THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY (State University Established by Act No. 43 of 1997) M.G.R. Salai, Perungudi, Chennai - 600 113. LAW OF EVIDENCE STUDY MATERIAL By Dr. S. RAJA LAKSHMI Assistant Professor (SS) Department of Criminal Law and Criminal Justice Administration School of Excellence in Law The Tamil Nadu Dr. Ambedkar Law University ChennaiPREFACE The Indian Evidence Act, 1872 was enacted on March 15, 1872 and came into force on September 1, 1872 for the purpose of consolidating, describing and modifying the law of evidence. The Act relates to all the judicial proceedings, Courts martial except Court martial under the Army Act, Naval Discipline Act and Air Force Act. The law of evidence is fundamentally a procedural law but in certain parts it acts as substantive law as well. According to the Act, evidence may be provided in any suit or procedures of the existence or absence of all the fact in issue and other facts that are proclaimed to be important. The Act contains provision for the significance of facts appeared to be part of the same transaction or operation irrespective of the time and place where such transaction happened. The Act regards the intention or preparation for a relevant fact or fact in issue as fact that is relevant to take as evidence. The facts that is essential to elucidate or establish a fact in issue or relevant fact or that ascertain the identity of any article or person whose identity is important, or determine the time or place where the fact in issue happened, or that shows connection between the parties by whom such transaction occurred, are considered essential under the Act. The proof of common intention or conspiracy among persons is also deemed relevant fact against the entire person who participates in the conspiracy. The Act further provides provision where the facts that are considered irrelevant become relevant under certain circumstances. The relevant facts also depend on the custom or right, presence of the state of mind, or of body or the feeling of the body, and whether the act was deliberate or accidental. The Act defines ‘admission’ asa declaration, whether spoken or documentary and that propose any implication relating to any fact in issue or relevant fact and that are made by any persons and under certain situations as provided under the Act. The declarations made by persons authorized by law are considered as admissions and the declarations made by the parties who are suing or sued as an agent, are not deemed to be admissions unless the party making such declaration attains the legal character. The admissions are significant and may be established against the person making admission but subject to certain exceptions as specified under the Act. Additionally, the confession made by inducement, intimidation or assurance are immaterial in criminal proceedings under certain circumstances. The confession made to the police officers and during the custody shall not be established in opposition toa person whois alleged to have committed an offence. The admissions are not considered as definite proof but act as estoppels in certain circumstances.‘The declarations made by persons just before his death relating to the reason of his death, it is deemed as dying declaration which is relevant fact under the Act. The declarations made by a person during judicial proceedings or an authorized person are considered as relevant fact to prove the truth of facts. The entries in books of accounts, entries made in public documents, statements made in maps, graphs etc, writings in law books etc are considered as relevant facts under certain situations. ‘The Act provides that judicially noticeable facts and admitted facts are not to be established and it also provides the facts for which the Court is entrusted to get judicial notice. The documents produced before the Court as evidence shall be primary or secondary evidence. The Act provides a list of private and public documents that are considered as evidence under the Act. The burden of proof to prove the facts vests on the person who wishes any Court to deliver any verdict as to a legal right or responsibility. The Court shall presume certain facts on matters relating to abetment of suicide by married woman, dowry death etc. The Act also provides provision for the Doctrine of Estoppel. It further explains chief examination, cross examination and re-examination and the order in which the examination is to be conducted. ‘The Indian Evidence Act, 1872 was amended by enacting The Indian Evidence (Amendment) ‘Act, 2003. Recently, the 1872 Act was again amended by formulating The Criminal Law (Amendment) ‘Act, 2013 which inserted provisions of taking evidence in the case of rape. The Evidence Act was amended according to the latest technological advancements introduced for proving certain relevant facts. The Act was modified as per the Information Technology Act, 2000 dealing with admissibility of electronic records as evidence. The study material on Law of Evidence is an attempt to throw some basic information on the procedural law. The study is not comprehensive one as it would require many more volumes to cover all the aspects of evidence law. The selection of the materials has been such so as to give an overall design of the Law of Evidence. It is basically compiled work by going into too many books, articles and case study. The credit of this work extends to the Tamil Nadu Dr. Ambedkar Law University, Chennai, Lastly an apology for any flaws and mistakes. Dr. S. RAJA LAKSHMI Assistant Professor (SS) Department of Criminal Law and Criminal Justice Administration School of Excellence in Law ‘The Tamil Nadu Dr. Ambedkar Law University, ChennaiLAW OF EVIDENCE UNIT - I: Preliminary Indian Evidence Act, 1872~scope, object and applicability of Indian evidence act and exclusion ~ Statutory definition. Indian Law of Evidence and English Law of Evidence — Comparison ~ Constitutional perspective of Evidence ~ Golden Rule Evidence, Presumption of Law and fact - Kinds of Evidence. UNIT - II : Relevancy of Facts Relevance of facts and admissibility of facts — Res Gestae - Hearsay. Occasion, cause and effect etc.,- Motive, preparation and conduct - explanatory facts — Acts of conspirators ~ When facts not otherwise relevant become relevant - Facts determining quantum of damages - customs ~ State of mind, body or bodily feeling - Similar facts - Course of business. Admission and confession. UNIT - III : Relevancy of Third Person Evidence Relevancy of statement made by person who cannot be called as witness. Relevance of Judgements of Courts. Relevance of opinion of third persons - Expert Cases. Law of Forensic Science ~ Forensic Institutions — Principles of Forensic Science proof and Forensic technology — Forensic science and criminal Justice system ~ Criminal trial, Scientific Examination and Expert witness u/s 112A. Relevance of character in civil and criminal cases. UNIT - IV : of Proof Facts which need not be proved — Judicial notice ~ Modes of Proof - Oral Evidence ~ Hearsay evidence — Exceptions ~ Primary and Secondary evidence - Documentary evidence - Documents - Public and private documents ~ Presumptions as to the documents - Exclusion of oral evidence by documentary evidence . Burden of proof - Rules relating to burden of proof and Doctrine of Estoppel. UNIT ~ V: Witnesses ‘Witnesses ~ Categories of witnesses - communications ~ Accomplice Examination of witnesses — questions tobe and not to be asked - Hostile witness - Impeaching credit of witness - Refreshing memory — Judges question Appeal against improper admission and rejection of evidence. Books prescribed: 1. Ratanlal : Law of Evidence 2. Avatar Singh : Law of Evidence 3. Vepa Sarathi : Law of Evidence 4. Dr.V.Krishnamachari : Law of Evidence 5. P.S. Achutan Pillai : Law of Evidence 6. B.R. Sharma: Forensic Science in criminal trial and Investigation Books for Reference: 1. Sankar : Law of Evidence (2 Volumes) 2. Sir John Woodroffee and Syed Amir Ali: Law of Evidence (4 Volumes) 3. Walls H.J. : Forensic ScienceCONTENTS Part I RELEVANCY OF FACTS Chapter I Preliminary 1 1 Short title, extent, commencement. — 2. [Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch.. 3, Interpretation clause - 4. "May presume” - Chapter II Of the relevancy of facts 19 5. Evidence may be given of facts in issue and relevant facts — 6. Relevancy of facts forming part of same transaction ~ 7. Facts which are occasion, cause or effect of facts in issue — 8. Motive preparation and previous or subsequent conduct — 9. Facts necessary to explain or introduce relevant facts — 10. Things said or done by conspirator in reference to common design — 11. When Facts not otherwise relevant become relevant - 12. In suits for damages, facts tending to enable Court to determine amount are relevant — 13, Facts relevant when right or custom is in question - 14, Facts showing existence of state of mind or of body or bodily feeling + 15, Facts bearing on question whether act was accidental or intentional ~ 16. Existence of course of business when relevant — 17. Admission defined ~ 18. Admission by party to proceeding or his agent 19. Admissions by persons whose position must be proved as against party to suit- 20. Admission by persons expressly referred to by party to suit — 21. Proof of admission against persons making them, and by or on their behalf - 22. When oral admission as to contents of documents are relevant ~ 22A.When oral admissions as to contents of electronic records are relevant.23. Admission in Civil cases, when relevant — 24. Confession by inducement, threat or promise when irrelevant in criminal proceeding - 25. Confession to police officer not to be proved ~ 26. Confession by accused while in custody of police not to be proved against him — 27. How much of information received from accused may be proved 28. Confession made after removal of impression caused by inducement, threat or promise, relevant — 29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. 30. Consideration of proved confession affecting person making it and others jointly under trail for same offence — 31. Admissions not conclusive proof but may stop — RELEVANCY OF FACTS GROUP II STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES 45 32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated ~ RELEVANCY OF FACTS GROUP IV STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES 61 34. [Entries in books of account including those maintained in an electronic form] when relevant - 35. Relevancy of entry in public [record or an electronic record] made in performance of duty — 36, Relevancy of statements in maps, charts and plans - 38, Relevancy of statements as to any law contained in law books — ; HOW MUCH OF A STATEMENT IS TO BE PROVED 39, What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers JUDGEMENTS OF COURTS OF JUSTICE, WHEN RELEVANT 40. Previous judgments relevant to bar a second suit or trail - 41. Relevancy of certain judgments in probate etc., jurisdiction — 42, Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41.— 43, Judgment etc., other than those mentioned in Section 40 to 42 when relevant - 44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved -RELEVANCY OF FACTS GROUP VI OPINIONS OF THIRD PERSONS, WHEN RELEVANT 4 45. Opinions of experts - 46, Facts bearing upon opinions of experts — 47. Opinions as to handwriting, when relevant - 47A. Opinion as to digital signature when relevant - 48. Opinion as to existence of right or custom when relevant — 49. Opinion as to usage’s, tenants, etc., when relevant - 50. Opinion on relationship, when relevant - 51. Grounds of opinion when relevant — OF RELEVANCY FACTS GROUP VII 89 52. In civil cases character to prove conduct imputed irrelevant - 53. In criminal cases, previous good character relevant - 54, Previous bad character not relevant except in reply — 55. Character as affecting damages — PART II ON PROOF 7 CHAPTER III Facts which need not be proved 56. Fact judicially noticeable need not be proved - 57. Facts of which Court must take judicial notice ~ 58. Facts admitted need not be proved — Chapter IV OF ORAL EVIDENCE 9 59. Proof of facts by oral evidence — 60. Oral evidence must be direct —Chapter V OF DOCUMENTARY EVIDENCE 103 61. Proof of contents of documents — 62. Primary evidence - 63. Secondary Evidence — 64. Proof of documents by primary evidence — 65. Cases in which secondary evidence relating to documents may be given — 65A. Special provisions as to evidence relating to electronic record — 65B. Admissibility of electronic records - 66. Rules as to notice to produce — 67. Proof of signature and handwriting of person alleged to have signed or written document produced — 67A. Proof as to digital signature — 68. Proof of execution of document required by law to be attested — 69. Proof where no attesting witness found — 70. Admission of execution by party to attested document — 71. Proof when attesting witness denies the execution — 72. Proof of document not required by law to be attested — 73. Comparison of signature, writing or seal with others admitted or proved - 7A. Proof as to verification of digital signature — PUBLIC DOCUMENTS m1 74, Public documents ~ 75. Private documents — 76. Certified copies of Public Documents — 77. Proof of documents by production of certified copies - 78, Proof of other official documents - PRESUMPTION AS TO DOCUMENTS 4 79. Presumption as to genuineness of certified copies — 80, Presumption as to documents produced as records of evidence — 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents — 81A. Presumption as to Gazettes in electronic forms —82, Presumption as to document admissible in England without proof of seal or signature ~ 83. Presumption as to Maps or Plans made by authority of Government — 84. Presumption as to collections of laws and reports of decisions — 85. Presumption as to powers of attorney - 85A. Presumption as to electronic agreements — 85B. Presumption as to electronic records and digital signatures — 85C. Presumption as to Digital Signature Certificates - 86. Presumption as to certified copies of foreign judicial records — 87. Presumption as to Books, Maps and Charts — 88, Presumption as to Telegraphic Messages — 88A. Presumption as to electronic messages — 89. Presumption as to due execution etc., of documents not produced — 90. Presumption as to documents thirty years old - 90A. Presumption as to electronic records five years old — Chapter VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE 121 91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents — 92. Exclusion of evidence of oral agreement — 93, Exclusion of evidence to explain or amend ambiguous document - 94, Exclusion of evidence against application of document of existing facts. - 95, Evidence as to document unmeaning in reference to existing facts. ~ 96. Evidence as to application of languages which can apply to one only of several persons 97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies — 98. Evidence as to meaning of illegible characters, etc. - 99. Who may give evidence of agreement varying term of document — 100. Saving of provisions of India Succession Act relating to Wills. —PART III PRODUCTION AND EFFECT OF EVIDENCE Chapter VII OF THE BURDEN OF PROOF 127 101. Burden of Proof - 102. On whom burden of proof lies. — 103. Burden of proof as to particular fact. — 104. Burden of proving fact to be proved to make evidence admissible — 105. Burden of proving that case of accused comes within exceptions — 106, Burden of proving fact specially within knowledge — 107. Burden of proving death of person known to have been alive within thirty years. — 108. Burden of proving that person is alive who has not been heard of for seven years. ~ 109. Burden of proofas to relationship in the case of partners, landlord and tenant, principal and agent— 110, Burden of proof as to ownership - 111. Proof of good faith in transactions where one party isin relation of active confidence. - 111A. Presumption as to certain offences. — 112. Birth during marriage, conclusive proof of legitimacy — 113. Proof of cession of territory - 113A. Presumption as to abatement of suicide by a married women — 113B. Presumption as to dowry death - 114, Court may presume existence of certain facts — 114-A Presumption as to absence of consent in certain prosecutions for rape— CHAPTER VIII ESTOPPEL 134 115. Estoppel — 116. Estoppel of tenant and of license of person in possession — 117. Estoppel of acceptor of bill of exchange, bailee or licensee —CHAPTER IX COMPETENCY AND COMPELLABILITY OF WITNESSES 136 118. Who may testify? — 119. Dumb witnesses — 120.Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial — 121. Judges and Magistrates — PRIVILEGED COMMUNICATIONS 140 122. Communications during marriage — 123, Evidence as to affairs of State — 124. Official communications — 125, Information as to commission of offences — 126. Professional communications - 127. Section 126 to apply to interpreters etc. — 128, Privilege not waived by volunteering evidence — 129. Confidential communication with Legal Advisers — 130, Production of title-deeds of witness, not a party - 131. Production of documents or electronic records which another person, having possession, could refuse to produce — 132. Witness not excused from answering on ground that answer will criminate — ACCOMPLICE WITNESS 47 133. Accomplice ~ 134, Number of witness — CHAPTER X OF THE EXAMINATION OF WITNESSES 152 135. Order of production and examination of witness — 136, Judge to decide as to admissibility of evidence - 137. Examination-in-chief— 138, Order of examinations — 139. Cross-examination of person called to produce a document - 140. Witness to character — 141. Leading questions —142. When they must not be asked - 143. When they must be asked ~ 144, Evidence as to matters in writing — 145. Cross-examination as to previous statements in writing - 146. Questions lawful in cross-examination — 147. When witness to be compelled to answer — 148. Court to decide when question shall be asked and when witness compelled to answer - 149. Question not to be asked without reasonable grounds — 150. Procedure of Court in case of question being asked without reasonable grounds — 151. Indecent and scandalous questions — 152. Question intended to insult or annoy — 153. Exclusion of evidence to contradict answer to questions testing veracity — 154. Question by party of his own witness — 155, Impeaching credit of witness — 156. Questions tending to corroborate evidence of relevant fact, admissible — 157. Former statements of witness may be proved to corroborate later testimony as to same fact - 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33 — 159, Refreshing memory. — 160. Testimony to facts stated in document mentioned in Section 159- 161. Right of adverse party as to writing used to refresh memory 162. Production of document — 163. Giving, as evidence, of document called for and produced on notice — 164, Using, as evidence, of document, production of which was refused on notice ~ 165. Judge's power to put questions or order production — 166. Power of jury or assessors to put questions ~ CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE 160 167. No new trail for improper admission or rejection of evidence —LAW OF EVIDENCE [ihe object of every judicial investigation is the enforcement of aright or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive lawJLaw of Evidence is one of the fundamental subjects of law. The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long ast is not inconsistent with the Act. The Act consolidates, defines and amends the laws of evidence{ It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until itis expressly stated in such enactment or it has been repealed or annulled by another statute Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth. The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’ OBJECT OF THE STUDY OF THE LAW OF EVIDENCE Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities. Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed. Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums. Ifthe other party in a legal proceeding admits guilt, ll is well. The other party can also deny the allegations in the plaint and the existence of certain facts may be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts isa rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence plays a very important role. (Blustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved] 184 * ‘The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remains intact and strong. It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence. THE LAW OF EVIDENCE IS THE LEX FORI [Law of evidence is part of the law of procedure. That why itis called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it)For example, ifa legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the laws which will be applied during such recording of evidence will Sri Lankan Law of Evidence. 1THE LAW OF EVIDENCE SAME IN CIVIL AND CRIMINAL PROCEEDINGS ‘A civil case of will and murder will have the same law of evident For example, the date of death has to ‘clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases.!In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect. ‘WHAT IS PROOF? HOW DOES IT DIFFER FROM EVIDENCE? ‘Anything that can make a person believes that an assertion is true or false. It is distinguishable from evidence such thayfproofis a broad term comprehending everything that may be adduced at atrial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial. A case that goes to tial must be strong in its legal submission and satisfy the Court of the claims made by producing evidence) Todo this, there are certain documents and objects that are taken into consideration while deciding on matter of evidenc, The Law of Evidence governs this aspect of criminal proceedings. The level of proof in a criminal case is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doupt This standard is examined by looking at whether a reasonable man would be convinced by the allegations leveled in the face of evidence to the contrary. This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident. BASIC PRINCIPLES OF EVIDENCE {The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following Principles are called the basic principles and the exceptions to the above principles; the exact application has been set out very clearly in the Act: © Evidence must be confined to the matters in issue. © Hearsay evidence may not be admitted. © The best evidence must be given in all cases. © Allfacts having rational probative value are admissible in evidence, unless excluded by a positive rule of paramount importance} There two fundamental principles of trial in the all judicial system, firstly, it must ensure that parties to the case are given full opportunity to prove their case, and secondly every dispute must come to an end. These two rules which are juxtaposed to each other must be balanced and this is done by the blending of procedural law and rules of evidence. HISTORY OF THE LAW OF EVIDENCE Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that al facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence: © Lekhya (Documentary Evidence) © Sakshi ( Witnesses) © Bukhti (Possession) © Divya (Ordeals) Though the concept of justice in Islam is that itis a divine disposition, the Mohammedan law givers have dealt with evidence in various forms: © Oral that may be Direct Hearsay © Documentary (Less preferred than oral) Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could goscot-free. It was believed that if guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused. The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. Ifthe woman were to sink to the bottom of the pond, she was nota witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law. Confessions due to torture are not unknown today either. THE MODERN LAW AS IT PREVAILS The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated. In 1856, Sir Henry Summer Maine, the then law member of the Governor General's Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. Sot fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts Indian Evidence Act (IEA) makes provisions about rules regarding evidence and applies to all judicial proceedings in or before any court including court martial. However, ifthe court martial is done under- Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, the Air Force Act, then it will have no application over these laws. It may also be noted that Evidence Act does not apply on affidavits presented to any Court or Officer, nor it applies to any proceedings before an arbitrator. 3CONSTITUTIONAL PERSPECTIVE OF EVIDENCE Clause (3) of Article 20 of the Indian Constitution, 1950 provides that “No person accused of any offence shall be compelled to bea witness against himsel” This principle is espoused on the maxim “nemo tenetgur prodre accussare seipsum”, which essentially means “NO MAN IS BOUND TO ACCUSE HIMSELF.”, [The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial Zompulsion for people who are accused of an offence and are compelled to be a witness against themselves. The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No person shall be compelled in any criminal case to be a witness against himself”, same as mentioned in the Constitution of India embodying the principles of both English and American Jurisprudence. This libertarian provision can be connected to an essential feature of the Indian Penal Code based on the lines of Common Law that, “an accused is innocent until proven guilty” and the burden is on the prosecution to establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his much broader right, against self-incrimination. The tendency of Indian legal system manifests skepticism of the police system. This isthe reason confessions of an accused is only admissible if recorded by a Magistrate in accordance with an elaborate procedure to ensure that they are made voluntarily. Protection is also accorded by the provisions of The Indian Evidence ‘Act. This protection is available to every person including not only individuals but also companies and incorporated bodies. This clause gives protection only if the following ingredients are present: © _Itisa protection available to a person accused of an offence; © _Itisa protection against compulsion to be a witness against oneself; and © _Itisa protection against such “Compulsion” as resulting in his giving evidence against himself. Person accused of an offence ‘Aperson accused ofan offence means “person against whom a formal accusation relating to the commission of an offence has been leveled, which may result in prosecution”. Formal accusation in India can be brought by lodging of an F.LR or a formal complaint, to a competent authority against the particular individual accusing him for the commission of the crime. Itis only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that person with its protective umbrella against testimonial compulsion. It is imperative to note that, “a person cannot claim the protection ifat the time he made the statement, he was not an accused but becomes an accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a government servant, since there is no accusation of any offence within the meaning of Article 20 (3). Self-incrimination has been extensively discussed in the case of Nandini Satpathy v. P.L Dani. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at Vigilence Police Station, for being examined in connection to a case registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165 and 120-Band 109 of The Indian Penal Code, 1860. Based on this an investigation ‘was started against her and she was interrogated with long list of questions given to her in writing. She denied to answer and claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and hence it extends to the stage of police investigation apart from the trial procedure.Further, this right to silence is not limited to the case for which the person is being examined but also extends to other offences pending against him, which may have the potential of incriminating him in other ‘matters. It was also held that the protection could be used by a suspect as well. Protection against compulsion to be a witness (Che protection contained in Article 20(3) is against compulsion “to be a witness” against oneself. In M.P Sharma v. Satish Chandra, the Supreme Court gave a wide interpretation of the expression “to be a witness” which was inclusive of oral, documentary and testimonial evidence. The Court also held that the protection not only covered testimonial compulsion in the Court room but also included compelled testimony previously obtained from him] To be a witness-- Furnishing Evidence In MP Sharma‘s case it was held that, Article 20 (3) was directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in the Court. Exception Itfollows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings ‘or exposing body for the purpose of identification are not covered by the expression ‘to be a witness’ under Article 20). The Court distinguished ‘to be a witness’ from ‘furnishing evidence’, and interpreted the former to mean imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise. The latter included production of documents or giving materials which might be relevant ata trial to determine the guilt or innocence of the accused. Analysis ‘Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal knowledge of the person giving information. But where an accused is compelled to produce a document in his possession which is not based on the personal knowledge of the accused, in such a case there is no violation of Article 20(3). Searches & Seizures In V.S Kuttan Pillai v. Ramakrishnan, the Supreme Court held that search of the premises occupied by the ‘accused without the accused being compelled to be a party to such a search would not be violative of the constitutional guarantee enshrined in Article 208) Section 27 of the Indian Evidence Act, 1872 $8.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of evidence by the police is led by some fact that was disclosed by the accused then so much of the information as relates to the facts discovered, may be proved irrespective of the fact whether that information amounts to confession of not. It was held that the provisions of this section are not prohibited within the scope of Article 20(3) unless compulsion had been used in obtaining the information. Compulsion to give evidence “against himself” [ihe protection under Article 20(3) is available only against compulsion of the accused to give evidence ‘against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces 5documentary evidence, incriminatory in nature, Article 20(3) would not be attracted. The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion may take many forms. If an accused is beaten, starved, tortured, harassed etc. to extract a confession out of him/her then protection under Article 20(3) can be sought A case at hand would be Mohd. Dastagir v. State of Madras where the appellant went to the residence OF the Deputy Superintendent of Police and handed him an envelope. On opening the envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the officer. The DSP. refused it and asked the appellant to place the envelope and the notes on the table, and he did as told, after which the cash was seized by the Police..In this case the Supreme Court held that, the accused wasn’t compelled to produce the currency notes as no duress was applied on him. Moreover the appellant wasn’t even an accused at the time the currency notes were seized from him. Hence in this case the scope of Article 20(3) was not applicable. Tape Recording of statements made by the accused If statements recorded are made by the accused, without any duress, with or without his knowledge are not hit by Article 20(3). Scientific tests — involuntary? The issue of involuntary administration of certain scientific techniques, like narco-analysis tests, polygraph examination, etc. for the purpose of improving investigation efforts in criminal cases has gained a lot of attention. For a long time, there was a debate about whether such tests were violative of Article 20(3) or not and the same issue were brought to the Supreme Court in the case of Selvi v. State of Karnataka. In this case the Hon'ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex Court, and drew the following conclusions: © The right against self-incrimination and personal liberty are non-derogable rights, their enforcement therefore is not suspended even during emergency. ‘© Theright of police to investigate an offence and examine any person do not and cannot override constitutional protection in Article 20(3); © The protection is available not only at the stage of trial but also at the stage of investigation; © That the right protects persons who have been formally accused, suspects and even witnesses who apprehend to make any statements which could expose them to criminal charges or further investigation; ‘© The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question would be inculpatory or exculpatory; ‘* Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings; © Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts protection under Article 20); © Conducting DNA profiling is not a testimonial act, and hence protection cannot be granted under Article 203);© That acts such as compulsory obtaining signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification orcorroboration; © That subjecting a person to polygraph test or narco-analysis test without his consent amounts to forcible interference with a person's mental processes and hence violates the right to privacy for which protection can be sought under Article 20(3); © That courts cannot permit involuntary administration of narco-tests, unless itis necessary under public interest. [Article 20 (2), invokes protection against self-incrimination and gives an accused the right to remain silent ‘Over any issue which tends to incriminate him. This protection by the Indian Constitution is also extended to suspects. Article 20 clause 3, has been carefully drafted to protect the accused from further self- incriminating himself only if any statement of his might result in prosecution. For the benefit of the Courts, the Supreme Court has distinguished between the terms “witness” and “furnish evidence”, the former including furnishing statements from one’s own knowledge and the latter referring to simply presenting documents required by the court under which protection under Article 20(3) cannot be sought. In addition it stretches its privileges to a person who is compulsorily being made a witness and also covers searches and seizures wherein, an accused or the person being searched is under no obligation to be a part of the search. If any confession or a mere statement is made based on which some material corroboration is found then that statement cannot be protected under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a confession and no duress can be exercised in order to obtain some information out of him, in such a case the statement would be void and the privileges under Article 203) ‘would be applicable, Narco-analysis tests, polygraph analysis etc. which refer to involuntary administration of mental processes, are considered violative of Article 20(3) and can only be done in a few cases as it disrupts the right to privacy. But with the advancement in medical sciences, the certainty of such scientific tests has increased and the author thinks that they provide an effective tool to furnish evidence which help in speedy disposal of cases. By balancing the harmony between the protective rights and the need for speedy disposal. KINDS OF EVIDENCES & WITNESSES (Evidence includes everything that is used to determine or demonstrate the truth of an assertion. Giving or rocuring evidence is the process of using those things that are either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth. Evidence is the currency by which one fulfills the burden of prooF) (= law, the production and presentation of evidence depends first on establishing on whom the burden of roof lays. Admissible evidence is that which a court receives and considers for the purposes of decidinga particular caseJTwo primary burden-of-proof considerations exist in law. The first is on whom the burden rests. In many, especially Western, courts, the burden of proof is placed on the prosecution{ The second consideration is the degree of certitude proof must reach, depending on both the quantity and quality of evidence. These degrees are different for criminal and civil cases, the former requiring evidence beyond reasonable, the latter considering only which side has the preponderance of evidence, or whether the proposition is more likely true or false |The decision maker, often a jury{ but sometimes a judge, decides whether the burden of proof has beer? . After deciding who will carry the burden of proof, evidenceDifferent Forms of Evidénce _) Oral Evidence-All those statements which the court permits or expects the witnesses to make in his ‘Presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the ‘witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue. {§0) Documentary Evidence- All those documents which are presented in the court for inspection such documents are called documentary evidences. In a case like this itis the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence. (@) Primary Evidence- Primary Evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint ina disputed fact and establishes through documentary evidence on the production of an original document for inspection by the court. It means the document itself produced for the inspection of the court. In Lucas v. Williams Privy Council held “Primary Evidence is evidence which the law requites to be given first and secondary evidence is the evidence which may be given in the absence of that bettet evidence when a proper explanation of its absence has been given.” (@ Secondary Evidence-Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary position. Itis such evidence that on the presentation of which itis felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence. Ifin place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.” (Ret Evidence Real Evidence means real or material evidence. Real evidence of a fact is brought to e knowledge of the court by inspection of a physical object and not by information derived from a witness or a document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign. For example, Contempt of Court, Conduct of the witness, behavior of the parties, the local inspection by the court. It can also be called as the most satisfactory witness. Hearsay Evidence Hearsay Evidence is very weak evidence. It is only the reported evidence of a Avitness which he has not seen either heard. Sometime it implies the saying of something which a person has heard others say. In Lim Yam Yong v. Lam Choon & Co. The Hon'ble Bombay High Court adjudged “Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against a party merely because his council fails to take objection when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility. When a piece of evidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use comes in for question is governed by the Evidence Act. (@ [Judicial Evidence- Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial Evidence.)Judicial Evidence Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Eviden2) Direct Evidence- Evidence is either direct or indirect [Direct Evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence ‘of person who had actually seen the crime being committed and has described the offerice) The evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense. @ Circumstantial Evidence or Indirect Evidence- There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. In Hanumant v. State of Madhya Pradesh, The Hon'ble Supreme Court Observed, “In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance , be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far 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.” In the case of Ashok Kumar v. State of Madhya Pradesh, the Hon'ble Supreme Court held- (1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused. (8) The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) The Circumstantial Evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Direct Evidence V. Circumstantial Evidence @ question that which evidence is superior is going from a long time, on this subjects jurists differ in ir views. Some jurists hold that direct evidence is superior evidence. When a particular says that he had seen a particular event happening then undoubtedly his evidence is superior, but even relying on direct evidence at once is also hazardous because a witness can make a completely false statement. In the same ‘manner in the case of circumstantial evidence circumstances are also proved by witnesses. Particularly the manner in which the court draws inferences from circumstances they can be wrong and also and thus circumstances also become false. |In the case of Kallu v. State Of Uttar Pradesh, the accused was tried for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the bed of the deceased. The accused ‘was arrested at a distance of 14 miles from the village which was the place of occurrence. He produced a pistol from his house which indicated that he could have alone have known of its existence there. The fire- arms expert proved that it was the same pistol from which the shot was fired and deceased was killed. The Hon’ble Supreme Court while convicting the accused held “Circumstantial Evidence has established that the death of the deceased was caused by the accused and no one else.” Different Kinds of Witnesses ‘The witness can be divided mainly into two categories (1) Eye Witness (2) Circumstantial Witness ‘Witness can be further divided into following kinds- (1) Prosecution Witness- Prosecution is the institution or commencement of criminal proceeding and the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final judgment on behalf of the state or government by indictment or information. A prosecution exists until terminated in the final judgment of the court to write the sentence, discharge or acquittal, a witness which appears on behalf of the prosecution side is known as.a Prosecution Witness. (2) Defense Witness Defense side in a criminal proceeding is opposing or denial of the truth or validity of the prosecutor's complaint, the proceedings by a defendant or accused party or his legal agents for defending himself. A witness summoned on the request of the defending party is known as a Defense Witness. (3) Expert Witnese- An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an advisory character. The duty of an ‘expert witness’ is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion sos to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions. (4) Bye Witnese- A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is a person who saw the act, fact or transaction to which he testifies. An eye witness must be competent (legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the event occurred will be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence. Identification of an accused in Court by an ‘Eye witness’ isa serious matter and the chances of a false identification are very high. Where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although asa rule of prudence courts call for corroboration. “It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” “Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. Solong as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, 10then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in and no amount of corroboration can cure that defect.” Ona onspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis ofthe statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he isa truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at atime or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.” (5) Hostile Witness-The witness who makes statements adverse to the party calling and examining him and who may with the permission of the court, be cross examined by that party. Now itis true that in Coles v. Coles, and it may be in other cases, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This is nota very good ~definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of ‘cross-examination’ even by committing itself to the word ‘hostile’. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. In Balu Sonba ‘Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the Supreme Court held that the declaration of a ‘witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The testimony of hostile witness has to be tested, weighed and considered in the same manner in which the evidence of any other witness in the case. Thus we can finally conclude that in order to provide justice Evidence and witnesses are very necessary and they hold a very important place in the Law. With the help of Evidence the judge reaches a verdict. The evidence heard by the court is the most important factor in determining whether the judgment will be in favour of Prosecution side or Defense side. 6) Child witness In State v Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) it was observed that the burden of proving incompetence is on the party opposing the witness. Courts consider 5 factors when determining competency ofa child witness. Absence of any of them renders the child incompetent to testify. They are (1) anunderstanding of the obligation to speak the truth on the witness stand; (2) themental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) amemory sufficient to retain an independent recollection of the occurrence; (4) _ the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simply questions about it. 1PRESUMPTIONS OF LAW” AND “PRESUMPTIONS OF FACT Presumption An idea that is taken to be true on the basis of probability PRESUMPTION — Of law Of facts -— —_ (May presume) Rebuttabie Irrebuttable {Sections 86, 87, 88, (Shall presume) (Conchusive proof) 90 and 414) (Sections 72 to [Sectione, 41, 112. 85, 89, 105] 1143) Presumptions of Law: 1. Discretion of Court — No discretion is vested in the Court at all. The law peremptorily requires a certain inference to be made whenever the facts appear which the law assumes as the basis of the inference. 2. Rules of law — Presumptions of law are, in reality rules of law and part of the law itself. 3. Presumptions of law must be drawn. 4. Kinds — There are two kinds of presumptions of law — rebuttable and irrebuttable. Presumptions of Fact: 1. A discretion, more or less extensive as to drawing the inference, is vested in the tribunal. 2. Presumptions of fact are not rules of law. 3. Presumptions of fact may or may not be drawn. 4. There is no such division in the case of presumptions of fact Conclusive presumptions are inferences which the law makes so peremptorily that it will not allow them to be overtumed by any contrary proof, however strong. Rebuttable presumptions are rules defining the nature and the amount of the evidence which is sufficient to establish a prima facie case and to throw the burden of proof upon the other party; and, if no opposing evidence is offered, the Court is bound to come to a conclusion in favour of the presumption. Mixed presumptions or presumptions of law and fact, lie in- between the above two, and consist mainly of certain presumptive inferences which attract the observation of the law. 12‘Presumption’ and ‘Proof: “Proof” 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 (1) evidence, (2) admissions, or (3) judicial notice. Thus, presumptions are the means, and proof is the end, of judicial inquiry. Presumption is merely an inference. When a rebuttable presumption operates in favour of a party, it is for the opponent to disprove it by adducing evidence to the contrary. FEATURES OF THE INDIAN EVIDENCE ACT The Indian Evidence Act or The Law of Evidence is a subject which cannot be understood without understanding these important features which forms the basis of the Law of Evidence. For a good Lawyer skills and hands on the subject these features are a must on tips. Only then can you jump on to the next level tounderstand and study the Law of Evidence ‘These important features are- Court Fact Relevant fact Facts in issue Per. 3 aaaees 2 op fan Evidence — Proved Disproved Not proved Affidavit Motive Circumstantial Evidence May presume Shall presume 15. Conclusive proof 1) Court- Court includes al Judges and Magistrates, and all persons except Arbitrators, legally authorized totake evidence. A Court isa governmental institution with the authority to decide legal disputes between, the parties. All kinds of persons are free to bring their disputes to the court and seek a fair judgment. The Judiciary is the system who interprets and applies the Law. The place where the court sits is known as a venue. The room where the court proceedings are held is known as a Court room. A Court is constituted by aminimum of three parties- ye RPr ave en BERES © The Plaintiff-isa person who complains for an injury caused to him. © The Defendant-is a person who defenses himself against the complaint made by the plaintiff against the defendant and, © The Judicial power-which is to examine the truth of the fact and deliver a judgment. © Besides this Advocates of both the parties. 132) ~FACT- \(Gection 5 of IEA, provides that evidence may be given on fact in issue or on relevant facts but no other facts. It means, during trial parties are allowed to prove fact in issue, relevant facts but they are not allowed to prove anything which is neither) Facts: means anything or state of things or relations of thing which can be perceived by senses (see, touch, taste, hear, and smell). Particular ‘state of mind’ is also a fact. Examples of facts: ‘The term “fact” means and includes- state of things, o relation of things, capable of being perceived by the senses; any mental condition of which any person is conscious. Example- © That man heard or saw something, is a fact. © Thatawoman hasa certain reputation isa fact. © Thejarkepton the table, isa fact. . That a man holds a certain opinion, has a certain intention, acts in good faith, acts fraudulently, or uses a word in a particular sense, or is or was ata specified time conscious of a particular sensation, isa fact. © That girl has so and so name, is a fact. 3) Relevant fact- {A fact is said to be relevant to another when one fact is connected with the other fact in any ways referred to in the provisions of this actin the chapter of relevancy of facts. Relevant fact-The word ‘relevant’ means that any two facts to which it is applied are in such a way related to each other that, one, either taken by itself or in connection with the other facts, proves or renders probability of the past, present or future existence or non-existence of the other{ ‘Relevant’ means admissible in evidence. Ofall the rules in evidence the most important is that the evidence adduced should be confined only to the matters which are in dispute, or which form the subject of investigation However, itis to be noted here that every facts connected with ‘facts in issue’ is not relevant, unless the said fact is connected with ‘facts in issue’ in the same way as described in section 6-55 of IEA. Categories of relevant facts are: Facts forming part of same transactions Certain Statements like admission, confession or dying declarations Earlier judgment pertaining to the said cause of action Opinion of expert of facts disputed Character of parties 4) Facts in issue- veer Defined under section 3 of IEA, which simply means those facts which can establish right, duty, lia or obligations. ies The expression “facts in issue” means and includes—any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. 14Explanation —Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue. ‘Thus, ina dispute relating to possession of house, ownership would be fact in issue, since once the ownership is decided, who should have possession can easily be decided just by application of law. In criminal law, ingredients ofan offence are ‘facts in issue’. Say example, in case of murder, whether death is caused or not, whether death was caused with same intention as required by section 300 IPC or not? Whether accused entitled for any right of private defense or not? These are ‘facts in issue’. Example given in the IEA is: Illustrations * Aisaccused of the murder of B. At his trial the following facts may be in issue:— © That A caused B’s death; (will fix the liability as required by section 300 IPC) That A intended to cause B’s death; (will fix the liability as required by section 300 IPC) © That A had received grave and sudden provocation from B; (will reduce the liability as provided in section 300 IPC) © ThatA atthe time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature. (will absolve from any liability since it general exception to any offence and a very good defense) 5) Document- ‘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. Example- © Writing isa document; © Words printed, lithographed or photographed are documents; © Amaporplanisa document; © Aninscription on a metal plate or stone is a document; © Acaricature isa document. The term document includes all material substances on which thoughts of the people are expressed by writing or in any other way, by a mark ora symbol. For instance, the wooden board on which the bakers, the milk men, indicate by notches, the number of loaves of bread or liters of milk supplied to the customers, are documents. 6) Evidence- ‘The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove. According to Sir Blackstone, ‘Evidence’ signifies that which demonstrates, makes clear or ascertain the truth of the facts or points in issue either on one side or the other. According to Sir Taylor, Law of Evidence means through argument to prove or disprove any matter of fact. ‘The truth of which is submitted to judicial investigation. 15Section 3 of The Indian Evidence Act, defines evidence in the following words- Evidence means and includes- (1) All the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called Oral evidence; (2) Allthe documents including electronic records produced for the inspection of the court; such documents are called documentary evidences The definition of Evidence given in this Act is very narrow because in this evidence comes before the court by two means only- (1) The statement of witnesses. (2) Documents including electronic records. But in them those things have not been included on which a Judge or a Penal authority depends for this position. ‘The Hon'ble Supreme Court of India in Sivrajbhan v. Harchandgir held “The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don't get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party's statement is not Evidence.” 7) Proved- 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 exists. When the Court believes it to exist, it ‘means it is proved beyond reasonable doubt. In the case of criminal proceeding the guilt of the accused is tobe proved beyond reasonable doubt. In civil proceedings proving beyond reasonable doubt is not necessary, only balancing of possibilities and probabilities is sufficient. The meaning of proved means positive findings. 8) Disproved- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Disproved is contrary to proved. It also means negative findings. In disproved the existence of such fact is not proved but its non-existence is proved. 9) Not Proved- A fact is said not to be proved when it is neither proved nor disproved. There is no positive or negative findings. It is a situation where the parties fail to explain precisely, how the matter stands. 10) Affidavit An affidaviisa wrinen satement made voluntarily by anfantordeponent under an oath adminiered by a person who is legally authorized to do so. Affidavits are confined only to those facts w' deponent is able of his own knowledge to prove. An affidavit filed by a party cannot be termed as evidence. Affidavits cannot be used in evidence. It can only be used if the Court permits to be used for sufficient Teasons. 1611) Motive- ‘A motive in law is the cause that moves the people to commit a certain act. The motive isa very essential factor to be seen behind every act, specially a criminal act committed, It can be explained with the help of an example- Rekha, who was the owner's daughter, was killed by the tenant dheeraj, who had a evil eye on Rekha. Dheeraj had tried to rape Rekha but Rekha managed to escape and told her mother about the incident on account of which Rekha’s father abuseingly told dheeraj to vacate the house immediately. This may be taken as the motive of the Murder. If the prosecution is able to prove the motive, then the Court has to consider it and see whether itis adequate or not. Where there is a direct evidence, the evidence of motive isnot of much significance. 12) Circumstantial evidence- It is one of the well established fact in law that the witness may lie but the circumstances never lie, Its not necessary that a direct ocular evidence is needed to prove that a person was behind the crime. The guilt of a person can also be proved by circumstantial evidence. For conviction in the case of circumstantial evidence the following conditions must be accomplished. They are- ‘The circumstances from which the conclusion of the guilt is to be drawn should be fully established. ‘© Thefacts established should be consistent and they should not be explainable on any other hypothesis except that the accused is guilty. © Thenature of the circumstances should be conclusive. © Theyshould include only the facts which are to be proved. © There must bea chain of evidence completely showing that in all human probability the act must. have been done by the accused. 13) May Presume- (Bite term “may presume” means that the Court has the authority to presume the fact as proved, or to call ‘upon for a confirmatory evidence, as the circumstances require. In such a case the presumption is not a hard and fast presumption, incapable of rebuttal. Such presumptions in law are called as ‘juris et de jury’. The Court may presume a fact or regard such fact as proved, unless it is disproved, or it may ask for its progt 14) Shall Presume- When a Court presumes a certain fact it has no other option except considering the fact as proved unless evidence is given to disprove that fact. The party interested in disproving that fact can produce evidence if he can. In such a case the Court will have the power to allow the opposite party to disprove the fact which is presumed as proved and if the opposite party is successful in disproving the fact then the Court shall not presume the fact. The words “shall presume” indicates that presumption therein is unrebuttable. 15) Conclusive Proof- ‘When one fact is declared by this act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.EXTENT AND APPLICATION OF EVIDENCE ACT SECTION 1 ‘Whole of India- except state of Jammu and Kashmir Applies to all judicial proceedings in or before any court including court martial, but not to affidavits nor the proceedings before an arbitrator. Judicial proceedings: Includes any proceeding in the course of which evidence is or may be legally taken on oath. © Administrative Tribunals- not bound to follow the technical rules of evidence ~ principles of natural justice ‘© Commission of inquiry- not bound to follow the technical rules of evidence — principles of natural justice © Income tax tribunals- certain powers of civil court exercised in certain specified matter- judicial proceedings only for limited purposes- bound to follow the technical rules of evidence for limited Purpose. ‘Election tribunals- bound to follow the technical rules of evidence ~subject to the provisions of the Representation of Peoples act © Industrial tribunals- deemed to be judicial proceedings - bound to follow the technical rules of evidence © Departmental proceedings- not bound to follow the technical rules of evidence — principles of natural justice © Court martial- act applies to court martial proceedings other than the court martial convened under the Army Act, the Naval Discipline Act, or the Indian Navy (Discipline)Act 1934 or the Air Force Act. Evidence law applies to all native court martial but not to foreign court martial. © _Affidavits- not bound to follow the technical rules of evidence — principles of natural justice ‘© Arbitration proceedings- not bound to follow the technical rules of evidence — principles of natural justice 18COMMENCEMENT OF THE ACT [September 1872 OF THE RELEVANCY OF FACTS Section 5 Evidence may be given of facts in issue and relevant facts Theory of relevancy of facts Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, 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 the law for the time being in force relating to Civil Procedure. Frusstra probstur quod probatum non relevant It would be frustrating and disgusting to prove facts which are irrelevant. Illustrations Ais 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 the club; ‘A’s causing B’s death by such beating; A’s intention to cause B’s death. SCHEME OF INDIAN EVIDENCE ACT Three broad categories, firstly what to prove (5 to 55), Secondly, Who to prove (100-115), Lastly how to prove (rest of IEA). PRINCIPLE OF RES GESTAE rinciple of Res gestae in English law all facts which are connected through ‘part of the same transaction’ ‘are called as evidence of res gestae’, however in India such facts are codified from section 6 to section 11. Res Gestae in IEA are: Facts forming part of same transaction (section 6) Facts which are occasion, cause or effect of facts in issue (Section 7) Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8) Facts necessary to explain or introduce relevant facts (section 9) Things said or done by conspirator in reference to common design (Section 10) When Facts not otherwise relevant become relevant because these facts: — facts in issue m 11) ae ene or any relevant fact either highly probable or highly improbable (sectior 19Facts forming part of same transactions (Section 6): (acts 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. All facts which are connected with the ‘facts in issue’ due to: 1. Proximity of time 2. Proximity of place 3. Continuity of action 4. Purposes, whether happen at same time and place or different time and different place ‘Then, they are said be ‘part of the same transactions’ For example (a) ("Ais accused of the murder of B by beating him. Whatever was said or done by A or Bor the by- anders at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.\ (0) Aisaccused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goalsare broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present atall of them. (©) - A sues B for a libel contained in a letter forming part ofa 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. (@) 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. [Facts which are occasion, cause or effect of facts in issud| (Section 7): These facts are those which provide either occasion or cause or create effect over ‘facts in issue’. For example in murder case, ‘presence’ of accused and victim at the place of occurrence at same time or accused “having gun’, at given time, or ‘altercation between’ accused and victim are the facts proving occasion, and thus they are relevant in this section. Firing’ of bullet is cause of death, so firing’ as such is a relevant fact; ‘firing of bullet’ may have effect of causing death or serious injuries, here injuries or death is effect of ‘firing of bullet’, so such injuries are relevant facts. Mlustrations (©The questionis, whether A robbed B. ‘The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed itor 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 toA, which afforded an opportunity for the administration of poison, are relevant facts. 20Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8): Faces suggesting motivd (say example previous fighting, property dispute, love affair, family dispute, ‘business rivalry etc.) preparatio} (say example just before the murder accused purchased a gun or bullets, or took training for shooting, or in case of forgery, he purchase few stamp papers to forged a sale deed etc) (er conduct, whether previous or subsequent of the parties are also relevan) (examples of previous conducts Tike, previous attempts, any fights; example of subsequent conduct such as being missing from house after committing murder, suspicious act of hiding himself or certain goods used for the offence etc.) cis important to note that conducts of parties as well as their agents both are relevant in any suit or eee Illustrations (GA is tried for the murder of B. The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. (b) A sues B upon a bond for 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, itrelevant. (©) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. (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 or other wills to be prepared of which he did not approve, are relevant. (e) Ais accused of a crime. The facts, 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 favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. Generally, conduct does not include a bare statement, however, ifsuch statement has affected the conduct ofthe parties, then not only such conduct but also statement both will be relevant. For example: (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. (g) The question is, whether A owes B rupees 10,000. The fact that, A asked C to lend him money, and that D said to Cin A’s presence and hearing “Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees” and that A went away without making any answer, are relevant facts. 21(h) The question is, whether A committed a crime. The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant. (i) Ais accused of a crime. ‘The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. (The question is whether A was ravished. ‘The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant. ‘The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157. (k) The question is whether A was robbed. The fact that, soon after the alleged robbery, he madea complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant. ‘The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157. Facts necessary to explain or introduce relevant facts (section 9): Cinen certain fact can explain any fact in issue or any relevant fact, and by such explanation the parties can Support or rebut any inference drawn from such facts, then these types facts are called as explanatory facts, and they are thus relevant. Explanatory facts are those facts which can explain a fact which is already taken and inference are drawn from such fa] © Aisaccused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, asa conduct subsequent to and affected by facts in issue. However, the fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent. © introduce a fact which ultimately assert or deny any fact in issue or relevant fact, ‘Assues B for inducing C to break a contract of service made by him with A. C, on leaving A's service, says to A~“Lam leaving you because B has made me better offer.” The statement isa relevant fact as explanatory of C’s conduct which is relevant as a fact in issue. © support or rebut an inference suggested by a fact in issue or relevant fact, 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 transaction. 22© establish the identity of anything or person whose identity is relevant, for example fact that some witnesses identified the accused during Test identification Parade (TIP) is relevant under this Section. © fixthe time or place at which any fact in issue or relevant fact happened, Post mortem report or other scientific reports, fixing the time of murder etc., through some process are relevant. For example, B, the diseased was last seen taking food at 8 PM. His dead body was recovered next very morning at 6 from agriculture field. Undigested food was found in the stomach of the diseased. It will be concluded that death must have happen within 6 hours of his taking of food i.e. his death must have caused somewhere between 8 PM to 2 AM of the early morning, © show the relation of parties by whom any such fact was transacted As tried for a riot and is proved to have marched at the head ofa mob. The cries of the mob are relevant as explanatory of the nature of the transaction. Things said or done by conspirator in reference to common design (Section 10): This is most often used section in cases related to conspiracy. It provides that during existence of a conspiracy, whatever were said or done by the conspirators in furtherance of conspiracy is relevant against all conspirators, Essentials of this section are: © Proof ofan existed conspiracy (reason to believe) between all people whose statement or conduct is proposed to be proved © Statement or conduct of conspirator must be limited to the one which was in furtherance (direct, relationship) with the said conspiracy. Illustration Reasonable grounds exist for believing that A has joined in a conspiracy to wage war against the Government of India. Then, the facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of aletter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he leftit. Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime; Badri Rai v. State of Bihar, AIR 1958 SC 953. The words “common intention’ signify a common intention existing atthe time when the thing was said, done or written by the one of them. It had nothing to do with carrying the conspiracy into effect; Akbarv. Emperor, AIR 1940 PC 176. Ifprima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all; Jayendra Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716. 23‘When Facts not otherwise relevant become relevant because these facts make other facts in issue or any relevant fact either highly probable or highly improbable (section 11): Facts which are not otherwise relevant will become relevant: © ifthey are inconsistent with any fact in issue or relevant fact; © Thequestion is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A wasat 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. © ifby themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. © — Thequestion is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, Cor D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by B, Cor Dis relevant as it highly suggests that it must have committed by A OTHER RELEVANT FACTS (SECTION 12-16) © Facts tending to enable Court to determine amount of damages or compensation are relevant under section 12 of IEA. For example, at given time, income of victim’s family, number of family members, medical expenditure after accident etc. © Facts necessary to establish a right or custom in question are relevant in section 13 of IEA. For example, the ‘transaction’ by which the right or custom in question was created, claimed modified, , asserted or denied, or which was inconsistent with its existence of such right or custom are relevant ifthe said right or custom itselfis disputed. Take a practical example, a demands easement right through property of B. fact that he has enjoyed this for last many years are relevant since it prove the easement. © Facts showing existence of state of mind or of body or bodily feeling are always relevant under section 14 of IEA. 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. (For example ‘A’ is tried for a crime. The fact that, he said something indicating an intention to commit that particular crime is relevant, But the fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant.) However, where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact. © Thus,a Facts showing the existence of any state of mind, ‘Aisaccused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articlesis relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen. 24such as intention, Ais charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A’s having previously shot at B may be proved. Ais charged with sending Theartening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters. Ais tried for the murder of B by intentionally shooting him dead. The fact that, A on other occasions shot a Bis relevant as showing his intention to shoot B. The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant. ‘A isaccused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A's intention to harm B's reputation by the particular publication in question. ‘The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B. knowledge, A isaccused of fraudulently delivering to another person a counterfeit coin which, atthe time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen. The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin is relevant. The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant. ‘The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious. The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person. good faith, Ais sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith. Ais sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, contractor. A’s defence is that B’s contract was with C. ‘The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with Bon C’sown account, and not as agent for A. ‘Ais accused of the dishonest misappropriation of property which he had found, the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not befound.. 25‘The fact that A knew, or had reason to believe, the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim toit, is relevant as showing that the fact that A knew of the notice did not disprove A’s good faith. negligence, rashness, A sues B for damage done by a god of B's which B knew to be ferocious, The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to Bare relevant. ‘Assues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby Awas injured. Statements made by A as to the state of his health at or near the time in question, are relevant facts. ‘Assues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby ‘Aas injured. The fact that, B's attention was drawn on other occasions to the defect of that particular carriage, is relevant. The fact that, B was habitually negligent about the carriage which he let to hire is relevant. ill-will or goodwill existence of any state of body or bodily feeling, ‘The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts. ‘The question is, whether A’s death was caused by poison. Statement made by A during hiss illness as tohis symptoms, are relevant facts. Facts bearing on question whether act was accidental or intentional (Section 15) are relevant. For example A is accused of burning down his house in order to obtain money for which itis insured. The fact that, A lived in several houses successively each of which he insured, in each of which he insured, ineach of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental. Similarly, A is employed to receive money from the debtors of B. Is A’s duty to make entries inl book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether his false entry was accidental or intentional. The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant. Another example is where A is accused of fraudulently delivering to B a counterfeit rupee. The ‘question is, whether the delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental. Existence of course of business are relevant (Section 16) when there is a question as to whether a particular act was done, in which according to the given course of business, the said act naturally would have been done. For example, if the question is, whether a particular letter was dispatched. ‘The facts that, it was the ordinary course of business forall letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant. Similarly, ifthe question is, whether a particular letter reached to A. The fact that, it was posted in due course, and was not returned through the Dead Letter Office, ae relevant, ast will be inferred that letter must be reached to A otherwise would been renum as dead ete.ADMISSION Admission isa voluntary acknowledgment of a fact. Importance is given to that admission that goes against the interests of the person making the admission. For example, when A says to B that he stole money from C,A makes an admission of the fact that A stole money from C. This fact is detrimental to the interests of A. The concept behind this is that nobody would accept or acknowledge a fact that goes against their interest unless it is indeed true. Unless A indeed stole money from G, itis not normal for A to say that he stole money from C. Therefore, an admission becomes an important piece of evidence against a person. On the other hand, anybody can make assertions in favor of themselves. They can be true or false. For example, ‘Acan keep on saying that a certain house belongs to himself, but that does not mean itis necessarily true. Therefore, such assertions do not have much evidentiary value. Admission as per Indian Evidence Act - Section 17 of Indian Evidence Act defines Admission as thus - An admission is a statement, oral or documentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned. Asper this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in Section 18 to 20 as follows - Section 18 - Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived - Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions. By suitor in representative character - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. ‘Statements made by - (1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or (2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. According to this section, statements made a persons who are directly or indirectly a party to a suit are admissions. Thus, statements of an agent of a party to the suits are also admissions. Statements made by persons who are suing or being sued in a representative character are admissions, only if those statements ‘were made by the party while being in that representative character. Similarly, statements made by persons who havea pecuniary interest in the subject matter of the proceeding and statements made by persons from whom such interest is derived by the parties in suit, are also admissions if they are made while the maker had such an interest. For example, A bought a piece of land from B. Statements made by Bat the time when B was the owner of the land are admissions against A. Section 19 - Admissions by persons whose position must be proved as against party to suit- Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability. 27Illustration - ~—Aundertakes to collect rent for B. © — Besues A for not collecting rent due from C to B. © Adenies that rent was due from C to B. A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B. Section 20 - Admission by persons expressly referred to by party to suit - Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. Ilustration - 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. To be considered an admission, it is not necessary for a statement to give a direct acknowledgment of liability. It is sufficient even if the statement suggests an inference about the liability. For example, A is charged with murder of B by giving poison. The statement by A that he purchased a bottle of poison is admission because it suggests the inference that he might have murdered B using that poison, even though it does not clearly acknowledge the fact that A murdered B. In the case of Chekham Koteshwara Rao vs C Subbarao, AIR 1981, SC held that before the right of a party can be taken to be defeated on the basis of an alleged admission by him, the implication of the statement must be clear and conclusive. There should pot be any doubt or ambiguity.Further, it held that it is necessary to read all. of his statements together. Ths stray elements elicited in cross examination cannot be taken as admission. Itisimportant to note that Indian Evidence Act does not require that an admission be of statements that are against the interests of the maker. All that is necessary is that the statement should suggest some inference as toa fact in issue ot relevant to the issue, even ifthe inference is in the interest of the maket of, the statement. Self serving prior statements are also admissions. For example, A person can say to B tha{he did not steal money from C. This isa self serving statement and is a valid admission. Does this mean that a person can make self serving statements and escape from his liability? The answer is no because such self serving admissions are governed by the provisions of Section 21, which says the following - : Section 21 - Proof of admissions against persons making them, and by or on their behalf - Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases - (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) Anadmission may be proved by or on behalf of the person making it, ifit is relevant otherwise than as an admission. 28Illustrations (a) The question between A and Bis, whether a certain deed is or is not forged. A affirms that itis genuine, Bthat itis forged. A may prove a statement by B that the deed is genuine, and B may prove statement by ‘Athat deed is forged; but A cannot provea statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged. (b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, ifhe were dead, under section 32, clause (2). (©) Ais accused of a crime committed by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2). (@) A isaccused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue. (©)A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skillful person to examine the coin as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last preceding illustration. From the above illustrations itis clear that the general rule is that a person is not allowed to prove his own admissions. Otherwise, as observed in R vs Hardy, 1794, every man, if he were in difficulty, or in view of one, might make declarations to suit his own case and then lodge them in proof of his case. This principle, however, is subject to some important exceptions, which allow a person to prove his own statements. ‘These are as follows - Exception 1 - When the statement should have been relevant as dying declaration or as that ofa deceased person under Section 32. Section 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favor of or against the person making the statement. In circumstances stated in Section 32 such a statement can be proved by the maker himself if he is still alive. In the situation described in Illustration (b), in a case between the shipowner and the insurance company, the contents of the log book maintained by the captain would have been relevant evidence if the captain were dead under Section 32. Therefore, the captain is allowed to prove the contents of the log book even in the case involving him and the shipowners. 2 Statements as to bodily feeling or mind - It enables a person to prove his statements about his state of mind or body if such state of mind or body is a fact in issue or is relevant fact and if the statement was made at the time when such state of mind or body existed and further if the statement is accompanied with his conduct that makes the falsehood of the statements improbable. In Illustration (4), the statements of A that show that he refused to sell them below their value, are self serving admissions. However, itis acceptable because they reflect A’s state of mind and were associated with a conduct of refusing to sell that makes their falsehood improbably. 29Exception 3 - The last exception allows a person to prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. There are many cases in which a statement is relevant not because itis an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own statements. These cases are covered by the following sections - Section 6 - When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same transaction. For example, immediately after a road accident, if the victim has made a statement to the rescuer about the cause of the accident, he can prove that statement because itis part ofthe same transaction. Section 8 - A statement may be proved by or on behalf of the person make it under Section 8 if it accompanies or explains acts other than statements or ifit influences the conduct ofa person whose conduct is relevant. For example, where A says to B, “You have not paid my money back”, and B walks away in silence, A may prove his own statement because it has influenced the conduct of a person whose conduct is relevant. Section 14 - When the statement explains his state of mid or body or bodily feeling when any such thing isrelevant or isin issue, it can be proved by himself. For example, where the question is whether a person has been guilty of cruelty towards his wife, he may prove his statements made shortly before or after the alleged cruelty which explain his love and affection for and his feeling towards his wife. When oral admissions as to contents of documents are relevant: 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 the rules hereinafter contained, or unless the genuineness of a document produced is in question. Section 22 lays down that the contents of the documents can be proved by the documents itself and not by oral evidence. The contents of a document capable of being produced must be proved by the instrument and not by parole evidence. Under the provisions of the Evidence Act the contents of the documents are proved either by primatly evidence or by secondary evidence. According to Section 64, the document must be proved by primai evidence, ie., by producing the document itself. In absence of primary evidence it can be proved by: evidence under section 65. Section 22, accordingly, states that oral evidence as to the contents of adocument will be relevant only when the secondary evidence of the document can be given under this section. When acceptable materials are avoidable through witnesses, their depositions cannot be rejected merely on the ground that the complaints given by P.W. 4 and P.W. 21 were not marked and muchalka obtained from both parties were not produced. The contents of the documents like certified copy, Xerox or photocopy, attested or duplicate copies can be produced to support oral evidence. In case the document is registered then except in the case of a will itis not necessary to call an attesting ‘witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. Where the original contract is available to ascertain the quantum of damages there is no question of letting in secondary evidence. ‘Section 22A - When oral admissions as to contents of electronic records are relevant: Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. Under this section the electronic records are presumed to be genuine unless any question arises in this regard. Oral evidence as to contents of electronic records may be allowed when the genuineness of such records is in question. 30‘Section 23 - Admissions in civil cases, when relevant In civil cases no admission is relevant, ifit is made either upon an express condition that evidence of itis 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. Explanations Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126. Section 31 Admissions not conclusive proof, but may estop: Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. Section 31 deals with the effect of admission in the matter of conclusiveness. It provides that admissions are not conclusive proof of matter admitted but operate as estoppels. This section gives evidentiary value of admissions containing in Sections 17°to 30 of the Evidence Act. Admissions are not conclusive. “it sometimes happens that persons make statements which serve this purpose or proceed upon ignorance of the true position; and itis not their statements but their relations— with the estate, which should be taken into consideration in determining the issue.” An admission, unless it operates as an estoppels, is not conclusive, but is open to rebuttal. A party is not bound by his own admission unless it acted upon the ‘opposite party. The party against whom it is proved is at liberty to show it was mistaken or untrue. In civil cases the admission must be accepted as a whole or rejected as whole. In criminal cases an admission consists of inculpatory and exculpatory elements. It can be wise to accept inculpatory part of the Statement ofthe accrued, but if the statement is only evidence the exculpatory part cannot be rejected. ‘Admissions are of many kinds. They may be considered as being on record actually if they are either in the pleadings or in answer the interrogations or implied from the pleadings by non-traversal. By admiscion an existing title can be proved. An admission by a party in respect of joint family property held by him is admissible and binding, An admission is a best evidence binding the opposite party. Where the averments of the applicant in an interlocutory application for bringing the legal representatives on record and accepted by the opposition party, the opposite party would be bound by the averments and cannot resile from them. Where an admission was made by the predecessor in title, he became bound by it. (Fetowing principles may be drawn from Section 31: 1. Although the Section 31 is given place in the chapter of relevancy it does not concern with relevancy, rather it concerns with the evidentiary value of admissions. 2. Admissions are substantive piece of evidence but do not confer title. 3. Admissions in civil cases or judicial admissions or admissions in pleadings shall be taken as a whole. 4. — Admission or confession should be taken as a whole. 311 CONFESSION ‘ | ‘The word “confession” appears for the frst time in Section 24of the Indian Evidence Act. This ectioh comes under the heading of Admission so itis clear that the confessions are merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the law of Evidence defin confession as “confession is an admission made at any time by a person charged with a crime stating suggesting the inference that he committed that crime.” In Pakala Narayan Swami v Emperor Lord Atkin observed “A confession must either admit in terms the offence or at any rate substantially all the facts whid constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminati fact is not in itself a confession”. In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores. Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that containis self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession. However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there was n wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. When there is enough evidence to reject the exculpatory part ofthe accused person’s statements, the Court may rely on the inculpatory part. Forms of confession ‘Aconfession may occur in many forms. When it is made to the court itself then it will be called judici confession and when it is made to anybody outside the court, in that case it will be called extra-judic confession. It may even consist of conversation to oneself, which may be produced in evidence if overt by another. For example, in Sahoo v. State of U.P. the accused who was charged with the murder of daughter-in-law with whom he was always quarreling was seen on the day of the murder going out of tHe house, saying words to the effect: “Ihave finished her and with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for itis not necessary for the relevancy of a confession that it should be communicated to some other person. Judicial confession- Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind. Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form ofa prayer. It may be a confession toa private person. An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction ifit passes the test of credibility. Extra-judicial confession is generally made before private person which includes even judicial officer in his private capacity. Italso includes a magistrate not empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply. 32Difference between judicial and extra-judicial confession- Judicial confession Extra-judicial confession 2. 3. = 1. Judicial confessions are those which are made to a judicial magistrate under section 164 of CrP.C. or before the court during committal proceeding or during trial. . To prove judicial confession the person to whom judicial confession is made need not be called as witness. Judicial confession can be relied as proof of guilt against the accused person if it appears tothe courtto be voluntary and true. A conviction may be based on judicial confession. 1. Extra-judicial confession are those which are ‘made toany person other than those authorized by law to take confession. It may be made to any person or to police during investigation of an offence. 2. Extra-judicial confession are proved by calling the person as witness before whom the extra- judicial confession is made. 3, Extra-judicial confession alone cannot be relied it needs support of other supporting evidence. 4. Itis unsafe to base conviction on extra-judicial confession. “Voluntary and non-voluntary confession- the confession of an accused may be classified into Voluntary ‘ind non-voluntary confession. A confession to the police officer is the confession made by the accused while in the custody of a police officer and never relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the change against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supporting that by making it he would gain any advantage or avoid any evil ofa temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be proved against the person making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are made non-voluntarily} Section 24 of Indian Evidence Act - confession caused by inducement, threat or promise, when irrelevant in criminal proceeding- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supporting that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him. Ifa confession comes within the four corners of Section 24 is irrelevant and cannot be used against the maker. (Gagredienss of Section 24 To attract the prohibition enacted in Section 24 the following facts must be established: © Tharthe statement in question is a confession, That such confession has been made by the accused, ‘That it has been made toa person in authority, 33 .© Thatthe confession has been obtained by reason of any inducement, threat or promise, froma person in authority, © Such inducement, threat or promise must have reference to the charge against the accused, ahd © The inducement, threat or promise must in the opinion of the court be sufficient to give accused ground, which would appear to him reasonable, for supporting that by making ithe ‘would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. | 1. Confession made by inducement, threat or promise-'a confession should be free and voluntdry. “Ifit proceeds from remorse and a desire to make reparation for the crime, itis admissible. Ifit flows: hope or fear, excited by a person in authority, itis: inadmissible "fThe term inducement involvesa of prosecution if the guilt is not confessed and a promise of forgiveness if itis so done. Itis very difficul} to lay down any hard and fast rule as to what constitutes inducemenc(le is for the judge to decide in every inducement may be express or implied, it need not be made to the accused directly from the person in authority{ Before a confession can be received as such, it must be shown that it was freely and voluntarily made! This means that the confession must not be obtained by any sort of threat or violence, not by any promise either direct or indirect, expressed or implied, however slight the hope or fear produced thereby, not by the exertion of an influence. The ground on which confessions made by the accused under promises of favour or threats of injury are excluded from evidence is not because any wrong is done tothe accused in suing than but because he may be induced by pressure of hope or fear to confess the guilt without regard to their truth in order to obtain relief or avoid the threatened danger. Thus itis clear that if threat or promise from persons in authority is used in getting a confession it will not be taken into evidence. Every threat or inducement may not be sufficient to induce the accused to confess a guilt. The proper question before excluding a confession is whether the inducement held out to the prisoner was calculated tomake his confession untrue one. The real enquiry is whether there had been any threat of such a nathure that from fear of it the prisoner was likely to have told an untruth. If so, the confession should not be admitted. Incase of an ordinary confession there is no initial burden on the prosecution to prove that the confession sought to be proved is not obtained by inducement, threat, etc. It is the right of the accused to have the confession excluded and equally the duty of the court to exclude it even suo moto. Itis idle to expect that an accused should produce definite proof about beating or pressure. But he must point out some evidence or circumstances on which a well-sounded conjecture at least, that there was beating or pressure may reasonably be based. 2. Inducement must have reference to the charge! the inducement must have reference to the charge against the accused person that is the charge of offence in the criminal courts and inferencing the mind of the accused with respect to the escape from the charge. The inducement must have reference to escape from the chargét Thus, it is necessary for the confession to be excluded from evidence that the accused should labour under influence that in reference to the charge in question his position would be better or ‘worse according as he confesses or not. Inducements in reference to other offences or matters or offences committed by others will not affect the validity of the confession 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. \ ‘The inducement need not be necessarily expressed. It may be implied from the conduct of the person in “Zuthority, from the declaration of the prisoner or the circumstances of the case. Similarly it need not be made to the prisones directly its suficentto have come this knowledge provide i appears to have induced to: ‘confession.| 343, Threat, inducement and promise from a person in authority-"the threat, inducement and promise on account of which the accused admits the guilt must come froma person who has got some authority over the matteF}To be clear the person giving different promises, threatening the accused or inducing him to make the confession must be a person in authority as stated in the Pyare Lal v. State of Rajasthan . Ifa friend of the accused induces him to make a confession or a relation if he makes him a promise that if he confesses he will get him released or even if he threatens him and the accused on that account admits his guilt this statement will not be excluded by Section 24.as the threat, inducement or promise do not emanate from a person in authority. Ifthe accused makes the confession thinking that by doing so the authorities would soften the attitude towards him the confession cannot be said to be non-voluntary. The term “person in authority” within the meaning of Section 24 was held to be one who has authority to interfere in the matter charge against the accused. If this definition is to be accepted that term “a person in authority” would mean only the police who are in charge of the investigation and the magistrate who is to try the case. This view appears to be too restrictive, It appears that a person in authority within the meaning of Section 24 should be one who by virtue of his position wields some kind of influence over the accused. ‘The question as to whether a person to whom a confession has been made is a person in authority would naturally depend on the circumstances of each case having regard to the status of the accused in relation to the person before whom the confession is made. A house surgeon is a person in authority in relation to nurse of the same hospital. 4. Sufficiency of the inducement, threst or Promise {Defore a confession is excluded, inducement, threat or promise would in the opinion of the court be sufficient to give the accused person ground which would appear to the accused reasonable for supposing that by making the confession he would gain an advantage or avoid an evil ofthe nature contemplated in the section. Consequently the mentality of the accused has to be judged and not the person in authority] That being the case, not only the actual words, but words followed by acts or conduct on the part of the person in authority, which may be taken by the accused person as amounting to an inducement, threat or promise, will have to be taken into account. A perfectly innocent expression, coupled with acts or conduct on the part of the person in authority together with the surrounding circumstances may amount to inducement, threat or promise. It does not turn upon as to what may have been the precise words used but in each case whatever the words used may be itis for the judge to consider whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime or worse for him if he does not. The expression, “whatever you say will be used as evidence against you” will not exclude a confession. On the other hand “you better pay the money than go to jail”, “if you tell me where my goods are I will be favourable to you”, “I wil get you released if you tell me the truth”, have been held to be sufficient to give the accused grounds for supposing that by making the confession he would gain an advantage or avoid an evil. It must be borne in the mind that the advantage gained or the evil avoided must be of temporal nature therefore any inducement having reference to a future state of reward or punishment does not affect the admissibility of confession. A confession will not be excluded which has been obtained by the accused by moral or religious exhortation. The expression “you had better as good boys tell the truth”, “kneel down and tell me truth in the presence of the Almighty”, do not give out any temporal gain and so the confession derived on these confessions are not excluded by Section 24. Confession obtained on the allegation by the panches that if the accused does not confess he shall be excommunicated will not exclude the confession. It should be borne in the mind that the gain or evil must be in reference to the proceeding against him. 35Evidentiary value of confession Value of judicial confession- a case"where there is no proof of corpus delicti must be distinguished from another where that is proved. In the absence ofthe corpus delicti a confession alone may not suffice to justify conviction) “A confessional statement made by the accused before a magistrate is a good evidence and accused be “convicted on the basis of it. A confession can obviously be used against the maker of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held that the confession of an accused person is substantive evidence and a conviction can be based solely on a confession} Ifitis found that the confession was made and was free, voluntary and genuine there would remain nothing tobe done by the prosecution to secure conviction. Ifthe court finds that itis true that the accused committed the crime it means that the accused is guilty and the court has to do nothing but to record conviction and sentence him, No question of corroboration arises in this case. Normally speaking it would not be quite safe as.a matter of prudence if not of law to base a conviction for murder on the confession of the alleged murder by itself and without more. It would be extremely unsafe to do so when the confession is opentoa good deal of criticism and has been taken in the jail without adequate reason and when the story of murder as given in the confession is somewhat hard to believe. This observation was made by the Supreme Court and therefore it cannot be said to be a good law in the case of judicial confession. Now the settled law is that a conviction can be based on confession only if it is proved to be voluntary and true, If corroboration is needed it is enough that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is enough. ‘Value of extra-judicial confession} extra-judicial confessions are not usually considered with favour but that does not mean that such a confession comin, aa aaa ene lsely to whom it is made in the circumstances which support his statement should not be believs “The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial confession. “Be received with great case and caution. Itcan be relied upon only when its clear, consistent and convi ‘The court has to decide whether the person before whom the admission is said to have been madelare trustworthy witnesses. The extra-judicial confession is open to the danger of mistake due tothe misapprehension ofthe witness before whom the confession was made tothe misuse ofthe words and| failure of the party to express his own meaning\This is also open to another sort of danger. There record and there being tio sanction behind it very easy for the prosecution to catch hold of any wit ‘who may come and depose that the accused admitted his guilt in his presence on some particular time, to those reasons itis very dangerous for the courts to base conviction on the sole basis of extra-j confession. Usually and as a matter of caution courts require some material corroboration to an judicial confession statement corroboration which connects the accused person with the crime in Extra-judicial confessions have to received with great caution and care and when the foundation off conviction is the confession alleged to have been made by the accused there are three things which the prosecution must establish. First, that a confession was made, secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it is true. Such a confession must be proved by an independent or satisfactory evidence. In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by her father and step-mother in the National park. The alleged extra-judicial confession was made by accused during detention in forest office. No mention of said confession in report given to police nor any witness present there mentioning about the same confession, This extra-judicial confession cannot be relied on. 36 no