of the parents. The child cannot be used as a pawn to show that
the mother of the child was living in adultery. It is always open to the
respondent- husband to prove by other evidence, the adulterous conduct of
the wife, but the child’s right to identity should not be allowed to be
sacrificed.
The following principles as to DNA test have been evolved by courts:
i. DNA test of a minor child is not to be ordered routinely, in
matrimonial disputes. Proof by way of DNA profiling is to be directed

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 23

in matrimonial disputes involving allegations of infidelity, only in

matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage
may be directed, only when there is sufficient prima-facie material
to dislodge the presumption under Section 126 BSA, 2023 (Section
112 IEA, 1872). Further, if no plea has been raised as to non-access,
in order to rebut the presumption under Section 126 BSA, 2023
(Section 112 IEA, 1872), a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of
a child, in a case where the paternity of a child is not directly in issue,
but is merely collateral to the proceeding.
iv. Merely because either of the parties has disputed a factum of paternity,
it does not mean that the Court should direct a DNA test or such other
test to resolve the controversy. The parties should be directed to lead
evidence to prove or disprove the factum of paternity and only if the
Court finds it impossible to draw an inference based on such evidence,
or the controversy in issue cannot be resolved without DNA test, it
may direct DNA test and not otherwise. In other words, only in
exceptional and deserving cases, where such a test becomes
indispensable to resolve the controversy the Court can direct such
test.
v. While directing DNA tests as a means to prove adultery, the Court is to
be mindful of the consequences thereof on the children born out of
adultery, including inheritance-related consequences, social stigma,
etc.

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 In case of an unmarried, DNA test may be allowed because the section

has been incorporated for the benefit of the child and to avoid the stigma
of bastardisation

In Narayan Dutt Tiwari vs. Rohit Shekhar (2012) SC Rohit

Shekhar, the Respondent, had filed a suit with the High Court of Delhi, seeking
a declaration of paternity from prominent politician Narayan Dutt Tiwari, the
Petitioner. The court held that “a direction for DNA testing can be issued only
after the test of eminent need is satisfied. Adverse inference from non-
compliance cannot be a substitute to the enforceability of a direction for DNA
testing. The valuable right of the appellant under the said direction, to prove his
paternity through such DNA testing cannot be taken away by asking the
appellant to be satisfied with the comparatively weak, adverse inference.”

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PRIVILEGED COMMUNICATIONS---NOTES II

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Evidence as to affairs of State

Section 129 BSA, 2023 (Section 123 IEA, 1872) provides that “No one shall
be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the
head of the department concerned, who shall give or withhold such permission
as he thinks fit.”

 Object: Principle behind the section is the overriding and paramount

character of public interest and injury to public interest is the sole
foundation of this section. It is based on maxim ‘salus populi est
suprema lex’ i.e. regard for public welfare is the highest law.

It is well known that in the administration of justice, a principle of

general application is that both parties to the dispute must produce all relevant
and material evidence in their position or power which is necessary to prove
their respective contentions. The departure is justified on the principle of
overriding and paramount character of public interest. When public interest
outweighs the latter, evidence cannot be admitted.

 According to section 129 BSA, no one shall be permitted to give any

evidence derived from unpublished official records relating to any affairs
of state unless the head of the department concerned permits.

Thus, the section deals with a prohibition and the prohibition extends to
everyone, provided the evidence sought to be given relates to affairs of State
derived from unpublished official records.

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 Exception -Any matter related to the affairs of the State can be disclosed
as evidence only with the permission of the head of the department and
the officer has absolute discretion in either giving or withholding such
permission.
 The section must be read in conjunction with Section 165 BSA, 2023
(Section 162 of IEA, 1872), which provides that when a person has been
summoned to produce a document, he should produce it even if he has
any objection to its production. The Court will decide the validity of his
objection. 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.
When read together, the effect is that the final decision whether the
permission should be granted or not should be with the courts. The court
may inspect the document, unless it refers to matters of State or take other
evidence to enable it to determine on its admissibility.
 The Supreme Court in its decision in State of UP vs. Raj Narain, AIR
1975 SC 865, where the defendant quoted certain parts of the ‘Blue Book’
– an official document (relating to security arrangements of the Prime
Minister), and its production as an evidence, as it was not an unpublished
document. The court held that the disclosure of certain portions does not
render it published, for such portions may have no concern with ‘affairs of
State’.
The Supreme Court, in this case, laid down some authoritative
propositions:
 Foundation of law behind Section 123 and 162 of IEA, 1872 (now
Section 129 and 165 BSA, 2023) is injury to public interest.
 Public interest which demands evidence to be withheld must be
weighed against public interest in the administration of justice that the

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 27

courts should have the fullest possible access to all relevant materials.
When public interest outweighs the latter, evidence cannot be admitted.
 The ‘confidentiality’ of the matter has to be decided by the head of the
Department. However, the court can summon any document
notwithstanding any objection under Section 162 of IEA, 1872 and can
discuss the admissibility (as an evidence), and can get the help of
translators to decide whether the document relates to the ‘affairs of
State’.
 If the court is satisfied with the reasons cited in affidavit, matter ends
there.
 If not, the court may inspect the document and if it finds that any part
of the document is innocuous (not related to affairs of State) it could
order disclosure of such part. While ordering of the disclosure of
innocuous part, the court must seal the other parts whose disclosure is
undesirable.
Thus, the Section 129 BSA, 2023 (Section 123 of IEA, 1872)
protects unpublished State records from being disclosed. The document
must be related to be the affairs of state and its disclosure must be against
affairs of state or against public interest.
It is true that under Section 165, BSA, 2023 (Section 162, IEA
1872) the Court cannot inspect the document if it relates to affairs of
State, but this bar comes into operation only if the document is
established to be one relating to affairs of State. If, however, there is any
doubt whether the document does relate to affairs of state, the residual
power which vests in the Court to inspect the document for the purpose of
determining whether the disclosure of the document is therefore one
relating to affairs of State, is not excluded by Section 165, BSA, 2023
(Section 162, IEA 1872).

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 Official communications
Section 130 BSA, 2023 (Section 124 IEA, 1872) provides that
“No public officer shall be compelled to disclose communications made
to him in official confidence, when he considers that the public interests
would suffer by the disclosure.”
 This section gives a privilege to public officers to refuse to disclose
matters, which are brought to their knowledge in official confidence.

 Difference between Section 129 and 130 BSA, 2023 (Section 123 and
Section 124, IEA 1872):
Though both provisions are based upon the same principles yet
following points of distinction between two are summarized below:
i. Section 129 BSA applies only to evidence derived from unpublished
official record relating to any affairs of state where as Section 130
BSA applies to all communication made in official confidence
whether such communications are in writings or not whether they
relate to any affairs of state or not.
ii. Section 129 BSA leaves discretion of disclosing the contents of state
documents to the head of department to which document relates
whereas Section 130 BSA gives discretion of disclosing
communication to the public officer to whom communication is
made, whether he is head of department or not.

 Witness not excused from answering on ground that answer will

criminate
Section 137 BSA, 2023 (Section 132 IEA, 1872) provides that “A
witness shall not be excused from answering any question as to any

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 29

matter relevant to the matter in issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such witness, or
that it will expose, or tend directly or indirectly to expose, such witness to
a penalty or forfeiture of any kind.
Provided that no such answer, which a witness shall be compelled to
give, shall subject him to any arrest or prosecution, or be proved against
him in any criminal proceeding, except a prosecution forgiving false
evidence by such answer.”
 It must be noted that the protection is not available when a witness
voluntarily answers without any compulsion. When a witness objects to a
question being put to him or when he asks the court to be excused from
giving answers but he is compelled to give answers he is said to be
“compelled” to give evidence.
 As per the proviso, the answers, which the witness is compelled to give,
should not constitute any evidence against him. But, if the answer is false,
the witness may be prosecuted for giving false evidence. (i.e. perjury).
 The object of the law is to afford a party, called upon to give evidence,
protection against being brought by means of his own evidence within the
penalties of the law. The section however, is essentially designed not to
deprive the court of the information (solely within the knowledge of a
witness) essential to its arriving at a right decision.
 Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973) and Section 137
BSA, 2023 (Section 132 IEA, 1872)
 Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973) which deals with
Examination of witnesses by police. It provides that any police officer
making an investigation may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

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 30

Such person shall be bound to answer truly all questions relating to

such case put to him by such officer, other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a
penalty or forfeiture.
Even though Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973)
casts a wide shielding net to protect the formally accused persons as well
as suspects and witnesses during the investigative stage, Section 137
BSA, 2023 (Section 132 IEA, 1872) limits the applicability of this
protection to witnesses during the trial stage, when the evidence gets
recorded on oath.
The provisions of Article 20(3) of the Constitution of India against self-
incrimination also do not apply unless the person is one accused of an
offence in the criminal case.
The principle here is that the right against self-incrimination is
available only to a person who is 'accused of' an 'offence' and not to a
witness except that when he is an accused, his answer which incriminated
him cannot be used against him either for arrest, prosecution or in any
criminal proceeding. The sole exception is a criminal proceeding for
punishing him for 'perjury'.

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BURDEN OF PROOF AND STANDARD OF PROOF

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Chapter VII- Section 104-120 BSA, 2023 (Sections 107 to 114A, IEA
1872) deals with ‘Burden of Proof’. There are three interrelated concepts
which need to be understood:

1- Burden of Proof

2- Onus of Proof

3- Standard of Proof

I. Burden of Proof:
 Burden of proof means the obligation to prove a fact. Burden of proof is a
matter of law and policy. It means that Burden of Proof is fixed by law. It is a
matter of introducing evidence.
 The burden of proof is of 2 kinds:
i. Burden of Proof on Pleadings
ii. Burden of adducing Evidence
The burden that arises from the pleadings depends upon the facts asserted or
denied and is determined by the rules of substantive law.
 According to Section 104 BSA, 2023 (section 101 IEA, 1872)-- “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.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.”
 In criminal cases burden of establishing the charge against the accused lies on
the prosecution. Here it is not the accused who has to prove his innocence
because he is presumed to be innocent till his guilt is proved. That is why

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 2

prosecution has to prove his case and this comes into operation. In civil cases
burden of proof is on the party who asserts the facts.
 Illustration (a): A desires a Court to give judgment that B shall be punished
for a crime which A says B has committed. A must prove that B has
committed the crime.
 Illustration (b): A desires a Court to give judgment that he is entitled to
certain land in the possession of B, by reason of facts which he asserts, and
which B denies, to be true. A must prove the existence of those facts.

 On whom Burden of proof lies:

 According to Section 105 BSA, 2023 (section 102 IEA, 1872), “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.”
 The Section uses words ‘Suit or Proceedings’. Thus, as a general rule, the
Burden of Proof in a Civil Suit lies on the plaintiff and on the State or
Prosecution in criminal proceedings.
 Illustration (a): A sues B for land of which B is in possession, and which, as
A asserts, was left to A by the will of C, B's father. If no evidence were given
on either side, B would be entitled to retain his possession. Therefore, the
burden of proof is on A.
 Illustration (b): 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 were given on either side, A would succeed, as the bond is not
disputed and the fraud is not proved. Therefore, the burden of proof is on B.

II. Onus of Proof:

 Section 106 BSA, 2023 (section 103 IEA, 1872) talks about the concept of
‘Onus of Proof’. It oscillates between the parties.

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 According to the section, “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.”
 Thus, onus of proof keeps on shifting between the parties. The party which
is alleging something or wants Court to believe in what it is alleging is
required to furnish the proof of it.
 Illustration (a): 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. He must
prove it.
B wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove it.

III. Standard of Proof:

 While the concepts of Burden of Proof and Onus of Proof deals with who
shall prove; Standard of Proof deals with how much is required to be
proved.
 Standard of proof is more in criminal law, i.e. ‘beyond reasonable doubt’
than in civil law, i.e. ‘preponderance of probability’.

 Concept of Reverse Burden of Proof-

 The burden of proof in a criminal case is on the prosecution and the standard
of proof required works on the principle of ‘beyond reasonable doubt’. There
lies Presumption of innocence", which merely means that, the accused person
can't be held guilty until the prosecution can prove him guilty beyond a
certain reasonable doubt.

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 However, the reverse burden constitutes an exception to this presumption.

The culpability of the offence is presumed and the burden of negating the
mens rea shifts on the accused. Example: Section 113B and Section 304B.
 Burden of proving fact to be proved to make evidence admissible
Section 107 BSA, 2023 (Section104 IEA, 1872) provides that “the burden of
proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give such
evidence.”
Illustrations:
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost.

 Burden of proving that case of accused comes within exceptions

Section 108 BSA, 2023 (Section105 IEA, 1872) provides that “when a
person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the
Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso
contained in any other part of the said Sanhita, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such
circumstances.”
 Thus, the section is applicable in criminal cases only.
 General Exceptions, provided under Section 14-44 of BNS, 2023 (Section
75-106 IPC, 1860) are available with respect to all kinds of offences and they
completely exonerate a person from criminal liability.

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 Specific Exceptions are provided for specific or particular offences, such as

exceptions appended to offences of murder or defamation. These exceptions
either exonerate or reduce the criminal liability.
For instance, if the case falls under the exceptions provided for
Offence of Murder, the criminal liability may get reduced to culpable
homicide not amounting to murder.
 Standard of Proof required: The burden of proof is on the prosecution to
prove the guilt of the accused. But, where the accused pleads any special
defences open to him, the burden lies on the accused and he can prove the
defence by 'preponderance of probabilities' and need not prove his defence
beyond reasonable doubt.
 In Rizwan & Ors v/s. State of Chhattisgarh (2003) SC, it was held that the
burden to establish the plea of private defence is on the accused. It stands
discharged by showing preponderance of probabilities in favour of his plea.
 Note: ‘Plea of alibi’ is not an exception under substantive law, but rather a
rule of evidence. It is a relevant fact under the evidence law and all facts
need to be proved beyond reasonable doubt.
 Illustrations:
(a) 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.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he
was deprived of the power of self-control. The burden of proof is on A.
(c) Section 117 of the BNS, 2023 provides that whoever, except in the case
provided for by sub-section (2) of section 122, voluntarily causes grievous
hurt, shall be subject to certain punishments. A is charged with voluntarily
causing grievous hurt under section 117. The burden of proving the
circumstances bringing the case under sub-section (2) of section 122 lies
on A.

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 Burden of proving fact especially within knowledge

Section 109 BSA, 2023 (Section106 IEA, 1872) provides that “when any
fact is especially within the knowledge of any person, the burden of proving
that fact is upon him.”
When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.

Illustrations:
(a) A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.

 Burden of proving death of person known to have been alive within

thirty years.
Section 110 BSA, 2023 (Section107 IEA, 1872) provides that “When the
question is whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the person who
affirms it.”
 This section is based on the principle of the continuity of the things.
Once a state of things is shown to exist, the law presumes that it
continues to exist for a period for which such state of things ordinary
lasts. This principle also applies to continuity of the life at least for 30
years.

 Burden of proving that person is alive who has not been heard of for
seven years

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Section 111 BSA, 2023 (Section108 IEA, 1872) provides that “When the
question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of
him if he had been alive, the burden of proving that he is alive is shifted to
the person who affirms it.”
 This is known as ‘civil death’.
 Section 110 and 111 BSA, 2023 have to be read together. Section 110
BSA, 2023 is based on the principle of continuity of life, whereas
Section 111 BSA, 2023 is regarded as an exception to Section 110
BSA.
 The question which arises before the court is that whether A is alive or
dead? There is no presumption of automatic death.
In Parmeshwari vs Parkash Chander (1989) P&H HC, a woman
was asked to enter into a karewa marriage with her brother-in-law in 1969 for
the procreation of children because her husband became a lunatic and was
discharged from the Army. He was not heard of after his discharge and was
presumed to be dead in 1961. However, when she was ill-treated by her
brother-in-law and thrown out of the house, she filed for divorce, but all the
allegations were denied by the opposite party. The brother-in-law (allegedly
second husband) objected that there was no relationship of husband and wife
between him and she was the wife of his elder brother, who was still alive and
there had been no divorce of the lawful marriage between them. It was denied
that the whereabouts of first husband were not known and he was presumed to
be civilly dead or became lunatic during the period of his service. It was
further alleged that the child was born out of her first marriage and she was
aware of his whereabouts.
Under Section 13(1)(vii) HMA, 1955 if the spouse has not been heard
of as being alive for a period of 7 years or more by those persons who would

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 8

naturally have heard of it, had that party been alive; then it is a ground for
divorce. However, it is a ground for divorce under the law. It is not automatic
dissolution of marriage as he cannot be presumed to be dead without a civil
suit seeking declaration of his death. She should have filed for divorce, without
which the second marriage will be deemed to be bigamy and non-est in the
eyes of law.
 Date or time of death: Furthermore, the section only relates to presumption of
death and not to the date or time of death. If an issue arises relating to date or
time of death, same has to be determined on evidence, direct or circumstantial
and not by assumption or presumption.
 The person will be presumed to be dead from the date of filling of the case.
 In L. I. C. Of India Vs. Anuradha, 2004 (S.C.), a man bought a life insurance
policy in 1986. He paid premium for a period of two years, after which he
disappeared in 1988. In 1996, his wife approached the LIC for release of
benefits under the policy proceedings on an assumption that her husband was
dead as having not been heard of for a period of more than seven years. The
LIC turned down the claim of the wife relying on Rule 14 of the Insurance
Manual which reads as under: "Where a person is reported missing, it is to be
advised to the claimant that Life insured will be presumed to be dead after
seven years or production of the decree from the court of law and in the
meantime policy is to be kept in force by making payment of premium
regularly."
The Supreme Court examined Sections 107 and 108 of IEA, 1872 which
deal with the burden of proving whether a person is alive or dead after seven
years of being unheard of. The Court concluded that while the presumption of
death after seven years is valid, it does not specify the exact time of death.
Therefore, claimants must prove the date or time of death with evidence. As the
insurance premiums were not paid after his disappearance, the policies lapsed.

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 Therefore, the presumption raised under Section 111 BSA, 2023 (Section108
IEA, 1872) is a limited presumption confined only to presuming the factum
of death of the person whose life or death is in issue. Though it will be
presumed that the person is dead but there is no presumption as to the date
or time of death or as to the facts and circumstances under which the person
may have died.
 An occasion for raising the presumption would arise only when a question
is raised in the court, tribunal or before an authority who is called upon to
decide as to whether a person is alive or dead. So long as the dispute is not
raised before any forum and in any legal proceedings, the occasion for
raising the presumption does not arise.
 Case of Simultaneous Death: This is an important factor in case say both
father and son died in a same car crash. This holds importance for the matters of
succession. According to Section 21 of the Hindu Succession Act, 1956, in
cases where two people die simultaneously and there is ambiguity as to who
survived whom, it is presumed that the younger person between the two
survived the other.

 Burden of proof as to relationship in the cases of partners, landlord

and tenant, principal and agent
Section 112 BSA, 2023 (Section109 IEA, 1872) provides that “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.”
 The section lays down the principle dealing with the presumption of the
continuity of relationship between persons or a state of things.

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 When certain persons have been shown to be related to each other, the
presumption is that the relationship continues and if one of them says that
they are no more related, he must prove the non-existence of relationship.

 Burden of proof as to ownership

Section 113 BSA, 2023 (Section110 IEA, 1872) provides that “when the
question is whether any person is owner of anything of which he is shown to be
in possession, the burden of proving that he is not the owner is on the person
who affirms that he is not the owner.”
 The section is based on the principle that Possession is the nine-tenth of
ownership. The phrase means that when someone physically possesses
something, there is a stronger legal claim that it belongs to them than
anyone else.
 This section gives weight to the principle that possession is prima facie
evidence of complete title, anyone who intends to oust the possessor must
establish a right to do so it is an evidence of complete title.

 Proof of good faith in transactions where one party is in relation of

active confidence
Section 114 BSA, 2023 (Section111 IEA, 1872) provides that “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.”
 This section imposes a duty of good faith upon the person occupying
the position of trust and confidence. The law requires that the party

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enjoying confidence must act in good faith towards the other, and the
burden lie upon him to prove that he did act in a good faith.
 Illustrations:
(a) The good faith of a sale by a client to an advocate is in question in a suit
brought by the client. The burden of proving the good faith of the
transaction is on the advocate.
(b) 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 the good faith of the
transaction is on the father.

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EXAMINATION OF WITNESSES

Bharatiya Sakshya Adhiniyam (BSA), 2023

Chapter X of the BSA deals with examination of witnesses.

 Order of production and examination of witnesses

Section 140 BSA, 2023 (Section 135 IEA, 1872) provides that “The order in
which witnesses are produced and examined shall be regulated by the law and
practice for the time being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the discretion of the
Court.”
The order of examination of witnesses involves two things:
i. which party is to examine his witnesses first ;
ii. in what order the witnesses are to be examined by a party.
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.

 Examination of witnesses
Section 142 BSA, 2023 (Section 137 IEA, 1872) provides:
Examination-in-chief. –– 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.
Re-examination. ––The examination of a witness, subsequent to the cross-
examination by the party who called him, shall be called his re-examination.
 Examination-in-chief- When a witness is present before the court, he is
given oath or affirmation. His name and address is taken down. Then it is
the province of the party by whom the witness is called to examine him for

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the purpose of eliciting from the witness, all the material facts within his
knowledge which ten to prove his (party calling the witness) case. This is
called examination-in-chief.
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- After the party calling a witness has finished the
examination-in-chief, the opposite party has a right to cross-examine the
witness.
Cross-examination is not confined to matters proved in examination-in-chief, the
slightest examination-in-chief even for formal proof gives right to the cross-
examiner to put question about the whole of his case.
 Re-examination- The 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.
New matters may be introduced by the permission of the Court. In such case, the
other party has a right to cross-examine the witness on that point.

Examination-in- Cross-Examination Re-Examination

chief

1. Examination-in- 1. Cross examination 1. Re-Examination is

chief is the is examination of examination of witness
examination of witness by opposite to re-move
witness by a person party. inconsistency which
calling to him. may have arisen during
examination-in-chief
and cross-examination

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 14

2. The order of 2. The cross- 2. The order of re-

examination-in- examination is examination is last.
chief is first. second in order.

3. The purpose of 3. The purpose of 3. The purpose of re-

examination-in- cross-examination examination is to
chief is to take such to test the veracity remove inconsistency
testimony for which of witness by which may have arisen
he is called by party. impeaching his during examination-in-
credit. chief and cross-
examination.

4. No leading 4. Leading question 4. Leading question

question may be may freely be asked cannot be asked in re-
asked in in cross- examination and no
examination-in- examination new matter should be
chief without introduced in re-
permission of court. examination without
permission of Court.

5. Examination-in- 5. Cross-examination 5. Re-examination is not

chief is part and is most essential for necessary it is not
parcel of a judicial extracting the truth essential part of
proceeding. and is essential part judicial proceeding.
of judicial
proceedings.

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 Order of examinations:
Section 143 BSA, 2023 (Section 138 IEA, 1872) provides that
“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-in-chief 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.
The re-examination shall be directed to the 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.”
 Scope:
 The scope of examination-in-chief of any witness is to elicit the evidence
relevant to the issues and favorable to the party calling him as witness and
it must relate to relevant facts of the case.
 Whereas cross examination is done to impeach the credit of the
witness. Impeaching the credit of witness has been provided under Section
158 of BSA, 2023 (section 155 of IEA, 1872). The object of cross
examination is to destroy or weaken the case of the opponent by
discrediting the witness.
‘Credit of a witness’ means his trustworthiness or reliability. The general
rule is the cross examination is done by adverse party and a party calling
the witness is not permitted to cross examine such witness, unless the
witness has turned hostile.
 The party who calls the witness may re-examine him after cross-
examination in order to reconcile the discrepancies that have arisen during
cross-examination.

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The object of re-examination is to seek explanation or clarification from

the witnesses on matters, which arose during cross-examination and may
be unfavourably construed against the party calling the witness
The scope of Re-examination must be limited to explanation of the
matters appearing in the cross-examination. Furthermore, as a general rule,
no new fact can be introduced in re-examination, unless the court permits
otherwise. When new facts are introduced during re-examination, the
adverse party shall have the right to cross-examine the witnesses only on
those new facts. Leading question cannot be asked during re-examination
without the permission of the court.

 Credibility & Credit of a witness

Credit of a witness may include his antecedents, character, impartiality and
consistency. But credibility of a witness depends on matters such as
opportunity for and power of observation of witness and his capacity to
recollect and explain what he remembers.

 Cross-examination of person called to produce a document

Section 144 BSA, 2023 (Section 139 IEA, 1872) provides that “A
person summoned to produce a document does not become a witness by
the mere fact that he produces it, and cannot be cross-examined unless
and until he is called as a witness.”
Therefore, any person summoned merely to produce a document shall be
deemed to have complied with the summons, if he causes such document to
be produced instead of attending personally to produce the same.

 Witnesses to character

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Section 145 BSA, 2023 (Section 140 IEA, 1872) provides that
“Witnesses to character may be cross-examined and re-examined.”

 Leading questions
Section 146 BSA, 2023 (Section 141 IEA, 1872) provides that
“Any question suggesting the answer which the person putting it wishes
or expects to receive, is called a leading question.”
Thus, two conditions for a leading question are:
1- It is suggestive of the answer the person putting it wishes to obtain, or
2- It is suggestive of the answer which the person putting it expects to
receive.
If either of the above condition is satisfied, the question is a leading
question.
Therefore, a leading question is a question which suggests an
answer. It is a question which itself contains the answer. In other words a
leading question is one which leads the witness to the answer to be given
by him.
Clause (2) of the Section 146 BSA further provides that “Leading
questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with the
permission of the Court.”
Clause (3) clarifies that “the Court shall permit leading questions as to
matters which are introductory or undisputed, or which have, in its
opinion, been already sufficiently proved.”
Clause (4) provides “Leading questions may be asked in cross-
examination.”

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 18

Thus, the section 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. Leading questions may be asked in
cross-examination.
Note: Section 141, 142 & 143 IEA, 1872 have been merged within
Section 146 BSA, 2023.

The total effect of provisions regarding the asking of leading

questions can be summarized as under:
a. Where they are not objected to by the adverse party;
b. Where the adverse party objects but the court overrules the objection;
c. Where they deal with the matter of undisputed or introductory nature of
the matter in question has already been satisfactorily proved; and
d. Lading questions may always be asked in cross-examination

 Leading Questions may work like a double-edged sword.

In Balu Sudam Khalde and Another versus the State of
Maharashtra (2023) SC, it was held that “Suggestions made to the
witness by the defence counsel and the reply to such suggestions would
definitely form part of the evidence and can be relied upon by the Court
along with other evidence on record to determine the guilt of the accused.
The suggestion made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any manner
would definitely bind the accused and the accused cannot get away on

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 19

the plea that his counsel had no implied authority to make suggestions in
the nature of admissions against his client.”

For instance in Rakesh Kumar alias Babli v. State of Haryana

reported in (1987) SC, in his cross-examination, PW 4, Sube Singh,
stated that the accused Dharam Vir, was wearing a shirt of white colour.
It was suggested to him on behalf of the accused that Dharam Vir was
wearing a shirt of cream colour. In answer to that suggestion, PW 4 said:
“It is not correct that Dharam Vir accused was wearing a shirt of cream
colour and not a white colour at that time.”
The court held that the learned Sessions Judge has rightly observed
that the above suggestion at least proves the presence of accused Dharam
Vir, on the spot at the time of occurrence.”

Another instance is of Tarun Bora alias Alok Hazarika v. State

of Assam (2002) SC in cross-examination the witness stated as under:
"Accused Tarun Bora did not blind my eyes nor he assaulted me." This
part of cross-examination is suggestive of the presence of accused Tarun
Bora in the whole episode. This will clearly suggest the presence of the
accused Tarun Bora as admitted. The only denial is the accused did not
participate in blind-folding the eyes of the witness nor assaulted him.”

 Is there a substantive impact of Leading Questions?

Suggestions by itself are not sufficient to hold the accused guilty if they are
incriminating in any manner or are in the form of admission in the absence of
any other reliable evidence on record. It is true that a suggestion has no
evidentiary value but this proposition of law would not hold good at all times
and in a given case during the course of cross-examination the defence counsel

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 20

may put such a suggestion the answer to which may directly go against the
accused, as held in Balu Sudam Khalde and Another versus the State of
Maharashtra (2023).
Furthermore, it is a cardinal principle of criminal jurisprudence that the
initial burden to establish the case against the accused beyond reasonable
doubt rests on the prosecution. It is also an elementary principle of law that the
prosecution has to prove its case on its own legs and cannot derive
advantage or benefit from the weakness of the defence.
However, it would all depend upon the nature of the suggestions and with
what idea in mind such suggestions are made to the witness.
For instance: A case where the accused would plead right of a private
defence. Here it is admitted that he’s killed the person, though in private
defence. Such a defence is always available to the accused but although if such
a defence is not taken specifically during the course of trial yet if the evidence
on record suggests that the accused had inflicted injuries on the deceased in
exercise of his right of private defence then the Court can definitely take into
consideration such defence in determining the guilt of the accused.
However, if a specific question is put to a witness by way of a suggestion
indicative of exercise of right of private defence then the Court would well be
justified in taking into consideration such suggestion and if the presence of the
accused is established the same would definitely be admissible in evidence.

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Section 126, Bharatiya Sakshya Adhiniyam (BSA), 2023

Birth during marriage, conclusive proof of legitimacy

Section 126 BSA, 2023 (Section 112 IEA, 1872) provides that “The fact that
any person was born during the continuance of a valid marriage between his
mother and any man, or within 280 days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate child of
that man, unless it can be shown that the parties to the marriage had no access to
each other at any time when he could have been begotten.”

 The section is based on presumption of public policy and public morality.

 Accordingly, the fact that any person was born:
a. During the continuance of a valid marriage between his mother and any
man, or
b. Within two hundred and eighty days after its dissolution, the mother
remaining unmarried,

Shall be conclusive proof that he/she is the legitimate child of that man unless
the parties had no access to each other at any time when he could have been
begotten. Anyone of the aforesaid facts is sufficient to establish its legitimacy,
and shift the burden of proof to the party, seeking to establish the contrary.

 The legislative intent behind this section is that once the validity of marriage
is proved then there is strong presumption about the legitimacy of children
born from the wedlock. The presumption of legitimacy is a presumption of
law, not a mere inference to be drawn by a process of logical reasoning from
the fact of marriage and birth or conception during wedlock.
 This section is based on the well-known maxim “pater est quem nuptioe
demonstrant” (he is the father whom the marriage indicates). The idea

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 22

behind this provision was to establish a conclusive presumption in favour of

the legitimacy of a child to not subject him or her to the stigma of being a
bastard.
 Under Section 126 BSA, 2023 (Section 112 IEA, 1872), the only way to
rebut the presumption is the proof of "non-
access" between the parties to marriage. The phrase "non-access" implies
non-existence of opportunity for physical intercourse. This presumption can
only be displaced by a strong preponderance of evidence, and not by a mere
balance of probabilities. It is to be noted that mere proving access of mother
with any other person is not sufficient. Non-access between married couples
must be proved.

 The issue which arises is when a husband alleges adultery against his wife
and claims his child to be illegitimate, whether non-access can be proved
through deoxyribonucleic acid test (for brevity “DNA”)?

In Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia (20

February, 2023) the question as to whether a DNA test should be permitted
on the child, is to be analysed through the prism of the child and not through
the prism of the parents. The child cannot be used as a pawn to show that
the mother of the child was living in adultery. It is always open to the
respondent- husband to prove by other evidence, the adulterous conduct of
the wife, but the child’s right to identity should not be allowed to be
sacrificed.
The following principles as to DNA test have been evolved by courts:
i. DNA test of a minor child is not to be ordered routinely, in
matrimonial disputes. Proof by way of DNA profiling is to be directed

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 23

in matrimonial disputes involving allegations of infidelity, only in

matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage
may be directed, only when there is sufficient prima-facie material
to dislodge the presumption under Section 126 BSA, 2023 (Section
112 IEA, 1872). Further, if no plea has been raised as to non-access,
in order to rebut the presumption under Section 126 BSA, 2023
(Section 112 IEA, 1872), a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of
a child, in a case where the paternity of a child is not directly in issue,
but is merely collateral to the proceeding.
iv. Merely because either of the parties has disputed a factum of paternity,
it does not mean that the Court should direct a DNA test or such other
test to resolve the controversy. The parties should be directed to lead
evidence to prove or disprove the factum of paternity and only if the
Court finds it impossible to draw an inference based on such evidence,
or the controversy in issue cannot be resolved without DNA test, it
may direct DNA test and not otherwise. In other words, only in
exceptional and deserving cases, where such a test becomes
indispensable to resolve the controversy the Court can direct such
test.
v. While directing DNA tests as a means to prove adultery, the Court is to
be mindful of the consequences thereof on the children born out of
adultery, including inheritance-related consequences, social stigma,
etc.

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 In case of an unmarried, DNA test may be allowed because the section

has been incorporated for the benefit of the child and to avoid the stigma
of bastardisation

In Narayan Dutt Tiwari vs. Rohit Shekhar (2012) SC Rohit

Shekhar, the Respondent, had filed a suit with the High Court of Delhi, seeking
a declaration of paternity from prominent politician Narayan Dutt Tiwari, the
Petitioner. The court held that “a direction for DNA testing can be issued only
after the test of eminent need is satisfied. Adverse inference from non-
compliance cannot be a substitute to the enforceability of a direction for DNA
testing. The valuable right of the appellant under the said direction, to prove his
paternity through such DNA testing cannot be taken away by asking the
appellant to be satisfied with the comparatively weak, adverse inference.”

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PRIVILEGED COMMUNICATIONS---NOTES II

Bharatiya Sakshya Adhiniyam (BSA), 2023

 Evidence as to affairs of State

Section 129 BSA, 2023 (Section 123 IEA, 1872) provides that “No one shall
be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the
head of the department concerned, who shall give or withhold such permission
as he thinks fit.”

 Object: Principle behind the section is the overriding and paramount

character of public interest and injury to public interest is the sole
foundation of this section. It is based on maxim ‘salus populi est
suprema lex’ i.e. regard for public welfare is the highest law.

It is well known that in the administration of justice, a principle of

general application is that both parties to the dispute must produce all relevant
and material evidence in their position or power which is necessary to prove
their respective contentions. The departure is justified on the principle of
overriding and paramount character of public interest. When public interest
outweighs the latter, evidence cannot be admitted.

 According to section 129 BSA, no one shall be permitted to give any

evidence derived from unpublished official records relating to any affairs
of state unless the head of the department concerned permits.

Thus, the section deals with a prohibition and the prohibition extends to
everyone, provided the evidence sought to be given relates to affairs of State
derived from unpublished official records.

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 Exception -Any matter related to the affairs of the State can be disclosed
as evidence only with the permission of the head of the department and
the officer has absolute discretion in either giving or withholding such
permission.
 The section must be read in conjunction with Section 165 BSA, 2023
(Section 162 of IEA, 1872), which provides that when a person has been
summoned to produce a document, he should produce it even if he has
any objection to its production. The Court will decide the validity of his
objection. 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.
When read together, the effect is that the final decision whether the
permission should be granted or not should be with the courts. The court
may inspect the document, unless it refers to matters of State or take other
evidence to enable it to determine on its admissibility.
 The Supreme Court in its decision in State of UP vs. Raj Narain, AIR
1975 SC 865, where the defendant quoted certain parts of the ‘Blue Book’
– an official document (relating to security arrangements of the Prime
Minister), and its production as an evidence, as it was not an unpublished
document. The court held that the disclosure of certain portions does not
render it published, for such portions may have no concern with ‘affairs of
State’.
The Supreme Court, in this case, laid down some authoritative
propositions:
 Foundation of law behind Section 123 and 162 of IEA, 1872 (now
Section 129 and 165 BSA, 2023) is injury to public interest.
 Public interest which demands evidence to be withheld must be
weighed against public interest in the administration of justice that the

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 27

courts should have the fullest possible access to all relevant materials.
When public interest outweighs the latter, evidence cannot be admitted.
 The ‘confidentiality’ of the matter has to be decided by the head of the
Department. However, the court can summon any document
notwithstanding any objection under Section 162 of IEA, 1872 and can
discuss the admissibility (as an evidence), and can get the help of
translators to decide whether the document relates to the ‘affairs of
State’.
 If the court is satisfied with the reasons cited in affidavit, matter ends
there.
 If not, the court may inspect the document and if it finds that any part
of the document is innocuous (not related to affairs of State) it could
order disclosure of such part. While ordering of the disclosure of
innocuous part, the court must seal the other parts whose disclosure is
undesirable.
Thus, the Section 129 BSA, 2023 (Section 123 of IEA, 1872)
protects unpublished State records from being disclosed. The document
must be related to be the affairs of state and its disclosure must be against
affairs of state or against public interest.
It is true that under Section 165, BSA, 2023 (Section 162, IEA
1872) the Court cannot inspect the document if it relates to affairs of
State, but this bar comes into operation only if the document is
established to be one relating to affairs of State. If, however, there is any
doubt whether the document does relate to affairs of state, the residual
power which vests in the Court to inspect the document for the purpose of
determining whether the disclosure of the document is therefore one
relating to affairs of State, is not excluded by Section 165, BSA, 2023
(Section 162, IEA 1872).

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 Official communications
Section 130 BSA, 2023 (Section 124 IEA, 1872) provides that
“No public officer shall be compelled to disclose communications made
to him in official confidence, when he considers that the public interests
would suffer by the disclosure.”
 This section gives a privilege to public officers to refuse to disclose
matters, which are brought to their knowledge in official confidence.

 Difference between Section 129 and 130 BSA, 2023 (Section 123 and
Section 124, IEA 1872):
Though both provisions are based upon the same principles yet
following points of distinction between two are summarized below:
i. Section 129 BSA applies only to evidence derived from unpublished
official record relating to any affairs of state where as Section 130
BSA applies to all communication made in official confidence
whether such communications are in writings or not whether they
relate to any affairs of state or not.
ii. Section 129 BSA leaves discretion of disclosing the contents of state
documents to the head of department to which document relates
whereas Section 130 BSA gives discretion of disclosing
communication to the public officer to whom communication is
made, whether he is head of department or not.

 Witness not excused from answering on ground that answer will

criminate
Section 137 BSA, 2023 (Section 132 IEA, 1872) provides that “A
witness shall not be excused from answering any question as to any

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 29

matter relevant to the matter in issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such witness, or
that it will expose, or tend directly or indirectly to expose, such witness to
a penalty or forfeiture of any kind.
Provided that no such answer, which a witness shall be compelled to
give, shall subject him to any arrest or prosecution, or be proved against
him in any criminal proceeding, except a prosecution forgiving false
evidence by such answer.”
 It must be noted that the protection is not available when a witness
voluntarily answers without any compulsion. When a witness objects to a
question being put to him or when he asks the court to be excused from
giving answers but he is compelled to give answers he is said to be
“compelled” to give evidence.
 As per the proviso, the answers, which the witness is compelled to give,
should not constitute any evidence against him. But, if the answer is false,
the witness may be prosecuted for giving false evidence. (i.e. perjury).
 The object of the law is to afford a party, called upon to give evidence,
protection against being brought by means of his own evidence within the
penalties of the law. The section however, is essentially designed not to
deprive the court of the information (solely within the knowledge of a
witness) essential to its arriving at a right decision.
 Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973) and Section 137
BSA, 2023 (Section 132 IEA, 1872)
 Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973) which deals with
Examination of witnesses by police. It provides that any police officer
making an investigation may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

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 30

Such person shall be bound to answer truly all questions relating to

such case put to him by such officer, other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a
penalty or forfeiture.
Even though Section 180 BNSS, 2023 (Section 161 of Cr.P.C 1973)
casts a wide shielding net to protect the formally accused persons as well
as suspects and witnesses during the investigative stage, Section 137
BSA, 2023 (Section 132 IEA, 1872) limits the applicability of this
protection to witnesses during the trial stage, when the evidence gets
recorded on oath.
The provisions of Article 20(3) of the Constitution of India against self-
incrimination also do not apply unless the person is one accused of an
offence in the criminal case.
The principle here is that the right against self-incrimination is
available only to a person who is 'accused of' an 'offence' and not to a
witness except that when he is an accused, his answer which incriminated
him cannot be used against him either for arrest, prosecution or in any
criminal proceeding. The sole exception is a criminal proceeding for
punishing him for 'perjury'.

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NOTES-I
CONFESSION
Bharatiya Sakshya Adhiniyam (BSA), 2023
Q. What is ‘confession’?
Ans. The term ‘confession’ has not been defined anywhere in the Evidence
Act.
According to Mr. Justice Stephen, “confession is an admission made
at any time by a person charged with crime, stating or suggesting the
inference that he committed that crime”.
As per this definition a statement of an accused will amount to a
confession if it fulfils any of the following two conditions-
i. If he states that he committed the crime he is charged with, or
ii. If he makes a statement by which he does not clearly admit the
guilt, yet from the statement some inference may be drawn that he
might have committed the crime.
For a long time, the courts in India adopted this definition, but it was
discarded by judicial committee in Pakala Narayan Swami Case.
In Pakala Narayan Swami vs King Emperor (1939 PC), the accused
made a statement that the deceased had stayed at his house on 21st March,
for the night and left on the morning of 22nd, and the accused left on the
23rd Morning to Chhatrapur in connection with some Private business.
Later, body of deceased was discovered in steel trunk on 23rd march 1937.
It was held that the statement was not a confession because the
accused did not clearly and directly state that he committed the crime.
From the statement one may only draw an inference that he may have
committed the crime.
The Lord Atkin said, “A confession must either admit in terms the offence
or at any rate substantially all the facts which constitute the offence, i.e. an
admission of a gravely incriminating fact even a conclusively incriminating
fact is not of itself a confession.

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 2

Example: A statement of a woman that she stabbed the person as he tried

to commit rape on her, was not held not to be a confession because the
statement contained the crime while defending herself.
Example: R was charged with murder. He wrote on piece of paper that they
(wife and 3 daughters) were not in this world. This was an admission. Had
he stated that I killed them, then it would have amounted to confession.
In Palvinder Kaur v/s. State of Punjab (1951) SC, the confession of
accused was that her husband consumed the medicine meant for washing
photos accidentally and suddenly fell down and expired. The bench
referred to the Privy Council’s judgement in Pakala Narayana Swami v. King
Emperor (1939), wherein the word confession as used under the Evidence
Act was elaborated. It was stated that when a confession infers that the
accused has committed a crime, such a confession cannot be construed as a
mere statement. A confession must either admit in terms of the offence or,
at any rate, substantially all the facts that constitute the offence. The
statement is of an exculpatory character when read as a whole. It does
not prove or suggest the commission of any offence under the IPC. Rather,
she exculpated herself from the commission of any offence. The Court held
that the statement does not amount to confession and thus cannot be
admitted as evidence in a court of law.
A statement that contains self-exculpatory matter cannot amount to a
confession if the exculpatory statement is of fact, which, if true, would
negate the offence alleged to be confessed.
 Provisions dealing with confession:
The substantive law regarding confession is codified under Section 22 to 24
and Section 79 of BSA, 2023 (Section 24 to 30 and Section 80 of IEA) and
adjective/procedural law is found under 162, 164, 281 and 463 Cr.P.C. and
Article 20 (3) of the Constitution of India.
 Requirements for a valid confession
 A confession to be admissible it is necessary that it must be in clear
and definite terms and un-mistakenly point out at the guilt of the
accused.

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 3

 Confession to be voluntary- A confession, if voluntary and truthfully

made is an “efficacious proof of guilt.” A confession cannot be used
against an accused person unless the court is satisfied that it was
voluntary and at that stage the question whether it is true or false
does not arise.
The prerequisites for voluntariness are mentioned under
following Sections:
i. Section 22(1) BSA, 2023 (Section 24 of IEA): Confession caused by
inducement, threat or promise, when irrelevant in criminal
proceeding.
ii. Proviso 1 to Section 22 BSA, 2023 (Section 28 of IEA): Confession
made after removal of impression caused by inducement, threat or
promise, relevant.
iii. Proviso 2 to Section 22 of BSA, 2023 (Section 29 of IEA):
Confession otherwise relevant not to become irrelevant because of
promise of secrecy, etc.
If the facts and circumstances surrounding the making of a
confession appear to cast a doubt on the veracity or voluntariness of
the confession, the Court may refuse to act upon the confession, even
if it is admissible in evidence.
 Form of confession-A confession may occur in any form. It may be
written or oral.
 To whom the confession be made:
• It is not necessary for the relevancy of a confession that it should be
communicated to some other person.
In Sahu v/s. State of UP (1955) SC, where a person was talking to
himself, and another person overheard him saying that “I killed X”, the
court held that such a confession is relevant because communication of
confession is not necessary.
• It may even consist of conversation to oneself, which may be
produced in evidence if overheard by another. So, if the accused
goes around the village shouting that he had killed his wife, this
would amount to a confession. However, incriminating

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 4

statements made by a person while “talking in sleep” are not to

be admitted as one has no control over it.
It may be made to the court itself (Judicial confession) or to
anybody outside the court (extra judicial confession).
In R v/s. Sleeman (1833), a person enters a confession box in the
church to confess to the father, who ensured him his sins would be
forgiven. This confession was overheard by a third person. The question is
the confession, which was overheard admissible? A confession over heard
by someone else may be produced in evidence and Section 22 of BSA
will not be applicable as the gain or the avoidance of loss was not of
‘temporal’ nature.

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 1

NOTES-II

CONFESSION

Section 22, Bharatiya Sakshya Adhiniyam (BSA), 2023

 Section 22 BSA, 2023: Confession caused by inducement, threat,

coercion or promise, when irrelevant in criminal proceeding.
 Principle behind section
Principle enshrined in Section 22 of BSA (section 24, 28, 29 of
IEA) is that the confession must be voluntary i.e., outcome of his own
free will, inspired by the sound of his own conscience to speak nothing
but truth. There is always a danger that the accused may be led to
incriminate himself falsely. Very often the police , while seeking to
obtain a character for activity and zeal, harass and oppress prisoners and
compel them to make confession of guilt although, they are innocent.
 Ingredients of Section 22 BSA (Section 24 of IEA)

In order to attract the prohibition in Section 22 of BSA, 2023, the

following facts must be established:

i. The statement is a confession.

ii. That such confession is made by the accused.
Accused person- This expression covers a person accused of an offence at the
trial whether or not he was accused of the offence when he made the
confession.
iii. That he has been made to a person in authority.
Threat, Inducement and Promise from a “person in authority”-“Person in
authority” means one who by virtue of his position wields some kind of
influence over the accused

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 2

iv. The confession has been obtained by reason of inducement, threat or

promise proceeding from a person in authority.
v. Such inducement, threat or promise must have reference to the charge
against the accused.
Inducement must have reference to the charge against the accused person-
The inducement must have reference to escape from the charge. Relating to
the charge in the sense that the accused’s position in the contemplated
proceedings will or may be better or worse according to whether or not the
statement is made. An inducement relating to some collateral matter
unconnected with the charge will not exclude a confession. Mere exhortation
to speak the truth in the name of God cannot by itself amount to an
inducement.
vi. The inducement, threat or promise must in the opinion of the court be
sufficient to give the accused ground which would appear to him
reasonable for supposing that by making it he would gain the advantage
or avoid any evil of temporal nature in reference to the proceedings
against him.
The sufficiency of the inducement, threat or promise it has to be judged from
the point of view of the accused and not from the point of view of the person in
authority.
Further, the inducement must be of a temporal kind, i.e., not spiritual or
religious. Confessions obtained by spiritual exhortations are admissible in
evidence. A merely moral exhortation to tell the truth is not objectionable.
Therefore, any inducement having reference to a future state of reward or does
not affect the admissibility of confession, it must be of material, worldly or
temporal nature.
Example: In a case, the accused, a post-office clerk, under suspicion, fell at
his departmental inspector’s feet begging to be saved if he disclosed

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everything, and the inspector replied that he would try his utmost to save him
if he told the truth. The confession was held to be inadmissible as there was in
inducement by the inspector.

In Emperor v/s Jagiya (1933) Patna, the accused was left alone with the
tanga driver by the Police Officer, and she confessed to the Tanga Driver.
It was held the confession is irrelevant under Section 22 BSA as the
confession was made to a person in authority who was left in charge of her.

In Virowali v/s. State of J&K (1961) J&K, a woman, after falling ill,
confessed to the doctor that she had recently given birth to a child. She
admitted that, due to being unmarried and fearing the consequences, she had
thrown the newborn from the balcony, resulting in the child's death. She made
this confession after being reassured by the staff that they would save her. Such
a confession was held to be irrelevant as the same was made under inducement
with respect to charge and doctors treating were ‘persons in authority’.

In Emperor v/s. Mohd. Baksh, a sepoy got admitted in an army hospital.

The doctor, who was a Captain, asked him about how he got these injuries,
upon which the sepoy told him that he got these injuries while killing a man.
Such a confession was held to be relevant as there was no inducement/ threat/
promise with respect to charge. Doctors routinely ask about injuries, and
simply reporting to an authority figure does not suffice as a threat or
inducement.

In Satbir Singh v/s. State of Punjab (1977) SC, the officer having stated
to the accused that “now that the case has been registered he should state the
truth” held that the statement would generate in the accused’s mind some hope
or assurance that if he told the truth he would receive his support.

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 Proviso 1 to Section 22 BSA, 2023: Confession made after removal if

impression caused by inducement, threat or promise (Section 28 of
IEA)

If such a confession as is referred to in section 22 of BSA, is made after the

impression caused by any such inducement, threat or promise has, in the
opinion of the Court, been fully removed, it is relevant.
 In simpler words, a confession made after the removal of impression
caused by inducement, threat or promise is relevant.
Example: A patient is admitted in the hospital, the policeman says ‘since the
accused needs long treatment we will come to check him up after one week,
whether the accused can be taken into custody or not.’ And the doctor tells the
accused that ‘the police will not come here for a week and I will provide you
with the best treatment.’ With this understanding the accused makes a
confessional statement to a friend, who comes to visit him. In such case the
circumstances show that there was inducement, threat, promise or coercion
when the accused made the confession to his friend. Such a confession is
relevant as it is not hit by Section 22 BSA, 2023.
 Time between the inducement and the confession: A longer time interval
between the inducement and the confession may suggest that the
impression caused by the inducement has diminished.

 Proviso 2 to Section 22 BSA, 2023: Confession otherwise relevant not

to become irrelevant because of promise of secrecy, etc. (Section 29 of
IEA)
If such a confession is otherwise relevant, it does not become irrelevant
merely because it was made under a promise of secrecy, or in consequence of a

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 5

deception practiced on the accused person for the purpose of obtaining it, or
when he was drunk, or because it was made in answer to questions which he
need not have answered, whatever may have been the form of those questions,
or because he was not warned that he was not bound to make such confession,
and that evidence of it might be given against him.
Therefore, unlike without-prejudice statements in admissions, a confession
made under a promise of secrecy is admissible in court. The focus of the law is
on whether the confession is voluntary, so even if deception, fraud, intoxication
or the answering of unauthorised questions are involved, the confession can
still be considered admissible.

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 1

Cross-Examination

Bharatiya Sakshya Adhiniyam (BSA), 2023

Cross-Examination:
After the party calling a witness has finished the examination-in-chief, the
opposite party has a right to cross-examine the witness. The object of cross-
examination to impeach the credit of the witness and to destroy the general
value of the evidence given by the witness in chief examination.

 Ways to Impeach Credit of a Witness:

As per, Section 158 BSA, 2023 (Section 155 IEA, 1872) 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
(a) by the evidence of persons who testify that they, from their knowledge
of the witness, believe him to be unworthy of credit;
(b) 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;
(c) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted.
Therefore, contradicting a witness is also one of the ways to impeach the credit
of a witness. Any contradiction if proved in accordance with the provisions of
BSA, 2023 can impeach the credibility of the witness and can help in rejecting
the evidence of the prosecution in criminal trials.

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 Which kind of Questions can be asked or lawful in Cross-

Examination?

As per Section 149 BSA, 2023 (Section 146 IEA, 1872), when a witness
is cross-examined, he may, in addition to the questions hereinbefore referred to,
be asked any questions which tend:

(a) to test his veracity; or

(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character, although the answer to such
questions might tend directly or indirectly to criminate him, or might
expose or tend directly or indirectly to expose him to a penalty or
forfeiture.
Provided that in a prosecution for an offence under section 64, section 65,
section 66, section 67, section 68, section 69, section 70 or section 71 of the
Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where
the question of consent is an issue, it shall not be permissible to adduce evidence
or to put questions in the cross-examination of the victim as to the general
immoral character, or previous sexual experience, of such victim with any person
for proving such consent or the quality of consent.
This section extends the power of cross-examination far beyond the limits of
Section 143 BSA which confines the cross-examination to relevant facts including
the facts in issue.
(1) To test his veracity- A witness may be cross-examined not only as to the
relevant facts but also as to all facts which reasonably tend to affect the
credibility of his testimony. The statements of a witness being testimonial of
their nature, it is right to subject them, to impeachment in the appropriate
ways. So it is competent to the parties to put almost any question in cross-
examination, which he may consider important to test the accuracy or veracity
of the witness. A witness may always be subjected to a strict cross-

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 3

examination as a test of his accuracy, his understanding, his integrity, his basis
and his means of judging.
(2) To discover who he is and what is his position in life- It is common practice
to make inquiry into the relationship of the witness with the party on whose
behalf he is called- business, social and family- also to inquire as to his feeling
towards the party against whom his testimony is being given. This is
permissible in order to place his testimony in a proper light with reference to
bias in favour of one party of prejudiced against the other.
(3) To shake his credit by injuring his character- In determining the relevancy
of character as affecting the credit to be given to a witness the first question is
what kind of character is relevant? Whether, bad moral character in general or
some other specific bad quality in particular is admissible. Sometimes it is
argued that bad general character necessarily involves an impairment of the
truth-telling capacity.
This clause permits questions in the cross-examination to shake the credit
of a witness and for this purpose his character may be injured. The assault on
the character of the witness must be directed only for the purpose of shaking
his credit. The questions must relate to attack the credibility of the witness in
relation to the matter which involved and relevant under one or other
provisions of Evidence Act. The sub-section does not permit all sorts of
questions. Questions should not be directed towards laying bare with private
life of the witness.

 Cross-examination as to previous statements in writing

Section 148 BSA, 2023 (Section 145 IEA, 1872) provides that “A
witness may be cross-examined as to previous statements made by him in
writing or reduced into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but, if it is intended to

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contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the purpose of
contradicting him.”

During investigation, Police records the statement of witnesses under Section

180 BNSS (Section 161 Cr.P.C). These statement are neither on oath, nor
signed and are not substantive piece of evidence and the Court cannot suo motu
make use of such statements in case if the testimony of the witness made during
the trial is not consistent with the statement made before the police during the
course of investigation. In criminal trials, statements recorded by the Police
during the course of any investigation cannot be used for any purpose during the
trial except to contradict the witness as provided under Section 148 BSA,
2023 (Section 145 IEA, 1872).

 Meaning of Contradiction:
Contradiction means stating two different versions by the same person at two
different point of times. The Cambridge Dictionary defines the word
contradiction as “the act of saying something that is opposite or very different in
meaning to something else what is said earlier.

 Can Omission be termed as Contradiction?

In some cases, an omission to state a fact or circumstance in the statement under
Section 180 BNSS, 2023 (Section 161Cr.P.C), may amount to contradiction
during the deposition in court, if the omission appears to be significant and
otherwise relevant.
The condition for the omission to amount to contradiction is that what is
stated in deposition becomes irreconcilable with what is omitted and impliedly
negatives its existence.

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In Tahsildar Singh v/s. State of UP (1959) SC it was held that not every
type of omissions amounts to contradiction.
Situation 1: ‘X’ made a statement before the police under Section 180 BNSS,
2023 (Section 161Cr.P.C), that he saw ‘A’ stabbing ‘C’ to death. In the witness
box, he states that he saw ‘A’ and ‘B’ stabbing ‘C’ to death.
‘X’ omitted to mention that he saw ‘A’ and ‘B’ both stab ‘C’ to death.
Not mentioning the name of ‘B’ in the statement before the Police amount to
significant and relevant omission as it is not comprehensible that a witness who
saw two persons stab ‘C’ would mention in the statement before the Police that
he saw only one person stab ‘C’ to death and therefore in such situations
omissions can also amount to contradiction and will have to be proved in the
manner prescribed.
Therefore, whenever there is an inherent repugnancy between the testimony
and the statement before the Police, then even an omission can become a
contradiction, otherwise it may be a case of improvement of such statement.

Situation 2: The witness mentions that he saw ‘X’ shooting ‘Y’ dead with a
gun, During the trial, he deposes that he saw ‘Z’ stabbing ‘Y’ dead.
Both statements cannot stand together and are inherently repugnant.

Third category of omissions resulting into contradiction would be where a

negative aspect of a positive recital is found in the statement.
Situation 3: In the recorded statement under Section 161(3) Cr.P.C, the witness
stated that a dark man stabbed ‘X’, whereas in the witness box the witness
deposes that a fair man stabbed ‘X’.
As explained in the judgment of Tahsildar Singh v. State of U.P.
sometimes a positive statement may have a negative aspect and a negative one a
positive aspect. When the witness says that ‘a man is dark’ which is a positive

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 6

statement, it also means that ‘the man is not fair’, which is a negative aspect of
the statement and which is implied in the positive statement.
These are the three categories of omissions which may amount to
contradiction and will have to be proved during the trial.

 When witness to be compelled to answer

Section 150 BSA, 2023 (Section 147 IEA, 1872) provides that “If any
such question relates to a matter relevant to the suit or proceeding, the
provisions of section 137 shall apply thereto.”
That is to say that if the question does not relate to a relevant matter the bar of
Section 137 BSA, 2023 shall not apply.

 Court to decide when question shall be asked and when witness

compelled to answer
Section 151 BSA, 2023 (Section 148 IEA, 1872) provides that “If any
such question relates to a matter not relevant to the suit or proceeding, except in
so far as it affects the credit of the witness by injuring his character, the Court
shall decide whether or not the witness shall be compelled to answer it, and
may, if it thinks fit, warn the witness that he is not obliged to answer it.”
In exercising its discretion, the Court shall have regard to the following
considerations, namely:
(a) such questions are proper if they are of such a nature that the truth of the
imputation conveyed by them would seriously affect the opinion of the
Court as to the credibility of the witness on the matter to which he
testifies;
(b) such questions are improper if the imputation which they convey relates
to matters so remote in time, or of such a character, that the truth of the
imputation would not affect, or would affect in a slight degree, the

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opinion of the Court as to the credibility of the witness on the matter to

which he testifies;
(c) such questions are improper if there is a great disproportion between the
importance of the imputation made against the witness's character and the
importance of his evidence;
(d) the Court may, if it sees fit, draw, from the witness's refusal to answer,
the inference that the answer if given would be unfavourable.

 Question not to be asked without reasonable grounds

Section 152 BSA, 2023 (Section 149 IEA, 1872) provides that “no such
question as is referred to in section 151 ought to be asked, unless the
person asking it has reasonable grounds for thinking that the imputation
which it conveys is well-founded.”
Illustrations:
(a) An advocate is instructed by another advocate that an important witness
is a dacoit. This is a reasonable ground for asking the witness whether
he is a dacoit.
(b) An advocate is informed by a person in Court that an important witness
is a dacoit. The informant, on being questioned by the advocate, gives
satisfactory reasons for his statement. This is a reasonable ground for
asking the witness whether he is a dacoit.
(c) A witness, of whom nothing whatever is known, is asked at random
whether he is a dacoit. There are here no reasonable grounds for the
question.
(d) A witness, of whom nothing whatever is known, being questioned as to
his mode of life and means of living, gives unsatisfactory answers. This
may be a reasonable ground for asking him if he is a dacoit.

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 Procedure of Court in case of question being asked without

reasonable grounds
Section 153 BSA, 2023 (Section 151 IEA, 1872) provides that “If the
Court is of opinion that any such question was asked without reasonable
grounds, it may, if it was asked by any advocate, report the circumstances
of the case to the High Court or other authority to which such advocate is
subject in the exercise of his profession.”

 Indecent and scandalous questions

Section 154 BSA, 2023 (Section 151 IEA, 1872) provides that “The Court
may forbid any questions or inquiries which it regards as indecent or
scandalous, although such questions or inquiries may have some bearing on
the questions before the Court, unless they relate to:
i. facts in issue, or
ii. to matters necessary to be known in order to determine whether or not
the facts in issue existed.”

 Questions intended to insult or annoy

Section 155 BSA, 2023 (Section 152 IEA, 1872) provides that “The Court
shall forbid any question which appears to it to be intended to insult or
annoy, or which, though proper in itself, appears to the Court needlessly
offensive in form.”

 Exclusion of evidence to contradict answers to questions testing

veracity

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Section 156 BSA, 2023 (Section 153 IEA, 1872) provides that “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.
 Exception 1: Previous Conviction
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.
 Exception 2: Impartiality
If a witness is asked any question tending to impeach his impartiality, and
answers it by denying the facts suggested, he may be contradicted.

Illustration: A is asked whether his family has not had a blood feud with
the family of B against whom he gives evidence. He denies it. He may be
contradicted on the ground that the question tends to impeach his
impartiality.

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 1

ESTOPPEL

Bharatiya Sakshya Adhiniyam (BSA), 2023

Section 121-123 BSA, 2023 (Section 115-117 IEA, 1872) deal with the
provision of Estoppel.

 What is an Estoppel?

Section 121 BSA, 2023 (Section 115 IEA, 187) provides that “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 B 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.

In simpler words, it can be said that- Where any person intentionally

causes another person to believe a thing to be true by his:
 act,
 omission or
 declaration
and such other person acts upon such belief, then that person shall not be allowed
to deny the truth of that thing, later in a suit or proceeding.
It means that a person cannot deny thing after having stated it to be true.
It is based on the maxim “Allegans Contraria Non Est Aundindus’
which means that a person making contradictory allegations ought not be heard.

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Doctrine of Estoppel is founded on the famous English case of Pickard v/s.

Sears (1837).

 Essential Elements
From the above definition of estoppel, the following essential elements of it
reflect:
i. A representation is made by one person to another.
ii. Representation must be intentional.
iii. The other person believes such misrepresentation to be true and thereby
alters his position.
iv. Then in a suit between the parties, the person who represented shall not
be allowed to deny the truth of his representation.

Note: ‘Representation’ has the effect of creating in the mind of others a belief as
to existence of the fact represented.
Section 121 BSA, 2023 does not make it a condition of Estoppel that the
person making the representation was either committing or seeking to commit
any fraud, or that he was acting with full knowledge of the circumstances and
was under no mistake or misapprehension.
Therefore, to create an estoppel, the plaintiff must have altered his
position on the basis of representation and he would suffer a loss if the
representer is allowed to resile from his statement.
Example: A person sold certain properties in the presence of his mother. The
mother was not afterwards permitted to say that the property belonged to her
and therefore her son had no right to sell.
In Shri Krishna v/s. Kurukshetra University (1976) SC held that once
a candidate has been admitted to an examination, his candidature cannot be
afterwards cancelled even if his form carried certain infirmities. The candidate
is not guilty of fraud if he misstated facts, the truth of which university would

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 3

have discovered with ordinary due care and diligence. Thus estoppel will
operate in such a case.
 Estoppel is a defence, not a cause of action.

Estoppel is substantive in nature. It precludes a person from denying the truth of

the statement previously made by him. It does not create a cause of action. It
can be used as a shield but not as a sword. Thus estoppel can to a certain extent
is capable of creating or defeating the rights.

 Types of Estoppel
1. Estoppel by record- Estoppel by record is created by a final judgment
i.e. which purports finally to determine rights. Example: Res Judicata in
CPC, from Section 34-38 BSA, 2023.
It is created by the decision of any competent court. When any court
decides finally over a subject then it becomes conclusive and the parties,
their representative, executor, administrator, etc. become bound to that
decision.
2. Estoppel by conduct- It is such estoppel which arises due to act, conduct
or misrepresentation by any party. When any person causes another
person to believe by his word or conduct, or encourages them to believe
and the other person acts upon that belief and causes a change in their
situation, then the first person is stopped from denying truthfulness of his
statements made earlier. Actually, this is an estoppel of general nature.
3. Estoppel by Deed- When any person becomes bound to another person
on the basis of a record regarding few facts, then neither that person nor
any person claiming through him shall be allowed to deny it. When a
deed is made between parties and verified by their seals, there is a
statement of facts, an estoppel results it is called Estoppel by Deed.

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 4

Example: Where a Lessee makes a deed of sublease it will operate to the

extent of his rights as a lessee i.e., the sub-lessee will be bound by the
period of original lease, though not mentioned in the sub-lease.
4. Estoppel by Election-It means that no party can be allowed to accept and
reject the same thing. A party cannot be permitted to “blow hot and cold”,
“fast and loose” or “approbate and reprobate”.
5. Promissory Estoppel- It has originated as an exception to consideration
in the field of contract law. When any person promises another to lend
him certain relief or profit and the other changes his position on the basis
of such promise, then the person making promise shall be stopped from
stating that his promise was without any consideration.
The alteration of position by the party is the only indispensable
requirement of the doctrine of promissory estoppel.
In M.P. Sugar Mills v. State of U.P, 1979 SC, the Chief Secretary of
Govt. made an assurance that in order to establish industries firmly the
total tax exemption will be given to the new industrial units for next 3
years based on this assurance M.P. sugar mill started hydro generation
plant taking huge amount of money as loan. Afterward govt. made some
changes in the tax policy saying that industries will be taxed at a varying
rate.
Applying the doctrine of promissory estoppels the SC held that appellant
took a huge loan relying on the assurance made by govt. so no tax should
be imposed for the period of 3 years from the date of production as the
promise was made. And there is nothing like to make that promise
enforceable one party should suffer harm or damages, in absence of
detriment also the promise is binding.
In State of Rajasthan v/s. Mahavir Oil Mills (1999) SC, it was
held that the state government was bound by the promise but this does not

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 5

preclude the state government from withdrawing the benefit prospectively

even during the period of scheme. The court further said that supervening
public interest would prevail over promissory estoppel.

 Exceptions to the Doctrine of Estoppel

There are various exceptions to the doctrine of estoppel:-

1. No estoppel against a minor:-Where a minor represents fraudulently or

otherwise that he is of age and thereby induces another to enter into a
contract with him, then in an action founded on contract, the infant is not
estopped from setting up infancy as a plea. However, equity demands that
he should not retain a benefit which he had obtained by his fraudulent
conduct.
2. No estoppel against a point of law:-Estoppel refers only to a belief in a
fact. If a person gives his opinion that law is such and another acts upon
such belief, then there can be no estoppel against the former subsequently
asserting that law is different. One cannot be estopped from challenging
the effectiveness of something (e.g., partition deed) for want of law (e.g.,
registration). Representations under this section should be of facts not of
law or opinion.
3. When true facts are known to both the parties:-Estoppel does not
apply to a case where the statement relied upon is made to a person who
knows the real facts and is not misled by the untrue statement.
4. When both the parties plead estoppel:-If both the parties establish a
case for application of estoppel, then it is as if the two estoppels cancel
out and the Court will have to proceed as if there is no plea of estoppel on
either side. Further, if both sides had laboured under a mistake however
bona fide or genuine, the plea of estoppel may not be available.

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 6

5. Fraud or negligence on the part of other party:- If the other party does
not believe the representation but acts independently of such belief, or in
cases where the person to whom representation is made is under a duty to
make a further inquiry, the estoppel will not operate. Likewise, if there is
a fraud on the party of the other party, which could not be detected by
promisor with ordinary care, the estoppel will not operate.

 Estoppel of tenant and of licensee of person in possession.

Section 122 BSA, 2023 (Section 116 IEA, 187) provides that “No
tenant of immovable property, or person claiming through such tenant, shall,
during the continuance of the tenancy or any time thereafter, be permitted
to deny that the landlord of such tenant had, at the beginning of the tenancy, a
title to such immovable property; and no person who came upon any immovable
property by the licence of the person in possession thereof shall be permitted to
deny that such person had a title to such possession at the time when such licence
was given.”

Note: The words ‘or any time hereafter’ have been inserted in Section 122 BSA,
2023.

 Scope of Section 122 BSA

This section is an extension of Section 121 BSA, 2023 (Section 115 IEA, 1872).
It is concerned with those estoppels which occur between:
 Tenant and his landlord
 Licensor and licensee
Once a person derives his right to possession from either of these persons, he is
estopped from denying the right of the grantor to grant the lease or licence. A
tenant in no case can claim that the landlord has no title over the property.

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 7

 Estoppel of acceptor of bill of exchange, bailee or licensee

Section 123 BSA, 2023 (Section 117 IEA, 187) provides that “no
acceptor of a bill of exchange shall be permitted to deny that the drawer had
authority to draw such bill or to endorse it; nor shall any bailee or licensee be
permitted to deny that his bailor or licensor had, at the time when the bailment
or licence commenced, authority to make such bailment or grant such licence.”
Explanation 1: The acceptor of a bill of exchange may deny that the bill was
really drawn by the person by whom it purports to have been drawn.
Explanation 2: If a bailee delivers the goods bailed to a person other than the
bailor, he may prove that such person had a right to them as against the bailor.

Scope:
This provision clearly states that the person accepting the bills of exchange
cannot deny that the person drawing them has the right to draw them or to
endorse them, but they may dispute that the person drawing the bills did not
actually draw them.

 Difference between Admissions and Estoppel

i. An admission is a statement, oral or documentary which suggests an
inference as to any fact in issue or relevant fact, and which is made by
any of the parties to the suit under certain circumstances.
Whereas, an Estoppel is a rule of evidence which prohibits a
person from contradicting his former representation or conduct, which
provides no one shall be allowed to speak or behave contrary to that his
earlier statement.

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 8

ii. Admissions are not conclusive evidence. It can be rebutted against their
makers and those claiming under them by positive proof, whereas
Estoppel is conclusive.

 Difference between Estoppel and Res Judicata

i. Res Judicata originates from the decision of the court whereas Estoppel
originates from representation or the conduct of the party.
ii. Res Judicata is a rule of procedure, whereas Estoppel is based on rule of
equity.
iii. Estoppel prevents a person from saying one thing at one time and
retreating from it another time. Res judicata stops another court from
hearing the same case between the same parties if it has already been
decided by a competent court.

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 1

Section 157 (Hostile Witness); Section 162-164 (Refreshing Memory) and

Section 168 (Judge's power to put questions or order production)

Bharatiya Sakshya Adhiniyam (BSA), 2023

 HOSTILE WITNESS
 Question by party to his own witness
Section 157 BSA, 2023 (Section 154 IEA, 1872) provides that
“The Court may, in its discretion, permit the person who calls a witness to
put any question to him which might be put in cross-examination by the
adverse party.
Clause (2) provides that nothing in this section shall disentitle the person
so permitted under sub-section (1), to rely on any part of the evidence of
such witness.”
 Meaning of hostile witness:
This section deals with questions by party to his own witness who has
tuned ‘hostile’. The terms “hostile”, “adverse” or “unfavorable” witnesses
haven’t been used in the BSA, 2023 (or IEA, 1872). These are all terms
of English Law.
The general rule of not permitting a party calling the witness to
cross examine him are relaxed under the common law by evolving
the terms “hostile witness and unfavorable witness”.
The Supreme Court in the case of Sat Pal vs. Delhi
Administration, AIR 1976 SC 303, the Supreme Court said, “a hostile
witness’ is described as one who is not desirous of telling the truth at the
instance of the party calling him and an ‘unfavorable witness’ is one
called by a party to prove a particular fact, who fails to prove such fact or
proves an opposite fact.

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 Evidentiary value of the evidence of hostile witness:

It is settled law that the evidence of a hostile witness cannot be
discarded and it can be used to corroborate other reliable evidence if such
reliable evidence exists on the record.
It is settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose
to treat him as hostile and cross-examine him. The evidence of such
witnesses cannot be treated as effaced or washed off the record altogether
but the same can be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof.
In Zahira Habibulla H Sheikh And Anr vs State Of Gujarat
And Ors, (2004) the apex court observed that the Court is not merely to
act as a tape recorder recording evidence, overlooking the object of trial
i.e. to get at the truth. If the judge finds that in the process, the credit
of the witness has not been completely shaken, he may, after
reading and considering the evidence of the witness, as a whole with
due caution and care, accept, in the light of the other evidence on the
record, that part of his testimony which he finds to be creditworthy and
act upon it. If in a given case, the whole of the testimony of the
witness is impugned and in the process, the witness stands squarely
and totally discredited the judge should, as a matter of prudence, discard
his evidence in toto. Also mere possibility of not supporting case by
person without any positive indication is no ground to invoke Sec 154
and permit cross-examination.
In State of Bihar v. Laloo Prasad (2002) SC, a witness was
sought to be treated as hostile by a public prosecutor on the ground that

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he gave answers in favour of the defence during cross-examination. It

was held that The Court held the authority to decide whether to grant
permission under Section 154 of IEA is of court itself. Traditionally,
when the public prosecutor requests permission to cross-examine a
witness brought by them, the court typically grants it.
However, in this case, the public prosecutor failed to seek permission at
the conclusion of the chief examination, leading the trial judge to decline
exercising discretion when permission was sought after cross-
examination.
In Neeraj Datta v/s. state (NCT of Delhi) 2022 SC., it was held
that even if a witness is treated as hostile and is cross-examined, his
evidence cannot be written-off altogether but must be considered with
due care and circumspection and that part of testimony which is credit-
worthy must be considered and acted upon. It is for the judge as a matter
of prudence to consider the extent of evidence which is credit-worthy for
the purpose of proof of the case. Thus, there is no legal bar to raise a
conviction upon testimony of a hostile witness, if corroborated by other
reliable evidence.
In Selvamani v/s. State Represented by Inspector of Police
(2024) SC it was held that the evidence of the prosecution witness cannot
be rejected in toto merely because the prosecution chose to treat him as
hostile and cross-examined him.

 REFRESHING MEMORY

A witness is a human being. Several occasions occur in an individual’s life, and

it’s impossible for a normal person to remember all the exact facts. In Indian
law, for the purpose of providing proper justice, a witness is allowed to refresh
his memory. That is, the witness is allowed to recollect past facts.

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Sections162 to 164 BSA, 2023(Section 159 to 161 IEA, 1872) deals with the
recollection of the past.

Section 162 BSA, 2023 (Section 159 IEA, 1872) provides that “A
witness may, while under examination, refresh his memory by referring to
any writing made by himself at the time of the transaction concerning
which he is questioned, or so soon afterwards that the Court considers it
likely that the transaction was at that time fresh in his memory.”
“Provided that the witness may also refer to any such writing made by
any other person, and read by the witness within the time aforesaid, if
when he read it, he knew it to be correct.”
Clause (2) of the section provides that “whenever a witness may
refresh his memory by reference to any document, he may, with the
permission of the Court, refer to a copy of such document.”
“Provided that the Court be satisfied that there is sufficient reason for the
non-production of the original.
Provided further that an expert may refresh his memory by reference to
professional treatises.”

 This section enables a witness to look at the following types of papers for
the purpose of refreshing his memory.
1. A writing made by him either at the time of the happening or within so
short a time after the happening that the court considers that the happening
must have been still fresh in his mind when he was recording it;
2. Any writing made by any other person about the transaction and which
was read by the witness within the time mentioned in point number 1.
3. Any professional book where the witness is an expert.

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In State of Karnatka v. Yarappa Reddy, AIR 2000 SC 185; the

investigating officer was asked during his examination-in-chief about what
happened on the fateful day. Investigating officer wanted to check his
record, as he could not recall things without refreshing his memory. It was
held by the Supreme Court that objection by defence counsel was untenable.
Records of investigation officer are contemporaneous entries made by him
and hence the same can be allowed for refreshing his memory. It is always
admissible that he looks into those records before answering the question.

For the purpose of this section, it is not at all necessary that the writing
should be admissible in evidence. The section only permits a witness to
refresh his memory. He cannot be compelled to do so.

 Testimony to facts stated in document mentioned in section 162

Section 163 BSA, 2023 (Section 160 IEA, 1872) provides that “A witness
may also testify to facts mentioned in any such document as is mentioned in
section 162, although he has no specific recollection of the facts themselves,
if he is sure 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.
 Therefore, it has been seen that the previous section deals with cases
where a reference to the writing revives in the mind of the witness a
recollection of the facts relating to the transaction, i.e. as soon as he
looks at the writing he remembers the fact.

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But this section deals with a situation in which it may also happen that
even after a perusal of a document he is not able to refresh his memory,
i.e. it does not revive in his mind a recollection of fact.
When a witness sees a document to refresh his memory, this section gives
him liberty to testify as to any fact mentioned in the document though he has
no specific recollection of those facts provided only that he is sure that the
facts were correctly recorded in the document.
 Difference between Section 162 & 163 BSA, 2023 (Section 159
& 160 IEA, 1872):
 Under Section 162 BSA, 2023 (Section 159, IEA 1872), the witness
refreshes his memory by looking at the document and gives his
evidence in the ordinary way. The document is not in itself evidence
nor is it tendered as evidence.
 But under Section 163 BSA, 2023 (Section 160, IEA 1872), his
memory is not refreshed and although he has no specific recollections
he guarantees that the paper contains a true record of facts. Here the
document itself is tendered and it is evidence.
 Section 162 BSA, 2023 (Section 159 IEA, 1872) has reference to
'present recollection' and Section 163 BSA, 2023 (Section 160 IEA,
1872) to 'past recollection'.
In case of 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
writings etc.
In case of 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 had a sufficient recollection and when it was recorded so that he can
depend upon his record.

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 Right of adverse party as to writing used to refresh memory

Section 164 BSA, 2023 (Section 161 IEA, 1872) provides that “Any writing
referred to under the provisions of the two last preceding sections shall be
produced and shown to the adverse party if he requires it; such party may, if
he pleases, cross-examine the witness thereupon.”
The section provides that the writing referred to "must be produced and
shown to the adverse party, if he required it; such party may, if he pleases,
cross-examine the witness thereupon." thus, the adverse party has the right to
inspect the document. The discretion is not of the court but of the party, as is
indicated by the words "if he requires it".
This section is read with Section 192 BNSS, 2023 (Section 172 Cr.P.C)
which provides that if a police officer used a diary to refresh his memory, the
Evidence Act would apply, bringing into effect Section 164 BSA, 2023
(Section 161 IEA, 1872).

 Judge's power to put questions or order production

Section 168 BSA, 2023 (Section 165 IEA, 1872) provides that
“The Judge may, in order to discover or obtain proof of relevant facts, ask
any question he considers necessary, in any form, at any time, of any witness,
or of the parties about any fact; and may order the production of any
document or thing; and neither the parties nor their representatives shall be
entitled to make any objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any answer given in
reply to any such question.
Provided that the judgment must be based upon facts declared by this
Adhiniyam to be relevant, and duly proved.

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Therefore, the main part of this section permits the judge to ask any question
as he pleases, in any form, at any time, of any witness, of the party, about
any fact, 'relevant or irrelevant', or order production of any document or
thing.
Parties cannot object to the question or order, nor, without leave of
Court, cross-examine any witness.
But, whatever be the nature of questions, the judgment must be based
upon facts which are 'relevant' and 'duly proved'.
When the form of the English trial assumed its modern institutional form, the
role of the judge was that of a neutral umpire, like in an adversarial criminal
justice system. This section it gives power to the Court to take a pro-active
role to put questions to ascertain truth, where the parties or counsel have not
done a good job, hence introduces the element of inquisitorial criminal justice
system.
However, it is not an unfettered discretion. Proviso 1 puts a limitation on this
discretion. A limitation of the power will be found in the first proviso, which
lays down that judgments must be based on relevant facts which have been
duly proved. It is clear therefore that the judge cannot in any case admit
illegal or inadmissible evidence for basing his decision.

Proviso 2 further provides that “this section shall not authorise any Judge
to compel any witness to answer any question, or to produce any document
which such witness would be entitled to refuse to answer or produce under
sections 127 to 136, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall the Judge ask any
question which it would be improper for any other person to ask under
section 151 or 152; nor shall he dispense with primary evidence of any
document, except in the cases hereinbefore excepted.”

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