LAW of

EVIDENCE
[LEADING CASES, MATERIALS & Q.A.]

Dr. ASHOK K. JAIN

LL.M; Ph.D (Delhi)

Ascent Publications
21/29, Shakti Nagar, Delhi-110007
 COPYRIGHT © 1998 - AsCKNT PUBLICATIONS, DELHI.
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 CONTENTS

1. INTRODUCTION

Substantive and Procedural Laws 1

Law of Evidence in India 3
Application of the Indian Evidence Act, 1872 4
SEC. 1: Short Title, Extent and Commencement 4
SEC. 2: Repeal of Enactments 5
SEC. 3: Definitions: Interpretation Clause 6
Court 6
Fact 6
Facts inIssue7
RelevantFacts9
Evidence10 Different Kinds of Evidence 12 Evidence
Recorded through Video-Conferencing 15
Document18,22
India 19)
Proved, Disproved, Not Proved 19
Standard/Degree of Proof in respect of Civil/Criminalproceedings2\
SEC. 4: May Presume, Shall Presume and Conclusive Proof 13
2. RELEVANCY AND ADMISSIBILITY OF FACTS

SEC. 5: Of What Fact May Evidence be Given 24

Relevancy and Admissibility 25
Evidence obtained by Undesirable Methods- Vi/rhetberAdmissible27
SEC. 6: Relevancy of Facts forming Part of Same
Transaction
28 Res gestae 29
SEC. 7: Facts which are the Occasion, Cause or Effect of Facts
in Issue 34
(iii)
 Law of E v i d e n c e

SEC. 8: Motive, Preparation and Previous or

Subsequent Conduct 36
SEC. 9: Facts Necessary to Explain or Introduce
Relevant Facts 42 Identity of a person/
thing(Identification Parade*) 44
SEC. 10: Relevance of Conspiracy Evidence 68
Difference between English and Indian Laws79
SEC. 11: When Facts Not Otherwise Relevant
Become Relevant 47 Inconsistent Facts (Plea of
Alibi) 47 Releiancy and Admissibility of Tape-recoded
Statement A
SEC. 12: Facts Enabling Court to Determine
Amount of Damages 52
SEC. 13: Facts Relevant when Right/ Custom is in Question 52
SEC. 14: Facts showing Existence of State of
Mind/ Body/ Bodily Feeling 53
SEC. 15: Facts Bearing on Question whether Act was
Accidental/ Intentional 56
SEC. 16: Existence of Course of Business when Relevant 57

3. ADMISSIONS AND CONFESSIONS

SEC. 17: Admission Defined 82

Reasons for Admissibility of Admissions 84
Forms of Admissions 85
SECS. 18-20: Persons Whose Admissions are Relevant 87
SEC. 21: Against whom Admission May be Proved 88
SEC. 22-23: Admissions How Far Relevant 92
SEC. 22: When Oral Admissions as to Contents of Documents
are Relevant 92
SEC. 22 A: When Oral Admissions as to Contents of Electroniq
Records are Relevant 92
SEC. 23: Communication without Prejudice 92
Evidentiary Value of Admissions 94
SEC. 24-30: Confessions 95
Lkfiniticn95
Confessions Carrying lnculpatory and Exculpatory Statements 95
Forms of Confession 98
 Law of Evidence

SEC. 24-30: Confessions when Irrelevant

(Involuntary confessions) 100
SEC. 24: Confession caused by Inducement, Threat or
Promise 100
SEC. 25: Confession to Police 102
SEC. 26: Confession in Police Custody 10
SEC. 27-29: Confession when Relevant 107
SEC. 27: How Much of Information Received from Accused
May be Proved 107
SEC. 28: Confession made After Removal of
Threat,
Inducement, etc. 117
SEC. 29: Confession Otherwise Relevant Not to become
Irrelevant Because of Promise of Secrecy, etc. 117
SEC. 30: Confession of Co-Accused 55 Evidentiary
Value of Confession 118 Retracted Confessions 119
SEC. 31: Admissions Not Conclusive Proof, but
they May Estop 120 Admission made in an Earlier Suit
121 Distinction Between Admission and Confession 122

4. STATEMENTS BY PERSONS WHO CANNOT BE

CALLED AS WITNESSES: DYING DECLARATION

SEC. 32: Cases in which Statements of Relevant Fact by

Person who is Dead or Cannot be Found, etc. is Relevant
129 Sec. 32 (1): Dying Declaration 130
Distinction between English and Indian Law 132
Evidentiary Value of Dying Deelaration 136
Relevance of Circumstances of Transaaion which
Resulted in Death 13*8
Dying Deelaration can be used as a Sole Basis
of Conviction 143
Discrepancy in Dying Declarations: Credibility of
Dying Deelaration 149
Dying Declaration Madeto Polke whetherAdmissible 150
Medical Opinionand DyingDeclaration 151 Sec. 32 (2):
Statements Made in Course of Business 153 Sec. 32 (3):
Statements Against Interest of Maker 153
vi Law of E v i d e n c e

Sec. 32 (4): Declaration as to Public Rights 154

Sec. 32 (5) & (6): Declaration as to Relationship or Pedigree 154

Sec. 32 (7): Statements in Documents as to Custom or Right 155
Sec. 32 (8): Statement of Several Persons Expressing Feelings155
SEC. 33: Relevancy of Evidence in Prior Judicial Proceedings 155
Statements Made Under Special Circumstances 155

SEC. 34: Entries in Books of Account when Relevant 155

SEC. 35: Relevancy of Entries in Public/

Electronic Record 156
SEC. 36: Relevancy of Statements in Maps, Charts, etc. 156
SEC. 37: Relevancy of Statements in Acts of Parliament of
England or India 156
SEC. 38: Relevancy of Statements as to Law In Law Books of a
Foreign Country 158 How Much of a Statement is to be
Proved 158
SEC. 39: What Evidence to be given when Statements forms
Part of a Conversation, Document, etc. 158
Judgments of Courts of Justice When Relevant 158
SEC. 40: Previous Judgment Relevant to Bar a Second Suit
or Trial 159
SEC. 41: Relevancy of Certain Judgments in Probate,
etc. Jurisdiction 159
SEC. 42: Relevancy and Effect of Judgments, etc.
Other than those Mentioned in Sec. 41160
SEC. 43: Judgments, etc. Other than those mentioned in
Sees. 4042 when Relevant 160
SEC. 44: Fraud or Collusion in Obtaining Judgment/
Incompetency of Court 162

5. EXPERT EVIDENCE AND RELEVANCY OF

CHARACTER

SECS. 45-51:Opinion of Third Persons when Relevant 164

SEC. 45: Opinion of Experts 165
Difference between experts 'testimony andtbat of
ordinary witness 166
Value of Expeit Opinion 168 SEC. 46: Facts Bearing
upon Opinion of Experts 173 SEC. 47: Opinion as to
Handwriting when Relevant 174
Law of Evidence

SEC. 47A: Opinion as to Digital Signature when Relevant 175

SEC. 48: Opinion as to Existence of Right or Custom 175
SEC. 49: Opinion as to Usages, Tenets, etc. 175
SEC. 50: Opinion on Relationship 175
SEC. 51: Grounds of Opinion when Relevant 176
Character When Relevant (Sees. 52-55) 176
SEC. 52: In Civil Cases Character to Prove Conduct
Imputed, Irrelevant 177
 SEC. 53: In Criminal Cases Previous Good
Character
Relevant 178
SEC. 54: Previous Bad Character Not Relevant,
Except
in Reply 178
SEC. 55: Character as Affecting Damages
179

6. Facts Requiring No Proof & Oral/Documentary Evidence

SECS. 56-58:Facts Which Need Not be Proved 180
SEC. 56: Facts Judicially Noticeable Need Not be Proved
180 SEC. 57: Facts of which Court Must take Judicial
Notice 180 SEC. 58: Facts Admitted Need Not be Proved
180 Modes of Proof 183
SECS. 59-60: Oral Evidence 183 SEC. 59: Proof of Facts
by Oral Evidence 183
SEC. 60: Oral Evidence Must be Direct 184
Hearsay Evidence 184 SECS. 61-90:
Documentary Evidence 186
SEC. 61: Proof of Contents of Document
186
SEC. 62: Primary Evidence 187
SEC. 63: Secondary Evidence 187
SEC. 64: Proof of Documents by Primary Evidence
188
SEC. 65: When Secondary Evidence Relating to
Documents
May be Given 188 SECS. 65A/
65B:Admissibility of Electronic Records
in Evidence 190
SEC. 66: Rules as to Notice to Produce 191
SEC. 67: Proof of Signature and Handwriting of Person
alleged
to have Signed or Written Document Produced
192 SEC. 67A: Proof as to Digital Signature 192
SEC. 68: Proof of Execution of Document Required by
Law to be Attested 193
SEC. 69: Proof where No Attesting Witness
Found 194
Law of E v i d e n c e

SEC. 70: Admission of Execution by Party to Attested

Document 194
SEC. 71: Proof when Attesting Witness Denies the
Execution 194
SEC. 72: Proof of Document Not required by Law to
be Attested 195
SEC. 73: Comparison of Signature, Handwriting, etc.
by the Court 195
SEC. 73A: Proof as to Verification of Digital Signature 196
Public Documents 197
SEC. 74: Public Documents 197
SEC. 75: Private Documents 198
SEC. 76: Certified Copies of Public Documents 198
SEC. 77: Proof of Documents by Production of
Certified Copies 198
SEC. 78: Proof of Other Official Documents 199
SECS. 79-90: Presumptions As to Documents 199
SEC. 79: Presumption as to Genuineness of Certified
Copies 200
SEC. 80: Presumption as to Documents Produced as
Records of Evidence 200
SEC. 81: Presumption as to Gazettes, Newspapers,
Private Acts of Parliament 200
SEC. 81A: Presumption as to Gazettes in Electronic Forms 201
SEC. 82: Presumption as to Document Admissible in England
without Proof of Seal or Signatures 201 SEC.
83: Presumption as to Maps or Plans 201
SEC. 84: Presumption as to Collection of Laws and
Reports of Decisions 20./
SEC. 85: Presumption as to Power of Attorney 202
SEC. 85A/85B/85C: Presumption as to Electronic
Agreements, Records, etc. 202
SEC. 86: Presumption as to Certified Copies of
Foreign Judicial Record 202 SEC. 87:
Presumption as to Books, Maps and Charts 202
SEC. 88: Presumption as to Telegraphic Messages 203
SEC. 88A: Presumption as to Electronic Messages 203
SEC. 89: Presumption in Relation to Documents
Not Produced 203
SEC. 90: Presumption as to Documents Thirty Years Old 203
 Law of E v i d e n c e

SEC. 90A: Presumption as to Electronic Records Five

Years Old 205

7. Of the Exclusion of Oral by Documentary Evidence

Best Evidence Rule 206
SEC. 91: Evidence of Terms of Contracts, Grants, etc.
Reduced to Document 207
SEC. 92: Exclusion of Evidence of Oral Agreement 209
Exceptions- When OralEvidencecan be GcvenRegardmg a Document 211
Ambiguous Documents 219
SEC. 93: Exclusion of Evidence to Explain or Amend
Ambiguous Document 220
SEC. 94: Exclusion of Evidence against Application of
Document to Existing Fact 220
SEC. 95: Evidence as to Document Unmeaning in
Reference to Existing Facts 22/
SEC. 96: Evidence as to Application of Language
which can Apply to One Only of Several Persons 221
SEC. 97: Evidence as to Application of Language to One of
Two Sets of Facts 222
SEC. 98: Evidence as to Meaning of Illegible Characters, etc. 222
SEC. 99: Evidence by Non-Parties 222 SEC. 100: Saving of
Provisions of Indian Succession Act relating to Wills 223

8. Burden of Proof and Presumptions

SECS. 101-111: Burden of Proof 224

SEC. 101: Burden of Proof 225
SEC. 102: On Whom Burden of Proof Lies 226
SEC. 103: Burden of Proof as to Particular Fact 227
Burden and Onus of Proof 227
Importance of Burden of Proof 228
SEC. 104: Burden of Proving Fact to be Proved to
Make Evidence Admissible 229
SEC. 105: Burden of Proving Exception in Criminal Cases 229
SEC. 106: Burden of Proving Fact Especially within Knowledge
231
 Law of E v i d e n c e

SEC. 107: Burden of Proving Death 232,

SEC. 108: Burden of Proving that Persoriis AMve who is
Unheard of for 7 Years 232-
SEC. 109: Burden of Proof as to Relationship of
Certain Kind 233
SEC. 110: Burden of Proof as to Ownership 234
SEC. Ill: Proof of Good Faith 234 Presumptions
235 Kinds ofPresumptions236
(a) Presumption of Fact 236
'May Presume' 236
(b) Presumption of Law 237
'Shall Presume' 237
'Conclusive Proof 238
'Presumption and Proof 238
Presumptions Relatingto Documents (Sees. 79-90) 239
Presumption of Innocence and Sec. 105239
Presumption of Survivorship (Sea. 107-108) 239
SEC. 111-A: Presumption as to Offences in Disturbed Areas240
SEC. 112: Presumption of Legitimacy 251
SEC. 113: Proof of Cession of Territory 240
SEC. 113-A: Presumption as to Abetrment of Suicide
by a Married Woman 240
SEC. 113-B: Presumption as to Dowry Death 241 '
SEC. 114: Presumption of Existence of Certain Facts 242
SEC. 114-A: Presumption in Rape Cases 249 Conclusive
Proof v Conclusive Evidence 258

9. Estoppel

SEC. 115: Estoppel 261 Promissory Estoppel 264 Exceptions to

the Doctrine of Estoppel 266

SEC. 116: Estoppel of Tenant and of Licensee of Person in

Possession 270
SEC. 117: Estoppel of Acceptor of Bill of Exchange,
Bailee/ Licensee 27.? Comparison of Estoppel with Other
Concepts 271 Estoppel against Universities274
 Law of E v i d e n c e

10. Witnesses

Competency of Witnesses 277

SEC. 118: Who May Testify 277
Clpild witness 278
Partisan/Relation Witnesses 279
SEC. 119: Dumb Witness 280
SEC. 120: Parties to Suit or Proceeding/ Husband or Wife 280
SEC. 121: Judges and Magistrates 281
SECS. 122-129: Privileged Communications 282
SEC. 122: Communications during Marriage 282
SEC. 123: Evidence as to Affairs of State 257
SEC. 124: Official Communications 289
SEC. 125: Information as to Commission of Offences 289
SEC. 126: Professional Communications 303
SEC. 127: Sec. 126 to Apply to Interpreters, etc. 304
SEC. 128: Privilege Not Waived by Volunteering Evidence 306
SEC. 129: Confidential Communication with Legal Advisers 306
SEC. 130: Production of Title deeds of Witness, Not a
Party 290
SEC. 131: Production of Documents or Electronic
Records 290
SEC. 132: Witness Not Excused from Answering
Incriminating
Questions 290
Accomplice Evidence 292,307
SEC. 133: Accomplice 292
No Antithesis between Sec. 133andSec. 114297)
Evidentiary value of an Accomplice 293
Confession ofCoacaisedvAccompliceEvidence 300

11. Examination of Witnesses

SEC. 134: Number of Witnesses 311

SEC. 135: Order of Production and Examination of
Witnesses 313 SEC.136: Judge to Decide as to
Admissibility of Evidence 313
SEC. 137: Examination-in-Chief, Cross-Examination,
Re-Examination 315
SEC. 138: Order of Examination 316
xii Law of E v i d e n c e

SEC. 139: Cross-Examination of Person Called to

Produce a Document 318
SEC. 140: Witnesses to Character 318
SEC. 141: Leading Questions 318
SEC. 142: When They Must Not be Asked
3IS
SEC. 143: When They May be Asked 319
SEC. 144: Evidence as to Matters in Writing 320
SEC. 145: Cross-examination as to Previous
Written
Statements 320
SEC. 146: Questions Lawful in Cross-
examination 322
SECS. 147-152: Rules for Checking
Improper Use of
Cross-examination 323
SEC. 147: When Witnesses to be
Compelled to Answer 324
SEC. 148: Court to Decide when Question
Shall be Asked
and When Witness Compelled to Answer 324
SEC. 149: Questions Not to be Asked without Reasonable
Grounds 325
SEC. 150: Procedure of Court in case
of Reckless
Questions 326
SEC. 151: Indecent and Scandalous Questions 326
SEC. 152: Insulting or Annoying Questions 326 SEC. 153:
Exclusion of Evidence to Contradict Answers to Questions
Testing Veracity 327 SEC. 154: Questions by Party to
His Own Witness [Hostile Witness] 328 Value of the
Evidence of a Hostile Witness 330 SEC. 155: Impeaching
Credit of Witness 331 Stock Witness 332 Material
Witness 333 SEC. 156: Questions tending to Corroborate
Evidence of
Relevant Facts Admissible 333
SEC. 157: Former Statements as Corroboration 334
SEC. 158: Corroboration or Contradiction of the Statements of
Persons Who Cannot be Found 335
SECS. 159-1611 Rule as to Refreshing Memory 336
SEC. 159: Refreshing Memory 336
SEC. 160: Testimony to Facts Stated in Document
mentioned
in Sec. 159 337
SEC. 161: Right of Adverse Party as to Writing used to
Refresh Memory 338
 Law of E v i d e n c e

SECS. 162-164: Rules as to Production of Documents 338

SEC. 162: Production of Documents 338
SEC. 163: Giving, as Evidence, of Document Called for and
Produced on Notice 339
SEC. 164: Use of Document Not Produced on
Notice 340
SEC. 165: Judge's Power to Put Questions or
Order
Production 341
SEC. 166: Power to Jury or Assessors to Put
Questions 343
SEC. 167: No New Trial for Improper Admission
or
Rejection of Evidence 343
XIV
Law of E v i d e n c e

REFERENCES

1. Avtar Singh: The Law of Evidence (Central Law

Agency)
2. Batuk Lai: The Law of Evidence (Central Law
Agency)
3. Ratanlal & Dhirajlal: The Indian Evidence Act,
1872
(Wadhwa & Co.)
4. Vepa P. Sarathi: Elements of the Law of
Evidence (Eastern Book Company)
5. Monir: The Law of Evidence (Short Edition)
6. Sarkar on Evidence
7. A.N. Saha: Law of Evidence
8. Phiphson & Elliot: Law of Evidence
9. Wigmore on Evidence
10. N.H. Jhabvala: The Indian Evidence Act (C.
Jamnadas
&Co.)
Other Sources
1. The Landmark Judgments of 1997-1998 - Ashok K.
Jain.
2. Supreme Court Yearly Digests - SCYD (1995-2009)
-
Shailendra Malik (Ed.) (Eastern Book Co.).
3. Cases and Materials on Law of Evidence -
Faculty of
Law, Delhi University, Delhi.
4. Question Papers Referred - Delhi and Other
Indian
Universities; Competitive Exams like IAS.
 TABLE OF CASES

A
A.P. Pollution Control Board v Prof. M.V. Nayudu 231
Abdul Razak v State of Maharashtra 65
Abdul' Waheed Khan v State of A.P. 45
Agassiz v London Tramways Co. 30
AGHNOO NAGESIA v STATE OF BIHAR 124
Aidan v State of Rajasthan 280
Ajit Savant v State 196
Akhil Kumar (Dr.) v State 237
Alamgir v State (NCT) of Delhi 172
Alamgir v State of Assam 242
Amar Chand Butali v State 288
Amar Singh v State of Punjab 169
Amarjit Singh v State of Punjab 242
Amitabh Bagchi v Ena Bagchi 18
Amrit Banaspati Co. v UOI 227
Anber Singh v State of Rajasthan 115
Anil Kumar v State of UP. 45
Anil Roy v State of Bihar 170
Anil Sharma v State of Jharkhand 316
Anita vAtal Bihari 167
Anurag Nair v State of T.N. 325
Appu v State 285
Arjun Kushwaha v State of M.P. 241
Ashish Batham v State of MP. 21
Ashok vMadho Lai 188
Awadhesh v State of U.P. 38

B
B. Singh (Dr.) v Union of India 201
B. Venkata Rao v Principal, Andhra Medical College 275
B.R.B. vJ.B. 255
Babloov State 170
Babuda v State of Rajasthan 20
Badri Narayanan v Rajabajyathammal 195
Badri Rai v State of Bihar 70,72
Badri v State of Rajasth'an 312
Bahadur Singh v State of U.P. 313
Bal Krishan v Rewa University 267
Balu Sonba Shinde v State of Maharasntra 330
Banarsi Das v Maharaja Sukhjit Singh 187
Basant Singh v Janki Singh 121
Basanti v State of HP. 31
Basavaraj R. Patil v State of Karnataka 16
Bater v B 22
Bejoy Krishna v N.B. Sugar Mills Co. 213
(xv)
XVI Law of E v i d e n c e

Bhagbaticharan v Emperor 102

Bhagwan Singh v State of MP. 278
Bhagwan Swamp v State 178
Bharat Singh v Bhagirath 94,122,322
Bhiva Doulu Patil v State of Maharashtra 297
Bhogilal Chunilal v Stete 334
Bhola Nath v Emperor 79
Bhola Ram Khushwaha v State of M.P. 331
BHUBONISAHU v EMPEROR 308
Bikam Pandey v State of Bihar 50
Birad Mai Singhvi v. Anand Purohit 157
Bishwanath Prasad Singh v Rajendra Prasad 219
BISHWANATH PRASAD v DWARKA PRASAD 94,121
Bodala Murali Krishna v Shit. S. Bodala Prathima 18
BODHRAJ ALIAS BODHA v STATE OF J&K 112
Brij Kishore v Lakhan Tiwari 212

c
C.K. Raveendran v State of Kerala 100
C.R. Mehta v State of Maharashtra 67
CENTRAL BUREAU OF INVESTIGATION v V.C.
SHUKLA77,156
Chacko v State of Kerala 311,312
Chaitan Charan v Maheshwar Parida 195
Champa Rani Mondal v State of W.B. 97
Chandabai v Anwarkhan 204
Chandramathi v Fazhetti Balan 254
Chari v State 323
Chaudhari Ramjibhai v State of Gujarat 312
Chaudhri Mohd. Mehdi Hasan Khan v Mandir Das 245
Chetan Constructions Ltd. v Om Prakash 85
Chhaganlal Mehta v Haribhai Patel 273
Chief Conservator of Forest v Collector 234
Chilukuri Venkateswarlu v Chilukuri Venkatanarayana 254
CITI Bank N.A. v Standard Chartered Bank 244

D
D. Veerasekafan v State of T.N. 305
Dagdu v State of Maharashtra 293
Datbir Singh v State of U.P. 140
Dalip Singh v State of Punjab 151
Darshan Singh v Gujjar Singh 233
Dasari Siva Prasad Reddy v Public Prosecutor, High
Court, A.P. 50
Dayabhai v State of Gujarat 230
Dayamathi Bai v K.M. Shaffi 190
Delhi Transport Corporation v Shyam Lai 85
Devender Pal Singh v State (NCT) of Delhi 245
Devidas Jagjivan v Pirjada Begam 343
Dhanajaya Reddy v State of Karnataka 99
Djnesh v State of Rajasthan.299
 Law of E v i d e n c e

E
Emperor v Balmukand 97 Emperor v
Ganesh Raghunath 72 Emperor v Jagia
106 Emperor v Lai Miya 342 Emperor v
Mahadeo Dewoo 337 Emperor v
Mallangowda 106 Emperor v
Vaishampayan 81

F
Fagnu Bhai v State of Orissa 250
Fakhruddin v State of M.P. 174
Franji Bhicaji v Mohan Singh Dhan Singh 304

G
G. Vijayavardhan Rao v State of A.P. 30
Gade Lakshmi Mangraju v State of A.P. 13,50,51
Gaffar Badshaha Pathan v State of Maharashtra 153
Ganesh K. Gulve v State of Maharashtra 11
Gangabai v Chabbubai 211,218
Gangamma v Shivalingaiah 204
Gentala Rao v State of Andhra Pradesh 33
George v State of Kerala 245
Girdhar Shankar Tawade v State of Maharashtra 150
Gopal Sarvan v Satya Narayan 317
GOUTAM KUNDU v STATE OF W.B. 254
Govind Narain v State of Rajasthan 136
Govt, of A.P. v Karri Chinna Venkata Reddy 188
Govt, of NCT of Delhi v Jaspal Singh 76

H
Habib Usman v State of Gujarat 137
Habib v State of Bihar 46
Hans Raj v State of Haryana 240
Hanumant Govind Nargundkar v State of M.P. 13
Hanumant v State of U.P. 167
Hargovind Soni v Ramdulari 256
Haricharan Kurmi v State of Bihar 11
Haroon Haji v State of Maharashtra 295,309
Harphool Singh v State 275
Hawkins v Povells Tillary Coal Co. Ltd. 20
Hazara Singh v State of Punjab 333
Hazari Lai v State (Delhi Admn.) 280
Hem Chand v State of Haryana 242
Heramba Brahma v State of Assam 99
Housing Board Cooperative Society v State 268

I
In Re Jhoubhoa Mahton 338 In re, N.
Ramaratnam 80 Ishwar Dass Jain v
Sohan Lai 218 Israr Ahmad v State 275
xviii Law of E v i d e n c e

J
Jadunath Singh v State of U.P. 46
Jai Prakash v State of Haryana 136
Janki Narayan Bhoir v Narayan Namdeo Kadam 195
Jasbir Singh v Vip .: Kumar 298
JAYANTIBHAI BHENKARBHAI v STATE OF
GUJARAT48
Jayaram Shiv Tagore v State of Maharashtra 312
Jayendra Saraswathi Swamigal v State of T.N. 76,140
Jnanendra Nath Ghose v State of W.B. 297
Joseph v State of Kerala 313
Joyjit Das v State of Assam 264
Juwar Singh v State of MP. 317

K
K. Hashim v State of T.N. 76,298
K. Ramachand Reddy v Public Prosecutor 136,137
Kaka Singh v State of M.P. 136,147
Kalu Mirza v Emperor 51
Kamla v State of Punjab 135
Kamti Devi v Poshi Ram 258
Kannan Singh v State of T.N. 295
Kans Raj v State of Punjab 142
Kanti Devi v Poshi Ram 253
Kapoor Singh Rana v State of Delhi 34
Karan Singh (Dr.) v State of J&K 83
Kehar Singh v Delhi Admn. 70
Keshoram v State 97
KHUSHAL RAO v STATE OF BOMBAY 143,146
Kishan Lai v State of Rajasthan 99,149
Koli Lakhmanbhai v State of Gujarat 330
Krishna Ayyar v Balakrishana Ayyar 341
Krishna Mohan Kul v Pratima Maity 234
Krishna Pillai v State of Kerala 279
KUSA v STATE OF ORISSA135,145

L
L.K. Advani v CBI 156
Lakhmi v Haider 9
Lakshmi v Om Prakash 136,151
Lai Singh v State of Gujarat 103
Lalit Popli v Canara Bank 173
Lallubhai v State of Gujarat 146
Laxman Naik v State of Orissa 14
Laxman v State of Maharashtra 148,152
Laxmi Raj Shetty v State of T.N. 45,201
Leela Srinivasa Rao v State of Andhra Pradesh 331
LIC of India v Anuradha 233
LIMBAJI v STATE OF MAHARASHTRA 245,247
Lokeman Shah v State of W.B. 97
Lolo v Durghatiya 249
 Law of E v i d e n c e

H
M. Narsingha Rao v State of Andhra Pradesh 20,243
M.C. VERGHESE vT.J. PONNAN 283,285
M.M. Chetti v Coomaraswamy 83
M.O. Shamsuddin v State of Kerala 295
M.P. State Agro Industrial Dev. Corpn. v S.C. Pandey 268
M.P. Sugar Mills v State of U.P. 265
Madhuri Patel vAddl. Commissioner, Tribal Development 266
Madnappa v Chandramma 266
Mafabhai N. Raval v State of Gujarat 170
Magraj Patodia v R.K. Birla 27,66
Mahabir Prasad v Surinder Kaur 65
Mahmood llahi v State of U.P 136
Makhan Singh v State of Punjab 99
Malkhan Singh v State of M.P. 46
Manager, Reserve Bank of India v S. Mani 226
Maryland v Santra Aun Craig 15
Matru v State of U.P. 44
Mausam Singha Roy v State of W.B. 21
Mayo v Mayo 86
McQuaker v Goddard 182
Mercantile Bank of India Ltd. v Central Bank of India Ltd. 263
MIRZAAKBAR v EMPEROR 71,75
Mohan Lal v State 321
Mohan Lal v State of Maharashtra 136
Mohan Singh v State of M.P. 169
Mohanlal Gangaram Gehavi v State of Maharashtra 148
MOHD. INAYATULLAH v STATE OF MAHARASHTRA 111
MOHD. KHALID v STATE OF W.B. 72,312
Mohd. Zahid v State of T.N. 170
Moti Lal v Yar Md. 270
Muhammad Sharif v Bande Ali 233
Munic. Corpn. Delhi v Jagan Nath Ashok Kumar 5
Munnu Raja v State of M.P. 151
Munshi Prasad v State of Bihar 49
Murari Lal v State of M.P. 168,173,196
Muthuswamy v State 118

N
Nageshwar Krishna Ghobe v State of Maharashtra 16
Nankhu Singh v State 322
Narain Singh v State of Haryana 148
Naraindas v Papammal 213
NARAYAN CHETANRAM CHAUDHARY v STATE OF MAHARASHTRA 296
Narayan v Ciate of Punjab 343
Narbada Devi Gupta v Birendra Kumar Jaiswal 225
National Textile Workers' Union v PR. Ramakrishnan 16
Neelkantan v Mallika Begam 226
Nirmal Kumar v State of U.P. 278
Nishi Kant Jha v State of Bihar 97
North Eastern Railway v Hastings 221
XX Law of E v i d e n c e

0
Oriental Fire & Gen. Ins. Co. v Bondili 246 Oza v State of Bihar
135

P
P. Bikshapathi v State of A.P. 242
P.G. Eshwarappa v M. Rudrappa 157
PV. RADHAKRISHNAv STATE OF KARNATAKA 146
Padnappa v Shivlingappa 344
Paka Venkaiah v Takuri Buchi Reddy 226
Pakala Narayan Swamiv Emperor 95,134,141
Pakkirisamy v State of T.N. 119
Palvinder Kaur v State of Punjab 96
Pandu Khadia v State of Orissa 98
Pandurang Jivaji Apte v Ramchandra 246
Pandurang Kalu Patil v State of Maharashtra 113,115
Paparambaka Rosamma v State of A.P. 152
Parmeshwari Devi v State 318
Parvinder Singh v Renu Gautam 218
PATEL HIRALAL JOITARAM v STATE OF GUJARAT 138
Phoolchand Garg v Gopaldas Agarwal 340
Piara Singh v State of Punjab 169
Pickard v Sears 262
Piyare Lai v State of Rajasthan 119
Prabhu v State of UP 110
Praful B. Desai 5
Prakash Chand v State 300,326
Pramod Mahajan Murder case 149
Praveen Kumar v State of Karnataka 243
Prem Thakur v State of Punjab 13
PULUKURI KOTTAYAv EMPEROR 108
Punjab Singh v State of Haryana 169
Pushpa Datta Mishra v Archana Mishra 228,229
Pushpadevi v M.L. Wadhawan 27
Pyare Lai v State of Rajasthan 101
Pyarelal v Devi Shanker 315

Q
Quammaral Islam v S.K. Kanta 67 Queen Empress v
Abdullah 41,133 Queen Empress v Babu Lai 103 Queen
Empress v Danoghue 284 Queen Express v Ishari 343

R
R. Janakiraman v State 218 R.Maniv State of T.N.
149 R. v Baskerville 294 R. v Blake & Tye 72,79 R.
v Christou 27 R. vDaye 18 R. v Foster 32
 Law of
Evidence

R. v Hardy 79
R. v Jarvis 101
R. v Lester 106
R. v Petcherini 89
R.v Pike 135
R. v Sang 27
R. vSleeman 102
R. v Storey 97
R. v Sutton 337
R. V. Venkatachala Gounder v A. Viswearaswami 190
R. Venkatesan v State 66
R.K. Jain v Union of India 288,289
R.K. Rama Rao v State of A.P. 265
R.M. MALKANI v STATE OF MAHARASHTRA 65
R.S. MADNAPPAvCHANDRAMMA268
Rabindra Kumar Dey v State of Orissa 230,330
Rabisankar v Orissa State Fin. Corpn. 265
Rahim Beg v State of U.P. 98
Rajasthan S.R.T.C. v Nand Kishore 198
Rajendra Kumar v State of U.P. 246
Rajendra Singh v State of Bihar 321
Rajkumar Rajendra Singh v State of H.P 210
Ram Bharose Sharma v Mahant Ram Swaroop 83
Ram Bharose v State of U.P. 283
Ram Bihari Yadav v State of Bihar 26,151
Ram Chander v State of Haryana 341
RAM NARAIN v STATE OF U.P. 172
Ram Narayan Popli v CBI 76,79
Ram Nath Madho Prasad v State of M.P. 146
Ram Ratan v Bittan Kaur 329
Ram Singh v Col. Ram Singh 67
Ram Swaroop v State 167
Ramachandran v Y. Theva Nesom Ammal 219
Ramadhar Basu v State of W.B. 299,310
Ramakant Rai v Madan Rai 12,171
Ramakrishna v Gangadhar 204
Rambai v State of Chhattisgarh 152
Rameshwar v State of Rajasthan 295,335
Rammi v State of MP. 317,322
Ramnath v State of T.N. 46
Ramsewak v State of M.P. 316
Ramswaroop v State of Rajasthan 201
Ranjitsingh Brahamajeetsingh Sharma v State of Maharashtra 171
Raoji v State of Maharashtra 135
Ratan Gond v State of Bihar 133
Ratansinh Dalsukhbhai Nayak v State of Gujarat 278
Rattan Singh v State of Himachal Pradesh 33,140
Ratten v The Queen 31
Ravi Ghander v State of Punjab 152
Ravi v State of Tamil Nadu 148
Ravinder Singh v State of Haryana 295
Razik Ram v Jaswant Singh 22
xxii Law of E v i d e n c e

Re Dannu Singh v Emperor 134

Reetanjali Pati v Board of Sec. Education 275
Reg v Prabhudas 50
Rita Lai v Raj Kumar Singh 270
ROOP KUMAR v MOHAN THEDANI 208,210,215
Rumping v Dir. of Public Prosecutions 286

S. Saktivel v M. Venugopal Pillai 219

S. Venugopal vA. Karrupusami 85
S.K. Belalv State 167
S.K. Sharma v Mahesh Kumar Verma 270
S.P Gupta v Union of India 288
Sahoo v State of UP. 118
Salim Akhtar v State of U.P 115
Samir v State of West Bengal 241
Sanatan Gauda v Berhampur University 275
Sanjay Dutt v State 231
Sanmugam alias Kulandai Veilu v State of T.N. 152
Santa Singh v State of Punjab 51
Sara Veeraswami v Talluri Narayya 214
Sardar Sardul Singh v State of Maharashtra 69
Sardul Singh Caveeshar v State of Bombay 75,333
Sarvan Singh v State of Madras 120
Sashi Jena v Khandal Swain 334
Sat Paul v Delhi Admn. 329
Satbir Singh v State of Punjab 101
Satrucharla Vijaya Ram Raju v Nimmaka Jaya Raju 85
Secy, of State v Tatya Holkar 263
Sethu v Palani 252
Shabad Pulla Reddy v State of A. P. 97
Shahnaz v Dr. Vijay 245
Shankarv State of T.N. 120
Shanti Kumar Panda v Shakuntala Devi 162
Sharad Birdhichand Sarda v State of Maharashtra 134,139,185
Sharrighan v State of M.P 250
Shashi Nayar v Union of India 182
Sheikh Mehboob alias Hetak v State ofJWaharashtra 150
Shyamdas Kapur v Emperor 341
Sida Nitinkumar v Gujarat University 264
Sidharth v State of Bihar 76
Sita Ram v State 104
Sivakumar v State 99
SJE Benezer v Velayudhan 225
Smt. Dukhtar Jahan v Mohammed Farooq 256
SOMWANTI v STATE OF PUNJAB 258
Sri Krishna v Kurushetra Univ. 275
State (NCT of Delhi) v Navjot Sandhu 76,95,106,116,190
State Govt, of Delhi v Sunil 105
State of A.P. v Gangula Satya Murthy 106
State of A.P. v Vasudeva Rao 235
State of Assam v M. Ahmed 137
 Law of Evi dence

State of Bihar v Laloo Prasad 329

State of Bihar v P.P. Sharma 245
State of Gujarat v Mohd. Atik 76
State of Gujarat v V.C. Patni 173
State of H.P.vJai Lai 167
State of H.P. v Jeet Singh 112,116
State of H.P. v Prem Chand 46
State of H.P. v Shree Kant Shekari 226
State of Haryana v Bhagirath 170
State of Haryana v Jagbir Singh 196
State of Haryana v Rajinder Singh 97
State of Karnataka v David Rozario 116,243
State of Karnataka v K. Yarappa Reddy 337
State of Karnataka v M.V. Manjunathagowda 241
State of Karnataka v R. Yarappa Reddy 328
STATE OF KARNATAKA vSHARIFF 147,150
State of M.P. v Dharkole 21,312
State of M.P. v Sanjay Rai 171
State of Maharashtra v Bharat Fakira Dhiwar 112,116
State of Maharashtra v C.K. Jain 279,302
State of Maharashtra v Damu 115
State of Maharashtra v Md. Yakub 20
STATE OF MAHARASHTRA v PRAFUL B. DESAI (DR.) 15
State of Maharashtra v Suresh 114
State of Punjab v Amarjit Singh 151
State of Punjab v Gurdeep Singh 99
State of Punjab v Gurmit Singh 324
State of Punjab v Kamail Singh 232
State of Punjab v S.S. Singh 339
State of Punjab v Sukhdev Singh Sodhi 287
State of Rajasthan v Ani 342
State of Rajasthan v Bhup Singh 108
State of Rajasthan v Mahavir Oil Mills 268
State of T.N. v J. Jayalalitha 77
State of T.N. v Kutty 119
State of T.N. v Nalini ("Rajiv Murder case") 76
State of T.N. v Suresh 309
State of U.P. v Anil Singh 311
State of U.P. v Babu Ram 38
State of U.P. v Madan Mohan 148
STATE OF U.P. v RAJ NARAIN STATE OF U.P. v RAJ NARAIN 288
State of U.P. v Ram Sagar Yadav 147
State of U.P. v Ramesh Prasad Mishra 330
State of U.P. v Ravindra Prakash Mittal 12
State of W.B. v Orilal Jaiswal 241
State v Madhukar Keshav Maity 119
State vMani 14
State v S.J. Choudhary 16
Subhra Mukherjee v Bharat Coking Coal Ltd. 226,227
Sucha Singh v State of Punjab 232
SUDHAKAR v STATE OF MAHARASHTRA 141
Suk Bahadur Subba v State of Sikkim 279
XXIV Law of E v i d e n c e

SUKHAR v STATE OF UP. 32

Sukhwant Singh v State of Punjab 316
Surajdeo Oza v State of Bihar 148
Surat Chunder Dey v Gopal Chander Laha 263
Surendera Prasad v State of Bihar 108
Surendra Kumar Vakil v Chief Executive Officer 162
Surendra Narain v State of U.P. 45
Suresh Chandra Bahri v State of Bihar 295,297
Suresh Pal v State of Haryana 264
Suresh v State of Maharashtra 240
I T. Lakshmipathi v
P. Nithyananda Reddy 270 Tapan Das v Sasti Das 322 Tarseem
Kumar v Delhi Admn. 38 Tirumala Tirupati Devasthanams v K.M.
Krishniah 53 Tulsi Ram Sahu v R.C. Pal 329 Tushar Roy v Sukla
Roy 254

Umedbhai v State of Gujarat 13

Union of India v K.S. Subramaniam 267
Union of India v Mokshi Builders 94
Union of India v Nirmal Singh 188
Union of India v Savita Sharma 279
Univ. of Madras v Sundara Shetti 274
Uttam Singh Duggal & Co. Ltd. v United Bank of India 83

Varkey Joseph v State of Kerala 319

Vasa Chandrasekhar Rao v Ponna Satyanarayana 34
Vashu Deo v Balkrishan 270
Vasu v Santha 255
Veera Ibrahim v State of Maharashtra 97,123
Vidhyadhar v Manikrao 12
Vijayan v State 328
Vijender v State of Delhi 335
Vilas Pandurang Patil v State of Maharashtra 99
Vimal Bai v Hiralal Gupta 156
Vinayak Shivajirao v State 99
Virendra Nath v Mohd. Jamil 183
Vishnu v State of Maharashtra 171
W Wakil
Singh v State of Bihar 312 Wilayat Khan v State 170
Y Yusufalli v
State of Maharashtra 65
Z Zahira Habibullah
Sheikh v State of Gujarat 277
 1
Introduction

Substantive and Procedural Laws1

Laws may be divided into substantive and procedural laws. The laws by
which rights, duties and liabilities are defined are called substantive laws e.g.
I.P.C. (which defines several offences and also lays down the punishment for
such offences). The laws which prescribe the mode by which the application
of the substantive law is regulated are called procedural laws e.g. Cr.P.C. The
procedural laws can be further divided into two parts: firstly, there are rules
dealing with various procedures to be followed in a court of law. Secondly,
there are rules dealing with the mode of the proof of the existence or
otherwise of rights, duties and liabilities e.g. Evidence Act
The object of every judicial investigation is enforcement of some right
or liability which invariably depends upon certain facts. Law of evidence is a
system of rules for ascertaining the controverted questions of facts in judicial
inquiries. The substantive law merely defines what facts go to constitute a
right or liability. The law of evidence inquires into these facts; it is a
procedural law which provides, inter alia, how a fact is to be proved.
The law of evidence bears the same relation to a judicial investigation
as logical to the reasoning. However, there are limitations on the free process
of reasoning in the form of certain rules or principles. The law

1. How substantive law is different from procedural law? Explain briefly while
taking the example of the Indian Evidence Act, 1872. [D.U.-
2007]

Ml
2 Law of E v i d e n c e

of evidence is a system of rules which a court has to follow. The law of

evidence is basically procedural and does not affect" substantive right of
parties. However, it has here and there overtones of substantive law. For
example, the law of estoppel can defeat a man's right. It shuts his mouth. It
would not permit him to speak of his rights.

Role of law of Evidence in Civil/Criminal proceedings

The rules of law of evidence for civil and criminal cases are, in general, the
same e.g. the method of proving that a particular person is dead in respect of
civil case (person executing the will died or not on a particular date) or
criminal case (a person charged with murder). But, there are certain sections
of Evidence Act which apply only to the civil cases (e.g. Ss.115 -117 dealing
with estoppel) and some only to the criminal cases (e.g. Ss. 24-30 dealing
with confessions).
The method of proving (i.e. burden of proof is on the prosecution
/plaintiff) is same in both, but there is a marked difference as to the effect of
evidence (or weight of evidence) in civil and criminal cases. There are
marked variations in standards of proof in civil and criminal cases (discussed
later).

Criticism of Law of Evidence

A crucial question is: Does this elaborately framed code of law of evidence
give any assistance to the judge, whether and how far he ought to believe
what the witness say? The answer is a judge cannot absolutely rely on the
rules of evidence.
No rule of evidence can guide the judge on the fundamental question
of whether evidence as to a relevant fact should be believed or not; and if
believed what inference to be drawn from it as to the main fact. Again, the
rules of evidence are not rules of logic - they throw no light at all on a further
question of equal importance to the one first stated.
Rules of evidence are artificial. The best guide of judge on a question
is his own common sense and experience of human nature. A person ignorant
of those rules may give a much better answer than a judge.
Owing to the difficulty and abstruseness of the doctrines propounded,
the courts are less eager to entertain and the lawyers are diffident to urge,
Introduction 3

the questions of law of evidence which requires closer and critical

study of the provisions of Evidence Act. It is suggested that the rules
of evidence should not be pedantic nor should discretion be too wide.

Law of Evidence in India

The word 'evidence' is derived from the Latin word evident or evidere,
which means "to show clearly, to discover clearly, to ascertain, to
prove". Historically described as child of the jury system, the system
associating with the judge "twelve men" in the administration of
justice.
The object of rules of evidence is to help the courts to ascertain
the truth, to prevent protracted inquiries, and to avoid confusion in the
minds of judges, which may result from the admission of evidence in
excess. Thus, the Indian Evidence Act, 1872 was passed with the main
object of preventing indiscipline in the admission of evidence by
enacting a correct and uniform rule of practice.
There are three main principles which underlie the law of evidence:-
(i) Evidence must be confined to the matters in issue.
(ii) Hearsay evidence must not be admitted.
(iii) The best evidence must be given in all cases.
The Indian Evidence Act, 1872 is mainly based on the English law of
evidence. It was drafted by Sir James Stephen.- The Act is not
exhaustive i.e. it does not purport to contain all the rules of evidence.
For the interpretation of the sections of the Act, the courts can look to
the relevant English common law. However, the courts cannot import
any principle of English law which is inconsistent with what is laid
down by the Act.

Scheme of the Indian "Evidence Act, 1872

The Indian Evidence Act is divided into three main Parts:
(I) Relevancy of Facts (Chapter I containing Sees. 1-4 deals with
preliminary points; Chapter II deals with 'what facts may and
may not be proved' - Sees. 5-55).

2. Who drafted the Indian Evidence Act, 1872? [D. U. -2007]

4 Law of E v i d e n c e

(II) Mode of Proof (Chapters III to VI deals with 'how are the relevant
facts to be proved', etc. - Sees. 56-100).
(III) Production and Effect of Evidence (Chapters VII to XI deals with 'by
whom and in what manner must the evidence be produced' - Sees.
101-167).
The provisions of the Indian Evidence Act are intended to separate the grain
from the chaff, and secure for the consideration of the court the best
evidence. Till 2000, nineteen amendments have been made in the Act.

Application of the Indian Evidence Act, 1872

The Act applies to all judicial proceedings in or before any court, including
courts-martial (except under the Army Act, Naval Discipline Act and Air
Force Act), but not to affidavits presented to any court or officer, nor to
proceedings before any arbitrator. It shall come into force on 1st September
1872 (Sec. 1).
The Act applies to judicial inquiries only and not an administrative
inquiry. An enquiry is judicial if the object of it is to determine a jural
relation between the parties. A judicial proceeding is one in the course of
which evidence is or may be legally taken on oath [Sec. 2 (i), Cr.P.C.]. An
execution proceeding is a judicial proceeding, but a contempt proceeding is
not. Proceedings under the Income Tax are not judicial proceedings under
this Act, but proceedings before Industrial Tribunal has been held to be
judicial proceeding.
For the purposes of the Evidence Act, an inquiry is judicial if it is
under an obligation to take evidence from both sides, to hear both sides and
then to formulate a judgment by the use of discretion. Such an inquiry is
different from a fact-finding inquiry in which only discovered facts have to
be recorded and there is to be no use of discretion i.e. an administrative e
inquiry.
The Act does not apply to 'affidavits' because the deponent's assertion
of facts on the basis of his personal knowledge does not constitute
'evidence'. An affidavit is, however, used as a mode of proof. It can become
evidence only by consent of the party or if specifically authorized by any
provision of law viz. Order 19, C.P.C.; Sees. 295-297, Cr.P.C.
5
Introduction

Further, arbitrators have to follow the principles of natural justice but

they are not bound by the law of evidence (Munic. Corpn. Delhi
vjagan Nath Ashok Kumar AIR 1987 SC 2316). Still further, the
Evidence Act has no application to enquiries conducted by the
tribunals, even though they may be judicial in character; such
tribunals follow rules of natural justice.
Lexfory - Law of evidence is the lex fori i.e. law of the forum (or
court) in which a case is tried ('law of the place of the action').
Whether a witness is competent or not; whether certain evidence
proves a fact or not; that is to be determined by the law of the country
where the question arises, where the remedy is sought to be enforced
and where the court sits to enforce it.
Where evidence is taken in one country in aid of a suit or action
(proceeding) in another country, either on ordinary commission or
with the assistance of the local courts, the law applicable to the
recording of evidence, would be the law prevailing in the country
where the proceeding is going on [Praful B. Desai (2003) 4 SCC 60].

Repeal of Enactments
Sec. 2 (1) repealed all rules of evidence which were not contained in
any Statute, Act or Regulation in force in any part of British India.
Before passing of the Indian Evidence Act, the rules of evidence were
governed by the rules of English Common Law, Hindu and
Mohammedan Laws, and the rules of Equity, Justice and Good
Conscience. Sec. 2 (1) repealed all those rules of evidence.
The Repealing Act, 1938, has repealed Sec. 2 and Schedule.

The Act a Complete Code

The Indian Evidence Act, 1872 is mainly based on the English law of
evidence. The Act consolidates, defines and amends the law of
evidence. The Act, however, is not exhaustive, i.e. it does not purport
to contain all the rules of evidence. For the interpretation of the
sections of the Act, the courts can look to the relevant English
common law. However, the courts cannot import any principle of
English law which is inconsistent with what is laid down by the Act.
6 Law of E v i d e n c e

The law of evidence is contained in the Evidence Act and in other

Acts and Statutes which make specific provisions on matter of evidence viz.
Order XXVI, C.P.C.; Sees. 291-292, Cr.P.C; Sees. 59 and 123, T.P. Act. It
may be noted that the Evidence Act deals with the particular subject of
evidence and is a 'special' law. Hence, no rule about the relevancy of
evidence contained in the Evidence Act is affected by any provision in the
Cr.P.C. or any other enactment unless it is so specifically stated in the Code
or it has been repealed or annulled by another statute.
Evidence excluded by the Evidence Act is inadmissible even if it
seems essential for ascertainment of truth. Further, parties cannot contract
themselves out of the provisions of the Act. Likewise, a court cannot on the
ground of public policy, exclude evidence relevant under this Act.

DEFINITIONS: INTERPRETATION CLAUSE

In this Act the following words and expressions are used in the following
sense unless a contrary intention appears from the context: "Court"; "Fact";
"Relevant"; "Facts in Issue"; "Document"; "Evidence"; "Proved";
"Disproved"; "Not Proved"; "India" (Sec. 3).

Court
"Court" includes all Judges and Magistrates and all persons, except
arbitrators, legally authorized to take evidence. This definition is not
exhaustive.
It may be noted that in a trial by jury, the Court includes jury. A Court
does not include an arbitrator though he is legally authorized to take
evidence.

Fact3
"Fact" means and includes -
(1) any thing, state of things, or relation of things, capable of being
perceived by senses [i.e. external facts; illustrations (a), (b) and
(c)],

3 What is a fact? How is it different from 'fact in issue'? Give two illustrations
of
each. [D.U.-
2009]
Introduction 7

(2) any mental condition of which any person is conscious

[internal facts; illustrations (d) and (e)].

Illustrations
(a) That there are certain things arranged in a certain order in a
certain place, is a fact.
(a) That a man heard or saw something is a fact.
(b) That a man said certain words is a fact.
(b) That a man holds a certain opinion, has a certain intention,
acts in good faith, or fraudulently, or uses a particular word in
a particular sense, or is or was at a specified time conscious
of a particular sensation, is a fact.
(c) That a man has a certain reputation is a fact.
Law has not merely to deal with things physically but also with things
which are so hidden as to be beyond physical observation, such as, a
state or condition of a person's mind. Thus, intention, fraud, good
faith, negligence, etc. are facts.4 It has been said that "a state of man's
mind is as much a fact as the state of his digestion". The state of
person's health is a fact. The psychological facts can only be proved
by circumstantial evidence.
The facts may be positive or negative. The existence of a certain
state of things is a positive fact; the non-existence of it is a negative
fact.
The fact sought to be proved {factum probandum) is called
"principal facts", the facts which lead to establish it are called
'evidentiary facts' (factum probans).

Facts in Issue5
"Facts in issue" means and includes - (1) any act from which either by
itself or in connection with other facts, the existence, non-existence,

4. Give an example of 'fact' which is not capable of being perceived by the senses.
[LCI 1-2006]
5. Write a short note on 'Facts in issue'. [LC.1-94/95; L.C.II-
94/95]
Distinguish between 'fact in issue' and 'relevant facts.' [D.U.-2007]
8 Law of E v i d e n c e

nature or extent of any right, liability or disability, asserted or denied in any

suit or proceeding, necessarily follows, (2) any fact asserted or denied in
answer to an issue of fact recorded under the Civil Procedure Code.
Facts which are in dispute are facts in issue. Evidence becomes
necessary only in reference to facts which are in controversy or dispute
between the parties. Further, the fact should be such that the question of
right/liability should depend upon it. The following illustration makes clear
the point:-
"A is accused of the murder of B". At his trial the following facts may
be in issue - that A caused B's death; that A intended to cause B's death; that
A had received grave and sudden provocation from B; that A at the time of
doing that act which caused B's death, was, by reason of unsoundness of
mind incapable of knowing its nature.
Thus, every fact which a plaintiff must prove in order to get
adjudication in his favour, or which a defendant may prove to defeat the suit,
becomes a fact in issue. Facts in issue will depend upon the provisions of the
substantive law applicable to the offence. If, for example, the action is for the
tort of negligence, such of the ingredients of liability for negligence which
are in dispute shall be the facts in issue. If the plaintiff alleges that the
defendant was under duty of care towards him and the defendant denies the
fact, this fact will be a fact in issue between the parties. Thus, facts in issue
depend upon the ingredients of the offence and the state of the parties'
pleadings. A fact in issue is called the 'principal' fact; or factum probandum.
In criminal matters, the allegations in the charge-sheet constitute the
facts in issue. In civil matters, the process of ascertaining facts in issue is
known as framing issues. The 'issue of fact' under C.P.C. is equal to the 'fact
in issue' of the Evidence Act.
Whatever be the facts in issue, there existence has to be proved to the
satisfaction of the court before the court can be called upon to pronounce a
judgment on the basis of those facts.
Introduction 9

Relevant Facts6
"One fact is said to be relevant to another when the one is connected
with the other in any of the ways referred to in the provisions of chis
Act relating to the relevancy of facts", viz.
(I) facts logically connected with facts in issue (Ss. 6-16),
(II) admissions and confessions (Ss.17-31),
(III) statements by non-witnesses (Ss. 32-
33),
(IV) statements under special circumstances (Ss. 34-38),
(IV) judgment in other cases (Ss. 40-44),
(V) opinions of third persons (Ss. 45-51),
(VII) evidence as to character (Ss. 52-55).
It is to be noted that the section does not define the term "relevant".
Rather, it simply indicates when one fact becomes relevant to another.
Normally, facts relevant to an issue ate those facts which are necessary
for proof or disproof of a fact in issue. Thus, relevant facts (or
evidentiary facts) or factum probans are those which are capable of
affording a reasonable presumption as to either the facts in issue or the
principal matters in dispute. The word 'relevant' has been held to be
'admissible' (Lakbmi v Haider, 3 CWN 268). Relevant facts are not
themselves in issue, but are foundations of inferences regarding them.
For example, "when A is accused of the murder of B", the
'relevant facts' are - A had a motive and opportunity to kill B, he had
made preparations by buying a knife, etc., or after the murder he was
seen running with blood-stained knife in hand.
Relevancy implies relationship and such relationship with the
facts in issue as convinces or has a tendency to convince the judge as
to the existence or otherwise of the facts in issue. The word 'relevant'
means that any two facts to which it is applied are so related to each
other that according to the common course of events one taken by
itself or in connection with other facts proves or renders probable the
existence or non-existence of the other. It may be noted that
circumstantial evidence

6. Write a short note on 'Relevant facts' [LC./-95; L.C.II-94/95\

10 Law of Evidence

is evidence that relates to facts, other than those in issue, which by human
experience, have been found to be so associated with the fact in issue that the
latter may be reasonably inferred there from.

Evidence7
"Evidence" means and includes:-
(1) all statements which the court permits or requires to be made before
it by witnesses, in relation to matters of fact under inquiry
{oral/ocular evidence).
(2) all documents produced for the inspection of the court (documentary
evidence); (a document is evidence only when it is produced for the
inspection of the court." A writing obtained by the court for the
accused for comparison is not evidence as it is not a document
produced for the inspection of the court).
This is not a real definition of the term "evidence", but is rather a statement
of what the term "evidence" includes. The word 'evidence' implies the state
of being evident i.e. plain, apparent or notorious; but it is applied to that
which tends to render evidence or generate proof of a fact. The term
'evidence' means anything by which the alleged matter or fact is either
established or disproved. Anything (exclusive of mere argument) that makes
the thing in question evident to the court is evidence.
For example, where the question is whether an explosion took place
before a fire occurred. The noise of the explosion and its flash are evidence
of it. Persons who saw the flash or heard the noise can give evidence of the
fact of the explosion. If the happening of a fact is recorded on anything apart
from human memory, that record is also an evidence of the happening.
The definition as given here includes only two kinds of evidence, i.e.,
statements of witnesses and documents. But this does not mean that there
cannot be any other kind of evidence. For example, when the judge inspects
the scene of occurrence and draws a chart of it that is also evidence though it
is neither an oral statement of a witness nor a document produced by the
parties. But in a way it is a document.

7. Write a short note on'Definition of Evidence'. [LC./-94/95]

Introduction 11

The definition of 'evidence' given in the Evidence Act is

incomplete and defective. It excludes the statements and admissions of
the parties, their conduct and demeanour (outward behaviour) before
the court, circumstances coming under the direct cognizance of the
court, facts of which the court can take 'judicial notice' of and the fact
which the court must or may presume. The confession of an accused
person is not evidence in the ordinary sense of the term, as defined in
this section (as not taken on oath and not subject to cross-examination)
though it has to be given due consideration in deciding the case.
Similarly, the confession of a co-accused has to be regarded as
amounting to evidence in a general way, because 'whatever is
considered by the court is evidence'; circumstances which are
considered by the court as well as probabilities do amount to evidence
in that generic sense {Haricharan Kurmi v State of Bihar, AIR 1964 SC
1184).
Similarly, statements of parties when examined otherwise than as
witnesses, material objects other than documents, etc. are not evidence
according to the definition given in Sec. 3, but these are matters which
the court may legitimately consider. The definition given in Sec. 3 is,
however, exhaustive in the sense that every kind of evidence can
ultimately be reduced either to the category of oral or documentary
evidence.
Difference between 'evidence' and 'proof- The word 'evidence' includes
all the legal means, exclusive of mere argument, which tend to prove or
disprove any matter or fact, the truth of which is submitted to judicial
investigation. 'Proof is the establishment of fact in issue by proper legal
means to the satisfaction of the court. It is the result of evidence, while
evidence is only the medium of proof.

Appreciation of Evidence
Whatever be the kind of evidence, namely, whether facts are reported
to the court through the mouth of a witness or by means of a document,
in either case the court has to examine the reliability quotient of the
evidence produced. This is called "appreciation of evidence". Evidence
is required to be appreciated to find out what part of it represents the
true and correct state of things. It is the function of separating the grain
from the chaff [Ganesh K. Gulve v State of Maharashtra AIR 2002 SC
3068]. Evidence is to be tested by its inherent consistency and inherent
12 Law of E v i d e n c e

probability of the prosecution story [Ramakant Rai v Madan Rai AIR 2004
SC 77].
When a party to the suit does not give evidence and does not offer
himself for cross-examination, a presumption would arise that the case set up
by him is not correct [I Idhyadharv Mamkrao AIR 1999 SC 1441].

Different Kinds of Evidence

There are different types of evidence:
(1) Direct evidence - It is the testimony of the witnesses as to the
principal fact to be proved e.g. the evidence of a person who
says that he saw the commission of the act which constitutes the
alleged crime. It also includes the production of an original
document.
It means any fact which without the intervention of any other fact proves the
existence of a fact in issue. The fact of a marriage, for example, between
certain persons may be proved by producing the wedding photographs.
Direct evidence is generally of a superior cogency; its greatest advantage is
that there is only one source of error, namely, fallibility of testimony.
(2) Circumstantial evidence* - It is the testimony of a witness to other
relevant facts from which the fact in issue may be inferred. In
cases based on circumstantial evidence, such evidence should be
so strong as to point unmistakably to the guilt of the accused.
'Circumstantial evidence' includes all the relevant facts. It is not
secondary evidence; it is merely direct evidence applied indirectly.
In State of U.P. v Ravindra Prakash Mittal (AIR 1992 SC 2045) the court laid
down:
i) The circumstances from which the conclusion is drawn should be
fully established.
(ii) The circumstances should be conclusive in nature.
(iii) All the facts so established should be consistent only with the
hypothesis of guilt and inconsistent with innocence of the
accused.

8. Discuss: Value and proof of Circumstantial evidence'. [DU.-2010]

Introduction 13

(iv) The circumstances should, to a moral certainty, exclude the

possibility of guilt of any person other than the accused.
In the absence of direct evidence, a person can be convicted on the
basis of circumstantial evidence alone if the conditions mentioned
above are satisfied (Umedbhai v State of Gujarat AIR 1978 SC 424). In
appreciating a case based on circumstantial evidence, one circumstance
by itself may not unerringly point to the guilt of the accused. It is the
cumulative result of all the circumstances which could matter (Gade
Lakshmi Mangraju v State ofA.P. AIR 2001 SC 2677). Thus, there must
be a chain of evidence so complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that, within all human probability, the
act must have been done by the accused (Hanumant Govind
Nargundkar v State ofM.P. AIR 1952 SC 343).
Sometimes the facts happen suddenly and do not leave behind
much direct evidence. In such cases the main event will have to be
reconstructed before the court with the help of the surrounding
circumstances such as the cause or the effects of the event.
Circumstances sometimes speak as forcefully as does the direct
evidence. For example, there is a quite little village touched by a road
which ends there. Occasionally a driver who belongs to the village
comes there with his lorry for night rests. The night, on which the truck
came, a man of the village was found lying dead by the road-side. The
position of his body and the nature of injuries leave on doubt that he
was dragged by a vehicle for a little distance and then one wheel ran
over him. There was no dust storm, rain or mist to obstruct visibility.
From these circumstances certain facts may reasonably be inferred and
many others can be safely presumed as a matter of probability. The
facts tell the story beyond a shadow of doubt that it is the work of the
village lorry and that it must have been negligently handled.
Where the circumstantial evidence only showed that the accused
and deceased were seen together the previous night, it was held to be
not sufficient (Prem Thakur v State of Punjab AIR 1983 SC 446). The
Kerala High Court has observed that, in a murder case, just because the
doctor conducting the autopsy is not in a position to give a definite
opinion regarding the cause of death, the court does not become
helpless. It can still convict the accused on the basis of other
circumstantial evidence
14 Law of E v i d e n c e

(State v Mani, 1992 Cr LJ 1682). In Laxman Naik v State ofOrissa (AIR

1995 SC 1387), the conviction and sentence of death sustained on the basis
of circumstantial evidence showing an unbroken and complete chain of
events leading to the rape and murder of a seven year-old daughter of the
brother of the accused.
Unlike direct evidence, the circumstantial evidence suffers from
fallibility of inference. The weight of evidence varies according to the
number of independent facts supported.
(3) Real/personal evidence - It refers to any matter which the court
perceives itself e.g. that a man standing before a judge has got a
scar on his face, objects like murder weapon, bloodstained clothes,
photographs, etc. 'Personal' evidence is that which is afforded by
human agency.
(4) Hearsay evidence -It is also called derivative or second-hand
evidence. It is the testimony of a witness as to statements made out
of court which are offered as evidence of their own truth. Thus, A's
evidence that A heard that a murder had taken place is 'hearsay'
evidence.
(5) Primary evidence - It means the best or original evidence.
(6) Secondary evidence - It is an indirect evidence.9
(7) Positive/negative evidence - The former tends to prove the existence
of a fact, while the latter non-existence of a fact. Negative evidence
is ordinarily no good evidence.
(8) Oral evidence.
(9) Documentary evidence. Under Sec. 3, Evidence Act, evidence can be
both oral and documentary and 'electronic records' can be produced
as evidence.
(10) Conclusive evidence - Where the connection between the principal
and evidentiary fact is a necessary conclusion.
 9. What is the difference between primary evidence and secondary evidence?
[D.U.-2007]
Introduction 15

Evidence Recorded through Video-Conferencing

LEADING CASE: STATE OF MAHARASHTRA v PRAFUL B. DESAI (DR.)

[(2003) 4 SCC 601]
Fans and Issue - In this case, the complainant's wife was
suffering from terminal cancer. It is the case of prosecution
that the complainant's wife examined by Dr. Greenberg
(U.S.A.) who opined that she was inoperable and should be
treated only with medication. Thereafter, the complainant and
his wife consulted the respondent who is consulting surgeon
for the last 40 years. In spite of being made aware of Dr.
Greenberg's opinion, the respondent suggested surgery to
remove the uterus. The Maharashtra Medical Council in an
inquiry held the respondent guilty. The prosecution made an
application to examine Dr. Greenberg through video-
conferencing. The trial court allowed it; the respondent
challenged that order in the High Court. The High Court held
that as per Sec. 273, Cr.P.C, the evidence must be recorded in
the presence of the accused.
In this case, question for consideration was whether in a
criminal trial, evidence can be recorded by "video
conferencing."
Observations - The Supreme Court rejected the view taken by
the High Court and held that the High Court has failed to read
Sec. 273, Cr.P.C. properly. Sec. 273 provides for dispensation
from personal presence. In such cases, evidence can be
recorded in the presence of the pleader which is deemed to be
presence of the accused. Thus, Sec. 273 contemplates
constructive presence. This indicates that actual physical
presence is not must.
As to the question whether evidence can be recorded by
video-conferencing, the US Supreme Court in Maryland v
Santra Ann Craig [497 US 836 ^1990)] has held that
recording of evidence by video-conferencing was not a
violation of 6th Amendment (Confrontation Clause).
This court also observed that court must endeavour to
find out the truth. There would be failure of justice not only
by an unjust conviction but also by acquittal of the guilty for
16 Law of E v i d e n c e

unjustified failure to produce available evidence [Nageshwar Krishna

Ghobe v State of Maharashtra (1973) 4 SCC 23]. Justice Bhagwati in
the case of National Textile Workers' Union v P.R. Ramakrishnan (1983) 1
SCC 228 held that, Law cannot stand still, it must change with the
changing social concepts and values. If the law fails to respond to the
 need of changing society, then it will stifle the growth of the society and
choke its progress or if the society is vigorous enough, it will cast away
the law which stands in the way of its growth.
In State v S.J. Choudhary (1996) 4 SCC 567, it was held that the
Evidence Act was an ongoing Act and the word "handwriting" in Sec. 45
of that Act was construed to include "typewriting". On the same
principle, courts have interpreted, over a period of time, various terms
and phrases. Examples: "Telegraph" to include "Telephone"; "Banker's
books" to include "Microfilm"; "To take note" to include "Use of Tape
recorder"; "Documents" to include "Computer databases".
In BasavarajR. Patil v State ofKarnataka (2000) 8 SCC 740, the
question was whether an accused needs to be physically present in court
to answer the questions put to him by court whilst recording his
statement under Sec. 313, Cr.P.C. It was held that the section had to be
considered in the light of the revolutionary changes in technology of
communication and transmission and the marked improvement in
facilities for legal aid in the country. It was not necessary that in all cases
the accused must answer by personally remaining present in court.
In the present case, the court observed:
(l) Video-conferencing is an advancement in science and
technology which permits one to see, hear and talk with
someone far away, with the same facility and ease as if he
is present before you i.e. in your presence. Except for
touching, one can see, hear and observe as if the party is in
the same room. This is not virtual reality, it is actual reality.
Thus, in video-conferencing both parties are in the
presence of each other. It is clear that so long as the
accused
Introduction 1

and/or his pleader are present when evidence is

recorded by video-conferencing that evidence is
being, recorded in the "presence" of the accused.
(ii) Normally, when a commission is issued by the court
for the examination of a witness, the recordings would
have to be at the place where the witness is. If the
witness is outside India, arrangements are required
between India and that country because the services of
an official of the country (mostly a judicial officer)
would be required to record the evidence and to
ensure attendance. However, new advancement of
science and technology permit official of the court, in
the city where a videoconferencing is to take place, to
record the evidence. Thus, where a witness is willing
to give evidence, an official of the court can be
deputed to record evidence on commission by way of
videoconferencing.
(iii) The evidence will be recorded in the studio/court
 where the video-conferencing takes place. The
judicial officer shall ensure that the respondent and
his counsel are present when the evidence of Dr.
Greenberg is recorded and that they are able to
observe the demeanour and hear the deposition of Dr.
Greenberg. The officer shall also ensure that the
respondent has full opportunity to cross-examine Dr.
Greenberg.
(iv) It must be clarified that adopting such a procedure
may be possible if the witness is out of India and not
willing to give evidence.
Decision - Held that under Sec. 3, Evidence Act, evidence can be
both oral and documentary and electronic records can be produced
as evidence. This means that evidence, even in criminal matters,
can also be by way of electronic records. This would include video
conferencing.
18 Law of Evidence

Comments - Examination of witnesses through video-conferencing

has been approved in Bodala Murali Krishna v Smt. S. Bodala
Prathima (AIR 2007 A.P. 43). In Amitabb Bagchi v Ena Bagchi
(AIR 2005 Cal 11), the court said that there was no bar on
examination of a witness through video-conferencing. It was a case
for claim of pendente lite maintenance. The husband was
permanently living in America. His statement was allowed to be
recorded by the electronic evidence.]

Document10
The term "document" means any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those
means, intended to be used, or which may be used, for the purpose of
recording that matter.
Illustrations - (i) A writing, (ii) words printed, lithographed or photographed,
(iii) a map or plan, (iv) an inscription on a metal plate or stone, and (v) a
caricature - are all documents.
This definition of the word 'document' is similar to the one contained
in the Indian Penal Code. Stephen defines a 'document' as "any substance
having any matters expressed or described upon it by marks capable of being
read". Thus, letters imprinted on trees as evidence that they have been passed
by the Forest Ranger are documents.
In R. v Daye, the term 'document' was defined as "any writing or
printing capable of being made evidence, no matter on what material it may
be inscribed". Thus, the wooden scores on which bakers or milkman indicate
by notches the number of loaves of bread or quarts of milk supplied to their
customers are also documents - as much as more advanced computerised
methods of keeping accounts. A musical composition is also a document.
10. Explain the term 'Document' [LC.I-95/96\
Introduction 19

India
"India" means the territory of India excluding the State of Jammu and
Kashmir.

Proved
See under the Questions section.

FURTHER QUESTIONS

Q.1. (a) Explain the terms 'Proved', 'Disproved', and 'Not proved'.
[D.U.-2007/2011]

(b) Write a short note on 'Standard/Degree of proof in respect

of
civil/criminal proceedings'. [L.C.I
-94/95\
A.l. (a) Proved, Disproved, Not Proved (Sec. 3)
"A fact is said to be "proved" when, after considering the matters
before it, the court either believes it to exist, or considers its existence
so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does exists.
A fact is said to be "'disproved'" when, after considering the
matters before it, the court either believed that it does not exist, or
considers its non-existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that
it does not exist.
A fact is said to be "not proved" when it is neither proved nor
disproved."' It means neither the fact is proved with certainty nor the
fact is believed to exist. In other words, the man of ordinary prudence
neither believes that the fact exists nor he believes that the fact does not
exist.
These provisions of the Act deal with the degree or standard of
proof. These are the only provisions that deal with the matter.
Evidence of fact and proof of a fact are not synonymous terms.
Proof is the effect of evidence. 'Proof considered as the establishment
of material facts in issue in each particular case by proper and legal
20 Law of E v i d e n c e

means to the satisfaction of the court is effected by: (i) evidence or

statements of witnesses, admissions or confessions of the parties, production
of documents; (ii) presumptions; (iii) judicial notice; and (iv) inspection.
It may be noted that the word "matters" (and not the term evidence) is
used in the definition of the term 'proved' and 'disproved'. For instance, a fact
may be orally admitted in Court; such an admission would not come within
the definition of term 'evidence', yet it is a matter which the court, before
whom the admission was made, would have to take into consideration, in
order to determine whether the particular fact was proved or not proved. It is
because of the use of this wider term that a court can attach due weight to the
demeanour of a witness, i.e., the matter in which he gives evidence in the
court. In State of Maharashtra v McL Yakub (AIR 1980 SC 1111), it was
pointed that the word 'proved' does not draw any distinction between direct
or circumstantial evidence.
Proof does not mean proof of rigid mathematical demonstration
(absolute certainty or accuracy of statements), because that is impossible; it
must mean such evidence (such degree of probability) as would induce a
reasonable man to come to the conclusion [Hawkins v Povells Tillary Coal
Co. Ltd. (1911) 1 K.B. 988j-2005 SCC (Cri.) 225]. Suspicion cannot take the
place of proof, nor moral belief of the judge in the guilt of the accused. The
sea of suspicion has no shore and the court that embarks upon it is without
rudder and compass.
In M. Narsingha Rao v State of A ndhra Pradesh (AIR 2001 SC 318),
the Supreme Court held that a fact is said to be "proved," when after
considering the matter before it the court, either believe it to exist or
considers its existence so probable that a prudent man ought, under
circumstances of particular case, to act upon supposition that it exists. This
is the definition of the word 'proved' in the Evidence Act. What is required is
production of such materials on which the court reasonably acts to reach the
supposition that the fact exist. Proof of facts depends upon degree of
possibility of having existed. The standard required for reaching the
supposition is that of a prudent man acting in any important matter
concerning him.
In Babuda v State of Rajasthan (AIR 1992 SC 2091), it was held the
accused not to be convicted of theft where there was nothing to show his
presence in the house from where the articles supposed to have been
Introduction 21

stolen from removed, the only evidence being recovery one and half
months at later from the person to whom the articles were allegedly
sold, conviction not to be based upon suspicion.
The extent to which a particular evidence aids in proving the fact
in controversy is called as the 'probative force'. What and how much
proof is necessary to convince the judge of the existence of a fact in
issue? The answer depends upon many circumstances as different
standards of proof are demanded in civil and criminal cases. In civil
cases, a matter is taken to be proved when the balance of probability
suggests it, but in criminal cases the court requires a proof beyond
reasonable doubt. Graver the offence, stricter should be the degree of
proof [Asbish Batham v State ofM.P. (2002) 7 SCC 317; Mausam
Singha Roy v State ofW.B. (2003) 12 SCC 377]. A reasonable doubt is
not an imaginary, trivial or a mere possible doubt, but a fair doubt based
upon reason and common sense. It must grow out of the evidence in the
case [State of M.P. v Dharkole AIR 2005 SC 44].
(b) Standard/Degree of Proof in respect of Civil and Criminal
proceedings
The Evidence Act makes no distinction between the degree of proof or
probability requisite for criminal as distinguished from civil cases.
However, as remarked by Best in his book on Evidence, "There is
marked difference as to the effect, i.e. probative force of evidence, in
civil and criminal proceedings. In civil cases, mere preponderance of
probability is sufficient; whereas, in criminal cases, issues must be
proved beyond any reasonable doubt". The rule is based upon the
maxim of English law laid down by Holroyd J. that "It is better that ten
guilty men should escape, rather than one innocent should suffer".
In civil cases, the rule of evidence may be relaxed by consent of
parties or by court's order e.g. proof of affidavit. It is not so in criminal
cases. With regard to proof "in 'criminal' cases, the following general
rules have to be observed:
(i) The accused is always presumed to be innocent until the
prosecution proves him to be guilty. While in civil cases, all
that is necessary to insist upon is that the proof adduced in
support of a fact is such that should make a prudent man to act
upon the supposition that it exists.
22 Law of E v i d e n c e

(ii) The evidence must be such as to exclude every reasonable doubt of

the guilt of the accused.
(iii) In case of any reasonable doubt as to the guilt of the accused, the
benefit of doubt should always be given to the accused.
(iv) There must always be clear proof of corpus delicti, i.e., the fact of
commission of the crime.
(v) The hypothesis of delinquency should be consistent with all the
facts proved.
As regards the standard of proof in civil and criminal cases, Denning J.
observed in Bater v B., "It is true that by our law, there is a higher standard
of proof in criminal cases than in civil cases; but this is subject to the
qualification that there is no absolute standard in either case. In criminal
cases, the charge must be proved beyond reasonable doubt, but there may be
degrees of proof within that standard. So also, in civil cases, there may be
degrees of probability". The general rule in civil actions (except matrimonial
causes) is that an uncontested case may be established by a minimum of
proof, and a contested case by a balance of probabilities.
The same evidence which may be sufficient to regard a fact as proved
in a civil suit may be considered insufficient for a conviction in a criminal
action [Razik Ram v Jaswant Singh (1975) 4 SCC 769].

Q.2. Whether the following can be characterized as 'documents':-

(i) Writings on the walls of Red Fort.

(ii) The words 'owned by LC.-I' written on the fans hanging in the
classroom of a school.

(iii) Inscriptions on the bricks embedded in the walls and plastered

from outside.

(iv) Inscription on a stone. [LC./-94/96]

A.2. Document
According to Sec. 3, 'document' means any matter expressed or described
upon any substance by means of letters, figures or marks, or by more than
one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
Introduction 23

Illustrations - A writing; words printed, lithographed or photographed; a

map/plan; an inscription on a metal plate or stone; and, a caricature -are
all documents.
Speaking generally, it means anything or matter which contains a
permanent record of a relevant fact or a fact in issue. Thus, a paper on
which a contract is written is a document, so is a wall or chattel or stone
on which something is inscribed. It has been said that the word
'document' as used in the law of evidence 'should not be construed
restrictively'. Etymologically the word means something which shows
or teaches and is evidential or informative of its character. Of course,
much depends upon the context in which the word 'document' is used.
Thus, in the case in question, (i), (ii), (iii) and (iv) are 'documents'.
 2
Relevancy and
Admissibility of Facts

L 0f What Fact May Evidence be given (Sec. 5)

"Evidence may be given of the existence or non-existence of every fact in
issue and of relevant facts, and of no others".
Explanation - This section shall not enable any person to give evidence of a
fact which he is disentitled to prove by any provision of law for the time
being in force relating to Civil Procedure.
Illustration - A is tried for the murder of B by beating him with a club
with the intention of causing his death. At A's trial the following facts are
in issue:- A's beating B with a club; A's causing B's death by such beating;
A's intention to cause B's death.
__j
According to Sir James Stephens, the most universal rule of evidence
is that the evidence adduced should be alike directed and confined to the
matters which are in dispute. Anything not directly connected is irrelevant.
Thus, evidence of all collateral facts, which are incapable of affording
any reasonable presumption as to the principal matters in dispute, are
excluded to save public time.

Logical and Legal Relevancy

In order to prove the existence or non-existence of the facts in issue, certain
other facts may be given in evidence, called relevant or evidentiary facts
(See Chapter 1). Such facts may have such a direct or indirect connection
with the fact in issue, that they render the latter probable or improbable.

[24]
Relevancy & A d mis sib il it y of Facts 25

A fact is said to be logically relevant to another when it bears such

a casual relation with the other as to render probable the existence or
non-existence of the latter. All facts which are logically relevant are not
legally relevant. One fact is said to be legally relevant to another only
when the one is connected with the other in any of the ways referred to
in Sees. 6-55 of the Act. Whatever is legally relevant is logically
relevant. However, only legally relevant facts are considered as relevant
facts. A confession made to a police officer may appear to be logically
relevant, but it is not legally relevant, for Sec. 25 declares that it cannot
be used as evidence against the person making it.
The question of relevancy is a question of law to be decided by the
Judge. If irrelevant evidence is so mixed up with relevant evidence that
it cannot be separated, the whole of the evidence should be rejected. The
question of relevancy is a question of law and can be raised at any stage
 of the proceeding. The Explanation to Sec. 5 lays down that if some
provision in Civil Procedure Code disentitles the person to give evidence
of a fact, he will not be entitled as of right to adduce that evidence in the
court.

Relevancy and Admissibility1

Relevant means that which is logical probative. Admissibility is not
based on logic but on law and strict rules. The terms 'relevancy' and
'admissibility' are not co-extensive or interchangeable terms. All
admissible evidence is usually relevant, but all relevant evidence is not
admissible. All facts which are allowed by the provisions of the
Evidence Act to be proved are relevant; but, however relevant a fact
may be, unless it is allowed to be proved by the provisions of the Act, it
is not admissible. Relevancy (Sees. 6-55) means, "what facts may be
proved before a court". The admissibility (Sec. 56 onwards) is the means
and the method of proving the relevant facts. Relevancy is the genus of
which admissibility is a species.

1. Distinguish between relevancy and admissibility. [LC./-96; LC.II-93]

Discuss: Concept of relevancy under the Indian Evidence Act.
[D.U.-2007]
Give one example of: (i) facts though relevant are not admissible under the
Evidence Act; (ii) facts though admissible are not relevant under the
Evidence
Act. [L.C.II-
2006]
"All that is relevant may not be admissible but all that is admissible has to
be
relevant." Elaborate. Mention exceptions to it, if any. [D.U-
2010]
26 Law of E v i d e n c e

Very often, public consideration of fairness and the practical necessity for
reaching speedy decisions necessarily cause the rejection of much of the
relevant evidence. Thus, privileged communications (during marriage; with a
legal adviser; official communications) are protected from the disclosure. .
Though where the relevancy of a fact is established, there is
presumption of its admissibility and it is for the other side to show that the fact
is not admissible. It may be noted that if admissibility is considered
synonymous with the receivability in evidence, then every admissible fact is
not necessarily relevant. Thus, the previous statements to contradict a witness
and the facts to impeach the credit of a witness, are receivable in evidence but
they are not relevant.
The court is to decide the question of admissibility of an evidence (Sec.
136). Admissibility is a quality standing between relevancy (or probative value)
on the one hand and proof (or weight of evidence) on the other hand. A fact
may be relevant but the proof of it may be such as is not allowed in the case of
the 'hearsay' rule (e.g. statements made out of the court; witness asserts and
the accused said 'so and so'). Thus, oral statements which are hearsay may be
relevant, but are not admissible.
In Ram Bihari Yadav v State of Bihar AIR 1998 SC 1850, the Supreme
Court explained the point of difference between relevancy of evidence and its
admissibility. The court said that frequently the expression 'relevancy' and
'admissibility' are used as being synonymous with each other but their legal
implications are different, because facts which are relevant may not be
admissible. For example, the communication made by spouse during marriage,
the communication between an advocate and his client may be very much
relevant but as a matter of policy they are not admissible. On the other hand,
there are facts which, though admissible, are not relevant. Their admissibility
is grounded on other considerations, and not the consideration of relevancy.
Evidence in terms elicited from a witness in cross-examination as to his
character to find out his credibility is admissible although it may have nothing
to do with the facts of the case. .
It is a fundamental rule of the law of evidence that evidence must be
relevant in order to be admissible. But the converse is not true, because much
relevant evidence may be inadmissible under the specific
Relevancy & Admissibility of Facts 27

rules of evidence affecting admissibility. Evidence may be produced to

show that a witness was biased or suffered from some mental condition
which rendered his evidence unworthy of belief; or showed that a
confession was admissible because it was made without oppression, or
that a secondary evidence of the contents of a document might be
adduced because the original was lost. These are facts which go to the
admissibility of evidence.
Hearsay evidence is excluded, even if it is relevant, because it may
be repeated version and may suffer from exaggeration or undertoning
with no chance to cross-examine the original narrator. Evidence of
character of an affected person may be materially relevant but is
excluded from admission because of the unnecessary prejudice to the
mind of the judge and the chance of denial of fair trial Admissibility has
nothing to do with relevancy or probative value. Admissibility is a matter
of legal policy. It is a question of law to be determined by lex fori .

Evidence obtained by Undesirable Methods - Whether

Admissible
The relevant evidence remains relevant, even if it was obtained by
improper or unlawful means. "The test to be applied in considering
whether evidence is admissible is whether it is relevant to the matter in
issue. If it is, it is admissible and the court is not concerned with how it
was obtainedj [Magraj Patodia v R.K. Birla (1970) 2 SCC 889]. The
House of Lord! would sanction the exclusion of such evidence only
where the accused had been lured into incriminating himself by deception
after the commission of an offence [R. v Sang (1979) 2 All ER 1222].
/The Supreme Court noted the only exception to this rule, which is
that where after the alleged offence, improper methods have been used to
obtain evidence for it and the judge is of the view that the prejudicial
effect of such evidence would be out of proportion to its evidentiary
value, the judge may exclude it^Pushpadevi vM.L. Wadhawan AIR 1987
SC 1748). The impact on the fairness of the proceedings is the crucial
 determining factor.
In R. v Christou (1992) 4 All ER 559, the police operated for about
3 months by establishing a shop of jewellers and putting up the shady
image of being interested in buying 'stolen property'. The object was to
28 Law of Evidence

recover stolen goods and to obtain evidence against those involved in theft and
handling. All the transactions in the shop were filmed and conversations
recorded. The evidence so collected was admitted at the trial. The court
reasoned, "the trick was not applied to the appellants (accused persons): they
voluntarily applied themselves to the trick. It is not every trick producing
evidence against an accused which results in unfairness".

Relevancy of Facts forming Part of Same Transaction (Sec. 6)

"Facts which, though not in issue, are so connected with a fact in issue, as to
form part of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places".
The principle of the section is that whenever a "transaction" such as a
contract or a crime, is a fact in issue, then evidence can be given of every fact
which forms part of the same transaction. Transaction refers to a series of acts
so connected together as are capable of being called by a single name e.g. a
contract, a crime, etc. Roughly a transaction may be described as any physical
act, or series of connected physical acts, together with the words
accompanying such act or acts.
A 'transaction' may consist of a single incident stretching over a few
minutes, or it may be spread over a variety of facts, occupying a much longer
time, and occurring on different occasions or at different places. Where the
transaction consists of different acts, in order that the chain of such acts may
constitute the same transaction, they must be connected together by proximity
of time, proximity or unity of place, continuity of action, or community of
purpose or design. A transaction can be truly understood only when all its
integral parts are known and not in isolation from each other.

Illustrations to Sec. 6
(a) A is accused of B's murder by beating him. Whatever was said or done
by A or B or by the by-standers at the beating or so shortly before or
after it as to form part of the transaction, is
a relevant fact.2 .
—i

2. A question based on the same facts, [L.C.I-94]

 Relevancy & Admissibility of Facts 29

(b) A is accused of waging war against the Government of India by

taking part in an armed insurrection in which property is destroyed,
troops are attacked and gaols are broken open. The occurrence of
these facts is relevant, as forming part of the general transaction,
though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the subject out
of which the libel arose, and forming part of the correspondence in
which it is contained, are relevant facts, though they do not contain
the libel itself.3
(d) The question is, whether certain goods ordered from B were
delivered to A. The goods were delivered to several intermediate
persons successively. Each delivery is a relevant fact._/

Res Gestae4
.Facts forming part of a transaction are described by English and American
writers as being part of res gestae, i.e., things done in the course of a
transaction. The illustrations (a) to (d) above, are all instances of res gestae.
The term res gestae is equivalent to the 'facts' mentioned in Sec. 6. However, it
is also used in the following senses - as equivalent to fact in issue, as equivalent
to details of facts in issue, and fact in issue and surrounding circumstances.
Taylor defines this expression as including everything that may be fairly
considered as an incident of the event under consideration. Thus, res gestae are
those circumstances which are the instinctive (automatic) and undersigned
incidents of a particular act. [They are the acts talking for themselves not what
people say when talking about the acts.
Circumstantial facts are admitted as forming part of res gestae, i.e., as
being part of the original proof of what has taken place. Statements may also
accompany physical happenings. An injured person, for example, is naturally
bound to cry. If the transaction e.g. an accident, happened in a public place, a
number of by-standers will make mutual conversation

3. A question based on the same facts. [LC./.-95]

4. Write a short note on Res gestae. [C.LC-91/93/2006, LC.H-94]
30 Law of E v i d e n c e

about the incident. The question is to what extent such statements can be
regarded as parts of the transaction. Some important guidelines in this regard
are:-
(i) 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.
(ii) 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 recenti.
(iii) 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" (G. Vijayavardhan Rao v State ofA.P. AIR
1996 SC 2971).
(iv) The statement must be a statement of fact and not an opinionj
'The following illustrations/cases will help clear the point:-
(i) A, while running in street, crying that B has stabbed him, is a
relevant fact. Similarly, the statement of a raped woman 'crying for
help', is a relevant fact.
(u) Statements made during the investigations of a crime are not
relevant facts.
(iii) A, when reached the murder spot, heard people present there as
saying that someone murdered someone. It was not stated that the
persons who made above statements were present at the time of
murder. It is not a relevant fact. However, if a witness after
witnessing the incident goes to the police station and files a FIR,
the making of the report is part of the transaction and amounts to
res gestae.
(iv) In Agassiz v London Tramways Co. (1872) 21 WR 199, there was a
tram collision and an action was brought against the tramway Co.
in respect of injury to a passenger. A remark by another
Relevancy & Admissibility of Facts 31

passenger to the effect that the driver ought to be reported and

the conductor's reply, "He has already been reported for he has
been off the line 5 or 6 times to-day" were rejected, the
transaction being over, and as the remarks referred not to the
res, but to the past acts of the driver.
(v) In another case, A was tried for the murder of B by shooting him
with a gun. The facts that the person, who was at that time in
the same room with B, saw a man with a gun in his hand pass
by a window of that room and thereupon exclaimed "There is
the butcher" ('A was known by that name') were held to be
 relevant.5
(vi) Where shortly after a murder, the person suspected of it explained
away the absence of the deceased by saying that he had left the
village, the court held the statement to be a part of the
transaction and thus relevant [Basanti v State ofH.P. (1987) 3
SCC 227].
(vii) A man was prosecuted for the murder of his wife. His defence
was that the shot went off accidentally. There was evidence to
the effect that the deceased telephoned to say: "Get me the
police please". Before the operator could connect the police, the
caller, who spoke in distress, gave her address and the call
suddenly ended. Thereafter the police came to the house and
found the body of a dead woman. Her call and the words she
spoke were held to be relevant as a part of the transaction which
brought about her death6 [Ratten v The Queen (1971) 3 WLR
930].
However, where the raped girl made a statement to her mother after the
rape when the culprit had gone away and the girl came home from the
scene of occurrence, held that it is not admissible under Sec. 6. \

5. A question based on the same facts. [C.LC.-92]

6. In a trial for dowry murder of B; the fact that on the alleged murder night
the police had received a distress telephonic call from B in which before
abrupt disconnection she could only say: "Please help me, I fear
immediate harm to myself. Is the fact relevant? [C.LC.-95\[D.U.-
2007]
32 Law of E v i d e n c e

Criticism of res gestae doctrine

The doctrine of res gestae is applicable to 'hearsay' evidence also, which is
not considered a good piece of evidence. In R. v Foster (1834) 6 C & C, the
witness had seen only a speeding vehicle, but not the accident. The injured
person explained him the nature of the accident. He was allowed to give
evidence of what the deceased said, although it was only a derived
knowledge, it being a part of res gestae.? Similarly, collateral facts are res
inter alios actae (i.e. transactions between others, for example, statements
made behind the accused's back and to be used as evidence against him), and
included in res gestae. As a matter of fact the famous English judge Mr.
Justice Blackstone is said to have told an advocate struggling to introduce an
irrelevant fact as relevant evidence, to try to bring it under res gestae,
because the phrase can take in 'anything' if the judge is so inclined.
According to Professor Stone, "no evidential problem is so shrouded
in doubt and confusion". 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 or mind or health. It is harmful because it caused
confusion about the limitations of other rules.
 The precise limits of res gestae are not themselves not easy to define.
Facts differ so greatly that no fixed principle can be laid down as to the
matters that will form parts of a transaction. Because of its confusing nature,
the phrase res gestae has not been included in Indian Evidence Act. And it is
left to the judges to find the necessary connection and treat a fact as relevant.

LEADING CASE: SUKHAR V STATE OF UP.

[(1999) 9 SCC 507]
Facts and Issue - This case inter alia revolved round the scope of
Sec. 6 of the Evidence Act. The 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

7. A question based on the same facts. [C.LC.-92]

 Relevancy & Admissibility of Facts

33

offence under Sec. 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?
Observations and Decision - The Supreme Court observed that Sec.
6 of the Evidence Act is an exception to the general rule that the
hearsay evidence is not admissible. But for bringing such hearsay
evidence within the provisions of Sec. 6, what is required to be
established is that it must be almost contemporaneous with the fact in
issue and there should not be an interval which would allow
fabrication, so that it forms part of the same transaction as the fact in
issue.
"This principle of law embodied in Sec. 6 of the Evidence Act
is usually known as the rule of res gestae recognized in English law.
The essence of the doctrine is that a fact which, though not in issue,
is so connected with the fact in issue "as to form part of the same
transaction" it becomes relevant by itself. The rationale in making
certain statement of fact admissible under Sec. 6 is on account of the
spontaneity and immediacy of such statement or fact in issue. But it
is necessary that such fact or statement must be part of the same
transaction. In other words, such statement must have been made
contemporaneous with the acts which constitute the offence or at
least immediately thereafter. But if there was an interval, however
slight it may be, which was sufficient enough for fabrication then the
statement is not part of res gestae" [Gentala Rao v State ofAndhra
Pradesh AIR 1996 SC 2791].
The Supreme Court also referred to the ratio of Rattan Singh v
State cfHimachal Pradesh (AIR 1997 SC 768). In this case, the act
of the assailant intruding into the courtyard at dead of night, the
victim's identification of the assailant, her statement that the
appellant was standing with a gun and that he fired at her were so
intertwined with each other by proximity of time and space, that they
formed part of the same transaction and therefore held relevant under
Sec. 6.
In the present case, the court held that the evidence of the
witness is admissible as res gestae.]
34 Law of E vi d e n c e

In Vasa Chandrasekbar Rao v Ponna Satyanarayana (2000) 6

SCC 286, the accused murdered his wife and daughter. The statement
by the father of deceased wife (witness) that father of accused told him
on telephone that his son has killed the deceased would be in the
nature of hearsay. In the absence of evidence that the information
given by the father of accused to the witness that the accused had
killed the deceased was either at the commission or immediately
thereafter so as to form part of the same transaction such utterances
cannot be considered as relevant under Sec. 6. To be relevant so, there
must have been reasonable certainty that the speaker made the
statement under stress of excitement in respect of the transaction.
Res gestae has come to be a rule of exception to the hearsay
evidence. A fact or a statement of fact or opinion, which is so closely
associated in time, place and circumstances with some act or event,
which is in issue, that it can be said to form a part of the same
transaction as the act or event in issue, is itself admissible in evidence.
The justification given for the reception of such evidence is that the
light that it sheds upon the act or event in issue is such that in its
absence, the transaction in question may not be fully or truly
understood and may even appear to be meaningless, inexplicable or
unintelligible [Kapoor Singh Rana v State of Delhi 1 (2006) CCR 558
(DB)].

Facts which are the Occasion, Cause or Effect of Facts in Issue

(Sec. 7)
According to Sec. 7, the following facts are relevant-
(j) facts which are the occasion, cause or effect (immediate or
otherwise) of facts in issue or relevant facts,
(ii) facts which constitute the state of things under which they
happened, or
(lii) facts which afforded an opportunity for their occurrence or
transaction. \

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
Relevancy & Admissibility of Facts 35

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.
Sec. 7 could be explained as follows:
Occasion - Evidence can always be given of the set of circumstances
which constituted the occasion for the happening of the principal fact
See illustration (a). The fact that the deceased girl was alone in her
cottage it the time of murder is relevant as it constituted the occasion
for the murder. )
 Cause - "Cause" often explains why a particular act was done. It
helps the court to connect a person with the act. The act in
question must have seen done by the person who had the cause for
it e.g. the fact that accused was in love with deceased's wife The
word "cause" is 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 cause of
the murder and beyond the 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 impressions9)[see illustration (b)]. Similarly,
where a person is poisoned the symptoms produced by the poison
are relevant, being the effects of the

8. A question based on the same facts.

[D.U.-2007]
8. The question is whether A caused the death of B by rash and
negligent driving. Whether tyre-marks produced on the spots are
relevant fact?
[L.C.I-94/95/961
36 Law of E v i d e n c e

facts in issue. Possession of stolen articles by a person,

immediately after theft, is also an effect. Unexplained scratches on
the face or the person of the accused are also the effects of the facts
in issue.10
Opportunity - 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. Evidence of opportunity thus
becomes important as it shows that the act must have been done by
the person who had the opportunity to do it. For example, the fact that
accused 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. Illustration (c) also gives an instance of
opportunity.
State of things - The fact which constitute the state of things under
which or in the background of which the principal facts happened
are relevant e.g. the state of relations between the parties, the state
of the health of the deceased and his habits 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:,
Mere advantage not enough ~ The mere fact, however, of a party
being so , situated that an advantage would accrue to him from the
 commission of a crime, amounts to nothing or next to nothing, as a
proof of his having committed it.

I Motive, Preparation and Previous or Subsequent

Conduct (Sec. 8)
According to Sec. 8, any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant
fact. Further, the conduct (previous or subsequent) of a party or his
agent or an accused is relevant which influences or is influenced by
a fact in issue or relevant fact.

10. State the provision of law and give reasons as to relevancy of the
following fact: In a murder trial, the postmortem report revealed that
the digested food indicated that the murder must have taken place
three to four hours after lunch
[
D
.
U
.-
2
0
0
7
]
Relevancy & Admissibility of Facts 37

lustrations
(a) A is tried for the murder o/B- The facts that A murdered
C, that B knew that A had murdered C, and that B had
tried to extort money from A by threatening to make his
knowledge public, are relevant11 {Motive).
(b) A sues B upon a bond for the payment of money. B denies
the making of the bond. The fact that, at the time when the
bond was alleged to be made, B required money for a
particular purpose, is relevant (Motive).
(c) A is tried for the murder of B by poison - The fact that, before
the death of B, A procured poison similar to that which
was administered to B, is relevant12 {Preparation).
(d) The question is whether a certain document is the. will of A- -
The facts, that, not long before the date of the alleged will,
A made inquiry into matters to which the provisions of the
alleged will relate, that he consulted vakils in reference to
making the will, and that he caused drafts of other wills to
be prepared of which he did not approve, are relevant
{Preparation).
(e) A is accused of a crime - The facts that, either before, or at
the time of, or after the alleged crime, A provided
evidence which would tend to give to the facts of the case
an appearance favourable to himself, or that he destroyed
or concealed evidence, or prevented the presence or
 procured the absence of witness or suborned persons to
give false evidence respecting it, are relevant {Conduct).
(h) The question is whether A committed a crime - The fact that A
absconded after receiving a letter warning him that inquiry
was being made for the criminal, and the contents of the letter
are relevant (Conduct). @ A is accused of a crime - The facts
that, after the commission of the alleged crime, he absconded
or was in possession of property

11. A question based on the same facts.

[D.U.-2007]
12. A question based on the same facts. [D.U.-2011][C
L.C-92/94]
38 Law of E v i d e n c e

or proceeds of property acquired by the crime, or attempted to

conceal things which were or might have been used in committing
it, are relevant (Conduct).
Sec. 8 could be explained as follows: I

Motive
Motive is moving power which impels one to do an act. It is the inducement
for doing the act. Evidence of motive is always relevant, for men do not act
wholly without motive. The evidence of motive assumes special importance
when the whole case is built upon circumstantial evidence (Tarseem Kumar
v Delhi Admn. AIR 1994 SC 2585)(f Thus, on the murder of an old widow
possessed of wealth, the fact that the accused was to inherit her fortunes on
her death was held to be relevant as it showed that the accused had a motive
to dispose her of.)
Where certain lands were inherited by the deceased along with his
brother but the accused got them transferred into their names and criminal
and revenue cases were pending between them at the time when the
deceased was killed, it was held, that these facts constituted a sufficient
evidence of motive (Awadhesb v State of U.P. AIR 1995 SC 375).
It may be noted that evidence of motive is not sufficient by itself to
lead to conviction nor absence of it to discredit other evidence. When there
is clear evidence that a person has committed an offence, the motive
becomes irrelevant. A murder case based on the direct evidence does not
become weak just because of the want of a motive.
In State of U.P. v Babu Ram (AIR 2000 SC 1735), the Supreme Court
said: "It cannot be laid down that the motive may not be very important in
cases depending upon direct evidence, whereas motive is very much material
only in the case which depends upon circumstantial evidence. There is no
legal warrant to making such a hiatus. Motive is relevant factor in all
criminal cases whether based on testimony of eye witness or circumstantial
evidence. The question in this regard is, whether prosecution must fail
because it failed to prove the motive, or it would weaken the prosecution to
any perceptible limit. No doubt, if the prosecution proves the existence of
motive, it will be well and good for it. Particularly, in a case depending on
circumstantial evidence such motive
Relevancy & Admissibility of Facts 39

ould then be counted as one of the circumstances. However, it cannot be

forgotten that it is generally difficult area for any prosecution to bring m
record that what was in the respondent's mind. Even if the investigation
ifficers would have succeeded in knowing it through interrogation that
cannot be put in evidence by them due to the ban imposed by law."
In the present case, the accused himself said about the motive i.e.
ejection of his demand for property by the deceased. It was also confirmed
by the sister of the accused.
Reparation
Once an offence has been committed, the evidence of preparation becomes
most important for the crime must have been committed by the man who
was preparing for it. Thus, for example, the sharpening of a knife before an
affray in which the knife was used is relevant as an act of preparation. For
the same reason, it is relevant to show that the accused hired a revolver a
few days before the murder.

Conduct
The conduct of a man is particularly important to the law of evidence, for his
guilt or the state of mind is often reflected by his conduct. Guilty mind
begets guilty conduct A Under Sec. 8, the conduct of the following parties is
relevant - parties to a suit/ proceeding or of their agent (plaintiff and
defendant in a civil suit, and accused in a criminal proceeding), any person
an offence against whom is the subject of any proceeding (injured person).
The conduct must be in reference to the facts in issue or relevant facts;
further, the conduct must be such as influences or is influenced by the facts
in issue or relevant facts. The evidence of the conduct is relevant whether it
is previous to the happening of the facts or subsequent to them. Some of the
instances of guilty conduct are: the defendant turned pale, when arrested; a
defendant charged with wife's murder, failed to shed tears; the defendant's
offer to marry the girl who charged him with rape; bribing; concealing one's
identity; feigning insanity; absconding; or,
silence.
 Relevancy & Admissibility of Facts 41

to a question asked or it would have been made even if a question was not
asked, the latter being a complaint. If the question merely anticipates a
statement which the complainant was about to make, it is not rendered
inadmissible by the fact that the questioner happens to speak first (e.g. 'what
is the matter', 'why are you crying'). The essential difference between a
statement and a complaint is that the latter is made with a view to redress or
punishment and must be made to some one in authority (the
police, parent or some other person to whom the complainant was justly
entitled to look for assistance and protection).
Explanation 2

"It provides that when the conduct of any person is relevant, any statement
made to him or in his presence and hearing, which affects such conduct, is
also relevant."
Such statements are admitted because without their help the conduct
may be unintelligible. Thus, if a man accused of a crime is silent or flies, or
guilty of a false or evasive response, his conduct is coupled with the
statement, in the nature of an admission, and therefore, evidence against
himself.
Illustration (f): The question is, whether A robbed B. The facts that, after B
was robbed C said in A's presence - "The police are coming to look for the
man who robbed B", and that immediately afterwards A ran away, are
relevant.
Illustration (g): The question is, whether A owes B Rs. 10,000. The facts that
A asked C to lend him money, and D said to C in A's presence and hearing -
"I advise you not to trust A, for he owes B Rs. 10,000", and that A went
away without making any answer, are relevant facts.16 )
Queen-Empress v Abdullah (1885) 7 All 385 (F.B.) - The accused was
prosecuted for the murder of a young girl, a prostitute. She was attacked
while asleep in her home. It was already morning and there was sufficient
light to enable her to identify her assailant, who cut her throat with a razor.
She was taken to a police station and thence to a hospital where

15. A question based on the same facts. [DU.-2011][LC.I~94][C.LC-2006\

16. A question based on the same facts. [D.U -2007/2010]

42 Law of Evidence

attempts were made to know from her the name of the accused. But she was
unable to speak, her throat being cut. She answered by signs of her hand.
When the name Abdullah (accused) was mentioned she made an affirmative
sign. She died on the third day.
A reference was made to the Full Bench over the question whether the
signs of the hand she made in response to the questions put to her were
relevant under Sec. 8 as the conduct of an injured person. The majority held
that Sec. 8 was not applicable, as to attract Sec. 8 the conduct must be
influenced directly by the facts in issue/relevant facts and not by the
interposition of words spoken by third persons. The signs of the hand were
not influenced by the facts, but by the questions asked. But for the questions,
there was nothing in them to connect anybody with the injury. Left to
themselves those signs would indicate nothing. The evidence was, however,
relevant under Sec. 32 as a 'dying declaration'.
Mahmood J., did not agree and regarded the conduct to be relevant
under Sec. 8. Explanation 1 of Sec. 8 points to a case in which a person
whose conduct is in dispute mixes up together actions and statements; and in
such a case those actions and statements may be proved as a whole. In
illustration (f) to Sec. 8, although A's conduct is undoubtedly 'influenced' by
the fact in issue, it is only influenced through the intervention of third person,
C. The word 'conduct' does not mean only such conduct as is directly and
immediately influenced by a fact in issue or relevant fact. In the present case,
the deceased would not have acted as she did if it had not been for the action
of those who questioned her. There is no difference in principle between the
act of A in running away when told that police were coming, and the act of
deceased in moving her hand in answer to the questions. Both are the cases of
'conduct' within the meaning of Sec. 8.

Facts Necessary to Explain or Introduce Relevant Facts (Sec. 9)

Sec. 9 declares the following kinds of facts to be relevant:-
(i) facts necessary to explain or introduce a fact in issue or relevant
fact,
(ii) facts which support or rebut an inference suggested by a fact in
issue or relevant fact,
 R e l e v a n c y & A d m i s s i b i l i t y of Facts 43

(iii) facts which establish the identity of anything or person,

(iv) facts which fix time or place at which any fact in issue or relevant
fact happened, and
(v) facts which show the relation of parties.
Sec. 9 could be explained as follows:

Introductory or explanatory facts

(Evidence is always allowed of facts which are necessary to introduce the

main fact or some relevant fact. For example, where the question is whether
a given document is a "will made by a certain person", evidence may be
given of the state of his property and of family at the date of the alleged will
as it may be necessary to introduce the circumstances in which the will
became necessary {Illustration (a)]. Similarly, in a suit for libel, evidence
can be given of the state of parties' relations at the time of the alleged libel as
this may be necessary to introduce the circumstances that led to the libel. If
they had any dispute, that too may be cited though not the details of it
[Illustration (b)].
Evidence of explanatory facts is allowed for the same reason. The
explanatory evidence is not relevant in itself i.e. if considered separately and
alone from other evidence it would not amount to anything. Where, 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 transaction17 {Illustration

A, accused of theft, is seen to give the stolen property to B, who is

seen to give it to A's wife. B says, as he delivers it - "A says you are to hide
this". B's statement is relevant as explanatory of a fact which is part of the
transaction18 [Illustration (e)].
A sues B for inducing C to break a contract of service made by him with
A. C, on leaving A's service says to A, "I am leaving you because

17. State the provision of law and give reasons as to relevancy of the following fact:
In a case of homicide against X, prosecution produces a statement of Y -"I heard
the cries, and saw the dead body." [D.U.-2009]
18. A question based on the same facts. [D.U.-2007/2010]
44 Law of E v i d e n c e

B has made me a better offer'. This statement is a relevant fact as

explanatory of C's conduct, which is relevant as a fact in issue 19 [Illustration
(d)]. Similarly, a statement made by a partner on leaving his firm is relevant
being explanatory of his conduct in leaving the firm.

Facts which support or rebut inferences

Evidence can be given of facts which support or rebut an inference
suggested by a fact in issue or relevant fact. For example, a person is
accused of a crime. The fact of his absconding soon after the commission of
the crime is a 'conduct', which is relevant because it suggests the inference
 that he is guilty. Any fact which either supports this inference or rebuts or
contradicts it will also become relevant. For example, if after absconding,
he was arrested in a railway train travelling without ticket or in shabby
dress, this will be relevant as fact supporting the inference of his guilt. It
will be equally 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) [Illustration (c)].
Where it was alleged that X murdered Y, after a long chase, the fact
that X had undergone a heart surgery operation and was quite weak before
alleged murder is a fact which rebut the inference of X's guilt. 20 Where the
accused was all the time with the complainant till the FIR was lodged,
thereafter he felt that he was himself being suspected. He then kept out of
the way and evaded arrest. It .was held that the evidence of his conduct
previous to FIR was relevant to contradict the inference suggested by the
subsequent evading. Even an innocent man may feel panicky and try to
evade arrest when wrongly suspected of a grave crime {Matnt v State of
U.R).

^Identity of a person/thing ('Identification Parade')

Where the court has to know the identity of any thing or any person, any
fact which establishes such identity is relevant. Personal characteristics
such as age, height, complexion, voice, handwriting, manner, dress,

19. A question based on the same facts. [D.U.-2011\[C.L.C.-2006\

19. In his trial for murder of B by stabbing after a long chase, A adduced evidence
that a week before the alleged murder A had undergone heart surgery. Is the
fact relevant? [CLC-
93]
Relevancy & Admissibility of Facts 45

distinctive marks, blood group, occupation, family relationship,

education, travel, religion, knowledge of particular people, places or fact
and other details of personal history are relevant facts. Various methods
like finger/ thumb-impressions, foot-marks, comparison of writing,
'identification parade' by police are used in this regard.1
"Identification parades" are held at the instance of the investigating
officer for the purpose of enabling the witnesses to identify either the
properties which are the subject matter of alleged offence or the accused
persons. The idea is to test the veracity of the witness on the question of
capability to identify an unknown person whom the witness may have
seen only once. The purpose is to test and strengthen the trustworthiness
of evidence. The whole idea is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify them from the midst of
other persons without any aid or any other source Significantly, there is
no provision for TI (Test identification) parade in the Criminal Procedure
Code and the Evidence Act.
It is desirable that a TI parade should be conducted as soon as after
the arrest of the accused [Abdul Waheed Khan v State o/A.P. (2002) 7
SCC 175]. Where the evidence against an accused person is evidence of
identification alone, the Magistrate must hold the parade of the accused.
Whenever the accused person disputes the ability of the prosecution
witnesses to identify him, the court should direct parade to be held. TI
parade should be taken by a Magistrate and the police should not be
present at that time. However, it could also be done by the police and any
citizen. Identification through a 'photograph' can take the place of a
formal TI parade (Laxmi Raj Shetty v State of T.N. AIR 1998 SC 1274).
A delay of 47 days in holding TI parade would not erase the evidentiary
value of it [Anil Kumar v State of U.P. (2003) 3 SCC 569].
The holding of TI parade is not compulsory; even where the
accused demands it the prosecution is not bound to do so (Surendra
Narain v State

21. State the provision of law and give reasons as to relevancy of the
following fact: In case of an identity of a skeleton recovered from a pond,
'the production of super imposed photograph of deceased over the
skeleton' by the prosecution.
[D.U.-2009]
46 Law of E v i d e n c e

Of U.P. AIR 1998 SC 3031). However, if the prosecution fails to hold it on

the plea that the witnesses already knew the accused well and it transpires in
the course of trial that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case (Jadunatb Singh v State of
U.P. AIR 1971 SC 363). When the eyewitness knew the accused and clearly
identified in court, there is no need to hold TI parade [State of H.P. v Prem
Chand (2002) 10 SCC 518].
TI parade is a weak sort of evidence. It is not substantive evidence.
The substantive evidence is the evidence of identification in court and TI
parade provides corroboration to the identification of the witness in court, if
required. However, the failure to hold a TI parade would not make
inadmissible the evidence of identification in court [Malkhan Singh v State
of M.P. (2003) 5 SCC 746]. In Ramnath v State of T.N. (AIR 1978 SC 1201),
it was held that identification of the accused by the witnesses in the court,
when no TI parade has been held before, will be useless evidence.
Where the only evidence against the accused person is that of
identification by one witness, as a rule of prudence it should not be
considered sufficient to justify the conviction (Habib v State of Bihar AIR
1972 SC 283).

( Time or place of happening

Whatever fact will help the court to fix the time or place of the happening of
the relevant fact can be admitted in evidence. The report of an expert is
relevant to fix the time of murder and the marks of struggle on the ground
are relevant to fix the place of the crime. Suppose a person was murdered in
a train, the dead body was seen at the Karnal station. The ticket found in his
possession was from Delhi to Ludhiana; it proves that the murder was
committed between Delhi and Karnal.)
 Relation of parties
A large number of cases owe their origin to the pre-existing relations of the
parties, such as, for example, those of undue influence and of libel.
Relevancy & Admissibility of Facts 47

Relevance of Conspiracy Evidence (Sec. 10)

fee under the Questions Section.

When Facts Not Otherwise Relevant become Relevant (Sec. 11)

According to Sec. 11, facts not otherwise relevant are relevant:-
(I) if they are inconsistent with any fact in issue or relevant fact,22
(ii) if by themselves or in connection with others facts they made the
existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.
Illustrations (a): The question is, whether A committed a crime at
Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was
at a distance from the place where it was committed, which would render
it highly improbable, though not impossible, that he committed it, is
relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed
either by A, B, C or D. Every fact which shows that the crime could have
been committed by no one else and that it was not committed by either
B, C or D is relevant.

Inconsistent Facts (Plea of Alibi)

Evidence can be given of facts which have no other connection with the
main facts of a case except this that they are inconsistent with a fact in
issue or a relevant fact. Their inconsistency with the main facts of the
case is sufficient to warrant their relevancy.
(This section enables a person charged with a crime to take the plea
of alibi which means his presence elsewhere at the time of the crime. His

22. Under which provision of the Evidence Act, facts if inconsistent with any
fact
in issue, become relevant. Cite an example of the same. [LC. 11-
2006]
48 Law of E v i d e n c e

presence is inconsistent with the fact that he should be present at the place of
the crime [See Illustration (a)].23 However, it may be noted that the failure of
the plea of alibi does not mean that the accused was present at the scene of
the crime. It may further be noted that plea of alibi is irrelevant in the cases
of "acting in furtherance of the common intention"; all would be liable to the
whole crime even if they were not present at the scene of the crime. ,
Another instance is non-access of the husband to prove illegitimacy of
a Child. Similarly, whether A committed a rape; the fact that his genital
organs were such as to render the intercourse impossible. Other instances are:
Survival of the alleged deceased (beyond the date of murder); Commission of
the offence by a third person; Self-infliction of harm (suicide by the
deceased). f

LEADING CASE: JAYANTIBHAI BHENKARBHAI V STATE OF GUJARAT24

[(2002) 8 SCC 165]
In this case, the question regarding plea of "alibi" under Sec. 1 l and burden
of proof under Sec. 103 of the Act was raised.
The court observed that the word 'alibi' is of Latin origin and
means "elsewhere." It is a convenient term used for the defence
taken by an accused that when the occurrence took place he was so
far away from the place of occurrence that it is highly improbable
that he would have participated in the crime. Alibi is not an
exception (special or general) envisaged in IPC or any other law. It
is only a rule of evidence recognized in Sec. 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
The burden of proving commission of

23. Under what provision of the Evidence Act, is the following relevant: The question
is whether X committed a crime at Amritsar on a certain day? The fact that 'X'
produced a railway ticket of that day travelling from Bombay to Kanyakumari.
[C.LC-2006]
24. 'Alibi is not an exception envisaged in IPC or any other law. It is only a rule of
evidence recognized in Sec. 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant.' Explain the following with
reference to the case of Jayantibhai Bhenkarbhai v State of Gujarat.
[LC.I!-2006\
 Relevancy & Admissibility of Facts 49

offence by the accused so as to fasten the liability of guilt on him

remains on the prosecution and would not be lessened by the mere fact
that the accused had adopted the defence of alibi._
The plea of alibi taken by the accused needs to be
considered only when the burden which lies on the prosecution has been
discharged satisfactorily. If the prosecution has failed in discharging its
burden of proving the commission of crime by the accused beyond any
reasonable doubt, it may not be necessary to go into the question whether
the accused has succeeded in proving the defence of alibi. But once the
prosecution succeeds in discharging its burden then it is incumbent on the
accused taking the plea of alibi to prove it with certainty so as to exclude
the possibility of his presence at the place and time of occurrence.
[An obligation is cast on the court to weigh in scales the
evidence adduced by the prosecution in proving the guilt of the
accused and the evidence adduced by the accused in proving his
defence of alibi. If the evidence adduce by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the place and time of
occurrence, the court would evaluate the prosecution evidence to see
if the evidence adduced on behalf of the prosecution leaves any slot
available to fit therein the defence of alibi.
The burden of the accused is undoubtedly heavy. This flows
from Sec. 103 of the Evidence Act which provides that the burden of
proof as to any particular fact lies on that person who wishes the
court to believe in its existence. However, while weighing the
prosecution case and the defence case, pitted against each other, if
the balance tilts in favour of the accused, the prosecution would fail
and the accused would be entitled to the benefit of that reasonable
doubt which would emerge in the mind of the court.]
In Munshi Prasad v State of Bihar (2002) 1 SCC 351, it was held that the
presence of a person at a distance of about 400-500 yards from the
place of occurrence cannot be termed as "presence elsewhere". The plea
of alibi is based on physical impossibility of being at the scene of crime
and so the distance is a very material factor.!
50 Law of E v i d e n c e

In Dasari Siva Prasad Ruddy v Public Prosecutor, High Court, A. P. (AIR 2004
SC 4383), it was held that failure on the part of accused to establish plea of
alibi does not help the prosecution and it cannot be held that the accused was
present at the scene of occurrence, the prosecution must prove it by positive
evidence. Thus by merely failure on the part of the accused to establish the
plea of alibi shall not lead to an inference that the accused was present at the
scene of occurrence. In Bikam Pandey v State of Bihar (AIR 2004 SC 997), it
was held that the plea of alibi cannot be accepted in favour of an accused
merely on the ground that the same was accepted in relation to co-accused.
In Gade Iuikshmi Mangraju v State of Andhra Pradesh (AIR 2001 SC 2677), it
was held that the presence of a fingerprint at the scene of occurrence is a
positive evidence but the absence of a fingerprint is not enough to foreclose the
presence of the persons concerned at the scene. In this case, two persons were
involved in a murder; the fingerprints of only one of them were found on an
almirah and he did not challenge the evidence when produced by the
prosecution. Held that the other accused could not challenge it; he was not
heard to say that the absence of his finger impression was a guarantee of the
fact of his absence from the scene of the crime.

Facts showing Probabilities

In many cases, particularly in reference to some of the facts which are not
directly provable, the court has to go by the probabilities of the situation [See
illustration (b)]. Under Sec. 11, an inference as to the existence of one
transaction is made from the similar or simultaneousness of another
transaction. Thus, in a prosecution for having conspired to bring false evidence
against a person, the fact that the accused had previously instituted an
unfounded prosecution against the same person, is admissible under Sec. 11.
However, to prove the offence of forgery by the accused, evidence was offered
of other forged documents found in his possession, as this would make it
probable that he committed the forgery, was held not admissible^ [Reg v
Prabhudas (1874) 11 BHC 90].

25. State the provision of law and give reasons as to rele- incy of the following
fact: In a charge of forgery against A, production of number of forged documents
in possession of A. [D.U.-2009]
 Relevancy & Admissibility of Facts 51

Facts which make things highly improbable are also relevant. For
example, in Santa Singh v State of Punjab (AIR 1956 SC 525), the witnesses
testified that they saw the deceased being shot from a distance of 25 feet, rhe
medical report showed that the nature of wound was such that it :ould have
been caused only from a distance less than a yard. Thus, the expert opinion
rendered the statement of the witnesses highly improbable.
In Kalu Mirza v Emperor, 1909 37 Cal. 91, where the question was
whether a person was a habitual cheat, the fact that he belonged to an
organisation which was formed for the purpose of habitually cheating people
was held to be relevant, and it was open to the prosecution to prove against
each person that the members of the gang did cheat people.
Where two persons were involved in a murder, and the fingerprints of
only one of them were found on an almirah and he did not challenge ;he
evidence when produced by the prosecution, it was held that the other
accused could not challenge it. He was not heard to say that the absence jf his
finger impressions was a guarantee of the fact of absence from :he scene of
the crime (Gade Lakshmi Mangraju v State of A.P. AIR 2001 5C 2677).
Sec. 11 is very wide in its import - a "residuary" section dealing with
relevancy of facts. At first sight it would appear that this section would make
every fact relevant because of its wording. But care must not taken not to give
this section an improperly wide scope by a liberal interpretation of the phrase
"highly probable or improbable". These words indicate that the connection
between the facts in issue and the collateral facts sought to be proved must be
immediate so as to render the coexistence of the two highly probable The
relevant facts under Sec. 11 either exclude or imply, more or less distinctly,
the existence of the fact sought to be proved. Therefore, statements as to facts
made by persons not called as witnesses, transactions similar to but
unconnected with the fact in issue, and, opinions formed by persons as to fact
in issue or relevant fact, are not relevant under Sec. 11.
Thus, Sec. 11 makes admissible only those facts which are of great
weight (degree of probability immediate and high) in bringing the court Co a
conclusion regarding the existence of fact in question. Such collateral facts are
highly valuable to the accused in support of his defence, and
52 Law of E v i d e n c e

to expose the infirmity of the prosecution case. However, not much use has
been made of this section.

Facts Enabling Court to Determine Amount of Damages (Sec.12)

"In suit for damages, any fact which will enable the Court to determine the
amount of damages which ought to be awarded, is relevant."
The kind of facts admissible in actions for damages will vary with the
nature of action i.e. whether it is a suit for breach of contract (the relevant
facts are - mode and manner of breach, intention of the defaulting party, his
riches, mental pain or suffering caused by breach) or a tort action or under
other substantive law.

Facts Relevant when Right/Custom is. in Question (Sec. 13)

"Where the question is as to the existence of any right or custom, the
following facts are relevant:
(a) any transaction by which the right or custom in question was
created, claimed, modified, recognized, asserted, or denied, or
which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed,
recognized or exercised, or in which its existence was disputed,
asserted or departed from."
Illustration: The question is whether A has a right to fishery. A deed
conferring the fishery on A's ancestors, a mortgage of the fishery by A's
father, a subsequent grant of it by A's father, particular instances in which
A's father exercised the right or in which he was stopped by A's neighbours,
are relevant facts.
Sec. 13 applies to all kinds of 'rights' - public or private, right of full
ownership or falling short of ownership (e.g. rights of easements), a
corporeal or incorporeal right (e.g. right of way). The requisites of a valid
'custom' are that the same should be ancient, certain and reasonable (should
not be opposed to public policy or morality). It is not necessary to prove that
the right is being exercised from time immemorial; however it should have
been exercised openly and peaceably.
Relevancy & Admissibility of Facts 53

Whether Judgment is a Transaction

Questions have arisen before the courts whether a. previous judgment on
the joint in issue (not between the same parties) can be regarded as a
transaction' under Sec. 13.
It has been held that the judgment in a previous suit through not
Inter partes is admissible in evidence. It is not the correctness of the
previous decision but the fact that there has been a previous decision that
is established by the judgment. The finding of fact arrived at on the
evidence of one case cannot be evidence of that fact in another case, [n
Tirumala Tirupati Devasthanams v KM. Krishniah (AIR 1998 SC 1132),
held that a judgment in a dispute over the same land between two other
persons could be used by a party in a case in which the same land is in
dispute through he was not a party to the earlier proceeding.
A judgment in which the illegitimacy of a person was recognized
was held to be admissible under Sec. 13 where the question of his
legitimacy was in issue in a subsequent suit.

Facts showing Existence of State of Mind/ Body/ Bodily Feeling (Sec.

14)
"Facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, rashness, ill-will or good-will
towards any particular person; or showing the existence of any state of
body or bodily feeling, are relevant."

Explanation 1: Evidence of Specific Facts, Not General Tendency

"A fact relevant as showing the existence of a relevant state of mind
must show that the state of mind exists, not generally, but in reference to
the particular matter in question." Explanation 1 lays down an important
restriction upon the scope of Sec. 14 (See Illustrs. (n), (o) and (p)].

Illustrations
(a) Fact in Issue. A is accused of receiving stolen goods, knowing them
to be stolen. He was in possession of a particular stolen article.
 Law of E v i d e n c e

Relevant Facts: The fact that, at the same time, he was in possession
of many other stolen articles is relevant; he knew such articles to be
stolen (Knowledge).
(b) Fact in Issue: A sues B for damage done by a dog of B which
B knew to be ferocious.
Relevant Facts: The facts that the dog had previously bitten X, Y
and Z and that they had made complaints to B, are relevant
knowledge).
(c) Fact in Issue: A is accused of defaming B by publishing an
imputation intended to harm the reputation of B.
Relevant Facts: The fact of previous publication by A respecting B,
showing ill will on A's part towards B is relevant, as proving A's
intention to harm B's reputation {Intention).
(d) Fact in Issue: A is sued by B for fraudulently representing to B
that C was solvent, whereby B, being induced to trust C (who
was insolvent), suffered loss.
Relevant Facts: The fact that, at the time of A's representation, C
was supposed to be solvent by his neighbour and by persons
dealing with him, is relevant, as showing that A's representation
was in good faith {Good faith).
(e) Fact in Issue: The question is whether A has been guilty of cruelty
towards B, his wife.
Relevant Facts: Expressions of their feeling towards each other
shortly before or after the alleged cruelty are relevant facts.
(g) Fact in Issue: The question is whether A's death was caused by
poison.
Relevant Facts: Statements made by A during his illness as to his
symptoms are relevant facts.
(h) Fact in Issue: The question is what was the state of A's health at the
time an assurance on his life was affected.
Relevant Facts: Statements made by A as to the state of his health
at or near the time in question are relevant facts.
 Relevancy & Admissibility of Facts 55

(i) Fact in Issue: A sues B for negligence in providing him with a

carriage for hire not fit for use, whereby A was injured.
Relevant Facts: The fact that B was habitually negligent about the
carriage, which he let to hire, is irrelevant (See Expl. 1 to Sec. 14).
(j) Fact in Issue: A is tried for the murder of B by intentionally shooting
him dead.
Relevant Facts: The fact that A was in the habit of shooting at people
with intent to murder them is irrelevant (See Expl. 1).
(k) Fact in Issue: A is tried for a crime.
Relevant Facts: The fact that he said something indicating an
intention to commit that particular crime is relevant. The fact that he
said something indicating a general disposition to crimes of that
class is irrelevant (See Expl. 1).
Sec. 14 does not seem to lay down any principle. It rather leaves the whole
thing at the court's discretion. The section says in essence that when a state of
mind, etc. has to be proved every fact from which it can be inferred is
relevant. An important fact for this purpose is the statement of the affected
person respecting the state of his health or bodily feelings.

Explanation 2: Evidence of Previous Conviction

"When the previous commission by the accused of an offence is relevant, the
previous conviction of such person is also a relevant fact."
The record of previous criminality is at best an evidence of bad
character and Sec. 54 excludes such evidence. But, Sec. 14 permits evidence
of previous offences to be admitted whenever this is necessary to prove a
particular state of mind or of body. In fact, such evidence is also relevant
under Sec. 8 (as showing motive) and Sec. 11 (Res gestae).

Evidence of Similar Facts

A fact is said to be similar to another when it is similar to a fact in issue.
According to the maxim Res inter alios actate, a fact in issue cannot be
proved by showing that facts similar to it, but now part of the same
transaction, have occurred at other times. Thus, when the question is whether a
person has committed a crime, the fact that he had committed a similar crime
sometime ago is irrelevant.
56 Law of E v i d e n c e

The Indian Evidence Act does not anywhere mention the words "similar
facts". There is nothing in the Act declaring that evidence of similar facts
cannot be given or that it can be given. The general rule is that such evidence
is not relevant unless it has some probative value in reference to the fact in
controversy. Further, Sec. 15 (See below) is an exception to this general rule.

Facts Bearing on Question whether Act was Accidental/

Intentional (Sec. 15)
"When there is a question whether an act was accidental or intentional or done
with a particular knowledge or intention, the fact that such act formed part of
a series of similar occurrences, in each of which the person doing the act was
concerned, is relevant."

Illustrations
(a) A is accused of burning down his house in order to obtain money for
which it is insured. The fact that A lived in several houses
successively, in each of which a fire occurred and A received
payment from a different insurer, are relevant, as tending to show
that the fires were not accidental.
(b) A is employed to receive money from the debtors of B. A makes an
entry showing that on a particular occasion he received less than he
really did receive. The fact that other entries made by A in the same
book are false and in A's favour, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit rupee. The
facts that, soon before or soon after the delivery to B, A delivered
counterfeit rupees to C, D and E are relevant, showing that the
deliver)-' to B was not accidental.
Sec. 15 is an exception to the general rule that the evidence of similar facts is
not relevant. This exception became necessary to prove system or design or to
overthrow the defence of accident in cases of "habitual crimes" by an
offender. Thus, where A falsely represented to B that he was the manager of a
mercantile firm, and obtained money for the purpose of deposit from B, the
fact that A had made similar representations to C and D and obtained sums
from them, is relevant.
 Relevancy & Admissibility of Facts 57

It may be noted that evidence of similar facts can be given when will go
to establish a state of mind or mens rea which is either a ndition of liability
or is otherwise relevant. Such evidence falls both ider Sees. 14 and 15.
Further, evidence of similar facts is relevant to tablish identity of the
accused (under Sec. 9) and his modus operandi. aus, "exclusion of similar
fact evidence is a rule of practice and not of v.

cistence of Course of Business when Relevant (Sec. 16)

X^hen there is a question whether a particular act was done, the existence I
any course of business, according to which it naturally would have :en done,
is a relevant fact."
lustrations: (a) The question is whether a particular letter was dispatched, he
facts that it was the ordinary course of business for all letters put l a certain
place to be carried to the post, and that particular letter was ut in that place,
are relevant.
(b) The question is whether a particular letter reached A. The facts lat it
was posted in due course, and was not returned through the Dead ,etter
Office, are relevant.
The effect of Sec. 16 is that if an act is shown to have been done in a
general course of business, the law draws a presumption that the act must
have been done. When it is proved that a letter has been posted and has not
been returned to the sender, the presumption is that it must have been
delivered.
When the acknowledgement of a registered letter comes back (to he
sender) with a signature purporting to be that of the addressee, there s a
presumption of the fact of 'service'. The addressee's refusal to receive is a
proof of the fact that the letter was taken to him for delivery.
58 Law of E v i d e n c e

FURTHER QUESTIONS

Q.1. Discuss the relevancy of the following under the Indian

Evidence Act, 1872:-

(a) The question is whether A sold pure ghee to B ('fact in issue'). A

wants to offer in evidence the fact that he sold pure ghee to C,
D, E and some other customers on the same day.

(b) A was charged for the murder of his wife who was missing for
some time ('fact in issue'). Later on, a dead body was recovered
by the police and the photograph was published in the
newspaper. After seeing the photograph, A said to his
colleague, "People are saying that the photograph is of my wife.
Please go and see". Then A left the office after taking leave.

(c) The fact testified to by D that soon before the alleged murder by
A, C had peeped through the window and exclaimed "Look A is
 aiming his gun towards B".

(d) The fact that B was seen coming out of the house of A
distressed and sobbing soon after her alleged rape by A.

(e) In As trial under Sec. 420, IPC for cheating by falsely

representing to B that he was the manager of a Bank and would
employ him as a cashier if he deposited with him Rs. 10,000/-,
evidence is sought to be given that A had made similar
representations to C and D and obtained Rs. 10,000/ - from
each of them. [C,LC.-91/93][D.U.-2007]
A.1. Relevancy of Facts (Sees. 5-9,11)
In order to prove the existence or non-existence of the facts in issue, certain
other facts may be given in evidence, called relevant facts. Such facts may
have such a direct or indirect connection with the fact in issue, that they
render the latter probable or improbable. According to Sec. 5, evidence may
be given of the existence or non-existence of every fact in issue and of
relevant facts, and of no others.
 Relevancy & Admissibility of Facts 59

The provisions relating to Sees. 6-9 could be summarised as follows:-

(1) Sec. 6 (Relevancy of facts forming part of the same transaction)
The principle of this section is that whenever a "transaction" such as a contract
or a crime, is a fact in issue, then evidence can be given of every fact which
forms part of the same transaction. Transaction refers to a series of acts so
connected together as are capable of being called by a single name e.g. a
contract, a crime, etc. The acts in a transaction need not occur at the same time
and place.
Illustration (a) to Sec. 6 - A is accused of B's murder by beating him.
Whatever was said or done by A or B or by the by-standers at the beating or
shortly before or after it as to form part of the transaction, is a relevant fact.
Statements often accompany physical happenings. The question is to
what extent such statements can be regarded as parts of the transaction. For a
statement to be a relevant fact, it must be contemporaneous with the fact, i.e.,
made either during or immediately before or after its occurrence. If the
statement is made after the act is over and its maker had the time for reflection
and deliberation (or a narration of past events), then it is not relevant. Thus, A,
while running in street, crying that B has stabbed him, is a relevant fact. But,
statements made during the investigations of a crime are not relevant facts.
Where shortly after the murder, the person suspected of it explained away the
absence of the deceased by saying that he had left the village, held that
statement is a relevant fact, being part of the transaction.

(2) Sec. 7 (Facts which are the occasion, cause or effect of fact in issue)
Occasion: The fact that the deceased girl was alone in her house at the time
of murder is relevant as it constituted the occasion for the
murder.
Cause. The fact that the accused was in love with the deceased's wife is
relevant as it constituted the cause for the murder.
Effect: Footprints and finger impressions on the scene of the crime;
where a person is poisoned the symptoms produced by poison;
possession of stolen articles by a person immediately after theft.
60 Law of E v i d e n c e

Opportunity. The fact that accused 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.

(3) Sec. 8 (Motive, preparation and conduct)

Motive-. The question is whether A murdered B. The facts that A
murdered C, that B knew that A had murdered C, and that B
had tried to extort money from A by threatening to make his
knowledge public, are relevant.
Preparation: It is relevant to show that the accused hired a revolver a few
days before the murder.
Conduct. The conduct of injured or accused person or the parties to a suit
is relevant. The conduct (previous or subsequent) must be such
as influences or is influenced by the facts in issue or relevant
facts e.g. the defendant turned pale, when arrested; bribing;
concealing one's identity; absconding, etc.
Explanation 1 to Sec. 8 -It provides that mere statements do not constitute
'conduct' unless they accompany and explain acts other than statements. For
example, complaints made to a person in authority, shortly after the
commission of the crime are relevant facts. If without making any complaint,
the aggrieved party only stated the facts, that will not be relevant.
Explanation 2 to Sec. 8 - It provides that when the conduct of any person is
relevant, any statement made to him in his presence and hearing, which
affects such conduct, is also relevant. Thus, the fact that accused ran away
immediately after hearing that the police is looking for the culprit.

(4) Sec. 9 (Facts necessary to explain/introduce relevant facts)

Introductory. In a suit for libel, the state of parties' relations at the time of the
alleged libel.
Explanatory. A sues B for inducing C to break a contract of service made by
him with A. C, on leaving A's service says to A,-"I am leaving
you because B has made me a better offer". This statement is a
relevant fact as explanatory of C's conduct.
Relevancy & Admissibility of Facts 61

Support/rebut inference: If after absconding, the acctised was arrested

in a train travelling without ticket or in shabby dress, this
will be relevant as fact supporting the inference of his
guilt. However, if he shows that he left suddenly because
of a urgent business work, it will rebut the inference of his
guilt.
Identity of a person/thing: Age, height, voice, hand-writing, blood
group, personal history, etc. are relevant facts.
Time/Place of happening: Facts that help to fix the time or place of the
happening, are relevant facts.
Relation of parties: The fact of undue influence is relevant.
(5) Sec. 11 {When irrelevant facts become relevant)
(l) Inconsistent facts - The facts which are inconsistent with the
main facts, become relevant e.g. the murder occurred in Delhi,
the accused on that day was in Calcutta; non-access of the
husband to prove illegitimacy of a child.
(ii) Facts showing probabilities - Facts which make the existence or
nonexistence of any fact in issue or relevant fact highly
probable or improbable (i.e. the connection between such facts
and the fact in issue/relevant fact is immediate). Thus, in a case
of false prosecution, the fact that the accused had previously
instituted an unfounded prosecution against the same person is
relevant. Where the witness testified that he saw the deceased
being shot from 25-feet distance, but the medical expert
opined that distance cannot be more than a yard considering
the nature of wound, here expert opinion rendered the
statement of witness highly improbable.

Decision of the case(s) in question

(a) The fact is not relevant under Sec. 6 (evidence of pure ghee
being sold to other customers is not part of the same
transaction) or Sec. 11(2) (there is no immediate or
necessary connection with the fact in issue, because a person
can have bad intentions towards one person alone).
62 Law of Evidence

(b) The facts are relevant under Sec. 8, as A's conduct is influenced by
fact in issue or relevant fact. Instead of going to the police station
himself, he asked a friend to do it; while he himself proceeded to go
on leave. As his statement is in a way explanatory of his conduct, it
is relevant under Explanation 1 to Sec. 8.
(c) The statement is relevant under Sec. 6, as it is contemporaneous
with the fact in issue (made immediately before its occurrence) and
thus form part of the transaction (See illustration (a) to Sec. 6).
(d) It is a relevant fact under Sec. 8, as B's conduct is influenced by fact
in issue (i.e. rape).
(e) The evidence of similar but unconnected facts is not relevant
evidence, either under Sec. 6 (not part of the same transaction) or
Sec. 11(2).

Q.2. Discuss the relevancy of the following under the Indian Evidence
Act -

(a) A is accused of committing murder of R. Evidence is sought to

be given of the fact that R had murdered As brother and A had
threatened that he would take revenge.

(b) On the basis of the F.I.R. A is suspected of having committed

the crime. The fact that A was absconding after the incident and
that he was located eight days after in a dilapidated condition.
(c) The question is whether rape was committed by A. The fact that
A was admitted to a hospital with multiple fractures during the
period of alleged rape.

(d) A DNA report that clearly establishes that the killed child was
the son of an industrialist, who is disinterested in owning the
paternity of the child.

(e) The witnesses depose that after hearing the first shot they
climbed the boundary wall and saw the accused chasing the
victim before the final shoot-out.
 Relevancy & Admissibility of Facts 63

(f) After the alleged rape the victim narrated the whole incident
to the police over phone. [C.L.C.-94/95/96]
I. (a)It is a relevant evidence under Sec. 8, as A had a motive to kill R.
(b) It is a relevant fact under Sec. 8 (conduct subsequent to and affected
by fact in issue) and Sec. 9 (facts supporting the inference of A's
guilt).
(c) It is a relevant fact under Sec. 11 (facts inconsistent with fact in
issue, become relevant).
(d) It is a general rule of evidence that all such evidence is admitted
which helps the court in arriving at the truth. Tape records, video-
films, polygraph tests, DNA finger printing, etc. are tools of modern
technology which make the probability of truth highly certain. A
DNA report establishing the paternity of the child is a relevant
evidence under Sec. 9 (identity of a person).
(e) It is a relevant fact under Sec. 6 [illustration (a)].
(f) It is a relevant evidence under explanation 1 to Sec. 8, because it
amounts to a 'complaint'. The narration of incident to the police is
made with a view to redress or punishment, thus it is not a bare
statement so as to be excluded under Sec. 8.

Q.3. Discuss the relevancy of the following -

(a) A is accused of murder of his wife. The evidence given that he

was in love with another woman and wanted to marry her. The
wife had come to know of it and had threatened to report the
matter to police.

(b) Accused was seen coming out of a room, from where the dead
body of his wife was recovered. The accused ran away after
hearing that the police is coming to arrest the murderer.

(c) The question is whether A murdered B during the course of a

struggle. "Marks on the ground produced by the struggle at the
place Of occurrence and a tape-recorded statement of A and B
recorded simultaneously" are tendered in evidence.
64 Law of E v i d e n c e

(d) In a trial of A for raping B, the prosecution wants to rely upon a

complaint made by B relating to the crime, the circumstances
under which and the term in which the complaint was made.

If instead of a complaint, the prosecution relies on a narration

of event by B to a friend telling him as to how A had
performed
the act, will it be relevant fact? [LC. 1-
95/96]
A.3. (a)It is a relevant fact under Sec. 8 [illustration (a)] {Motive).
(b) It is a relevant fact under Sec. 6 and Sec. 8 (subsequent conduct).
 (c) Marks on the ground is a relevant fact under Sec. 7 (effect of a
fact in issue). A tape-recorded statement is a relevant fact under
Sees. 6,7,8,9,10 or 11.
(d) It is a relevant fact under Sec. 8, explanation 1. If without making
any complaint, the aggrieved party only stated the facts, that will
not be relevant, for bare statements are not relevant under Sec. 8.

Q.4. Discuss the relevancy and admissibility of tape-recorded

statement. [C.LC-93/94; LC.I-95]

Discuss the facts and points of law as enunciated in the case

of R.M. Malkani v State of Maharashtra (AIR 1973 SC 157).
[L.C.I-94]

It is held in R.M. Malkani v State of Maharashtra that a

contemporaneous tape recording of a relevant conversation
is a relevant fact. Discuss. [D.U.-
2007

'A', a young girl, receives obscene calls on the telephone. She

records the phone call on a tape-recorder in which the callei
identifies himself to be 'X'. 'X' is being tried for making
obscene
calls to 'A. In the trial the prosecution wants to lead in
evidence
the recorded call. Can it be led in evidence? What is the tes
for admissibility of tape-recorded conversation? Decide with
reference to decided cases. [LC.II-
95
A.4. Relevancy and Admissibility of Tape-recorded Statement
j The tools of modern technology like tape records, video films, DNA tests,
Polygraph test (lie detection), etc. make the probability of truth
 Relevancy ft Admissibility of Facts 65

highly certain. It is a general rule of evidence that all such evidence is

admitted which helps the court in arriving at the truth, r
Thus, tape-recordings can be used as evidence in a court to :orroborate
the statements of a person who deposes that he had carried in a conversation
with a particular person. A previous statement of a jerson which has been
tape-recorded can also be used to test the veracity >f a witness and to impeach
his impartiality, i
Similarly, if the court is satisfied that there is no 'trick photography' ind
the photograph is above suspicion, it may allow the photograph to se received
in evidence. Evidence of "dog-tracking", even if admissible, is not of much
weight (Abdul Razak v State of Maharashtra AIR 1970 SC 283).
In Yusufalli v State of Maharashtra (1967) Bom LR 76 (SC), the
Supreme Court observed: "If a statement is relevant, an accurate tape-record
of the statement is also relevant and admissible. The time and place and
accuracy of the recording must be proved by a competent witness and the
voice must be properly identified. One of the features of the magnetic tape-
recording is the ability to erase and re-use the recording medium. Because of
this facility of erasure and re-use, the evidence must be received with caution.
The court must be satisfied beyond reasonable doubt that the record has not
been tampered with".
In Mahabir Prasad v Surinder Kaur (AIR 1982 SC 1043), the court
held that tape-recorded conversation can only be relied upon as corroborative
evidence of conversation deposed by any of the parties to the conversation. In
the absence of any such evidence, the tape cannot be used as evidence in
itself.

LEADING CASE: R.M. MALKANI V STATE OF MAHARASHTRA

(AIR 1973 SC 157)
In this case, the prosecution case was based solely on the tape-
recorded conversation, which clearly proved the appellant's intention
to obtain a bribe. The appellant's contention was that such
conversation cannot be admitted under the provisions of Indian
Evidence Act, moreover as it was 'unlawful'. The Supreme Court
held such conversation to be relevant^]
66 Law of E v i d e n c e

The Supreme Court laid down the law relating to tape-recorded

conversation as:-
(1) Tape-recorded conversation is admissible in evidence
provided the conversation is relevant to the matter in
issue, the voice can be properly identified, and the
possibility of erasing parts of the tape is eliminated.
(2) When the tape-recording is a contemporaneous record
of such conversation (i.e. made simultaneously with
the facts in issue or relevant facts), it is a relevant fact
under Sec. 6. It is res gestae. Since it is like a
photograph of a relevant incident, it is also admissible
under Sec. 7. Such recording is also a 'document'
under Sec. 3. The recording is also admissible under
Sees. 8,9,10 or 11.
(3) As to evidentiary value, the court has said that such
evidence must be received with caution. Thus, tape-
recording must be genuine and free from tampering or
mutilation; the court should be otherwise satisfied of
its accuracy.
(4) Even if the tape-recording is obtained unlawfully, it
will be admissible in evidence, as "detection by
deception" is a form of police procedurejln Magraj
Patodia v R.K. Birla (1970) 2 SCC 889, it was held
that even if a document is procured by improper or
illegal means, there is no bar to its admissibility
provided its relevance and genuineness are proved.
The Madras High Court has, in R. Venkatesan v State (1980 Cr
LJ41), considered the evidentiary value of a tape-recorded
conversation. In that case, the conversation was not audible
throughout, and was broken at a very crucial place. The accused
alleged that the same has not been tampered with. The accuracy of
the recording was not proved, and the voices were also not properly
identified. In the circumstances, the court concluded
Relevancy & Admissibility of Facts 67

that it would not be safe to rely on the tape-recorded

conversation as corroborating the evidence of the
prosecution witness, i
As regards admissibility of tape-recordings, the
Bombay High Court (C.R. Mehta v State of Maharashtra,
1993 Cr LJ 2863) has observed: “The law is quite clear
that tape-recorded evidence if it is to be acceptable, must
be sealed at the earliest point of time, and not opened
except under orders of the court".
In Ram Singh v Col. Ram Singh (1985) Supp. SCC
611, the Supreme Court has tightened the rule as to
 relevancy of tape to this extent that it must be shown that
after the recording the tape was kept in proper custody. In
that case the Deputy Commissioner had left the tape with
the stenographer. That was held to be sufficient to destroy
the authenticity of the tape. The Supreme Court has further
suggested that how the cassette came into existence is an
important consideration. The court rejected tape recorded
evidence of an election speech because the tape was
prepared by a police officer and he was not able to explain
why he had done so. The candidate had denied that the tape
was in his voice (Quammaral Islam v S.K Kanta AIR 1994
SC 1733).

Decision of the case in question

/The tape-recorded call can be led into evidence, provided
the conditions laid down in KM. Malkani case are satisfied.
,

Q.5. Define conspiracy. What is the principle laid down

under Sec.
10 of the Evidence Act, 1872? [D.U.-
2007/201U

"Rule in Sec. 10 of the Evidence Act confines the

principle of
agency in criminal matters to the acts of the co-
conspirator."
Comment.

[D.U.-2009]

"A conspiracy is hatched in secrecy and executed in

darkness. Naturally, therefore, it is not possible for the
prosecution to connect each isolated act of statement
of one accused with the acts and statements of others,
unless there is a common bond linking all of them
together". Explain with the help of relevant statutory
provisions and case law.
[D.U.-2007l[C.LC-94]
68 Law of E v i d e n c e

"Section 10 of the Indian Evidence Act is an evil

provision but
perhaps it is a necessary evil". Do you agree with this
observation? Discuss critically with reference to the
leading
cases.

[C.L.C-93]

What is the test of prima facie conspiracy in Sec. 10?

[C.L.C.-96]

A, B and C conspire to blow a rail-bridge. To achieve

 their object, they make a plan to place a time bomb
below the railway-bridge. The time bomb is placed, but it
does not explode. They return back and write a letter to
the supplier of the time bomb explaining him the non-
explosion of the device and requesting for another time-
bomb. The letter is intercepted and the prosecution
wants to use this letter against all accused persons
including the supplier under Sec.10. Decide.
[D.U.-2007\[C.LC.-91; LC.i-
96]
A.5. Evidence to Prove Conspiracy (Sec. 10)
"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 be so conspiring, as well as for the purpose of
proving the existence of conspiracy as for the purpose of showing that
any such person was a party to it".
L Illustration -Reasonable ground exists for believing that A has joined
in a conspiracy to wage war against the Government of India.
The facts that B procured arms in Europe for the purpose of
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 the contents of
letter written by H giving an account of conspiracy, are each relevant,
both to prove the existence of 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
Relevancy & Admissibility of Facts 69

wrere done were strangers to him, and although they may have
taken place before he joined the conspiracy or after he left it.26.
Conspiracy' means a combination or agreement between two or
lore persons to do an unlawful act or to do a lawful act by unlawful
leans. The underlying principle on which Sec. 10 is based is the
principle of 'agency' which means, if two or more persons conspire
together to commit an offence, each is regarded as being the agent
of the other and ach conspirator is liable for what is done by his
fellow conspirator, j
The conditions of relevancy under Sec. 10 are:-
(1) There shall be prima facie evidence, affording a reasonable
ground to believe that two or more persons have entered
into a conspiracy.
(2) If the said condition is fulfilled, anything said, done or
written, by anyone of them in reference to their common
intention will be evidence against the other.
(3) Anything said, done or written by him should have been
 said, done or written by him after the time when the
intention to conspire was first entertained by any of them.
(4) The acts/statements of a conspirator can only be used for
the purpose of proving the existence of conspiracy or that a
particular person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that
such a person was not a party to the conspiracy.
(5) Anything said, done or written may be proved against a
conspirator who joined after or left before such thing was
said, done or written
(Sardar Sardul Singh v State of Maharashtra AIR 1965 SC 682).
Thus, the special feature of the rule is that anything said, written or
done by any member of the conspiracy is an evidence against the
other members even if they are done in their absence and without
their knowledge, the only condition being that the act must have
reference to their common intention.

26. A question based on this illustration.

[D.U.-2007]
70 Law of E v i d e n c e

Test of prima facie conspiracy - Only A prima facie case of conspiracy

has to be made out to bring Sec. 10 into operation. The fact that the two
accused, one of whom actually caused death, were seen together before
the event isolating themselves on a roof top and making every possible
effort to conceal their conversation from the family members, was held
to be enough prima facie proof of conspiracy so as to punish one for the
action of the other {Kehar Singh v Delhi Admn. AIR 1980 SC 1883).

Sec. 10 - A Necessary Evil

Sec. 10 has a potential to rope in the innocent with the guilty, and to
rope in people who have genuinely abandoned and regretted.
Illustration to Sec. 10 has been described to be unnatural. .
The case of Kehar Singh v State {Delhi Admn.), shows that the
Supreme Court considered a mere act of two people isolating
themselves at the house top and subsequently avoiding questions
about the content of their conversation as enough reason to believe
that they were conspiring about some thing.
However, it must be kept in mind that Sec. 10 only makes some
facts relevant, appreciation of evidence and giving due weight to it is
the function of the court. Where certain evidence has been admitted
under reasonable belief of the existence of a conspiracy, but
subsequently it appears that the belief was unfounded, the evidence
can be struck out.;
 Sec. 10 is nevertheless considered a "necessary evil".
Explaining the reasons which necessitated the relaxation of the
ordinary rules in cases of conspiracy,! B.P. Sinha, J. said: "Sec. 10 has
been deliberately enacted in order to make such acts/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/statement of one accused with
the acts/statements of the others, unless there is a common bond
linking all of them together Badri Rai v State of Bihar AIR 1958 SC
953).
 Relevancy & Admissibility of Facts 71

LEADING CASE: MIRZA AKBAR V EMPEROR27 (AIR

1940 PC 176)
ln this case, the allegation of the Prosecution was that W, the wife of
Mr. X, and her paramour B, conspired to murder X. It is further
alleged that W and B hired C for committing the murder of X. C was
caught red-handed in murdering X. B, who reached the spot pleaded
that C is innocent (absence of motive). W, B and C were prosecuted
for murder and conspiracy to murder.
The principal evidence of the conspiracy between W and her lover
B, consisted of certain letters, in which they expressed deep love
towards each other and referred to 'money' and 'means' (most probably
in connection with X's murder). W also made statements before the
magistrate after she had been arrested on the charge of conspiracy. Her
letters and her statements were admitted in evidence against B as being
the things said and written by a conspirator in reference to their
common intention, j B preferred an appeal to the Privy Council against
the relevancy of this evidence.
It was held that the letters were relevant under Sec. 10 as their
terms were only consistent with a conspiracy between W and B to
procure the death of X, and they were written at a time when the
conspiracy was going on and for the purpose of attaining their object.
But the statement to the magistrate was held to be not relevant under
Sec. 10 as it was made after the object of the conspiracy had already
been attained and had come to an end.
The court observed: "The words 'common intention' signify a
common intention existing at the time when the thing was said, done
or written by one of them. Things said, done or written while the
conspiracy was on foot are relevant as evidence of the common
intention, But it would be very different matter to hold that any
narrative/statement/confession made to a third party after the common
intention or conspiracy was no longer operating

27. A question based on the same facts. [LC./-94/95]

 Relevancy & Admissibility of Facts 73

for his private record, or convenience, such as, the counterfoil of his cheque
book. The question was admissibility of these books as evidence of
conspiracy, and against the other person (S).
It was held that the book used for carrying out fraud is certainly relevant,
but the second book is not. As the latter is a mere statement of what this party
was doing. A mere statement made by one conspirator, or an act that he may
chooses to do, which is not necessary to carry the conspiracy to its end, is not
evidence to effect another. Acts and declarations are not receivable unless they
tend to the advancement of the common object. If the object has been
accomplished, the act or statement is not receivable. This was a mere
statement as to the share of the plunder.
The essence of the decision seems to be that evidence of an act of a
conspirator is relevant against other only if the act was done to carry out the
conspiracy. The act should "relate to the furtherance of the common object".
And it should not merely a narrative or description or confession.

LEADING CASE: MOHD. KHALID V STATE OF W.B.

[(2002) 7 SCC 334]
Facts and Issue - In this case, the appellants were charged for striking terror in
people by using explosives and killing large number of people in pursuance of
a criminal conspiracy. TADA Court found them (appellants) guilty of offences
mentioned in the charge sheet. An important question was raised during the
appeal viz. whether confessional statement of a co- conspirator recorded two
days after the incident and not immediately (while it was possible to do so) can
come within the ambit of Sec. 10 of the Evidence Act?
Observations and Decision -The court observed: There is no
difference between the mode of proof of the offence of conspiracy
and that of any other offence, it can be established by direct or
circumstantial evidence. Privacy and secrecy are more characteristics
of a conspiracy, than of a loud discussion in an elevated place open to
public view Direct evidence in proof of a conspiracy is seldom
available, offence of conspiracy can be proved by either direct or
circumstantial evidence. lt is
Law Of Evidence

not always possible to give affirmative evidence about the date of the formation of
the conspiracy, about the persons who took part in the formation of the conspiracy,
about the object, which the objectors set before themselves as the object of
conspiracy, and about the manner in which the object of conspiracy is to be carried
out, all this is necessarily a matter of inference. Therefore, the circumstances
proved before, during and after the occurrence have to be considered to decide
about the complicity of the accused. |
The express agreement need not be proved. Nor actual meeting of the two
persons is necessary. Nor it is necessary to prove the actual words of
communication. The evidence as to transmission of thoughts sharing the unlawful
design may be sufficient. Where trustworthy evidence establishing all links of
circumstantial evidence is available the confession of a co-accused as to conspiracy
even without corroborative evidence can be taken into consideration, j
The court further observed: The first condition for the applicability of Sec. 10
is the existence of reasonable ground to believe that the conspirators have
conspired together. This condition will be satisfied even when there is some prima
face evidence to show that there was such a criminal conspiracy. If the aforesaid
preliminary condition is fulfilled then anything said by one of the conspirators
becomes substantive evidence against the others, provided that there should have
been a statement "in reference to their common intention. "The words "in reference
to their common intention" are very comprehensive and have been designedly used
to give them a wider scope than words "in furtherance of common object" used in
English law. Intention is the volition of mind immediately preceding the act while
the object is the end to which effect is directed, the thing aimed at and that which
one endeavours to attain and carry on. Intention implies the resolution of the mind
while the object means the purpose for which the resolution was made.
But the contention that any statement of a conspirator, whatever be the lapse
of time, would gain admissibility under
Relevancy & Admissibility of Facts 75

Sec. 10 if it was made "in reference" to common intention, is too broad a

proposition for acceptance. The bask mopjewhich underlines Sec. 10 is
the theory of agency. Every conspirator is an agent of his associate in
carrying out the object of the conspiracy. Sec. 10, which is an exception to
the general rule, while permitting the statement made by one conspirator
to be admissible as against another conspirator restricts it to the statement
made during the period when the agency subsisted. Once it is shown that
a person is out of the conspiracy, any statement made subsequent thereto
cannot be used as against the other conspirators under Sec. 10. Once
common intention ceased to exist, any statement made by a former
conspirator therefore cannot be regarded as one made in reference to their
common intention. In other words, the post-arrest statement made to a
police officer, whether it is a confession or otherwise touching his
involvement in the conspiracy, would not fall within the ambit of Sec. 1O.
In Mirza Akbar v King-Emperor (AIR 1949 PC 176), it was held that
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 third party.Jin Sardul Singh
Caveeshar v State of Bombay (AIR 1957 SC 747), it was held that the rule
in Sec. 10 confines the principle of agency in criminal matters to the acts
of the coconspirator within the period during which it can be said that the
acts were in reference to their common intention i.e. 'things said, done or
written, while the conspiracy was on foot' and 'in carrying out the
conspiracy'. It would seem to follow that where the charge specified the
period of conspiracy, evidence of acts of co-conspirators outside the
period is not receivable in evidence.
In a given case, however, if the object of conspiracy has not been
achieved and there is still agreement to do the illegal act the offence of
criminal conspiracy continues and Sec. 10 applies. In other words, it
cannot be said to be a rule of universal application. The evidence in each
case has to be tested and the conclusions arrived at. In the present case,
 the prosecution has
76 Law of E v id e n ce

not led any evidence to show that any particular accused continued to be a
member of the conspiracy after his arrest, i
Comments - Normally, 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 be the agent of the other conspirator's [State of T.N. v
Nalini ("Rajiv Murder case") (1999) 5.SCC 253'J. In State of Gujarat v Mobd.
Atik (1998) 4 SCC 351, it was held that the principle is no longer res Integra
that any statement made by an accused after his arrest, whether as a confession
or otherwise, cannot fall within the ambit of Sec. 10. The court also said that a
confessional statement made by a person who is no more alive would vanish
from the ken of evidentiary use.
In Sidharth v State of Bihar (AIR 2005 SC 4352), it was held that a
confessional statement implicating others made after the common intention of
the parties was no longer in existence is not admissible. In Jayendra
Saraswatbi Swamigal v State of T.N. (2005) 2 SCC 13, statements of a
conspirator recorded a long after the murder and made in the absence of others
with reference to past acts done in the actual course of carrying out the
conspiracy were held to be statements taking place after the common intention
was no longer there. In State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC
600, held that confessions made by conspirators in police custody under Sec. 32,
POTA are not admissible against co-accused under Sec. 10.
In Govt, of NCT of Delhi v faspal Singh (2003) 10 SCC 586, it was held
that once there was sufficient material to reasonably believe that there was
concert and connection between persons charged with a common design, it is
immaterial as to whether they were strangers to each other, or ignorant of the
actual role of each of them, or that they did not perform any one or more of
such acts by joint efforts.
In Ram Narayan Popli v CBI (2003) 3 SCC 641, and, K. Hashim v
State of T.N. (2005) 1 SCC 237, it was held that things said, done or written
before the conspirator against whom the evidence is sought to be proved had
entered the field of
Relevancy & Admissibility of Facts 77

conspiracy or after he left it was clearly covered, in spite of the fact it

being related to the period prior to commission of the offence.
In State of T.N. v /. Jayalalitha (AIR 2000 SC 1589), the Apex
Court observed: The question of using anything said, done or written
by any one of such conspirators would arise only if the facts were to
help to sustain the first limb of Sec. 10 i.e. there is reasonable ground
to believe that two or more persons have conspired together to
commit an offence. But it is open to the court, even at this stage to
consider the materials relating to what an accused would have said,
done or written with reference to the common intention between the
accused for the purpose of deciding whether there is reasonable
ground to believe that the said accused would have been one of the
conspirators.
LEADING CASE: CENTRAL BUREAU OF INVESTIGATION v V.C. SHUKLA
('Hawala Case') (AIR
1998 SC 1406)
In this case, it was alleged that during the years 1988 to 1991 the Jains
(accused) entered into a criminal conspiracy among themselves, the object of
which was to receive unaccounted money and to disburse the same to their
companies, friends, close relatives and other persons including public servants
and political leaders of India. In pursuance of the said conspiracy, S.K. Jain
lobbied with various public servants and government organizations to persuade
them to award contract to different foreign bidders with the motive of getting
illegal kickbacks (through hawala channels) from them. An account of receipts
and disbursements of the monies was maintained by J.K. Jain in the diaries and
files recovered from his house and Jain brothers authenticated the same, i
It was held that entries in the diary of a person showing the
names of certain persons to whom payments were supposed to have
been made were 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. The diary
does not amount to an admission of conspiracy.
 78
Law of E v i d e n c e

The court observed that ordinarily a person cannot be made

responsible for the acts of others, unless they have been instigated by
him or done with his knowledge or consent. Sec. 10 provides an
exception to this rule, by laying down that an overt act, committed by
one of the conspirators is sufficient - on the principles of agency - to
make it the act of all. But such concept of agency can be availed of
only after the court is satisfied that there is reasonable ground to
believe that they have conspired to commit an offence or an
actionable wrong. It is only when such reasonable grounds exist, that
anything said, done or written by any one of them in reference to their
common intention thereafter is relevant against the others, not only
for proving the existence of the conspiracy but also for proving that
the other is also a conspirator.
In this case, entries in the account book alleged to be showing
conspiracy among all the accused. The evidence of prosecution
witness only indicated that one of the accused in question was
known to the other accused person and had gone to their residence
on formal occasion; witness not speaking a word about the other
accused in question. It was held that Sec. 10 cannot be pressed into
service for holding that conspiracy amongst all the accused was
proved. .
The court also held that only voluntary and direct
acknowledgement of guilt is a confession but if it falls short of
actual admission of guilt, it may be used as evidence against the
person who made it or his authorized agent, as an admission under
Sec. 21. Thus, entries in the diary of a person mentioning the names
of certain persons as the recipient of money were not relevant
against them but as between Jain brothers they were relevant as
admissions under Sec. 18 as the statements of an agent who was
authorized to make the payments. Further, it was held on facts that
the entries in the Jain Hawala Diaries though admissible, .were not
capable of charging anybody with liability being not supported by
any independent evidence as to their truthfulness.]
 Relevancy & Admissibility of Facts 7
9

Difference between English and Indian Laws29

As explained above, under English law, a mere statement about conspiracy
would not be relevant. While under Indian law, it is enough if the act or
statement has reference to the common intention.
But this difference of words does not seem to make a difference
of substance also. In interpreting the words of Sec. 10, the court in Mirza
Akbar
v Emperor, Sardul Singh v State and Badri Rai v State referred to R v
Blake and observed that Sec. 10 is on the same lines. Sec. 10 is based
on the theory of agency. And the theory would be completely knocked
out if Sec. 10 were interpreted to include narrative statements which
have nothing to do with the carrying out of the common intention. Thus,
an account of a conspiracy given by a conspirator in a letter to his friend
is not relevant against the others as it is neither in the execution nor in
support of the common purpose30 [R v Hardy (1974) 24 HS Tr 451].
But in Bhola Nath v Emperor (AIR 1939 All. 567), such letter was held
to be relevant.
The second suggested difference is based on the illustration appended
to Sec. 10, according to which anything said, done or written may be
proved against a conspirator who joined after or left before such thing
was said, done or written. Under English law, such a conspirator is
protected. When a person has not yet joined or when he has already left
the conspiracy, there is no common intention in reference to him, and
therefore, the act in question cannot have reference to any intention which
is common with him.
ln Ram Narajan Popli v CBI (2003) 3 SCC 641, it was held: The
expression "in reference to their common intention" in Sec. 10 of the Act

29. What are the differences between English and Indian law of Evidence pertaining
to conspiracy? [O.U.-
2010]
30. After the murder, A writes a letter to his friend describing the plan and its
execution. The letter is intercepted by the police. Is the letter relevant under
Sec. 10? [C.LC. -96]
X, Y and Z are allegedly involved in a conspiracy to bribe members of the
Assembly in order to win the support for the government. In the course of the
trial, 'X', who is also an author, writer a long letter to his friend 'A' describing
how his best friends misled him, took huge amounts of money for lawfully
eliciting support, but ultimately indulged in unfair practices. Can the prosecution
use X's letter to 'A in the trial for conspiracy. [C.LC-2006]
80 Law of E v i d e n c e

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.

Decision of the case in question

The present problem is based on the case - In re, IV. Ramaratnam (AIR
1944 Mad. 302). A letter was written after the common intention of the
conspirators had been carried out, i.e. after the attempt (crime). As there was
no conspiracy to execute, the letter will have reference to 'past acts', which is
inadmissible (Mirza Akbarv Emperor). However, this will be so, if the
supplier had agreed to supply one time-bomb only.
If the supplier has not restricted himself to the limit of one bomb, then
it should be said that the conspiracy was still going on, and then the letter
will be admissible and could be used against the supplier, under Sec. 10.

Q. 6. (a) A, B, C and D formed a religious group A, the leader, wrote a

letter to B, C and D appreciating their resolve to launch a
common struggle against injustice and ill-treatment to their
kaum. The common plan involved some terrorist activities. After
one such activity (a bomb blast), the police arrested many
suspects, including A, B, C and D. The prosecution wants to
adduce the following two facts under Sec. 10:-

(i) Two tape cassettes in which the specific roles assigned to each
member of the common struggle is elaborated.

(ii) A personal diary of A in which the story of group awakening is

recorded with a view to be published as a novel. Decide.
[C.L.C-95]

(b) A and B are being tried for conspiring to cheat C in the sum of
Rs. 24,000. After the transaction, B made certain entries in a
diary, showing that each of them had profited to the extent of
Rs. 12,000 in the said transaction. These entries in the diary of
B are sought to be used as evidence against A. Can they be
admissible?
 Relevancy & A d m i s s i b i l i t y of Facts 81

A. 6. (a)Anything said, done or written when the conspiracy was going on is

relevant, but not when the conspiracy has ended (Mirza Akbar
Hmperoi). Two tape cassettes are relevant because they are
evidence of a time while the conspiracy was on foot, i.e., in
existence. As to the personal diary, if it was written after the
conspiracy had been carried out, then it cannot be tendered in
evidence.
(b) These entries cannot be admissible in evidence under Sec. 10, as they
were made by a conspirator after the common intention of the conspirators
has been achieved, viz. the cheating of C.
The words "in reference to their common intention", under Sec. 10, means in
reference to what at the time of the statement was intended in the future.
Thus, narratives coming from the conspirators as to their past acts cannot be
said to have a reference to their common intention.
In Emperor v Vaishampayan ('Lamington Road shooting conspiracy
case') (AIR 1932 Bom. 56), a police officer and his wife were wounded by
revolver shots, fired by some persons. After several persons were arrested,
evidence was sought to be given of a statement of an absconding accused to
the approver, that the conspirators had shot a police officer, and that a
pamphlet should be printed and distributed to start a propaganda in
furtherance of the objects of conspiracy. Held that the statement regarding
'shot' is a narration of past event and thus inadmissible, but that about
pamphlet would be relevant because it furthers the object of conspiracy.31

31. Three revolutionaries A, B and C, shoot a S.H.O. of a police station. While fleeing
from the scene one of them, C on seeing a fellow-traveller D, shouted to him
loudly, "We have shot the S.H.O. of this police station; now get pamphlets
published to this effect and distribute them in public." Later when all four of them
are being tried for conspiracy to overthrow Constitutional Government through
violent means, the prosecution relies on the above statement of C as a credible
piece of evidence. Can it be permitted to do that? Support your answer with the
aid of the legal provision and the decided cases on it. [D.U.-2010]
 3
Admissions and Confessions

ADMISSIONS
(SECS. 17-23)

Admission Defined1 (Sec. 17)

"An admission is a statement, oral or documentary, which suggests any
inference as to any fact in issue or relevant fact, and which is made by any
of the persons, and under the circumstances hereinafter mentioned."
According to Sec. 17, an admission is a statement which suggests
some inference as to the existence of a fact in issue or a relevant fact, An
admission is a confession or voluntary acknowledgment about the existence
of certain facts. An 'admission' is a statement of fact which. waives or
dispenses with the production of evidence by conceding that the fact
asserted by the opponent is true.
If, for example, a person is sued for the recovery of a loan and there
is an entry in his account book recording the fact of the loan, that is an
admission on his part of his liability or if he makes any statement to the
effect that "he does owes the money" that will also be an admission being a
direct acknowledgment of liability.; It will be sufficient if the statement
admits a fact which suggests an inference as to his liability. If for example,
a person is charged with causing death by poisoning and hi

1. Define 'admission'. Who are the persons whose statements would amount t
admission under the Evidence Act? [LC.I-95/96][D.U.-2007/2011
[82]
Admissions & Confessions 83

admits to have purchased poison. This statement suggests the

inference :hat he is guilty of murder unless he can prove that he
needed the poison For some innocent purpose.
Admissions are of many kinds; they may be considered as being
on record actually if they are either in the pleadings or in answer to
interrogatories or implied from the pleadings by non-traversal [Uttam
Singh Duggal & Co. Ltd. v United Bank of India AIR 2000 SC 2740].
A statement which is of the nature of an admission on a mixed
question of fact and law cannot be treated as an admission under Sec.
17 because only an admission of a fact binds the maker and not an
admission on a question of law [Ram Bharose Sharma v Mahant Ram
Swaroop (2001) 9 SCC 471].
The mere admission by a person that he put his thumb
impression/ signature upon a piece of paper without knowing its nature
and contents is not admission by him that he executed the documents.
The admissions at best only suggest inferences. The court must
examine the statement inside out and before holding a party to his
statements must see that the statement is clear, unequivocal and
comprehensive. There should not be any doubt or ambiguity. Further,
it would be necessary to read whole of the statement.
It has been held that though statements made in a book cannot be
considered as conclusive admissions, yet they can be taken as
additional circumstances along with other circumstances [Koran Singh
(Dr.) v State of J&K (2004) 5 SCC 698]. In this case, there was a
statement in the book authored by the claimant in which he stated that
valuable articles lying in the State Treasury belonged to his father,
Maharaja Hari Singh.
If a party's admission falls short of the totality of the requisite
evidence needed for legal proof of a fact in issue, such an admission
would be only a truncated admission (M.M. Chetti v Coomaraswamy
AIR 1980 Mad. 212). When a person applies for exemption under an
Urban Land Ceiling Act, it does not amount to an admission on his
part that the land in question is coming within the meaning of Act,
because the court may hold that the Act was not applicable to the land
in question.
84 Law of E v i d e n c e

Reasons for Admissibility of Admissions

An admission is relevant evidence. Admissions are admitted because the
conduct of a party to a proceeding, in respect of the matter in dispute,
whether by acts, speech or writing, which is clearly inconsistent with the
truth of his contention, is a fact relevant to the issue. Several reasons have
been suggested for receiving admissions in evidence:-
(i) Admissions a waiver of proof - If a party has admitted a fact, it
dispenses with the necessity of proving that fact against him. It
operates as a waiver of proof. However, admissions constitute a
very weak kind of evidence, and the court may reject an admission
wholly or in part or may require further proof. Waiver of proof,
thus, cannot be an exclusive reason for the relevancy of an
admission.
(ii) Admissions as statement against interest - An admission, being a
statement against the interest of the maker, should be supposed to
be true, for it is highly improbable that a person will voluntarily
make a false statement against his own interest. However, Sec. 17
does not require that a statement should be a self-harming
statement, the definition also includes self-serving statements.
(iii) Admissions as evidence of contradictory statements - Another reason
that partly accounts for the relevancy of an admission is that there is
a contradiction between the party's statement and his case. This
kind of contradiction discredits his case. However, a party can
prove all his opponent's statements about the facts of the case and it
is not necessary that they should be inconsistent with his case.
(iv) Admissions as evidence of truth - The most widely accepted reason
that accounts for relevancy of admission is that whatever
statements a party makes about the fact of case, whether they be for
or against his interest, should be relevant as representation or
reflecting the truth against him. 'Whatever a party says in evidence
against himself ... what a party himself admits to be true may be
presumed to be so.'
Admissions & Confessions 85

Admissions as Statement against Interest

Where a person's self-serving statement subsequently becomes adverse
to his interest, it may be proved against him as an admission. "Though
in L prior statement, an assertion in one's own interest may not be
evidence, a prior statement adverse to one's interest would be evidence.
Indeed, it would be the best evidence" [Satrucharla Vijaya Ram Raju v
Nimmakajaya laju (2006) 1 SCC 212].
Thus, stray statements in the deposition of the landlord showing
that there was no personal need of the premises, amounted to an
admission against his own interest in filing the eviction proceedings [S.
Venugopal v 4. Karrupusami (2006) 4 SCC 567]. Likewise, the
admission of a bus conductor that he had taken money from a
passenger without issuing ticket to him was considered to be the best
piece of evidence against him. But he has a right to rebut it [Delhi
Transport Corporation v Shyam Lai AIR Z004 SC 4271].
Where the vendor of property admitted in his agreement, affidavits
and other papers that delivery of possession was made to the purchaser
on the date of the agreement, and subsequently he wanted to resile from
admission saying that possession was only for sake of paper work, the
court said that a heavy burden of proof would lie upon him to show that
the statement was not true. The fact that a heavy amount was received
for handing over immediate possession was a strong evidence of
delivery of possession and was not easy to be countered [Chetan
Constructions Ltd. v Om Prakasb AIR 2003 A.P. 145]. The aforesaid
case also demonstrates the binding effect of an admission.

Forms of Admissions2
Every written or oral statement by a party about the facts of the case is
an admission. Admissions are broadly classified into two categories: (a)
judicial or formal admissions, and (b) extra-judicial or informal
admissions. It is generally immaterial to whom an admission is made. An
admission made to a stranger is relevant.

2. What type of admissions can be proved? [D.U.-

2007]
86 Law of E vi d e n c e

Judicial admissions are made by a party to the proceeding of the case

prior to the trial. Such admissions, being made in the case, are fully binding
on the party who makes them. They constitute a waiver of proof. They can
be made the foundation of the rights of the parties. In comparison, the
evidentiary admissions which are receivable at the trial as evidence, can be
shown to be wrong.
Informal or casual, i.e., extra-judicial admissions are those which do
not appear on the record of the case, and may occur in the ordinary course of
life, or in the course of business, or in casual conversation. The admission
may be in writing (letters, account books, etc.) or oral. However, unlike
judicial admissions, they are binding on the party only partially and not fully,
except in cases where they operate as or have the effect of estoppel.

Admissions - an exception to hearsay rule

Admissions constitute an exception to the hearsay rule. This is so because an
admission, though a hearsay, is nevertheless the best evidence. What is said
by a party to the suit is not open to the objection 'that a party is going to
offer worse evidence than the nature of the case admits' (the supposition on
which rule of best evidence is founded).
Thus, if A sues B on a loan, which B denies and B makes a statement
to C, a third person, that he had taken the loan, B's statement is an admission
and C may give evidence of it although C was not present at the time of the
loan and had only heard B admit the fact of the loan.3

Admissions by conduct
Active or passive conduct may in circumstances become evidence of an
admission. In an Australian case, a woman registered the birth of the child
but did not enter the name of father, his rank or profession. The court said:
"That must mean either that she did not know who the father was and
therefore was unable to give those particulars, or else that she was admitting
that the child was illegitimate. Whichever view is taken, there is an
admission of adultery and an admissible evidence of adultery" [Mayo v
Mayo (1949) P. 172].

3. A question based on this illustration. [D.U.-

2009]
Admissions & 87
Confessions

Silence may amount to admission in certain situations [See

illustration ) to Sec. 8]. When a statement is made to a person in his
presence and :aring affecting his position seriously and he does not
deny it, he thereby Imits the truth of the statement. But silence will
amount to admission tily if it is natural to expect a denial or reply. Just
as a denial is not ways a negation of liability, failure to deny is not
necessarily an admission f liability.

Persons Whose Admissions are Relevant (Sees. 18-20)

Secs. 18, 19 and 20 makes the statements of the following persons
relevant:-
(i) a party to the suit or proceeding,
(ii) an agent authorised by such party,
(iii) a party suing or sued in a representative character making
admissions while holding such character (e.g. trustees,
executors, etc.),
(iv) a person who has a proprietary/pecuniary interest in the subject-
matter of suit during the continuance of such interest,
(v) a person from whom the parties to suit have derived their interest
in the subject-matter of suit during the continuance of such
interest (predecessors-in-title) [Sec. 18];
(vi) a person whose position it is necessary to prove in a suit, if such
statement would be relevant in a suit brought by or against
himself (Sec. 19);
(vii) a person to whom a party to suit has expressly referred for
information in reference to a matter in dispute (Sec. 20).
[t is important to note that under Sec. 18, an admission by one of several
defendants in a suit is no evidence against another defendant, for
otherwise die plaintiff can defeat the case of the other defendants through
the mouth of one of them. So a defendant is bound by his statements only
to the extent of his own interest. So is true of the statement of a co-
plaintiff. But since every plaintiff has a pecuniary interest in the subject-
matter of suit, his statement can fall in that category.
88 Law of E v i d e n c e

The admission of an agent is admissible, because the principal is

bound by the acts of his agent done in the course of his business and within
the scope of his authority. Thus, the acknowledgment of a debt by a partner
is an admission against the firm. Likewise, admissions of facts made by a
pleader in court, on behalf of his client, are binding on the client. But, an
admission by a pleader on a point of law will not bind the client.
Sec. 19 deals with statements of persons whose position is in issue,
though they are not parties to the case. The section is based on the principle
that where the right or liability of a party to a suit depends upon the liability
of a third person, any statement by that third person about his liability is an
admission against the parties.
Illustration to Sec. 19 - A undertakes to collect rents for B. B sues A for not
collecting rent due from C to B. A denies that rent was due from C to B. A
statement by C that he owed B rent is an admission, and is relevant fact
against A, if A denies that C did owe rent to B.
Sec. 20 forms an exception to the rule that admissions by strangers to
a suit are not relevant. Thus, the admissions of a third person are also
receivable in evidence against the party who has expressly referred another
to him for information in regard to an uncertain or disputed matter. To
attract the operation of Sec. 20, there must be an express reference for
information in order to make the statement of the person referred to
admissible. Illustration to this section reads: 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.

Against Whom Admission may be Proved4

First part of Sec. 21 - "Admissions are relevant and may be proved as
against the person who makes them, or his representatives in interest".
Sec. 21 lays down the principle as to proof of admissions. The
section is based upon the principle that an admission is evidence against

3a. A question based on this illustration. [D.U.-2010]

4. Under what circumstances are admissions relevant? Discuss with reference
to provisions under the Evidence Act. [LC.II-93]
[Note: Also see Sees. 22-23].
Admissions & Confessions 89

he party who had made the admission and, therefore, it can be proved
against him. He himself cannot prove his own statements, "otherwise
very man, if he were in a difficulty, might make declarations to suit his
own case", and then lodge them in proof of his case. In R. v Petcherini
1855) 7 Cox. C.C.70, a priest, facing the charge of blasphemy, was not
permitted to prove his earlier statement to the effect that only immoral
books should be destroyed. The court reasoned: If a man makes a
declaration accompanying an act it is evidence; but declarations made 2
or 3 days, or a week, previous to the transaction in question cannot be
evidence, otherwise it would be easy for a man to lay grounds for
escaping the consequences of his wrongful acts by making such
declarations.
Thus, the general rule is that "the statements of a living person
cannot be received unless they are against his interests". No man should
De at liberty to make evidence for himself through his own statements.
Granted this facility, every litigant would construct a favourable case by
his own statement. Thus, 'self-favouring' admissions are not permissible.
In 3ther words, admissions cannot be proved by, or on behalf of, the
person who makes them, because a person will always naturally make
statements :hat are favourable to him.5
Illustration {a) to Sec. 21 explains the main principle:
The question between A and B is, whether certain deed is or is not
forged. A affirms that it is genuine, B that it is forged. A may prove a
statement by B that the deed is genuine, and B may prove a statement by
A that the deed is forged; but A cannot prove a statement by himself that
the deed is genuine, nor can B prove a statement by himself that the
deed is forged.
It may be noted here that Evidence Act does not seem to require
that an admission should be a 'self-harming' statement; the definition
(Sec. 17) also includes 'self-serving' statements, though, of course, a
party can prove a self-serving statement only under the exceptions laid
down in Sec. 21. Where, however, a person's self-serving statement
subsequently becomes adverse to his interest, it may be proved against
him as an admission.

5. What is meant by self-favouring admissions and why are they not admissible?
[LC.//-94]
90 Law of E v i d e n c e

Second Part of Sec. 21 (Exceptions to Sec. 21)

Admissions cannot be proved by, or on behalf of, the person who makes
them, except in the following three cases6:-
Exception 1 - "When it is of such a nature that, if the person making it were
dead, it would be relevant as between third persons under Sec. 32".
Thus, the statement should have been relevant as dying declaration or
as that of a deceased person under Sec. 32.
Illustration (b) to Sec. 21 is on the point. The captain of a ship is sued
by the ship-owner for casting away the ship by his negligence. The ship-
owner gave evidence of the fact that the ship was taken out of her course.
The captain was maintaining a diary in the ordinary course of his duty in
which he recorded the course that the ship followed and which showed that
the ship was not taken out of her due course. Now, if the litigation was
between the ship-owner and the insurance company and the question was
whether the ship was lost due to negligence or otherwise and the captain was
dead, the contents of his book would have been relevant though they operate
in his favour.
Illustration (c) is also on the same point. A is accused of crime
committed by him at Calcutta. He produces a letter written by himself and
dated at Lahore on that day and bearing the Lahore postmark of that day. The
statement in the date of the letter is admissible, because if A were dead, it
would be admissible under Sec. 32(2)7
Exception 2 - "When the admission consists of a statement of the existence
of any state of mind or body (relevant or in issue) made at or about the time
when such a state of mind or body existed, and is accompanied by conduct
rendering its falsehood improbable".
The exception enables a person to prove his statements as to his state
of body or of mind. If, for example, a person is injured and the question is
whether the injury was intentional or accidental, his statement

6. What are the exceptions to the non-permissibility of self-favouring admissions?

[L.C.H-94]
Under what circumstances can admissions be proved in favour of the maker?
[LC.I-96HD.U.-2007]
7. A question based on this illustration. [D.U.-
2007]
Admissions & Confessions 91
lat time as to the way he was injured can be proved by himself.
However, such statement should be contemporaneous with the existence
le condition of mind or of body. This rules out chances of fabrication,
person is least likely to fabricate a statement when he is still reeling
reeling the pain of die injury. Further, such statement should be
accompanied conduct which renders the falsehood of the statement
improbable, s ensures that the condition of mind or body described by
the statement ;ally true and not feigned.
Illustrations (d) and (e) deal with the point. Where the question is
whether a person received a stolen property with knowledge that it was
stolen. In order to prove that he did not have guilty knowledge, he offers
prove that he refused to sell the property below its value or natural price.
His statement explains the state of his mind and is accompanied the
conduct of the refusal to sell. He may thus prove his statement
[ illlustration (d)]. Similarly, where a person is charged with having in
possession a counterfeit coin with knowledge that it was counterfeit. He
offers to prove that he consulted a skilful person on the matter and he is
advised that the coin was genuine. He may prove this fact [illustration

Exeption 3 - "An admission may be proved by or on behalf of the person

making if, it is relevant otherwise than as an admission".
This exception is intended to apply to cases in which the statement
sought to be used in evidence otherwise than as an admission, for stance,
as part of the res gestae, or as a statement accompanying or explaining
particular conduct.
Where, for example, immediately after a road accident, a person pulled
up to the injured who then made a statement as to the cause of le injury.
This statement may be proved by or on behalf of the injured person, it
being a part of the transaction which injured him (Sec. 6). ^here A says to
B, "You have not paid back my money, and B walks way in silence, A may
prove his own statement as it has influenced the conduct of a person whose
conduct is relevant (Sec. 8).
Similarly, where a person is seen running down a street in an injured
condition and crying out the name of his assailant, he may prove his own
statement as it accompanies some conduct and explains the fact of injury.
Likewise, a statement may be proved on behalf of the person making it f it
is relevant under Sec. 32.
92 Law of E v i d e n c e

Admissions How Far Relevant (Sees. 22-23)

When oral admissions as to contents of documents are relevant (Sec.

22)
Oral admissions as to the contents of a document are not relevant, unless and
until the party proposing to prove them shows that he is entitled to give
secondary evidence of the contents of such document under Sec. 65, or
unless the genuineness of the document produced is in question.
When the question is whether a document is genuine or forged, oral
admissions about this fact are relevant. A document can be proved by the
primary evidence (original document) or secondary evidence (attested copies
or oral account).

When oral admissions as to contents of electronic records are relevant

(Sec. 22A)
"Oral admissions as to the contents of electronic records are not relevant
unless the genuineness of the electronic record produced is in question."

Communication without prejudice8 (Sec. 23)

"In civil cases, no admission, is relevant, if it is made either upon an express
condition that evidence of it is not to be given, or under circumstances from
which the court can infer that the parties agreed together that evidence of it
should not be given".
Explanation - Nothing in this section shall be taken to exempt any barrister,
pleader or attorney from giving in evidence of any matter of which he may
be compelled to give evidence under Sec. 126.
Sec. 23 gives effect to the maxim interest rei publicae ut finis litium (it
is in the interest of the State that there should be an end of litigation). Sec. 23
applies only to civil cases. When a person makes an admission "without
prejudice", i.e., upon the condition that the evidence of it shall not be given,
it cannot be proved against him. This protection or privilege against
disclosure is intended to encourage parties to settle their differences amicably
and to avoid litigation if possible.

8. Write a short note on 'Admission without prejudice'. [LC.II-94/95\

 Admissions & Confessions 93

As a matter of policy the law has long excluded from evidence

admissions by words or conduct made by parties in the course of negotiations
to settle litigation. The purpose is to enable parties in an attempt to
compromise litigation to communicate with one another freely and without the
embarrassment which the liability of their communications to be put in
evidence subsequently might impose upon them.
The party proposing compromise may expressly make his negotiation or
letter to be "without prejudice". The words "without prejudice" simply mean
this: "I make you an offer and if you do not accept it, this letter is not to be
used against me". In other words, what the expression connotes is this: "I am
making you an offer, which you may or may not accept, but, if you do not
accept it, my having made it is to have no effect at all".
The rule under Sec. 23 applies only if there is a dispute or negotiation
with another, or if they are written bona fide. A statement which is not related
to the purpose of negotiations is not protected even if the negotiations are
without prejudice. Sec. 23 does not protect all letters merely because they are
headed with the words "without prejudice". At best, it only shows the desire
on the part of one party to have the privilege, but the other party must also
respect such privilege.
It is not, however, necessary for this privilege to arise that the words
"without prejudice" should be expressly inserted, or that it should be an
express condition that admissions shall not be used in evidence. An implied
agreement to that effect can also be inferred from the circumstances of the
negotiations. Oral statements made in connection with written correspondence
would also be protected. It is to be noted that an admission made to a stranger,
under whatever terms as to secrecy, is not protected by law from disclosure.
When letters marked "without prejudice" are tendered in evidence, and
the other party admits them (instead of objecting to them), the admission
implied that the other party has waived his privilege, and such letters can then
be used in a judicial proceeding.
The explanation appended to Sec. 23 provides that an admission made
to a lawyer which he can be compelled to disclose under Sec. 126 is not
protected even if it is made upon the condition that it shall not be used.
Under that section, communication made to lawyer in furtherance of a crime
are not protected from disclosure.
94 Law of Evidence

Evidentiary Value of Admissions9

An admission does not constitute a conclusive proof of the facts admitted (Sec.
31). It is only & prima facie proof. Thus, evidence can be given to disprove it.
The admissions thus constitute a weak kind of evidence. The person against
whom an admission is proved is at liberty to show that it was mistaken or
untrue. But until evidence to the contrary is given an admission can safely be
presumed to be true. The weight to be attached to it must depend upon
circumstances under which it is made.
An admission is substantive evidence of the fact admitted and the
admissions duly proved are admissible evidence irrespective of whether the
party making them appears in the witness-box or not and whether that party
when appearing as a witness was confronted with those statements in case he
made a statement contrary to his admissions (Bbarat Singh v Bhagirath, AIR
1966 SC 405). Accordingly, where a person was contending that he was not
the real owner of a certain property but he had made statements before the
I.T. Officer that he was the owner of the property, it was held his admission
was a direct evidence of the fact of ownership [Union of India v Moksbi
Builders (1977) 1 SCC 68].
Sec. 17 makes no distinction between an admission made by a party in
his pleading and other admissions. Thus, an admission made by a person in
plaint signed and verified by him may be used as evidence against him in other
suits. There is no necessary requirement of the statement containing the
admission having to be put to the party because it is evidence proprio vigore
(of its own force). Thus, an admission in an earlier suit is a relevant evidence
against the plaintiff [Bisbwanath Prasad v Dwarka Prasad (197'4) 1 SCC 78].
An admission shifts the onus on the person admitting the fact on the
principle that what a party himself admits to be true may reasonably be
presumed to be so, and until the presumption is rebutted, the fact admitted
must be taken to be established. Thus, a candidate's declaration in the
nomination form has been held to be an admission against him. The burden lay
upon him to show that a particular statement (his age, for example) was not
true.

9. Discuss the evidentiary value of admissions. [LC./-95]

Write a short note on: Relevancy of Admissions. [C.LC.-2006\
 Admissions & Confessions 95

Admissions may operate as 'estoppels' under Sec. 31. Where an

admission operates so, the party admitting the fact will not be allowed to go
against the facts admitted. An estoppel will arise under Sec. 115 when the
admission amounts to a representation that the fact stated is true and the other
party has acted and altered his position on the basis of that representation.
The admissions at best only suggest inferences. The court must examine
the statement inside out and before holding a party to his statements must see
that the statement is clear, unequivocal and comprehensive. If a party's
admission falls short of the totality of the requisite evidence needed for legal
proof of a fact in issue, such an admission would be only a truncated
admission.

CONFESSIONS
(SECS. 24-30)

Definition10
The term 'confession' is nowhere defined in the Evidence Act. The definition
of 'admission' as given in Sec. 17 becomes applicable to confession also. Thus,
a confession is a statement made by a person charged with a crime suggesting
an inference as to any facts in issue or as to relevant facts. The inference that
the statement should suggest should be that he is guilty of the crime.
[In State (NCT of Delhi) v Navjot Sandbu (2005) 11 SCC 600, the Apex
Court observed that confessions are considered highly reliable because no
rational person would make an admission against himself unless prompted by
his conscience to tell the truth.

Confessions Carrying Inculpatory and Exculpatory Statements

In Pakala Narayan Swami v Emperor (AIE. 1939 PC 47), the court observed
that it is improper to construe confession as a statement by an accused

10. Define confession. [D.U.-2007][LC,l-95ft6; L.C.II-94]

96 Law of E v i d e n c e

suggesting the inference that he committed the crime. A confession must either
admit in terms the offence, or at any rate substantially all the facts which
constituted the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not in itself a confession, for example, an
admission that the accused is the owner of and was in recent possession of the
knife/revolver which caused death with no explanation of any other man's
possession.11
A confession is a statement made by the accused admitting his guilt. Thus,
if the maker does not incriminate himself, the statement will not be a confession
Further, a mixed up statement which, even though contains some confessional
statement, will still lead to acquittal, is no confession. {Thus, a statement that
contains self-exculpatory matter (e.g. killing done in private defence ) which if
true would negative the offence, cannot amount to a confession. This is so
because a confession must either be accepted as a whole or rejected as a whole,
and the court is not competent to accept only inculpatory part (self-
incriminating) and reject exculpatory part (self-defence), (Palvinder Kaur v
State of Punjab AIR 1952 SC 354). '
The facts of the Palvinder's case could be noted: "Palvinder was on trial
for the murder of her husband; the husband's body was recovered from a well.
The post mortem could not reveal whether death was due to poisoning or what.
In her statement to the court, she said that her husband, a photographer, used to
keep handy photo developing material which is quick poison; that on the
occasion he was ill and she brought him some medicine; that the phial of
medicine happened to be kept nearby the liquid developer and the husband
while going for the medicine by mistake swallowed the developer and died;
that she got afraid and with the help of the absconding accused packed the
body in a trunk and disposed it of into the well." The statement, thus, consisted
of partly guilty and partly innocent remarks.

11. A statement in order to amount to a confession must admit in terms the offence,
or at any rate substantially all the facts which constitute the offence. An
admission of an incriminating fact, howsoever,grave, is not by itself a
confession. Explain. [LC.//-20O6]
 Admissions & Confessions 97

In Emperor v Balmukand [ILR (1930) 52 All 1011], the confession

comprised of two elements - an account of how the accused killed the man
and an account of his reasons for doing so. The former elements being
inculpatory and the latter exculpatory, held that the confession cannot split
up and part of it used against the accused. However, in Nisbi Kant : v State
of Bihar (1959) SCR 1033, the Supreme Court pointed out it there was
nothing wrong in relying on a part of the confessional statement and
rejecting the rest, and for this purpose, the court drew court from English
authorities. Under the English law, a confession is t rejected only because
of the exculpatory statements [R. v Storey '68) 52 Cr. App. R. 334]. When
there is enough evidence to reject the exculpatory part of the appellant's
statement, the court may rely on the exulpatory part (Keshoram v State AIR
1978 SC 1096).
In Veera Ibrahim v State of Maharashtra (AIR 1976 SC 1167), a person
being prosecuted under the Customs Act told the custom officers it he did
not know that the goods loaded in his truck were contraband, r they were
loaded with his instructions. The court held that the statement is not a
confession, but it did amount to an admission of an incriminatory :t
(namely, load of contraband goods) and was, therefore, relevant under Sec.
17 read with Sec. 2LJ
In Champa Rani Mondal v State of W.B. (2000) 10 SCC 608,
confessional statement that she caused the death to ward off rape, being
wholly exculpatory, was held to be not relevant as a confession. In a
statement recorded by the Magistrate, the accused did not admit his guilt
terms and merely went on stating the fact of assault on the deceased by
mistake. Held that such statement could not be used against the accused as a
confession (State of Haryana v Rajinder Singh, 1996 CrLJ 175). Where the
accused confessed that he knew about the conspiracy commit the murder in
question but did not confess that he was a party the crime, the statement was
held to be not relevant as a confession habad Pulla Reddy v State of A.P.
AIR 1997 SC 3087).
In Lokeman Shah v State of W.B. (AIR 2001 SC 1760), the statement
:
the accused which showed that he joined an assembly when it had
ready decided to chase the victim and finish him was regarded as a
confession. The Supreme Court observed: "The statement must be read
a whole (instead of dissecting it into different sentences) and then only
98 Law of E v i d e n c e

the court should decide whether it contains admission of his inculpatory

involvement in the offence. If the result of that test is positive then the
statement is confessional, otherwise not."

Form of Confession12
A confession may occur in any form. It may be made to the court itself
"(judicial confession) or to anybody outside the court (extra-judicial
confession). While, judicial confession is a good piece of evidence, the
extra-judicial confession is a weak kind of evidence and has to be used
 with great caution, i
A confession may be written or oral. It is not necessary for the
relevancy of a confession that it should be communicated to some other
person. It may even consist of conversation to oneself, which may be
produced in evidence if overheard by another. The Orissa High Court has
held that a confession must be addressed to some person. So, if the
accused goes around the village shouting that he had killed his wife, this
would not amount to a confession (Pandu Khadia v State of Orissa, 1992
Cr LJ 762). It is submitted that the decision seems to be wrong, for, it is
well known that a confession may take place even when one is talking to
oneself.
An interesting question arises as to whether incriminating
statements made by a person while "talking in sleep" are to be admitted.
As a general rule, such statements are not to be taken as evidence against
the person, mainly because the faculty of judgment of a person is almost
completely suspended during sleep.

Extra-judicial Confession
It is made to anybody outside the court, and it could be a direct admission
of guilt or in the form of repentance or in any other way. "An extrajudicial
confession to afford a piece of reliable evidence must stand the test of
reproduction of exact words, the reason and motive for confession and
the person selected in whom confidence is reposed" (Rahim Beg v State
of U.P. AIR 1973 SO 343).

12. What are "judicial' and 'extra-judicial' confessions? [D.U.-2007]

 A d mi ss io n s & C o n f e s s i o n s 99

Thus, the court rejected the evidence of confession by the accused 3

another under-trial (Heramba Brahma v State of Assam AIR 1982 SC 595).
Similarly, where the confession sought to be proved was supposed o have
been made to a witness for the purpose of seeking his help to save the
accused from harassment, but it was not shown how the witness was in a
position to help him, the confession was described to be unreliable Makhan
Singh v State of Punjab AIR 1988 SC 1705). A confession made to the
Municipal Commissioner with whom the accused had no special friendship
was held to be not trustworthy.
/Though extra-judicial confession by its very nature may possess some
weakness, the court can act on it if the court believes the testimony of the
person about the confession. A confession of a military sepoy to his superior's
as to how he killed his wife and disposed off the dismembered parts of the
body substantiated by recoveries was held to be capable of supporting
conviction for murder without more. Vinayak Shivajirao v State 1998) 2 SCC
233]. It may be noted that law does not require that the evidence of an extra-
judicial confession should in all cases be corroborated.
i An extra-judicial confession is admissible in evidence, and the court, n
appropriate cases, can rely on it as substantive evidence arid convict :he
accused. But it is safer to look for some re-assuring material. [State of Punjab
v Gurdeep Singh (1999) 7 SCC 714]. An extra-judicial confession cannot be
considered as judicial confession; similarly an alleged judicial confession
proved to have been not legally recorded cannot be used as extra-judicial
confession [Dhanajaya Reddy v State ofKarnataka (2001) 4-SCC 9] An extra-
judicial confession may or may not be a weak evidence, each case should be
examined on the basis of its own facts and circumstances [Sivakumar v State
(2006) 1 SCC 714].
In Vilas Pandurang Patil v State of Maharashtra (AIR 2004 SC 3562),
the court held such confession admissible in evidence when it was made to a
close classmate/schoolmate. The confession was very clear and cogent and
appeared to have been made in the normal course of things and without any
pressure. On the contrary, a confession made by a large number of persons
before the village panchayat was held to be more in the nature of a vague and
general declaration. It could not come within the definition of confession
which requires specific admission of guilt [Kishan Lai v State of Rajasthan,
1999 Cr.L.J. 4070 (SC)]. Likewise, a
 100 Law of E v i d e n c e

confession made by a person at an arrack shop after consuming some liquor

to another person who, being otherwise stranger, dropped there by chance at
that very time was held to be not reliable [C.K. Raveendran v State of
Kerala AIR 2000 SC 369].

Confessions when Irrelevant (Sees.24-26)

(Involuntary confessions)13
( Sections 24 to 26 indicate the circumstances in which a confession is not
voluntary and, therefore, not relevant. Involuntary confessions are never
received in evidence.

Sec. 24 (Confession caused by inducement, threat or promise)

To attract the provisions of Sec. 24, the following facts must be established:
(a) The confession must have been made by an accused person to a
person in authority.
(b) It must appear to the court that the confession has been caused or
obtained by reason of any inducement, threat or promise
proceeding from a person in authority.
(c) The inducement, threat or promise must have reference to the
charge against the accused person.
(d) The inducement, etc. must be such that it would appear to the court
that the accused, in making the confession, believed or supposed
that he would, by making it, gain any advantage or avoid any evil of
a temporal nature in reference to the proceedings against him.
When these conditions are present, the confession is said to be not free i.e.
voluntary and will not be receivable in evidence. It is necessary that the above
conditions must cumulatively exist, t
A positive/strict proof of the fact that there was any inducement, threat
or promise is not necessary. On the evidence and the circumstances

13. Write a short note on 'Involuntary confessions'. [C.LC.-95]

What are the limitations to the admissibility of a confession as a piece of evidence
under the Evidence Act? Discuss. [LC.//-94]
Admissions & Confessions 101

in a particular case, it should appear to the court that there was a threat,
inducement or promise, though this fact may not be strictly proved {Pyare
Lal v State of Rajasthan AIR 1963 SC 1094). Anything from a barest
suspicion to positive evidence would be enough to discard a confession.
Further, in deciding whether a particular confession attracts the frown of
Sec. 24, the question has to be considered from the point of view of the
confessing accused as to how the inducement, etc. proceeding from a
person in authority would operate on his mind. The criterion is the
reasonable belief of the accused that, by confessing, he would get an
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.
Where the prisoner is only told to tell the truth without exciting any
hope or fear in him, his statement cannot be regarded as being made in
response to any threat or promise. Similarly, where a prisoner was told by
a constable that he need not say anything to criminate himself, but what he
did say would be used in evidence against him. However, where the
admission to speak the truth has been coupled with any expression
importing that it would be better for him to do so, it has been held that, the
confession was inadmissible, the objectionable words being that 'it would
be better to speak the truth', because they import that it would be better for
him to say something which made the confession involuntary. The words
"you had better" carry a hidden threat or inducement [R. v Jarvis (1867)
LR 1 CCR 96].
In Satbir Singh v State of Punjab (1977) 2 SCC 263, a senior police
officer, after having failed to get any confessional statement from the
accused through other sources, took upon himself to question the accused
and he succeeded in securing confession. The question was whether the
confession was voluntary. Held that it was not. The officer having stated
to the accused that "now that the case has been registered he should state
the truth", the statement would generate in the accused's mind some hope
or assurance that if he told the truth he would receive his support. 0
Where the accused was told by the magistrate, "Tell me where the
things are and I will be favourable to you", or "If you do not tell the truth
you may get yourself into trouble and it will be worse for you", etc., the
statements were held to be irrelevant. However, mere moral or spiritual
inducements or exhortations will not vitiate a confession. For
 102 Law of E v i d e n c e

example, where the accused is told, "Be sure to tell the truth", or "You have
committed one sin, do not commit another and tell the truth", a confession
made in response to this is valid ;[R. v Sleeman (1853) 6 Cox CC 245]. (The
same is true where the accused is taken to a temple or church and is told to
tell the truth in the presence of the Almighty.]
In Bhagbaticharan v Emperor (1933) 60 Cal 719, the accused, a post-
office clerk, under suspicion, fell at his departmental inspector's feet begging
to be saved if he disclosed 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 an inducement by the inspector.
Inducement, etc. should be in reference to charge - The inducement threat or
promise should be in reference to the charge in question. Thus, where a
person charged with murder, was made to confess to a Panchayat which
threatened his removal from the caste for life, the confession was held to be
relevant, for the threat had nothing to do with the charge?)
Person in authority - The inducement, threat or promise should proceed from
a person in authority, i.e., one who is engaged in the apprehension, detention
or prosecution of the accused or one who is empowered to examine him.
Thus, government officials, magistrates, their clerks, police constables,
wardens and others in custody of prisoners, prosecutors, attorneys, etc. A
purely private person cannot be regarded as a person in authority, even if he
is able to exert some influence upon the accused. The Panchayat officers can
be said to be persons within the meaning of Sec. 24^)

Sec. 25 (Confession to Police)

. Under Sec. 25, "no confession made to a police officer can be proved as
against an accused’’. The object of it is to prevent the practice of oppression
or torture by the police for the purpose of extracting confessions from
accused persons. Sec. 25 is very widely worded, and it absolutely excludes
from evidence against the accused a confession made by him to a police
officer under any circumstances whatsoever. Whether such person is in police
custody or not, whether the statement made during investigation or before
investigation is irrelevant.
 Admissions & Confessions 103

The reason for this rule is stated in Queen Empress v Babu Lai (1884) ,R
6 All 509, wherein it has been said that the object of the rule is to event the
extortion of confessions by police officers who in order to in credit by
securing convictions go to the length of positive torture, confessions to
police were allowed to be proved in evidence, the police would torture the
accused and thus force him to confess to a crime which he might not have
committed. A confession so obtained would naturally be unreliable. It would
not be voluntary. Such a confession will be irrelevant whatever may be its
form, direct, express, implied or inferred from conduct.
A series of conflicting suggestions as to the rational underlying this
[flexible statutory bar emerges from the decided cases:
(1) An objective and dispassionate attitude cannot confidently be
expected from police officers.
(2) The privilege against self-incrimination has been thought to lie at the
root of the principle.
(3) Importance has been attached to the discouragement of abuse of
authority by the police that could erode the fundamental rights of the
citizen. The risk is great that the police will accomplish behind their
closed doors precisely what the demands of our legal order forbid,14
i. special legislation may change the system of excluding police confessions.
!
or example, under the Terrorists and Disruptive Activities (Prevention) let
(TADA), 1987, confessional statements were not excluded from vidence on
the ground that the persons making them were in police ustody (Lai Singh v
State of Gujarat AIR 2001 SC 746). Similarly, under he Prevention of
Terrorism Act (POTA), 2001, a confession made to . police officer is
admissible in evidence. However, both the Acts are now lot in existence.
Effect of police presence - Where the confession is being given to someone
else and the policeman is only casually present and overhears it that will lot
destroy the voluntary nature of the confession. But where that

14. What is the rationale of inadmissibility of confession to a police officer?

[C.L.C.-95/96\
104 Law of E v i d e n c e

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. J
In Sita Ram v State15 (AIR 1966 SC 1906), the accused left a letter
recording his confession near the dead body of the victim with the avowed
object that it should be discovered by the police. The Supreme Court held
that the confession is relevant, as it is not a confession made to a police
officer under Sec. 25. The letter was addressed to the police officer, but the
officer was not nearby when the letter was written, or knew that it was being
written.
Confessional FIR ~ Only that part of a confessional First Information Report
is admissible which does not amount to a confession or which comes under
the scope of Sec. 27. The non-confessional part of the FIR can be used as
evidence against the informant accused as showing his conduct under Sec.
8.16y
Wlw is police officer - A police officer not only includes a member of the
regular police force, but would include any person who is clothed with the
powers of a police officer viz. a chowkidar, a village headmen, a home
guard, etc. Thus, excise inspectors are held to be police officers, but not the
custom officers or an officer under the FERA or a member of the Railway
Protection Force. .
It has been held that mere power of arrest, search and investigation are
not enough and the police officers should also be empowered to file

15. Would the bar under Sec.25 apply even in a case in which the confession to a
police officer is sent through post? [C.LC.-95]
Is the following a relevant confession: "My dear Darogaji, today I have committed
the murder of my wife Sonu. She was having illicit relations with my friend X,
who has run away. I will trace out X and bring him before you". The letter is
found by the side of the dead body. [LC.I-961
16. Vinay is accused of murder of his friend Ajay. Vinay, who was missing since
death of Ajay is alleged to have phoned, the police, in a repentant mood after
consuming some liquor, from a Hotel in a nearby city, confessing his crime. The
police acting with alacrity had traced the call and arrested Vinay. Prosecution
wants to prove that on the basis of the confession, police recovered the murdei
weapon and certain letters written by Vinay's girlfriend to Ajay. Can the
prosecution do so? [C.LC.-2006]
 Admissions & Confessions 105

a charge sheet or lodge a report before a Magistrate. Thus, a sub-inspector is a

police officer.
English law - In England, a confession made to a police officer would be
relevant evidence. If the Judge feels confident that there was no oppression
and the statement was free, fair and voluntary, he may admit it.
In State Govt, of Delhi v Sunil (2001) 1 SCC 652, the Apex Court
observed: It is an archaic notion that actions of the police should be
approached with distrust. It is time to start placing at least initial trust on their
actions and the documents prepared by them. As a proposition of law the
presumption should be that the police records are trustworthy because the
official acts of the police have been regularly performed. Hence, when a police
officer gives evidence in court that a certain article was recovered by him on
the strength of the statement made by the accused it is open to the court to
believe the version to be correct if it is not otherwise shown to be unreliable. It
is for the accused through cross-examination or through any other material to
show that the evidence of the police officer is either unreliable or unsafe to be
acted upon in a particular case.

Sec. 26 (Confession in Police Custody)

Under Sec. 26, "no confession made by any person whilst he is in the custody
of a police officer, unless it is made in the immediate presence of a Magistrate,
shall be proved as against such person"* The section will come into play when
the person in police custody is in conversation with any person other than a
police officer and confesses to his guilt. The section is based on the same fear,
namely, that the police would torture the accused and force him to confess, if
not to the police officer himself, at least to some one else. Thus the confession
is likely to suffer from the blemish of not being free and voluntary.17 ,
The word custody does not mean formal custody, but includes such state
of affairs in which the accused can be said to have come into the hands of a
police-officer or can be said to have been under some sort

17. What is the rationale of inadmissibility of confessions in police custody?

[C.LC-96]
106 Law of E v i d e n c e

of surveillance or restriction. police custody means police control even if be

exercised in a home, in an open place or in the course of a journey and not
necessarily in the walls of a prison (actual arrest). The immediate presence
of police officers is not necessary, so long as the accused persons are aware
that the place where they are detained is really accessible to the police. A
temporary absence of the policeman makes no difference.
(The following confessions are, thus, held to be irrelevant;-
(1) A woman arrested for the murder of a young boy was left in the
custody of villagers while the chowkidar (watchman) who arrested
her left for the police-station and she confessed in his absence
(Emperor v Jagia AIR 1938 Pat 308).
(2) While the accused being carried on a tonga was left alone by the
policeman in the custody of the tonga-driver and he told of his
criminality to the tonga driver [R. v Lester, ILR (1895) 20 Bom
165].
(3) Where the accused was taken to a doctor for treatment, the
policeman standing outside at the door, the accused confessed to the
doctor18 [Emperor v Mallangowda (1917) 19 Bom. LR 683].
(4) A confession made to a person, while in police custody, overheard
by a police officer.
(1) A confession to fellow-prisoners, while in jailj
However, if the confession was made when the accused was nowhere near
the precincts of a police station or during the surveillance of the police, such
confession held not to be hit by Sec. 26. The accused made his confession to
two persons of the locality. Later, his 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 Sec. 26 [State
ofA.P. v Cangula Satya Murthy (1997) 1 SCC 272].
In State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600, the
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.

18. A question based on the same facts. [C.LC.-92]

 Admissions & Confessions 107

immediate presence of a Magistrate - Sec. 26 recognizes one exception. If

the accused confesses while in police custody but in the immediate presence
a Magistrate, the confession will be valid. The presence of a Magistrate rules
out the possibility of torture thereby making the confession free, voluntary
and reliable). The Magistrate must be present in the same room here the
confession is being recorded. A confession made while the accused is in
judicial custody or lockup will be relevant, even if the accused is being
guarded by policemen.
The mere fact that the accused, after having made a confession before a
police officer, subsequently says before a Magistrate that "I told e police
officer that I murdered B" does not render the statement admissible.

Confession when Relevant (Sees. 27-29)

The following three types of confessions are relevant and admissible:-

Sec. 27 (How much of information received from accused may be proved)19

When any fact is deposed to as discovered in consequence of information

:ceived 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 thereby discovered, may e proved".)
[Under the Evidence Act, there are two situations in which confession to
police are admitted in evidence. One is when the statement is made

19. Section 27 of the Evidence Act is in the nature of an exception to Sees. 24 to

26 in as much as when any fact is deposed to as discovered in consequence
of information received from a person accused of any offence, in the custody
of the police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered may be
proved. Elaborate with reference to case law. [LC.//-93]
How much of the information received from the accused by the police may be
proved against him? [LC.//-2006]
Discuss the relationship between Sec. 26 and Sec. 27 of the Evidence Act.
How is a 'fact discovered' different from 'object produced'? Discuss with case
laws. [D.U.-
2007]
108 Law of E v i d e n c e

in the immediate presence of a Magistrate, and the second, when the

statement leads to the discovery of a fact connected with the crime. Sec. 27
is founded on the principle that if the confession of the accused is supported
by the discovery of a fact, it may be presumed to be true and not to have
been extracted. The truth of the confession is guaranteed by the discovery
of facts in consequence of the information given. Sec. 27 is a proviso or
exception to Secs. 25 and 26 of the Act.]
.Normally, the section is brought into operation when a person in
police custody produces from some place of concealment some object e.g. a
dead body, a weapon or ornaments, said to be connected with the crime of
which the informant is accused. The 'discovery of fact' includes the object
found, the place from which it is produced and the knowledge of the
accused as to its existence. However, information as to the 'past use' of the
object produced is not related to its discovery.
[The statements admissible under Sec. 27 are not admissible against
persons other than the maker of the statement Surendera Prasad v State of
Bihar, 1992 Cr LJ 2190). The discovery must be made by the police as a
result of information given by the accused and not by any other source.
Statements made by the accused in connection with an investigation in
some other case which lead to the discovery of a fact are also relevant
[State of Rajasthan v Bhup Singh (1997) 10 SCC 675].
The scope of Sec. 27 is explained by the Privy Council in Pulukuri
Kottaya v Emperor.

LEADING CASE: PULUKURI KOTTAYA v EMPEROR20 (AIR 1947

PC 67)

In this case, the appellants guilty of murder made some confessions

in the police custody In the appeal, they contended that their
statements were admitted in violation of Sees. 26 and

20 Where husband was charged for the murder of his wife, the statement made
in the police station by the husband stated that "I have stabbed my wife with a
knife as my wife was unchaste. I have thrown the knife in the drain at the
back of my house. I can show you, if you come with me." The investigation
officer proceeded to the spot and recovered the knife in the presence of
independent witnesses. State the portion of the statement admissible in
evidence. [DU.-2007/2011]
Admissions & Confessions 109

27. The statement of one of them was: "I, Kottaya, and others
beat Sivayya and Subbaya to death. I hid the spear and my stick
in the rick of my village. I will show if you come. We did all
this at the instance of P. Kottaya". Another accused said: "I
stabbed Sivayya with a spear. I hid the spear in a yard in my
village. I will show you the place". The relevant articles were
produced from their respective places of hiding,

Explaining the scope of Sec. 27 in general terms, their

Lordships observed: Sec. 27 provides an exception to the
prohibition imposed by Sec. 26 and enables certain statements
made by a person in police custody to be proved. The condition
necessary to bring Sec. 27 into operation is that discovery of a
fact in consequence of information received from accused (in
police custody) must be deposed to, and thereupon so much of the
information as related distinctly to the fact thereby discovered may be
proved.],The section seems to be based on the view that if a fact is actually
discovered in consequence of information given, some guarantee is afforded
thereby that the information was true and accordingly can be safely allowed
to be given in evidence. Normally, the section is brought into operation
when a person in police custody produces from some place of concealment
some object e.g. a dead body, a weapon or ornaments, said to be connected
with the crime of which the informant is accused .
Explaining the relationship between Sees. 26 and 27, their
Lordships said: The proviso to Sec. 26 added by Sec. 27 should
not be held to nullify the substance of the section. It is fallacious
to treat the "fact discovered" as equivalent to the object
produced; the fact discovered also embraces the place from
which the object is produced and the knowledge of accused as to
this and the information given must relate distinctly to this fact.
Information as to the 'past use' of the object produced is not
related to its discovery, j
Information supplied by a person in custody that "I will
produce a knife concealed in the roof of my house" does not
lead to the discovery of a knife. It leads to the discovery of a
110 Law of E v i d e n c e

fact that a knife is concealed in the house of the informant to his

knowledge, and if the knife is proved to have been used in the
commission of offence, the fact discovered is very relevant. But if
to the statement the words "with which I stabbed A" are added,
these words are inadmissible because they do not relate to the
discovery of knife in the house of the informant. The part which
relates as to 'what he did to the object' and not 'what he did with
the object', is relevant under Sec. 27, because the latter entails a
remote connection with the fact. Further, if there is no other
evidence connecting the knife with the crime and the only
evidence is a statement coming under Sec. 27, then the accused
must be acquitted. J
Referring to the facts of the case, their Lordships held that
the whole of the statement except the passage "I hid it (spear) and
my stick in the rick in the village. I will show if you come", is
inadmissible. The above passage is admissible as it served to
connect the object discovered with the offence charged. The other
portions of the statement relates to the past history of the object
produced, thus not admissible.
[The Supreme Court in Prabhu v State of U.P., AIR 1963 SC
1113, approved the tests laid down in the above case. In this case,
a statement leading to discovery of blood-stained axe, clothes, etc.
 was held admissible, but a statement to the police that such
clothes belonged to him (accused) and the axe was used in the
murder was held inadmissible under Sec. 27].

Some Examples
( An accused stated to the police: "The throat was cut with a knife and the
knife was on a paniara of the mori in the kitchen". The first pan, which

21. In a case involving robbery and murder, X, one of the accused persons told "I
am wearing the pant which I washed after the commission of crime" while
other accused Y said "I can show you the place where the looted property
has been kept." The property was recovered at his instance from the place of
hiding. Can statements made by X and Y be said to be confessions (within the
rules of law of evidence)? [D. U.-
2009]
[Hint: Confession by X is inadmissible, while that by Y is admissible.]
A, an accused of murder, after arrest confessed to police: "I will produce a
knife concealed in the roof of my house, with which I stabbed A." How much
of the above statement is admissible in evidence if the knife was finally
recovered at his instance. [D.U.-
2010\
 Admissions & Confessions 111

was the incriminating part of statement and which did not directly lead to the
discovery of knife should be excluded, but not the second part of the
statement.
An accused stated to the police: "I have buried the property stolen by me
in the field. I will show it". The admissible part is "I have buried the property in
my field. I will show it". The inadmissible part is "stolen by me" (similarly the
statement 'with which I stabbed A' is inadmissible). J
The underlying principle is that any self-incriminatory statement or
whatever else said by the accused at the time of giving the information by way
of giving introduction or narrative or explanation must be rigorously excluded,
as it leads to no discovery of facts, j

Place of Hiding

LEADING CASE: MOHD. INAYATULLAH V STATE OF MAHARASHTRA

(AIR 1976 SC 483)
In this case, the accused, charged with theft, stated: "I will tell the
place of deposit of the three chemical drums which I took out from
the Haji Bunder on first August". The facts discovered were -
chemical drums, the place of deposit of drums, and the accused's
knowledge of such deposit.
The Supreme Court in this case, laid down some propositions:-
(1) First condition necessary for bringing this section (Sec.
27) into operation is the discovery of a fact, albeit a
relevant fact, in consequence of the information
received from a person accused of an offence.
(2) The second is that the discovery of such fact must be
deposed to. The 'discovery of fact' includes the object
found, the place from which it is produced and the
knowledge of the accused as to its existence.
(3) The third is that at the time of the receipt of the
information the accused must be in police custody.
112 Law of E v i d e n c e

(4) The last but the most important condition is that only
"so much of the information" as relates distinctly to
the fact thereby discovered is admissible. The word
"distinctly" means "directly", "indubitably", "strictly",
"unmistakably".
It was held that only the first part of statement, namely, "I will tell
the place of deposit of three chemical drums" was relevant because
only this part was the immediate and direct cause of the act
discovered. The rest of the statement was a pure and simple
confession (past history) which led to no discovery.
However, the relevant portion was not, by itself, sufficient to
presume that the accused was a thief. He himself deposited drums,
or he only knew that the drums were lying there? Since it was a
public place (railway platform) and not a place of hiding, anyone
could have put them there and the accused might have only
knowledge of that fact. Thus, he was given 'benefit of the doubt' (if
the whole of his statement had been admitted he would undoubtedly
have been held guilty).]
It is incorrect to say that when recovery of an incriminating article is made
from a place which is open or accessible to others it would vitiate the
evidence. The crucial question is not whether the place was accessible to
others but whether it was ordinarily visible to others {State of H.P. v Jeet
Singh AIR 1999 SC 1293). An article could be concealed beneath dry leaves
or tall grass on public places so as to be out of visibility of others in normal
circumstances {State of Maharashtra v Bharat Fakira Dhiwar AIR 2002 SC
16).

LEADING CASE: BODHRAJ ALIAS BOAHA V STATE OF J&K (AIR

2002 SC 3164)
Facts and Issue - In this case, the question was whether discovery of
weapon of assault on the basis of information given by the accused
while in custody, was sufficient to fasten the guilt of the accused.]
^Observations and Decision - The court said that the exact
information given by the accused which leads to the recovery of
 Admissions & Confessions

113

the incriminating article must be proved and only then could

such information become the basis of convicting the accused.
The court observed;., O \±6&hJJUX&^&fA
(i) Sec. 27 of Evidence Act was enacted as proviso to Sees.
25 and 26, which imposed a complete ban on
admissibility of any confession made by accused either
to police or to any one while the accused was in police
custody. The object of making provision in Sec. 27 was
to permit a certain portion of statement made by an
accused to police officer admissible in evidence
whether or not such statement is confessional or non-
confessional. The ban imposed by Sees. 25 and 26
would be lifted if the statement is distinctly related to
discovery of facts IPandurang Kalu Patil v State of
Maharashtra AIR 2002 SC 733).
(ii) Under Sec. 27, in order to render the evidence leading to
discovery of any fact admissible, the information must
come from any accused in custody of the police. The
statement which is admissible under Sec. 27 is the one
which is the information fading to discovery. So, what
is admissible is the information and not the opinion
formed on it by the police officer^
(iii) For the benefit of both the accused and prosecution the
information given should be recorded and proved and if
not so recorded and proved, the exact information must
be adduced though evidence. The basic idea embedded
in Sec. 27 is the Doctrine, pi, Confirmation by
subsequent events. ,
, (iv) The doctrine is founded on the principle that if any fact
is discovered in a search made on the strength of any
information obtained from a prisoner, such a discovery
is a guarantee that the information supplied by the
prisoner is true The information might be confessional
or non-inculpatory in nature
114 Law of E v i d e n c e

but if it results in discovery of a fact, it becomes a

reliable information.
. (v) It is now well settled that recovery of an object is not
discovery of fact envisaged in Sec. 27. The fact
discovered envisaged in the section also embraces the
place from which the object was produced, and the
knowledge of the accused as to it. Information
regarding concealing of the article of the crime does
not lead to discovery of the article but it leads to
discovery of the fact that the article was concealed at
the indicated place to the knowledge of the accused.!
.(vi) The extent of the information admissible must depend
on the exact nature of the fact discovered to which
such information is required to relate. The
information permitted to be admitted in evidence is
confined to that portion of the information which
'distinctly relates to the fact thereby discovered' and
must not be truncated as to make it insensible or
incomprehensible. The extent of information admitted
should be consistent with understandability.
. The court, therefore, held that the mere statement that the accused
led the police and the witnesses to the place where he had
concealed the article is not indicative of the information as
contemplated under Sec. 27].j
In State of Maharashtra v Suresh (2000) 1 SCC 471, the court observed:
When a dead body was recovered from a place pointed out by the accused
three possibilities arise: one is that he himself would have concealed it; the
second is that he could have seen somebody else concealing it; and the third
is that he would have been told by another person that it was concealed
there. But if the accused declines to tell the criminal court that his
knowledge about the concealment was on account of one of the last two
possibilities, the court can presume that it was concealed by the accused
himself. This is because the accused is the only person who can offer the
explanation as to how he came to know of such concealment and if he
refrains from telling the court as to how he came to know
Admissions & Confessions 115

out it, the presumption would be justified. Such an interpretation is not

consistent with the principle embodied in Sec. 27.J
In State of Maharashtra v Damu (AIR 2000 SC 1691), subsequent the
discovery of a dead body from a canal, a statement was made by e
accused to the investigating officer that the dead body was carried by m
and the co-accused on the latter's motorcycle and thrown into the canal.
Broken glass pieces were recovered by the investigating officer from the
spot and they were found to be part of the missing tail lamp : the motor
cycle of the co-accused. On this basis the investigating officer can be said
to have discovered the fact that the accused carried le dead body to the
canal on the motor cycle of the co-accused. Held that in view of the said
discovery of the fact the information supplied by the accused that the dead
body was carried on his motor cycle up to le particular spot is admissible
in evidence. The information proves the prosecution case to the above
mentioned extent.
In Salim Akhtar v State o/U.P. (2003) 5 SCC 499, the disclosure
statement made by the accused led to the recovery of a polythene bag
containing a pistol and other incriminating articles from an open place
accessible to all. The court held that what was admissible was the
knowledge f the accused of the place from where the polythene bag was
allegedly :covered. The fact that some terrorist organization had given the
pistol and other articles to the appellant was not admissible.
In Anher Singh v State ofRajasthan (AIR 2004 SC 2865), the Apex
Court observed that the words "so much of such information as related
directly to the fact thereby discovered" refers to that part of the
information supplied by the accused which is the direct and immediate
cause of the discovery. This affords some guarantee of the truth of the
statement and makes it admissible and this is not true of the other parts f
the statement which are indirectly or remotely connected with discovery.
A fact can be discovered by the investigating officer pursuant to
information elicited from the accused if such disclosure was followed by
one or more of a variety of causes. Recovery of an object is only one such
cause. Recovery or even production of object by itself need not necessarily
result in discovery of a fact [Pandnrang Kalu Patil v State of iaharashtra
AIR 2002 SC 733]. In this case, the accused disclosed: "I have kept the
firearm concerned behind the old house under a heap of
116 Law of E v i d e n c e

wood". The same was recovered from that place. The court said that the fact
discovered was not the gun but the fact that the accused had concealed it at
the place from where it was found according to his disclosure. Thus,
'discovery of fact' means something more than the thing produced. The
discovery of the fact arises by reason of the fact that the information given by
the accused exhibited his knowledge or mental consciousness [State (NCT) of
Delhi v Navjot Sandbu (2005) 11 SCC 600].
In State o/H.P. v Jeet Singh (AIR 1999 SC 1293), it was observed that
there is nothing in Sec. 27 which renders the statement of the accused
inadmissible if recovery of the articles was made from any place which is
"open or accessible to others". Any object can be concealed in places which
are open or accessible to others. 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 others.
Dealing with the same issue, the Apex Court in State of Maharashtra v
Bharat Fakir Dhivar (AIR 2002 SC 16), held that unless the articles were
discovered at the instance of the accused, their hidden state remained
unhampered and it was only the accused who knew where they were until he
disclosed it.
In State ofKarnataka v David Rozario (AIR 2002 SC 3272), the Apex
Court observed: In order to render the evidence leading to discovery of any
fact admissible, the information must come from 'any accused in the custody
of the police.' The requirement of police custody is productive of extremely
anomalous results and may lead to the exclusion of much valuable evidence
in cases where a person, who is subsequently taken into custody and becomes
an accused, after committing a crime meets a police officer or voluntarily
goes to him or to the police station and states the circumstances of the crime
which lead to the discovery of the dead body, weapon or any other material
fact, in consequence of the information received form him. Information
admissible becomes inadmissible under Sec. 27 if the information did not
come from a person in the custody of a police officer or did come from a
person not in the custody of a police officer.
A d mi ss io n s & C o n f e s s i o n s 117

JC. 28 (Confession made after removal of threat, inducement, etc.)

f such a confession as is referred to in Sec. 24 is made after the
impression caused by any such inducement, threat or promise has, in the
opinion of the court, been fully removed it is relevant".^
/Sec. 28 deals with the validity of confession which is made after the
[feet of inducement is already over. Once the mind is set free from the
fear created by threats of evil or from the hopes of advantage from
confessing (e.g. by lapse of time), any confession made is likely to be
free and voluntary and there can hardly be any objection as to its validity,
"thus, a confession which is rendered irrelevant under Sec. 24 may
become relevant under Sec. 28. )

iec. 29 (Confession otherwise relevant not to become irrelevant

because of promise of secrecy, etc.)
If a confession is otherwise relevant, it does not become irrelevant,
merely because it was made -
(a) under a promise of secrecy, or
(b) in consequences of a deception practised on the accused person
for the purpose of obtaining it, or
(c) when the accused was drunk, or
(d) in answer to questions he need not have answered (whatever may
have been the form of the question), or
(e) when the accused was not warned that he was not bound to make
such confession and that evidence of it might be given against
him (except in judicial confessions, under Sec. 164, Cr.P.C).
In criminal cases, the public interest lies in prosecuting criminals and not
compromising with them. Therefore, where an accused person is
persuaded to confess by assuring him of the secrecy of his statements or
that evidence of it shall not be given against him, the confession is
nevertheless relevant.
Where the confession is the outcome of a fraud being played with
the accused, it is nevertheless relevant. Thus, where the two accused
persons were left in a room where they thought they were all alone, but
118 Law of E v i d e n c e

secret tape recorders were recording their conversation, the confessions thus
recorded were held to be relevant. A confession secured by intercepting and
opening a letter has also been held to be relevant. A confession obtained by
intoxicating the accused is equally relevant. The law is concerned to see that the
confession is free and voluntary and if this is so it does not matter that the
accused confessed under the influence of drink.

Confession of Co-accused (Sec. 30)

See under the Chapter 10.

Evidentiary Value of Confession

A confession is considered the best and most conclusive evidence, as no
person will make an untrue statement against his own interest. It is well
settled that a confession, if voluntarily and truthfully made, is an efficacious
proof of guilt.
However, it must be noted that the evidential value of a confession is not
very great. As observed by Best, a confession may be 'false' due to mental
aberration, mistake of law, to escape physical or moral torture, to escape
ignominy of a stifling enquiry, due to vanity, to endanger others by naming
them as co-offenders, and so on. Therefore, confessions may not always be
true.
therefore, the confessions must be checked in the light of the whole of
the evidence on the record in order to see if they carry conviction. It would be
very dangerous to act on a confession put into the mouth of the accused by a
witness and uncorroborated from any other source ln Muthuswamy v State
(AIR 1954 SC 47), the court observed that a confession should not be
accepted merely because it contains a wealth of details. Unless the main
features of the story are shown to be true, it is unsafe to regard mere wealth of
uncorroborated details as a safeguard of truth. Normally speaking, it would
not be quite safe as a matter of prudence, if not of law, to base a conviction
for murder on a confession by itself.
In Saboo v State of U.P. (AIR 1966 SC 40), it was held that there is
clear distinction between the admissibility of evidence and the weight to be
attached to it. The court must apply a double test: (1) whether the
Admissions & Confessions 119

confession was perfectly voluntary, (2) if so, whether it is true and

trustworthy The court should carefully examine the confession and
compare it with the rest of the evidence, in the light of the surrounding
circumstances and probabilities of the case. If the confession appears to
be a probable catalogue of events and naturally fits in with the rest of the
evidence and the surrounding circumstances, it may be relied on.

Retracted Confessions
When a person, having once recorded a confession which is relevant, goes
back upon it at the trial, saying either that he never confessed or that he
wrongly confessed or confessed under pressure, that is called a 'retracted'
confession, j
Where an extra-judicial confession was recorded by the village
assistant in the presence of the village administrative officer; the accused
made no reference to the confession in his statement recorded by the
C.J.M. under Sec. 164, Cr.P.C. and only said that he was innocent and had
not committed any offence, it was held that this could not be called a
retraction of the confession [Pakkirisamy v State of T.N. (1997) 8 SCC
158].
The Supreme Court has held that retraction is too insufficient a
reason for overruling a confession (State of T.N. v Kutty AIR 2001 SC
2778). A retracted confession may form the legal basis of a conviction if
the court is satisfied that it was true and voluntarily made. In the case of a
retracted confession, one has only to find out whether the earlier statement
which was the result of repentance, remorse and contrition was voluntary
and true or not and it is with that object that corroboration is sought for.
. Thus, a court shall not base a conviction on such a confession
without a general corroboration from independent evidence! (Piyare Lai v
State of Rajasthan AIR 1963 SC 1094). Even if a confession is
inculpatory, corroboration is necessary if the confession is retracted. The
court can take into consideration retracted confession against the
confessing accused and his co-accused.
The court upheld a conviction based on a retracted confession
because it became supported by discovery of smuggled articles from
different places of concealment (State v Madhukar Keshav Maity AIR
1980
120 Law of E v i d e n c e

SC 1224). In Shan/earl State of T.N. (1994) 4 SCC 478, conviction on the

basis of retracted confession was held not proper when the statement was
inconsistent with the medical evidence. 1
In a case, an accused was tried for murder. At the time of investigation
he made a confession giving full details as to the manner in which he
committed the murder. From him a bloodstained drawer and a banian worn
by him were seized. On the information of the accused, a bloodstained bed-
sheet was recovered. At the trial, the accused denied to have made the
confession voluntarily. The confession was held to be voluntary, the reason
for retraction untrue. On the above finding and also in the absence of any
other evidence, the evidence of blood on the drawer, banian and bed-sheet
were held to corroborate the confession and his conviction was upheld
(Sarvati Singh v State of Madras AIR 1954 SC 4).

Admissions Not Conclusive Proof, but they May Estop (Sec. 31)
"Admissions are not conclusive proof of the matters admitted, but they may
operate as estoppels under the provisions hereinafter contained."

For comments, see under Sees. 23 and 115.

 FURTHER QUESTIONS

Q.1. (a) A admits in some earlier proceedings in a court that the shop X
belongs to his brother B. In a suit between A and B about the
shop, B produces a certified copy of the statement of A in the
earlier suit. The court decides the suit in B's favour relying on the
admission of A in the earlier suit.

A files an appeal and pleads that the court erred in relying upon
the admission as B had not confronted him with his admission
when he appeared as a witness. Decide.
[LC./-95/96]

(b) How are admissions different from confessions

[C.L.C-92/94: L.C.I-95/96: LC.Il-93/2006\{D.U.-2007/20W}
Admissions & Confessions 121

Ll. (a) Admission made in an Earlier Suit

An admission is a statement which suggests some inference as to the
existence of a fact in issue or a relevant fact (Sec. 17). It has been held hat
Sec. 17 makes no distinction between an admission made by a party n his
pleading and other admissions. Therefore, an admission made by a person
in plaint signed and verified by him may be used as evidence against him
in other suits. Of course, the admission cannot be regarded is conclusive,
and it is open to the party concerned to show that the statement is not true
(Basant Singh v Janki Singh AIR 1976 SC 341).
The present problem is based on the following case:

LEADING CASE: BISHWANATH PRASAD v DWARKA

PRASAD [(1974) 1 SCC 78]
In this case, the question was whether certain properties belonged
to the defendant and certain others were liable to partition. The
opposite party had made statements in dispositions in an earlier
suit that they belonged to the defendant. Similar admissions
occurred in the written statement filed by the plaintiff and his
father in that suit. It was contended on behalf of the plaintiff,
relying on Sec. 145 of Evidence Act, that if a witness is to be
contradicted by his own earlier statement, the statement must be
put to him so that he may have an opportunity to explain it and
this was not done in the present case. Thus, the admission made
in an earlier suit cannot be used against the plaintiff.
The court observed: There is a cardinal distinction between
a party who is the author of a prior statement and a witness who
is examined and is sought to be discredited by the use of his prior
statement. In the former case, admission by a party is a
substantive evidence if it fulfils the requirements of Sec. 21, in
the latter case a prior statement is used to discredit the credibility
 of witness and does not become substantive evidence. In the
former there is no necessary requirement of the statement
containing the admission having to be put to the party because it
is evidence proprio vigore (of its own force). In the latter case the
court cannot be invited to disbelieve a witness on the strength
122 Law of E v i d e n c e

of the prior contradictory statement unless it has been put to him, as

required by Sec. 145.
Admissions are substantive evidence by themselves, though
they are not conclusive proof of the matters admitted. Admissions
duly proved are admissible evidence irrespective of whether the
party making them appeared in the witness-box or not and whether
he was confronted with these statements in case he made a statement
contrary to these admissions (vide Bharat Singh's case AIR 1966 SC
405).
The court further said that admissions are usually telling
against the maker unless reasonably explained, and no acceptable
ground to extricate the appellants from the effect of their own earlier
statements has been made out. The court, thus, held that an
admission in an earlier suit is a relevant evidence against the
plaintiff.]

Decision of the case in question

A's admission in an earlier suit will be a relevant evidence against him. Thus,
A will not succeed.
i(b) Distinction between Admission and Confession
There are many common features between an admission and a confession. In
both there is the acknowledgment of the existence of a fact in issue in the
case, which may in circumstances be accepted by the courts as a proof of the
truth and accordingly acted upon. In criminal proceedings, both can be used. 22
But there are obvious points of distinction too. The Act lays down different
rules as to their relevancy.
(1) Confessions find place in criminal proceedings only. Admissions are
generally used in civil proceedings, yet they may also be used in
criminal proceedings.
(2) Every confession is an admission, but every admission is not a
confession. The word 'admission' is more comprehensive and

22. State two similarities between "admissions" and "confessions." [LC.II-2006\

 Admissions & Confessions 123

includes a confession also. A confession is only a species of

admission.--}
A confession must either admit in terms the offence, or at any rate,
substantially all the facts which constitute the offence. While in an
admission, here is a mere acknowledgment of a fact suggesting an inference
as to fact in issue or a relevant fact.
An admission of a grossly incriminating fact, even a conclusively
incriminating fact, is not by itself a confession e.g. an admission that the
accused is the owner of, and was in recent possession of, the knife/revolver
which caused a death, with no explanation of any other man's possession, n
Veera Ibrahim v State of Maharashtra (AIR 1976 SC 1167), a person being
prosecuted under the Customs Act told the custom officers that he did not
mow that the goods loaded in his truck were contraband, nor they were
loaded with his instructions. Held that the statement was not a confession, but
it did amount to an admission of an incriminatory fact (namely, load >f
contraband goods) and was relevant under Sees. 17 and 2Lj
(3) A confession is the admission of guilt in reference to a crime and,
therefore, invariably runs against the interest of the accused. A
confession should necessarily be of inculpatory nature. The term
'admission' includes every statement whether it runs in favour of or
against the party making it, and that is why Sec. 21 permits a person,
in certain exceptional cases, to prove his own statements. It may be
noted that there is nothing in Evidence Act which precludes an
accused person from relying upon his own confessional statements
for his own purposes^
(4) An admission made to any person whatsoever is relevant whether he
be a policeman or a person in authority or whether it was the result of
an inducement or a promise. On the other hand, the confession to a
policeman or in police custody is irrelevant. Thus, the confession
must be free and voluntary, j
Further, a statement may be irrelevant as a confession but it may be relevant
as an admission. A statement not admissible as a confession may yet, for other
purposes be admissible as an admission against the person who made it.

23. Every confession is an admission but not vice-versa. Explain. [C.LC.-2006]

124 Law of E v i d e n c e

(5) A confession always proceeds from the accused or suspect person, but
in reference to admissions, the statements of certain persons, who are not
parties to the case, as admissions against the parties./

(6) The confession of an accused person is relevant against all his *-»
co-accused who are being tried with him for the same offence (Sec. 30). In
the case of admissions, statements of a co-plaintiff or those of a co-
defendant are no evidence against the others.

(7) The effect of an admission is that it does not constitute a conclusive

proof of the fact admitted, though it may operate as an estoppel
 against the party making the admission. A confession is considered
a satisfactory proof of the guilt of the accused, though as a rule
of prudence, the courts may require corroborative evidence.

Q.2. Discuss the facts and law as laid down in Aghnoo Nagesia
v State of Bihar (AIR 1966 SC 119). [L.C.I-94]

X goes to the police station and narrates the facts and

circumstances in which he killed his girl friend and her brother.
The police registered a case under Sec. 302, IPC against X and
arrested him. The FIR has four distinct parts: (a) -Particulars
^ relating to his identity, address, etc (b) Particulars relating to
motive and preparations (c) Particulars relating to the actual killing
(d) Particulars relating to after killing conduct such as hiding the
dead bodies, concealing the knife and his blood-stained clothes.

On the basis of this information, the police recovered the

dead bodies, knife and clothes. X is on trial and the FIR is
the only evidence against him. Decide in the light of relevant
case law!----------- [C.L.C-93/94]
The Supreme Court in Aghnoo Nagesia v State of Bihar has
observed "Sec. 27 is in form of a proviso, and partially lifts the
ban imposed by Sees. 24, 25 and 26." Elaborate the
observations by discussing the provisions mentioned therein
threadbare. [D.U.-2010]
A.2. The present problem is based on the following case:
LEADING CASE: AGHNOO NAGESIA v STATE OF BIHAR
(AIR 1966 SC 119)
The facts of the case are same as given in the case in question (above).
{The principal evidence was the confessional F.I.R. containing 18 parts
and there was no eye witness to the murders. . But the medical report
confirmed that the wounds on the dead bodies were caused by a sharp
weapor^The question for decision
Admissions & Confessions 125

was whether the statement (FIR) or any portion of it was admissible

in evidence. The appellant's contention was that the entire statement
is a confession made to a police officer and is not provable under
Sec. 25 against the appellants.)
The respondent State contended that Sec. 25 protects only
those portions of the statement which discloses the killing by the
appellant and rest of the statement is not protected under Sec. 25,
and is relevant under Sec. 27. )
[The court observed: A confession or admission is evidence
against the maker of it unless its admissibility is excluded by some
provisions of law. Sec. 24 excludes confessions caused by certain
inducements, threats and promises. Sec. 25 provides that no
confession made to a police officer shall be proved as against a
person accused of any offence (a confessional FIR, thus, hit by Sec.
25). Sec. 26 prohibits proof against any person of a confession made
by him in the custody of a police officer unless it is made in the
immediate presence of a magistrate. Sec. 27 is in the form of a
proviso or exception and partially lifts the ban imposed by Sees. 24-
26. These provisions have been made on grounds of public policy
and fullest effect should be given to them..
. The court further observed: A confession may consist of
several parts, and may reveal not only the actual commission of the
crime but also the motive, preparation, opportunity, provocation,
weapons used, intention, concealment of the weapon, and the
subsequent conduct of the accused. If the confession is tainted, the
taint attaches to each part of it. It is not permissible in law to separate
one part and to admit it in evidence as a non-confessional statement.
Each part discloses some incriminating fact, i.e. some fact which by
itself or along with other admitted or proved facts, suggests the
inference that the accused committed the crime, and though each part
taken singly may not amount to a confession, each of them being part
of the confessional statement partakes of the character of the
confession. If proof of the confession is excluded by any provision of
law, the entire confessional statement, in all its parts, including the
admissions
 126 Law of E v i d e n c e

of minor incriminating facts, must also be excluded, unless proof of

it is permitted by some other section. )
If an admission of an accused is to be used against him, the whole it
should be tendered in evidence, and if part of the evidence is
exculpatory and part inculpatory, the prosecution is not at liberty to
use in evidence the inculpatory part only. The accused is entitled to
insist that the entire admission, including the exculpatory part, must
be tendered in evidence.
.The court held that in the present case, no part of the
statement can be separated and the entire confessional statement
is hit by Sec. 25, except the formal part identifying the accused
as maker of the report and the portions within the purview of
Sec. 27. Thus, the information leading to the discovery of dead
bodies, knife and clothes is admissible in evidence, being the
'discovery of facts' under Sec. 27. This evidence is insufficient to
convict the appellant of the offence under Sec. 302, IPC. The
corroboration by medical report will not be sufficient, j

Decision of the case in question

The confession made by X is hit by Sec. 25, and only part (d) of it and
discovery of facts from it make it admissible under Sec. 27 (See Pulukuri
Kotayya v Emperor, Md. Inayatulla v State, in the text). The accused, X,
cannot be convicted on the basis of this evidence alone, as the only thing
proved is that accused knew where the dead bodies, weapons, etc. were.
Thus, he may be innocent or guilty. When two views of the evidence are
possible, the view that favours the accused should be taken. Moreover, under
criminal law, to establish the guilt of the accused, the prosecution has to
prove beyond any reasonable doubt. Thus, X is liable to be acquitted.

Q.3. Can any part or parts of the following statements made by the
accused person be admissible in evidence as confession,
under Sec. 27:

(a) A statement made to the police officer - "I was drunk, I was
driving the car at a speed of 80 miles per hour. I could see X on
the road at a distance of 80 yards. I did not blow the
Admissions & Confessions 127

horn, I made no attempt to stop the car. The car knocked down X".

(b) Z was tried tor the murder of Y whose dead body was recovered from
a well. Y was wearing certain ornaments, but they were not found on
his body. Z made a statement to the police - "I had removed the
ornaments, had pushed the body into the well and had pledged them
with X". The ornaments were recovered from X.

(c) A person in police custody gives information in these terms: "I was in
need of money. I took out 20,000 rupees from the cash-box. I
deposited the money in my Bank Account the same day". The police is
led to the Bank Account of the accused on the basis of information and
 confirms that 20,000 rupees were actually deposited by the accused
on the concerned day.

(d) In police custody, B makes the following statement: "I was jealous of
As success in business. I set fire to his shop and threw the petrol can
and the lighter in the bush". On the basis of the information the can
and lighter were recovered.
[C.LC.-91/92/95/96\ L.C.I-96; L.C.II-95]
A.3. Only such information as leads to discovery of facts is permissible; any self-
incriminatory statement or whatever else said by the accused at the time of
giving the information by way of giving introduction, or narrative or
explanation must be rigorously excluded as it leads to no discovery of
facts.
(a) The statement is irrelevant, as no part of it leads to discovery of facts
under Sec. 27.
(b) Only statement that is relevant under Sec. 27 is that the ornaments are
with X and that the accused knew about them.
(c) Only statement that is relevant under Sec. 27 is that Rs.20,000 were
found in the bank account of the accused.
(d) Only statement that is relevant under Sec. 27 is that petrol can and
lighter were found in bush, and the accused's knowledge about them.
128 Law of E v i d e n c e

Q.4. Is the following statement made to a police officer a

confession? Discussq its relevancy also in a trial of murder
- "My husband was suffering from bronchitis. He had a severe
attack of bronchitis. In confusion I administered him
Potassium Cyanide taking it to be a cough mixture. My husband
never coughed again. I removed the dead body and threw it
into a pond. I can point out the place where the dead body
was thrown". • [LC.I-95/96]
A.4. A confessional statement made to a police officer is inadmissible under
Sec. 25. However, by virtue of Sec. 27, that part or parts of statement
can be received in evidence which leads to discovery of facts. In the
present case, the place from where the dead body was recovered and
the accused's knowledge about it are thus relevant parts of the
statement.
The statement is also relevant under other provisions of the Evidence Act,
viz. under Sec. 7 (cause of the happening of fact in issue) and under Sec. 8
(conduct, previous or subsequent, of the accused).
 Statements by Persons Who
Cannot be Called as Witnesses:
Dying Declaration

Cases in which Statements of Relevant Fact by Person who is Dead or

Cannot be Found, etc. is Relevant (Sec. 32)
A statement (written or verbal) of relevant facts made by a person (i) who is
dead, (ii) who cannot be found, (hi) who has become incapable of giving
evidence, or (iv) whose attendance cannot be procured without unreasonable
delay or expense, is relevant under the following circumstances: j
. (1) When it relates to the cause of bis death, i
(2) When it is made in the course of business, such as an entry in books,
or acknowledgement of the receipt of any property, or date of a
document.
(3) When it is against the pecuniary or proprietary interest of the person
making it or when it would've exposed him to a criminal prosecution.
(4) When it gives opinion as to a public right/custom/matters of general
interest.
(5) When it relates to the existence of any relationship between persons as
to whose relationship the maker had special means of knowledge.
(6) When it relates to the existence of any relationship between persons
deceased and is made in any will or deed or family pedigree, etc.
-

[129]
130 Law of E v i d e n c e

(7) When it is contained in any deed, will or other document relating

to transaction mentioned in Sec 13(a).
(8) When it is made by several persons and expresses feelings relevant to
matter in question.
» Sec. 32 provides an exception to the principle of excluding hearsay
evidence. The principle behind is that a'person who has the first-hand
knowledge of the facts of a case, but who, because of death, disability, etc.
is not able to appear before the court, then his knowledge should be
transmitted to the court through some other person; the person who has
shared the knowledge of that person will be considered as the best
evidence. Thus, necessity and convenience are the underlying grounds^
(Proof of a person's death, disability, etc. will have to be offered in the
first instance to make the evidence relevant under Sec. 32jWhen a
statement is admitted under any of the eight clauses of this section, it is
substantive evidence, and has to be considered along with other evidence.
 Dying Declaration: Sec. 32 (1).
"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 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".
Illustration (a): The question is, whether A was murdered by B; or A dies
of injuries received in a transaction in the course of which she was
ravished. The question is, whether she was ravished by B; or The question
is, whether A was killed by B under such circumstances that a suit would
lie against B by A's widow.
Statements made by A as to the cause of his or her death referring
respectively to the murder, the rape and the actionable wrong under
consideration are relevant facts.
 Statements by Persons who cannot be called 131
as Witnesses: Dying Declaration
Principle
Sec. 32(1) incorporates the principle of English law relating to what are
popularly known as dying declarations. A 'dying declaration' means the
statement of a person who has died (by way of homicide or suicide) explaining
the cause or circumstances of his death. 1 As the person is lead, this statement
before the court would be 'hearsay' which is excluded are the reasons that party
against whom it is used has no opportunity of cross-examining the original
source, and it is not delivered under an oath, j
• See. 32 is an exception to the hearsay rule. The three-main grounds in
which dying declarations are admitted are:2
@ Death of the declarant,
(u) Necessity (only evidence available under the circumstances): the
victim being generally the only eye-witness to the crime, the
exclusion of his statement would tend to defeat the ends of
justice, and
(jii) The sense of impending death, which creates a sanction equal to the
obligation of an oath. Nemo moriturus presurnuntur mentri (no one
when about to die is presumed to lie). "Truth sits upon the lips of
dying men".)
The general principle on which this species of evidence is admitted is, that
they are declarations made in extremity, when the party is at the point of
death, and when every hope of this world is gone; when every motive o
falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth.
The reason for admitting dying declaration is well-reflected by
Shakespeare in Richard II, where he said - "Where words are scarce, they are
seldom spent in vain; They breathe the truth that breathe their words n pain".
Sec. 32(1) is a salutary provision of law and has helped in leaning convictions
in dowry death cases and hence contributed to controlling his grave social
evil.

1. What is meant by 'dying declaration'? [LC.I-96; LC.II-94]

2. What is the rationale of relevancy of dying declaration under our law?
[C.LC. -91/94/96]
Write a short note on: The principles on which dying declaration is admissible
in evidence despite being hearsay evidence. [D.U.-2007]
132 Law of E v i d e n c e

Distinction between English and Indian Law 3

There are several vital points of distinction between the English and the
Indian law on the point of admissibility of dying declaration:
(1) Firstly, in England, a dying declaration is relevant only in criminal
cases where the cause of death is in question. In India, such statements are
admissible both in civil and criminal proceedings; they are admissible even
if the trial is not for a person's death.
(2) Secondly, under English law, the dying declaration is admissible
only in the single instance of homicide i.e. murder or manslaughter.
In India, cases of 'suicide' are also covered.
(3) Thirdly, under English law, to be relevant, a dying declaration must
have been made in expectation of death. The declaration must be
made at a time when the maker is under settled and hopeless
expectation of death. A declaration made without appreciation of
immediate or impending death would not be admitted, however it is
not necessary that it should come immediately after the statement.
There is no such requirement under the Indian law. If the declarant
has in fact died and the statement explains the circumstances
surrounding his death, the statement will be relevant even if no
cause of death had arisen at the time of the making of the
statement.
(4) Fourthly, under English law, it is necessary that the deceased
should have completed his statement, before dying. In India, il the
deceased has narrated the full story, but fails to answer the last
formal question as to "what more he wanted to say", the
declaration can be relied upon.

Conditions of Admissibility (Essential requirements of a dying

declaration)4
, (1) To whom the statement is to he made and its form - A statement o:
dying declaration could be made to any person - a doctor, :

3. Is there any difference between English and Indian law on dying declaration?
[C.LC.-92A3
•A What are the essential requirements of a relevant dying declaration?
[C.LC.-91/94\[D.U,-200-/
134 Law of E v i d e n c e

But, statements made by the deceased that he was proceeding to the spot
where he was in fact killed, or as to his reasons for so proceeding, or that he
was going to meet a particular person, would each to them be circumstances
of the transaction.
In Palaka Narayana Swami v Emperor (AIR 1939 PC 47), the deceased
made a statement to his wife that he was going to the accused to collect
money from him (the accused being indebted to the deceased). He catch a
train for Berhampur, where the accused lived. A couple of days later, his
body was found in a trunk which had been purchased on behalf of the
accused. It was held that the statement made by the deceased to his wife was
admissible in evidence under Sec. 32(1) as a circumstance of the transaction
which resulted in his death, j
The Supreme Court in Sbarda Birdichand Sharda v State ofMaharashtra5
(AIR 1984 SC 1622), held that proximity depends upon facts and
circumstances of each case. In this case, a married woman had been writing
to her parents and other relatives about her critical condition at the hands of
her in-laws. She lost her life some four months later. Her letters were held
to be admissible as dying declaration. The court also pointed out that Sec.
32 (1) is applicable to cases of suicide also.
Thus, the statements made before a person has received any injury or
before the cause of death has arisen or before the deceased has any reason to
anticipate of being killed are relevant as dying declarations, but such
statements should have a direct relation to the cause or occasion of death.
Thus, where A committed suicide as a result of the ill-treatment by the
accused, that treatment was the cause, though not the direct cause, of the
death. The whole affair, ill-treatment and subsequent suicide, being all one
transaction, consequently the statement of the deceased was admissible
under Sec. 32(1).
(4) The cause of death must be in question - The declaration under Sec.
32(1) must relate to the death of the declarant.. In Re Dannu

5. The girl's last letter to her father was written a few hours before her death by
burning in which she had described in elaborate details the series of incidents
concerning dowry demands. She had also expressed apprehensions aboul
her well-being. Is such letter admissible evidence under Sec. 32(1)?
[C.LC.-95]
 Statements by Persons who cannot be called 135
as Witnesses: Dying Declaration
Singh v Emperor (25 Cr LJ 574), A and five other persons were
charged with having committed a dacoity in a village. A, who was
seriously wounded while being arrested, made before his death a
dying declaration as to how the dacoity was committed and who had
taken part in it. Held that declaration is not admissible in evidence
against the other persons, as it does not relate to his death, but it
relates to participation of his associates in the dacoity.
(5) The statement must be complete and consistent - If the deceased fail
to complete the main sentence (as for instance, the genesis or
motive for the crime), a dying declaration would be unreliable.
However, if the deceased has narrated the full story, but fails to
answer the last formal question as to what more he wanted to say, the
declaration can be relied upon [Kusa v State of Orissa (1980) 2 SCC
207].
A. dying declaration ought not to be rejected because it does not contain
details or suffers from minor inconsistencies. Merely because it is a brief
statement, it is not to be discharged. Shortness, in fact, guarantees truth (Oza v
State of Bihar AIR 1979 SC 1505). Where the bride recorded two
declarations, one to a police officer and other to a magistrate, they being
similar in material factors, evidence accepted though minor discrepancies
were there [Raoji v State of Maharashtra (1994) Cr LJ 15 (SC)].
In Kamla v State of Punjab (AIR 1993 SC 374), four dying declarations
were made by the deceased. One of them indicated the incident as an accident.
The accused (mother-in-law of the deceased) had been convicted on the basis
of another declaration implicating her. The court also found glaring
inconsistencies as far as naming the culprit was concerned. Held that the
conviction cannot be based upon such declarations.
(6) Declarant must be competent as a witness - It is necessary for the
relevancy of a dying declaration that the declarant, if he had
lived on, would have been a competent witness Thus, in a
prosecution for the murder of a child, aged 4 years, it was
proposed to put in evidence, as a dying declaration, what the
child said shortly before her death. The declaration was held to
be inadmissible [R. v Pike (1829) 3 C & P 598]. Thus, a dying
declaration of a child is inadmissible.
136 Law of E v i d e n c e

(7) Other points - Where the injured person was unconscious, dying
declaration should be rejected (R'aka Singh v State ofM.P. AIR 1982 SC
1021). Where for some unexplained reasons the person who noted down
(scribe) the statement was not produced, the declaration was not accepted
as evidence (Govind Narain v State ofRajasthan AIR 1993 SC 2457).
Where there are more than one declarations, the one first in point of time
should be preferred (Mohan Lai v State of Maharashtra AIR 1982 SC
839).
I (8) 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 (Mahmood Ilahi v
State of U.P., 1990 CrLJ 885). Similarly, a 'complaint' made to
police could be taken as a dying declaration \Jai Prakash v State
ofHaryana, 1999 CrLJ 837 (SC)].
A dying declaration recorded by police alone is relevant under Sec. 32 (1),
however, it is better to leave such a statement out of consideration unless the
prosecution satisfies the court as to why it was not recorded by a magistrate
or a doctor (Lakshmi v Om Prakash AIR 2001 SC 2383). Only because
certain names were included in F.I.R. but were not mentioned in dying
declaration does not detract from the value of dying declaration and would
not by itself prove the falsity of the declaration.

Evidentiary Value of Dying Declaration6

, There is no rule of law that a dying declaration should not be acted upon
unless corroborated. But, ordinarily, it is not considered safe to convict an
accused person only on the basis of a dying declaration because of its
inherent weaknesses (discussed below):
(1) It is hearsay evidence, not made on oath and its veracity cannot be
tested by cross-examination in the court.

6. What is the evidentiary value of a dying declaration? Can it be relied upon

without corroboration? [C. L. C-92; L C. 1-94/96; L C. 11-94]
 Statements by Persons who cannot be called 137
as Witnesses: Dying Declaration
(2) The maker of such a statement might be mentally and physically in a
state of confusion and might well be drawing upon his imagination
when he was making the declaration.
(3) Very often, the dying man takes that last opportunity to implicate all
his enemies.
(4) In weighing the evidence of dying declaration, various factors or
circumstances should be taken into consideration7:-
(a) Nature of its content, consistency of statements made at different
times;
(b) Capacity to remember facts; opportunity of dying man for
observation viz. availability of light if crime done at night, to
identify assailant.
(c) Proximity of time between it and the accident; whether the
statement made at the earliest opportunity and was not the result
of any tutoring or prompting by interested parties (relatives).
Thus, the opportunity to consult other persons is an important
factor^/
1 a wife burning case, the wife remained alive for about 8 days after
receiving burn injuries, but did not tell to any body visiting her in the hospital
as to how she came to receive the burns. When her uncle visited her she
stated that her husband had set her on fire. The Supreme Court held that
statement seemed to have been tutored by the uncle (State of ssam v M.
Ahmed AIR 1983 SC 274). However, the mere presence of datives is not in
itself sufficient to show that the declarant was tutored Habib Usman v State
of Gujarat AIR 1979 SC 1181). In K.R. Reddy's case, le deceased did not
disclose the name of assailants on the first opportunity e had but until later
when he made a declaration before the magistrate. : was held that there was
prompting by the cousin of the deceased, who applied the name.
Thus, it is necessary that the dying declaration must be subjected to
close scrutiny ('proved beyond reasonable doubt') in respect of all the

7. What precautions are required before convicting an accused solely on the

basis of a dying declaration? [C.L.C-95; LC.I-94]
138 Law of Evidence

relevant circumstances of the case. The declaration must be true and

voluntary.

Relevance of Circumstances of Transaction which Resulted in Death

LEADING CASE; PATEL HIRALAL JOITARAM v STATE OF GUJARAT

(AIR 2001 SC 2944)
Facts and Issue - In this case, the statement made by the deceased
woman in the FIR, where she wrongly mentioned the 2nd part of the
name of the accused had been clarified by her by giving a clarifying
statement under Sec. 161, Cr. P.C.
The first occasion on which she made the statement was when
she talked to a pedestrian, the victim herself was sitting beneath the
water column in the railway station frantically trying to get the
flames quelled. The sadhus nearby asked her as to who had done it
and she answered "Hiralal". A little later, she narrated the incident to
her husband. He stated that she had told him that Hiralal asked her
why she was defaming him by spreading the story that he had illicit
relations with her sister.
The victim did not mention the name of the assailant to the
doctor. Her main dying declaration was given to the executive
magistrate in which she clarified that in her earlier statement she
mentioned the name of the assailant as "Hiralal Lalchand", while
before the investigating officer she rectified her mistake and that it
was "Hiralal Joitaram" and not "Hiralal Lalchand".
The issue was whether her statement had been covered by Sec.
32(1) of the Evidence Act to be a reliable dying declaration.
Observations -(The Apex Court observed: By Sec. 32(1), two
categories .of statements are made admissible in evidence and further
made as substantive evidence. They are (a) statement as to the cause
of death (b) statement as to any of the circumstances of the
transaction which resulted in death. The second category can include
a far wider range of facts than the first category^
 Statements by Persons who cannot be called

139
as Witnesses: Dying Declaration
The court further observed: The words "statement as to any of
the circumstances" are by themselves capable of expanding the width
and contours of the scope of admissibility. When the word
"circumstances" is linked to "transaction which resulted in his death",
the sub-section casts the net in a very wide dimension. Anything which
has a nexus with his death, proximate or distant, direct or indirect, can
also fall within the purview of the subsection. As the possibility of
getting the maker of the statement in flesh and blood has been closed
once for all, the endeavour should be to include the statement of a dead
person within the sweep of relevancy and not to exclude it.
Admissibility is the first step and once it is admitted the court has to
consider how far it is reliable. Once that test of reliability is found
positive the court has to consider the utility of that statement in the
particular case.
In Sharad Birdhichand Sarda v State of Maharashtra (1984) 4
SCC 116, a three-judge Bench of this court considered the scope of
Sec. 32(1). It was laid down that the legislature has thought it
necessary to widen the sphere of Sec. 32 for avoiding injustice. The
court observed: "The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket. Distance
of time would depend or vary with the circumstances of each case....
Entire statement would have to be read as an organic whole and not
torn from the context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to
light only after the death of the deceased who speaks from death."
Decision - The court held: Looking at the dying declaration in the
above perspective, there is no doubt that her statement is inextricably
intertwined with the episode in which she was burnt and eventually
died of such burns. Thus, the clarificactory statement made by the
deceased under Sec. 161, Cr.P.C. would fall within the ambit of Sec.
32 (1) of the Evidence Act.
140 Law of Evidence

Comments - In the above-discussed case, the Supreme Court has

emphasized the need for efforts by courts, as far as possible, to
include a statement within the scope of Sec. 32(1). Hence,
statements as to any of the circumstances of the transaction which
resulted in the death would be included.
In Rattan Singh v State of H.P. (AIR 1997 SC 768), the
statement of a woman made before the occurrence in which she died
that the accused was standing near her with a gun in his hand and
this fact being one of the circumstances of the transaction was held
to be admissible as a dying declaration being proximate in point of
time and space to the happening.
 The court observed: When the deceased made the statement
that appellant was standing with a gun she might or might not have
been under the expectation of death, but that does not matter. The
fact spoken by her has subsequently turned out to be a circumstance
which intimately related to the transaction which resulted in her
death. The collection of the words in Sec. 32(1) "circumstances of
the transaction which resulted in his death" is apparently of wider
amplitude than saying "circumstances which caused his death".
There need not be direct necessary nexus between "circumstances"
and "death". It is enough if the words spoken by the deceased have
reference to any circumstances, which has connection with any of
the transaction which ended up in the death of the deceased.
In Dalbir Singh v State of U.P. (ADR. 2004 SC 1990), a letter
written by the deceased wife prior to her death was held to be
admissible in evidence as it disclosed the cause of her death or
circumstances which resulted in her death. However, where there
was a telephonic conversation between the deceased and one of the
witnesses but it did not relate to the cause of his death or to any of
the circumstances of the transaction which resulted in his death, it
was held that the statement did not come within the purview of Sec.
32(1) [Jayendra Saraswathi Swamigal v State of T.N. (2005) 2 SCC
13].
 Statements by Persons who cannot be called 141
as Witnesses: Dying Declaration LEAPING CASE: SUDHAKAR
V STATE OF MAHARASHTRA [(2000) 6 SCO 671J

Facts and Issue - In this case, a school teacher aged about 20 years
was allegedly raped by the head master and a co-teacher. The
prosecutrix narrated the incident to her mother, brother and uncle and
two or three days later to her father. The matter was reported to the
police 11 days after the incident in which she narrated the whole
incident and explained the delay for not lodging the report earlier. The
doctor who examined the prosecutrix reported that she had been
subjected to sexual intercourse in the recent past. Unable to withstand
the humiliation of rape she committed suicide. The autopsy showed
that the cause of death was poisoning. The prosecution relied upon the
statement made to the police. The courts below also relied upon the
aforesaid statement treating it as the dying declaration being
admissible in evidence under Sec. 32 of the Evidence Act. The issue
related to the admissibility of the aforesaid statement as a dying
declaration.
Observations - The court observed that the statement of the prosecutrix
(made to the police) does not directly state any fact regarding the
cause of her death. At the most, it would be said to relate to the
"circumstances of the transaction" resulting in her death. {The phrase
"circumstances of the transaction" was considered and explained in
Pakala Narayan Swami v Emperor (AIR 1939 PC 47):
"The circumstances must be circumstances of the transaction:
general expressions indicating fear or suspicion whether of a
particular individual or otherwise and not directly related to the
occasion of the death will not be admissible. But statements made by
the deceased that he was proceeding to the spot where he was in fact
killed, or as to his reasons for so proceeding, or that he was going to
meet a particular person, or that he had been invited by such person
to meet him would each of them be circumstances of the transaction,
atjfl would be so whether the person was unknown, or was not the
person accused. Such a statement might indeed be exculpatory of the
person accused.
142 Law of E v i d e n c e

'Circumstances of the transaction' is a phrase no doubt that conveys

some limitations. It is not as broad as the analogous use in
'circumstantial evidence' which includes evidence of all relevant facts.
It is on the other hand narrower than 'res gestae'. ^Circumstances must
have some proximate relation to the actual occurrence: though, as for
instance, in a case of prolonged poisoning they may be related to dates
at a considerable distance from the date of the actual fatal dose. It will
be observed that 'the circumstances' are of the transaction which
resulted in the death of the declarant. It is not necessary that there
should be a known transaction other than that the death of the declarant
has ultimately been caused, for the condition of the admissibility of the
evidence is that 'the cause of (the declarant's) death comes into
question'."
Decision - In the present case, there is no legal evidence on record
that the prosecutrix at or about the time of making the statement had
disclosed her mind for committing suicide allegedly on account of the
humiliation to which she was subjected to on account of the rape
committed on her person. The circumstances stated in the statement
made to the police do not suggest that a person making such a
statement would under the normal circumstances, commit suicide
after more than five-and-a-half months. The High Court was,
therefore, not justified in relying upon the aforesaid statement as a
dying declaration holding that the said statement was in series of
circumstances of the transaction which resulted in the death of the
deceased^
Comments - The words "as to any circumstances of transaction which
resulted into his death" appearing in Sec. 32 makes it clear that the
circumstances resulting in death must have proximate relation to
actual occurrence. In other words, the statement of the deceased
relating to cause of his death or circumstances of transaction which
led to his death must be sufficiently and clearly related with the actual
transaction[Kans Raj v State of Punjab AIR 2000 SC 2324].
 Statements by Persons who cannot be called 143
as Witnesses: Dying Declaration Dying Declaration can
be used as a Sole Basis of Conviction8
In Rom_ Natb Madbo Prasad v State of M.PU (AIR 1953 SC 420), the supreme
Court observed: "It is settled law that it is not safe to convict an accused
person merely on the evidence furnished by a dying declaration without
further corroboration because such a statement is not made on oath and is
not subject to cross-examination..."
By subsequent decisions, however, the Court has over-ruled its above
ruling, i

LEADING CASE: KHUSHAL RAO v 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 There are divergent
views of different High Courts in this regard. According to Bombay High
Court, dying declaration is a weaker type of evidence and requires
corroboration. According to Calcutta High Court, it is not permissible to
accept a declaration in one part and reject the other part. According to Madras
High Court, a declaration can be relied without corroboration, if the court is
convinced of its truth, i.e., there is no suspicion of its credibility.
The Supreme Court, agreeing with Madras High Court, laid down
the following principles:
(1) There is no absolute rule of law that a dying
declaration cannot be the sole basis of conviction
unless corroborated.
(2) Each case must be determined on its own facts
keeping in view the circumstance in which the dying
declaration was made.

"There is no absolute rule of law that dying declaration can not form the sole
basis of conviction, unless it is corroborated". Comment and elaborate what
are the tests laid down by the Supreme Court in Khushal Rao v State of Bombay
for judging the veracity of Dying Declaration. [LC.II-93][D.U.-2009]
State the correct proposition of law in view of the Supreme Court's decision in
Ram Nath Madho Prasad case and its over-ruling in subsequent decisions?
[D.U.-2010]
 144 Law of E v i d e n c e

(3) A dying declaration is not a weaker kind of evidence

than any other piece of evidence. It stands on the
same footing as any other piece of evidence.
(4) A dying declaration cannot be equated with a confession
or evidence of approver, as it may not come from a
tainted source. If it is made by a person whose
antecedents are as doubtful as in the other cases, that
may be a ground for looking upon it with suspicion.
(5) Necessity for corroboration arises not from any
inherent weakness of a dying declaration as a piece of
evidence, but from the fact that the court in a
particular case come to the conclusion that a
particular declaration is not free from infirmities.
(6) To test the reliability of a dying declaration, the court
has to keep in view the circumstances like the
opportunity of the dying man of observation, e.g.
whether there was sufficient light if the crime was
committed at night; whether the capacity of the
declarant was not impaired at the time of the
statement; that the statement has been consistent
throughout if he had several opportunities 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.
(7) A dying declaration recorded by a competent
Magistrate in a proper manner in the form of
questions and answers, and in the words of the 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.
(8) If the court, after taking everything into
consideration, is convinced that the statement is true,
it is its duty to convict, notwithstanding that there is
no corroboration in the true sense. The court must,
of course, be fully convinced of the truth of the
statement, and naturally, it could not be fully
convinced if there were anything in the surrounding
circumstances to raise suspicion as to its credibility.
 Statements by Persons who cannot be called 145
as Witnesses: Dying Declaration
Thus, a true and voluntary declaration needs no corroboration.9.
The statement of the deceased in this case satisfied all these,
conditions (the declaration was true in all respects e.g. consistent
in so far as naming of the two accused) and therefore the
appellants should be convicted.10

LEADING CASE: KUSA V STATE OF ORISSA (AIR 1980 SC 559)

In this case, the deceased made a dying declaration before a doctor. It was clear in all respects.
However,, the appellants challenged it on the following grounds: (1) It did not contain all those names
which were included in F.I.R. (2) The account of eye-witnesses is also different (3) The deceased was
in a state of shock, thus his statement could not be relied (4) The declaration was incomplete as the
deceased did not answered the last question put to him (To wind up the statement the doctor asked the
injured if he had anything else to say, he lapsed into unconsciousness without answering this question).
The court observed that only because certain names were included in F.I.R. but were not
mentioned in dying declaration does not detract from the value of dying declaration and would not by
itself prove the falsity of the declaration. In Surat Singh's case, the first declaration did not mention the
name of eyewitnesses, but the second declaration (which was more detailed) contained it. The court
observed that first declaration was a

9. "The court must be fully satisfied that the dying declaration has the impress of truth on it, after examining all the
circumstances, in which the dying person made his statement ex parte and without the accused having tne
opportunity of cross-examining him. If on such an examination the court was satisfied that the declaration was the
true version of occurrence, conviction could be based solely upon it". Elaborate it with the help of relevant case law.
[C.L.C-93]
10. In a dowry death case the only evidence on record are three dying declarations of the victim, given to an immediate
neighbour, the attending doctor and the Magistrate. In all the three declarations there is mention of the two
accused. Can these dying declarations be the sole basis of conviction in the case?
[C.LC.-96]
146 Law of E v i d e n c e

short version of the entire incident and contained true facts when the deceased was under great pain.
The court further observed: The statement of doctor was that deceased became semi-conscious
when last question was put to him. Logically it means that prior to that he was fully conscious. The
last question was in the nature of a mere formality "What more you want to say", and all the
necessary questions were asked before that formal question. The statement was thus not incomplete. 11
The court thus held that once the declaration is believed (true, consistent, coherent), it can be
relied upon for conviction, even if there is no corroboration {Khmhal Rao v State of Bombay AIR
1958 SC 22). In Lallubhai v State of Gujarat (AIR 1972 SC 1776), a married woman was burnt to
death by her in-laws, her dying declaration was accepted and conviction was based solely on the basis
of the declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always
form the basis of conviction of the accused. The court, in the present case, thus convicted the
appellants on the basis of the dying declaration.

LEADING CASE: P.V. RAOHAKRISHNA V STATE OF KARNATAKA (AIR 2003 SC 2859)

In this case of wife-burning, the Apex Court highlighting the utility of dying declaration, observed:
"The principle on which a dying declaration is admitted in evidence is indicated in Latin maxim nemo
moriturus proesumitur mentiri, a man will not meet his maker with a he in his mouth." The court further
 observed that a person on death bed is in a position so solemn and serene that it is equal to the
obligation under oath. For this reason, the requirement of oath and cross-examination are dispensed
with. The victim being generally the only principal eye witness to the crime, the exclusion of the
declaration might defeat the ends of justice.

11. A question based on the same facts [C.LC-94]

 Statements by Persons who cannot be called 147
as Witnesses: Dying Declaration
Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as an
obligation of oath could be. This is the reason the court also insists
that the dying declaration should be of such a nature as to inspire
full confidence of the court in its correctness. The court must be
satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. The court has to
be on its guard and see for itself that the declaration is voluntary
and seems to reflect the truth.
This court has laid down governing principles (precautions) in
several judgments, which could be summed up as under:12
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without
corroboration. If the court is satisfied that dying
declaration is true and voluntary it can base conviction
on it without corroboration [State of IIP. v Ram Sagar
Yadav AIR 1985 SC 416; State of Karnataka v Sheriff
AIR 2003 SC 1074].
(ii) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
(iii) The court has to scrutinize the dying declaration
carefully and must ensure that it is not the result of
tutoring, prompting or imagination.
(iv) Where the deceased was unconscious and could never
make any dying declaration, the evidence with regard
to it is to be rejected \Kaka Singh v State of M.P. AIR
1982 SC 1021].
(v) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected
(AIR 1981 SC 617).

12. Whether the sole testimony of the dying declarant can be made the basis of
conviction or not? Examine in the light of related judicial interpretation. In such
a context, how is judge expected to appreciate the evidence of dying
declaration? [LC.II-2006][C.L.C.-2006\[D.U.-2007/2010/2011]
148 Law of E v i d e n c e

(vi) Brief statement not to be discarded. Shortness of the statement itself

guarantees truth [Surajdeo Oza v State of Bihar AIR 1979 SC 1505].

(vii) Where the prosecution version differs from the version as given in
the dying declaration, the said declaration cannot be acted upon [State of
U.P. v Modem Mohan AIR 1989 SC 1519].

(viii) In case of more than one statement, the first in point of time must
be preferred. If plurality is trustworthy and reliable it has to be accepted
[Mohanlal Gangaram Gehavi v State of Maharashtra AIR 1982 SC
839].

(ix) Normally the court in order to satisfy whether the deceased was in a
fit mental condition (so as to observe and identify the assailant) to make
the dying declaration looks up to the medical opinion. But where the eye
witness or Magistrate said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinion cannot prevail.
[Laxman v State of Maharashtra (2002) 6 SCC 710]

Regarding the percentage of burns and credibility of statement, this court

(in the present case) held that there is no hard and fast rule of universal
application in this regard. Much would depend upon the nature of the
burn, its effect and impact on faculties (mental abilities). Percentage of
burns alone would not determine the probability or otherwise of makings
or a dying declaration. It was held that the High Court was justified in
placing reliance on the dying declaration.] In Narain Singh v State of
Haryana (AIR 2004 SC 1616), the Apex Court observed that, dying
declaration though an exception to the hearsay rule but like any other
evidence, it has to pass the test of credibility. If found reliable, it can be
the basis of conviction. It can be acted upon ii reference to one accused
though not in reference to others. In Ravi j State of Tamil Nadu (2004) 10
SCC 776, it was held that if the truthfulness.
Statements by Persons who cannot be called 149
as Witnesses: Dying Declaration

of dying declaration cannot be doubted, the same alone can form the basis of
conviction without any corroboration. In R. Mani v State of T.N. (2006) 3
SCC 1661, it was held that a dying declaration must be wholly reliable, and if
not wholly true it can be treated only as a piece of evidence but no conviction
can be made solely on its basis.
In the "Pramod Mahajan Murder" case (The Times of India, December 8,
2007), the dying declaration played an important part. The victim, pramod
Mahajan, named Pravin Mahajan (his brother and the accused) s the person
who shot him while he was being rushed to the hospital. The trial court
treated it as a dying declaration since it was made to jopinath Munde, a
former minister and a responsible citizen who was not expected to lie to the
court. The 'conduct of the accused before and after the shooting' also went in
his disfavour. The court took into consideration the fact that the accused had
left his home on the morning of the murder with the murder weapon. This
indicated that it was a premeditated act. The accused did not try to rush his
brother to a hospital f (as claimed by him) he had shot him accidentally after
a scuffle. Also, he accused came to the victim's house in the early hours of the
morning when the victim was to be most "vulnerable".

discrepancy in Dying Declarations: Credibility of Dying

Declaration
In Kishan Lai v State of Rajasthan (AIR 1999 SC 3062), certain dying
declarations were made by the deceased nearly two months after the incidence
of burning. In the first oral declaration made before her relatives, the deceased
mentioned the names of the accused. In the second declaration before the
magistrate she could not mention the name of the accused on the ground that
she could not recognize any accused because of fire darkness coming to her
eyes. Second declaration not only giving to conflicting version but there was
inter se discrepancy in depositions of witnesses given in support of the oral
dying declaration. Also, the medical evidence clearly showed that the
deceased died due to some aliments and not due to burn injuries. The court
held that in such circumstances the conviction cannot be based on such dying
declarations/")
The court also observed: Under Indian law, the dying declaration is
relevant whether the person who makes it was or was not under expectation
 150 Law of E v i d e n c e

of death at the time of declaration. While the English law admits statement/
statements only when it is made when the declarant is in actual danger of
death (i.e. full apprehension of danger of death/hopeless condition), and,
expecting imminent death. >Though under Indian law, imminence or danger
of death does not affect the admissibility of a dying declaration but it will
have effect on its credibility. In the present case, the dying declaration was
not at a time when the deceased was expecting imminent death.)
In Girdhar Sbankar Tawade v State of Maharashtra (AIR 2002 SC
2078), the Apex Court observed that it is well settled that dying declarations
have to be dealt with due care and admitted as evidence only upon proper
circumspection. In Sheikh Mehboob alias Hetak v State of Maharashtra 2005
(3) SCALE 55, the endorsements in medical record mentioned that there was
history of 'accidental burns' at one place and at another place that there was
history of 'self-inflicted burns'. Dying declaration itself mentioned that the
deceased had started to make a statement which suggested of his having
poured kerosene oil on himself and set himself on fire as the accused was
demanding interest and beating him. The circumstances raised serious doubts
as to the credibility of dying declaration. Therefore, it was held to be not
reliable.

Dying Declaration Made to Police whether Admissible13

LEADING CASE: STATE OF KARNATAKA v SHARIFF

(AIR 2003 SC 1074)
f In this case, the deceased, wife of the respondent, before
succumbing to injuries, made statement to the A.S.I. The question
arose whether the dying declaration made before the police office is
reliable and admissible as evidence.\The court observed that a
dying declaration recorded by police cannot be discarded on

13. L, a lady shareholder in a property was called by her relatives in connection

with settling the dispute relating to joint property. On her arrival, kerosene was
poured on her and she was set ablaze. L died 5 days later. A statement in the
nature of complaint was recorded by police officer in the hospital where she
breathed last. Can the said complaint be treated as dying declaration in spite of
the fact that some precautions of taking down such complaint were missing.
[D.U.-2009]
 Statements by Persons who cannot be called 151
as Witnesses: Dying Declaration

that ground alone. There is no requirement of law that a dying

declaration must be made to a magistrate.
However, this court had laid down that it is better to leave such
a statement out of consideration unless the prosecution satisfies the
court as to why it was not recorded by a magistrate or a doctor
[Dalip Singh v State of Punjab AIR 1979 SC 1173; Lakshmi v Om
Prakash AIR 2001 SC 2383]. In Munnu Raja v State ofM.P. (1976) 3
SCC 104, this court observed:
"The practice of investigating officers himself recording a
dying declaration during the course of investigation ought not to be
encouraged. We do not mean to suggest that such dying declarations
are always trustworthy, but what we want to emphasise is that better
and more reliable methods should be taken recourse to and the one
recorded by the police officer may be relied upon if there was no
time or facility available to the prosecution for adopting any better
method."
In the aforesaid case, the court admitted the statement made to
I.O. at the Police Station by the deceased as admissible evidence. In
State of Punjab v Amarjit Singh (AIR 1988 SC 2013), it was
observed that no hard and fast rule could be laid down in this regard
and it all depends upon the facts and circumstances of each case.
In the present case, it was also held that a dying declaration
need not be in question-answer form. Very often the deceased is
merely asked as to how the incident took place and the statement is
recorded in a narrative form. In fact such a statement is more natural
and gives the version of the incident as it has been perceived by the
victim. In Ram Bihar Yadav v State of,Bihar (1998) 4 SCC 517/it
was held that a dying declaration which was not in question-answer
form can be accepted. It should, however, be in the actual words of
the maker of the declaration.])

Medical Opinion and Dying Declaration

Normally the court in order to satisfy whether the deceased was in a fit mental
condition (so as to observe and identify the assailant) to make the dying
declaration looks up to the medical opinion. But where the eye
152 Law of E v i d e n c e

witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail [Laxmanv State
of Maharashtra (2002) 6 SCC 710]. i
In the aforesaid case, the Constitution Bench observed that where the
medical certificate indicated that the patient was conscious, it would not be
correct to say that as there was no certification as to the state of mind of
declarant the statement recorded by the Magistrate was inadmissible. The
Magistrate in his evidence had stated that he had put some questions to the
victim to find out whether she was able to make statement and on being
satisfied he had recorded the statement of the deceased. The court said that
what is essentially required is that the person who records the statement must
be satisfied that the injured person was in a fit state of mind. Certification or
examination by the doctor is only a rule of caution. Thus, a "voluntary and
truthful" dying declaration without a doctor's endorsement that the victim was
mentally fit to make the statement could be the basis for convicting an
accused.
The court relied upon an earlier decision in Ravi Chander v State of
Punjab (1998) 9 SCC 303, wherein it was observed that the Magistrate being
a disinterested witness and a responsible officer and there being no
circumstances or material to suspect that the Magistrate had any animus
against the accused or was in any way interested for fabricating a dying
declaration, question of doubt on the declaration, recorded by the Magistrate
does not arise.
The court overruled its earlier decision in Paparambaka Rosamma v
State of A.P. (1999) 7 SCC 695, wherein it was held that in the absence of a
medical certification that the injured person was in a fit state of mind at the
time of making the declaration, it would be very much risky to accept the
subjective satisfaction of a Magistrate who opined that the injured was in a
fit state of mind at the time of making a declaration.
In Rambai v State of Chhattisgarh (2002) 8 SCC 83, the court held
that dying declaration will not become invalid solely on the ground that it is
not certified by the doctor. In Sanmugam alias Kulandai Vellu v State of T.N.
(AIR 2003 SC 209), the dying declaration was recorded by the Magistrate
within few hours the victim was admitted to the hospital. The Magistrate in
his examination stated that victim was conscious. Medical officer present at
the time of recording of dying declaration also made
 Statements by Persons who cannot be called 153
as Witnesses: Dying Declaration
endorsement about consciousness of the victim. Held that mere non-
examination of doctor in whose presence the dying declaration was recorded
does not affect its evidentiary value.
In Gaffar Badshaha Pathan v State of Maharashtra (2004) 10 SCC 589,
vas held that a dying declaration could not be rejected on the ground it
does not contain an endorsement of the doctor of the fitness of : victim to
make the statement, as the certificate of the doctor only shows that the
victim was in a conscious state.

Statements Made in Course of Business [Sec. 32(2)]

c. 32(2) declares relevant statements made by a person in the ordinary
course of business and in particular when it consists of an entry/
memorandum in books; or in the discharge of professional duty; or
knowledgement of the receipt of any property; or of the date of a
letter/document usually written or signed by him.
Where the question is as to a person's date of birth, an entry in the entry
of a deceased surgeon regularly kept by him stating that on a certain date he
attended that person's mother and delivered her of a son relevant [Must, (b),
Sec. 32]. Similarly, where the question is whether a person was in Calcutta
on a given date, entries in the diary of a deceased solicitor (regularly kept by
him) that he attended that person at a place . Calcutta is relevant [Must. (c)].
Must, (g) reads: The question is, whether , a person who cannot be found,
wrote a letter on a certain day. The ct that a letter written by him is dated on
that day is relevant.

Statements Against Interest of Maker [Sec. 32(3)]

Under Sec. 32(3), "declarations against interest" include statements against
le pecuniary or proprietary interest of the person making it, or when it would
have exposed him to a criminal prosecution or suit for damages.
The question is whether rent was paid to A for certain land. A letter from
A's deceased agent to A, saying that he had received the rent on A's account
and held it at A's orders, is a relevant fact [Must. (e)]. The question is
whether A and B were legally married. The statement of a deceased
clergyman that he married them under such circumstances that be celebration
would be a crime, is relevant [Must. (f)].
154 Law of E v i d e n c e

Sec. 32(3) is based on the ground that what a person says against his
own interests is very likely to be true. Thus, a statement made by a deceased
in a deed, to the effect that he is governed by the Mitakashara law, is against
his proprietary interest and admissible. A statement by a landlord who was
dead, that there was a tenant on the land, was a statement against his
proprietary interest and was held admissible.

Declaration as to Public Rights [Sec. 32(4)]

Sec. 32(4) deals with declarations of deceased persons as to public right or
custom, or matters of general interest. It is necessary that he made the
declaration before any controversy as to such right, custom or matter had
arisen. If the statement is regarding a private right, it cannot be admitted
under this clause.
The person making the declaration should be a person of competent
knowledge. Illust. (i) to Sec. 32 reads: The question is, whether a given road
is a public way. A statement by A, a deceased headman of the village, that
the road was public, is a relevant fact.

Declaration as to Relationship or Pedigree [Sec. 32 (5) & (6)]

Sec. 32(5) provides that a statement will be relevant when it relates to the
existence of any relationship by blood, marriage or adoption as to whose
relationship the maker had special means of knowledge and was made when
before the question is dispute arose (i.e. ante litem mortem and not post
litemmortem).
Thus, the statements made by deceased members of a family (in a
pedigree or horoscope) are admissible in evidence if they are made before
there was anything to throw doubt upon them. Illust. (k) to Sec. 32 reads:
The question is, whether A, who is dead, was the father of B. A statement by
A that B was his own son, is a relevant fact. Similarly, when the question
was whether a certain person was the legitimate child, declaration by his
deceased father and mother that he was born before marriage, was held to
be admissible.
While Sec. 32(5) refers to statement relating to the existence ol
relationship between any person (living or dead), Sec. 32(6) is concerned
with deceased persons only. Further, while under Sec. 32(5), the evidence
 Statements by Persons who cannot be called 155
as Witnesses: Dying Declaration
is the declaration of a person who is deceased or whose attendance annot be
secured; under Sec. 32(6), the evidence is that of concrete lings and is always
written e.g. will or deed, tombstone, family pedigree/ ortrait, coffin plates,
etc.
Must. (1) reads: The question is, what was the date of birth of A. L letter
from A's deceased father to a friend, announcing the birth of A n a given day,
is a relevant fact. Must, (m) reads: The question is, whether, and when, A and
B were married. An entry in a memorandum ook by C (B's deceased father)
of B's marriage with A on a given date, i a relevant fact.

Statements in Documents as to Custom or Right [Sec. 32(7)]

Under this clause, evidence can be given of a statement made in any leed,
will, etc. which relates to any transaction by which any right or ustom was
created, claimed, modified, denied, etc.

Statement of Several Persons Expressing Feelings [Sec. 32(8)]

A statement is relevant if it was made by a number of persons and expressed
feelings or impression on their part relevant to the matter in question. This
section may be compared with Sec. 14, which deals with expression of
feelings by an individual. Must, (n) to Sec. 32 reads: A sues J for a libel
expressed in a painted caricature exposed in a shop window. The question is
as to the similarity of the caricature and its libelous character. The remarks of
a crowd of spectators on these points may be proved.

Relevancy of Evidence in Prior Judicial Proceedings (Sec. 33)

Evidence given by a witness in a judicial proceeding or before any authorized
person, is relevant for the purpose of proving, in a subsequent judicial
proceeding the truth of the facts which it states, when the witness s dead or
cannot be found, or is incapable of giving evidence, or is kept but of the way
by the adverse party, or cannot be produced without unreasonable delay or
expense.
Provided that the proceeding was between the same parties; that the
idverse party in the first proceeding had the right and opportunity to
156 Law of Evidence

cross-examine; that the questions in issue were substantially the same in the
first as in the second proceeding."
Explanation: A criminal trial or enquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.
Evidence of deposition in former trials is admissible, as it forms an
exception to the hearsay rule. Sometimes it so happens that a person who has
personal knowledge of the facts of a case, did appear before a court and his
testimony was recorded, but at a later stage of the same proceeding or in a
subsequent proceeding, he is not available as a witness; in such cases Sec. 33
applies. The section will apply, for example, when an ex parte decree is set
aside and a new trial is ordered.

STATEMENTS MADE UNDER

SPECIAL CIRCUMSTANCES

Entries in Books of Account when Relevant (Sec. 34)

"Entries in 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 enquire; but such statements are
not alone sufficient evidence to charge any person with liability."
Illustration: A sues B for Rs. 1,000 and shows entries in his account book
showing B to be indebted to him to this amount. The entries are relevant, but
are not sufficient, without other evidence, to prove the debt.
Entries in the diary ("Jain Hawala Diary Case") showing certain
payments made to a political leader were not admitted as evidence. The diary
showed no dates on which the payments were supposed to have been made.
Such diary cannot be regarded as a book maintained in the regular course of
business [L.K. Advani v CBI, 1997 CrLJ 2556 (Del)]. Entries, even if
relevant, are only corroborative evidence. Independent evidence, like the
evidence of a transaction which brought about the entry, as to the
trustworthiness of the entry would be necessary to fasten anybody with
liability [CB/v V. C. Shukla (1998) 3 SCC 410].
 Statements by Persons who cannot be called 157
as Witnesses: Dying Declaration
Relevancy of Entries in Public/ Electronic Record (Sec. 35)
“An entry in any public or other official book/register/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 especially enjoined by the law of the country in which such book, record,
etc. is kept), is itself a relevant fact." Sec. 35 is based upon the principle that
public records maintained in the performance of official duties must carry a
prima facie evidentiary value of their correctness. Thus, a municipal record of
a person's date of birth or death is relevant to prove the date of birth or death of
person concerned. There is, however, no presumption that such entries reflect
only the truth. Though school register is relevant for showing date of birth,
but in the absence of the material on the basis of which the entry was made, it
would not be of much evidentiary value (Birad Mai Singhvi v. Anand Purohit
AIR 1988 SC 1976). A statement of age in the pleadings of a party has been
regarded as an evidence of his age.

Relevancy of Statements in Maps, Charts, etc. (Sec. 36)

According to Sec. 36, statements in maps, plans or charts which are meant for
public sale or which are prepared with the authority of the State do carry
prima facie evidentiary value of the truth of their contents and, therefore, can
be offered in evidence whenever the facts stated in them are in issue or are
otherwise relevant.

Relevancy of Statements in Acts of Parliament of England or India

(Sec. 37)
"Statements of any facts of a public nature (as to the existence of which the
Court has to form an opinion) made in a recital contained in any Act of
Parliament of the U.K. or in any Central or Provincial Act or a State Act or in
a Government Notification in the Official Gazette are relevant facts."
The Gazetted statements are the best evidence of facts stated in the
Gazette and are entitled to due consideration but should not be considered as
conclusive in respect of matters requiring judicial adjudication [Vimal Bai v
Hiralal Gupta (1990) 2 SCC 22].
158 Law of E v i d e n c e

Relevancy of Statements as to Law in Law Books of a Foreign

Country (Sec. 38)
When the court has to form an opinion as to law of any country, any statement
of the law of that country contained in a book printed or published under the
authority of the Government of such country and any report of a ruling of the
courts of such country, is relevant.

HOW MUCH OF A STATEMENT IS TO BE PROVED

What Evidence to be given when Statements forms Part of a
Conversation, Document, etc. (Sec. 39)
According to Sec. 39, where a long statement/conversation/document/
electronic record/book/series of letters or papers, is relevant to any proceeding
the court may in its discretion require the production of only so much of the
statement/ conversation/document, etc. as is necessary for a full understanding
of the statement in the particular case.
The section has been substituted by the Information Technology Act,
2000, so as to include 'electronic records' also.

JUDGMENTS OF COURTS OF JUSTICE WHEN

RELEVANT

The general principle of law is that judgments whether previous or subsequent

are not relevant in any case or proceeding. Every case has to be decided upon
its own facts as they exist between the parties to it and not by reference to the
judgments in other cases. A judgment in the criminal trial is not relevant to the
civil case except for the purpose of showing the fact of trial and conviction for
it.
Thus, in a suit for damages for damaging the plaintiff's trees, the fact that
the defendant was acquitted on the same charge in a criminal prosecution was
not admitted in evidence. For the same reason, a civil judgment is not relevant
to a criminal trial though arising out of the same
 Statements by Persons who cannot be called 159
as Witnesses: Dying Declaration

facts. For example, a judgment in a civil suit for defamation is not relevant
to a criminal prosecution based upon the same defamatory statement.
If an action is started against a manufacturer for supplying defective
goods and the court holds the manufacturer to be not liable. Subsequently,
other person starts an action against the same manufacturer, for supplying e
same kind of defective goods. The previous judgment is not relevant the
subsequent case.
Judgments are, however, relevant facts of great importance. Thus, the
general principle that judgments are not relevant, the Act recognizes tew
exceptions (Sees. 40-43).

Previous Judgment Relevant to Bar a Second Suit or Trial (Sec.

40)
Under Sec. 40, 'the existence of a judgment, decree, or order, is a relevant
fact, if it by law has the effect of preventing any court from king cognizance
of a suit or holding a trial.' It is intended to include all cases in which a
general law relating to res judicata inter partes applies.
Res judicata means a thing upon which the court has exercised its
judicial mind and no new action can be brought on the same cause of :tion
and between the same parties (Sec. 11, C.P.C.). However, principle F
estoppel or res judicata does not apply when they would contravene >me
statutory direction. This is something which cannot be overridden r defeated
by a previous judgment between the parties [P.G. Eshwarappa M. Rudrappa
(1996) 6 SCC 96].
Similarly, the Criminal Procedure Code bars a second trial of a person
ace tried and convicted (autrefois convict) or acquitted (autrefois acquit). Thus,
le 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

(Sec. 41)
A. final judgment, order or decree of a court exercising probate (relating to
will), matrimonial, admiralty (war claims) or insolvency jurisdiction which
confers upon or takes away from any person any legal character,
160 Law of E v i d e n c e

or declares any person to be entitled to any such character or any specific

thing absolutely, is relevant."
Sec. 41 deals with judgments in rem i.e. a kind of declaration about the
status of a person (e.g. that he is an insolvent or married or not), and is
effective against every body whether he was a party to the proceeding or not.
A judgment in personam, on the other hand, means a judgment between the
parties (e.g. in a tort or contract action), which binds only the parties and is
not relevant in any subsequent case or proceeding.
 Sec. 41 further lays down that such judgment is conclusive proof -that
any legal character, which it confers, accrued at the time when such
judgment came into operation; (ii) that any legal character to which it
declares any person to be entitled or not, accrued or ceased at the time
mentioned in the judgment; (iii) that any thing to which it declares a person
to be entitled was that person's property at the time at which the judgment
declares it to be his.

Relevancy and Effect of Judgments, etc. Other than those

mentioned in Sec. 41 (Sec. 42)
"Judgments, orders or decrees other than those mentioned in Sec. 41 are
relevant if they relate to matters of a public nature relevant to the inquiry
but such judgments, etc. are not conclusive proof of that which the state."
Judgments on such matters are relevant to every case or proceeding in
which the matter is again in question, but shall not be conclusive c the
matter.
Illustration: A sues B for trespass on his land; B alleges the existence c a
public right of way over the land. The existence of a decree in favour of the
defendant, in a suit by A against C for a trespass on the same Ian in which
C alleged the existence of the same right of way, is relevant bi it is not
conclusive proof that the right of way exists.

Judgments, etc. Other than those mentioned in Sees. 40-4 when

Relevant (Sec. 43)
"Judgments, orders or decrees, other than those mentioned in Sees. 40, 41
and 42, are irrelevant, unless the existence of such judgment, etc., a fact in
issue, or is relevant under some other provision of this Act
 Statements by Persons who cannot be called 161
as Witnesses: Dying Declaration
Evidence can be given of a judgment when the existence of the
judgment is itself a fact in issue or is fact otherwise relevant to the case. Thus,
if a person is murdered in consequence of a judgment, the judgment being a
cause or motive of the murder, will be a relevant fact. The illustrations
appended to Sec. 43 amply show that the existence of a judgment may become
relevant under any of the provisions relating to relevancy (Sees. 6-55).
(a) A prosecutes B for adultery with C, A's wife. B denies that C is
A's wife, but the court convicts B of adultery. Afterwards, C is
prosecuted for bigamy in marrying B during A's lifetime. C says
that she never was A's wife. Here, the judgment against B is
irrelevant as against C.
(b) A prosecutes B for stealing a cow from him. B is convicted.
A, afterwards sues C for the cow, which B had sold to him
before his conviction. As between A and C, the judgment
against B is irrelevant.
(c) A has obtained a decree for the possession of land against
B. C, B's son, murders A in consequence. Here, the existence
of the judgment is relevant as showing motive for the crime.
(d) A is charged with theft and with having been previously
convicted of theft. The previous conviction is relevant as a fact
in issue.
(e) A is tried for murder of B. The fact that B prosecuted A for libel
and that A was convicted and sentenced are relevant under Sec. 8
as showing the motive for the fact in issue.
The previous judgment which is final can be relied upon as provided under
Sees. 4043 of the Evidence Act:
i) in civil suits between the same parties, principle of res judicata may
apply;
ii) in a criminal case, Sec. 300, Cr.P.C. makes provision that once a
person is convicted or acquitted, he may not be tried again for the
same offence if the conditions mentioned therein are satisfied;
(iii) if the criminal case and the civil proceedings are for the same cause,
judgment of the civil court would be relevant if conditions
162 Law of E v i d e n c e

f any of the Secs. 40-43 are satisfied, but it can not be said that the
same would be conclusive except as provided in Sec. 41.
If a judgment, though not inter partes, is sought to be relied on not as a piece of
evidence, it should be tendered in as evidence [Surendra Kumar Vakil v Chief
Executive Officer (2004) 10 SCC 126]. Decision by a criminal court does not
bind the civil court while a decision by the civil court binds the criminal court
(Shanti Kumar Panda v Shakuntala Devi AIR 2004 SC 115).

Fraud or Collusion in Obtaining Judgment/ Incompetency of Court (Sec.

44)
(Diminishing of the Evidentiary Value of Judgments)
"Any party to a suit or other proceeding may show that any judgment, order or
decree, relevant under Sees. 40-42 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."
The existence of a judgment over a matter which is again in question is
a satisfactory piece of evidence, though, of course, nothing is said about its
evidentiary value in the Evidence Act. The Act only provides that the value of
a judgment may be demolished by showing that it was delivered by a court of
incompetent jurisdiction, or it was obtained by fraud or collusion.
Such a judgment does not have the effect of res judicata. A judgment
obtained by 'collusion' means that there was no cause of action between the
parties and by collusion of the parties a cause of action was feigned thus
enabling the court to pass its judgment.

FURTHER QUESTIONS

Q.1. (a) On the day of occurrence, the witness X heard the cries of Abha
and on rushing out, saw her lying engulfed in flames in her
house. X along with Abha's husband Sanjay put out the flames.
She was taken to a nearby hospital at 9.15 P.M. and the police
was informed about the accident. At 11.35 P.M. the duty doctor
certified that Abha was fit enough to make a
Statements by Persons who cannot be called 163
as Witnesses: Dying Declaration
statement. In the statement recorded by the duty doctor, Abha
said that Sanjay poured kerosene oil on her and set fire to her. At
2.40 P.M. she again told her father and brother that Sanjay had
set fire to her. She died at 8 A.M. the same day.

Can Sanjay be convicted for the murder of Abha solely on the

basis of the above declarations? Decide. [C.L.C.-91]

(b) Mrs. X is brought to the hospital with 50% burn injuries by her
husband and in-laws. She makes a statement to the doctor,
stating that her mother-in-law had poured kerosene oil on
her, her father-in-law has pushed her in the kitchen and her
husband had set fire by a match stick. After 3 hours, Mrs. X
is declared dead. Her husband and in-laws are put on a trial
for X' murder. The prosecution relies on the only statement of
Mrs. X. Can they be convicted? Decide. [L.C.I-93]
.1. (a) Once the dying declaration is believed (true, consistent, coherent,
etc.) it can be relied upon for conviction, even if there is no
corroboration (i.e. support from other evidences) [Khushal Rao v
State of Bombay; Kusa v State ofOrissa].
In the present case, the statement appears to be true and voluntarily ade,
and conviction of Sanjay can be based solely on the basis of it. he following
facts may be noted in this regard:
® The statement was made at the earliest opportunity. Abha made
the statement soon after the occurrence.
(ii) The person making the statement (i.e. Abha) have died.
(jii) The statement made by her relate to the cause of her death or the
circumstances of the transaction which resulted in her, death.
(iv) The statement made by her was complete and consistent. She
made a consistent statement twice before she died as to the fact
of Sanjay pouring kerosene over her.
(v) All ingredients of Sec. 32(1) are satisfied.
(b) The accused can be convicted solely on the basis of dying declaration
of Mrs. X. See part (a) above.
 5
Expert Evidence and
Relevancy of Character

Opinion of Third Persons when Relevant1 (Sees. 45-51)

The term 'opinion' means something more than mere relating of gossip or of
hearsay; it means judgment or belief, that is a belief or conviction resulting
from what one thinks on a particular question. What a person thinks in
respect to the existence or non-existence of a fact is opinion; and whatever
is presented to the senses of a witness and of which he receives direct
knowledge without any process of thinking and reasoning is not opinion.
For example, the question is whether a certain injury was caused by a
spear. A states that he saw the accused causing the injury by a spear. This is
not A's opinion. But, if a doctor, who did not see the injury being caused,
says that he thinks that the injury was caused by a spear, it is his opinion.
What one sees, hears, feels by touch, and knows is not opinion and on the
contrary what is the conclusion of an individual is his opinion. Opinion is
what is formed in the mind of a person regarding a fact situation.

1...„ What are the circumstances in which opinions of third persons are relevant?
Discuss with reference to the provisions of the Evidence Act and decided
cases. [LC.//-93/95]
Can the court look into the opinion of a person who is not party to the
proceedings before court? [D.U.-
2007]
Write a short note on 'Opinion Evidence'. [C.LC.-95]
Explain the relevancy of expert evidence. [D.U.-2009/2011]

[164]
 Expert Evidence & Relevancy of Character 165

The opinions or beliefs of third persons are, as a general rule, irrelevant,

and therefore, inadmissible. Witnesses are to state the facts only i.e. what
they themselves saw or heard, etc. It is the function of the judge or jury to
form their own conclusion or opinion on the facts stated.
Thus, the opinion or the impression of a witness that it appeared
him from the conduct of a mob that they had collected for an
unlawful purpose is inadmissible to prove the object of the assembly. The
witnesses are generally interested in the parties to the litigation and if their
opinion were admissible, grave injustice would be caused.
There are, however, cases in which the court is not in a position to from
a correct opinion (e.g. when the question involved is beyond the range of
common experience or common knowledge), without the help of persons
who have acquired special skill or experience in a particular object. In these
cases, the rule is relaxed, and expert evidence is admitted to enable the court
to come to a proper decision. The rule admitting expert evidence' is, thus,
founded on necessity. A judge accepts the view which is more objective or
probable.

Sec. 45 (Opinion of Experts)

When the court has to form an opinion upon a point of foreign law or f
science or art, or as to identity of handwriting or finger impressions, be
opinions upon that point of persons specially skilled in such foreign law,
science or art or in questions as to identity of handwriting or finger
impressions, are relevant facts. Such persons are called experts".
llustrations (a): The question is, whether the death of A was caused by
poison. The opinion of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by
reason of unsoundness of mind, incapable of knowing the nature of
act, or that he was doing what was wrong or contrary to law. The
opinion of experts upon the question of unsoundness of A's mind, are
relevant.
(c) The question is whether certain document was written by A.
Another document is produced which is proved or admitted to
166 Law of E v i d e n c e

have been written by A. The opinions of experts on the question

whether the two documents were written by the same person or by
different persons, are relevant.
Sec. 45 permits only the opinions of an expert to be cited in evidence. The
term 'opinion' means something more than mere relating of gossip or of
hearsay; it means judgment or belief, that is a belief or conviction resulting
from what one thinks on a particular question. An 'expert' witness is one who
has devoted time and study to a special branch of learning, and thus is
specially skilled on those points on which he is asked to state his opinion.
His evidence on such points is admissible to enable the court to come to a
satisfactory conclusion. An expert could be qualified by skill and experience
as well as by professional qualifications. Thus, an experienced police officer
may be permitted to give 'expert' evidence as to how an accident may have
occurred.
An expert is not a witness of fact. His evidence is really of an
'advisory' character. An expert opinion will not be read into evidence unless
he is examined before the court as a witness and is subjected to cross-
examination. Thus the report submitted by an expert does not go in evidence
automatically.

Difference between experts' testimony and that of ordinary witness

(1) An ordinary witness must depose to what actually took place. An
expert's evidence is not confined to what actually took place, but
covers his opinions on facts (e.g. a medical man may give his
opinion as to the cause of a person's death).
(2) An expert can refer to and rely upon experiments conducted by him
in the absence of the other party. Thus, on a charge of arson,
evidence of an experiment conducted by an expert subsequent to
the fire is admissible to show how the fire may have originated.
(3) An expert may quote passages from well-known text books on the
subject and may refer to them to refresh his memory.
(4) An expert may state facts relating to other cases in pari materia
similar to the case under investigation.
 Expert Evidence & Relevancy of Character 167

On what matters expert opinion can be given

The subjects on which an expert is competent to testify are: foreign law,
matters of science, questions of art, identity of handwriting, or of finger
impressions. The words 'science' or 'art' include all subjects on which the
course of special study or experience is necessary to the formation of opinion.
The matter in question must be of technical nature, lor no expert can be
permitted to speak on a matter with which the judge may be supposed to be
equally well acquainted.
The Supreme Court has held that the opinion of a person that a particular
letter was typed on a particular typewriter is not admissible as it does not fall
within Sec. 45 (Hanurnant v State ofU.P. AIR 1952 SC 343). The decision has
been criticised and it has been suggested that "the claim of experts that the
identity of machine may be established by proving the identity of defects or
peculiarities which it impresses on paper should have been considered".
In State ofH.P. v Jai Lai (1999) 7 SCC 280, the court held that officer of
the Horticultural Department of the State Government might have acquired
some experience but is not sufficient to make him an expert in the field and to
give the label of "expert evidence" to his testimony.
Proof of Age - A doctor's opinion as to age of a person based on his or her
height, weight and teeth does not amount to legal proof of age of that person.
But such evidence is relevant. An opinion based on the X-ray plate
examination has been held to be admissible {Ram Swaroop v State, 1989 CrLJ
2435 All). However, in Anita v Atal Bibari, 1993 CrLJ 549 (M.P.), held that in
ascertaining date of birth, opinion of radiologist cannot be preferred over the
entry in the register of births and deaths maintained under the provisions of an
Act.
In a case of kidnapping of a girl, the medical evidence showed her age
between 17 and 18 years and the documentary evidence showed her to be
above 18 years. Held that the medical evidence was not a conclusive proof of
age [S.K. Belal v State, 1994 CrLJ 467 (Ori)].
168 Law of E v i d e n c e

Value of Expert Opinion

The Evidence Act only provides about the relevancy of expert opinion but
gives no guidance as to its value. It is often said that there cannot be any more
unsatisfactory evidence than that of an expert. The value of expert opinion
suffers from various drawbacks:
(i) There is the danger of error or deliberate falsehood. "These privileged
persons might be half blind, incompetent or even corrupt."
(n) His evidence is after all opinion and "human judgment is fallible.
Human knowledge is limited and imperfect".
(iii) An expert witness, howsoever impartial he may be, is likely to be
unconsciously prejudiced in favour of the side which calls him.
Thus, expert witnesses are called witnesses "retained and paid" to
support by their evidence a certain view on a scientific or technical
question.
These factors seriously reduce the probative value of expert evidence. It
would be highly unsafe to convict a person on the sole testimony of an expert.
The reliability of such evidence has, therefore, to be tested the same way in
which any other piece of evidence is tested. The Supreme Court has laid down
following principles in this regard (Murari Lai v State ofM.P. AIR 1980 SC
531):
(l) There is no rule of law, nor any rule of prudence which has
crystallised into a rule of law, that the opinion evidence of an expert
must never be acted upon, unless substantially corroborated.
(ii) But, having due regard to the various adverse factors operating in case
of expert opinion, the approach should be one of caution. Reasons
for the opinion must be carefully probed and examined. All other
relevant evidence must be considered.
(iii) In appropriate cases, corroboration must be sought. In cases where the
reasons for the opinion are convincing and there is no reliable
evidence throwing a doubt, the uncorroborated testimony of an
expert may be accepted.
(iv) The hazard in accepting the expert opinion, is not because experts, in
general, are unreliable witnesses - the equality of credibility or
 Expert Evidence & Relevancy of Character 169

incredibility being one which an expert shares with all other

witnesses - but because all human judgment is fallible and an expert
may go wrong because of some defect of observation, or honest
mistake of conclusion. The more developed and more perfect a
science, less is the chance of an incorrect opinion. The science of
identification of fingerprints has attained near perfection and the risk
of incorrect opinion is practically non-existent. On the other hand, the
science of identification of handwriting is not so perfect and the risk
is, therefore, higher. But that is far from doubting the opinion of a
handwriting expert as an invariable rule and insisting upon substantial
corroboration in every case, however the opinion may be backed by
the soundest of reasons.
(v) The opinion of expert is not decisive or conclusive of the matter. The
court should not surrender its opinion to that of the expert. An expert
deposes and not decides. His duty is to furnish the judge with the
necessary scientific criteria for testing the accuracy of his conclusion,
so as to enable the judge to form his own independent judgment by
the application of those criteria to the facts proved in evidence.
is the duty of the court to remove chaff from the grain [Mohan Singh State
of M.P. (1999) 2 SCC 428]. The scientific opinion evidence, if intelligible,
convincing and tested becomes a factor and often an important factor for
consideration along with the other evidence of the case. The credibility of an
expert witness depends on the reasons stated in support f his conclusions and
the data material furnished which form the basis f his conclusions.
'Medical opinion - Opinion of medical officer cannot be taken as
contradicting te positive evidence of the witness of the facts. Where the
direct evidence about assault by a particular person is satisfactory and
reliable, medical evidence cannot override that because the latter is
hypothetical 'punjab Singh v State of Haryana AIR 1984 SC 1223).
However, where the Medical report differed from injuries described by the
witnesses, medical evidence should prevail (Amar Singh v State of Punjab
AIR 1987 SC 726). between the opinion of two doctors, the opinion which
supports direct evidence should be accepted (Piara Singh v State of Punjab
AIR 1977 SC 174).
170 Law of E v i d e n c e

In Wilayat Khan v State (AIR 1962 SC 122), it was held that expert
opinion is not to be believed upon when it is in conflict with direct evidence.
It has been held that medical evidence cannot be decisive of the matter. 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. Thus,
where the eye-witnesses testified to one lathi blow upon the head of
deceased, but the medical evidence recorded four external injuries, the court
held that the medical evidence was more trustworthy and it showed that the
so-called eye-witnesses had not seen the incident.
In respect of nature of injuries and causes of death, most competent
witness is the doctor examining the deceased and conducting post-mortem.
Unless there is something inherently defective, the court cannot substitute its
opinion in place of the doctor's (Mafabhai N. Raval v State of Gujarat AIR
1992 SC 2186). Where the doctor failed to give his opinion about the nature
of injury, the court cannot substitute its opinion assuming the role of an
expert [Babloo v State, 1995 CrLJ 3534 (M.P.)].
In Mohd. Zahid y State of T.N. (1999) 6 SCC 120, it was held that
while sufficient weightage should be given to the evidence of the doctor who
conducted post-mortem examination, the evidence cannot be accepted if it is
self-contradictory. The question in this case was whether death was
homicidal, suicidal or accidental. The doctor's opinion was at variance with
statements in text books. The prosecution made suggestion to the doctor on
the basis of statements found in authoritative text-book. The doctor
conducted the post-mortem examination on a decomposed body eight days
after it was buried. While the courts below accepted the evidence of the
doctor, the Supreme Court did not.
While expert evidence is relevant from the point of view of weight, it
is a very weak type of evidence. The court is not bound by the opinion of the
medical expert, but has to form its own opinion. In this case, the medical
witness ruled out the possibility of two successive blows by a sharp weapon
falling at the same place. The court rejected this opinion and accepted the
prosecution version [State of Haryana v Bhagirath (1999) 5 SCC 96].
Reliable direct evidence should not be rejected on the hypothetical medical
evidence. Where medical evidence shows that there are two possibilities, the
one consistent with the direct evidence should be accepted [Anil Roy v State
of Bihar (2001) 7 SCC 318]. Credible oculai
Expert Evidence & Relevancy of Character 171

;stimony was preferable to medical opinion [Ramakant Rai vMadan Rai

(2003) 12 SCC 395].
The court should see whether the eye-witness account is consistent
with the medical evidence and, if not, whether the accused should not get
le benefit. The opinion of the medical officer is to assist the court as e is
not a witness of fact and the evidence given by him is really of an
advisory character and not annibilatory of the witness of fact [Vishnu v
state of Maharashtra (2006) 1 SCC 283].
 Admissibility of the result of a scientific test will depend upon its
authenticity. Whether the "brain mapping test" is so developed a science
that the report should have probative value for enabling the court to rely
upon it requires consideration. Since the High Court did not place
reliance upon it, the Supreme Court also thought it not necessary to do so
Ranjitsingh Brahamajeetsingh Sharma v State of Maharashtra AIR 2005
SC 277].
opinion of text writers - Opinion of Text Writers Opinion of text writers
may have persuasive value, but cannot be considered to be
authoritatively binding. Such opinion cannot be elevated to or placed on
a higher pedestal ban opinion of experts examined in courts. The trial
court in this case held the accused to be guilty on the basis of books on
medical arisprudence. The Supreme Court did not approve this approach
[State of M.P. v Sanjay Rai AIR 2004 SC 2174].
Salue of opinion of handwriting expert- - The opinion of an expert in
writing s considered as the weakest and the least reliable evidence. It has
been held that it is not safe to base conviction upon the opinion of
writing expert alone. However, in Ram Narain v State of U.P. (discussed
below), solely on the basis of expert evidence the accused was convicted
by the court.

2. A, a handwriting expert gives opinion about a particular letter as being that of

the accused. Can the judge disagree with his finding? What precautions are
required before proving the handwriting? [C.LC-
96]
Can an accused be convicted on the basis of testimony of the handwriting
expert? Discuss with the help of leading cases and relevant statutory
provisions. [LC.II-
2006]
172 Law of E v i d e n c e

The handwriting experts' opinion simply corroborates the

circumstantial evidence. Therefore, it is not possible to accept the contention
that the handwriting experts' opinion being a weak piece of evidence ought
not to be relied upon. Opinion of a 'handwriting expert' can be relied on when
it is supported by other evidence. Though there is no rule of law that without
corroboration opinion evidence cannot be accepted but due care and caution
should be exercised and it should be accepted after probe and examination.
Even if in some, earlier cases court had passed some adverse remarks against
him, his evidence cannot be discarded on that ground alone. What is
necessary to see is if the report relied upon suffers from any infirmity or not
[Alamgir v State (NCI) of Delhi (2003) 1 SCC 21]. In this case, a woman met
her death in a guest room and the police found two slips of paper and the
evidence of the handwriting expert was that the writing on the papers was
that of her husband (the accused).

LEADING CASE: RAM NARAIN v STATE OF U.P. "

(AIR 1973 SC 2200)
In this case, a child was kidnapped. The parent of the child received
a handwritten post-card followed by an inland letter demanding
Rs.1,000 and Rs. 5,000, respectively as ransom for the child. The
author of the letters was traced and a handwriting expert testified
the letters to be in the handwriting of the accused. Solely on the
basis of this evidence the accused was convicted by the lower
courts. The Supreme Court upheld the conviction.
The Court said: "Both under Sec. 45 and Sec. 47 the evidence
is an opinion, in the former by a scientific comparison and in the
latter on the basis of familiarity resulting from frequent observation.
In either case, the court must satisfy itself by such means as are
open that the opinion may be acted upon. One such means is to
apply its own observation to the admitted or proved writings, not
become a handwriting expert but to verify the opinion of the
witness. This is not to say that the court may play the role of an
expert, but to say that the court may accept the fact only when it has
satisfied itself on its own observation that it is safe to accept the
opinion of the expert or the other witness".
Expert Evidence & Relevancy of Character 173

In this case, Dua J. himself compared the handwriting in

question with a proven handwriting of the accused and satisfied
himself and held that no further corroboration was necessary.
The court held that if after comparison of disputed and admitted
writings by court itself, it is considered safe to accept the
opinion of expert, then the conclusion so arrived at cannot be
attacked on special leave merely on the ground that comparison
of handwriting is generally considered hazardous and
inconclusive. It should be noted that the evidence of experts is
not final or conclusive. The court may satisfy itself before
 relying on the expert opinion. Thus in many cases, their
Lordships have come to the contrary opinion and rejected the
expert opinion, it is more so in case of handwriting. In State of
Gujarat v KC Patni (AIR 1967 SC 778), it was pointed out that
expert opinion is relevant but is not conclusive.]
Note: In Murari Lai v State of M.P. (AIR 1980 SC 531), the Supreme
Court had laid down some important principles in relation to the value of
the opinion of a handwriting expert (discussed earlier). In this case, the
court upheld the conviction on the evidence that the piece of writing left
behind by the murderer in the room of the deceased was testified by a
handwriting expert to be in the handwriting of the accused. The court also
observed that even if no handwriting expert is produced before the court,
the court has the power to compare the handwriting itself and decide the
matter.
Such exercise of comparison is permissible under Sec. 73 of the
Act. Sees. 45 and 73 are complementary to each other [Lalit Popli v
Canara Bank (2003) 3 SCC 583].

Sec. 46 (Facts bearing upon opinion of experts)

"Facts, not otherwise relevant, are relevant if they support or are
inconsistent with the opinions of experts, when such opinions are
relevant".
The effect of the provision is that when the opinion of an expert is
relevant and has been cited, any fact which will either support his opinion
or contradict it will also become relevant (Res inter alia acta). Thus,
where the question is, whether A was poisoned by a certain poison; the
174 Law of E v i d e n c e

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.

Sec. 47 (Opinion as to handwriting when relevant)

According to Sec. 47, when the court had to determine the question whether
a document is written or signed by a certain person, the court can admit the
opinion of a person who is acquainted with that person's handwriting. The
explanation attached to the section gives guidance as to who is considered to
be acquainted with another's handwriting. It includes a person -
(i) who has seen that person write, or
(ii) who has received documents written by that person in answer to
documents written by himself or under his authority and addressed
to that person, or
(iii) who has in the ordinary course of business, received documents
written by that person or such documents are habitually submitted
to him.
Illustration - The question is, whether a given letter is in the handwriting of
A, a merchant in London.
 B is a merchant in Calcutta, who has written letters addressed to A and
received letters purporting to be written by him. C is B's clerk, whose duty it
was to examine and file B's correspondence. D is B's broker, to whom B
habitually submitted the letters purporting to be written by A. The opinion of
B, C and D on the question whether the letter is in the handwriting of A are
relevant, though neither B, C nor D ever saw A write.
In Fakhruddin v State ofM.P. (AIR 1967 SC 1326), it was held that
handwriting may be proved by evidence of a witness in whose presence the
writing was done and this would be direct evidence and if it is available the
evidence of any other kind is rendered unnecessary.

Modes of proving handwriting

Sees. 45 and 47 recognise the following modes of proving handwriting:
 Expert Evidence & Relevancy of Character 1 75

(i) By the evidence of the writer himself.

(ii) By the opinion of an expert (Sec. 45).
(iii) By the evidence of a person who is acquainted with the handwriting
of the person in question (Sec. 47).
(iv) Under Sec. 73 by the court itself comparing the handwriting.

Sec. 47A (Opinion as to digital signature when relevant)

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

Sec. 48 (Opinion as to existence of right or custom)

sec. 48 makes those opinions relevant which proves the existence of any
neral custom or right. The right of the villagers of a particular village
use the water of a particular well is a general right within the meaning
this section [Also see Sees. 13 and 32 (4)].

Sec. 49 (Opinion as to usages, tenets, etc.)

sec. 49 makes opinions of such persons relevant who have special means I
knowledge regarding the usages and tenets of a body of men or family, the
constitution and government of any religious or charitable foundation, and,
the meaning of words or terms used in particular districts r by particular
classes of people.

Sec. 50 (Opinion on relationship)

Sec. 50 makes the opinion of a person expressed by his conduct, who ; a
member of the family or otherwise has special means of knowledge ; to the
relationship of one person to another, relevant.
lustrations: (a) - The question is, whether A and B, were married. The fact
that they were usually received and treated by their friends as husband rid
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.
176 Law of E v i d e n c e

Relationship includes relation by blood, marriage or adoption, h may

be noted that under Sec. 32, which also contains provision for proving
relationship, the statements of dead persons are relevant; while under Sec. 50
the opinion of a person alive is relevant. The opinion must have been
expressed by conduct, and not merely by words or statements It is very
important to note that Evidence Act does not contain an) express provision
making evidence of general reputation admissible x proof of relationship. A
was the father of C and V is the father of F as stated by witnesses was held
not admissible under Sec. 50.
Proviso to Sec. 50 - It lays down that in the cases under Sees. 494, 495 497
and 498 of IPC and a proceeding under the Indian Divorce Act, the evidence
of marriage cannot be given by opinion of an expert. In these cases, strict
proof of marriage is necessary i.e. witnesses in whose presence the marriage
was celebrated must be produced.

Sec. 51 (Grounds of opinion when relevant)

Sec. 51 provides that whenever the opinion of a living person is relevant the
grounds on which his opinion is based shall also be relevant. Ai expert may
give an account of experiments performed by him for th purpose of forming
his opinion.
The opinion of an expert by itself may be relevant, but would carr
little weight with a court unless supported by a clear statement of whs he
noticed and upon what he based his opinion.

CHARACTER WHEN RELEVANT3

(Sees. 52-55)

To what extent is the character, general reputation of a person relevant in

civil or criminal proceedings has been made clear by Sees. 52-5! Character
is "a combination of peculiar qualities impressed by nature c by the habit of
the person, which distinguish him from others". In respect of the character
of a party, two distinctions must be drawn, name!

3. Write a short note on - Character when relevant. [LC.//-9

 Expert Evidence & Relevancy of Character 177

btween the cases when the character is in issue and is not in issue and hen
the cause is civil or criminal.

Sec. 52 (In Civil cases character to prove conduct imputed,

irrelevant)
Sec. 52 lays down the broad general principle that "the evidence of a party's
character cannot be given for the purpose of showing that it renders the
conduct imputed to him as probable or improbable." Thus, party cannot give
evidence of his good character for the purpose of lowing that it is improbable
that he should be guilty of the conduct imputed to him. For example, if a
person is charged with negligent driving e cannot give evidence of the fact
that his character and conduct has been such that he could not have been
guilty of negligence. Similarly, his opposite party cannot give evidence of
the fact that his character and conduct had been so bad that he must have
been negligent.
The reason is that the court has to try the case on the basis of its icts for
the purpose of determining whether the defendant should be able or not. The
court has not to try the character of the parties and le evidence of character
will not only prolong the proceedings but will also unnecessarily prejudice
the mind of the judge one way or other, further, in civil cases, the previous
convictions of the defendant are relevant.
Sec. 52, however, also lays down that a fact, which is otherwise Levant,
cannot be excluded from evidence only because it incidentally exposes or
throws light upon a party's character. This is an exception to the general
principle laid in Sec. 52. The court may form its own conclusions s to the
character of a party to a suit as exhibited by the relevant facts roved in the
case, and draw an inference that he might probably have been guilty of the
conduct imputed to him.
There are other exceptions to the general principle laid in Sec. 52:
(1) Sec. 55 says "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". The evidence of good or bad character of the defendant is
irrelevant to damages. But the character of the plaintiff is relevant. In
an action for damages,
178 Law of Evidence

for seduction or rape, evidence of bad character of the plaintiff is

allowed as it is likely to affect the damages that the plaintiff ought
to receive.
(2) Evidence can be given of a party's character when his character is
itself a fact in issue. Where, for example, an action is brought for
divorce on the ground of cruelty, the cruel character of defendant,
being a fact in issue, the plaintiff can lead evidence of it. The
character of a female chastity has been received in evidence in
action for breach of promise for marriage.
Sec. 53 (In Criminal cases previous good character relevant)
Sec. 53 says that "in criminal cases, the fact that the person accused is of a
good character is relevant". Normally, we presume that a person of good
character and reputation will not generally resort to any criminal act. Thus,
goodness if proved, leads to presumption against the commission of a crime
Evidence of good character is always admissible. But in any case, the
character evidence is a weak evidence; it cannot outweigh the positive
evidence in regard to the guilt of a person. It may be useful in doubtful cases
to tilt the balance in favour of the accused (Bhagwan Swarup v State AIR
1965 SC 682).

Sec. 54 (Previous bad character not relevant, except in reply)

According to Sec. 54, "evidence may not be received regarding the badness
of party's character in criminal proceedings, unless evidence has been given
that he has a good character, in which case it becomes relevant." In other
words, the prosecution cannot lead evidence of the bad character of accused
as part of its original case. They can produce evidence of bad character only
in reply to the accused showing his good character.
Criminal cases also admit of certain exceptions. There are certain
cases in which evidence of a prisoner's bad character can be given:
(1) To rebut prior evidence of good character (Sec, 54).
(2) The character is itself a fact in issue (Explanation 1 to Sec 54).
For example, in a prosecution for rape, the bad charactei
 Expert Evidence & Relevancy of Character 1 79

of prosecution (raped woman) may be a fact in issue for it may

afford a defence to the accused. Under Sec. 110, Cr.P.C, a person
is to be bound down if he is by habit a robber, a housebreaker,
etc.
(3) A previous conviction is relevant as evidence of bad character in
criminal cases {Explanation 2 to Sec. 54). Under Sec. 71, IPC if
it is proved that a person is a previous convict he shall be
sentenced to much longer term of imprisonment than would
ordinarily have been awarded to him.

Sec. 55 (Character as affecting damages)

sec. 55 says, "in civil cases the fact that the character of any person is much
as to affect the amount of damages which he ought to receive, is relevant".
The evidence of good or bad character of the defendant is irrelevant to
damages. But the character of the plaintiff is relevant. In an action for
damages, for seduction or rape or libel, evidence of bad character of the
plaintiff is allowed, as it is likely to affect the damages ;hat the plaintiff ought
to receive.
Explanation - It states that the word "character" used in Sees. 52-55 Includes
both reputation and disposition; except as provided in Sec. 54, evidence may
be given only of general character and not of particular acts by which the
character is shown.
'Reputation' means what is thought of a person by others and is
constituted by public opinion. It may be noted that the evidence of those, who
know the man and his reputation is admissible. Evidence of those who do not
know the man but have heard of the reputation (hearsay evidence) is not
admissible. 'Disposition' implies one's own individual opinion of another
person's character.
 6
Facts Requiring No Proof &
Oral/Documentary Evidence

Facts which Need Not be Proved1 (Sees. 56-58)

The general rule is that all facts in issue and relevant facts must be proved by
evidence, either oral or documentary. To this rule, there are two exceptions:
(a) facts judicially noticeable (Sees. 56-57), (b) facts admitted (Sec. 58).
Sec. 56 reads: "No fact of which the court will take judicial notice need
be proved".
Sec. 57 enumerates thirteen facts of which the court is bound to take
the judicial notice:
{1) All laws in force in the territory of India.
(2) All Acts of the British Parliament.
(3) Articles of War for the Indian Army, Navy or Air Force.
(4) The course of proceedings of the British Parliament, of the
Constituent Assembly of India, and of Parliament and Legislatures.
(5) The accession and the sign manual of the sovereign of U.K. and
Ireland.

Write a short note on Facts which need not be proved'. [C.LC-M]

State the facts which the parties are prohibited from proving. [LC.//-2006]
State the facts which a litigant is not required to prove before the court.
[D.U.-2007]

[180]
 Facts Requiring No Proof & Oral/Documentary Evidence 181

(6) All seals of which English courts take judicial notice; the seals of all
the courts in India, etc. and all the seals which a person is authorised
to use by the Constitution or an Act.
(7) The accession to office, names, titles, functions, and signatures of
Gazetted officers.
(8) The national flag of every country recognised by the Government of
India.
(9) The division of time, the geographical divisions of the world and
public festivals, facts and holidays notified in the official gazette.
(10) The territories under the dominion of the Government of India.
(11) The commencement, continuance or termination of war between the
Government of India and any other country.
(12) The names of court officials and of all advocates, pleaders, etc.
authorised by law to appear or act before the court.
(13) The rule of the road, on land or at sea.
The provision is supplemented by two declarations at the end of the section.
One of them says that in all these matters, and also on matters af public
history, literature, science or art, the court may consult the appropriate books
or documents of reference. The second declaration is that if a party calls upon
the court to take the judicial notice of any fact, it may refuse to do so unless
and until such person produces any such book or document as the court may
consider necessary to enable it to take judicial notice.
Judicial facts - The expression 'take judicial notice' means recognition without
proof of something as existing or as being true. Judicial notice is based upon
very obvious reasons of convenience and expediency; and the wisdom of
dispensing with proof of matters within the common knowledge of every one.
Judicial notice is the cognizance taken by the court itself of certain matters
which are so notorious or clearly established, that the evidence of their
existence is deemed unnecessary. Judicial notice takes the place of proof, and
is of equal force. As a means of establishing facts, it is therefore superior to
evidence.
182 Law of E v i d e n c e

The matters enumerated in Sec. 56 do not form an exhaustive list. The

court could take judicial notice of other facts, not to be found in the list. The
court cannot take judicial notice of facts stated in a newspaper, as a statement
of facts in it is merely a hearsay and, therefore, inadmissible in evidence
unless proved otherwise. The Supreme Court in Shashi Nayar v Union of
India (AIR 1992 SC 395) took judicial notice that the law and order situation
had deteriorated over the years and continues to be worsening fast and,
therefore, it is an opportune time to think of reconsidering death penalty.
In one interesting English case [McQuaker v Goddard (1940) 1 KB
687], the question was whether the court ought to take judicial notice that a
camel is not a wild animal. The court took judicial notice of the fact that it is
not a wild animal. Commenting on this decision, it has been remarked that
since an English court has taken judicial notice of the fact that the camel is a
domestic animal, it would now require an Act of the British Parliament to
make it a wild animal.
Admitted facts - Another set of facts which need not be proved are facts
which have been admitted. Sec. 58 lays down this principal. Sec. 58 lays
down that "if the parties to a proceeding agree to admit a fact at the hearing,
or which they agree to admit by writing before the hearing, or which by any
rule of pleading in force deemed to be admitted, it need not be proved by the
opposite party".
Averments made in a petition which have not been controverted by the
respondent carry the effect of a fact admitted. Facts which have been
admitted on both sides are not in issue and, therefore, no proof need be
offered of them. A files a suit against B for Rs. 1,000 on the basis of pronote.
B admits to have borrowed the debt but pleads the payment of debt. In this
case, A need not prove the execution of the pronote as that has been admitted
by B on the hearing.
However, Sec. 58 also provides that the court may in its discretion
require some other proof of an admitted fact. It may be noted that this section
applies to civil suits only. It is an elementary rule that except by a plea of
guilty, admissions dispensing with proof are not permitted in a criminal trial.
 Facts Requiring No Proof & Oral/Documentary Evidence 1 83

MODES OF PROOF

fact may be proved either by oral evidence of the fact or by documentary

evidence, if any. Thus, there are two methods of proving fact, one is by
producing witnesses of fact {oral evidence), and the other, y producing a
document (including electronic records) which records the fact in question
(documentary evidence)?

\\ Oral Evidence (Sees. 59-60)

Jl statements which the court permits or requires to be made before it y
witnesses in relation to the matters of fact under inquiry are called ‘oral
evidence'. In general, the evidence of witnesses is given orally, and his means
oral evidence. A witness who cannot speak may communicate is knowledge
of the facts by signs or by writing and in either case it will >e regarded as
oral evidence.
Sec. 59. Proof of facts by oral evidence - All facts except the contents of
documents, may be proved by oral evidence.
Oral evidence, if worthy of credit, is sufficient without documentary
evidence to prove a fact or title. However, as per Sec. 60, where written
documents exist, they shall be produced as being the best evidence of their
own content and no oral evidence can be produced to prove as to what is
wrong in the document. A and B enter into a written contract that 5 shall be
supplying 20 mounds of wool to A every month. If controversy irises between
the parties about the terms of the contract it can be proved only by the
document. Oral evidence will not be allowed.
In Virendra Nath v Mohd. Jamil (AIR 2004 SC 3856), the person in
possession of land was shown in the revenue records to be a mortgagee 3ut
the mortgagor could not produce the unregistered mortgage deed because it
was in possession of the mortgagee. Held that oral evidence could be admitted
for the collateral purpose of ascertaining the nature of possession of the
person claiming to be in adverse possession.

2. Discuss oral and documentary evidence. [C.LC.-2006\[D.U.-2009]

184 Law of E v i d e n c e

Sec. 60. Oral evidence must be direct - Oral evidence must, in all cases,
whatever, be direct,-i.e.
"If it refers to a fact which could be seen (or heard or perceived
by any other senses), it must be the evidence of a witness who says he
saw (or heard or perceived it by that sense) it;
If it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who holds that opinion on
those grounds.
Provided that the opinion of an expert can be cited in his absence
if it has been expressed in a book form and the expert himself is either
dead or is otherwise unavailable as a witness. Provided also that, if oral
evidence refers to the existence or condition of any material thing other
than a document, the court may, if it thinks fit, require the production
of such material thing for its inspection."
Thus, oral evidence must be direct. This means that a witness can
tell the court of only a fact of which he has the first hand knowledge
(eye-witness) in the sense that he perceived the fact by any of the five
senses. If, on the other hand, the statement was not made in his presence
or hearing and he subsequently came to know of it through some other
source, he cannot appear as a witness, for his knowledge is a derived
knowledge and is nothing but a "hearsay" and it is a maxim of law that
hearsay evidence is not relevant.

Hearsay Evidence3
The word 'hearsay' mean whatever a person is heard to say (rumour or
gossip) or whatever a person declares on information given by someone
else, or it may be synonymous with irrelevant. A statement, oral or
written, by a person not called as a witness (or statements made out of
court) comes under the general rule of hearsay. Sec. 60 of Evidence Act
is directed against avoiding or excluding hearsay evidence.
The test to distinguish between direct evidence and hearsay evidence
is: It is direct evidence if the court, to act upon it, has to rely only upon

3. Write a short note on 'Hearsay evidence'.

[LC./MJ4/95]
 Facts Requiring No Proof & Oral/Documentary Evidence 185

e witness, whereas it Is hearsay if it has to rely not only upon the witness,
it some other person also. Thus, if X is charged with Y's murder, and
Z, in his evidence, states that "I saw X stabbing Y with a knife", it
would a direct evidence. Instances of hearsay evidence would be the
evidence : A that "Z told me that he had seen X stabbing Y" or that "Z
wrote letter to me stating that he had seen X stabbing Y" or that "I
read in the newspaper that X had murdered Y".
It may be noted that hearsay evidence is not admissible even if not
objected to, or even if consented to. The court has no discretion in this
latter, except in certain exceptional cases. The rule against-the admission
F hearsay evidence is fundamental. It is not the best evidence and it is
not delivered on oath. The truthfulness and accuracy of the person
hose words are spoken to by another witness cannot be tested by cross-
examination. It is always desirable, in the. interest of justice, to g^et the
persons whose statements are relied upon, into court for examination
the regular way, in order that many possible sources of inaccuracy and
untrustworthiness can be best brought to light and exposed.
Thus, its admission tends to open the door for fraud which might
e practised with impunity. It is second-hand evidence; the person giving
such evidence does not have any sense of responsibility. There is a
tendency that truth will be diluted and diminished with each repetition
and be frauds may be practiced under its cover. Further, its admission
tends D prolong trials unduly by letting in statement, the probative
value of which is very slight.

Exceptlons to the hearsay rule

People's memories are fragile and short. Subsequent publicity, discussions
and suggestive questioning all exert their influence. This may lead to
exclusion of evidence which is superior in trustworthiness to evidence
which is freely admitted (i.e. direct evidence). In Sharda Birdkhand
Sarda ' State (AIR 1984 SC 1622), the testimony of persons who had
seen the finable condition of a young woman in her-laws' home where
she lost her life was, thus, held to be relevant
The courts have modified the rigid rule as to direct evidence by a
lumber of exceptions:
186 Law of E v i d e n c e

(1) Res gestae (Sec. 6) - A statement made by a person who is not a

witness becomes relevant and admissible if the statement is part of
the transaction in question.
(u) Admissions and confessions - An admission of liability or confession
of guilt which takes place outside the court through the testimony
of a witness to whom the admission or the confession was made.
Such a witness is not a witness of fact.
(lii) Statements relevant under Sec. 32 - These are mostly the statements
of deceased person or persons who are not available as witnesses.
Such statements include dying declarations, declaration as to public
 rights, etc.
(iv) Entries in books of account kept in the course of business (Sec. 34);
Entries in public registers (Sec. 35).
(v) Statements of experts in treatises - According to Sec. 60, proviso, the
opinion of an expert can be cited in his absence if it has been
expressed in a book form and the expert himself is either dead or is
otherwise unavailable as a witness.
(vi) Sometimes, a slanderous statement made by a third person and heard
by the witness will be relevant, not regarding the truth of the
contents of the statements, but regarding the fact of the statement
being made.

[B] Documentary Evidence4 (Sees. 61-90)

Documentary evidence means all documents produced for the inspection of
the court. Documents are denominated as 'dead proof,' as distinguished from
witnesses who are said to be 'living proofs.' Documentary evidence is superior
to oral evidence in permanence, and in many respects, in trustworthiness.
Sec. 61. Proof of contents of documents - The contents of documents may be
proved either by primary or by secondary evidence.
There is no third method of proving the contents of a document. The
contents need not be proved by the author of document, and can be proved
by any other evidence.

4. Write a short note on: Proof of facts by documentary evidence. [D.U.-2007]

 Facts Requiring No Proof & Oral/Documentary Evidence 187

In the absence of the documentary evidence which could have en

available, the plaintiff was not allowed to rest his case on oral evidence
which was against the record produced by the defendants (Banarsi is v
Maharaja Sukhjit Singh AIR 1998 SC 179).

Primary Evidence (Sec. 62)

le expression 'primary evidence' includes:-
i) The original document itself produced for the inspection of the court.
(ii) Where a document is executed in several parts (e.g. duplicate,
triplicate- required when there are several partners), each part is
primary evidence of the document. Where a document is executed in
counterparts, each counterpart is primary evidence against the party
signing it {Explanation 1).
For example, in the case of a cheque, the main cheque is signed by the
drawer so that it is a primary evidence against him, and the counterfoil ay be
signed by the payee of the cheque so that it will be a primary evidence
against the payee. Similar is the case of patta (executed by lessor / landlord)
and the qabuliat or muchilka (executed by lessee/ tenant).
(iii) Where a number of-documents are all made by one uniform process,
as for example, by printing, lithography or photography, each is
primary evidence of the contents of document/ But, where they are
all of copies of a common original, they are not primary evidence of
the contents of the original {Explanation 2).
Primary evidence is the best or highest evidence, or in other words, it is £
kind of proof which, in the eyes of the law, affords the greatest certainty of
the fact in question. Primary evidence of a transaction, evidenced f writing,
is the original document itself, which should be produced in original to
prove the terms of the contract, if it exists and is obtainable.

Secondary Evidence (Sec. 63)

he expression 'secondary evidence' includes:-
(i) Certified copies of the original document (i.e. public documents
certified by a public officer).
188 Law of E v i d e n c e

(ii) Copies which are made from the original by mechanical processes
(e.g. printing, lithography, photography), which in themselves assure
the accuracy of the copy; and copies compared with such copies
(e.g. a photograph of an original, a carbon copy).
A Photostat copy of a document is admissible as secondary evidence if it is
proved to be genuine; it has to be explained as to what were the circumstances
under which the Photostat copy was preferred and who was in the possession
of the original document at the time its photograph was taken. It can be
permitted to be given in evidence when it is proved that the original document
was in possession of adversary {Ashok v Madbo Lai AIR 1975 SC 1748; Govt,
of A.P. v Karri CMnna Venkata Reddy AIR 1994 SC 591).
 An uncertified photocopy of a Government order cannot be given in
secondary evidence {Union of India v Nirmal Singh AIR 1987 All 83).
Generally speaking, "copy of a copy" is not admissible as secondary
evidence but the copies prepared by a mechanical process and copies of a
copy compared with the original are secondary evidence.
(iii) Copies made from or compared with the original. If a copy is
prepared word-to-word from the original it is secondary evidence.
(iv) Counterpart of a document as against the party who did not sign it.
Thus, iLpatta will be a secondary document against the lessee
(tenant), as he did not execute it; and qabultat will be a secondary
document against the landlord, as he did not execute it.
(v) Oral account of the contents of a document given by a person who
has himself seen (i.e. read) the document. An oral account of a
copy compared with the original is not a secondary evidence.

Proof by primary evidence (Sec. 64)

According to Sec. 64, a document must be proved by its primary evidence
except in the cases hereinafter mentioned.

When secondary evidence relating to documents may be given5 (Sec. 65)

In the following cases, the secondary evidence may be given of the
existence, condition, or contents of a document:

5. Under what circumstances is the secondary evidence of a document admissible?

Discuss. [DU.-2011][LC.II-
94]
Facts Requiring No Proof & Oral/Documentary Evidence 189

(1) When the original is shown or appears to be in the possession or

power of a person against whom the document is sought to be proved
(adversary party), or of any person out of reach of or not subject to
the process of court, or any person legally bound to produced it, and
although due notice has been given to him in accordance with the
terms of Sec. 66, he does not produce it.
(2) When the existence, condition or contents have been proved to be
admitted in writing by the party against whom the document is to be
proved.
(3) When the original has been destroyed or lost, or when the party
offering evidence of its contents, cannot for any other reason not
arising from his own default or neglect, produce it in reasonable time.
(4) When the original is of such a nature as not to be easily movable (e.g.
bulky documents).
(5) When the original is a public document within the meaning of Sec.
74.
(6) When the original is a document of which the Evidence Act or any
other law of the country permits certified copies to be given in
evidence.
(7) When the original consists of numerous accounts or other documents
which cannot be conveniently examined in the court and the fact to
be provided is the 'general result' of the whole collection.
may be noted that secondary evidence of the contents of a written
instrument can not be given, unless there is some legal excuse for non-
production of the original (primary evidence). Further, secondary evidence
in only be given when the primary evidence or the document itself is
admissible. Secondary evidence cannot be given of a document when the
original is found to be inadmissible. If a deed of gift is inadmissible in
evidence for want of registration, no secondary evidence of the deed can e
given in a suit to recover the gifted property.
Where the document is in the possession of a party who does not :ven
after notice) produce it, or when the original has been lost or
190 Law of E v i d e n c e

destroyed or when it is bulky, any kind of secondary evidence of the

contents can be given. When the contents of document have been admitted
by the party against whom it has to be proved, his written admission can be
given as a secondary evidence of document. In case of public documents,
only certified copies can be given.
Call records of cellular phones are stored in huge servers, which
cannot be easily moved and produced in courts. Hence, secondary evidence
of such records should be allowable under Sees. 63 and 65 [State (NCT of
Delhi) v Navjot Sandhu (2005) 11 SCC 600].
Objection as to secondary evidence when can be raised
Objection must be taken at admission and not at a later stage
[Dayamathi Bai v KM. Shaffi (2004) 7 SCC 107]. Objection can be classified
as: (i) objection that the document sought to be proved is itself inadmissible,
and (ii) objection not directed against the admissibility of document but
against the mode of proof on the ground of irregularity or insufficiency.
Objection under (i) ground can be raised even after the document has
been marked as an exhibit or even in appeal or revision. Objection under (ii)
ground can be raised when the evidence is tendered but not after the
document has been admitted in evidence and marked as an exhibit [R. V.
Venkatachala Gounder v A. Viswearaswami (2003) 8 SCC 752].

Sees. 65A/ 65B (Admissibility of Electronic Records in Evidence)

Sees. 65A and 65B have been added by the Information Technology Act,
2000. Sec. 65A lays down that the contents of electronic records may be
proved in accordance with the provisions of Sec. 65B.
Sec. 65B lays down that "notwithstanding anything contained in this
Act, information in an electronic record which is printed on a paper, stored,
recorded or copied in a computer shall be deemed to be a document and
shall be admissible in any proceedings (without further proof or production
of the original) as evidence of the contents of the original or of any fact
stated therein of which direct evidence would be admissible."
It is further laid down that the following conditions have to be
satisfied in relation to a "computer output":
 Facts Requiring No Proof & Oral/Documentary Evidence 191

(a) Information was produced during the regular course of activities by

the person having lawful control over the computer's use.
(b) Information has been regularly fed into the computer in the ordinary
course of the said activities.
(c) Throughout the material part of the said period, the computer was
operating properly, or the improper operation was not such as to
affect the electronic record or the accuracy of its contents.
(d) Information contained in the electronic record reproduces or is
derived from such information fed into the computer in the ordinary
course of activities.
Sec. 65B then lays down that for the purpose of evidence, a certificate
identifying the electronic record containing the statement and describing le
manner in which it is produced by a computer and satisfying the conditions
mentioned above, and signed by an officer in charge of the operation or
management of the related activities, shall be the evidence f any matter
stated in the certificate; it shall be sufficient for a matter ) be stated to the
best of the knowledge and belief of the person stating

Sec. 66 (Rules as to Notice to Produce)

Sec. 66 lays down that a notice (to produce a document) must be given before
secondary evidence can be received under Sec. 65 (a). The notice ; to be
given to the party who has possession of the original document, r to his
attorney or pleader. Notice should be given in a manner as is prescribed by
law, and if there is no law on the point, such notice should be given as the
court considers reasonable under the circumstances of be case.
Provided that such notice shall not be required in the following cases, or
in any other case in which the court thinks fit to dispense with it:
(1) When the document to be proved is itself a notice.
(2) When, from the nature of the case, the adverse party (i.e. party in
possession of document) must know that he will be required to
produce it.
 (3) When it appears or is proved that the adverse party has obtained
possession of the original by fraud or force.
(4) When the adverse party or his agent already has the original in court.
(5) When the adverse party or his agent has admitted that the original has
been lost.
(6) When the person in possession of the document is out or ready of, or
not subject to, the process of the court (viz. a foreign ambassador).

A Question arises: when the opposite party fails to produce the original when
demanded and the court has accordingly admitted secondary evidence, can the
party in possession subsequently produce the original of his own choice. The
answer is “No”. Sec. 164 clearly lays down that where a party has required to
another to produce a document and he had refused to do so, he con’t
afterwards use the document as ecidence unless he obtains the other party’s
consent or the court’s order.
The requirement of notice under Sec. 66 is to be strictly complies with.
The other party cannot be restrained from producing the original where the
notice to produce has not been given, nor can secondary evidence be giben in
such case.

Sec. 67 ( Proof of signature and handwriting of person alleged to have

signed or written document produced)
“If a document is alleged to be signed or written by any person, the signature
or the handwriting of so much of the document as is alleged to be in that
person’s handwriting must be proved to be in his handwriting.

Sec.67A (Proof as to Digital Signature)

“Except in the case of a secure digital signature, if the digital signature of any
subscriber is alleged to have been affixed to an electronic record the fact that
such signature is the digital signature of the subscriber must be proved.”
 Facts Requiring No Proof & Oral/Documentary Evidence 193

Sec. 67 does not prescribe any particular mode of proof of signature •

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

Sec. 68 (Proof of Execution of Document Required by Law to be

Attested)
To attest is 'to bear witness to a fact'. A document the execution of which s
required by law to be "attested" means a document the signature upon which
should be put in the presence of two witnesses who themselves add their
signatures and addresses in proof of the fact that the document was signed or
executed in their presence. They are called 'attesting witnesses', Attestation
does not imply that the attesting witnesses have admitted to the contents of a
document.
Sec. 68 lays down that if a document required by law to be attested
produced as evidence, at least one attesting witness shall be called to rove
the execution of the document. This principle will apply only if at least one
of the attesting witnesses is alive, capable of giving evidence and subject to
the process of the court.
Sec. 68 further provides that no attesting witness need be called in e
case of document (not being a will), which has been registered under
194 Law of Evidence

the Indian Registration Act, 1908, and the person executing it does not
specifically deny its execution. If there is a denial, then, an attesting witness
have to be called.

Sec. 69 (Proof where No Attesting Witness Found)

"If no such attesting witness can be found, or if the document is executed in
the United Kingdom, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person."
Sec. 70 (Admission of Execution by Party to Attested Document)
Sec. 70 lays down that 'where the party to an attested document has
admitted that he executed the document that is sufficient proof of the
execution even if the document is required by law to be attested'. This
'admission' relates only to the execution and to be made in the course of
the trial of a suit or proceeding. It must be distinguished from the
admission mentioned in Sees. 22 and 65 (b), which relate to the contents
of a document. -
The admission must be unqualified. Thus, if a person admits his
signature on a mortgage-bond, but denies that the attesting witnesses were
present at that time, the bond will have to be proved under Sec. 68, by
calling the attesting witnesses.

Sec. 71 (Proof when Attesting Witness Denies the Execution)

Sec. 71 lays down that 'if the attesting witness denies or does not remember
the execution of the document, its execution should be proved by other
evidence'. Thus, the fate of an attested document does not lie at the mercy of
an attesting witness; if he turns hostile, other evidence may be given; such a
document may then be proved in the same manner as documents not
required to be attested.
Sec. 71 is in the nature of a safeguard to the mandatory provisions of
Sec. 68 to meet a situation where it is not possible to prove the execution of
the will by calling the attesting witnesses, though alive. Sec. 71 is
permissive and enabling section permitting a party to lead other evidence in
certain circumstances.
 Facts Requiring No Proof & Oral/Documentary Evidence 195

If one attesting witness is produced, the party has done his duty (under
Sec. 68) even if that witness denies or does not remember the execution of the
document, and then other evidence can be offered under Sec. 71 [Chaitan
Charan v Maheshwar Parida AIR 1991 Ori. 125]. the court distinguished the
case from a decision of the Bombay High Court to the effect that on the
failure of one attesting witness to prove execution, the other attesting witness,
if available, should be produced and on his failure also, Sec. 71 can be used to
bring in any other evidence. njanki Narayan Bboir v Narayan Namdeo
Kadam (2003) 2 SCC 91, it was held that Sec. 71 does not apply where out of
the available attesting vitnesses to a will, only one is examined but he fails to
prove due execution of the will and thus will is not proved as per Sec. 68.
Where the attester was an illiterate person and he attested by putting his
thumb impression, he was not bound by the document unless it could le
shown that the document was read out to him and he understood it Badri
Narayanan v Rajabajyathammal (1996) 7 SCC 101].

Sec. 72 (Proof of Document Not required by Law to be Attested)

An attested document, not required by law to be attested, may be proved s if
it was unattested." To prove an attested document, one must prove )
attestation, and (ii) signature. To prove an unattested document, one has 3
prove execution only.

Sec. 73 (Comparison of Signature, Handwriting, etc. by the Court)

According to Sec. 73, when the Court has to satisfy itself whether the
signature, writing or seal on a document is genuinely that of a person whose
signature, etc. it purports to be, the Court may compare the same with another
signature, etc. which is admitted or proved to be that of the person concerned
although that signature, etc. has not been produced or proved for any other
purpose. This section applies also, with necessary modifications, to finger
impressions.
Sec. 73 also enables the court to require any person present in the court
to write any words or figures to enable the court to compare them
196 Law of E v i d e n c e

with the words or figures alleged to have been written by such person (Tower
to ask for specimen handwriting').
Whether the Court should do the comparison itself or appoint an expert
is a matter of discretion." In Murarilal v State ofM.P. (AIR 1980 SC 531), it
observed that the argument that the Court should not venture to compare
writings itself, as it would thereby assume to itself the role of an expert is
entirely without force. It is the plain duty of the court to compare the writings
and come to its own conclusions. Where there are expert opinions, they will
aid the court. Where there is none, the court will have to seek guidance from
authoritative textbooks and the court's own experience and knowledge.
However, the court should be slow in making self-comparison
(particularly where the signature with which comparison is to be made is in
itself not an admitted signature). The court can attempt a comparison, but in
the case of slightest doubt, should rely upon the wisdom of experts (Ajit
Savant v State AIR 1997 SC 3255). The court cannot substitute its opinion for
that of an expert. Weak expert opinion may be corroborated by the court's
opinion under the section.
Sec. 73 does not make any difference between civil and criminal
proceedings. It is not limited to parties to the litigation. By virtue of the
expression "any person" used in Sec. 73, the court can direct even a stranger
to give a specimen of his handwriting. It may be noted that where the case is
still under investigation and no proceedings are pending before the court, a
person present in the court cannot be compelled to give his specimen
handwriting. The direction is to be given for the purpose of enabling the court
to compare and not for the purpose of enabling the investigation or other
agency "to compare". In pendency of proceedings, it is sine qua non [State of
Haryana v Jagbir Singh (2003) 11 SCC 261].

Sec. 73A (Proof as to Verification of Digital Signature)

"In order to ascertain whether a digital signature is that of the person by
whom it purports to have been affixed, the court may direct (a) that person or
the Controller or the Certifying Authority to produce the Digital Signature
Certificate; (b) any other person to apply the public key listed in such
Certificate and verify the digital signature."
 Facts Requiring No Proof & Oral/Documentary Evidence 197

The Explanation to this section states that for the purpose of this section
"Controller" is same as mentioned in sub-sec. (1) of Sec. 17 of Information
Technology Act, 2000.

PUBLIC DOCUMENTS

The Act recognizes two kinds of documents, viz. public and private; it lays
down special rule relating to proof of public documents.

Sec. 74 (Public Documents)

The following documents are public documents:
(1) Documents forming the acts, or records of the acts:
(i) of the sovereign authority (namely, the Parliament and
Legislative Assemblies);
(ii) of official bodies and tribunals; and
(iii) of public officers, legislative, judicial and executive, of any part
of India or of the Commonwealth, or of a foreign country.
(2) Public records kept in any State of private documents.
Private documents, which are registered in public offices, also become public
documents. For example, the memorandum and articles of a company
registered with the Registrar of Companies; a private Waqf deed; etc. The
following have been held not to be public documents: An application for a
licence (AIR 1978 All. 185), a post-mortem report, an insurance policy (AIR
1998 Del. 386), a private sale-deed registered under the Indian Registration
Act, a panchanama prepared by a police officer. Likewise, a plaint or written
statement, and, income tax return are private documents.
A charge-sheet, arrest-warrant, order sheet, judgment of court, affidavit,
administrative report, etc. are public documents. Also, marriage register,
electoral roll, MLC report, and records of nationalized banks (AIR 2003 A.P.
251) are public documents. It has been held that publication
198 Law of E v i d e n c e

of feasibility reports on interlinking of rivers on the internet is a public

document [(2004) 11 SCC 358].
A 'public record' is one required by law to be kept, or necessary to be
kept in the discharge of a duty imposed by law, or directed by law to serve as a
memorial and permanent evidence of something written, said or done. Thus, an
original receipt executed by any individual and registered under the
Registration Act is not a public record as the original has to be returned to the
party. Entries made by a police officer in the site inspection map and site map
have been held to be public documents {Rajasthan S.R.T.C. v NandKisbore
AIR 2001 Raj 334).

Sec. 75 (Private Documents)

"All other documents are private".

Sec. 76 (Certified Copies of Public Documents)

According to Sec. 76, every public officer having the custody of a public
document (which any person has a right to inspect) must, on demand and
payment of legal fees therefor, give a copy of it with a certificate (dated,
subscribed and sealed) at the food that it is a true copy. A copy so certified is
called a 'certified copy'.
This section provides the means of proof of public documents through
which a certified copy of public documents can be obtained.

Sec. 77 (Proof of Documents by Production of Certified Copies)

According to Sec. 77, 'the contents of public documents may be proved by the
production of their certified copies'.
The word 'may' in this section denotes another mode of proof (optional
to the party), viz. production of the original. An electoral role has been held to
be a public document and, therefore, certified copy is admissible under Sec.
77. The deposition of a witness is a part of the record of the acts of an official
tribunal, and a statement made in it can be proved by a certified copy.
 Facts Requiring No Proof & Oral/Documentary Evidence 199

Sec. 78 (Proof of other Official Documents)

The following public documents may be proved as follows:
(1) Acts, orders and notifications of the Central/State Government or their
departments may be proved by the records of the department as
certified by the head or by any document purporting to be printed by
the department's order.
(2) The proceedings of the Legislatures may be proved by the journal of
the legislature concerned or by published Acts or abstracts, or by
copies purporting to be printed by the Government's order.
(3) Proclamations, orders or regulations issued by Her Majesty/Privy
Council can be proved by copies or extracts contained in the London
Gazette, etc.
(4) Acts of the executive or the proceedings of the Legislature of foreign
country can be proved by journals/certified copies, or by recognition
of the same in Central Act.
(5) Proceedings of a municipal body in a State may be proved by a
certified copy of such proceedings or an authoritative printed book.
(6) Public documents of any other class in a foreign country may be
proved by the original or by a certified copy issued by the legal
keeper of the document with a certificate under the seal of a notary
public/Indian consul or diplomatic agent.

PRESUMPTIONS AS TO DOCUMENTS (SECS.

79-90)

Sees. 79-90 are founded on the maxim amnio prosumuntur rite esse acta which
means that 'all acts are presumed to be rightly done'. But, these presumptions
are not conclusive but only prima facie presumptions and if the documents are
incorrect, evidence can be led to disprove them.
Presumptions under Sees. 79-85 and Sec. 89 are "compulsory" one in
the sense that the judge is bound to raise the presumption in question.
200 Law of E v i d e n c e

The presumptions under Sees. 86-88 and Sec. 90 are in the "discretion" of
the court in the sense that the court may or may not draw presumptions.

Sec. 79 (Presumption as to Genuineness of Certified Copies)

According to Sec. 79, when a certified copy of a document is produced
before the court as evidence of the original the law presumes that the copy is
a genuine reproduction of the original. However, it is necessary that the copy
should have been certified by an officer of the Central/ State Government
(including an officer in State of J&K authorized by Central Govt.) and the
document should be substantially in the form prescribed by law and should
also purport to be executed in that manner.
The court also presumes that the officer who signed or certified the
document held the official character which he claims in such paper. It is not
necessary to call such an officer in evidence.

Sec. 80 (Presumption as to Documents produced as Records of

Evidence)
According to Sec. 80, when a person has appeared before a Court of law and
has recorded his testimony or confession (taken in accordance with law and
purporting to be signed by a judge, etc.) and his statement being relevant in a
subsequent case, the court shall presume the genuineness of such certified
copy and that such evidence, statement, etc. was duly recorded.
This section is based on the principle that acts presumed to have been
done rightly and regularly in course of judicial proceedings will be accepted
in evidence.

Sec. 81 (Presumption as to Gazettes, Newspapers, Private Acts

of Parliament)
Under Sec. 81, Official Gazettes, newspapers or journals, copies of the
private Act of Parliament of U.K., and other documents kept in accordance
with the law are presumed to be genuine.
In spite of this presumption, it has been held that newspaper reports do
not constitute admissible evidence of their truth. The presumption of
genuineness attached under Sec. 81 to a newspaper report cannot be
 Facts Requiring No Proof & Oral/Documentary
Evidence201

treated as a proof of the facts reported therein [Laxmi Raj Shetty v State rfT.N.
AIR 1988 SC 1274; B. Singh (Dr.) v Union of India (2004) 3 SCC >63]. The
statement of a fact contained in a newspaper is merely a hearsay' and is,
therefore, inadmissible in evidence (Ramswaroop v State of lajasthan AIR
2002 Raj 27).

Sec. 81A (Presumption as to Gazettes in Electronic Forms)

The Court shall presume the genuineness of every electronic record
purporting to be the Official Gazette, or purporting to be electronic record
directed by any law to be kept by any person in the form required by law and
is produced from proper custody.

iec. 82 (Presumption as to Document admissible in England

without proof of seal or signatures)
Jnder Sec. 82, when a document is produced before a court which according
to the laws of England or Ireland would be admissible without proof of seal,
signature, etc, the court shall presume that such seal, etc. genuine and also
that the person signing the document held at the time )f signing it, the
judicial/official character which he claims.

Sec. 83 (Presumption as to Maps or Plans)

According to Sec. 83, maps or plans purporting to be made with the authority
of the Central/State Government are presumed to be accurate. But, maps or
plans made for the purpose of any cause must be proved :o be accurate.

Sec. 84 (Presumption as to Collection of Laws and Reports of

Decisions)
According to Sec. 84, the Court presumes the genuineness of every book,
printed or published under the authority of the Government of any country,
which contains laws of that country. Similar is the case with a book published
by the State which contains report of decided cases.
It may be noted that Sec. 57 authorizes the Courts to take judicial lotice
of the existence of all laws and statutes in the territory of India ind U.K. Sec.
74 recognizes statutory records to be 'public records'. Sec.
202 Law of E v i d e n c e

78 lays down the method of proving the Statutes/Acts passed by the

legislature.

Sec. 85 (Presumption as to Power of Attorney)

A 'power of attorney' is a document by which an agent is given the power to
act for his principal. According to Sec. 85, a power of attorney duly executed
before and authenticated by a notary public or any judge/court/ Indian
Consul/Vice-Counsel/ representative of Central Government are presumed to
be genuine. The presumption also applies to documents authenticated by
notaries functioning in other countries.

Sec. 85A/85B/85C (Presumption as to Electronic Agreements, Records,

etc.)
Sec. 85A raises a presumption as to 'Electronic Agreements': The Court shall
presume that every electronic record purporting to be an agreement containing
the digital signatures of the parties was so concluded by affixing the digital
signature of the parties.
Sec. 85B raises a presumption as to a 'secure electronic record' (that it
has not been altered since the specific point of time to which the secure status
relates), and a 'secure digital signature' (that it is affixed by subscriber with the
intention of signing or approving the electronic record). Except in these cases,
there is no presumption relating to authenticity, etc. of the electronic record or
any digital signature. Sec. 85C raises a presumption as to 'Digital Signature
Certificates'.

Sec. 86 (Presumption as to Certified Copies of Foreign Judicial Record)

Under Sec. 86, the court is given the judicial discretion to presume that the
certified copies of foreign judicial records are genuine.

Sec. 87 (Presumption as to Books, Maps and Charts)

According to Sec. 87, when books, maps, charts, etc. are produced before the
Court in proof of a fact in issue or a relevant fact, the Court may presume that
any such book, map, etc. was written or published by the
 Facts Requiring No Proof & Oral/Documentary Evidence 203

person whose name is shown as that of the author or publisher and was
published at the place where it was published.

Sec. 88 (Presumption as to Telegraphic Messages)

According to Sec. 88, in reference to telegraphic messages, the Court may
resume that the message delivered to the addressee corresponds with the
message handed over to the post office and that the message was meant n the
person whom it is purported to be delivered. But, the court shall not make
any presumption as to the sender of the message since telegraphic messages
can be sent by unauthorized persons. The court may treat telegraphic
messages received, as if they were the 'originals' sent. A telegram is a
primary evidence of the fact that the same was delivered to le addressee on
the date indicated therein.

Sec. 88A (Presumption as to Electronic Messages)

he court may presume that an electronic message forwarded by the
originator through an electronic mail server to the addressee to whom the
message purports to be addressed corresponds with the message as fed into
his computer for transmission; but the court shall not make any resumption
as to the person by whom such message was sent.

Sec. 89 (Presumption in relation to Documents Not Produced)

The court shall presume that every document, called for and not
produced after notice to produce, was attested, stamped and executed in ie
manner required by law.

SEC. 90 (Presumption as to Documents Thirty Years Old: Ancient

Documents)
Sec 90 lays down that where a document is purported or proved to be 1-year
old and is produced from any custody which the court in particular sc
considers proper, the court may presume that signature and every but of
document is in that person's handwriting, and in case of document tested or
executed that it was duly attested or executed by the person f whom it
purports to be attested or executed.
204 Law of E v i d e n c e
•
The basis of the section is that as time passes, the executants, vendors,
witnesses may not be available to prove title, etc. The documents which are
thirty years old, prove themselves. It may be noted that the presumption relates to
the execution of the document (signature, attestation, etc.), in other words, its
genuineness, but not to the truth of its contents (Ramakrishna v Gangadhar
AIR 1958 Ori 26). Also, there is no presumption that the executants had the
authority to do or not what the document purports to do. Further, the
presumption can be raised only with reference to original documents and not
to copies thereof.
Explanation to Sec. 90: According to the explanation, "proper custody"
means: (a) the place where the document would normally be; (b) was under
the care of a person with whom it would naturally be; (c) any custody which
is proved to have had legitimate origin; and (d) under the circumstances of
the case the custody from which the instrument is produced is probable.

Illustrations
(a) A has been in possession of landed property for a long time. He
produces from his custody deeds relating to the land, showing his
title to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the
mortgagee, the mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to land in B's
possession which were deposited with him by B for safe custody.
The custody is proper.
Because a document purports to be an ancient document and to come from
proper custody, it does not follow that its genuineness is to be assumed. If
there are reasonable grounds for suspecting its genuineness, and the party
relying upon it fails to satisfy the court of its due execution, its genuineness
will not be presumed. The presumption under Sec. 90 is of discretionary
nature; the court may refuse to draw it and require the document to be
proved in the ordinary manner. A party who has attempted to prove the
document by direct evidence cannot afterwards rely on the presumption
[Chandabai v Anwarkhan AIR 1997 M.P. 238].
In Gangamma v Shivalingaiah (2005) 9 SCC 359, the Apex Court
held: Sec. 90 nowhere provides that authenticity of the recitals contained
 Facts Requiring No Proof & Oral/Documentary
Evidence2 05

the document is to be presumed. Even when the formal execution of le

document is proved, this by itself does not lead to the presumption lat the
recitals contained in the document are also correct. It is open to e parties to
raise a plea to the contrary within the limits permitted under :cs. 91 and 92.

ic. 90A (Presumption as to Electronic Records Five Years Old)

'here any electronic record, purporting or proved to be 5-year old, is •oduced
from a proper custody, the court may presume that the digital gnature which
purports to be the digital signature of any particular :rson was so affixed by
him or any person authorized by him in this shalf.
 7
Exclusion of Oral by
Documentary Evidence

Where both oral as well as documentary evidence are admissible, the court
may go by the evidence which seems to be more reliable. There is nothing in
the Act requiring that the documentary evidence should prevail over the oral
evidence. The provisions as to exclusion of oral by documentary evidence
are based on 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. Sees. 91 and 92 of the Evidence Act
incorporate this principle.

Best Evidence Rule1

The main object of the law of evidence is to restrict the investigation made
by courts within the bounds prescribed by general convenience. Thus, the
evidence must be confined to the matter in issue, hearsay evidence must not
be admitted, and, the best evidence must be given in all cases.
The 'best evidence' rule means that the best evidence of which the
case in its nature is susceptible must always be produced. The rule does not
require the production of the greatest possible quantity of evidence, but it is
framed to prevent the introduction of any evidence which raises

1. One of the main purposes of the Evidence Act is that 'Best Evidence' must
come before the court. Comment. [LCI 1-
93]

[206]
 Exclusion of Oral by Documentary Evidence 207

the supposition that there is better evidence behind it, in possession or rider
control of the party by which he might prove the same fact, and which is
withheld by the party.
It is one of the cardinal rules of the law of evidence that the best
evidence in possession of the party must always be given, i.e., if a fact to be
proved by oral evidence, the evidence must be that of a person who had
directly perceived the fact to which he testifies. Otherwise, it could be
impossible to test, by cross-examination, the truth of the testimony; id the
law rejects the evidence which cannot adequately be tested. Thus, hearsay
evidence is not evidence; it is only in exceptional cases that such evidence is
admissible.
Similarly, where the transaction sought to be proved is primarily
evidenced by a writing, the writing itself must be produced or accounted for.
It is only in the absence of best or primary evidence (original document) that
the court will accept what is known as secondary evidence ( copy of the
original document). Secondary evidence will never be received until the
party tendering it proves that it is out of his power to obtain e best evidence.
Further, it is a well-established rule of law that whenever written
instruments are involved, any other evidence (e.g. oral) is excluded from
being used, either as a substitute for such instrument or to contradict such
instrument (Rule of exclusion of oral evidence by documentary evidence).
The written instruments are entitled to more credit than parole r oral)
evidence. However, in certain exceptional cases, oral evidence n be given
regarding the documents.

Evidence of Terms of Contracts, Grants, etc. Reduced to Document

(Sec. 91)
According to Sec. 91, "when the terms of a contract, grant or some other
disposition of property is reduced to the form of a document or is required
by law to be reduced to a document, no evidence shall be given r the proof
of the terms of such contract, etc. except the primary or secondary evidence
of the writing itself.
This section merely forbids proving the contents of a writing otherwise
than by writing itself. It incorporates rule of "best evidence"
208 Law of Evidence

which in reality declares a doctrine of substantive law, namely, that in the

case of a written contract all proceedings and contemporaneous oral
expressions of the thing are merged in the writing or displaced by it [Roop
Kumar v Mohan Thedani (2003) 6 SCC 595].
The section extends to both types of transactions, namely, which have
voluntarily been made by writing and for 'which "writing is compulsory; it
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. 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 R.s. 100 or
more, a partition-deed, etc. Where registration of a document is compulsory
under the Registration Act, the document if unregistered will he
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. Later, 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 this 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.
A. sues B for the possession of a certain house alleging that it
belongs to him and B is a trespasser. B contends that the house belongs to
him and alleges that there was previous civil litigation between the same
parties for the same house and it was decided that the house belongs to him.
The contents of that previous judgment must be proved by the copy of the
judgment. Oral evidence is shut out.
It may be noted that an oral account of the contents of document is
not an oral evidence. Further, the rule contained in Sec. 91 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.
Exception 1, Sec. 91 - 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
 Exclusion of Oral by Documentary Evidence 2 09

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, Sec. 91- 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.
Explanation 1, Sec. 91 - This section applies equally to cases in which the
contracts, etc. are contained in one document or more than one. If a contract is
contained in several letters, all the letters must be proved [Must. (a)].
Explanation 2, Sec. 91 - Where there are more originals than one, one original
only need be proved.
Illustrations: (b) If a contract is contained in a bill of exchange, the bill of
exchange must be proved, (c) If a bill of exchange is drawn in a set of three,
one only need be proved.
Explanation 3, Sec. 91 - Where in addition to the terms of the contract, etc. a
document refers to any other fact also, as to that fact oral evidence" is always
allowed. For example, a contract for sale of goods mentions that the goods
supplied on earlier occasions have been paid for. Since this is not a term of the
contract, it is an extraneous fact and, therefore, oral evidence can be offered to
show that no such payment was ever made [Illust. (d)]. A gives B a receipt for
money paid by B. Oral evidence is offered of the payment. The evidence is
admissible [Illust. (e)].

Exclusion of Evidence of Oral Agreement2 (Sec. 92)

The provision in Sec. 91 is further supplemented by Sec. 92 by providing that
once any such contract, grant or disposition has been proved by the

2. What are the circumstances when oral evidence can be given regarding
documentary evidence? Discuss with reference to the provisions of Evidence
Act and decided cases. : [LC.II-
94/95\
Write a short note on 'Exclusion of oral by documentary evidence'. vV
IC.L.®&1/9Z\
210 Law of Evid en ce

writing, then no evidence can be given of any oral agreement to contradict or

change the terms of the contract. In other words, no oral evidence can be given
to qualify the terms of the document.
Sec. 92 precludes only the parties to the document and their
representatives-in-interest from giving oral evidence concerning the contents of
document. Other parties (or strangers) are left free to give such evidence.
Further, evidence can be given of any oral agreement which does not
contradict, vary, add or subtract from the terms of the document.
It may be noted that Sec. 91 lays down a universal rule and is not
confined to the executant or executants of the document. It is after the
document has been produced to prove its terms under Sec. 91 that the
provisions of Sec. 92 come into operation. Both the sections would be
ineffective without each other. Sec. 91 applies to both unilateral and bilateral
documents, while Sec. 92 applies only to bilateral one (i.e. does not apply to
third persons/persons). In Roop Kumar v Mohan Thedani (2003) 6 SCC 595, it
was held that Sees. 91 and 92 are based on the recognition of the rural act of
integration in the case of written instruments and applies even to a third party
seeking to establish a contract.
Suppose A borrows Rs. 200 from" :B and executes a pronote in which the
interest rate is given 1 per cent. B files suit for recovery of the principal and
interest at the rate of 1 per cent. The pronote is filed and proved in the court. A
wants to lead evidence to the effect that the interest settled between the parties
was Vi percent. Now, this evidence cannot be allowed as it contradicts the
terms of the pronote.
The rationale behind Sec. 92 is that the parties having made a complete
memorial of their agreement, it must be presumed that they have put into
writing all that they considered necessary to give full expression to their
meaning and intention; further, the reception of oral testimony would create
mischief and open the door to fraud (Rajkumar Rajendra Singh v State of H.P.
AIR 1990 SC 1833).
If, for example, a policy of insurance applies to ships leaving Calcutta.
One of the ships is lost. It is sought to be proved that by an oral agreement the
particular ship was excepted from the policy. Such evidence is inadmissible
[illustration (a) to Sec. 92]. Similarly, a written agreement to pay a sum of
money on a certain day cannot be contradicted by proving
 Exclusion of Oral by Documentary Evidence 211

it the day in question was changed by an oral agreement. A agrees

absolutely in writing to pay B Rs. 1000 on 1st March 1873. The fact
that, :he same time, an oral agreement was made that the money should not
paid till the 31st March cannot be proved [illustration (b) to Sec. 92].
An estate called "Rampur Tea Estate" is sold by a deed which contains a
map of the property sold. The fact that land not included in ; map had
always been regarded as part of the estate and was meant pass by the deed
cannot be proved [Must. (c)].

Exceptions - when Oral Evidence can be given regarding a

Document
There are various exceptions to the general rule of exclusion of evidence
oral agreement:-
(1) Validity of document (proviso 1, Sec. 92) - The 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 on the
grounds of fraud, intimidations, illegality, failure of consideration,
mistake in fact or law.
or example, A enters into a written contract with B to work certain lines of
B, upon certain terms. A was induced to do so by a ^representation of B's as
to their value. This fact may be proved [Must. I)]. A institutes a suit against
B for the specific performance of a contract, and also prays that the contract
may be reformed as to one of s provisions - inserted by mistake. A may
prove that such a mistake was lade as would by law entitle to have the
contract reformed [Must. (e)].
The owner of a house borrowed a sum of money and executed a ominal
sale-deed and rent note. She was allowed afterwards to prove lat the
documents were not intended to be acted upon and that the rent aid by her
represented interest on the loan (Gangabai v Chabbubai AIR 982 SC 20).
(2) Matters on which document is silent (proviso 2, Sec. 92) - Evidence
can be given of an oral agreement on a matter on which the
document is silent. But the oral agreement should not be inconsistent
with the terms stated in the document. The separate
212 Law of Evidence

oral agreement should be on a distinct collateral matter, although it

may form a part of the transaction. In considering whether a case
falls under this exception, the formality of the document is an
important consideration. The more formal the document, the
greater will be the court's reluctance to admit oral evidence.
The illustrations to Sec. 92 make clear the point. A written agreement, for
example, is silent as to the time of payment of the price. If there is any oral
agreement regarding this, it may be proved [Illust. (f)]. A sells B a horse and
verbally warrants him sound. A gives B a paper in these words: "Bought of
A horse for Rs. 500". B may prove the verbal warranty [Illust. (g)]. Where a
room is hired in a lodging on a fixed rent per month by a written agreement,
but the agreement does not make it clear whether the amount reserved was
for lodging only or included boarding also. If there was any oral agreement
on the point the same may be proved [Illust.
m
In Brij Kishore v Lakhan Tiwari (AIR 1978 All. 374), the document in
question was one by which the existence of a deed was acknowledged and it
was on a stamp paper. The document was silent about the interest payable
and, therefore, oral "evidence was offered on the point. The question was
whether the document was so formal as to shut out oral evidence. The court
allowed the evidence.
The court observed: When the document is such that one may
reasonably believe that the entire terms and conditions agreed were sought
to be put into the document, then oral evidence should not be allowed.
Generally speaking, mere acknowledgment of debt, even though stamped,
cannot be deemed to be such a formal document as to incorporate all the
terms and conditions of the borrowing. It is basically an acknowledgment of
liability not mentioning the terms and conditions on which the borrowing
was contracted. In that sense, it differs from a formal pronote which
incorporates the terms and conditions of loan.
(3) Condition precedent (proviso 3, Sec. 92) - The existence of any
separate oral agreement constituting condition precedent to the
attaching of any obligation under the document may be proved
This exception means that where there is a separate oral agreement
that the terms of a written contract are not to take effect until a
condition precedent has been fulfilled or a certain event ha;
 Exclusion of Oral by Documentary Evidence 213

happened, oral evidence is admissible to show that as the event did

not take place, there is no written agreement at all. This rule would
never apply to a case where the written contract has been performed
or acted upon for some time.
a receipt for payment has been sent on an oral understanding that the receipt
was to apply only when payment was made, this fact may be roved [Must.
(i)]. Similarly, where the parties to a promissory note payable Q demand,
orally agreed that payment would not be demanded for five ears, the court
allowed the oral agreement to be proved (Naraindas v apammal AIR 1967
SC 333). A and B make a contract in writing to take [feet upon the
happening of a certain contingency. The writing is left with B, who sues A
upon it. A may show the circumstances under which ; was delivered [Must.
(j)].
(4) Rescission or modification (proviso 4, Sec. 92) - Where after executing
a document, the parties orally agree to treat it as cancelled or to
modify some of its terms, such oral agreement may be proved.
However, where the contract is one which is required by law to be in
writing, or where it has been registered lawfully, then proof cannot
be given of any oral agreement by which it was agreed either to
rescind the contract or to modify its terms.
(5) Usages or customs (proviso 5, Sec. 92) - Under this exception, oral
evidence is admissible to explain or supply terms in commercial
transactions on the presumption that the parties did not intend to exit
into writing the whole of their agreement, but tacitly (impliedly)
agreed that their contract was to be interpreted or regulated by
established usages and customs, provided they are not inconsistent
with the terms of such contract. Thus, oral evidence may be offered
that by the custom of the trade the seller had to arrange for wagons
(Bejoy Krishna v N.B. Sugar Mills Co. AIR 1949 Cal 490).
(6) Relation of language to facts (proviso 6, Sec. 92) - Any fact may be
proved which shows in what manner the language of a document is
related to existing facts. This exception comes into play when there is
latent ambiguity in a document i.e. when there is a conflict between
the plain meaning of the language used and the existing facts. In such
cases, evidence of the surrounding
214 Law of E v i d e n c e

circumstances may be admitted to ascertain the real intention of the

parties. Thus, the conduct of the parties can also be taken into
account so as to find out what they might mean by their words.
Where, for example, a person transfers the whole of his property, but does
not describe or state what his property is. In such cases the property to which
the document relates can be proved by oral evidence. 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. Oral evidence is also receivable to throw
light upon the nature of a document.
(7) Appointment of a public officer (exception 1, Sec. 91) - See above.
(8) Wills (exception 2, Sec. 91) - See above.
(9) Extraneous facts (explanation 3, Sec. 91) - See above.

Case Law
In Sara Veeraswami v Talluri Narayya (AIR 1949 PC 32), the appellant sold
some property through a registered sale deed in 1932. It was an outright sale.
But simultaneously, there was an oral agreement for sale and right to re-
conveyance if sale price was repaid within five years. The question involved
in dispute is whether the document is a sale with or without right to re-
conveyance as per oral agreement and benefit of proviso to Sec. 92 is
available? According to operating part of Sec. 92, written agreement will
prevail over oral agreement. But proviso 2, Sec. 92 makes a difference. In
this case, it is necessary to see whether oral agreement as to the re-
conveyance of property sold, contradicts, varies, adds to or subtracts from
the term of sale document. The answer lies in the truth of the agreement.
The real issue was whether the transaction of sale and re-conveyance
are a single transaction or two separate ones? There can be different
agreements of sale and then resale or re-conveyance relating to the same
subject-matter. The Privy Council held that, there were two different
transactions. The determining factor is the ultimate shape of the agreement
rather than the process by which it is reached. An oral stipulation may be
purely collateral to the written agreement which it has induced, and,
 Exclusion of Oral by Documentary Evidence 215

both written as well as oral agreement can be separate transactions though

touching on a common subject-matter.
Such was the character of transactions in this case and the oral
agreement did not contradict, vary and subtract from the terms of sale deed (if
the agreement was in truth a mortgage the oral agreement would obviously
contradict the terms of the sale deed). On the contrary, it left those terms and
the interest passing there under to the purchaser entirely unaffected. Can it
then be said to have added to the terms of the sale deed? The words 'adding to'
which are part of Sec. 92 must receive their due weight, but they do not suffice
to exclude the oral agreement relied on by the appellants. It is of course,
literally correct to say that as the agreement for re-conveyance related to the
lands sold, it added a further stipulation respecting those lands. That, however,
is not an appropriate test of the applicability of Sec. 92 which is concerned to
defeat the modification of a particular document. It is not enough to ask if the
oral agreement relates to what has been sold. To be excluded it must bear, in
some one or more of the ways specified in the section, upon the terms of sale
as contained in the instrument. To add a stipulation which is quite unconnected
with the terms of sale is not an addition of the kind struck at by the section.
Thus, proviso 2 to Sec. 92 is applicable and oral agreement is a valid separate
transaction which will prevail. The appellants will succeed.

LEADING CASE: ROOP KUMAR v MOHAN THEDANI

[(2003) 6 SCC 595]
Facts and Issue - In this case the scope and ambit of Sees. 91 and 92
were in issue. The jural positions of these two sections was analyzed
by the court.
Before the High Court the parties agreed that the basic
question which required consideration was whether relationship
between the respondent and the appellant was that of licensor and
licensee or it was that of lessor or lessee. The Trial Judge had held
that the transaction between the respondent and appellant evidenced
by an agreement dated 15-5-1975 amounts to licence and not sub-
letting. There was a finding recorded by the trial court to the effect
that the appellant was a party to earlier
216 Law of E v i d e n c e

ejectment proceeding which was not factually correct. The High

Court held that the agreement dated 15-5-1975 was entered into
between them with mutual consent and the appellant-defendant
signed the same voluntarily and out of his free will; it was not a
sham document; was in fact acted upon; the appellant-defendant
was an accounting party in terms of the agreement.
The question was whether the particular document was
intended by the parties to cover certain transactions between them
and, therefore, to deprive of legal effect all other utterances.
Observations and Decision - The Apex Court held that the High
Court was justified in rejecting the plea of sub-tenancy. It observed
that every jural act may have the following four elements:
(a) the enaction or creation of the act;
(b) its integration or embodiment in a single memorial
when desired;
(c) its solemnization or fulfilment of the prescribed
forms, if any; and
(d) the interpretation or application of the act to the
external objects affected by it.
The first and fourth are necessarily involved in every jural act, and
second and third may or may not become practically important, but
are always possible elements. The integration of the act consists in
embodying it in a single utterance or memorial - commonly, of
course, a written one. When a jural act is embodied in a single
memorial all other utterances of the parties on the topic are legally
immaterial for the purpose of determining what are the terms of
their act. This rule is based upon an assumed intention on the part of
the contracting parties, evidenced by the existence of the written
contract, to place themselves above the uncertainties of oral
evidence and on a disinclination of the courts to defeat this object.
The court cited Thayen's Preliminary Law on Evidence (pp.
397-398); Phipson on Evidence, 546 (7th Edn.); Wigmore's Evidence,
2406; ^/ffeWy i Evidence, 294; Greenlear's Evidence, 563, where
 Exclusion of Oral by Documentary Evidence 217

rule is exclusively associated is the rule that when the contents of a

writing are to be proved, the writing itself must be produced before
the court or its absence accounted for before testimony to its contents
is admitted.
The Apex Court observed: Sec. 91 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 Sec. 92, 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 Sec. 91. Sees. 91 and 92 apply only when the
document on the face of it contains or appears to contain all the terms
of the contract. Sec. 91 is concerned solely with the mode of proof of
a document while limitations imposed by Sec. 92 relate only to the
parties to the document. After the document has been produced to
prove its terms under Sec. 91, provisions of Sec. 92 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. Sees. 91 and 92 in effect
supplement each other. Sec. 91 would be inoperative without the aid
of Sec. 92 and vice versa.
The two sections, however, differ in some material particulars.
Sec. 91 applies to all documents, whether they purport to dispose of
rights or not; whereas Sec. 92 applies to documents which can be
described as dispositive. Sec. 91 applies to documents, which are
both bilateral and unilateral, unlike Sec. 92, 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
218 Law of E v i d e n c e

such contract has been reduced to writing can only prove such
contract by the production of such writing.
The grounds of exclusion of extrinsic evidence are: (i) to
admit inferior evidence when law requires superior would amount
to nullifying the law, and (ii) when parties have deliberately put
their agreement into writing, it is conclusively presumed, between
themselves and their privies, that they intended the writing to form a
full and final statement of their intentions, and one which should be
placed beyond the reach of future controversy, bad faith and
treacherous memory.
This court in Gangabai v Cbbabubai (AIR 1982 SC 20) and
Ishwar Dass Jain v Sohan Lai (AIR 2000 SC 426) with reference to
Sec. 92(1) held that it is permissible to a party to a^Jeed to contend
that the deed was not intended to be acted upon, but was only a
sham document. The bar under Sec. 92 arises only when the
document is relied upon and its terms are sought to be varied or
contradicted. Oral evidence is admissible to show that the document
executed was never intended to operate as an agreement and that
some other document was entered into between the parties].
Comments - In Ishwar Dass Jain case (above), a mortgagor filed a
suit for redemption. Oral evidence was sought to be given to prove
that the mortgage deed, though executed, was not intended to be
acted upon and that it was a sham document executed only as a
collateral security. Held that it would not amount to varying or
contradicting the terms of the document and would not be hit by
Sec. 92.
In Parvinder Singh v Renu Gautam (2004) 4 SCC 794, it has
been held that oral evidence in departure from the terms of a written
deed is admissible to show that what is mentioned in the deed was
not the real transaction between the parties but that it was something
different. In R. Janakiraman v State (2006) 1 SCC 697, the Apex
Court clarified that Sec. 92 applies when a party to the instrument
seeks to disprove its terms, it does not apply when anyone including
a party to the instrument, seeks to establish
 Exclusion of Oral by Documentary Evidence 219

that the instrument itself is sham and fictitious, or nominal not

intended to be acted upon. In Savitree Devi v State of Bihar (AIR
1989 Pat. 327), the Patna High Court observed that effectiveness of a
gift depends upon the fact that whether it has been acted upon.
Hence, oral evidence can be given to show whether a gift deed has
been acted upon or not.
In S. Saktivel v M. Venugopal Pillai (AIR 2000 SC 2633), the
court observed that a disposition conferring title to property is
required by law to be reduced to writing in order to ensure its
efficacy and effectiveness. The parties to the document cannot under
Sec. 92, proviso 4 be permitted to adduce oral evidence to prove a
subsequent agreement which has the result of modifying the written
document especially when the document has been registered.
In Ramachandran v Y. Theva Nesom Ammal (AIR 2003 Mad.
262), the sale-deed of property mentioned an amount of
consideration. The vendor was not allowed to prove that real
consideration was agreed to be much more than what was mentioned.
In Bishwanath Prasad Singh v Rajendra Prasad (2006) 4 SCC 432,
in a sale of property with the condition of re-conveyance within a
specified time, the seller failed to exercise the option within the time
delimited. He was not afterwards allowed to say that the transaction
was in essence a mortgage and he should be allowed to redeem it.

AMBIGUOUS DOCUMENTS

When a document is ambiguous i.e. either its language does not show the
:lear sense of the document or its application to facts creates doubts, how far
oral evidence can be allowed to clarify the language or to remove the iefect?
Sections 93-98 lay down the rules as to interpretation of documents svith the
aid of such 'extrinsic evidence' (evidence from the outside).
Ambiguities are of two kinds: ambiguitas patens i.e. patent ambiguity
[Sees. 93-94) and ambiguitas latens i.e. latent ambiguity (Sees. 95-97). A
latent ambiguity means a defect which is apparent on the face of the
220 Law of E v i d e n c e

document. In such cases the principle is that oral evidence is not allowed to
remove the defect. A latent defect implies a defect which is not apparent on
the face of the record, but is in the application of the language (used in the
document) to the facts stated in it. The general principle is that evidence can
be given to remove such defects.

Sec. 93 (Exclusion of Evidence to Explain or Amend Ambiguous

Document)
"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 Rs. 1,000 or Rs.
1,500. 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.
The reason for the exclusion of evidence in such cases is that the
document being clearly or apparently defective, this fact must be or could've
been known to the parties and if they did not care to remove it then it is too
late to remove it when a dispute has arisen.
If the document had mentioned no price at all, oral evidence of the
price could be allowed under Sec. 92 (2 nd proviso). While no extrinsic
evidence can be given to remove patent defect, the court may, if it is
possible, fill up the gaps or blanks in a document with the help of the other
contents of the document (e.g. where a lease deed left blanks at the place of
date, but in another part it said that the first installment of rent would be paid
on a certain date).
Sec. 93 deals with the rules for construction of document with the help
of extrinsic evidence or in other words with the interpretation of documents
by oral evidence.

Sec. 94 (Exclusion of Evidence against Application of Document to

Existing Fact)
"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."
 Exclusion of Oral by Documentary Evidence 221

lustration: A sells to B, by deed "my estate at Rampur containing 100 ighas."

A has an estate at Rampur containing 100 bighas. Evidence may ot be given
of the fact that the estate meant to be sold was one situated t a different place
and of a different size.

Sec. 95 (Evidence as to Document Unmeaning in Reference to Existing

Facts)
According to Sec. 95, when the language of a document is plain but in ts
application to existing facts it is meaningless, evidence can be given to how
how it was intended to apply to those facts. It is based on the xiaxim falsa
demonstratio non necet.
Illustration: A sells to B, by deed, "my house in Calcutta". A had no house tn
Calcutta, but it appears that he had a house at Howrah, of which B bad 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.
Sec. 95 is an instance of latent ambiguity. According to Stephen's
Digest, evidence to show that common words, whose meaning is plain, not
appearing from the contract to have been used in a peculiar sense, have been
in fact so used, is not admissible. In North Eastern Railway v Hastings (1900)
AC 260, it was held that written instruments if they are plain and
unambiguous, must be construed according to the plain and unambiguous
language of the instruments themselves.

Sec. 96 (Evidence as to Application of Language which can apply to

One only of Several Persons)
According to Sec. 96, when the language of a document is clear and is
intended to apply to only one thing or person, but in its application to the
existing facts it is difficult to say to which particular thing or person it was
intended to apply, evidence can be offered to clarify this matter. Illustrations:
(a) A agrees to sell to B, for Rs. 1,000 "my white horse". A has two white
horses. Evidence may be given of the facts which show which of them was
meant.
(b) A agrees to accompany B to Hyderabad. Evidence may be given of
facts showing whether Hyderabad in the Deccan or in the Sind was meant.
222 Law of Evidence

Where a pronote mentioned a date according to the local calendar and

also according to the international calendar, the evidence could be offered to
show which date was meant. In one case, a Vakalatnama did not contain the
name of the pleader after the word "Mr." in the printed form but bore the
signature of the party as well as the pleader. Held that the ambiguity in the
document was not patent but latent which could be cleared up by extrinsic
evidence under Sec. 96.

Sec. 97 (Evidence as to Application of Language to One of Two Sets of

Facts)
According to Sec. 97, when 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 doctiment 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.

Sec. 98 (Evidence as to Meaning of Illegible Characters, etc.)

According to Sec. 98, evidence may be given to show the meaning of illegible
or not commonly intelligible characters of foreign, obsolete, technical, local
and provincial expression, of abbreviations and of words used in a peculiar
sense.
Illustration: A, a sculptor, agrees to sell to B, "all my models", A has both
models and modelling tools. Evidence may be given to show which he meant
to sell. Thus, oral evidence is permissible for the purpose of explaining artistic
words and symbols used in a document.

Sec. 99 (Evidence by Non-Parties)

"Persons who are not parties to document, or their representative-in-interest,
may give evidence of any fact tending to show a contemporaneous agreement
varying the terms of the document". It may be noted that the parties to a
document or their representative-in-interest cannot give evidence of a
contemporary agreement varying the terms of the document (Sec.
 Exclusion of Oral by Documentary Evidence 223

92) But, Sec. 99 provides that a third party can give evidence of such oral
agreement if he is affected by it.
Illlustration: A and B make a contract in writing that B shall sell A certain
tton, to be paid for on delivery. At the same time, they make an oral
reement that 3 months' credit shall be given to A. This could not be own as
between A and B, but it might be shown by C, if it affected ; interests.

Sec. 100 (Saving of Provisions of Indian Succession Act relating to

Wills)
Nothing in this Chapter contained shall be taken to affect any of the
provisions of the Indian Succession Act (X of 1865) as to the construction
wills."
It may be noted that Indian Succession Act, 1865 has been replaced I
the Act of 1925.
 8
Burden of Proof and Presumptions

BURDEN OF PROOF1
(SECS. 101-111)

Every judicial proceeding has for its purpose, to ascertain some right or
liability. These rights and liabilities arise out of facts which must be proved
to the satisfaction of the court. Sections 101 to 111 lays down provisions
regarding who is to lead evidence and prove the case. These rules are called
rules relating to 'Burden of Proof.
The burden of proof means the obligation to prove a fact. Every party has to
establish facts which go in his favour or against his opponent. And this is the
burden of proof. The strict meaning of the term 'burden of proof (onus
probandi) is that if no evidence is given by the party on whom the burden is
passed the issue must be found against him. The phrase "burden of proof"
has two distinct meanings:
(1) Burden of proof as a matter of law and pleading - i.e., the burden of
proving all the facts or establishing one's case. This burden rests
upon the party, whether plaintiff or defendant, who substantially
asserts the affirmative of the issue. It is fixed, at the

___________________________
1. Write a short note on 'Burden of Proof. [C.LC-91; LC.//-95]
What are the rules relating to Burden of Proof as given in the Indian Evidence
Act, 1872? lLC.II-20061

[224)
Burden of Proof & Presumptions 225

beginning of the trial, by the statements of pleadings, and it is

settled as a question of law, remaining unchanged under any
circumstances whatever (Sec. 101).
(2) Burden of proof as a matter of adducing evidence - either at the
beginning orN at any particular stage of the case. It is always
unstable and may shift constantly throughout the trial (Sees. 102-
103). It lies at first on the party who would be unsuccessful if no
evidence at all was given on either side. The burden must shift as
soon as he produces evidence which prima facie gives rise to a
presumption in his favour. It may again shift back on him, if the
rebutting evidence produced by his opponent preponderates. This
being the position, the question as to the onus of proof \s only a
rule for deciding on whom the obligation rests of going further if
he wishes to win.
Burden of Proof (Sec. 101).
'Whoever desires any court to give judgment as to any legal right or
lability dependent on the existence of facts which he asserts, must prove
hat those facts exist. When a person is bound to prove, the existence of
iny fact, it is said that the burden of proof lies on that person."
^lustrations: (a) A desires a court to give judgment that B shall be
punished
:or a crime which A says B has committed. A must "prove that B has
:ommitted the crime. ,.
(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.
Similarly, where a landlord seeks eviction on the ground of bona
fide personal need, burden lies upon him to establish that he is genuinely
in need of accommodation [SJE Benezer v Velayudhan AIR 1998 SC 746;
Narbada Devi Gupta v Birendra Kumar Jaiswal (2003) 8 SCC 745],
Normally, the affirmative facts are easy to prove in comparison to
the negative facts. The principle of Sec. 101 is that a party who wishes the
court to believe in the existence of a fact and to pass a judgment on the
basis of it should have to prove the fact. When a party makes an allegation
that a transaction is sham and bogus the party who makes the
226 Law of E v i d e n c e

allegation must prove it. But, where the question was "whether the
transaction in question was a bona fide and genuine one" the party relying on
the transaction must first prove its genuineness. It is only thereafter, that the
defendant would be required to rebut such proof and establish that the
transaction was sham and fictitious [Subhra Mukherjee v Bharat Coking
Coal Ltd. AIR 2000 SC 1203; Paka Venkaiah v Takuri Buchi Reddy
AIR2005NOC31(A.P.)].
The failure to prove a defence does not amount to an admission,
nor does it reverse or discharge the burden of proof [Manager, Reserve
Bank of India v S. Mani AIR 2005 SC 2179]. The burden of proving
consent in a rape case is on the accused. It is not for the victim to show
that there was no consent on her part. It is for the accused to show that
she had consented [State of HP. v Shree Kant Shekari AIR 2004 SC 4404].
In Neelkantan v Mallika Begam AIR 2002 SC 827, the occupant/
tenant of the building in slum area claimed for protection from eviction.
Plea of the tenant was that the property was situated in slum area. The
landlady denied that the property was situated in slum area, so no protection
of Slum Area Act, 1971 would be available. The burden to prove that
the property was situated in Slum Area would be on the tenant.

On Whom Burden of Proof Lies (Sec. 102)

"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." Illustrations: (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.
(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.
Similarly, in cases of insanity, burden of proving that fact lies or the
person who wants to rely on it. Where the issue was whether the document
in question was genuine or sham or bogus, the party whc
Burden of Proof & Presumptions 227

lleged that fact had to prove nothing till the party relying upon the locument
established its genuineness in the first place (Subhra Mukherje Bharat
Coking Coal Ltd. AIR 2000 SC 1203).
In an action for damages for negligence, if the defendant alleges
ontributory negligence on the part of the plaintiff, he must prove this act,
for his case would fail if no evidence were given on either side. This
irinciple also verifies the fact that the burden of proof lies upon the >arty
who affirms a fact rather than upon one who denies it. A person laiming the
benefit of adoption must prove valid adoption.
Where the Government totally prohibits certain kinds of trade, it vould
be for it to show that the prohibition is in the nature of reasonable estriction
on trade liberty. Ordinarily, however, burden of proof is on he party who
challenges the constitutional validity of an Act or Rule Amrit Banaspati Co.
v UOI AIR 1995 SC 1340).

Burden of Proof as to Particular Fact (Sec. 103)

'The burden of proof as to any particular fact lies on that person who vishes
the court to believe in its existence, unless it is provided by any aw that the
proof of that fact shall lie on any particular person."
illustration: (a) A prosecutes B for theft, and wishes the court to believe hat
B admitted the theft to C. A must prove the admission. B wishes the ;ourt to
believe that, at the time in question, he was elsewhere. He must jrove it.
Similarly, a person who signed a loan document admitted the loan md
if he says that he signed a blank paper, the burden would lie upon lim to
prove that fact.

Burden and Onus of Proof

There is an essential distinction between "burden of proof and "onus af
proof". Burden of proof lies on the person who has to prove a fact •md it
never shifts, but the onus of proof shifts. Such a shifting of onus is a
continuous process in the evaluation of evidence. Thus, in a criminal :ase,
once the prosecution has satisfied the court of the fact that the accused
committed the crime of which he is charged, the onus is shifted
228 Law of
Evidence

to the accused to show as to why he should not be punished for it

(discussed above).
Onus probandi - The term merely means that if a fact has to be
proved, the person in whose interest it is to prove it, should adduce
some evidence, however slight, upon which a court could find the
facts which he desires the court to find. The onus is always on a
person who asserts a proposition or a fact which is not self-evident.
The question of onus probandi is certainly important in the early
stage of his case. Thus, the onus of proving negligence of the
Railway Company lies on the plaintiff when he asserts that the
injuries caused to him are by reason of the negligence of the Railway
Company.
When the entire evidence which is possible on a subject has
already come before the court, from whatever source it may be, it is
well settled that the question of burden of proof becomes
immaterial.
A person cannot be relieved of his burden of proving a fact
even if the fact is such that it is very difficult or rather impossible to
prove. Where a wife in a divorce petition alleged adultery on the
part of her husband; it was held that burden was upon her to prove
that fact and it was no excuse to say that it was virtually impossible
to procure evidence of that fact (Pushpa Datta Misbra v Arcbana
 Misbra AIR 1992 M.P. 260).

Importance of Burden of Proof

The question of onus or burden of proof at the end of the case, when
both the parties have adduced evidence is not of very great
importance and the court has to come to a decision on a
consideration of all materials. When the entire evidence, which is
possible on a subject, has already come before the court, from
whatever source it may be, it is well settled that the question of
burden of proof becomes immaterial. Burden of proof as
determining factor of the whole case can only arise if the court finds
the evidence for and against so evenly balanced that it can come to
no conclusion. Then the onus will determine the matter and the
person on whom the burden of proof lies will lose.
It may be noted that a person cannot be relieved of his burden
of proving a fact even if the fact is such that it is very difficult or
rather impossible to prove. Where a wife in a divorce petition
alleged adultery on the part of her husband, it was held that burden
was upon her to
Burden of Proof & Presumptions 229

rove that fact and it was no excuse to say that it was virtually impossible )
procure evidence of that fact (Pushpa Datta Mishra v Archana Mishra JR
1992 M.P. 260).
The party on which the onus of proof lies must, in order to ucceed,
establish a. prima facie case. He cannot, on failure to do so, take dvantage of
the weakness of his adversary's case. He must succeed by he strength of his
own right and the clearness of his own proof. The ;eneral rule that a party
who desires to move the court must prove all acts necessary for that purpose
is subject to two exceptions: (a) he will not >e required to prove such facts
as are specially within the knowledge of he other party (Sec. 106); (b) he
will not be required to prove so much )f his allegations in respect of which
there is any presumption of law [Sees. 107-113), or in some cases, of fact
(Sec. 114) in his favour.

Burden of Proving Fact to be Proved to Make Evidence

Admissible (Sec. 104)
"The burden of proving any fact necessaiy 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 Exception in Criminal Cases (Sec. 105)

According to Sec. 105, 'the burden of proof is upon the accused of showing
existence, if any, of circumstances which bring the offence charged within
any of the special as well as any of the general exceptions or proviso
contained in I.P.C. or any law defining the offence. Further, the court shall
presume the absence of such circumstances'.

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.
230 Law of E v i d e n c e

(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) Sec. 325, IPC provides that whoever, except in the case provided for
by Sec. 335, voluntarily causes grievous hurt, shall be punished. A is
charged under Sec. 325. The burden of proving the circumstances
bringing the case under Sec. 335 lies on A.
The fundamental principle of criminal jurisprudence is that an accused is
presumed to be innocent, and the burden lies on the prosecution to prove the
guilt of the accused beyond reasonable doubt. This general burden never
shifts, and it always rests on the prosecution. Sec. 105 is an important
qualification of this general rule. This section is an application, perhaps an
extension of the principle laid down in Sec. 103.
In Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Court observed
that there is no conflict between the general burden, which is always on the
prosecution and which never shifts, and the special burden that rests on the
accused under Sec. 105. In Rabindra Kumar Dey v State ofOrissa (1976) 4
SCC 233, it observed: "Sec. 105 does not at all indicate the nature and
standard of proof required. The Evidence Act does not contemplate that the
accused should prove his case with the same strictness and vigour as the
prosecution; it is sufficient if he proves his case by the standard of
'preponderance of probabilities' envisaged by Sec. 5 as a result of which he
succeeds not because he proves his case to the guilt but because probability of
the version given by him throws doubt on the prosecution case and, thus, the
prosecution cannot be said to have established the charge beyond reasonable
doubt."
The onus of an accused person may well be compared with the onus of a
party in a civil case. Further, if the prosecution proves beyond reasonable
doubt that the accused has committed offence, the accused can rebut this
presumption either by leading evidence or by relying on the prosecution
evidence itself. If upon evidence adduced in the case either by prosecution or
by defence a reasonable doubt is created in the mind of the court, the benefit
of it should go to the accused.
It may be noted that in certain "socio-economic" and "environmental"
legislations, the burden lies upon the accused. For example, under the
Burden of Proof & Presumptions 231

Prevention of Corruption Act, 1988, the burden is on the accused to ccount

for his possessions. Where the presumption of innocence is sversed by a
statutory provision so that the burden is on the accused to how (e.g. that he
was in innocent possession of an assault rifle), held that uch burden should
not be as heavy as that of the prosecution but even o should be of greater
probability [Sanjay Dutt v State (1994) 5 SCC 10]. In environmental cases,
there is reversal of burden of proof based m precautionary principle [A. P.
Pollution Control Board v Prof. M. V. Nayudu 1999) 2 SCC 718].

Surden of Proving Fact Especially within Knowledge (Sec. 106)

When any fact is specially within the knowledge of any person, the mrden
of proving that fact is upon him."
llustrations: (a) When a person does an act with some intention other than
hat which the character and circumstances of the act suggest, the burden )f
proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The
Durden of proving that he had a ticket is on him.
Sec. 106 applies only to the parties to a suit or proceeding. Sec. 106 s
an exception to Sec. 101. It is designed to meet certain exceptional ;ases in
which it would be impossible or very difficult for the prosecution to
establish facts which are especially in the knowledge of the accused.
If a person is found in possession of a stolen property immediately
after the theft and he claims that there was no intention to receive stolen
property, he must prove that fact, for that fact is especially within his
knowledge. Similarly, in the case of plea of alibi, since only the person
raising the plea knows that where he was at the time, burden lies on him to
prove that fact. This section also come into play in the cases of custodial or
dowry death, and, negligence of carriers of goods. The principle stated in
the section is an application of the principle of res ipsa loquitur.
Sec. 106 is not intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt; but the section
would apply to cases where the prosecution has succeeded in proving facts
from which the reasonable inference can be drawn regarding the
232 Law of E v i d e n c e

existence of certain other facts unless the accused by virtue of a special

knowledge regarding such facts offered an explanation which might drive the
court to draw a different inference [Sucha Singh v State of Punjab (2001) 4
SCC 375].
If facts within the special knowledge of the accused are not satisfactorily
explained by the accused it would be a factor against him, though by itself it
would not be conclusive about his guilt. It would be relevant while
considering the totality of the circumstantial evidence. It is submitted that
under the Indian law, Sec. 106 should be more liberally used against the
accused [State of Punjab v Karnail Singh (2003) 11 SCC 271].

Burden of Proving Death (Sec. 107)

"When the question is whether a person 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."
Burden of Proving that Person is Alive who is Unheard of for 7
Years (Sec. 108)
Sec. 108, on the other hand, provides that when it is proved that a person has
not been heard of for 7 years by those who would naturally have heard of him
if he had been alive, the burden of proving that he is living is shifted to the
person who affirms it. Sec. 108 is an exception to the rule contained in Sec.
107.
There is a general presumption of continuity of things. Sec. 107
provides that when a person is shown to have existed within the last 30 years,
the presumption is that he is still alive and if anybody alleges that he is dead,
he must prove that fact. This presumption is, however, not a very strong one.
According to Sec. 108, if a person is not heard of for 7 years, the presumption
is that he has died, and, if anybody alleges that he is still alive, he must prove
that fact. Thus, seven years' absence creates rebuttable presumption of death.
There is a simple presumption of death and not of the time of death, for
which independent evidence is needed. The onus of proving that death took
place at a particular time within the period of 7 years lies
 ■
Burden of Proof & Presumptions 233

on the person who claims a right for the establishment of which that fact is
essential. In Darshan Singh v Gujjar Singh (2002) 2 SCC 62, the plaintiff
claimed succession to the estate of a person who had not been heard of for 7
years. The High Court held that the date of the suit should be taken to be the
date of death. The Supreme Court did not approve of this view.
In Muhammad Sharif v Bande Ali (ILR (1911) 34 All 36), one M
mortgaged certain property to the defendant in 1890. Thereafter he
disappeared and nothing was heard of him again. His heirs filed a suit for the
redemption of mortgage 18 years after M's absence. They contended that as M
disappeared some 18 years ago, he must be presumed to have been dead for
the last 11 years. It was held that presumption in Sec. 108 does not go further
than the mere fact of death. There is no presumption that he died in the first 7
years or in the last 7 years.
The presumption raised under Sec. 108 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 date or time of death. There is no presumption as to
the facts and circumstances under which the person may have died. Further,
the presumption would arise only on lapse of seven years and would not apply
on expiry of six years arid 364 days or any time short of seven years. The
presumption can be raised only when the question is raised in court, tribunal
or before an authority who is called upon to decide whether a person is alive
or dead, not otherwise [LIC of India v Anuradha (2004) 10 SCC 131].

Burden of Proof as to Relationship of Certain Kind (Sec. 109)

According to Sec. 109, where certain persons are shown to have acted as
partners, or as landlord and tenant, or as principal and agent, the law presumes
them to be so related and the burden of proving that they were never so related
or have ceased to be so shall lie upon the party who says so. Thus, there is a
presumption against change of status quo, namely that any existing state of
things will continue as it is.
234 Law of E vide n ce

Burden of Proof as to Ownership (Sec. 110)

When a person is in possession of any thing as owner, the burden of proving
that he is not owner is on the person who affirms that he is not the owner.
This section gives effect to the principle that possession is the prima facie
evidence of a complete title. The possession contemplated is the actual
physical possession. Further, Sec. 110 is not limited to immoveable property
and applies to moveable property as well.
In Chief Conservator of Forest v Collector (2003) 3 SCC 472, the
plaintiff claimed to be pattedar of the land in question proving long and
peaceful enjoyment of the land. It was held that though there was no proof of
conferment oipatta and acquisition of title, a presumption of ownership arose
in favour of the plaintiff and in absence of any evidence on behalf of the
Government, rebutting the presumption, claim of the plaintiff must be upheld.
Proof of Good Faith (Sec. Ill)
When a person stands towards another in a position of active confidence, the
burden of proving the good faith of any transaction between them lies on the
person in active confidence.
Illustrations: (a) The good faith of a sale by a client to attorney is in a suit
brought by the client. The burden of proving the good faith of the transaction
is on the attorney.
(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.
Relations of trust and confidence (i.e. fiduciary relation) include those
of parent and child, lawyer and client, spiritual giru and his follower,
principal and agent, partner and firm, doctor and patient, persons in authority
and those over whom he exercises authority. In all such cases, the law
imposes the duty of good faith upon the person occupying the position of
trust and confidence, and he will have to prove that he acted in good faith
before he can enforce the transaction against the other party. A contract with
apardanasbin woman attracts Sec. 111.
The principle of equity is ingrained in Sec. 111. In Krishna Mohan Kul
v Pratima Maity (2004) 9 SCC 468, it was held that onus of proof
 Burden of Proof & Presumptions 235

to prove due execution of document in accordance with law is always on

donee/beneficiary, irrespective of the fact whether such party is defendant or
plaintiff. Considerations involved in judging validity of transactions between
persons standing in active confidential or fiduciary relationships ire whether
donor had competent and independent advice, his age, capacity md nature of
benefit are very material.

■
PRESUMPTIONS

Definition2
A court can take into consideration certain facts even without calling for proof
of them. When the court presumes the existence of a fact that is known as a
presumption ('a thing taken for granted ). A presumption is m inference of fact
drawn from other known or proved facts. It means i rule of law that courts
and judges shall draw a particular inference from a particular fact, or from a
particular evidence, unless and until the truth Df aidn infereioe is disproved
'State o/A.P. v Vasudeva Rao (2004) 9 SCC 319].
The effect of a presumption is that a party in whose favour a fact is
presumed is relieved of the initial burden of proof (as a presumption furnishes
prima facie evidence of the matter to which it relates) until the opposite party
introduces evidence to rebut the presumption. 'Presumptions hold the field in
the absence of evidence but when facts appear, presumptions go back.'
Presumptions are the result of human experience and reason as applied
to the course of nature and the ordinary flow of life. If a man and woman are
found alone in suspicious circumstances the law presumes that they were not
there to say their prayers and the divorce laws would take this as evidence of
adultery. Similarly, from the fact that a letter has been posted, the natural
inference (presumption) would be that it reached the addressee.

2. Define Presumptions. What is their importance? [LC./-95]

236 Law of E v i d e n c e

Presumptions are aids to the reasoning and argumentation, which

assume the truth of certain matters for the purpose of some given inquiry.
They may be grounded on general experience, or merely on policy and
convenience. For example, the presumption in Sec. 112 of the legitimacy
of a child born to married parents is a matter of policy and expediency and
also of convenience. On whatever basis they rest, they operate in advance
of argument of evidence.

Kinds of Presumptions3
Presumptions are of three kinds: (a) Presumption of fact (rebuttable) (b)
Presumption of law (rebuttable and irrebuttable), and (c) Mixed
presumptions or presumption of law and fact. Mixed presumptions are
 chiefly confined to the English law. While the 'presumption of fact' is
discretionary, the 'presumption of law' is legal or compulsory presumption.

(a) Presumption of Fact4 ('May Presume')

Whenever it is provided by this Act that the court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved, or
may call for proof of it (Sec. 4).
Presumptions of fact, or ^tow/presumptions, are inferences which the
mind naturally and logically draws from given facts, irrespective of their
legal effect. The sources being the common course of natural events, the
common course of human conduct and the common course of public and
private business. For example, where a doctor gave an injection for
determination of pregnancy which resulted in miscarriage and death of the
woman, it was held that the doctor could-be presumed to know the side-
effects of the medicine as doctors are generally informed

Discuss the various kinds of presumptions under Indian law.

[D.U.-2010\lCLC.-95\
What is the difference between 'May presume' and 'Shall presume'? Give
examples and relevant provisions. [D.U.-
20Q9]
What is the relevance of presumptions in a proof of a fact? [LC./-
94]
Burden of Proof & Presumptions 237

of such effects by the manufacturers of medicines [Akhil Kumar {Dr.) v

ke, 1992 Cr LJ 2029 M.P.].
A presumption of this kind is wholly in the discretion of the court, le
court may or may not presume the existence of the fact in question. >r
example, where a person is shown to be in possession of stolen goods on
after the theft, the court may presume that he was the thief himself : had
knowledge of the fact that the property in question was stolen. 11 the
presumptions stated in Sec. 114 are of this kind.
Presumptions of fact are also rebuttable, as their evidentiary effect ui
be negatived by a contrary proof. When the court refuses to exercise s
discretion, then it may call upon the parties to prove the fact by :ading
evidence The court may even require further proof of the fact resumed.

b) Presumption of Law {'Shall Presume')

Wherever it is laid down that "the court shall presume a fact", it means hat
the court must regard such fact as proved, unless and until it is lisp roved
(Sec. 4).
Presumptions of law are arbitrary inferences which the law expressly
direct the judge to draw from the particular facts. These presumptions are
aothing,but deductions drawn from human experience and observation, and
expressed in the form of artificial rules. These presumptions are always
 obligatory, i.e., the court has no option in the matter, and is bound to take the
fact as proved, unless the party interested in disproving it produces sufficient
evidence for that purpose. Thus, if the opposite party is successful in
disproving it, the court shall not presume the fact.
Examples of such presumptions include Sees. 79-85, 89, Sec. 111A.
Thus, the court shall presume the accuracy of maps/plans made by a
Government authority. All the presumptions stated in Sec. 118 of the
Negotiable Instruments Act are presumptions of law.
238 Law of E v i d e n c e

There are two kinds of presumptions of law: rebuttable ('shall presume')

and irrebuttable ('conclusive proof).5
Rebuttable Presumption Irrebuttable Presumption
('Conclusive prooP)
(i) It means a presumption which can (i) It is drawn so conclusively that
be overthrown by a contrary no contrary evidence is allowed.
evidence. It is Juris et de jure, i.e.,
incapable of rebuttal.
(ii) The court regard such fact as (ii) The court shall on proof of one
proved unless and until it is fact regard the other as proved
disproved. The court, here, (when one fact is declared to be
dispenses with the necessity of conclusive proof of another) and
formal proof (Sec. 4). shall not allow evidence to
disprove it (Sec.4).
(iii) Examples - A person not heard of (iii) Examples - A child under a
for 7 years is dead, or that a bill of certain age is incapable of
exchange has been given for value. committing any crime (Sec.82,
IPC).
Sec. 105 (burden of proving that
case of accused comes within Sec.41 (final judgement in
exceptions) and Sec.]14-A probate, matrimonial, admiralty or
(presumption as to absence of consent insolvency jurisdictions are
in certain prosecutions for rape). conclusive in certain respects),
Sec.112 (conclusive proof of
legitimacy) and Seel 13 (valid
cession of territory).

'Presumption' and 'Proof6

"ProoP is that which leads to the conclusion as to the truth or falsity of
alleged facts which are the subject of inquiry. Proof may be effected by

5. What is conclusive presumption of law and how its evidentiary value is different
from that of other kinds of presumptions? [C.LC-94]
5. 'Presumptions and onus of proof are two sides of the same coin'. Elaborate.
[LC. 11-93]
Burden of Proof & Presumptions 239

evidence, admissions or judicial notice. Thus, presumptions are the means

nd proof is the end of judicial inquiry. Presumption is merely an inference.
 A presumption is not in itself evidence but only makes a prima facie
ase for party in whose favour it exists. It indicates the person on whom he
burden of proof lies. When presumption is conclusive, it obviates the
production of any other evidence. A party in whose favour a fact is
resumed is relieved of the initial burden of proof. The court presumes he
existence of the fact in his favour and may act on it unless the :ontrary is
shown.
Presumption and onus of proof are two sides of the same coin,
because the burden of disproving a fact lies on the one party, the court nust
presume the fact in favour of the other. A rule of burden of proof is lothing
but a rule of presumption.

Presumptions Relating to Documents (Sees. 79-90)

Discussed earlier.

Presumption of Innocence and Sec. 105

Though the accused is presumed to be innocent, but Sec. 105 raises a
presumption against the accused and also throws a burden on him to rebut
the said presumption. According to Sec. 105, 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 I.P.C., is upon him
and the court shall presume the absence of such circumstances.

Presumption of Survivorship or Burden of Proving

Death (Sees. 107-108)
There is a general presumption of continuity of things. Sec. 107 provides
that when a person is shown to have existed within the last 30 years, the
presumption is that he is still alive and if anybody alleges that he is dead,
he must prove that fact. This presumption is, however, not a very strong
one. According to Sec. 108, if a person is not heard of for 7 years, the
presumption is that he has died, and, if any body alleges that he is still
alive, he must prove that fact. Thus, seven years' absence creates rebuttable
presumption of death.
240 Law of E v i d e n c e

Presumption as to Offences in Disturbed Areas (Sec. 111-A)

Under this section (introduced in 1984), if a person is accused of having
committed any offence under Sees. 121,121-A, 122 or 123 of the Indian
Penal Code, or of a criminal conspiracy or attempt to commit, or abetment
under Secs.122-123, in any declared 'disturbed area', etc. and it is shown that
such person had been in that area when firearms or explosives were used to
attack or resist armed forces, etc., it shall be presumed, unless the contrary is
shown, that such a person had committed the offence.

Presumption of Legitimacy (Sec. 112)

See under the Questions Section.

Proof of Cession of Territory (Sec. 113)

A Government Notification that any portion of British Territory has before
the commencement of the Government of India Act, 1935 been ceded to any
Native State, Prince or Ruler, shall be conclusive proof'that a valid cession of
such territory took place at the date mentioned in such notification.

Presumption as to Abetment of Suicide by a Married Woman

(Sec. 113-A)
Sec. 113-A deals with the question of abetment of woman's suicide by her
husband or any of his relatives. In such cases, a presumption arises (the court
may presume) that such a suicide has been abetted by the husband or his
relatives, if the following two conditions are satisfied:-
(i) The suicide was committed within a period of 7 years from the date
of her marriage.
(ii) Her husband, or his relatives, has subjected her to 'cruelty' (as the
term is defined in Sec. 498-A, IPC).
Such a presumption must, however, be drawn by the court after having
regard to all the other circumstances of the case. Once these things are
proved, abetment of suicide is presumed to exist. It will then be for the
husband or his relatives to prove that the suicide in question was the woman's
personal choice. If it is not a case of suicide, but of accidental death, the
presumption of abetment does not arise [Suresh v State of Maharashtra, 1992
CrLJ 2455; Hans Raj v State ofHaryana (2004) 12 SCC 257].
Butdein OF Ptooi & Presumptions 241

Sec. 113-A (inserted by.1983 Criminal Law Second Amendment

Act) does not create any new offence, or any substantive right, but merely
a matter of procedure and as such is retrospective in operation. In a dowry
death case, presumption that suicide was attracted by the accused-husband
of the deceased could be drawn only when prosecution has discharged the
initial onus of proving cruelty. In State ofW.B. v Orilal Jaiswal (AIR 1994
SC 1418), held that the requirement of proof beyond reasonable doubt in
dowry death cases does not stand altered even after the introduction of
Sec. 498, IPC and Sec. 113-A of the Evidence Act.
 Where the wife's suicide took place more than a month-and-a-half
after the demand for dowry was met, and matters were settled, it was held
that it would be unsafe, as well as unjust, to invoke the presumption of
guilt under Sec. 113-A (Samir v State of West Bengal, 1993 CrLJ 134).
However, in Arjun Kusbwaha v State o/M.P., 1999 CrLJ 2538, where the
relations with the husband were strained because of dowry demands; the
wife poured kerosene on herself and the husband went on with his
provocative language, it was held that this amounted to instigation of
suicide.

Presumption as to Dowry Death (Sec. 113-B)

Under Sec. 113-B, 'when the question is whether a person has committed
the 'dowry death' (as the term is defined in Sec. 304-B, IPC) of a woman,
and it is shown that, soon before her death, she had been subjected by that
person to cruelty or harassment in connection with any demand for
dowry, the court shall presurne-that such a person had caused the dowry
death. The burden is on the accused to rebut this presumption'.
In a dowry death case, it is a condition precedent to the raising of
presumption that the deceased married woman was subjected to cruelty or
harassment for and in connection with the demand for dowry soon before
her death. The prosecution is required to give evidence of these
circumstances so that the court draws a presumption of dowry death.
Presumption as to dowry death begins to operate if prosecution is able to
establish circumstances set out in Sec. 304-B, IPC [State ofKamataka
vM.V. Manjunathagowda (2003) 2 SCC 188].
Where the death was by strangulation and evidence was available
to show that dowry was being demanded and the accused husband was
also
;\
242 Law of E v i d e n c e

subjecting his deceased wife to cruelty, it was held that the presumption
under the section applied with full force making the accused liable to be
convicted under Sec. 304-B, IPC {Hem Chand v State of Haryana AIR
1995 SC 120). In a case, presumption under the section was drawn from
the drinking, late-coming and beating habits of the husband [P.
Bikshapathi v State ofA.P., 1989 CrLJ (NOC) 52 (A.P.)].
Where the prosecution was able to prove that the deceased woman
was last seen alive in the company of the accused, she being at the
moment in his special care and custody, that there was a strong motive for
the crime and that the death in question was unnatural and homicidal, it
was held that by virtue of Sec. 106 of the Evidence Act the burden of
showing the circumstances of the death was on the accused as those
circumstances must be specially known to him only [Amarjit Singh v State
of Punjab, 1989 CrLJ (NOC) 13 P&H].
Presumption under Sec. 113-B does not stand automatically
rebutted merely because the accused had been acquitted under Sec. 302,
IPC [Alamgir v State of Assam (2002) 10 SCC 277].
 Presumption of Existence of Certain Facts7 (Sec. 114)
"The court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of (a) natural
events, (b) human conduct, and (c) public and private business, in their
relation to the facts of the particular case".
Sec. 114 is based on the maxim that 'all are presumed to have been
done correctly and regularly'. Sec. 114 authorises the court to make certain
presumptions of facts, without the help of any artificial rules of law. Such
presumptions of facts are always rebuttable (i.e. can be disproved by a
contrary fact). Looking at so many factors if the court thinks that a
particular fact should exist, it presumes the existence of the fact. If, for
example, a person refuses to answer a question the court may presume that
the answer, if given, would have been unfavourable to the person
concerned. There is the presumption that every person is presumed to

Write a short note on: Presumptions of facts under the Indian EvWence
Art,
l
1872. '

Burden of Proof & Presumptions 243

intend the natural consequences of his act, that every person charged ih a
crime is innocent, etc.
In M. Narsingha Rao v State ofAndhra Pradesh (AIR 2001 SC 318), e
Apex Court observed: Sec. 114 of the Evidence Act gives absolute
scretion to the court to presume the existence of certain facts in the anner
specified therein. Presumption is an inference of a certain fact awn from
other proved facts. While inferring the existence of a fact sm another the
court is only applying a process of intelligent reasoning, bat a prudent man
would do under similar circumstances? Presumption not the final
conclusion to be drawn from other facts. But it could be final if it remains
undisturbed. In that event the court can treat the esumption as equivalent
to proof. But it would be unsafe to use one •esumption to draw another
discretionary presumption.
In State ofKarnataka v David Rozario (2002) 7 SCC 728, it was held
at presumptions of facts are assumptions resulting from one's experience
'the course of natural events of human conduct and human character, and 1
those which one is entitled to make use of or has to make use of in the
dinary course of life as well as the business of courts.
lllustrations - The court may presume:
(a) That a man in possession of stolen goods after the theft is either the
thief or has received the goods knowing them to be stolen, unless
he can account for his possession (if he cannot account for
possession specifically but is continually receiving such goods in
the course of his business, the court shall have regard to such fact)
[Praveen Kumar v State ofKarnataka (2003) 12 SCC 199].
(b) That an accomplice is unworthy of credit, unless he is corroborated
in material particulars (if A, a person of the highest character, is
 tried for a murder, and, B, a person of equally good character,
admits and explains the common carelessness of A and himself, the
court shall have regard to such fact). Further, if a crime is
committed by several persons; A, B and C three of the criminals,
kept apart from each other, each gives an account of the crime
implicating D and the account corroborate each other in such a
manner as to render previous concert highly improbable, the court
shall have regard to such fact).
V

244 Law of E v i d e n c e

(c) That a bill of exchange, accepted or endorsed, was

accepted or endorsed for good consideration (if the
drawer of a bill is a man of business and the acceptor is a
young man completely under the drawer's influence, the
court shall have regard to such fact).
(d) That a thing or state of things which has been shown to be
in existence within a period shorter than that within which
such thing or state of things usually cease to exist, is still in
existence (if it is proved that a river ran in certain course 5
years ago but it is known that there have been floods since
that time which might change its course, the court shall
have regard to such fact).
(e) That judicial and official acts have been regularly
performed (if the judicial act was performed under
exceptional circumstances, the court shall have regard to
such fact).
(f) That the common course of business has been followed in
particular cases (if the usual course was interrupted bj
disturbances, the court shall have regard to such fact).
(g) That evidence which could be and is not produced would, i
produced, be unfavourable to the person withholding it (if
a mar refuses to produce a document which would bear on
a contrac of small importance on which he is sued, but
which might alsc injure the feelings and reputations of his
family, the court shal have regard to such fact).
(h) That, if a man refuses to answer a question which he is no
compelled to answer by law, the answer, if given, would b
unfavourable to him (if the answer might cause loss to him i
matters unconnected with the matter in relation to which it j
asked, the court shall have regard to such fact).
(1) That, when a document creating an obligation is in the hands <
the obligor, the obligation has been discharged (if it appears th;
obligor may have stolen it, the court shall have regard to sue
fact). Thus, where the instrument of debt and the security f<
it are in the hands of the debtor, the presumption would be th
the debt must have been discharged; where a promissory note
in the hands of the person who made it, the presumption is th
 he
must
have
paid it
off
[CITI
Bank
N.A. v
Standa
rd
Charte
r
 Burden of Proof & Presumptions 245

Bank (2004) 1 SCC 12; Chaudhri Mohd. Mehdi Hasan Khan v

Mandir Das (1911-12) 39 IA 184]. ;
The presumption permitted by Must, (a) does not arise until the
prosecution established the following facts: (i) the ownership of the articles
in stion, (ii) tkeir theft, (iii) their conscious, exclusive and recent
possession the accused. A long period may be taken to be recent; in a case,
two es of woolen cloth were stolen from M. Two months after the theft, y
were found in possession of P, the presumption is that P stole it or eived it
knowing it to be stolen.
If the articles were kept at places accessible to public it can not be erred
that the accused were not in possession of those articles when :y in their
confession stated that they had concealed the articles at those ices and they
further led the investigation to those places [Limbaji v tte of Maharashtra
(2001) 10 SCC 340]. The presumption of robbery s been drawn as against
the appellant in view of the fact that he was und in possession of the looted
property the next day, which could be d to be soon after the incident of
robbery which may have taken place e previous day [George v State of
Kerala (2002) 4 SCC 475].
In reference to illustration (e), the Supreme Court has observed: A
esumption has to be drawn under Sec. 114(e) that the competent authority
ust have before it the necessary materials which prima facie establish the
mmission of the offence charged and that the authority had applied its ind
before tendering the consent {State of Bihar v P.P. Sharma AIR 1991 2
1260). Death in custody does not by itself create a presumption of urder by
police. When an official act is proved to have been done, it will : presumed
to have been regularly done. Presumption can be drawn in vour of police
officers as well [Devender Pal Singh v State (NCT) of Delhi 002) 5 SCC
234]. In Shahnaz v Dr. Vijay (AIR 1995 Bom 30), after a dicial divorce, the
wife was not permitted to say that her signature on the ivorce petition was
taken by force.
Further, the presumption under Sec. 114 (e) is limited to the
regularity
f the act done and does not extend to the doing of act itself. For
sample, if a notification is issued under the powers given by law,
there
a presumption that it was regularly published and promulgated, but
lere is no presumption that it was issued according to that terms of
246 Law of E v i d e n c e

section which empowered it. The correctness of procedure, but not the
factum of act, is presumed under the illustration.
As far as presumption under Must, (f) is concerned, the maximum use
of it is to be seen in connection with the delivery of letters. Where a letter is
shown to have been posted and it is not returned through the dead letter
office, the presumption is that it has been delivered. Similarly, there is
presumption of service of a letter sent under registered cover, if the same is
returned back with a postal endorsement that the addressee refused to accept
the same. Of course, the presumption is rebuttable.
 The Supreme Court has observed, commenting on illustration (g), that
an adverse inference against a patty for his failure to appear in court can be
drawn only in absence of any evidence on record. Where the admission of
the parties and other materials on record amply prove the point in issue, no
presumption can be raised against the person who has failed to appear in the
court [Pandurangjivaji Apte v Ramchandra, (1981) 4 SCC 569]. If evidence
on record being already sufficient to establish the prosecution case, the
failure to examine another witness did not affect the credibility of the case
[Rajendra Kumar v State ofU.P. (1998) 9 SCC 343]. The court should not
mechanically draw an adverse inference merely on the ground of non-
examination of a witness, even if the witness is a material one.
Non-production of "daily police diary" or "inquest report" or "post-
mortem report" was not taken to be supporting a presumption against the
prosecution. Similarly, no adverse inference car oe drawn against the
prosecution if it merely fails to obtain certain evidence e.g. opinion of expert
not taken. An adverse presumption cannot be drawn where the party
supposed to be in possession of the best evidence has neither been called
upon to produce by the opposite party nor directed by the court to do so
(Oriental Fire & Gen. Ins. Co. v Bondili AIR 1995 A.P. 268). If a person
had no knowledge about the importance of the document and he fails to
produce it, no adverse presumption should be made against such person.
Burden of Proof & Presumptions 247

LEADING CASE: LIMBAJI V STATE OF MAHARASHTRA (AIR

2002 SC 491)
Facts and Issue - In this case, the appellants were charged under
Sections 302 and 34; 392 with 34, IPC for committing murder and
robbery. They were charged of committing the murder of the deceased
and robbing him of ornaments worn by him. The case rests on the
circumstantial evidence of recovery of ornaments worn by the
deceased, pursuant to the information furnished (confession) by the
accused to the police. The High Court pressed into service the
presumption under Sec. 114(a) of the Evidence Act in support of its
conclusion. It is the correctness of that view that falls for consideration
before the Supreme Court. Observations and Decision - The Supreme
Court observed that: Among the illustrations appended to Sec. 114 of
the Evidence Act, the very first one is what concerns us in the present
case: "the court may presume - that a man who is in possession of
stolen goods soon after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can account for his
possession".
Taylor in his treatise on the Law of Evidence has this to say on
the nature and scope of the presumption similar to the one contained
in Sec. 114(a): "The possession of stolen property recently after the
commission of a theft, is prima facie evidence that the possessor was
either the thief, or the receiver, according to the other circumstances
of the case, and this presumption, when unexplained, either by direct
evidence, or by the character and habits of the possessor, or
otherwise, is usually regarded by the jury as conclusive. The question
of what amounts to recent possession varies according to whether the
stolen article is or is not calculated to pass readily from hand to
hand."
In the present case, the presumption under Sec. 114, illustration
(a) could be safely drawn and the circumstance of recovery of the
incriminating articles within a reasonable time after the incident at
the places shown by the accused unerringly points to the involvement
of the accused. The appellants who were in a position to explain as to
how they could lay their hands
8 Law of E v i d e n c e

on the stolen articles or how they had the knowledge of

concealment of the stolen property, did nothing to explain on the
other hand.
The fact that within a short time after the murder of the
deceased the appellants came into possession of the ornaments
removed from the person of the deceased and the first accused
offered one of the stolen articles for sale on that very day and the
further fact that the other articles were found secreted to the
knowledge of the appellants coupled with non-accounting of the
possession of the articles and the failure to given even a plausible
explanation vis-a-vis the incriminating circumstances would go to
show that they were not merely the receivers of stolen articles from
another source but they themselves removed them form the person
of the deceased. Thus, the presumption to be drawn under
illustration (a) to Sec. 114 should not be confined to their
involvement in the offence of receiving the stolen property under
Sec. 114 but on the facts of the case, it can safely go beyond that.
It would be safer to so extend the presumption if there are
additional incriminating circumstances reinforcing the same. It is
not the prosecution case that the appellants carried any weapon with
them or that the injuries were inflicted with that weapon. There is
every possibility that one of the accused picked up the stone at that
moment and decided to hit the deceased in order to silence or
immobilize him or all the three accused might have decided to kill
him instantaneously for whatever reason it be. However, if the idea
was to murder him and take away the ornaments from his person
there was really no need to forcibly snatch the earrings before
putting an end to the victim. It seems to us that there was no
premeditated plan to kill the deceased.
In the instant case, medical evidence showing that the
ornaments worn by the deceased were forcibly removed from the
person of the deceased by inflicting injuries in the process. Other
evidence showing that the accused persons came in possession of
the ornaments soon after the incident and divided it among
themselves, and, stolen articles were recovered by the
Burden of Proof & Presumptions 249

police within a reasonable time on the basis of confession

made by the accused. So, presumption can be stretched to
commission of offence of robbery by the accused but the
presumption cannot be further stretched to commission of
murder also by them when there was reasonable scope for
two possibilities and the coun is not in a position to know
actual details of the occurrence. While drawing basis of
recent possession of belongings of the victim with the
accused, the court must adopt a cautious approach and have
an assurance from all angles that the accused not merely
 committed theft.
The presumption of commission of offence of
robbery or murder or both can be extended under the main
part of Sec. 114 if it is part of the same transaction, which
is not so in the present case. Hence, the accused liable to be
convicted under Sec. 394 (Robbery) read with Sec. 34, IPC
but not under Sec. 302 (Murder), IPC on the basis of
extended presumption under Sec. 114 of the Evidence Act.]

Human Conduct: Presumption of Marriage

strong presumption arises in favour of wedlock where the partners
(a an and woman) have lived together for a long spell (continuous
ihabitation) as husband and wife, and treated as such by the
relatives id friends. Although the presumption is rebuttable, a
heavy burden lies i him who seeks to deprive the relationship of
legal origin; law leans in vour of legitimacy and frowns upon
bastardies.
The presumption was held to be not applicable where a
married oman lived with another man for a long period and gave
birth to lildren even during the life-time of her husband [Lolo v
Durghatiya AIR 301 M.P. 188].

Presumption in Rape Cases (Sec. 114-A)

xcording to Sec. 114-A, 'where the question before the court (in a
rosecution for rape under Sec. 376 (2), IPC and where sexual
intercourse y the accused is proved) is whether an intercourse
between a man and woman was with or without consent and the
woman states in the court tiat it was against her consent, the court
shall presume that there was no
250 Law of E v i d e n c e

consent'. The burden of proving becomes shifted to the accused. If he

is not able to prove that there was consent, he becomes guilty.
The presumption under Sec. 114-A arises when the
accused who commits rape is a police officer, a public servant, an
officer of jail, Hospital, or he commits rape on a woman knowing
that she is pregnant or when rape is a gang rape. This section has
been added for drawing a conclusive presumption as to the absence
of consent in certain prosecutions for rape.
Sec. 114-A was introduced because of the increasing
number of acquittals of accused when the victim of rape is an adult
woman. If she was really raped, it was very difficult for her to prove
absence of consent. The new provision (inserted in 1983) has brought
about a radical change in the Indian law relating to rape cases. This
presumption would apply not only to rape cases, but also to cases of
"attempted rape", as for instance, when the victim was disrobed and
attempts were made to rape her, which however could not materialise
because of intervening circumstances (Fagnu Bhai v State ofOrissa,
1992 Cr Lj 1808).
In a case of alleged 'gang rape' of a girl above 16, the F.I.R.
was lodged 7 days after the occurrence. The girl admitted that she
was desirous of marrying one of the accused, and the chemical
examiner's report ran counter to any sexual intercourse, in the
circumstances, it was held that the presumption under Sec. 114-A
could not be invoked {Sbarrighan v State ofM.P., 1993 Cr. LJ 120).

FURTHER QUESTIONS

Q.1. (a) "The presumption of legitimacy under Indian Evidence

Act car
be displaced by a strong preponderance of evidence
and no
by mere balance of probabilities." Discuss in the light
o
decided cases.

[D.U.-2009

A Hindu woman was married to S in October 1986. S

died it June 1990. She then married another man K
in July 1990 an< gave birth to a son in September
1990. Can it be lawfull' claimed that the son is the
legitimate son of K.
 Burden of Proof & Presumptions 251

X and Y were married in October 1999. Their divorce took

place in the month of March 2000. Y had conceived during the
subsistence of marriage between her and X. She (Y) married
T in the month of May 2000 and a baby was born in the month
of July 2000. T disputes the paternity of the child. Advise T
accordingly. [D.U.-2007/2011][C.L.C.-2006]

(b) Soon after marriage the husband and wife were estranged. They
continue to live in the same house, but had separate bed-rooms
and kitchen, etc. Just over 10 months after marriage, a
daughter was born to the couple. Suspecting the fidelity of his
wife the husband disclaimed the daughter right from the time of
her birth. Can the husband adduce evidence of:

(1) Blood test to dispute the paternity of the son.

(2) Adulterous relationship of his wife, in order to dispute the

presumption of legitimacy of the son?
[C.LC.-91/94/95/96, LC. 1-94/95/96]

Naresh was successfully prosecuted for adultery u/s 497 of

I.P.C., 1860, with Lata, wife of Mahesh. Lata gave birth to a
daughter, who was conceived around the alleged period of
adultery. After getting divorce from Lata on the ground of
adultery, Mahesh wants the court to order blood test so tfiat
child may be declared illegitimate? Can the court do so?
[D.U.-2007]
A.l. (a)Presumption of Legitimacy: Birth during Marriage
Conclusive Proof of Legitimacy (Sec. 112)
According to Sec. 112, the fact that any person was born:
(1) during the continuance of a valid marriage between his mother and
any man, or
(2) within two hundred and eighty days after its dissolution (the mother
remaining unmarried), is 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 begottenj
252 Law of E v i d e n c e

Maternity is a fact and paternity is a matter of inferences or surmises.

Sec. 112, which applies only to a married couple, lays down the rule for the
proof of the paternity of an individual. "Semper praesumiter pro
legitimatione puerorum” (it is always to be presumed that children are
legitimate - legal maxim). Sec. 112 is an instance of law furthering social
objectives by leaning against the tendency to bastardize the child. It does so
by making a conclusive presumption in favour of the legitimacy of the
child^The basis of the rule contained in Sec. 112 seems to be a notice that it is
undesirable to enquire into the paternity of a child whose parents have access
to each other.
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 presumption can only
be displaced by a strong preponderance of evidence and not by a mere
balance of probabilities.
The following important points, regarding Sec. 112, may be noted:-
(j) This section refers to thejxnnt of time of the birth of the child as the
deciding factor and not to the time of conception of that child; the latter point of
time has to be considered only to see whether the husband had no access to the
mother.
(ii) As legitimacy involves 'sexual intercourse' between husband and wife,
there is therefore, a presumption when a child is conceived and born during
marriage that such intercourse took place at a time when according to the laws
of nature, the husband could be the father of child,
(iii) The presumption applies with equal force even where the child is born
within a few days or even hours after the marriage. Further, it is immaterial that
the mother was married or not at the time of the conception.
SethuyPalani[lL'R (1925) 49 Mad 523] - A Hindu woman was married to S in
Oct. 1903. She was divorced by him in June 1904. She married another man, T,
in July 1904 and gave birth to a son in Sept., the same year. Thus, the
conception was formed when she was the wife of one and birth took place when
she was the wife of another man.
 B u r d e n of Proof & Presumptions 253

The child was held to be the legitimate child of second husband, the court
relying upon the fact that no proof was available of the fact that T could not have
had access to her even when she was the wife of S. The marriage of the mother to
one person is not considered to be a proof of the lack of access to any other
person.
If a man marries a woman not knowing that she is pregnant, he could, by
showing that he could not have had access to the woman when the pregnancy
commenced, make out that the child is not his. But if a person knowing that a
woman is pregnant marries her, the child of woman though born immediately
after the marriage becomes in law his child unless the man proves that he had
no access to the woman when he could have been begotten.
(iv) Sec. 112 appears to provide a simple presumption of legitimacy
which applies to children born during a marriage whether
conceived before or after the marriage took place, and to children
conceived during the marriage, whether born before the marriage
is dissolved by the husband's death or otherwise..
(v) Under Sec. 112, the only way to rebut the presumption is the proof
of "non-access" between the parties to marriage 8 r (Kanti Devi v
Posbi Ram AIR 2001 SC 2226). The phrase "non-access" implies
non-existence of opportunity for physical intercourse. As the
presumption of legitimacy is highly favoured by law it is
necessary that proof of non-access must be clear and satisfactory.
The presumption of legitimacy will not be allowed to be rebutted by the proof
that wife had adulterous relationship. Proof per se that the woman was living
with the paramour is no evidence of non-access by the husband. It may be
noted that if sexual intercourse is proved the law will not permit an enquiry
whether the husband or some other man was more likely to be the father of the
child, the presumption of legitimacy then becomes irrebuttable one.

8. Though Sec. 112 of the Evidence Act, deals with conclusive proof however,
takes within its fold rebuttable presumption. Elucidate. [C.L.C.-2006]
 254 L a w of E v i d e n c e

In Chilukuri Venkateswarlu v Chilukuri Venkatanarayana (AIR 1954 SC 176), the

husband tried to show that he had provided separate residence to his second
wife and thereafter never visited her. The wife alleged visits by the husband
and the husband being not able to prove his allegation, a child born by the
second wife was presumed to be a legitimate child.
Even the illness of the husband may not be sufficient to displace the
presumption of access, unless the illness is totally disabling. The word
"access" means effective access as is shown by the use of the words 'when
he could have been begotten' and physical incapacity to procreate amounts
to non-access within the meaning of this section. In Chandramatbi v
Fa~betti Ba/an (AIR 1982 Ker. 68), a married woman became pregnant even
after her husband had undergone vasectomy operation. The court held that
vasectomy was not sufficient by itself to over throw the presumption of
legitimacy. No proof was offered to show whether the operation was
successful. Nor there was any evidence regarding the fact that parties had no
access before the conception.
(vi) Biomedical tests'- It has been held that only way to rebut
presumption under Sec. 112 is by proving non-access, and
biomedical evidences like blood test, DN A test, etc. cannot be
allowedjtGwtoz? Kundu v State of W.B. AIR 1993 SC 2295;
lushar Roy v Sukla Roy, 1993 Cr LJ 1659 (Cal)]. Where,
however, such evidences are available, it can be used as a
circumstantial evidence.

LEADING CASE: GOUTAM KUNDU v STATE OF W.B.

(AIR 1993 SC 2295)
The courts do not normally order anybody to submit himself for
blood test. No one can be compelled to give sample of blood for
analysis. Where the presumed father of the child prayed for blood
test of the child for the purpose of denying legitimacy (i.e. he was
not the father of the child) and liability to maintenance, his prayer
was not accepted. It was held that the only way to rebut presumption
under Sec. 112 is by proving non-access, and biomedical evidences
like blood test, DNA test, etc. cannot be allowed.

"The law presumes both that a marriage ceremony is valid and that every person
is legitimate." Explain the provision with special reference to its brush with blood
test, controversy. [D.U-
2010]
Burden of Proof & Presumptions 25

The court pointed out that Sec. 112 is based on the maxim Pater est quem
nuptiae demonstrant (he is the father whom the marriage indicates). It is an
irrebuttable presumption of law that a child born during lawful wedlock is
legitimate and that there was access between the parents. This presumption can
only be displaced by a strong preponderance of evidence and not by a mere balance
of probabilities.... There must be a strong prima facie case in that the husband
a
must establish non-access - to dispel the presumption arising under this section.
Access_aod Non-access mean the existence or non-existence of opportunities for
sexual intercourse; it does not mean actual cohabitation^
 In England, a judge of the High Court has power to order a blood test
whenever it is in the best interests of the child. However, the court has no power to
order a blood test against the will of the parties; the consent is must. But, if an adult
unreasonably refuses to have a blood test, or to allow a child to have one, it is open
to the court in any civil proceedings to take his refusal as evidence against him, and
may draw an inference therefrom adverse to him [B.R.B. vJ.B. (1968) 2 All ER
1023]. Blood group serology, using proven genetic marker systems, represents the
most accurate scientific information concerning paternity and is so recognized in the
United States and a number of European countries. Laws have been passed in these
countries providing the courts with statutory authority to order blood testing in
disputed paternity cases.
But, in India there is no special statute governing this. Neither the Criminal
Procedure Code nor the Evidence Act empowers the court to direct such a test to be
made. The Kerala High Court in Vasurv Santha.(1975, Kerala Law Times, p. 533)
observed: "A special protection is given by the law to the status of legitimacy in
India. The law is very strict regarding the type of evidence which can be let in to
rebut the presumption of legitimacy of a child. Even proof that the mother
committed adultery with any number of men will not of itself suffice for proving
the illegitimacy of the child. If she had access to her husband during the time the
child could have been begotten the
256 Law of E v i d e n c e

law will not countenance any attempt on the part of the husband to prove that
the child is not actually hisjThe presumption of law of legitimacy of a child will
not be lightly repelled." The evidence of non-access for the purpose of repelling
it must be strong, distinct, satisfactory and conclusive. The standard of proof in
this regard is similar to the standard of proof of guilt in a criminal case.
in the present case, the Apex Court observed: The rigours imposed by the
Evidence Act are justified by considerations of public policy for there are a
variety of reasons why a child's status is not to be trifled with. The stigma of
illegitimacy is very severe and we have not any of the protective legislations as
in England to protect illegitimate children. No doubt, this may in some cases
require a husband to maintain children of whom he is probably not their father.
But, the legislature alone can change the rigour of law and not the court. The
court cannot base a conclusion on evidence different from that required by the
law or decide on a balance of probability which will be the result if blood test
evidence is accepted. Further, marriage or filiation (parentage) may be
presumed, the law in general presuming against vice and immorality .
In Hargovind Spui v Ramdulari (AIR 1986 M.P. 57) it was held: "The
blood grouping test is a perfect test to determine questions of disputed paternity
of a child and can be relied upon by courts as a circumstantial evidence. But no
person can be compelled to give a sample of blood for blood grouping test
against his will and no adverse inference can be drawn against him for this
refusal; In Smt. Dukhtar Jaban v Mohammed Farooq (AIR 1987 SC 1049) it
was observed that the courts in general incline towards upholding the legitimacy
of a child unless the facts are so compuls've and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the father
and as such a legitimation of the child would result in rank injustice to the
father.
 In the present case, the court concluded:
Burden of Proof & Presumptions 257

(i) The courts in India cannot order blood test as a matter of course.
(ii) Wherever applications are made for such prayers in order to have
roving inquiry, the prayer for blood test cannot be entertained.
(iii) There must be a strong prima facie case in that
the husband must establish non-access in order to
dispel the presumption arising under Sec. 112.
(iv) The court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an unchaste
woman.
(v) No one can be compelled to give sample of blood for analysis,
the reason being that this test is a constraint on one's personal
liberty.
Comments - The evidence of blood grouping test cannot be received by the
court as long as legitimacy is a matter of conclusive proof. The only permissible
evidence is non-access between the parents at a time when the child could
have been conceived, and this in the present conditions, it is impossible to
establish. At the time when the section was drafted in 1872, probably such
non-access could have been established by showing that the husband was
undergoing imprisonment or that he was serving in the army and engaged in
actual action in a foreign country, at the time when the child might have
been conceived. But today, since human rights activists encourage release
of the prisoners on parole and even periodic conjugal relations in prison
such non-access cannot now be established.
The husband who wants to disown the child must prove impossibility.
In the present day life it is almost impossible for a father to prove that it was
impossible for him to have had access to his wife at the time of conception
of the child. If that is so, it is submitted that the burden of proof would be as
high as in a criminal case where the prosecution will have to prove the case in
a case of circumstantial evidence beyond all reasonable doubt
258 Law of E v i d e n c e

[Kamti Devi v Poshi Ram (2001) 5 SCC 311] [See, Vepa P. Sarathi, Law
of Evidence, Eastern Book Co., pp. 265-267 (2006)],

(vii) It may be noted that an admission by the wife that the child is
illegitimate is admissible in evidence.

Decision of the first case in question

In the present case, the son has been born during continuance of valid
marriage between his mother and another man, K. Unless K proves that he
had no access to A during the time when the son was conceived, it can be
lawfully claimed that son is the legitimate son of K (Setbu v Palani).

Decision of the second case in question

In the present case, the baby has been born during continuance of valid
marriage between her mother (Y) and another roan, T. Unless T proves that
he had no access to Y during the time when the baby was conceived, it can
be lawfully claimed that baby is the legitimate child of T.
(b) A child born during the continuance of a valid marriage i; presumed
to be legitimate. Under Sec. 112, the only way to rebu this
presumption is the proof of '"non-access" between the partie to
marriage. Thus, a blood-test report is not an admissible evideno
(Goittam Kundu v State ofW.B.). Likewise, the presumption o
legitimacy will not be allowed to be rebutted by the proof tha wife
had adulterous relationship.

Q.2. Can a party successfully argue that certain fact recognised b

the statute as conclusive evidence are different from conclusiv
proof? Give reasons. [C.LC.-9I
A.2. Conclusive Proof v Conclusive Evidence
The distinction between the conclusive proof and conclusive evidence
illustrated in the following case:

LEADING CASE: SOMWANTI v STATE OF PUNJAB

(AIR 1963 SC 151)
In this case, the land belonging to the appellants was acquired by
the Government of Punjab on the grounds of 'public purposes',
after a notification in the official gazette. The petitioners contended
Burden of Proof & Presumptions 259

that the said action violate their fundamental rights under Article 19 to
possess said land and carry on their trade, etc. And, the governmental
declaration is 'conclusive evidence' only of a need and nothing more,
and is not a 'conclusive proof.' The contention of the State government
was that its opinion about 'public purposes' was a 'conclusive proof
and court cannot go behind the question. The question is, when a fact
is only 'conclusive evidence' as to existence of another fact, other
evidence as to the existence of other fact is shut out or not.
The Supreme Court observed: The object of adducing evidence
is to prove a fact. Since an evidence means and includes all statements
which the court permits, when the law says that a particular kind of
evidence would be conclusive as to existence of a particular fact, it
implies that fact can be proved either by that or some other evidence
which the court permits. Where such other evidence is adduced, the
court could consider whether upon that evidence, the fact exists or
not.
On the other hand, when evidence which is made conclusive is
adduced, the court has no option but to hold that fact exists.
Otherwise, it would be meaningless to call a particular evidence as
'conclusive'. A 'conclusive evidence' shuts out any other evidence
which would detract from the conclusiveness of that evidence.
The concept of 'conclusive proof is defined under Sec. 4: When
one fact is declared by this Act to be conclusive proof of another, the
court shall, on proof of the one fact, regard the other as proved, and
shall not allow evidence to be given for the purpose of disproving it.
In substance, therefore, there is no difference between
'conclusive evidence' and 'conclusive proof. In each, the effect is same
i.e. making a fact non-justiciable (irrebuttable). The aim of both being
to give finality to the establishment of existence of a fact from the
proof of another.
In the present case, thus, the opinion or declaration of State
government is conclusive proof or conclusive evidence,
260 Law of E v i d e n c e

and any further judicial probe is barred. The petitioners cannot lead
evidence to disprove the irrebuttable presumption. [Note: Under Sec. 6 of
the Land Acquisition Act, 1894, the State's declaration of land being
required for a public purpose, is a 'conclusive presumption.']

Decision of the case in question

A party cannot successfully argue that certain fact recognised by the statute as
conclusive evidence are different from conclusive proof.
 9
Estoppel

According to the doctrine of estoppel there are certain facts which the parties
are prohibited from proving. Estoppel is a principle of law by which a person
is held bound by the representation made by him or arising out of his
conduct. Estoppel is dealt with in Sees. 115 to 117 of the Evidence Act.
While Sec. 115 contains the general principle of estoppel by conduct, Sees.
116 and 117 are instances of estoppel by contract. However, there are other
recognised instances of estoppel, viz., The Indian Contract Act (Sec. 234),
The Specific Relief Act (Sec. 18), The Transfer of Property Act (Sees. 41 and
43). Estoppels which are not proved by the Evidence Act may be termed
'equitable estoppels'.

Sec. 115. Estoppel1

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

1. Explain the doctrine of estoppel as enunciated in Sec. 115 of the Evidence Act.
[D. U. -2010\[L C. II-93S94/95I
Write a short note on Doctrine of Estoppel. [C.LC.-
2006I

[261].
262 Law of E v i d e n c e

on the ground that, at the time of the sale, he had no title. He rep
must not be allowed to prove his want of title.. rob
Estoppel is not a rule of equity or law, but a rule of evidence ate
which is based on the maxim Allegans contraria non est audindus or
(person alleging contrary facts will not be heard). Doctrine of that
estoppel is founded on the famous English case Pickard v Sears )a
(1837) 6 A & E 475, stating the principle that it is inequitable and ma
unjust to allow a person to deny the truth of a statement which he n
has made to another and the other person has acted on it believing can
it to be true. The object is to prevent fraud and secure justice not
between parties by promotion of honesty and good faithj blo
w
The principle says that a man cannot approbate and
hot
 and cold at the same timejor that a man shall not be allowed to
say one thing at a time and different thing at other time. It must
be noted that estoppel is only a rule of civil action and has no
application in criminal proceedings.

. Essential Ingredients of Sec. 1152

Three essential ingredients of Sec. 115 are:
(i) a representation is made by a person to another,
(ii) other person believes it and acts upon such belief
thereby altering his position,
(iii) then in a suit, between the parties, the person who
represented shall not be allowed to deny the truth of his
representation, i

Representation
Representation of the existence of a fact may arise in any way - a
declaration, act or omission. Anything done which has the effect
of creating in the mind of the other a belief as to the existence of
the fact represented will do. j

2. What are the essential conditions for the application of the rule of
estoppel?
[C.LC-95]
What a person, who sets up an estoppel against the other, must
show?
[D.U. -20071
Estoppel 263

The focus of law of estoppel is the position in law of party who

induced to act.(Thus a person who is estopped (i.e. person making the
presentation) may not have intention to deceive and may himself be ting
under mistake or apprehension. The estoppel will nonetheless operate
such cases also [Surat Chunder Dey v Gopal Cbander Laha (1892) 19 IA
203].
Representation of a mere intention cannot amount to an estoppel,
representation as to the legal effect of an instrument (if not ultra vires) ill
create an estoppel^A representation may also arise from an "omission" i
do an act which one's duty requires one to do. An estoppel will arise hen
the failure to perform one's duty has misled another and also the aty
should be a kind of legal obligation. In Mercantile Bank of India Ltd.
Central Bank of India Ltd. (1938) AC 287, an omission to stamp the
:ceipts was held sufficient to create an estoppel. Estoppel by negligence is
ased on the existence of a duty which the person estopped is owing to le
person led into the wrong belief or to the general public of whom ie person
is one.
Estoppel by conduct may be active or passive. Estoppel by silence or
cquiescence arises only when there is a duty to speak or disclose.
 llustrative cases - In Secy, of State v Tatya Holkarhhe government
acquired uid of the respondent and paid compensation thereof. Later on,
overnment discovered that the land actually belonged to it. The overnment
sought to recover the amount paid. It was held that pvernment is estopped
by its conduct.
In a case, a judge, who had showed high age in his certificates right
rom the beginning of his career, sought to deny it by showing actual
nunicipal birth-records, so as to retire at a later age. Held that the judge s
estoppedYln another case, the wife was of Buddhist faith and the msband a
Muslim. She sought a divorce under Buddhist law. Held that ;he was
estopped from denying her earlier committal to Islamic law.

Reliance and Detriment

The second condition necessary to create an estoppel is that the plaintiff
tltered his position on the basis of the representation and he would suffer a
loss if the representer is allowed to resile from his statementjDetriment is a
prerequisite of actionable promissory estoppel. Thus, a mere statement
 «
264 Law of E v i d e n c e

of a person that he would not assert his rights does not create an estoppel
unless it is intended to be acted upon and is in fact acted upon {Sida
Nitinkumarv Gujarat University AIR 1991 Guj. 43). However, detriment is
not necessary to create an estoppel against the State.
Where a Government licence was granted to a person to establish saw
mill and he spent huge sums of money acting on the grant and the
Government subsequently changed policy refusing to grant any further
licences, the Government was held bound to grant that particular licence,
though the policy may be revised for the future] (Joyjit Das v State of Assam
AIR 1990 Gau. 24).
Certain candidates were admitted to recognised course in Physical
Education for the purpose of appointment as physical training instructors in
Government schools. The Government was not permitted to derecognize the
course in reference to such candidates but had a right to do for the future
(Suresh Pal v State ofHaryana AIR 1987 SC 2027).

Promissory Estoppel3
Doctrine of estoppel has gained a new dimension in recent years with the
recognition of an equitable doctrine of 'promissory estoppel' both by English
and Indian courts.jAccording to it, if a promise is made in the expectation
that it should be acted upon in the future, and it was in fact acted upon, the
party making the promise will not be allowed to back out of it^The
development of such a principle was easy in Britain and USA, where
estoppel is a rule of equity (common law), but in India, it is a rule of law,
and terms of Sec. 115 must be strictly complied with.
The concept of promissory estoppel differs from concept of estoppel as
contained in Sec. 115 in that representation in the latter is to an existing fact,
while the former relates to a representation of future intentionj But it has
been accepted by the Supreme Court as "advancing the cause of justice".
Though such promise (future) is not supported in point of law by any
'consideration' (the basis of a contract), but only by party's conduct; however,
if promise is made in circumstances involving legal rights and obligations, it
is only proper that the parties should be enforced

3.Differentiate between estoppel u/s 115 and principle of promissory estoppel.

[D.U.-2007]
Estoppel 265

to do what they promised. In cases, where government is one of the >arties,

the court will balance the harm to public interest by compelling ;overnment
to its promise and harm to citizen to allow government to jack out of it.... to
see that the government does not act arbitrarily.
The doctrine has been variously described as "equitable estoppel",
'quasi estoppel" and "new estoppel". The doctrine is not really based jpon
the principle of estoppel, but it is a doctrine evolved by equity in arder to
prevent injustice where a promise made by a person knowing that it would
be acted on.... it is inequitable to allow the party making the promise to go
back upon it. The doctrine of promissory estoppel need not, therefore, be
confined to the limitations of estoppel in the strict sense of the word (M.P.
Sugar Mills v State of U.P. AIR 1979 SC 61JJ
in that case, there was news in the papers that the State of U.P. would
grant exemption from sales tax for 3 years to new industrial units. The
petitioner wanted to set up a vanaspati plant. He applied to the Director of
Industries and the Chief Secretary and both confirmed the availability of the
exemption. The petitioner proceeded with his plans. But the State
Government abrogated its policy of exemption. The petitioner contended
that the Government should be estopped from going back upon the declared
exemption. The Supreme Court allowed the petition, holding that the
Government was bound by its declared intention. The court also held that
detriment is not necessary to create an estoppel against the State. What is
necessary is only that the promisee should have altered his position in
reliance on the promise.)
A mere promise to make a gift will not create an estoppel. It would
require a clear and unequivocal promise to import the doctrine into a matter.
A leading institution intimated the sanction of a loan with a remark that it
did not constitute a commitment on the part of the institution. Held that
there was no promise to found the doctrine of promissory estoppel
(RabisankarvOrissa State Fin. Corpn. AIR 1992 Ori. 93).
The promise of State Government to absorb its village officers whose
posts had been abolished into other services on certain basis, was not
afterwards permitted to be amended by inserting the requirement of age
which was not there in the original commitment (R.K. Rama Rao v State
ofA.P. AIR 1987 SC 1467).
266 Law of E v i d e n c e

In Madhuri Patel v AddL Commissioner, Tribal Development (AIR 1995 SC

94), the Supreme Court did not allow the benefit of promissory estoppel to a
candidate who secured admission through false caste certificate. It was held
that a candidate obtaining admission to educational course by fraud cannot
claim to continue on the basis of 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) When true facts are known to both the parties - Sec. 115 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
(Madnappa v Chandramma AIR 1965 SC 1812)_;J
(3) 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 part of the other party, which
could not be detected by promisor with ordinary care, the estoppel
will not operate. >
(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.
(5) No estoppel on a point of law - Estoppel refers only to a belief in a.
fact. If a person gives his opinion that law is such and such and
another acts upon such belief, then there can be no estoppel against
the former subsequently asserting that law is different.
Estoppel 267

One cannot be estopped from challenging the effectiveness of

something (e.g. partition deed) for want of law (e.g. registration).
Representations under Sec. 115 should be of facts, not of law or
opinion {Union of India v K.S. S'ubramamam AIR 1989 SC 662).
(6) No estoppel against statut^ I sovereign acts - A rule of law cannot be
nullified by resorting to the doctrine oFestoppel. A person who
makes a statement as to the existence of the provisions of a statute
is not estopped, subsequently, from, contending that the statutory
provision is different from what he has previously stated. For
example, where a minor has contracted by misrepresenting his age,
he still can afterwards disclose his real age. It is a rule of law of
contract that a minor is not competent to contract and that rule
would be defeated if a minor not permitted to disclose his real age.
Hence there can be no estoppel against the provisions of a statute.j
Thus, if a person is given rights under a statute, and he gives them up it one
stage voluntarily and later on tries to enforce those rights, no sstoppel can
be invoked against him.(For example, under the Rent Control f\ct, the
landlord can demand from his tenant only a fair/standard rent, [f a tenant
agreed to pay a high rent and thereafter files a petition for fixing the fair
rent, he won't be estopped.
Similarly, the statute provided that a tenant could not sublet and on
subletting he was liable to ejectment. By a bilateral agreement the landlord
allowed the tenant, to sublet as he did so. The landlord brought a suit for the
ejectment of the tenant. It was pleaded that the landlord was estopped from
suing for ejectment. Held that the right founded upon or growing out of an
illegal transaction cannot be sustained; the ejectment was ordered.^
In Bal Krishan v Rem University (AIR 1978 M.P.86), it was pointed
out if a candidate has appeared at an examination by misrepresenting facts
(viz., a non-graduate appearing at law examination), the university will not
be estopped from cancelling the examination if his candidature is against a
rule of law.3b
An appointment which is void by reason of non-compliance of an
applicable statute was held as not creating an estoppel against a statutory

3a. Can there be estoppel against statute. [DU.-2010]

3b. A question based on this case [D.U.-2011]
268 Law of E v i d e n c e

employer (corporation) from challenging its validity [MP. State Agro Industrial
Dev. Corpn. v S.C. Pandey (2006) 2 SCC 716].
If the statute is solely for the benefit of a person he may waive his right
or benefit, if he thinks fit or give up the rights of a personal nature created
under an agreement, but he cannot waive a benefit conferred by a statute
which has public policy for its object. It may be noted that a statement made
under misapprehension of legal right is not estoppel.
The Supreme Court has laid down that it is well settled that there
cannot be any estoppel against the Government in the exercise of its sovereign,
legislative and executive functions. Where a local development authority
announced a housing scheme and accepted applications under it, subsequendy
finding that the scheme was in violation of the Master Plan cancelled it. It
was held that to be free to do so without any shackles of promissory estoppel
{Housing Board Cooperative Society v State AIR 1987 M.P. 193).
In State ofRajasthan v Mahavir Oil Mills (AIR 1999 SC 2302), when
new industry was set up on basis of Incentive Scheme from Government and
by relying on promise of benefits held out by it, the Supreme Court held that
the State Government was bound by the promise held out by it in such
situation. But this does not preclude the State Government from withdrawing
the benefit prospectively even during the period of Scheme, if the public
interest, so requires. Even in case the party had acted on promise, if there is
any supervening public interest which requires that the benefit be withdrawn
or the same be modified, that supervening public interest would prevail over
promissory estoppels.

LEAPING CASE: R.S. MADNAPPA V CHANORAMMA4

(AIR 1965 SC 1812)
I In this case, in a suit for possession of plaintiff's half share of
rcertain properties, a decree was passed in favour of the defendant
No. 1 (brether of planing) with respect to the other half sharej
, In appeal by the other defendants, it was contended that defendant
No. 1 was estopped from claiming half share (decreed), because:

4. Explain the doctrine of Estoppel with special reference to the case of R.S
Maddanappa v Chandramma (AIR 1965 SC 1812). [LC.II-2006
 Estoppel

269

(i) he did not reply to a notice by the plaintiff asking him to

join her in filing the suit,
(ii) he wrote a letter to his step mother disclaiming interest
in suit property, and,
(iii) he attested a will executed by his father disposing of
suit properties.
The Supreme Court held that: 6 \j&Pt*JLO£, <
(i) the conduct in not replying to notice does not mean there
was implied admission (or acquiescence) that he had
no interest in properties, justifying an inference of
estoppel,
(ii) when the father (defendant No. 2) knew about true legal
position that he was not the owner of properties and his
possession was on behalf of plaintiff and defendant No.l,
the defendant No. l's letter to stepmother could not have
created an erroneous or mistaken belief in father's mind
about his title to the suit properties,
(iii) similarly, the reason of conduct of defendant No. 1 in
attesting his father's will could not justify an inference of
estoppels.
Thus, in this case, as the facts are known to both the parties, the cloctrine
of estoppel cannot be invoked. Sec. 115 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. Also, in the present case,
there is no detriment to the other party by the actions of defendant No. l.]

Sections 116-117
Seaions 116 and 117 are illustrative of the principle of estoppel laid down in
Sec. 115. These two sections deal with estoppels in specific cases.
 270 Law of E v i d e n c e

Sec. 116. Estoppel of Tenant and of Licensee of Person in Possession

Sec. 116 provides that a person who comes into an immovable property . taking
possession from a person who he accepts as the landlord, is not permitted
during the continuance of tenancy to say as against his landlord that he had no
title to the property at the commencement of the tenancy. Similarly, a person
who comes upon any immovable property with the licence of the person in
possession is not permitted to say afterwards that his licensor had no right to the
possession of the property.}
In short, a tenant licensee is not permitted to deny the title of his
landlord/ licensor. Where a landlord files a suit for ejectment and for
arrears of rent the tenant who has been put into possession of the
property in suit by the landlord cannot be allowed to say that the landlord
had no interest in the property of suit Moti Lai v YarMd. AIR 1925 All.
275).
In S.K. Sharma v Mahesh Kumar Verma AIR 2002 SC 3294, the
respondent was a railway servant. He was allotted premises in question as
official residence. The respondent was estopped from alleging title of
railway administration over premises in question till he was in possession in
view of Sec. 116 of the Evidence Act. In Rita Lai v Raj Kumar Singh AIR
2002 SC 3341, the tenant was not allowed to defend because his only
defence would have been to deny the title of the landlord.
The estoppel is confined to the state of things at the commencement of
tenancy/ licence. The tenant/ licensee is always free to talk of the subsequent
developments i.e. the landlord/ licensor has lost his title. After the tenancy
had ceased, the tenant is free to deny the title of the landlord. Estoppel
between landlord and tenant comes to an end when tenant openly restores
possession by surrender [T. Lakshmipatbi v P. Nithyananda Reddy (2003) 5
SCC 150].fit may be noted that where tenancy is itself in question (i.e.
created by fraud, coercion, etc.) the tenants are not estopped from disputing
'he landlord's title J
Rule of estoppel which governs an owner of an immovable property
and his tenant would also mutatis mutandis govern a tenant and his sub-
tenant [ Vashu Deo v Balkrishan (2002) 2 SCC 50].
Estoppel 271

Sec. 117. Estoppel of Acceptor of Bill of Exchange, Bailee/ Licensee

Sec. 117 provides that no acceptor of a bill of exchange can deny that "the
drawer had authority to draw such bill or to endorse it; but he may deny that
the bill was really drawn by the person by whom it purports to have been
drawn (it can always be shown that the drawer's signature was forged).
Likewise, no bailee/licencee can deny that his bailor/licensor had, at
the time when the bailment/licence commenced, authority to make such
bailment or grant such licence. But, if a bailee of the goods bailed to a
person other than the bailor, he may prove that such person has a right to
them as against the bailor^
[Note: Estoppel by attestation - An attestor ordinarily knows nothing of the
contents of document, and so he is not estopped from denying the truth in
document. But, if he knows about contents, then estoppel operates.]

Comparison of Estoppel with Other Concepts

Estoppel and Presumption - An estoppel is a personal disqualification laid
upon a person peculiarly circumstanced from proving particular facts,
whereas a presumption is a rule that a particular inference is to be drawn
from particular facts, whoever proves them. In presumption, evidence to
rebut it can be given, while in estoppel, the party is estopped from denying
the truth.
Estoppel and Conclusive Proof- When a fact is conclusively proved, it is so
against all the world. Estoppel operates only as a personal disability. In
both, however, the very same fact cannot be denied (irrebuttable).
Estoppel and Admission - Admissions being declarations against an interest
are good evidence but they are not conclusive and a party is always at
liberty to withdraw admissions by proving that they are either mistaken or
untrue. But an estoppel creates an absolute bar. Further, estoppel being a
rule of evidence, an action cannot be founded on it, whereas an action may
be founded on an admission. It may be noted that admissions, if they have
been acted upon by a third person, and if substantive rights have been
created, operate as estoppel.
272 Law of E v i d e n c e

Estoppel and Waiver - Waiver is the abandonment of a right which normally

everybody is at liberty to waive. A waiver requires a positive relinquishment
of something which one had before, but estoppel does not require any such
thing as that; and a party waiving his rights may in circumstances reinforce
them, while in estoppel it cannot be so. In waiver, there is full knowledge of
facts, while in estoppel, even a mistake or omission has no effect.
Estoppel and Res Judicata - Res judicata precludes a man averring the same
thing twice over in successive litigation, while estoppel prevents him saying
one thing at one time and the opposite at another. Thus, res judicata prohibits
a court from inquiring into a matter already adjudicated, while estoppel
prohibits a party. Further, res judicata is not a rule of evidence, but a rule of
procedure.
Estoppel and Fraud - An action cannot be founded on estoppel, while a
fraud gives rise to a cause of action. Similar is the case of estoppel and
breach of contract.

FURTHER QUESTIONS

Q.1. (a) A intentionally and falsely leads B to believe that a particular

plot of land belongs to A and B under a bona fide belief buys
it for five lac rupees. A, afterwards becomes the owner of the
said plot of land and seeks to set aside the sale on the
ground that at the time of the sale, he had no title. Can he
be allowed to prove it? Decide. [C.LC.-97/93]

(b) A trustee, alleging that the trust property, consisting of land

was his own property, mortgaged it. The mortgagee took
possession in good faith, for valuable consideration, and
without notice of trust. The mortgagee obtained a decree
against the trustee for the sale of land and the land was sold
in execution of that decree. The trustee, later, brought a suit
to recover the land from the purchaser on the ground that it
was trust property and that he had no power to transfer it.
Decide. [C.LC.-92]
 Estoppel 273

(c) A, who was declared pass in B.A., on the basis of the result
appeared in Civil Services Exams. However, before the Civil
Services results came out the University communicated to A
that his B.A. result was wrongly decided and that he had
failed. A moved the court. Can the University adduce evidence
to justify it revision of the results? [C.LC.-95/96]
Pending the results of his qualifying exam, X appeared for LL.B entrance test,
of Delhi University and obtained rank 10 in the merit list. He was provisionally
admitted to graduate course in law. In the meantime his result of qualifying
exams was declared and he as per the marks card issued, secured 60% marks.
He appeared in 1st and 2nd term of law and was promoted to 3 rd term. The
University issued a notice to Mr. X stating that it was by error that he was
shown getting 80% in fact he obtained only 45% marks, hence was not qualified
to be a student of graduate course in law. University proceeds to cancel his
admission. Can the university do so? Give reasons. [D.U.-2007/2009] \.l.
(a)Estoppel
Estoppel is a principle of law by which a person is held bound by the
representation made by him or arising out of his conduct. If, for example, i
person made a statement intending that some other person should act lpon it,
he will be estopped, i.e., will be prevented, from denying the truth if his
statement once the other person has altered his position on the lasis of the
statement.
The following conditions must be satisfied to bring a case within the
scope of estoppel as defined in Sec. 115 [Cbhaganlal Mehta v Haribbai 'atel
(1982) 1 SCC 223]:-
(i) There must have been a representation by a person to another
person, which may be in any form - a declaration or an act or an
omission.
(ii) Such representation must have been of the existence of a fact,
and not of future promises or intention.
(iii) The representation must have been meant to have been relied
upon.
(iv) There must have been belief on the part of the other party in its
truth.
74 Law of E v i d e n c e

(v) There must have been some action on the faith of that declaration,
act or omission. In other words, such declaration, etc., must have
actually caused the other person to act on the faith of it and to alter his
position to his prejudice or detriment.

(vi) The misrepresentation or conduct or omission must have been the

proximate cause of leading the other party to act to his prejudice,

(vii) The person claiming the benefit of an estoppel must show that
he was not aware of the true state of things. There can be no estoppel if
such a person was aware of the true state of affairs or if he had means
of such knowledge,

(viii) Only the person to whom the representation was made or for
whom it was designed, can avail of the doctrine. The burden of proving
estoppel lies on such person,

(ix) Where the plea of estoppel is not set up in the pleading, it

cannot be availed of later,
(x) No action arises on the estoppel itself. It is not a cause of
action. It may assist in enforcing a cause of action.

Decision of the case in question

A makes a false representation to B who believes it in good faith and acts
upon it. By acting so, B has altered his position to his detriment. Thus, B can
claim the benefit of an estoppel, as all the conditions of Sec. 115 are
satisfied. B can retain possession of the land as its lawful owner, and A will
be estopped from proving his want of title at the time of original case.
(b) The trustee has made a false representation, and the mortgagee has
acted upon his representation in good faith. Thus, the doctrine of
estoppel applies. The trustee cannot be now allowed to deny the
truth of his earlier statement.
(c) Estoppel against Universities
The doctrine of estoppel has been allowed to .be invoked against a
University.Jn Univ.vfMadras vSundaraShetti (1956) MLJ 25, the university
was estopped from claiming that a student had not actually massed, but
Estoppel 275

at his mark sheet contained a mistake. The respondent (student) was

clared successful in SSLC exams, got certificates and admitted in college,
hile in senior class, he received a notice that his name was not in the t of
SSLC holders. Thus, his name was removed from the college rolls. dd that
it was a case of legal or equitable estoppel which satisfies actically all the
conditions in Sec. 115. The university could not deny m his right,
moreover there was no mala fide on the part of the spondent. The fact of a
miscalculation of marks was within the special lowledge of the university
and was not known to any other person, i
 I The Supreme Court has held in Sri Krishna v Kurushetra Univ. (AIR
1976 SC 376), that once a candidate has been admitted to an examination
s candidature cannot afterwards be cancelled even if his form carried rtain
infirmities. The candidate is not guilty of fraud if he mis-state cts the truth
of which the university could have discovered with ordinary

The Rajasthan High Court acted upon this principle in refusing

amission to a University after 3-4 years to cancel the admission to a edical
college on the basis that the candidate's declaration that he belonged i a
scheduled caste was a false one (Harpbool Singh v State AIR 1981 Raj. .
But, M.P. High Court did not raise any estoppel against a polytechnic hich
had admitted a candidate on the basis of a false declaration that \ was a
SC. The institution was allowed to cancel the admission because lere was
fraud in him (Israr Ahmad v State AIR 1932 M.P. 205). The A.P. Igh
Court has also taken the same view (B. Venkata Rao v Principal, ndhra
Medical College AIR 1989 A.P. 159).
Where the mistake in making the marks-sheet was apparent in that te
marks entered showed that the candidate failed, but the result column
towed that he passed, there was no estoppel, and the Board could rectify te
mistake. Similarly, no estoppel arose where a marks-sheet issued to :veral
candidates with "passed" remark carried the impression of error ti the face
(Reetanjali Pali v Board of Sec. Education AIR 1990 Ori. 90).
In Sanatan Gauda v Berhampitr University (AIR 1990 SC 1075), the
jpeTlant candidate while securing his admission in Law College had
Imittedly submitted his M.A. mark sheet along with the application for
imission. The law college had admitted him. He pursued his study for vo
years. The University had also granted him the admission card for
276 Law of E v i d e n c e

the pre-law and intermediate law examination. He was admitted to the final
year of the course.
The University raised an objection about his eligibility at the stage of
declaration of result of pre and intermediate stage. The University contended
that since the appellant had not secured the required number of marks in the
M.A. examination, he was not entitled to be admitted to the law course. The
appellant had secured few marks in a particular paper of M.A. and the
University relied on certain technical rules, which were challenged by the
appellant. It was held that the University is clearly estopped from refusing to
declare the result of the appellant or from preventing him from pursuing the
final year course. The appellant had produced his mark sheet before the
college authority with his application for admission, and cannot be accused of
making any false statement or suppressing any relevant fact before anybody. It
was the bounden duty of the University to have scrutinized the matter
thoroughly before permitting the appellant to appear at the examination and
not having done so it cannot refuse to publish hisresults.l

Decision of the first case in question

A has acted upon the representation by the University. The doctrine of
estoppel clearly applies. The University is estopped, and cannot adduce
evidence to justify it revision of the results.

Decision of the second case in question

X has acted upon the representation by the University. The doctrine of
estoppel clearly applies. The University is estcpped, and cannot adduce
evidence to justify it revision of the results.
 10
Witnesses

“Witness" as Bentham said are the eyes and ears of justice. If the witness
imself is incapacitated from acting as eyes and ears of justice, the trial ets
putrefied and paralysed, and it no longer can constitute a fair trial, "he
incapacitation may be due to several factors, like the witness being iot in a
position for reasons beyond control to speak the truth in the ourt or due to
negligence or ignorance or some corrupt collusion [Zahira iabibullah
Sheikh v State of Gujarat I (2006) CCR 193 (SC)].
Sections 118-121 and Sec. 133 (Accomplice) deal with the ompetency
of the persons who can appear as witnesses. A witness may >e competent
and yet not compellable i.e. the court cannot compel him o attend and
depose before it (viz. Foreign ambassadors and sovereigns). Vgain, a
witness is competent and also may be compellable yet the law nay not force
him to answer certain questions. This is called 'restricted ompellability' or
'privilege', conferred on Magistrates, lawyers, spouses, itc. (Privileged
witnesses) under the sections 124-132. Sec. 134 lays down ule as to the
number of witnesses required to give evidence in a case.

COMPETENCY OF WITNESSES1

Sec. 118. Who may Testify2

Sec. 118 lays down that all persons are competent to testify, unless the court
considers that, by reason of tender age, extreme old age, disease

1. Explain the term 'Competence of a witness'. [LC. 11-93/2006]

2. Write a short note on'Who may testify'. [LC.//-94] Who is competent to testify?
[D.U.-2007/2009/2011]
I277]
278 Law of E v i d e n c e

(of body or mind), or infirmity, they are incapable of understanding the

questions put to them, and of giving rational answers. Even a lunatic is
competent to testify, provided he is not prevented by his lunacy from
understanding the questions put to him and giving rational answers to them
{Explanation).
Thus, no person is particularly 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. Although an accused person is incompetent
to testify in proceedings in which he is an accused, an accomplice is a
competent witness against an accused person (Sec. 133).
Child witness3 - A child (even of 6 or 7 years) is a competent witness,
unless he is unable to understand the questions or is unable to give rational
answers. There is no provision in India by which corroboration to the
evidence of a child is required. It is a sound rule in practice not to act on
the uncorroborated evidence of a child, but this is a rule of prudence, and
not of law (Nirrnal Kumar v State ofU.P. AIR 1952 SC 1131).
In Ratansinh Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC
64, it was held that a child of tender age can be allowed to testify if he has
intellectual capacity to understand questions and give rational answers
thereto. The decision on the question whether the child witness has
sufficient intelligence rests with the trial judge. Child witnesses are
dangerous witnesses as they are pliable and liable to be influenced easily,
shaken and moulded.
There is a need for carefully evaluating the testimony of a child.
Adequate corroboration of his testimony must be looked from other
evidence. In this case, the child of 6 years saw his mother being assaulted
and killed at mid-night. lie went back to sleep after witnessing the incident.
This showed unnaturality of conduct. He could not be relied upon
[Bhagwan Singh v State of MP. AIR 2003 SC 1088].

3. Can an evidence given by a child be admissible [D.U.-

2009]
Witnesses 279

The statement of the child may be recorded without administering

aath to him.-The courts should, however, always record their opinion
that the child understands the duty of speaking the truth.
Chance witness - If by coincidence or chance a person happened to be at
the place of occurrence when the incident is taking place, he is called a
chance witness. Merely because there is no compelling reason for him to
be present at the time of the occurrence, that by itself need not
necessarily mean that his evidence has to be rejected.
Victim of rape - The Supreme Court has prescribed a new approach to
the testimony of the victim of a sex offence. She (prosecutrix) is a
competent witness under Sec. 118 and her evidence must receive the
same weight as is attached to an injured in cases of violence. The
Evidence Act nowhere says that her evidence cannot be accepted unless
it is corroborated in material particulars (State of Maharashtra v C.K.
Jain AIR 1990 SC 658).

Partisan/ Relation Witnesses (Interested Persons as Witnesses)

If a witness is a relative of the person who produces him, his statement
cannot be discarded only for that reason, unless it is shown that the
statement is a tainted one and was given only to benefit the person
producing him (Union of India v Savita Sharma AIR 1979 J & K 6). It
may, however, be that the evidence of such witness should be scrutinized
carefully. Where such scrutiny establishes reliability, evidence ought not
to be rejected (Krishna Pillai v State of Kerala AIR 1981 SC 1237).
An 'interested witness' means a person who wants to see the
accused convicted because of his own animus or otherwise (evidence of
police officers falls in this category). A relative may not be so interested.
A person cannot be said to have such animus merely on the ground that
he deposed against the accused on an earlier occasion (Suk Bahadur
Subha v State ofSikkim, 1988 CrLJ 1453).
The credibility of the witness does not get affected merely because
he is related to the deceased or does not state the incident in the same
language or manner which in the opinion of the court is natural. Where
the testimony of the injured eye-witness was convincing and of sterling
worth and was also corroborated by medical evidence, his testimony
280 Law of E v i d e n c e

could not be disregarded only because he was related to the deceased

{Aidan v State of Rajastban, 1993 CrLj 2413).
Similarly, evidence of a police officer cannot be rejected for that reason
alone. Where the testimony of a police officer that he seized the driving licence
and other documents from the possession of the accused who was charged
with rash and negligent driving, this was held sufficient to prove that the
accused was driving the vehicle, though no other independent witness was
produced {State of MP. v Jagdisb, 1992 CrLJ 718 P&H).
Official witness: He is a public servant who is joined in or associated with
the investigation of an offence. While conducting raids or searches, or while
laying traps, certain officials of the concerned departments are joined in the
raiding party i.e. the officials of the police department, income-tax or sales-
tax department, etc. At the trial, such public servants are examined as
prosecution witnesses against the accused.
The evidence of such witnesses is not to be discarded merely because
they are interested in in the success of the prosecution case. Their testimony
is to be approached like the evidence of any other ordinary witness. If the
evidence of such a witness is found to be trustworthy, there is no need to
seek corroboration [Hajari Lai v State {Delhi Admn) AIR 1980 SC 873].

Sec. 119. Dumb Witness33

A person who by reasons of dumbness or otherwise is unable to speak, may
give evidence by any means by which he can make himself intelligible, such
as, by writing or by signs. Evidence so recorded shall be regarded as oral
evidence.

Sec. 120. Parties to Suit or Proceeding/ Husband or Wife

In all aw/proceedings the parties to the suit, and the husband or wife of any
party to the suit shall be competent witness. In criminal proceedings against
any person the husband or wife of such person, respectively, shall be a
competent witness.
In all civil proceedings, the parties to the suit are competent witnesses.
Therefore, a party to a suit can call as his witness any of the defendants

3a. Whether a dumb person can be considered a competent witness?

[D.U.-2010/2011]
 Witnesses 281

to the suit. The plaintiff and the defendant can give evidence against each
ther. Husband and wives are, in all civil and criminal cases, competent
witnesses against each other (In olden days, the husband and wife were ne
person in law).

Sec. 121. Judges and Magistrates

ec. 121 lays down that a Judge or Magistrate cannot be compelled iccept
upon the special order of a higher court, to give evidence about is conduct in
relation to a case tried by him, nor can he be made to epose anything which
he came to know as a court in course of trial; but e may be examined as to
other matters which occurred in his presence 'hilst he was so acting.

IIlustrations
(a) A, on his trial before the Court of Session, says that a deposition was
improperly taken by B, a Magistrate. B cannot be compelled to
answer 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 a 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 Session Judge. B may be
examined as to what occurred.
A judge or magistrate is a competent witness. A judge can be witness to
slevant facts as an ordinary man. If a judge is personally acquainted with ly
material or particular fact he may be shown as a witness in the case, he saw
something happen, he can testify to it even if it happened efore him when he
was presiding as a judge or magistrate. If, for cample, the accused attempted
to shoot down a witness while he was istifying before a judge, the judge may
be questioned as to what he saw.
But, subject to this, no judge or magistrate can be questioned as to is
judicial conduct or as to any matter that came to his knowledge while sing as
such judge or magistrate. However, a judge can be questioned ren as to
judicial matters with the court's order. Moreover, a judge can
282 Law of E v i d e n c e

waive his privilege and voluntarily offer to explain his conduct as such
judge or magistrate. The privilege under Sec. 121 is also available to an
arbitrator.

PRIVILEGED COMMUNICATIONS
(SECS. 122-129)

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.

Sec. 122. Communications during Marriage4

A person cannot be compelled to disclose any communication made to him
or her during marriage by any person to whom he or she is or has been
married; nor will such communication be permitted to be disclosed
except in the following three cases, viz.,
(i) if the person who made it, or his or her representative-in-interest,
consents, or
(ii) in suits between married persons, or
(ii) in proceedings in which one married person is prosecuted for
any crime committed against the other.
(Thus, Sec. 122 prevents communications between a man and
his wife from being disclosed. This section rests on the obvious
ground that the admission of such testimony would have a
powerful tendency to disturb the peace of families, to promote
domestic broils, and to weaken, if not to destroy, that feeling of
mutual confidence which is the most endearing

Write a short note on 'Privileged communication between spouses'.

[C.LG-95; LC.II-94\
 Witnesses 283

solace of married life. Thus, the prohibition is founded on a principle of high

import which no court can relax.
The protection is not confined to cases where the communication
sought to be given in the evidence is of a strictly confidential character, but
the seal of law is placed upon all communications of whatever nature which
pass between husband and wife. It extends also to cases in which the
interests of strangers are solely involved, as well as to those in which the
husband or wife is a party on the record.
It is important to note that the protection is limited to such matters as
have been communicated 'during the marriage'. Such communication (during
subsistence of marriage) remains protected even after the dissolution of
marriage5 or when one spouse dies. But those made either before marriage or
after its dissolution are not protected (M.C. Verghese v T.J.Ponnam). Further,
the privilege is for the communication and not to be the witness. The section
says that a spouse shall not be compelled to disclose such communication
and that they shall nothe even permitted to disclose even if he or she
volunteers to do so.

Protection When Not Available: Exceptions to Sec. 1225a

The privilege admits of certain exceptions also. It is not every communication
which is exempt from disclosure. The exceptions are as followsj
(1) Acts apart fivm communications - The acts or conduct of spouses
apart from communications are not protected under Sec. 122. 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 on his
trial for murdering a neighbour for the purpose of robbing some ornaments
and then to present them to his wife. While presenting them

5. X communicated to her wife Y the whole episode as to how he misappropriated

the money from the office and obtained this property. Five years later X and Y
separated through a decree of divorce. Y married another person M. Two years
later in a case of possession of assets disproportionate to the income X was
prosecuted. Can the divorced wife of X (namely Y) be produced as witness
against X. [D.U.-
2009]
5a. What are exceptions to the privileged communication between Husband and
Wife? [D.U.-
2010]
284 Law of E v i d e n c e

to his wife he said that he had gone to the middle house (where the
deceased lived), to get them. His wife then told the court that she saw one
early morning her husband coming down the roof. He then went inside the
fodder store and had a bath. He put back the same clothes and came to her
to present the things. Held that what the husband said to his wife was not
admissible, but she could testify as to his conduct.°l
(2) Waiver of privileg - Evidence of a privileged communication can
be given by a spouse with the consent of the party who made the
communication. This is known as waiver of the privilege^
 (3) Suit or criminal proceeding between the two spouses - As the basis
of Sec. 122 is to preserve mutual confidence, it is obvious that
the section does not apply when the spouses are ranged on
opposite side.

(4) Communication made before marriage or after its

dissolution^}
(5) Proof of communication by third person - Communications or
conversations between husband and wife taking place in the
presence of a third person, or when overheard by a third person,
can be testified to by the third person (without putting any of
the spouses in the witness-box). This is so because privilege
under Sec. 122 is that of the parties to marriage, and not of
others.
Thus, if a correspondence (e.g. letter) containing communication from a
husband to wife (or vice versa) falls into the hands of a third person, it is
admissible in evidence, because this section protects the individual and
not communication. What is barred is the person himself i.e. spouses can
not be compelled to appear as witness and disclose communication; the
communication is not barred - it is the letter that discloses and not a spouse
In Queen Empress v Danoghue, ILR (1899) 22 Mad. 1, a letter containing

6. 'A' was charged for the offence of murder of his father and step-mother.
Investigations led to discovery of jewellery articles and a gandasa from the
water tank at the roof of house owned by the accused 'A' at his instance.
Expert evidence revealed matching of human blood on recovered articles and
dhoti of 'A' with that of the deceased. Besides other circumstantial evidence,
As wife stated: "I saw my husband coming down from the roof of their house
in the early hours." Whether statement of As wife is admissible in evidence?
-J C [D.U.-
2007\
Witnesses 285

a communication by the accused to his wife was seized during search of

house in the presence of wife. The letter was held admissible for she had
not put letter into the hands of authorities^
In Appu v State (AIR 1971 Mad. 194), a confession was made by
a man to his wife in the presence of other persons. The court allowed the
confession to be proved through those other personsj
While a third person overhearing a confidential communication may
testify to it, yet, as to documents, letters, etc., coming into the possession
of a third person, a distinction should obtain. Thus, if they were obtained
from the addressee spouse by voluntary delivery, they should still be
privileged (for otherwise the privilege could by collusion be practically
nullified for written communications); but if they were obtained
surreptitiously (secretly) or otherwise without the addressee's consent, the
privilege should cease.

LEADING CASE: M.C. VERGHESE V T.J. PONNAN7 (AIR

1970 SC 1876)

ln this case, the husband wrote certain letters to his wife which
 contained defamatory imputation about his wife's father. His
father-in-law brought a suit on the evidence of these letters. The
letters were passed on by the wife to her father. The Kerala High
Court rejected the evidence under Sec. 122. The Supreme Court,
however, overruled the decisional
The Supreme Court laid down the following propositions with
regard to Sec. 122:
(I) Protection conferred by Sec. 122 is limited to such
matters as have been communicated during
marriage; communication before marriage would
not be

M's daughter R was married to P. During August 1993, when R was residing
with her parents at Bombay, P wrote two letters to R from Calcutta which
contained defamatory imputations about M. M filed a complaint charging P
with the offence of defamation. P raised the plea that the letters were
inadmissible in evidence as they were expressly prohibited by law from
disclosure. Decide.
[C.LC-92/93/94]
286 Law of E v i d e n c e

protected. But privilege continues even after marriage has been dissolved
by death or divorce. (In the present case, a decree for nullity of marriage
had been passed against the husband on the ground of impotency, since
the matter reached the court).
(ii) The bar relates to the status on date when communication
was made and not on the date when evidence is sought to be
given.
(In the present case, marriage was subsisting at the time of
communication of letters and not on the date when evidence given in the
court).
(iii) The word 'communication' does not extend to
correspondence. Thus, even though a spouse is debarred
from deposing to the contents of such correspondence, the
same can be proved by a third person (wife's father, in the
present case).
(iv) Except where the spouse to whom communication is made is
a witness .ani-claim privilege (under Sec. 122), the evidence
as to communication between husband and wife is
admissible, under any other provisions of the Act or on the
grounds of public policy.
In Rumping v Dir. of Public Prosecutions (1862) 3 All ER 256, the letter
by the appellant to his wife (containing a confession about the murder
committed by him) was given by the appellant to a colleague for posting
it. After his arrest, the colleague handed over the letter to captain of the
ship, who gave it to the police. The letter was held admissible in evidence;
the crew members and captain gave evidence, but the wife was not called
as witness. In the present case, the court thus held that the letters are
admissible in evidence. The letters could not claim the benefit of Sec.
122.]
 Witnesses

287

Sec. 123. Evidence as to Affairs of State8

"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/j
(Sec. 123 protects unpublished State records from being disclosed. This
section is based on the maxim "Saluspopuli est supreme lex", i.e., regard for
public welfare isjthe hjghest law. The general rule is that the witness is bound
to tell the whole truth and to produce any document in his possession or
power, relevant to the matter in issue. However, in certain cases, the
production of official document may be injurious to larger public interest, as
for instance it may harm State's security, good diplomatic relations, etc. In
such cases the State has been given the privilege not to produce certain
documents which relate to "affairs of the State".
Sec. 123 must be read in conjugation with Sec. 162. Sec. 162 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 and the court shall
decide the matter of his objection; the court may inspect the document, unless
it refers to matters of State.)
The privilege under Sec. 123 should be claimed either by the Minister, or
his Secretary, or by Head of the Department. The usual method of claiming the
privilege is by filing an affidavit. The affidavit has to state that the document
in question has been carefully read and examined and the Department is
satisfied that the disclosure would not be in public interest. After looking at the
nature of the document, the grounds for the claim of the privilege, and the
totality of the circumstances, the court decides the question of ordering the
production or not.)
In State of Punjab v Sukbdev Singh Sodhi (AIR 1961 SC 493), the
Supreme Court has laid down the following propositions in this regard:
(i) It is a matter for the authority to decide whether disclosure would
cause injury to the public interest. However, the court

8. In certain cases the State has been given the privilege not to produce certain
documents which relate to the "affairs of the State". Discuss the law relating
to it. [C.L.C-
91]
288 LAW OF EVIDENCE

would enquire into the question whether the evidence sought to be

excluded from production relates to State affairs.

(iii) The court is bound to hold a preliminary enquiry into the character of the
document. For this pupose it may call forth clooateral evidence. In no
case, can the court inspect the socument itself.

(iv) Thus, the court cannot enquire into the possible injury to the public
interest, but the court could hold a preliminary enquiry and determine the
validity of objection.

The court, was overruled by the Supreme Court "m us \AVer_&ec»\ora.

Amur Chcmd Butali w State (AIR 19fe4 SC 1658"), Stdte of U.P. V Raj Narain (AIR 1975 SC
865), S.P. Gupta v~Union of India (AIR 1982 SC 149), and
R.K. Jain v Union of India (AIR 1993 SC 1769).

LEADING CASE: STATE OF U.P. v RAJ NARAIN "

(AIR 1975 SC 865)
In this case, 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:
(i) Foundation of law behind Sec. 123 and Sec. 162 is injury to
public interest.
(ii) Public interest which demands evidence to be
withheld must be weighed against public interest in the administration of justice
that the courts should
have the fullest possible access to all relevant materials.
When public interest outweighs the latter, evidence cannot
be admitted.
(iii) The 'confidentiality' of the matter has to be decided by the
Head of the Department. However, the
Witnesses 289

court can summon any document notwithstanding any objection

under Sec. 162 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'.
(iv) If the court is satisfied with the reasons cited in affidavit, matter
ends there.
(v) 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, i
An R.K. Jain v Union of India (AIR 1993 SC 1769), the Supreme Court
reaffirmed the above views, by observing that the court can 'see in camera' and
that no 'privilege' is available against the court (in other words, court can
examine the documents)* In this case, the appointment was in accordance with
the amended Rules. The merits of the appointee and the reasons behind the
amendment were not permitted to be examined in a public interest litigation.]

Sec. 124. Official Communications

“No public officer shall be compelled to disclose communications, made him in
official confidence, when he considers that the public interest uld suffer by the
disclosure".
This section is confined to public officers whereas Sec. 123 embraces ryone. The
court can compel the disclosure of document, if the court agrees with the officer.
Further, people have a 'right to know' how ir State is functioning; the State cannot
withhold information on matters ich have nothing to do with sovereignty or State
secrets.

Sec. 125. Information as to Commission of Offences

“No Magistrate or Public Officer shall be compelled to say whence he any
information as to the commission of any olfence, and no Revenue
290 Law of E v i d e n c e

Officer shall be compelled to say whence he got any information as to the commission
of any offence against the public revenue".
The section is intended to encourage people to give information about offences by
protecting the source of information, for otherwise, no one would like to give such
information. It is well established that the police may suppress the identity of the
informants in the interest of combating crime.

Sees. 126-129. Professional Communications

See under the Questions section.

Sec. 130. Production of Title deeds of Witness, Not a Party

According to this section, an ordinary witness i.e. a witness who is not; party, cannot be
compelled to produce - (i) his title-deeds to any property (ii) any document by which he
became the pledgee or mortgagee of am property, and (iii) any document which might
tend to criminate him. Bu he can be so compelled if he has agreed to produce any such
documen with the person seeking its production.

Sec. 131. Production of Documents or Electronic Records

This section, an extension of Sec. 130, lays down that if any person i entitled to refuse
the production of a document, the privilege or protectio of the document/electronic
record should not suffer simply because it: in the possession of another person. Thus, a
 person in possession c other person's documents (e.g. attorney, vakil) is not compellable
to produc them, unless that person (owner of documents) consents to the: production.

Sec. 132. Witness Not Excused from Answering Incriminatin Questions

Sec. 132 lays down that where a question put to a witness is relevant i the matter in
issue in any suit or in any civil or criminal proceeding, tl witness can be compelled to
answer it and he cannot be excused fro: answering it simply because the answer would
tend to criminate him
Witnesses 291

civil or criminal liability or to a penalty or forfeiture. Thus, it is not in the power of

the judge to excuse a witness from answering if the question is relevant to the issue.
The proviso to this section, however, protects the witness in an important way.
It provides that if a witness has been compelled to give an answer, his answer should
not be used to subject him to any arrest or prosecution; nor the answer can be proved
against him in any criminal proceeding.
Thus, 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." Sec. 132, however, is essentially designed not to deprive the court of the
information (solely within the knowledge of a witness) essential to its arriving a
right decision.
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 answer but he is compelled to give
answers, he is said to be "compelled" to give evidence. They suppose an objection
from the witness, which has been over-ruled by the judge, and a constraint put upon
the witness to answer particular question.
The compulsion referred to in proviso does not include the compulsion by the
general law of the land (viz. fear of punishment under Sec. 179, IPC). This is a
compulsion which acts against every witness and is inherent in the very idea of a
person, being a witness. The giving of evidence is a matter of duty and not of
compulsion.
Further, Sec. 132, Evidence Act does not apply to a statement made by a
person during an investigation under Sec. 161, Cr.P.C. A person who is interrogated
under Sec. 161 by a police officer making an investigation is not a witness.
 292 Law of E v i d e n c e

ACCOMPLICE EVIDENCE9
[SECS. 133, 114 (b)l

An accomplice is a person who has taken part in the commission of a crime - a

guilty associate or partner in crime. When an offence is committed by more
than one person in concert, every one participating in its commission is an
accomplice. He is called an approver if he is granted pardon under Sec. 306
of the Code of Criminal Procedure, 1973. An accomplice by becoming an
approver becomes prosecution witness.10 When he appears as a witness for
the prosecution against the accused person with whom he acted together in
the commission of the crime, the question arises as to what is the value of the
evidence of a former criminal turned witness. Two provisions in the Act
touch this problem.

Sec. 133. Accomplice

"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."

Sec. 114. Illustration (b)

"The court may presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars."
However, Sec. 114 also gives two instances when this does not apply -
A person of the highest character, is tried for causing a man's death by an
act of negligence in arranging certain machinery. B, a person of equally
good character, who also took part in the arrangement, describes precisely
what was done, and admits and explains the common carelessness of A and
himself.
The other instance is - A crime is committed by several persons, A, B,
and C, three of the criminals, are captured on the spot and kept apart from
each other. Each gives an account of the crime implicating

9. Write a short note on'Accomplice evidence'. [C.L.C-92]

10. Who is an Accomplice? [D.U.-2011]
Who is an Approver? [C.L C -2006]
Witnesses 293

D, and the accounts corroborate each other in such a manner as to render

previous concert highlv improbable.

No Antithesis between Sec. 133 and Sec. 11411

There is no antithesis between Sec. 133 and Sec. 114, illustration (b), because
the illustration only says that the court 'may' presume a certain state of affairs.
It does not seek to raise a conclusive presumption. Sec. 133 is a clear
authorisation to the courts to convict on the crroborated testimony of an
accomplice, but since such a witness, being criminal himself, may not always
be trustworthy, the courts are guided by the illustration appended to Sec. 114
that, if it is necessary the court should presume that he is unreliable unless his
statements are supported or verified by some independent evidence [Dagdu v
State of Maharashtra (1977) 3 SCC 268].
Sec. 133 lays down a rule of law. But Sec. 114, illustration (b) 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.

Evidentiary value of an Accomplice12

(The evidence of an accomplice should stand the test of verification at least in
main points. This is known as corroboration.
There are the following dangers in accepting the "uncorroborated
testimony" of an accomplice:-

11. How have the courts reconciled the conflict between Sec. 133 and Sec. 114(b) in
matters of approver evidence? [C.LC-95/96]
12. "An accomplice is unworthy of credit unless corroborated in material particulars".
Discuss with reference to relevant statutory provisions and case law. [D.U.-
2007/2009/2010/2011]{C.L.C.-93/94;LCII-93/95\
What is the credibility of approver's testimony? Does it require any
corroboration? [C.LC-2006]
Discuss with the help of decided cases the evidentiary value of an accomplice.
[L.C.II-2006]
Write a short note on: Credibility of accomplice evidence. [D.U.-2007]
294 Law of E v i d e n c e

(1) He participes 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.
These reasons dictate the necessity for corroboration. In fact, an approver's
evidence has to satisfy the double test: (i) his evidence must be reliable; (ii) his
evidence should be materially corroborated. 'Every person who is a competent
witness is not a reliable witness and the test of reliability has to be satisfied by
an approver all the more before the question of corroboration of his evidence is
considered by criminal courts.'
The nature and extent of corroboration of accomplice evidence must
necessarily vary with the circumstances of each case, and it is not possible to
enunciate any hard and fast rule. But the guiding rules laid down in R. y
Baskerville (1916 2 KB 658) are clear beyond controversy. They are:-
 (1) It is not necessary that there should be independent confirmation, in
every detail, of the crime related by the accomplice. It is sufficient if
there is a confirmation as to a material circumstance of the case.
(2) The confirmation by independent evidence must be of the identity of
the accused in relation to the crime. Thus, there must be confirmation
that not only has the crime been committed but that the accused
committed it.
(3) The corroboration must be by independent testimony, i.e., by some
evidence other than that of the accomplice, and therefore, one
accomplice cannot corroborate the other.
(4) The corroboration need not be by direct evidence that the accused
committed the crime; it may even be circumstantial.
Witnesses 295

In Rameshwar v State ofRajasthan (1952) SCR 370, the Supreme »urt has
confirmed the said rules. In Haroon Haji v State of Maharashtra IR 1968 SC
832), Ravinder Singh v State ofHaryana (AIR 1975 SC 856), d, Kannan Singh
v State of T.N. (AIR 1989 SC 396), the Supreme Court s reaffirmed the
decision of Rameshwar v State.
In Ravinder Singh v State ofHaryana (AIR 1975 SC 856), the accused is
charged with murder of his wife. His friend turned approver, who iclosed the
accused's intimacy with other girl. The accused had hatched :onspiracy with
the help of approver. It was held that the approver was liable and his statement
was corroborated by independent witnesses lat the accused was accompanying
the deceased in the train). Moreover, e subsequent conduct of the accused was
a true-tell-tale of his guilty ind; the real motive for the crime being illegitimate
intimacy with a girl. le court held that the approver's test is fulfilled if the storv
he relates volves him, and the 1 Vtory appears to be natural and probable
catalogue events, and'the story must implicate the accused in such a manner so
to give rise to conclusion of guilty beyond reasonable doubtj
In Suresh Chandra Bahri v State of Bihar (AIR 1994 SC 2420), the ipreme
Court re-emphasised the need for raising the presumption that e approver
evidence is untrustworthy unless corroborated.
In M.O. Shamsnddin v State of Kerala (1995) 3 SCC 351, the two ipellants
have been found guilty under the Prevention of Corruption ct and under Sec.
161 read with Sec. 120B, IPC. The Supreme Court jserved: Section 133 of the
Evidence Act lays down that an accomphce a competent witness against an
accused person. The conviction based i such evidence is not illegal merely
because it proceeds upon the icorroborated testimony of an accomplice.
However, there is a rider in ustration (b) to Sec. 114 of the Evidence Act which
provides that the >urt may presume that the accomphce is unworthy of credit
unless he corroborated in material particulars. This presumption is in the nature
' a precautionary provision incorporating the rule of prudence which is
Lgrained in the appreciation of accomplice's evidence.
Therefore, the courts should be guarded before accepting the romplice's
evidence and look for corroborating evidence. The discretion F the court upon
which the rule of corroboration rests, must be exercised i a sound and
reasonable manner. Normally the couns may not act on
296 Law of E v i d e n c e

an uncorroborated testimony of an accomplice but whether in a particular case it

has to be accepted without corroboration or not would depend on an overall
consideration of the accomplice's evidence and the facts and circumstances.
However, if on being so satisfied the court considers that the sole testimony of the
accomplice is safe to be acted upon, the conviction can be based thereon. Even if
corroboration as a matter of prudence is needed it is not for curing any defect in
the testimony of the accomplice or to give validity to it but it is only in the nature
of supporting evidence making the other evidence more probable to enable the
court to satisfy itself to act upon it.
The court held that in a case of bribe, the person who pays the bribe and
those who act as intermediaries are the only persons who can ordinarily be
expected to given evidence about the bribe and it is not possible to get absolutely
independent evidence about the payment of bribe. However, it is cautioned that
the evidence of a bribe-giver has to be scrutinized very carefully and it is for the
court to consider and appreciate the evidence in a proper manner and decide the
question whether a conviction can be based upon it or not in those given
circumstances. In the present case, it was held that a pers. n who plays the role of
the bribe-giver in a trap is not an accomplice. He is only an interested witness.

LEADING CASE: NARAYAN CHETANRAM CHAUDHARY v STATE

OF MAHARASHTRA [(2000) 8 SCC 457]
In this case, the main question of controversy was whether the evidence
provided by the accomplice (approver) is acceptable against the other co-
accused or not. It was held that once corroboration in material particulars
is found, the testimony of an accomplice can be the basis of conviction.
The court observed: Section 133 of Evidence Act provides that an
accomplice is a competent witness against an accused person and the
conviction is not illegal merely because it proceeds on uncorroborated
testimony of the accomplice. No distinction is made between an
accomplice who is not an approver. As both have been treated alike, the
rule of corroboration applies to both.
Witnesses 2

Accomplice's evidence is taken on record as a necessity in cases

where it is impossible to get sufficient evidence of a heinous crime unless
one of the participators in the crime discloses the circumstances within his
knowledge on account of tender of pardon. According to Taylor
"accomplices who are usually interested, and always infamous witnesses,
and whose testimony is admitted from necessity, it being often impossible,
without having recourse to such evidence, to bring the principal offenders
to justice."
This court in various cases held that:
(1) The basis of tender of pardon is not the extent of the
culpability of the person to whom pardon is granted, but to
prevent the escape of the offenders from punishment in
heinous offences for lack of evidence. So there is no
 objection against tender of pardon to an accomplice simply
because in his confession, he does not implicate himself to
the same extent as the other accused [Suresh Chandra Sahri
v State of Bihar (1995) Supp. SCC 80]
(ii) The evidence of the approver be shown to be of a reliable
witness.
(iii) Material particulars of the approver's statement should be
corroborated, as he is a self confessed traitor (Jnanendra
Nath Ghose v State ofW.B. AIR 1959 SC 1199).
(iv) The combined effect of Sec. 133 and Sec. 114, illustration (b)
is that an accomplice is competent to give evidence but it
would be unsafe to convict the accused upon his testimony
alone. Though conviction cannot be said to be illegal but as a
matter of practice the court will accept the evidence with
material particulars [Bhiva Doulu Patil v State of
Maharashtra AIR 1963 SC 599].
The court, in the present case, further observed: Testimony of an accomplice
is evidence under Sec. 3 of the Act and has to
298 Law of Evidence

be dealt with as such. The evidence is of a tainted character and as such

is very weak, but it is evidence and may be acted upon. For
corroborative evidence the court must look at the broad spectrum of the
approver's version and then find out whether there is other evidence to
corroborate and lend assurance to that version. The nature and extent of
such corroboration may depend upon the facts of different cases and it
need not be in the form of ocular testimony of witness and may be in the
form of circumstance. It must be independent and not vague or
tinreliable.
No time limit is provided for recording of statement of
approver and delay is one of the circumstances to be kept in
mind as a measure of caution for appreciating the evidence of
the accomplice. Human mind cannot be expected to be reacting
in a similar manner under different situations. Any person accused of an offence,
may, at any time before the judgment is
pronounced, repent for his action and volunteer to disclose the
truth in the court. Repentance is a condition of mind differing
from person to person and from situation to situation. The delay
in granting the pardon may be a just criticism, where it is found
that the pardon had been tendered at the end of the trial and
in effect was intended to fill up the lacuna in the prosecution
case.]
In Jasbir Singh v Vipin Kumar (AIR 2001 SC 2734), the court observed
that the evidence of an approver does not differ from the evidence of
any other witness except that his evidence is looked upon with great
suspicion. But the suspicion may be removed and if the evidence of the
approver is found to be trustworthy and acceptable then that evidence
might well be decisive in securing a conviction.
 In K. Hashim v State of T.N. (2005) 1 SCC 237, the Apex Court
observed: In reference to the requirement of corroboration, the word
used (in Sec.135) is "may" and not "must", and no decision of a court
can make it "must". It ultimately depends upon the cotirt's view as to the
credibility of the accomplice's evidence. If it is found credible and cogent, the
court can record a conviction on its basis even if uncorroborated. Corroboration
in material particulars means that there should be some additional or independent
evidence:
Witnesses 299

(3) rendering it probable that the story revealed by the accomplice is true and
that it is reasonably safe to act upon it;
(ii) identifying the accused as one of those, or among those, who committed
the offence;
(iii) showing the circumstantial evidence of his connection with the crime,
though it may not be direct evidence; and
(iv) ordinarily the testimony of one accomplice should not be sufficient to
corroborate that of the other.
The court further observed that the reasons why corroboration has been
isidered necessary are that:
(1) he has been criminal himself, and, therefore, his testimony should not
carry the same respect as that of a law-abiding citizen;
(2) he has been faithless to his companions and may be faithless to the court
because he has motive to shift the guilt from himself to his former
companions; and
(3) if he is an approver, he has been favoured by the State and is therefore,
likely to favour the State.
The fact that the testimony of an accomplice was found to be not :eptable in
respect of one of the accused persons for want of lependent corroboration
should not be taken to cast a doubt upon her lability as a witness in respect of
other accused persons [Ramadhar Basu >tate ofW.B. AIR 2000 SC 908]. In
Dinah v State o/Rajasthan (2006) iCC 771, the Supreme Court has again
emphasized that the victim of )e is not an accomplice. Corroboration is not the
sine qua non for nviction in a rape case. To insist upon corroboration in the
Indian ting amounts to adding insult to injury.

Who is Not an Accomplice

The following classes of persons are not accomplices:-
(i) When a person, under threat of death or other form of pressure which he is
unable to resist, commits a crime along with others, he is not a willing
participant in it, but victim of such circumstances.
300 L a w of E v i d e n c e

(ii) A person who merely witnesses a crime, and does not give information of
it to any one else out of terror, is not an accomplice,

(iii) Detectives, paid 'informers' and 'trap or decoy witnesses' (to trap the
accused) are not accomplices. A court may convict on an uncorroborated
testimony of trap witnesses if it is satisfied of their truthfulness (Prakash
Chand v State AIR 1979 SC 400).

It is always for the judge to decide whether it is safe to rely and act upon a
trap-witness. His partiality for the prosecution is a factor which can hardly be
ignored. The character, position in life, and the social standing of the witness
would go a long way in helping the judge to appreciate his evidence.

Confession of Co-accused v Accomplice Evidence13

Sec. 30. Confession of co-accused14 - When more persons than one are being
tried jointly for the same offence, and a confession made by one of suet
persons affecting himself and some other of such persons is proved, the
court may take into consideration such confession as against such othei
person as well as against the person who makes such confession.

Illustrations
(a) A and B are jointly tried for C's murder. It is proved that A said "B
and I murdered C". The court may consider the effect o the
confession against B.15 .

11. «

13. What is the difference between the confession of a co-accused and tti
testimony of an accomplice? [LC.//-93/200I
14. How and under what circumstances is the confession of a co-accuse
relevant? Discuss the applicable position of law with decided cases.
[D.U.-200
[Note: Also see under the Questions section.]
15. In a case of child rape, the accused 'A makes a statement, whereby he accep
his guilt. He also describes the involvement of 'B' in the whole episode. Is tl
statement given by 'A relevant and can it be used against 'B' equally wh<
both of them are co-accused in the same offence? [D.U.-
20C

'*
Witnesses 301

(b) A is on trial for C's murder. There is evidence to show that C was
murdered by A and B, and that B said: "A and I murdered C". This
statement may not be taken into consideration by the court against
A as B is not being jointly tried.
It may be noted that the confession of co-accused must implicate himself
well as some other accused. Further, the confession made at a previous al
will not be relevant. When they are jointly tried but for different fences
(e.g. abduction and rape), then also the confession will be irrelevant, ill
further, the confession must not have been made under force or fraudj
The confession of a co-accused is not treated in the same way as e
testimony of an accomplice:
(1) The confession of co-accused is not "evidence", as it is not
recorded on oath, nor it is given in the presence of the accused
and nor its truth can be tested by cross-examination.
The accomplice evidence is taken on oath and tested by cross-
examination; a higher probative value is thus given to it.
(2) The confession of co-accused must only be taken into
consideration along with other evidence in the case, and it cannot
alone form the basis of a conviction.
A conviction is not illegal merely because it proceeds upon the
Orcorroborated testimony of an accomplice.
(3) The philosophy of Sec. 30 is that confession of co-accused
affords some sort of sanction in support of the truth of his
confession against others and himself.)
An accomplice evidence is also not free from criticism. "An approver is
most unworthy friend, if at all, and he, having bargained for his nmunity,
must prove his worthiness for credibility in court". However, le Supreme
Court has taken care of it by insisting on corroboration. In lany cases of
prosecution of members of organised crime, an approver id few co-
accused may be the only evidence and it is obvious that such ersons would
never be convicted if Sec. 133 was not there in the statute ook/)
'etracted evidence and approver i evidence - In the case of the person
confessing rho has resiled from his statement i.e. retracted confession,
general
302 Law of E v i d e n c e

corroboration is sufficient, while an accomplice's evidence should be

corroborated in material particulars. When compared to a retracted
confession and to an approver's evidence, 'dying declaration' stands on a
very high level. Corroboration is needed in the two cases but in the case of
dying declaration it cannot be laid down as an absolute rule that a dying
declaration cannot form the sole basis of conviction unless corroborated.!
. Evidence of prosecutrix - The evidence of a prosecutrix (victim of rape)
cannot be treated as the evidence of an accomplice requiring corroboration.
Like the evidence of any other injured witness, the evidence of a girl or
woman raped or molested should bear weight. The Evidence Act nowhere
says that her evidence cannot be accepted unless it is corroborated in
material particulars {State of Maharashtra v C.K. Jain AIR 1990 SC 658)j

FURTHER QUESTIONS

Q.1. (a) A, a client, says to B, an attorney - "I wish to obtain possession

of property by use of forged deed on which I request you to
 sue". Is the communication made by A barred by law or
expressly prohibited by law from disclosure? Decide.
[D.U.-2011][C.LC.-92/2006]
A, a client, says to B, an attorney - "I have committed forgery
and I wish you to defend me". Is this statement protected from
disclosure? [D.U.-2010]

A communication between a lawyer and his client is privileged

subject to certain conditions. Explain. [D.U.-
2009]

(b) A had shared all his business secrets with his wife during the
subsistence of their marriage. The communications have
been ta^ed by the wife. After their divorce, the wife becomes
friendly with As business rivals who have filed cases for
conspiracy and cheating against A. Can the former wife appear
in the witness box to testify to the husband's earlier
communications? Will the bar of Sec. 122 apply in case the
former wife gives the cassettes containing the communications
to As business rivals for the purpose of establishing conspiracy
and cheating charges? [C.LC.-96]
Wi t n es s es 303

A.l. (a) Professional Communications (Sees. 126-129)

A professional communication means a confidential communication
between a professional (e.g. lawyer) and his client made to the former in
the course, and for the purpose, of his employment as such adviser. The
privilege attaching to confidential professional disclosures is confined to
the case of legal advisers, and does not protect those made to clergymen,
doctors, etc. Further, no privilege attaches to communication to an attorney
or pleader consulted as a friend and not as an attorney or pleader.)
The main ingredients of Sec. 126 are:-
No barrister, attorney, pleader or vakil shall at any time be permitted,
unless with his client's express consent, to -
(i) disclose any communication made to him by or on behalf of his
client, or any advise given by him to his client in the course and
for the purpose of his employment;
(ii) state the contents or conditions of any document with which he
has become acquainted in the course and for the purpose of his
employment.
(iii) disclose any advice given by him to his client in the course and for
the purpose of such employment.
Provided that nothing in this section shall not protect from disclosure -
(1) .any such communication made in furtherance of any illegal
purpose,
(2) any fact observed by barrister, etc. in the course of employment
showing that any crime or fraud has been committed since the
commencement of his employment.
It is immaterial whether the attention of such barrister, etc. 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
employment has ceased, i

Illustrations
. (a) A, a client, says to B, an attorney - "I have committed forgery and I
wish you to defend me". As the defence of man known
304 Law of E v i d e n c e

to be guilty is not a criminal purpose, this communication is

protected from disclosure.
(b) A, a client, says to B, an attorney - "I wish to obtain possession of
property by use of forged deed on which I request you to sue".
This communication, being made in furtherance of a criminal
purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to
defend him. In the course of the proceeding, A observes that an
entry has been made in A's account-book, charging A with the sum
said to have been embezzled, which entry was not in the book at
the commencement of his employment. This being a fact observed
by B in the course of his employment, showing that a fraud has
been committed since the commencement of the proceedings, it is
not protected from disclosure.
The principle underlying Sec. 126 is that if communications to a legal
adviser were not privileged, a man would be deterred from fully disclosing
his case, so as to obtain proper professional aid in a matter in which he
lslike'ly to be thrown into litigation. Every person, however guilty, is
entitled to a fair trial - which involves the service of a counsel and counsel
cannot defend his client unless he knows the whole truth. In the absence of
privilege under Sec. 126, it would have been difficult for any body to get
the best professional advice.
The provisions of Sec. 126 apply to interpreters and the clerks or
servants of barristers, pleaders, attorneys and vakils (Sec. 127). They are
also likely to come to know of the confidential information relating to
litigation. A paid or salaried employee who advises his employer on all
questions of law and relating to litigation must get the same protection of
law.
It is not every communication made by a person to his legal adviser
that is privileged from disclosure. The privilege extends only to
communications made to him confidentially and with a view to obtaining
professional advise [Franji Bhicaji v Mohan Singh Dhan Singh (1893) 18
Bom 263]. The prohibition extends to all communications made in

16. A question based on the facts of this illustration. [DU.-

2007]
Witnesses 305

confidence pertaining to any pending or contemplated case or for the

purpose of soliciting professional advice. ln D. Veerasekaran v State of
iH£il992 Cr LJ 2168 (Mad.)], the advice of an advocate to his client to
remain absconding was not allowed to be citedjin the prosecution of the
advocate under the TADA Act, 1987| It was held to be a professional
communicationjand not an "abetment" under the TADA.

Exceptions to Sec. 126

‘Explanation' to Sec. 126 embodies the rule 'once privileged always
privileged'. Thus, if the communication is made during the existence of
the relationship the privilege does not get terminated by the termination of
the litigation or the death of the parties. The privilege under Sec. 126 is
subject to few exceptions:-
(1) Communication made infitrtherance of illegal purpose {proviso 1) -
Such communications are not protected. A client consulted a
lawyer for the purpose of drawing up a bill of sale which was
alleged to be fraudulent. The communication was held to be not
privileged, for the consultation was for an illegal purpose [see
illustration (b)].
(2) Crime or fraud since employment began {proviso 2) - If a lawyer
finds in the course of his employment that any crime or fraud has
been committed since the employment began, he can disclose
such information [see illustration (c)]. It is based on the rule that
no private obligation can dispense with that universal one which
lies on every member of society to disclose every design, which
may be formed contrary to laws of society, to destroy the public
welfare.
(3) Disclosure with express consent of client -waiver of privilege.
This section has been enacted for the protection of the client and
not of the lawyer. The lawyer is therefore bound to claim
privilege unless his client waives it.
(4) Information falling into hands of third person - If the
communication is overhead by a third person, he may be
compelled to disclose it. The prohibition works against the
lawyer, but not against any other person.
306 Law of E v i d e n c e

(5) Lawyer's suit against client - If the lawyer himself sues the client
for his professional services, he may disclose so much of the
information as is relevant to the issue.
(6) Joint interest - No privilege attaches to communication between
solicitor and client as against persons having a joint interest with
the client in the subject matter of communication e.g. as between
partners, a company and its shareholders.
(7) Documents already put on record - No privilege is available in
respect
of such documents.

Sec. 128. Privilege Not Waived by Volunteering Evidence

Sec. 128 lays down that if the party making the communication under Sec.
126 gives evidence (at his own instance or otherwise) of the matter
covered by the communication, that does not amount to a waiver of
privilege. Even if such party calls the lawyer as a witness, it will not
amount to a "consent to disclosure.' But if he questions the lawyer on the
very matter of the communication that will amount to consent and by
reason of it the lawyer can disclose the communication.

Sec. 129. Confidential Communication with Legal Advisers17

The bar of Sec. 126 is partially lifted by Sec. 129 - No one shall be
compelled to disclose to the court any confidential communication which
has taken place between him and his legal adviser; but when a client offers
himself as a witness, he may be compelled to disclose such communication
as may appear to the court necessary to be known in order to explain any
evidence which he has given, but no others.
It may be noted that Sec. 126 prohibits a lawyer from disclosing
matters which have come to his knowledge from his client for the
professional purpose. Sec. 129, on the other hand, places the client beyond
the range of compulsion as to matters which have passed between him and
his professional legal adviser.

17. Comment upon the confidential communications with legal

 Witnesses 307

Declsion of the case in question

Sec. 126 does not protect communications made in furtherance of an legal
purpose, according to proviso (1). Obtaining possession of property y a
forged document is a crime [See illustration (b)]. Thus, communication lade
by A is not protected from disclosure.
(b) In the case in question, the former wife cannot appear in the witness
box to testify; nor can she give in evidence the cassettes containing
the communications, as such communications were made during the
subsistence of marriage (See M.C. Verghese v T.J. Ponnan in the
text).

Q.2. (a) In a murder trial, the approver's evidence is corroborated only by:

(i) An earlier confession of the approver himself, in which he has

narrated the crime story to the magistrate.

(ii) Confession of a co-accused who was arrested along with the

approver and others. Is this enough corroboration?

It is on the record that all the accused were arrested and

detaned separately and that they had no chance of meeting
each other before the trial. [C.LC-95/96]

(b) A, B and C are alleged to have committed the murder of X,

a political opponent. C did the actual killing and was arrested
on the spot with B. C later turns an approver and deposes
before the court that he and B committed the murder in
pursuance^ of a plan to which both A and B were a party.
Discuss the legality and desirability of A and B's conviction on
the basis of C's testimony. [C.LC.-91]
A.2. (a) Accomplice Evidence (Sec. 133)
'or the legal provisions, see the text. The present problem is"based on the
allowing case:
 308 Law of E v i d e n c e __» ..,»■

LEADING CASE: BHUBONI SAHU V EMPEROR

(AIR 1949 PC 257)
In this case, eight persons were prosecuted for a murder; four
of them were acquitted. Of the remaining, one appealed to the
Privy Council. The evidence against the appellant consisted of (a)
evidence of an accomplice who had taken part in the murder
and had become an.approver, (b) the confession of another accused
person implicating himself and the appellant, and (c) the recovery
of a cloth which the deceased was wearing and a khantibadi (an
instrument for cutting grass) in circumstances which were taken to
verify the evidence of the accomplice.
The appellant was acquitted by the court. The court
observed: A combined reading of Sec. 133 and illustration (b) to
Sec. 114 makes it clear that whilst it is not illegal to act on an
uncorroborated evidence of an accomplice, it is a rule of prudence
so universally followed as to amount almost to a rule of law that
it is unsafe to act on the evidence of an accomplice unless it is
corroborated in material respects so as to implicate the accused. |
The corroboration must be not only with regard to the
occurrence, but also as against each of the accused. An accomplice
cannot corroborate himself.JThe previous statement of approver
(even recorded under Sec. 164, Cr.P.C.) cannot be used to
corroborate himself. A tainted evidence does not lose its taint by
repetitionjThe danger of acting on accomplice evidence is not
merely that the accomplice is on his own admission a man of
bad character...., the real danger is that he is telling a story which
in its general outline is true, and it is easy for him to work into
the story matter which is untrue. He may implicate ten people
in an offence, and the story may be true in all its details as to
oight of them, but untrue as to the other two, whose names have
been introduced because they were enemies of the approver.
This tendency to include the innocent with the guilty is particularly
prevalent in India. The only real safeguard against the risk of
condemning the innocent with the guilty lies in insisting on
independent evidence which in some measure implicates each accusedj
Witnesses 309

The court should be slow to depart from the rule of caution which requires
some independent evidence implicating the accused person. The evidence of one
accomplice cannot be used to corroborate the testimony of another accomplice. In
the present case, the discovery of the cloth and khantibadi could not corroborate
the story held out by the accomplice because the discovery of cloth at the
suggestion of the accomplice did not show that it was put there by the appellant
and the recovery of a khantibadi from him was not an unusual thing (particularly
one which was not blood-stained), for, a farmer is likely to possess it.

As to the confession of co-accused under Sec. 30, it can be taken

into consideration by the court. Illustration (b) to Sec. 114 also says
so. In the present case, the court thus held that as thejopportunity of
previous concert could not be ruled out, and there is no independent
evidence corroborating the accomplice evidence, the appellant is to be
acquitted.
This tendency to include the innocent with the guilty is
particularly prevalent in India. The only real Safeguard against the
risk of condemning the innocent with the guilty lies in insisting on
independent evidence which in some measure implicates each
accused. The court, where there is no opportunity of previous concert,
can consider confession of co-accused.
In a later case, Haroon Haji v State of Maharashtra (AIR
1968 SC 832), where there was no opportunity of previous
concert the conviction of the accused was upheld. Thus if several
accomplices give evidence (identical version) implicating the
accused, the court may act on it if it is satisfied that there was
no opportunity for prior concert. However, such confession must
inspire confidence both in its content and in manner and
circumstances of its making e.g. all accused were detained
separately and they had no chance of meeting each other before
the trial.
InState of T.N. v Suresh (AIR 1998 SC 1044), it observed: "The
law is not that the evidence of an accomplice deserves outright
rejection if there is no corroboration. What is required
310 Law of E v i d e n c e

is to adopt great circumspection and care when dealing with the evidence of
an accomplice". The fact that the testimony of an accomplice was found to
be ncft acceptable in respect of one of the accused persons for want of
independent corroboration should not be taken to cast a doubt upon her
reliability as a witness in respect of other accused persons (Ramadbar Basu
v State of W.B. AIR 2000 SC 908).

Decision of the case in question

(i) The testimony of an approver must be necessarily corroborated by independent
evidence. The earlier confession of the approver before a magistrate is not an
independent evidence, thus cannot be used for corroboration,
(ii) Confession of co-accused can be considered by the court, where there is no
opportunity of previous concert. As it is so in the present case, the confession of co-
accused can be used for corroboration,
(b) Now it is accepted rule of law that conviction is not made_on the basis of
uncorroborated testimony of an approver. Thus, if A and B are to be convicted, C's
testimony must be corroborated in material particulars by independent evidence.
 11
Examination Of Witnesses

Sec. 134. Number of Witnesses (Testimony of Sole Witness whether

Reliable?)
"No particular number of witnesses shall in any case be required for the proof
of any fact." How many witnesses are necessary for the proof of a fact is
wholly left to the judgment of the court. As a general rule, a court can and may
act on the testimony of a single witness, though uncorroborated. One credible
witness outweighs the testimony of a number of other witnesses of indifferent
character [Chacko v State of Kerala (2004) 12 SCC 269]. Sec. 134 marks a
departure from the English law on this point.
"The public are generally reluctant to come forward to depose before
the court. It is, therefore, not correct to reject the prosecution version only on
the ground that all witnesses to the occurrence have not been examined. Nor is
it proper to reject the case for want of corroboration by independent witnesses
if the case made out is otherwise true and acceptable" [State ofU.P. v Anil
Singh AIR 1988 SC 1998].
The Supreme Court has in a number of cases sustained convictions on
the basis of the testimony of a sole witness. It has opined that it is the quality
(veracity) and not quantity of evidence that matters. The testimony of single
witness if it is straightforward, cogent and if believed is sufficient or wholly
reliable to prove the prosecution case, the conviction can be based on it. The
sole witness whose testimony was neither consistent nor corroborated by
medical evidence, other circumstances also showing his

[311]
312 Law of E v i d e n c e

unreliability, conviction on such testimony could not be sustained. The

infirmity in the testimony of the sole eyewitness, if of minor nature, could be
ignored [Badri v State ofRajasthan (1976) 1 SCC 447; Jayararn Shiv Tagore
v State of Maharashtra AIR 1991 SC 1735; Chaudhari Ramjibhai v State of
Gujarat (2004) 1 SCC 184].
The court cannot be asked to insist upon corroboration by other witnesses
particularly where the time and place of occurrence exclude the possibility of
the presence of any other witness. However, sometimes the nature of the
testimony of the witness itself requires, as a rule of prudence, the corroboration,
viz. in the case of a child witness, or a witness who is accomplice or of an
analogous character. In cases of rioting, etc. it would be prudent to insist upon
at least two reliable witnesses to testify to the participation of a particular
accused person. Where an offence involves a large number of offenders and
victims, a conviction can be sustained only if it is supported by two or three or
even more witnesses [Wakil Singh v State of Bihar AIR 1981 SC 1392]. In
Mohd. Khalid v State of West Bengal (2002) 7 SCC 334, the Supreme Court
held that, normally, the prosecution's duty is to examine all the eyewitnesses the
selection of whom has to be made with due care, honestly and fairly. The
witnesses have to be selected with a view not to suppress any honest opinion,
and due care has to be taken that in selection of witnesses no adverse inference
is drawn against the prosecution. However, no general rule can be laid down
that each and every witness has to be examined even though his testimony may
or may not be material. The most important factor for the prosecution being that
all those witnesses strengthening the case of the prosecution have to be
examined; the prosecution can pick and choose the witnesses who are
considered to be relevant and material for the purpose of unfolding the case of
the prosecution. It is not the quantity but the quality of the evidence that is
important. In the case at hand, if the prosecution felt that its case has been well-
established through the witnesses examined, it cannot be said that,non-
examination of some persons rendered its version vulnerable [State of MP. v
Dharkole (2005) SCC (Cri.) 225].
Evidence is weighed and not counted. Thus, convictions can be based
on the evidence of a single eyewitness if otherwise found reliable [Chacko v
State of Kerala AIR 2004 SC 2688]. Similarly, as held in Rang
 E x a m i n a t i o n of Witnesses 313

Bahadur Singh v State o/U.P. (2000) 3 SCC 454, even though eyewitnesses
Lave been examined the non examination of a person whose testimony nay
destroy their veracity would cast a doubt on the prosecution case.
In Joseph v State of Kerala AIR 2003 SC 507, a conviction on the iasis
of a solitary witness was held to be not proper, though he was tijured in the
incident but his statements were in conflict with medical vidence and the
other evidence. He was also not believable in other espects.

Sec. 135. Order of Production and Examination of Witnesses

According to Sec. 135, 'the order in which witnesses are to be produced nd
examined shall be regulated by the law relating to civil and criminal
irocedure respectively and, in the absence of such law, by the discretion if the
court'.
Order XVIII of C.P.C. and the Chapters XVIII, XX, XXI, XXII nd
XXVIII of Cr.P.C. deal with the manner of the examination of witnesses. In
civil cases, the party who has the right to begin i.e. on whom he burden of
proof lies examines his witnesses first. In criminal cases, the irosecution has
to examine its witnesses first.
Primarily it is lawyer's privilege to determine the order in which the
witnesses should be produced and examined. The order is to be decided >y
the party leading his evidence. However, Sec. 135 gives the court a tower to
dictate the order in which the witnesses may be produced.
Exclusion of Witnesses from Courtroom - The witnesses should be examined
one-by-one and when a witness is being examined, other witnesses to be
xamined afterwards must not be allowed to remain in the courtroom. If .
witness remains so, his examination cannot be refused; however, a note s to
be made to the extent that he was present in the courtroom when nother
witness was being examined.

Sec. 136. Judge to Decide as to Admissibility of Evidence

When either party proposes to give evidence of any fact, the Judge may sk
the party proposing to give the evidence in what manner the alleged act, if
proved, would be relevant, and the Judge shall admit the evidence f he thinks
that the fact, if proved, would be relevant, and not otherwise."
314 Law of E v i d e n c e

A Judge has been so empowered in order that the proof may be

confined to relevant facts. The court must, at the time when the evidence is
tendered, decide whether or not it is admissible. A Judge may allow the
evidence to be placed on the record provisionally, and subject to objection, in
cases where that course would ultimately save time. But the question of
admissibility is to be decided after the counsel has been given an opportunity
to address the court on the point. A party seeking to put a document in
evidence must show the section or provision under which the document is
admissible.
Sec. 136 also empowers the court to control the sequence of the
production of evidence in the case where the proof of one fact is dependent on
the proof of another fact. In such cases, the other fact should be proved before
the evidence of the first fact is offered. Thus, if a person wants to prove a
dying declaration he must prove that the person whose declaration it is
supposed to be, is dead [Illust. (a)]. Similarly, if a party wants to give the
secondary evidence of a document on the ground that he has lost the original,
he should first prove the loss of the original [Illust. (b)]. However, in order to
assure the flexibility of the procedure, the court may allow the evidence of the
first fact without proof of the second if the party undertakes to prove the
second at a subsequent stage.
Sec. 136 further lays down that where the relevancy of one alleged fact
depends upon the proof of another fact, the court may allow the first fact to
be proved without proof of the second and may require the second fact to be
proved subsequently. Where, for example, it is sought to be proved that the
stolen property was recovered from the possession of the accused, but the
accused denies it. Logically, it should first be proved that the property in fact
recovered was one that was stolen. But the court may allow the recovery to
be proved before the identity of the property is established [Illust. (c)J.
It is proposed to prove a fact (A) which is said to have been the cause
or effect of a fact in issue. There are several intermediate fact; (B, C and D)
which must be shown to exist before the fact (A) can b< regarded as the
cause or effect of the fact in issue. The Court may eithei permit A to be
proved before B, C and D is proved, or may requin proof of B, C and D
before permitting proof of A [Illust. (d)].
Examination of W i t n e s s e s 315

Sec. 137. Examination-in-Chief, Cross-Examination, Re-

Examination1
The testimony of a witness is recorded in the form of answers to questions
put to him. Witnesses are not permitted to deliver a speech to the court. This
way, their testimony can be confined to the fact relevant to the issue. Such
questioning of the witnesses is called his examination.
According to Sec. 137, 'the examination of a witness by the party who
calls him shall be called his examination-in-chief; 'the examination of a
witness by the adverse party shall be called his cross-examination'; and, 'if
the party who has called a witness seeks to question him again after the
cross-examination that is known as re-examination.'
Examination-in-chief: When a witness appears before the court, he is given
oath or affirmation; his name and address is taken down. Then the party
who calls him, examine him to elicit the truth and to prove the facts which
bear upon the issue in favour of that party. This is called 'examination-in-
chief'. It may be noted that 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. The purpose of 'cross-examination' is to expose the truth about the
testimony of the witness. The object of the cross-examination is threefold:
First, to elicit from an adverse witness something in your favour; second, to
destroy or weaken the force of what the witness has said against you, and
third, to show from the present attitude of the witness or from his past
experience that he is unworthy of belief in whole or in part.
The lawyer seeks to discover the flaws, if any, in the testimony of the
witness and also to unmask perjury by the method of cross-examination.
Opportunity to cross-examine a witness must be provided to the party. A
tenant who wanted to cross-examine the old landlady allowed to do so if he
could arrange for travel [Pyarelal v Devi Shanker AIR 1994 M.P. 115].

1. Explain the scope of examination-in-chief, cross-examination and re-examination

under the Indian Evidence Act. State briefly their objects.
316 Law of E v i d e n c e
Re-examination: The party who called the witness may, if he likes and if it be
necessary, 're-examine' him. The purpose of it is the explanation or clarification of
the expressions used by the witness in cross-examination.

Where the prosecution failed to submit any clarification through

reexamination, benefit of doubt to go to defence [Ramsewak v State ofM.P. (2004)
11 SCC 259]. In Anil Sbarma v State ofjharkband AIR 2004 SC 2294, held that a
prayer for an order of re-examination has to be consulted objectively. The prayer
on behalf of the accused for reexamination of a witness was rejected twice by the
trial court. It was also dealt with elaborately by the High Court. Thus it obtained
finality. The Supreme Court refused to interfere.

Sec. 138. Order of Examination

"Witnesses shall be first examined-in-chief, then (if the adverse party so
desires) cross-examined, then (if the party calling him so desires) re-
examined.
The examination and cross-examination must relate to relevant facts, but the
cross-examination need not be confined to the facts to which the witness
testified on his examination-in-chief. Direction of re-examination: 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."
The following important points may be noted:
(i) cross-examination can extend to all the relevant facts, whether touched in
the examination-in-chief or not.
(ii) A witness cannot be thrown open to cross-examination unless he is
first examined-in-chief. Where the prosecution did not examine its
witness and offered him to be cross-examined, held that this amounted to
abandoning one's own witness. Such an approach seriously affected the
credibility of the prosecution case [Sukhwant Singh v State of Punjab
AIR 1995 SC 1601].
(iii) Effect of not cross-examining: When a fact is stated in examination-
in-chief and there is no cross-examination on that point, naturally
Examination of Witnesses 317

it leads to the inference that the other party accepts the truth of the
statement.
But there are several exceptions to this rule: (i) where the witness had notice
before hand, (ii) where the story itself is of an incredible or romantic
character, (iii) where the non cross-examination is from the motive of
delicacy, (iv) where counsel indicates that he is not cross-examining to save
time, and (v) where sevefal witnesses are examined on the same point, all need
riot be cross-examined. Further, if the oral testimony of a witness is on the
face of it unacceptable, courts are not bound to accept it merely because there
was no cross-examination SJuwar Singh v State of M.P. AIR 1981 SC 373].
 (iv) A cross-examination follows upon the examination-in-chief, unless the
court, for some reason, postpones it. The court may permit the
person who calls a witness to cross-examine him under some
circumstances.
(v) If a witness after being examined in chief does not appear to subject
him to cross-examination his evidence become valueless [Gopal
Sarvan v Satya Narayan AIR 1989 SC 1141].
(vi) A co-defendant in a case can be cross-examined by another co-
defendant when their interests are adverse to each other.
(vii) The proper limit of re-examination is to confine it to an explanation of
the matters dealt with in cross-examination. If the re-examination
introduces new matter, the adverse party will have the right to cross-
examine the witness over that new matter.
(viii) An order of re-examination can be made by the court on an
application by a party. It is not restricted to the court's own motion.
Re-examination of witness is not confined to clarification of ambiguities a-
ising in cross-examination. New matter can be elicited with the permission of
the court and court must be liberal in granting such permission. Any number of
questions can be asked in re-examination [Rammi v State of M.P. (1999) 8
SCC 649].
318 Law of Evidence

Sec. 139. Cross-Examination of Person called to Produce a

Document
"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."
A person may be summoned to produce a document without being
summoned to give evidence. Such witnesses will not be cross-examined unless
and until they give some oral statement. Where the wife of a partner was called
upon to produce the deed of dissolution of the firm, she was not permitted to be
examined as a witness [Parmeshwari Devi v State AIR 1977 SC 403].

Sec. 140. Witnesses to Character

"Witnesses to character may be cross-examined and re-examined". A witness who
appears to give evidence of a party's character may be examined-in-chief and
may also be cross-examined and re-examined. The evidence of character is meant
to assist the court in estimating the value of evidence brought before the court
through the mouth of a witness.

Sec. 141. Leading Questions2

"Any question suggesting the answer which the person putting it wishes or
expects to receive is called a leading question."

Sec. 142. When They Must Not be Asked

"Leading question 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.
The Court shall permit leading questions as to matters which are
introductory or undisputed, or which have in its opinion, been already sufficiently
proved."

2. What are leading questions? Who can put them? Illustrate your answer.
E x a m i n a t i o n of Witnesses 319
Sec. 143. When They May be Asked
"Leading questions may be asked in cross-examination."
A 'leading question' is one which suggests to the witness the answer
which it is desired he should give (i.e. the question carry an in-built answer in
it). A question is leading one when it indicates to the witness the real or
supposed fact which the examiner expects and desires to be confirmed by the
answer.
Thus, the following are the instances of leading questions: Is not your
name so and so? Do you not reside in such and such place? Are you not in the
service of such and such a person? All these questions put the answers in the
mouth of the witness and all that he has to do is to throw them back. Thus, a
question - "where do you live" is not a leading question. It may be noted that
the leading questions are by no means limited to those which may be
answered in 'yes' or 'no'.
Leading questions cannot ordinarily be asked in examination-in-chief or
re-examination. The purpose of an examination-in-chief is to enable the
witness to tell to the court by his own words the relevant facts of the case. If
leading questions were permitted, the lawyer questioning him would be able to
construct through the mouth of the witness a story that suits his client. The
witness is presumed to be biased in favour of the party examining him and
might thus be prompted. A fair trial of the accused is not possible (and there
would be violation of Art. 21 of the Constitution) if the prosecution can ask
leading questions to a witness on a material part of his evidence against the
accused [Varkey Joseph v State of Kerala AIR 1993 SC 1892].
If the opposite party objects to the leading questions being asked in
examination-in-chief or re-examination, the court may in its discretion either
permit a leading question or disallow it. Further, such questions can only be
asked when they refer to matters which are (i) introductory (ii) undisputed, or
(iii) sufficiently proved. For, if such questions were not allowed, the
examination would be prolonged. Leading questions can, however, be asked
in cross-examination. This is so, because the very purpose of a cross-
examination is to test the accuracy, credibility and general reliability of the
witness. The court cannot disallow leading questions in cross-examination.
320 Law of Evidence

Thus, leading questions may be asked in the following cases:

(i) where they are not objected to by the opposite party;
 (ii) where the opposite party objects but the court overrules the objection;
(iii) where they deal with matter of introductory or undisputed nature or the
matter has already been satisfactorily proved; and
(iv) they may always be asked in cross-examination.

Sec. 144. Evidence as to Matters in Writing

Sec. 144 lays down that any witness who is about to give evidence as to a
contract, grant or other disposition of property, may be asked whether it was not
in writing, and if he says that it was, the opposite party may object to such (oral)
evidence being given until the original document is produced or until the party
producing the witness is entitled to give secondary evidence of it.
An explanation appended to the section says that a witness may give oral
evidence of statements made by other persons about the contents of a document,
if such statements are themselves relevant faces. Where, for example, the
question is whether A assaulted B, evidence is offered through the mouth of C
that he heard A saying to D that B had written him a letter accusing him of theft
and that he will take his revenge. This statement about the letter may be proved
though the letter itself is not produced because the statement is relevant as
showing A's motive for the assault (lllust.).
It may be noted that Sec. 144 lays down a rale for the purpose of carrying
out the provisions of Sec. 91 as to the 'exclusion of oral by documentary
evidence.'

Sec. 145. Cross-examination as to Previous Written Statements3

Sec. 145 lays down the procedure by which 'a witness may in cross-examination
be contradicted by his previous statement in writing or reduced

3. How the purpose of contradicting the witness under Sec. 145 of the Evidence Act is
different from the purpose of proving the admission? Explain briefly.
[D.U.-2007]
 E x a m i n a t i o n of Witnesses 321

into writing. A witness may be asked in cross-examination whether he made a

previous statement in writing relevant to the matters in issue, different from
his present statement without such writing being shown to him or proved. But,
if it is intended to contradict him by the writing, his attention must be drawn
to it'.
This section provides for one of the methods in which the credit of a
witness may be impeached (Also see Sections 138, 140, 146-148, 153-155).
The object of the provision is either to test the memory of witness or to
contradict him by previous written statement. Further, the witness is given a
chance of explaining or reconciling his statements before the contradiction can
be used as evidence (by calling his attention to those written parts). It is
essential to fair play and fair dealing with a witness. If a witness is not shown
or confronted with the part of the statement with which he was sought to be
contradicted, the requirements of Sec. 145 could not be said to be complied
with [Rajendra Singh v State of Bihar, 2000 CrLJ 2199 (SC)].
A previous statement used to contradict a witness does not become
substantive evidence. The only purpose to contradict with a previous
statement is to prove that the statement made in the court is not reliable. A
'tape-recorded' evidence may also be used for contradiction under Sec. 145, as
like a document, letter, depositions, police diaries, etc.
The statement not only includes what is expressly stated therein but also
what is necessarily implied therefrom. In this way, 'omissions' in a statement
may amount to contradiction. For example, A made a statement previously
that he saw B stabbing C to death; but before the court he deposes that he saw
B and D stabbing C to death. The court can imply the word 'only' after B in
the previous statement. This would contradict the present statement that he
saw B and D stabbing C.
The previous statement must be of the witness who is being cross-
examined. A was employed by B to write his account-books. B supplied A
with necessary information. In this case, A cannot be contradicted with the
entries in the account-books as it is not his statement but that of B. Previous
statement of a party can be used only to contradict him and not to contradict
his witnesses. Sec. 145 is not attracted when a statement made by one witness
is contradicted by another witness [Mohan Lai v State AIR 1982 SC 839].
322 Law of Evid en ce

Evidence in Criminal Proceedings

Evidence recorded in criminal proceedings can be used to contradict under
Sec. 145. The statements in the FIR made by the witness can be used
(Nankhu Singh v State AIR 1973 SC 491). Sec. 162, Cr.P.C. imposes a bar on
the use of any statement made by any person to a police officer in the course
of investigation, except for the purpose of contradicting the witness under
Sec. 145.

Sec. 145 whether Applicable to Admissions?

Sec. 145 is not attracted in the case of admissions. Admissions duly proved
are admissible evidence irrespective of whether the pany making them
appeared in the witness-box or not and whether that party when appearing as
a witness was confronted with those statements in case he made a statement
contrary to those admissions [Bharat Singh v Bha.gira.thi AIR 1966 SC 405].
Thus, the court did not allow a party to the case appearing as a witness to
demand that he should be shown his earlier statements in the matter of family
partition which amounted to an admission [Tapan Das v Sasti Das AIR 1986
Cal 390].

Sec. 146. Questions Lawful in Cross-examination4

In the course of a cross-examination, a witness can be asked all questions
relating to relevant facts. But, in addition to such questions, Sec. 146 lays
down that a witnesi can be asked questions which tend:
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit by injuring his character, although the answer to
such questions might tend directly or indirectly to criminate him or
to expose him to a penalty or forfeiture.
The statements of a witness being testimonial of their nature, it is right to
subject them to impeachment in the appropriate ways. 'Testing the

4. When a witness is cross-examined, what other questions can be asked in

addition to the questions relating to the incident?
How is the credibility of witnesses tested? [D.U.-2007]
 Examination of Witnesses 323
veracity of a witness' means ascertaining his honesty as to advise the
court to what extent the witness is creditworthy. A witness may always be
subjected to a strict cross-exarnination as a test of his veracity or accuracy,
his understanding, his integrity, his basis and his means of judging. Sec.146
supplements Sec.145.
Questions can also be asked to find out his 'position in life' i.e. who he
is, what he does, what is his source of livelihood or whether he is a genuine or
a professional witness. It is common practice to make inquiry into the
relationship of the witness with the party on whose behalf he is called -
business, social or family - also to inquire as to his feeling towards the party
against whom his testimony is being given.
'Shaking the credit of a witness by injuring his character' means to expose
his respectability i.e. whether he is a respectable man and whether his character
and conduct are such that he can be trusted to tell the truth to the court. This
kind of questioning of the witness is known as "cross-examination as to credit".
However, questions should not be directed towards laying bare with private life
of the witness. The credit of witness can be said to have been shaken only if
it can be shown that he is not a man of veracity, and not that he is of bad a
moral character. A black-marketeer is not necessarily untruthful nor a non-
black-marketeer necessarily man of veracity [Chari v State AIR 1959 All 149].
The mere fact that the answer may tend to criminate the witness is no
justification to refuse to answer. However, he may object to the question on
the ground that the question is not relevant to the matter in issue.

RULES FOR CHECKING IMPROPER USE OF

CROSS-EXAMINATION5 [SECS. 147-152]

sections 147 to 152 lay down rules against aggressive cross-examination.

Since the character of a witness is allowed to be opened up in the course at
cross-examination, tor trie purpose oi ascertaining his credit worthiness, it is
natural that a person would not like to appear as a witness unless he were
assured of some protection against aggressive cross-examination.
5 every witness be compelled to answer every question?
[D.U.-20071
324 Law of E v i d e n c e

Sec. 147. When Witnesses to be Compelled to Answer

Sec. 147 supplements the provision in Sec. 146 by providing that if the
question put to the witness (under Sec. 146) relates to a relevant fact, the
provisions of Sec. 132 will apply. Under Sec. 132, a witness will have to
answer the question notwithstanding that the answer may criminate him.

Sec. 148. Court to Decide when Question Shall be Asked and when
Witness Compelled to Answer6
According to Sec. 148, 'when in the course of a cross-examination the question
asked to the witness is not relevant to the facts, but is asked only to shake his
credit by exposing his character, the court has to decide whether or not the
 witness shall be compelled to answer it. The court may warn the witness, if it
thinks necessary that he is not bound to answer it'. In deciding as to whether a
witness should be compelled or not to answer a question the court shall have
regard to the following considerations:
(1) Proper questions: If the court is of the opinion that the truth of the n
imputation could seriously affect the court's opinion as to credibility of the
witness the court should allow the question. Thus, in cases of rape, the
prosecutrix may be cross-examined as to her connection not only with the
accused but also with other men. However, the court must also ensure that
cross-examination is not made a means of .harassment or causing
humiliation to her [State of Punjab v Gurmit Singh (1996) 2 SCC 384].
Where a person appears as an eyewitness to a murder and he is questioned
"whether he is cruel to his wife". This fact, even if true, will not detract from
the value of his evidence as an eyewitness and, therefore, the question is
improper. But, if the question imputes to him the charge that at one time he
himself was the member of the accused's gang and subsequently broke apart
from it, this fact, if true, would seriously run down the court's opinion about
him and, thus, the question is proper.
(2) Improper questions: Such questions are improper if the truth of the
imputation is very remote in time or is of such a character that , it would not
affect at all or would affect only very slightly, the

6. How would the court decide that a particular question is proper or improper?
Examination of W i t n e s s e s 325

credibility of the witness as to the matter on which he gives

evidence. A question as to previous conviction 30 years' old put to
an intended surety was disallowed on the ground that it related to
matter so remote in time that it ought not to influence the court's
decision as to fitness of such sureties.
The testimony of a witness cannot be rejected only on the ground of his
conviction in a murder case 43 years ago. The long gap of time might've
restored his credit [Anurag Nair v State of T.N. AIR 1976 SC 2588].
(3) Improper questions: Such questions are improper if there is a great
disproportion between the importance of the imputation and the
importance of his evidence. Where, for example, a person appears
to testify on a minor matter of a party's date of birth, and it is
imputed to him that he belonged to a gang of dacoits.
(4) If the question is proper and the court asks the witness to answer it,
but even so he refuses to do so, the court may, if it sees fit, draw the
inference that the answer if given would be unfavourable to the
witness.

Sec. 149. Questions Not to be Asked without Reasonable Grounds

Sec. 149 lays down another important safeguard against assassination of the
character of a witness in that no question carrying an imputation to the
witness shall be asked unless the person asking the question has reasonable
ground to believe that the imputation contained in the question is well
founded.

Illustrations
(a) A barrister is instructed by an attorney or vakil that an important
witness is a dacoit. This is a reasonable ground for asking the
witness whether he is a dacoit.
(b) A pleader is informed by a person in court that an important
witness is a dacoit. The informant, on being questioned by the
pleader, gives satisfactory reasons for his statement. This is a
reasonable ground for asking the witness whether he is a dacoit.

7 A woman prosecutes a man for picking her pocket. Can this question that she
had given birth to an illegitimate child ten years before be asked?
326 Law of Evidence

(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.

Sec. 150. Procedure of Court in case of Reckless Questions

"If the court is of opinion that any such question was asked without reasonable
grounds, it may, if it was asked by any barrister, pleader, vakil or attorney,
report the circumstances of the case to the High Court/other authority to which
such barrister, etc. is subject in the exercise of his profession."
Sec. 150 is the penalty that may ensue against a reckless cross-
examination, if the court is of opinion that the questions were asked without
reasonable grounds. Any advocate who asks such questions without written
instructions shall be guilty of 'contempt of court' and that the court may record
any such question, if asked by a party to the proceedings. The records of the
question are to be admissible as evidence of the publication of an imputation
intended to harm the reputation of the person affected.

Sec. 151. Indecent and Scandalous Questions

Under Sec. 151, 'the court can prevent indecent and scandalous questions (or
inquiries) from being asked even if the question has some bearing upon the
matter in hand. Such questions may be allowed only if they relate to the facts in
issue or are necessary for determining whether the facts in issue existed'. The
Supreme Court has held that no such questions should be put unless there are
reasonable grounds to believe them to be true [Prakash v State, 1975 CrLJ
1297].

Sec. 152. Insulting or Annoying Questions

Sec. 152 enables 'the court to forbid questions which are asked only to insult or
annoy the witness'. Even if the question is on a proper point, the court may
forbid it if it is needlessly offensive.
Examination of Witnesses 327

Sec. 153. Exclusion of Evidence to Contradict Answers to Questions

Testing Veracity
According to Sec. 153, 'if a witness has answered a question as to his credit
(i.e. affecting his character), whatever be his answer, no evidence is allowed
to be given to contradict his answer. But, if the answer given by him is false,
he may afterwards be prosecuted for giving false evidence'.
It is obvious that questions, asked merely to discredit a witness by
injuring his character, introduce matters altogether foreign to the enquiry,
and that if controversy about matter so introduced is allowed the court
would be occupied with deciding not the merits of the case but merits of the
witness and, thus, suit might be indefinitely prolonged.

Illustrations
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not
made a fraudulent claim. He denies it. Evidence is offered to show
that he did make such a claim. The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation
for dishonesty. He denies it. Evidence is offered to show that he
was dismissed for dishonesty. The evidence is inadmissible.
In these illustrations, no evidence can be given to contradict a witness, but,
as the answer is false, he may be prosecuted for giving false evidence (under
Sec. 193, IPC).
Exception 1, Sec. 153: If a witness is asked whether he has been previously
convicted of any crime and he denies it, evidence may be given of his
previous conviction.
Exception 2, Sec. 153: If a question is asked to impeach the impartiality of a
witness and he denies the suggestion contained in the question, his answer
may be contradicted. Thus, a parry may call evidence to show that a witness
on the other side has given his evidence out of an ulterior motive (bribery,
malice or revenge).
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 tend to impeach his impartiality
[Must. (d)].
328 Law of E v i d e n c e
Illustration (c) lays down another exception to Sec. 153. Where coul
a fact, which is relevant as having direct bearing at the issue, is denied d be
by a witness, his answer may be contradicted by independent allo
evidence. For example, A affirms that on a certain day he saw B at wed
Lahore. A is asked whether he himself was not on that day at to
Calcutta. He denies it. Evidence is offered to show that A was on that cont
day at Calcutta. The evidence is admissible, not as contradicting A radi
on a fact which affects his credit, but as contradicting the alleged fact
ct
that B was seen on the day in question in Lahore.
the
Anything about which the witness has not been questioned so
witn
that there is no answer which could be contradicted, no evidence
ess otherwise [State of Karnataka v R. Yarappa Reddy AIR 2000 SC
185]. Evidence affecting veracity of the testimony given by witness
can be offered irrespective of his character [Vijajan v State (1999) 4
SCC 36].

Sec. 154. Questions by Party to His Own Witness: Hostile

Witness8
Sometimes a witness makes statements against the interest of the
party who has called him. This makes it necessary that he should be
cross-examined by that party so as to demolish his stand. Sec. 154
lays down that "the coun may, in its direction, permit the party who
has called a witness to put him such questions as could have been
asked in cross-examination by the adverse party."
Sec. 154 is based on the principle that 'a witness whether of
one party or another should not be given more credit than he really
deserves.' Cross-examination under this section means that he can be
asked (i) leading questions under Sec. 143, (ii) questions relating to
his previous statement in writing under Sec. 145, and (iii) questions
which tend to test his veracity or to shake his credit under Sec. 146.
A 'hostile witness' (the term has not been used in Indian law,
unlike English law) is one who from the manner in which he gives
the evidence shows that he is not desirous of telling the truth to the
court. A witness who is gained over by the opposite party is also
termed as a hostile witness. An 'adverse' or 'unfavourable' witness is
one called by a party to prove a particular fact, who fails to prove
such fact or proves an opposite fact.

When is a witness said to have turned hostile? Whether the evidence

given
by such a witness considered relevant and admissible?

[D.U.-2011]
E x a m i n a t i o n of Witnesses 329

A witness cannot be said to be hostile:

(i) whenever his testimony is such that it does not support the case of
the party calling him or is not in accord with the evidence of other
witnesses [Tulsi Ram Sahu v R.C. Pal AIR 1953 Cal 160].
(ii) when he has not been produced out of the fear that he might
disfavour the party who has to produce him [Ram Ratan v Bittan
Kaur AIR 1980 All 395].
(iii) only because he gives inconsistent or contradictory answers (e.g. at a
Sessions trial, a witness tells a different story from that told by him
before the Magistrate).
The inference of the hostility of a witness would be drawn from the answer
given by him and to some extent from his demeanour, attitude, etc. A
prosecution witness can be declared hostile when he resiles from his
previous statement made under Sees. 161 or 164, CrJP.C. Besides this, when a
prosecution witness turns hostile by stating something which is destructive of
his prosecution case, the prosecution is entitled to get this witness declared
hostile.
Court's permission under Sec 154 - The permission for cross-examining one's
own witness should not be granted to the party at the mere asking. The
granting of permission is entirely the discretion of the court. The discretion
conferred by Sec. 154 is apart from any question of hostility. It is to be
liberally exercised whenever the court from the witness's demeanour,
attitude, or the tenor and tendency of his answers, or from a perusal of his
previous inconsistent statement, or otherwise, thinks that the grant of such
permission is expedient to extract the truth and to do justice [Sat Paul' vDelhi
Admn. AIR 1976 SC 294].
Questions of cross-examination can be allowed by the court to be
asked by the party calling him even though the witness does not show to be
hostile. When the adverse party has elicited new matter, in cross-
examination, from a witness the court may permit the party examining the
witness to test his veracity.
In State of Bihar v Laloo Prasad (2002) 9 SCC 626, the prosecution
witness did not make statement in consonance with the prosecution case but
the public prosecutor did not seek permission of the court to cross-examine
the witness at that stage. Adverse party thereupon cross-examined the
witness where the witness only stated the details of what he had stated in
examination-in-chief. After the cross-examination, the Public Prosecutor
330 Law of E v i d e n c e

sought the witness be treated as hostile on the ground that he gave answers in
favour of defence during cross-examination. The trial judge declined to permit
the cross-examination. The Supreme Court refused to interfere in the order
refusing permission, and held that the trial court was justified in declining to
exercise discretion under Sec. 154. However, during final consideration, it was
open to the public prosecutor to tell the court that he was not inclined to own
the evidence of the said witness.

The court observed: Though it is open to the party who calls

the witness to seek the permission of the court at any stage of the examination,
nonetheless a discretion has been vested with the court whether to grant the
permission or not. Normally, when the public prosecutor requests for
permission to put cross-questions to a witness called by him, the court would
grant it. The public prosecutor if not prepared to own the testimony of the
witness examined by him he can give expression to it in different forms, under
Sec. 154, or to tell the court during final arguments that he is not relying on the
evidence of the witness.

Value of the Evidence of a Hostile Witness

The whole testimony need not be rejected, nor such witness can be regarded
as a wholly reliable witness. The court can rely upon that part of the
testimony which inspires confidence and credit [Rabinder Kumar Dey v
State o/Orissa AIR 1977 SC 170].
The testimony of a hostile witness requires close scrutiny because he is
contradicting himself, and that portion of his statement, which is consistent
with the prosecution or defence, may be accepted [State ofU.P. v Ramesh
Prasad Mishra (1996) 10 SCC 360]. The testimony of a hostile witness can
be used to the extent to which it supports the prosecution case [Koli
Lakbmanbhai v State of Gujarat AIR 2000 SC 210]. The whole of the
evidence so far as it affects both parties favourably or unfavourably must be
considered for what it is worth.
In Balu Sonba Shinde v State of Maharashtra (2002) 7 SCC 543, the
moot question was whether the evidence provided by the hostile witness
would be acceptable or not. The statement (oral) of prosecution witnesses
were not consistent with the facts (proved), and the Prosecutor declared the
witness as hostile witness and prayed for permission to cross-examine the
witness (after the cross examination was completed by the opposite
E x a m i n a t i o n of W i t n e s s e s 331

party). Held that declaration of a witness to be hostile does not ipso facto
reject the evidence and it is now well settled that the portion of evidence
being advantageous to the parties may be taken advantage of but the court
before whom such a reliance is placed shall have to be extremely cautious
and circumspect in such acceptance.
In Leela Srinivasa Rao v State ofAndbra Pradesh AIR 2004 SC 1720,
the Supreme Court held that the fact that some of the witnesses have been
declared by the prosecution to be hostile does not result in automatic
rejection of their evidence. Even the evidence of a hostile witness if it finds
support from other evidence may be taken into account while examining
the guilt of the accused. In Bhola Ram Khushwaha v State of M.P. AIR
2001 SC 229, the fact of an independent witness turning hostile was held to
be not in itself a ground for acquittal.

Sec. 155. Impeaching Credit of Witness9

Impeaching the credit of a witness means exposing his real character to the
court so that the court may not trust him. Sections 138, 140, 145 and 154
provide for impeaching the credit of a witness by cross-examination; 5ec.
146 permits questions injuring the character of a witness to be put to him
in cross-examination. Sec. 155 lays down a different method of
discrediting a witness by allowing independent evidence to be led.
As laid down by Sec. 155, the credit of a witness may be impeached
jy the adverse party, or by the party who calls him (with the court's
xmsent) in the following ways:
(1) Unworthy of credit: 'By producing witnesses who testify from
their personal knowledge of the witness that he is unworthy of
credit.'
(2) Corrupt inducement: 'By showing that the witness has either
taken bribe or has accepted the offer of a bribe or some other
corrupt inducement for giving his evidence' (a mere offer of bribe
to him will not impeach his credit). Such a "pocket witness" is not
an independent witness but is one who has been hired.

9. How credit of a witness may be impeached under the Indian Evidence Act?
[D.U.-2007]
What is the procedure for impeaching the credit of a witness? [LC.//-2O06]
 L
aw of Evidence 332

(3) Former inconsistent statements: 'By showing previous statements of the

witness which contradict his present statements'. This is commonly used
to impeach the credit of a witness.
A sues B for the price of goods sold and delivered to B. C says that
A delivered the goods to B. Evidence is offered to show that, on a previous
occasvotv,\\e said tV\ax he had not delivered the goods to B. The evidence is
admissible [IUust. (a)]. A is indicted for the muraer oVfe.C ^x^'tasO&^Ws.
dying, declared that A had given B the wound of which he died. Eviden is offered
to show that, on a previous occasion, C said that the wound was not given by A
or in his presence. The evidence is admissible [IUust (b)]. The previous
contradictory statements of a witness can be used to discredit only his testimony
and not that of other witnesses. Further, Sec. 155 is controlled by Sec. 145 (the
attention of the witness must be draw to his former statements before he is
contradicted). A 'tape-recorde statement' is admissible under Sec. 155 (3).
(4) Immoral character: 'When a man is being prosecuted for rape or an attempt to
ravish, it may be shown that prosecutrix (i.e. the complainant) is generally a
woman of immoral character'.
A reading of Sec. 155 would indicate that all inconsistent former statements
are not sufficient to impeach the credit of the witness. A former statement
though seemingly inconsistent with the evidence needTnot necessarily be
sufficient to amount to contradiction. Only such of the inconsistent statement
which is liable to be "contradicted" would affect the credit of the witness. Sec.
145 of the Act also enables the cross-examiner to use any former statement of
the witness, but it cautions that if it is intended to "contradict" the witness the
cross-examiner is enjoined to comply with the formality prescribed therein
[Rammi v State of MP. (1999) 8 SCC 649].

Explanation to Sec. 155

In examination-in-chief a witness cannot be asked the reasons for his belief
that another witness is unworthy of credit. Such questions can only be asked
in cross-examination. Whatever reasons he may give shall not be contradicted,
but if the answer is false, he may be prosecuted for giving false evidence.

Stock Witness
A 'stock witness' is a person who is at the back and call of the police. He
obliges police with his tailored testimony. Such a witness is used by the
police in raid cases. Such witnesses are highly disfavoured by the judges.
Examination of Wi tnes se s 333

Once it is proved that a certain witness examined by the prosecution is

a stock witness of the police, the court would be justified in discarding his
testimony. But that in itself is not enough to falsify the entire prosection case.
In such a case, it is the duty of the court to brush aside the testimony of the
stock witness and to see if the remaining prosecution evidence is enough to
sustain the conviction of the accused [Hazara Singh v State of Punjab (1971)
3 S.C.R. 674].

Material Witness
A witness who is essential to the unfolding of the narrative on which the
prosecution is based is known as 'material witness'. Though the prosecution is
not bound to examine all the witnesses named on the charge sheet, it is,
however, bound to examine all material witnesses. This is so even when the
prosecution apprehends that his evidence will not be favourable to the
prosecution.
If a material witness is not examined and the prosecution has no
satisfactory explanation to offer for his being withheld, the court could
examine such a witness as a 'Court witness', or to draw an adverse inference
to the prosecution in respect of that portion of its case to which the witness
withheld could have given evidence (Sardul Singh v State of Bombay AIR
1957 SC 747). Such a circumstance casts a serious reflection on the fairness
of the trial; the accused is entitled to ask the court to draw the inference under
Sec. 114, illustration (g), that if produced the evidence of that witness would
be unfavourable to the prosecution.

RULES RELATING TO CORROBORATION

[SECS. 156-157]

The rules relating to corroboration (i.e. evidence which supports the testimony
of a witness) are laid down in Sees. 156-157.

Sec. 156. Questions tending to Corroborate Evidence of

Relevant Facts Admissible
Sec. 156 lays down that when the evidence of a witness requires to be
corroborated, he may be questioned (apart from the main event) as to
334 Law of E v i d e n c e

any other circumstances which he observed at or near to the time or place

where the main fact happened, if the court is of opinion that such
circumstances, if proved, would corroborate the testimony of the witness as
to the relevant fact which he testifies.
Illustration: A, an accomplice, gives an account of a robbery in which he
took part. He describes various incidents unconnected with the robbery
which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his
evidence as to the robbery itself.
Sec. 156 provides for the admission of evidence given for the purpose,
not of proving a particular fact but of testing the truthfulness of the witness.

Sec. 157. Former Statements as Corroboration

Sec. 157 lays down that 'in order to corroborate the testimony of a witness,
any former statement made by such witness relating to the same fact, at or
about the time when the fact took place, or before any authority legally
competent to investigate the fact, may be proved'.
Some of the former statements allowed under this section are: A
statement irrelevant under Sec. 32 because the maker of the statement
ultimately survived can be used to corroborate the testimony of that person
in the court; The complainant's conduct of narrating the incident of extortion
to her colleagues after it was over, when it was corroborated by three
witnesses was held to be relevant under Sec. 157.
In a case, B, the accused, was the cashier of a company. He was suspected
to have embezzled the company's fund. Before filing FIR, B was taken to S, a
solicitor ol trie company. Certain conversation took place between B and S in
that interview. S prepared notes of attendance of the conversation soon after
the interview. At the trial, S gave evidence as to what happened at the
interview with B. These notes were tendered by the prosecution to corroborate
the testimony of S, when he deposed to what had taken place between him
and the accused. These notes were beld to be admissible under Sec. 157
[Bhogilal Chunilal v State AIR 1959 SC 356]. In Sashijena v Khandal Swain
AIR 2004 SC 1492, it was held that the former statement of witness can be
used to corroborate only his own evidence at the trial and not that of any other
witnesses.
Examination of Wi tnes se s 335

Statements At or About the Time of Occurrence

Sec. 157 provides an exception to the general rule of excluding hearsay
evidence. However, the statement must be made as early as can reasonably
be expected in the circumstances of the case and before there was an
opportunity for tutoring or concoction. A statement made by a girl about her
abduction 10 days after the incident, held, to be inadmissible under Sec. 157.
In Rameshwar v State of Rajasthan (1952) SCR 377, the Supreme
Court allowed the statement to the court of a young girl - a victim of rape - to
be corroborated with the girl's own statement to her mother four hours after
the incident to the effect that she had been raped by the accused.
 The statement of the father of a kidnapped child to the effect that a
person standing at the site of the crime gave him the identity by name of the
kidnappers and the motor vehicle number in which they whisked away the
child, but the father was not able to recall the number of vehicle, his
testimony was held to be hearsay but usable for supporting the testimony of
the witness of fact [Vijender v State of Delhi (1997) 6 SCC 171].
It may be noted that if the statement is made to an investigating
authority, it would be usable even if it was made after gap of time viz. few
days. Statements before an investigating officer are not evidence (e.g. FIR)
but can be used for corroboration or contradiction. The First Information
Report (FIR) can be used to corroborate the testimony of the maker of it or to
contradict him under Sec. 145. The previous statements of an accomplice
who becomes an approver witness have been regarded as insufficient
corroboration. However, the previous statements of an accomplice witness
may be proved as corroborative evidence, if the court so desires.

Sec. 158. Corroboration or Contradiction of the Statements of

Persons who Cannot be Found
5ec. 158 lays down that 'when the statement of a person who cannot be ound
or is dead is relevant under Sec. 32 or 33 and has been proved e.g. a dying
declaration), all matters which either confirm the statement )r contradict it,
may be proved. Evidence can also be given of any fact ivhich might confirm
or impeach the credit of the person who made the ;tatement to the same
extent as if that person had appeared as a witness md had denied upon cross-
examination the truth of the matter suggested'.
Thus, this section places a person whose statement has been used is
evidence under Sec. 32 or 33 in the same category, as a witness
336 Law of E v i d e n c e

actually produced in the court for the purpose of contradicting his statement
by a previous statement made by him. No sanctity attaches to such
statements simply because the person is dead or cannot be examined as a
witness. His credibility may be impeached or confirmed in the same manner
as a living witness.

RULE AS TO REFRESHING MEMORY

[SECS. 159-161]

Sections 159-161 deal with the extent to which and the mode in whicr a
witness may refer to a writing in order to refresh his memory while giving
evidence.

Sec. 159. Refreshing Memory10

Sec. 159 enables a witness to look at the following writings for thi purpose
of refreshing his memory:
(i) a writing made by him either at the time of transaction (happenini
concerning which he is questioned) or so soon afterwards tha the
court considers that the transaction must have been still fresl in his
mind when he was recording it;
(ii) any writing made by any other person about the transaction whicl
was read by the witness within the time aforesaid and he kne^ it to
be correct;
(iii) any professional treatises (books) where the witness is an experi
This section also lays down that 'when a witness wants to refresh hi
memory by referring to any document he may, with the court's permissior
refer to a copy of it. Provided the court be satisfied that there i sufficient
reason for the non-production of the original'.
Although a witness should always state what he himself remember he
may nevertheless, when giving evidence, refresh his memory as t details.
The reason of the rule of refreshing is that the witness should nc suffer
from a mistake and may explain an inconsistency.

10. In the Indian Evidence Act, what is meant by 'refreshing memory'?

Can a witness refresh his memory by referring to notes? [D.U.-20C
 E x a m i n a t i o n of Witnesses 337
Any writing can be made use of for the purpose of refreshing the
memory of a witness. This includes: Reports, Diaries, Certificates, Account
books, Dying declaration, Notes of a speech, Panchnamas, Deposition,
: Notes of a Police Officer, Notes of a brief of a Barrister, and, even a
Horoscope. A witness was allowed to look at the dying declaration which
was noted by him. A police officer may use his special diary for refreshing
his memory [State ofKarnataka v K. Yarappa Reddy (1999) 8 SCC 715].
A medical man was allowed to refresh his memory by referring to a
report prepared by him in his post-mortem examination.
It is not necessary that the document or writing used for refreshing the
memory should be relevant or admissible in evidence, but facts tried to be
proved must be admissible under Sec. 159. A document which was not
produced within die time permitted for its production and, therefore, rejected
by the court, may be used for refreshing memory if it otherwise satisfies the
spontaneity requirement of the section. Even where Pancbanama is not admissible
in evidence, it may be used by a witness to refresh his memory where, after
having been made by the police, it was read over to the punch who admitted it
to be correct [Emperor v Mahadeo Dewoo (1945) 47 Bom LR 992].
This section gives a permission to the witness. It does not compel lim to
do so. Nor can the opposite party prevent him from doing so. In i case, a
witness testified that the accused was in possession of a controlled drug. He
could not give a statement as detailed as he gave to the police when he was
first interviewed. The accused raised an objection which was overruled. The
court said that a witness should be allowed to supplement bis testimony with
certain essential details which were eluding him from his own statements
recorded earlier. This is allowed in all cases with a view to laying a proper
foundation for the testimony of the witness [R. f Sutton (1992) Cr App Rep
(CA)].

Sec. 160. Testimony to Facts Stated in Document mentioned in Sec. 159

Sec. 159 deals with cases where a reference to the writing revives in the nind
of the witness a recollection of the facts. But it may be that even . perusal of a
document does not refresh his memory i.e. it does not revive a his mind a
recollection of facts. Under Sec. 160, 'it is not necessary that he witness
looking at the written instrument should have an independent <r specific
recollection of the matters stated therein. He may testify to the
338 Law of E v i d e n c e
facts referred to in it, if he recognizes the writing or signature and feels sure
that the contents of the document were correctly recorded'.
Illustration: A bookkeeper may testify the 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.
It may be noted that under Sec. 159, the document is not in itself
evidence nor is it tendered. Under Sec. 160, the document itself is tendered and
is evidence.
Sec. 161. Right of Adverse Party as to Writing used to Refresh
Memory
Sec. 161 lays down that 'any writing (referred to under Sees. 159 and 160)
used for the purpose of refreshing the memory of witness, must be produced
and shown to the adverse party if he requires it; such party may, if he
pleases, cross-examine the witness thereupon'.
The right must be exercised at that very moment because it may not
continue throughout the period for which the witness remains under
examination. The purposes of such inspection are: (l) to secure the full benefit
of the recollection of the witness as to the whole of the facts, (ii) to prevent
improper use of documents, and (iii) to compare the oral testimony with the
written version [In Rejhoubhoa Mabton (1832) 8 Cal 739].

RULES AS TO PRODUCTION OF DOCUMENTS

[SECS. 162-164]

Sees. 162-164 lay down the rules as to production and translation of

documents.

Sec. 162. Production of Documents11

"A witness summoned to produce a document shall, if it is in his possession
or power, bring it to court, notwithstanding any objection which there may
be to its production or to its admissibility. The validity of any such
11. State the exceptions to the general rule that a witness is bound to tell the
whole truth and to produce any document in his possession relevant in issue'.
E x a m i n a t i o n of Witnesses 339
objection shall be decided of by the court. The court, if it sees fit, may inspect
the document, unless it refers to matters of State, or take other evidence to
enable it to determine on its admissibility."
Sec. 162 makes it obligatory on the witness to produce the document
summoned by the court and he has no right to decide whether the document
shall be produced. Order XVI, Rule 6 of the C.P.C. also provides that a person
may be summoned to produce a document without being summoned to give
evidence. Sec. 139 of the Evidence Act similarly provides that a person
summoned to produce a document does not become a witness by the mere fact
that he produces the document and he cannot be cross-examined.
The party producing the document under court order may raise his
objections to its production or admissibility. It is then for the court to decide the
validity of the objection. To enable the court to do so, it may hear the parties
 and may also ask them to produce evidence touching upon the validity or
otherwise of the objections.
Affairs of State - Under Sec. 162, the court may inspect the document to
determine on its admissibility, unless it refers to matters of State. Reading Sees.
123 and 162 together, it becomes clear that the court cannot hold an enquiry
into the possible injury to the public interest which may result from the
disclosure of the document in respect of which privilege is claimed under Sec.
123. That is a matter for the authority concerned to decide.
But, the court is competent to hold a preliminary enquiry and
determine the validity of the objections to its production, and that necessarily
involves an enquiry into the question as to whether evidence relates to an affair
of State under Sec. 123 or not [State of Punjab v S.S. Singh AIR 1961 SC 493].

Translation of Documents
Sec. 162 further lays down that if it is necessary for the document to be
translated, the court may direct the translator to keep the contents secret, unless
the document is to be given in evidence. If the translator disobeys the
instruction he may be held to have committed an offence under Sec. 166, IPC
[Public servant disobeying law with intent to cause injury to any person].

Sec. 163. Giving, as Evidence, of Document Called for and Produced on

Notice
Sec. 163 lays down that 'where a party has given a notice to another to
340 Law of E v i d e n c e
produce a document and the document has been produced and has been
inspected by that party, he is bound to use it as evidence if the party
producing the document so desires'.
This section applies not only to civil cases but also to criminal trials. It has
no application where the document has already been produced before the court by
any party to the case. The section comes into play when the party in possession or
power of the document has not produced the same in the court and runs the risk of
adverse inference being drawn against him or being debarred from producing the
document in the court at a later stage of the proceedings unless his opponent
becomes instrumental in seeking production and inspection of the document.
There is no authority for the proposition that the evidence, which is
admitted under this section, must be deemed to be conclusive against the party
who has inspected the document. A document so produced becomes 'evidence'
only when it is produced for the inspection of the court and only then the court
will pronounce upon its relevancy, admissibility and will call upon the party on
whom the burden of proof Ues to prove the truth of its contents and its
genuineness. Cross-examination could be used for that purpose [Phoolchand
Garg v Gopaldas Agarwal AIR 1990 M.P. 135].

Sec. 164. Use of Document Not Produced on Notice

According to Sec. 164, 'where a party has been called upon by the other
party to produce a document but the request was refused, such refusing party
is no longer at liberty to produce the document of his own. It would require
consent of the other party or permission of the court to enable him produce
the document'.
Illustration: A sues B on an agreement and gives B notice to produce it. At
the trial, A calls for the document and B refuses to produce it. A gives
secondary evidence of its contents. B seeks to produce document itself to
contradict the secondary evidence given by A, or in order to show that the
agreement is not stamped. B cannot do so.
Thus, where an opponent in possession of a document refuses to
produce it on demand, he is afterwards forbidden to produce the document to
contradict other party's secondary evidence. This is in one sense a proper
penalty for unfair tactics or refusal to cooperate with the judicial process. The
section does not enable a party to seek actual production of the document. It
contemplates only a disability the fear of which may
Examination of W i t n e s s e s 341

perhaps bring about a positive response [Shyamdas Kapur v Emperor (1932) 60

Cal 341]. The section may not perhaps apply to criminal proceedings.

Sec. 165. Judge's Power to Put Questions or Order Production12

Under Sec. 165, 'for the purpose of obtaining proper proof of relevant facts, the
Judge has been given the power to ask any question to a witness or to a party.
Such question may be asked at any time and may take any form and the
question itself may relate to a relevant-Qr an irrelevant fact. The court may also
order the production of any document or thing. No jarty or his agent shall be
entitled to raise any objection to any such juestion or order, nor, without the
court's permission, the witness shall be cross-examined as to any answer that he
may give'.
Every criminal trial is a voyage of discovery in which truth is the [uest. A
judge must participate in the trial. He must show intelligent interest nd put
questions to witnesses in order to ascertain the truth. It is his duty o question
witnesses on points which the lawyers for the parties have either •verlooked or
left obscure or willfully avoided. But, this he must do, without unduly
trespassing upon the functions of the counsel of parties. He nust not play a part
of a party or a prosecutor, nor should he frighten or iully the witnesses [Ram
Cbander v State ofHaryana AIR 1982 SC 1036].
"In India, in an enormous mass of cases, it is absolutely necessary hat the
judge should not only hear what is put before him by others, but hat he should
ascertain by his own inquiries how the facts actually stand. a order to do this, it
will frequently be necessary for him to go into aatters which are not themselves
relevant to the mattes in issue, but may >ad to something that is (relevant), and
it is in order to arm judges with xpress authority to do this that this section has
been enacted [Krishna [yyar v Balakrishana Ayyar (1933) 57 Mad 635].
The object of allowing the judge to ask irrelevant questions was to btain
"indicative evidence" which might lead to discovery of relevant evidence. : may
be noted that Order X, Rules 2 and 4, Order XVI, Rule 14 of C.P.C. nd Sec.
311, Cr.P.C, have conferred similar powers on the court.

12. What are the powers of the Court to put questions to a witness? Is there any
limitation on the use of these answers?
Write a short note on: Powers of the judge in relation to witnesses.
[D.U.-2007]
 Law of E v i d e n c e
342
Sec. 165 confers vast and unrestricted powers on the court. The court may
question the accused as to what he told to police although Sec. 162 of Cr.P.C.
prevents parties from questioning the accused on that point. A judge may look at a
police diary although not requested by either party and may question a witness on
that basis. This may enable the judge to expose discrepancies in the statements of
witnesses in the court and those recorded in the police diary [Emperor v Lai Miya
(1943) 1 Cal 543]. The questions intended to remove the confusion of mind from
which the witness happened to suffer are proper [State ofRajastban v Ani (1997) 6
SCC 162]. However, there is an inherent danger in a judge adopting a much too
stern an attitude towards witness. Thus, in Ram Chandra cases, two of the
prosecution witnesses did not adhere to their earlier statements. The judge rebuked
them and threatened them with prosecution for perjury if they changed their
statements. It was held that the judge exceeded the power conferred upon him by
this section.
The answers given by the witness in reply to questioning by the judge
can be subjected to cross-examination only with the permission of the judge.
The judge should allow such cross-examination to the party where answers
have been adverse to him. The witness should have the freedom to answer or
refuse to answer questions put by the judge to the same extent to which he is
privileged otherwise.

Provisos (Exceptions) to Sec. 165

A judge is empowered under Sec. 165 to put irrelevant questions to a
witness, but he cannot base his judgment on irrelevant facts. The/irst proviso
to this section lays down that the judgment must be based on facts declared
relevant by the Act and duly proved.
The second proviso lays down that this section shall not authorize any
Judge to:
(i) 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 Sees. 121-131 (privileges), if thei questions were asked or
the documents were called for by the adverse party; (II) ask any
question which it would be improper for any other person to ask under
Sees. 148-149;
^ȣ any document, except \
Q£> dispense ^VxXn.^vra^ e^Aence , '
hereinbefore excepted.
Examination of Witnesses 343

Where the question is asked, with a view to criminal proceeding being taken
against the witness, the witness is not legally bound to answer it and he cannot
be punished under Sec. 179, IPC for refusing to answer [Queen Express v
Isbari ILR All. 672].

Sec. 166. Power to Jury or Assessors to Put Questions

"In cases tried by jury or with assessors, the jury or assessors may put any
questions to the witnesses, through or by leave of the judge, which the judge
himself might put and which he considers proper."
It may be noted that trial by jury or assessors does not now prevail in
India.

Sec. 167. No New Trial for Improper Admission or Rejection of

 Evidence
Sec. 167 lays down that 'the improper admission or rejection of evidence is not
a ground for reversal of judgment or for a new trial of the case, if the court
considers that independently of the evidence improperly admitted, there was
evidence enough to justify the decision, or that, if the rejected evidence had
been admitted it ought not have varied the decision'.
The object of this section is that "technical objections will not be allowed
to prevail where substantial justice has been done." The section applies to civil
as well as criminal cases. The matter of wrongful rejection or admission of
evidence can be raised either before a court of review or appellate court. It may
be noted that Sec. 99, C.P.C. also provides that no decision is to be disturbed in
appeal unless there is an error which affects the merits of the case. Sec. 465 of
Cr.P.C. provides that a decision can be reopened on the ground of failure of
justice and not otherwise.
Rejection of an important document or refusal of permission for
examination of a material witness may justify reversal of the decision [Devidas
Jagjivan v Pirjada Begam (1984) 8 Bom 377]. As regards 'rejected' evidence,
the question under Sec. 167 is not so much whether the evidence rejected would
not have been accepted against the other testimony on the record as whether the
evidence "ought not to have varied the decision" [Narayan v State of Punjab
AIR 1959 SC 484].
The reception of inadmissible evidence is less injurious than the rejection
of admissible evidence because in the former case in arriving

344
At a decision the evidence wrongly admitted can well be exvluded freom
consideration whereas in the latter case the evidence wrongly rejected can only
be brought on record by having recourse to further proceeding.
Where it is clear from the record that the prosecjution, though it had
cited certain Person as witness was not very keen to examine him and when that
person objected to give evidence, the prosecution dropped his; it is not a case in
which evience can be said to have been rejected within Sec. 167[ Narayan’s
case, above].
Objection in Appeal to Documents Admitted by Evidence
Where evidence is admitted by the court with the consent of the parties and the
evidence is admissible and relevant, no objection will be allowed to be taken to
its reception at any stage of te litigation on the ground of improper proof.
But , if the evidence is irrelevant or inadmissible (e.g. owing to want of
registration), consent or omission to take objection to its reception does not
make it admissible and the objection may be raised even in appeal for the first
time. The question of relevancy is a question of law and can be raised at any
stage, but the question of mode of proof is a question of procedure and stands
waived if not raised at the first opportunity [Padnappa v Shivlingappa, 47 Bom
LR 962].