INDIAN EVIDENCE ACT 1982 – Q&A

Evidence:
1. The expression evidence has been derived from a Latin term „evidare‟
meaning being plain, being apparent.
2. Law of evidence is Lex fori; meaning Law of place of action.
3. Law of evidence enables the court to decide the existence or non-existence of
facts.
4. Evidence means collection of facts produced by parties to the suit or
proceedings before the court either orally or in the form of documents with the
object of proving or disproving the facts in issue or the relevant facts.
5. As per the definition evidence includes all the statements made by the
witnesses connected to the facts in issue or relevant facts.
6. Facts in issue are those which are asserted by one party and denied by the
other party in a suit or proceeding and are dealt under Sec 3 of the IEA, 1872.
7. Sec 5 of IEA deals with the basic principal of evidence. As per this Section
evidence should be produced before the court by the parties to the suit or
proceedings to prove or disprove either the facts in issue or relevant facts and
on no others.
8. All statements made by witnesses connected to facts in issue or relevant facts
are called oral evidence.
9. All documents including the electronic documents produced by the parties for
the inspection of court are called documentary evidence.
10. Types of Evidence:

Oral Evidence Documentary Evidence

Direct Evidence Indirect Evidence Primary Evidence Secondary Evidence

Circumstantial Evidence Hearsay Evidence

11. Best evidence means

 Oral evidence must be direct (Sec 60)
 A document should be proved by producing only the primary evidence.
(Sec 64)
 Whenever a transaction should be in writing as per law, to prove the
transaction only that document which contained the transaction should
be produced before the court (Sec 91)
 Here say evidence is no evidence (Sec 60)

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Circumstantial Evidence
1. As per this Sec 60 hearsay evidence is no evidence but circumstantial
evidence is valid evidence and admissible.
2. Psychological facts remain in the mind of the accused person and he alone
knows of the facts. So they are generally provable with the help of
circumstantial evidence.
3. Physical facts - Preparation, attempt and commission are generally provable
with the help of direct evidence. In case it is not available they can be proved
with the help of circumstantial evidence.
4. It is the duty of the prosecutor to probe the motive of the accused when the
case is going to be decided on the basis of circumstantial evidence.

Facts in Issue:
1. Facts in issue are the facts asserted by one party and denied by the other
party in a suit or proceeding pending before the court.
2. Facts in issue are the facts that are in dispute between the parties to the suit
or proceedings.
3. Facts in issue are rights asserted by one party before the court and denied by
the other party.
4. Facts in issue are the facts which are foundation of a criminal trial and civil
proceedings.
5. In criminal law facts in issue is popularly known as charge.
6. In civil law facts in issue are known as issues.
7. Charge under criminal law / issues under civil law should be framed by the
court.
8. Facts in issue in criminal law have to be proved by Public Prosecutor. If he
proves it leads to the conviction of accused person; facts in issue has to be
disproved by defense lawyer, if he succeeds in disproving it, it leads to the
acquittal of the accused person.
9. Sometimes facts in issue is neither proved by PP nor disproved by the
defense lawyer. Then the facts in issue is considered not proved.
10. Facts in issue not proved means releasing the accused person on the basis of
benefit of doubt.
11. In civil law some issues are to be proved by the plaintiff and some other
issues are to be proved by the defendant, depending on the natures of the
issues framed by the court.
12. Onus of proof shifts to defense in criminal cases under certain exceptions. For
ex – Right to private defense.

Document:
1. Evidence is of 2 types – oral and documentary.
2. Document is any substance on which the thoughts of a person can be
expressed or subscribed or inscribed.

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3. A book, a painting, a film, a signboard, a number on Kilometer stone, a

number on the stem of a tree, complete hardware and software etc.
4. Documentary evidence is one of the types of evidence defined by IEA.
5. Documentary evidence is the best evidence.
6. When it comes to comparison documentary evidence is considered superior
to oral evidence.
7. In documentary evidence there are 2 types –
a. Primary Evidence – which means the original document itself is
produced for the inspection of the court.
b. Secondary Evidence – that which is produced before the court in case
of non availability of primary evidence like certified copies of the
original, Xerox copies of originals, hand written copies of the original,
counter foils of the documents etc.
0th
8. 1 Class certificate and Sale deed - They both are secondary evidence,
certified copies, but equal to primary evidence.

Public Documents - Section 74

1. Public document is a document published for public knowledge.
2. It is a document authenticated by a public officer and made available for
public reference.
3. They are always presumed to be genuine
4. In their official capacity public documents are admissible during judicial
proceedings.
5. They can be proved by producing the concerned official gazettes journals
government order circulars etc.
6. In cases where the original document is a public document, secondary
evidence also may be submitted.
7. Public documents include:
a. Documents forming the records of acts of sovereign authority
b. Documents forming the records of acts of official bodies and tribunals
c. Documents forming the records of the public offices belonging to
legislature, executive or judicial wings of the State of India or Common
Wealth or of a foreign country.
8. Examples of Public document are First Information Report, Charge Sheet,
Judgment, confessions, Income tax return, ballot paper, decree passed by a
civil court, birth or death register maintained by local body etc.

Presumption - Section 4
Presumption is an inference or a conclusion drawn by the court relating to the
existence or non existence of a fact on the basis of proved facts or known facts.
1. Basically presumptions are of 2 types –
a. Presumptions of fact
b. Presumptions of law

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2. Presumptions of fact are also known as discretionary presumptions or natural

presumptions.
3. Presumption of fact are expressed with the expression „may presume‟ In case
of this presumption even though there are proved facts or known facts before
the court, it may or may not presume the existence or non-existence of certain
facts. It means court has got the discretion or choice to draw the presumption
or not to draw the presumption.
4. Whenever the expression „may presume‟ occurs in any section of IEA the
court may or may not presume the existence or non existence of certain facts.
5. In case of presumption of fact even if the court presumes certain facts those
presumptions can be rebutted or disproved because these presumptions are
known as rebuttable presumptions.
6. For example – Section 113A (Presumption as to abetment of suicide by
married woman) and all the illustrations U/S 114 (Court may presume
existence of certain facts) of IE Act.
7. The second type of presumption is known as presumption of law and is also
called mandatory presumptions or obligatory presumptions.
8. In case of these presumptions of law court does not have the discretion, it is
mandatory for the court to draw the presumption on the proof of certain facts
/at the knowledge of certain facts.
9. In presumption of law there are 2 types –
a. Shall presume
b. Conclusive proof
10. Where ever the expression shall presume appears in any section of IE Act,
upon the proof of certain facts or knowledge of certain facts, court shall
presume the existence or non existence of another fact.
11. For example – Sections 105 (Burden of proving that the case of the accused
comes within exceptions) & 114A (Presumption as to absence of consent in
certain prosecutions of rape) of IE Act deal with the expression shall presume.
12. In case of these sections court does not have the choice, it must draw the
presumption. In case of the expression shall presume even if the court
presumes a fact, it can be rebutted by the other party by producing evidence.
13. Another type of presumption of law is expressed with the expression
„Conclusive Proof‟
14. In case of conclusive proof, on the proof of a fact or knowledge of a fact, the
court comes to conclusive proof of another fact.
15. When court considers one fact as conclusive proof it becomes an irrebuttable
presumption. So parties are not allowed to produce evidence to rebut or
disprove the presumption drawn by the court.
16. For example Section 112 (legitimacy of child) Act & Section 82 (child less than
7yrs of age) of IE Act deals with conclusive proof.

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Res Gestae – Section 6.

1. Facts forming part of the same transaction are known as Res Gestae.
2. Transaction means an offence in criminal law and a civil suit in civil law.
3. Section 6 says facts forming part of an offence or civil suit, even though not in
issue are relevant whether they occurred at the same time and place or at
different times and places.
4. Whatever is said or done either by the parties to the suit or proceedings or by
the bystanders immediately before the occurrence of the transaction or at the
time of occurrence of transaction or immediately after occurrence of
transaction, if capable of explaining the transaction, those sayings or doings
are relevant.
For example – a young married girl saying „aunt see what your son has done
to me‟ when the husband hit her is not Res Gestae. It is not explaining what
the transaction was.
5. C/L – Chilakaloorpet bus case.
Some thieves stopped the bus of 30 passengers. Passengers got furious and
one of them threw petrol in a can on the bus and put fire. The bus got burnt
and about 20 people got charred to death with few people surviving jumping
out of the bus. This is a case of direct evidence. Prosecutor wanted to use
Section 6 – Res Gestae too but it did not fall under that category because
there was a time gap between the incident and declaration.
6. Conditions for the application of Section 6:
a. The statement given by the accused or the victim or the bystanders
must be a spontaneous statement.
b. Such statement must be a statement of fact, not the law.
c. Such statement must be given explaining the circumstances
surrounding the transaction.
d. That statement must be capable of explaining the transaction in some
way or the other.
e. If the above conditions are fulfilled regarding the statement it becomes
admissible as evidence under section 6.
7. Important Points under Section 6:
a. Res Gestae means facts forming part of the same transaction.
b. In a dowry death case, previous instances of dowry demand are
relevant as Res Gestae as they form part of the same transaction.
c. In a liable suit previous letters exchanged by the plaintiff and defendant
are relevant U/S 6. If they are capable of explaining the liability which is
the facts in issue in the present pending case.
d. If there is too much time gap between the transaction and statement
given by person, such statement is not considered Res Gestate.
e. Shoutings & cries by persons at the time of commission of an offence if
capable of throwing light on the offence that took place, are relevant
U/S 6.

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Test Identification Parade (TIP) – Section 9

1. Test identification parade of the accused is popularly known as TIP.
2. When the witness saw the accused person for the first time in his life at the
time of or immediately after the commission of the offense then identification
of the accused by the witness may be required.
3. When the witness tells the investigating officer (I/O) the features of the
accused, then he may get the sketch of accused drawn either by a painter or
by a computer specialist. On the basis of that sketch the I/O identifies the
accused and also other persons having similar features.
4. Then I/O requests the Junior Magistrate (JM) of 1st Class to give a date for the
arrangement of TIP.
5. On the date given by JM of 1st Class, I/O brings the accused and other
identical persons to the prison and he arranges the order of those persons.
6. Then JM of 1st Class will be requested to supervise the TIP.
7. JM of 1st Class must order the I/O to vacate that place where TIP is to be
conducted.
8. Afterwards JM of 1st class jumbles the line arranged by the I/O and calls the
witness to that place with a direction to identify the accused.
9. If the witness correctly identifies the accused, the one who is already
presumed by I/O, TIP is considered to be a success. But if the witness
identifies a wrong person as accused, then TIP is considered a failure.
10. The evidence of TIP U/S 9 is of no value, unless the same witness identifies
the same accused person even at the open court during the time of trial.
11. The open court identification of the accused is considered substantive
evidence and best evidence.
12. Then the TIP evidence U/S 9 will be used to corroborate (support) the open
court identification of the accused by the witness.
Identification of Property:
1. When the stolen property is recovered by the I/O, he puts it for identification of
the owner of the property in the police station
2. If the owner of the property correctly identifies his property, identification of
property is considered successful.
3. But the same owner must identify the same property when it is presented
before him during the time of trial.
4. On the basis of open court identification of property, court will hand over the
property to the owner.

Facts otherwise not relevant can become relevant - Section 11:

1. Section 11 makes relevant 2 types of facts.
2. These 2 types of facts are actually not relevant but are made relevant by
section 11.
3. The 2 types of facts are:
a. Facts those are inconsistent with the facts in issue or relevant facts.

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b. Facts which on their own or in connection with other facts make the
existence or non existence of any fact in issue or relevant fact highly
probable or improbable.
4. Professor Wigmore explained 5 cases where facts seem to be irrelevant but
become relevant. Those 5 cases with illustrations are:
a. Alibi or elsewhere.
(ex. Did X kill A at Hyd? X proving that he was in Delhi)
b. Non access (No question of sexual relationship between the wife and
husband at the time of conceiving the baby)
(ex. Is X father of A, a 3yr aged boy in Hyd? X proving that he is
coming for the first time after 5 years from Dubai)
c. Survival of the alleged diseased after the supposed time of his death.
(ex. Did X kill A on 15th? X proving that A had dinner with B on 17th)
d. Self inflicted harm alleged.
(ex. Did X kill A? X proving that A committed suicide. It is easier for X
to prove that A committed suicide rather than proving that he has not
murdered A)
e. Offence committed by a third person.
(ex. Did X kill A? X proving that B killed A)

Alibi – Section 11
1. Alibi means elsewhere.
2. When the accused person pleads before the court that he was not there at the
place where the offence has been committed and he was somewhere else in
a distant place such a plea of the accused in known as alibi.
3. In case of alibi the burden of proof is shifted to the defense.
4. The defendant lawyer has to establish that it was impossible for his client, the
accused, to be present at both the places at the same time.
5. Where it is impossible for the accused to commit the offense at one place and
to be present elsewhere at the same time, this is the property of alibi.
6. The place of the offense and the place where the accused was said to be at
the time offense need not be too distant.
7. Even though the accused is in the same city where the offense has been
committed still he can plead alibi by showing that it is impossible for him to be
present at the same time in both the places & it is enough.
8. The plea of alibi is looked down suspiciously by the court, so to succeed the
defense lawyer has to bring independent and impartial witnesses to prove
alibi.
9. The plea of alibi has to be taken by the defense lawyer very carefully
otherwise it may boomerang.

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Confession – Section 24 to 30
All confessions are admissions but all admissions are not confessions.
1. Confession is nothing but admission of guilt voluntarily by the accused
person.
2. Admission is the genesis, confession is the species. So all confessions are
admission but admissions are not confessions.
3. Confession does not have the independent existence of its own.
4. When admission is made by a person relating to his guilt that admission itself
is called confession.
5. In confessions there are 2 types –
a. Judicial confessions
b. Extra judicial confessions
6. Judicial confessions are confessions made before a judicial magistrate or a
court.
7. Extra judicial confessions are those confessions made to any person other
than judicial officer
8. Both judicial confessions and extra judicial confessions if found to be credible
they are considered substantive evidence. So accused person can be
convicted on the basis of his confession or other evidence is required.
9. The law of confession provided under Sec 24 to 30 is exclusively applicable to
criminal cases only.
10. Confession to be relevant must be voluntary in nature.
11. Confession made by Inducement, threat or promise given to accused
becomes irrelevant.
12. Such inducement, threat or promise must be any person having authority over
him like a police officer, judge etc and relating to charge pending against the
accused.
13. However confession given by the accused person after the removal of such
inducement, threat or promise it becomes relevant.
14. Confession to a police officer – Section 25
a. Confession made to a police officer is inadmissible as evidence.
b. When a confession is recorded by a police officer the general
presumption that he might have extracted it from the accused by using
inducement, threat or promise.
c. But in England confession recorded by a police officer is considered
absolutely relevant and provable.
15. Confession made while in police custody – Section 26
a. Confession given by a person while in police custody to any person is
irrelevant. It cannot be used against him.
b. But if the confession given in the immediate presence of a judicial
magistrate is relevant.
c. A person is said to be in police custody from the time of his arrest till he
is sent to the judicial custody the court.

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d. Once the accused is arrested wherever he may be whether in a train or

a bus he is considered to be in police custody until his remand is
ordered by the court to judicial custody.
16. Conditional relevancy of confession Section 27
a. This section makes part of the confession made to a police officer
relevant.
b. Whenever a confession given by the accused to a police officer
contains the information leading to the discovery of any material object
used by the accused for committing the offence that part becomes
relevant.
c. For Ex: X confessed the murder committed by him to the police officer
thus - My name is X I killed Y with a knife. I have hidden the knife in the
backyard.
d. On the basis of the second part of the statement if the IO identifies the
knife this part of the confession statement becomes relevant
e. First part of the confession where X said he killed Y is irrelevant as it is
hit by Sec 25.
f. The constitutional validity of Sec 27 has been challenged by the
aggrieved persons in the cases but both Privy Council & Supreme
Court of India consider Sec 27 as valid.
C/L Pullukuri Kotaiah vs Emperor &
C/L Deoman Updhyaya vs State of UP
g. The contention of aggrieved person is that if accepted a statement
should be in full and if rejected should be rejected in full. But Sec 27
accepts a part of the statement as relevant and rejects another part of
the same statement as irrelevant. So this Section is unconstitutional
but both the courts state that the Sec 27 is fair, just and reasonable.
17. Confession otherwise relevant not to become irrelevant because of promise to
secrecy etc. – Section 29
a. Confession otherwise relevant does not become irrelevant because of
a promise to secrecy etc.
b. C/L Phone Tapping Case: People‟s Union vs UOI.
c. When confession is given by a person under promise of secrecy it is
relevant.
d. When confession is given by a person because of the fraud committed
by police on him, still the confession is relevant.
e. When confession is given by a person under the impact of intoxication
such confession is also relevant.
f. When confession is given by a person as a part of interrogation of him
such confession is also relevant to the extent of Sec 27 of IEA.
g. When confession is recorded by a magistrate without following the
procedure provided under Sec 164 of CrPC still it is relevant.
18. Confession of the co-accused - Section 30
a. Where more than one are being tried jointly for the same offence.
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b. Confession is made by one of such persons affecting himself and those

others is proved.
c. Court may take into consideration such confession against him and
also against the others.
d. is relevant even against the other accused persons when they are tried
jointly for that offence.
19. When the accused person explained in detail the particulars of his native
place the training under gone by him the money offered to his family the
particulars of family members and friends and how he committed the offence
along with others such confession can be considered voluntary.
Ex: C/L Bombay Terrorist Attack Case
20. Confession given by the accused when found to be credible, then he/she
person can be convicted on the basis of such confession alone.
Ex: C/L Nalini vs St of Tamilnadu (Rajiv Gandhi Assntn)
C/L Ram Singh vs Sonia & Others
C/L BabuBhai Uday Singh Parmar vs St of Gujarat.

Extra Judicial confession:

1. There are 2 types of confession – Judicial confession and extra judicial
confession.
2. When it is made to the court during judicial proceedings are called judicial
confession,
3. When it is made to outside the court in that case it will be called extra judicial
confession.
4. It can be made to anybody, any private person, even a judicial officer in
private capacity or a magistrate not empowered to record confession U/s164
CrPC.
5. It could be oral, in writing, in any form of a letter or a prayer, or a conversation
to himself.
6. That confession must be a free and voluntary.
7. It may even consist of conversation to oneself which may be produced in
evidence if overhead by another.
8. For example in Sahoo vs St of UP the accused who was charged with murder
of his daughter in law with whom he was always quarreling was seen on the
day of murder of his daughter in law “I have finished her and with her the daily
quarrels”. This statement was held to be confession relevant in evidence. It is
not necessary for relevancy of a confession that it should be communicated to
some other person.

Retracted confession:
1. Retracted confession means a confession which has been withdrawn or
rejected later on by the accused who made it.
2. If it is proved that a confession though retracted was originally made
voluntarily it can be acted upon along with the other evidence.
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3. There are 3 important rules regarding retracted confessions:

a. A confession cannot be regarded as involuntary merely because it was
retracted later on.
b. A retracted confession may form the basis of conviction if it is believed
to be true and made voluntarily.
c. Retracted confession of a co-accused cannot prove a charge where
the other evidence against an accused is wholly unsatisfactory.
d. C/L Vinod Solanki vs UOI – It was held by CS that a confession when
retraced does not automatically mean that it has been useless. The
burden is then on the prosecution to satisfy the court that the
confession is voluntary and not the outcome of coercion, threat or
inducement coming from the person in authority.

Discuss general principles governing admissions.

1. Admissions (dealt U/S 17 to 23 & 31) is a statement of fact,
2. It is accepting the truth of a matter voluntarily by a person.
3. Law has not prescribed any particular form to make an admission.
4. Admissions can be made ether orally or in written form or electric form, or by
signs or by gestures or by silence or by conduct or even by soliloquies
statement. (Speaking to oneself)
5. Admission contains an inference or conclusion.
6. Such inference or conclusion must be relating to the facts in issue or relevant
facts.
7. Law of admissions is equally applicable to both civil and criminal law.
8. Statements made by the parties during judicial proceedings are known as self
regarding statements.
9. Self regarding statements may be classified under 2 heads:
a. Self serving statement – Statements which serve, promote or advance
the interest of person making it. Hence they are not allowed to be
proved. They enable to create evidence for themselves.
b. Self harming statement – Statements which harm or injure the interest
of the person making it. These self harming statements are technically
called admissions and are allowed to be proved.
10. The general principal is that self harming statements alone are considered
admissions.
11. No person comes forward to give a self harming statement unless it is true.
So such statements are considered admissions and accepted as relevant
evidence.
12. But there are certain exceptions to the above rule. Sometimes even self
serving statements can also be considered admissions.
Parties competent to make admissions - Sections 18:
1. Parties to the suit or proceeding can make admissions.
Ex: Plaintiff and Defendant can make admissions in civil cases. Victim and the
accused person can also make admissions in criminal cases.
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2. Agents of the parties can also make admission on behalf of the parties when
authorized by the parties.
Ex: Lawyer can make an admission before the court when authorized by his
party.
3. Admission can be made by a person acting in the representative character of
an institution or a corporation.
Ex: Vice chancellor of the University can make an admission relating to the
affairs of the University; CEO of a company can make an admission relating
to the affairs of that company.
4. Persons having pecuniary interest or personal interest in the subject matter of
the suit or proceeding can make admissions.
Ex: Any partner of a partnership firm can make admission before the court
relating to the matters of that partnership firm.
5. Persons from whom, parties to the suit or proceeding derived their interest in
the subject matter of that suit.
Ex: Father can make an admission in a suit between his sons relating to
property inherited from him.
Statements by Strangers - Sections 19 & 20
1. The general principle is strangers to the suit or proceedings are not allowed to
make admissions but Sec 19 & 20 are exceptions.
2. Whenever position of stranger has to be proved against one of the parties to
the suit or proceedings such stranger can make an admission.
3. For Ex: X undertakes to collect rents for Y. Y sues X for not collecting rent due
from Z. X states that there is not rent due from Z. A statement by Z that he
owes rent for Y is an admission and relevant fact against X.
4. Persons to whom a party to the suit has expressly referred for information in
reference to a matter of dispute can make the admission and that is relevant.
5. For ex: Whether a horse sold by A to B is sound. A says to B go and ask C as
C knows all about it. C‟s statement is an admission.
Proof of Admission – Section 21
1. No person who makes an admission which is nothing but a self harming
statement comes forward to prove it before the court as it harms his own
interest.
2. In civil law, if the admission is made by plaintiff it has to be proved by the
defendant and if the admission made by the defendant it should be proved by
the plaintiff before the court.
3. In criminal law, if the admission is made by accused it has to be proved by the
victim and if the admission made by the victim it should be proved by the
accused before the court.
Self Servicing Statements when admissible
1. General rule is self serving statements are not accepted as admissions.
2. When the self serving statement is of such nature that the person making it
was dead, it would be relevant as between third persons. (Ex. Dying
declaration /Admission as applicable U/S 32 of IE Act)
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3. When it related to any state of mind or body and is accompanied by conduct

rendering its falsehood improbable.
4. If it is relevant otherwise than as an admission.
5. Ex: X the captain of a ship is tried for casting her away. Evidence is given to
sow that the ship was taken out of her proper course. X 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. X may prove these statements because they
would be admissible between third parties, if he were dead U/S 32.
6. X is accused of receiving stolen goods knowing them to be stolen. He offers
to prove that he refused to sell them below their value. X may prove these
statements though they are admission because they are explanatory of
conduct influenced by fact in issue.
Relevancy of Oral Admissions - Sections 22:
1. As per the best evidence rule provided, under Sec 64 of evidence Act to prove
the contents of a document before the court the party to the suit or proceeding
must produce the primary evidence only.
2. But there are certain exceptions U/S 22 and they are:
3. When the document which contained admission is lost or destroyed then that
admission can be explained before court orally.
4. Further when the question before the court is the genuineness of the
document then also the admission contained in the document can be
explained orally.
Admissions in civil cases when relevant.- Sections 23:
1. This section is exclusive applicable to civil cases.
2. Says admission made by parties; as part of out of court settlement of their
dispute; are irrelevant as evidence before the court.
3. The object of Sec 23 is to encourage the parties to the civil suit to go for out of
court settlement of their dispute.
Admissions not conclusive proof but may be estopped - Section 31
1. As per this section admissions are not the conclusive proof of the matters
admitted.
2. Admission can be rebutted by producing evidence
3. But when an admission operates as estoppel nobody will be allowed to
produce evidence to disprove or rebut that admission.
4. When admission operates as an estoppel it becomes conclusive proof of the
matters admitted.
5. So court does not allow any evidence to disprove such admission.
Types of admissions:
1. There are 2 types of admissions recognized by law
a. Formal or judicial admissions
b. Informal or extra judicial admissions.
2. When it is made to the court during judicial proceedings it is called judicial or
formal admission.
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3. When it is made to outside the court it will be called extra judicial admission or
informal admission.
4. It can be made to anybody, any private person, even a judicial officer in
private capacity or a magistrate not empowered to record admission U/s164
CrPC.
5. Admission is the genus confession is the species so all confessions are
admissions but all admissions are confessions.
6. Admissions can be made either orally or in written form or electric form, or by
signs or by gestures or by silence or by conduct or even by soliloquies
statement. (Speaking to oneself)
7. That admission made must be a free and voluntary.
8. It may even consist of conversation to oneself which may be produced in
evidence if overhead by another.
9. For example in Sahoo vs St of UP the accused who was charged with murder
of his daughter in law with whom he was always quarreling was seen on the
day of murder of his daughter in law “I have finished her and with her the daily
quarrels”. This statement was held to be confession relevant in evidence. It is
not necessary for relevancy of a confession that it should be communicated to
some other person.
10. Judicial admissions needs not be proved.

Distinguish ‘Admissions’ and ‘confessions’.

S# Admission Confession
1 Voluntary acknowledgement as to the Voluntary statement made by an
truth of a fact accused admitting his guilt
2 No a conclusive proof Judicial confession is a conclusive
proof
3 All admissions are not confessions All confessions are admissions
4 Admission is the genus Confession is the species.
5 It is made in civil cases It is made in criminal cases
7 Admission can be made on behalf of Confession can be made by the
another or by a stranger accused himself.

Sec 45, 46 & 51 – Expert Evidence

1. Expert is one who knows everything about something.
2. Generalist is one who knows something about everything.
3. Opinion of expert is relevant U/S 45.
4. An expert is a skilful professional in a particular field viz Foreign law, Science,
Arts, Hand writing, Finger Prints etc
5. Some of the experts are Forensic experts, Calligraphists, Explosives experts,
Serologists, Chemical analyzers etc
6. Opinion of expert witness plays an important role in the matter of evidence
and enables the court to arrive at proper conclusions.

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7. It is only a piece of evidence and cannot be taken as substantive evidence

since it has to be judged along with other evidence.
8. For example the report of handwriting expert is not admissible as evidence in
the absence of formal proof.
9. When an expert gives his opinion in the court relating to a particular issue that
is not conclusive proof of the matters.
10. It means expert opinion is relevant but it is not conclusive proof of the issues
pending before the court.
11. As per Sec 46 expert evidence can be contradicted or disproved by a party by
producing other evidence.
12. In the same manner expert evidence can be corroborated or supported by
other evidence if available.
13. In one of the cases SC laid down that a witness must confine himself to the
facts and not to state of his opinion.
14. When an expert opinion is relevant the reasons on the basis of which that
expert framed such an opinion are also relevant.
15. Expert opinion is subject to corroboration and also contradiction.
16. When there is inconsistency between direct evidence and expert evidence
always direct evidence is considered credible as direct evidence is evidence
of fact, whereas expert evidence is merely an opinion.

Doctrine of Estoppel - Section 115 to 117

1. The word estoppel is derived from a French word which literally means „shut
the mouth‟.
2. When a person by declaration makes/induces another to believe a thing he
cannot deny its truth subsequently.
3. Ex: X falsely sold a certain land to Y inducing him to believe that it belonged
to him. Later if gets that land he cannot set aside the sale saying that he was
not the owner of land at the time of sale.
4. The doctrine of estoppel has been formulated by the court in C/L Pickard vs
Sears - X owner of machinery, allowed his friend Y to be in possession of
some machinery. Z obtained a decree against Y and seized the machinery for
which X did not raise objection immediately. Later Z sold the machinery to
other persons. X raised objection and sued Z for setting up his title. Suit
dismissed on the ground that Z cannot be estopped from sale.
5. As per this doctrine once a person gives statement on an issue afterwards he
is stopped from giving a different statement on the same issue. It means that
person is estopped or prevented from going back on his previous statement.
6. Object of estoppel is to protect the interest of a person who acted in good faith
believing the statement of another.
7. It is based 3 principles:
a. No one can blow hot and cold in the same breath.
b. No one can take the advantage of one‟s wrong.
c. No one can accept and reject at the same time.
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Section 115 – Ingredients of Estoppel

1. One person must make a statement to another
2. Such statement could be by words spoken or written or by any other means
3. That statement must be statement of fact not law
4. The person to whom such statement has been made must believe it to be true
and alter his position.
5. Afterwards the person who made the statement will not be allowed to go back
on that statement by giving a different statement
6. Estoppels are of 3 kinds:
a. Estoppel by Record – Refers to judgments or public records which are
true. A person who acts in pursuance of judgments or public records
cannot be estopped.
b. Estoppel by deed – Refers to agreements. When a person enters into
an agreement and his statement is furnished therein he shall not be
permitted to deny it.
c. Estoppel by Conduct – Refers to acts or words or deeds. When a
person through his acts words or deeds induces another person to
believe the existence of a thing and make him to act upon it, he
estopped from denying the existing of such facts.
Section 116 – Estoppel of Tenant and of Licensee
1. Deals with estoppel between
a. A tenant of immovable property and his landlord.
b. Licensor and licensee.
2. As per this section a tenant of immovable property is estopped from denying
the ownership of true land lord
3. In the same manner a licensee is estopped from denying the authority of the
licensor in giving such license
Section 117 – Estoppel of Acceptor of Bill of Exchange and Bailee
1. Deals with estoppel between
a. Acceptor of a bill of exchange and drawer
b. Bailer and bailee
2. As per this section an acceptor (Bank) of Bill of Exchange is estopped from
denying the authority of the drawer to draw that bill.
3. A bailee is estopped from saying that the bailer has no authority over the
goods bailed to him. (Tailor & watch given for repair)
Promissory Estoppel or Requisite / New Estoppel
1. Recognized by courts of equity of England.
2. Does not come within the meaning of Sec 115 of Evidence act.
3. It relates to future promises, wherein a person makes a promise to another
thereby induces him to do an act to alter his position.
4. The person promised is estopped from denying the truth of that promise.
5. This concept of promissory estoppel was first used in the case of MP Sugar
Mills vs State of UP.

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6. Government announced total exemption from sales tax. Based on the promise
defendant set up a hydrogenation plant by raising huge loan. Later
government changed the policy and withdrew the exemption. Supreme Court
held that government is bound by its promise and directed to give exemption
to the defendants company.

Dying Declaration - Section 32(1):

1. Dying Declaration is the declaration given by a person as to the cause of his
death or as to the circumstances leading to his death.
Object of Dying Declaration:
1. Dying declaration is an exception to the principal that hearsay evidence is no
evidence.
2. Dying declaration is accepted as evidence :
a. Out of necessity
b. Because of the presumption that the person who is about to die does
not lie
c. Because of the notion that man does not meet his maker with a lie in
his mouth.
3. There is no prescribed form for giving a dying declaration. It can be given by
any means that can be understood by other persons. It could be given orally,
in written form, by signs, gestures or sounds.
CL Pakala Narayana Swamy vs King Emperor.
Pakala Narayana from Berhumpur was the Son in Law of Diwan of Bijapur.
He and his wife once came to the father in laws house and during that visit the
Son in Law took some money on loan from the peon Nookaraju of the Diwan
and went back to his home at Berhumpur. After several reminders Nookaraju
gets a letter from the wife of Pakala Narayana asking him to come to their
place at Berhumpur and collect the payment. He showed that letter to his wife
and left for Berhumpur. Later his body found cut into 7 pieces, packed in a
trunk and left at a railway station. Based on the manufacturer’s name on the
trunk and other evidence police found that the truck and knife were purchased
by Pakala Narayana. In this case statement by wife was wherein the
deceased showed the letter to her was accepted as dying declaration. Privy
council made it clear that the evidence in such circumstances must be
proximately related to the actual occurrence.
4. Dying declaration can be recorded by anybody. It may be a police officer or a
magistrate or doctor or any other person like you & me.
Characteristics of Dying Declaration:
The dying declaration to be credible before the court must be having the following
characteristics.
1. The declarent must die after making the declaration.
2. The declarent must have been dead as a consequence of injuries inflicted but
not a consequence of some other reason or ailment. C/L Moti Singth vs St of
UP.
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3. Declarent must die not immediately after sustaining injuries but sometime
later after giving the declaration.
4. If the declarent survived, that statement by the declarent can be used for
corroboration U/S 157 of IE Act. C/L Ramprasad vs State of Maharashtra.
5. Dying declaration must explain the cause of death of the declarent not the
death of some other person.
6. Dying declaration must be complete.
7. Dying declaration should be clear and unambiguous.
8. The declarent must be in fit condition to give dying declaration.
9. The declarent must be capable of giving dying declaration.
10. When there are several dying declarations given by the declarent to several
persons before his death all these declarations must be identical. Then only
they are considered credible.
Dying Declaration is considered credible and trust worthy:
1. When it is recorded by a competent magistrate
2. When recorded immediately after the incident
3. When recorded in the exact words of the declarent
4. When the offence is proved to have been committed by the accused in a
visibly lighted place.
Important points of Dying Declaration:
1. Dying declaration if found to be credible and trust worthy court can record the
conviction of the accused person on the basis of that statement alone.
Corroboration is not required.
2. In case of dying declaration when a witness comes to the court explaining the
declaration of the deceased oath should not be administered to him and that
person should not be cross examined.
3. Dying declaration if recorded in the exact words of the declarent by a
competent magistrate after ensuring fitness of the declarent it is considered
trust worthy.
4. A letter written 5 years prior to the incident explaining the circumstances in
which the writer may die and if he happens to die in the same circumstances
that letter is held to be his dying declaration.
5. If the doctor gives the fit certificate it is enough for the magistrate or any other
person for recording dying declaration. But fit certificate in all the cases is not
mandatory.
6. The term death U/S 32 includes both suicidal and homicidal deaths. C/L
Sudhakar vs St of MP

Section 133 – Accomplice

1. Accomplice means guilty associate or partner in commission of a crime who in
some way of the other is connected with the commission of the crime.
2. When a crime takes place at a secluded place it is not possible for the police
to get evidence. In such circumstances police resort to arrest the suspects
and divulge information by making them give evidence against their own
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colleague. Such person is picked by the police to extract information is

accomplice.
3. Accomplice is a competent witness and his evidence shall be considered
trustworthy even though there is no corroboration of such evidence.
4. Conviction can be given to the accused on the basis of accomplice evidence.
5. But Sec 114B says that court may presume the evidence of accomplice
unworthy of credit unless corroborated in material particulars.
6. There is inherent inconsistency between Sec 133 and Sec 114B. The same
has been resolved by the Supreme Court in K Hashim vs St of Tamilnadu. In
this case the SC clearly stated that Sec 133 prevails over Sec 114 B as the
expression „shall‟ under 133 is superior than the expression made U/S 114.

Legitimacy of child – Section 112

1. A child born during the subsistence of a valid marriage is conclusively
presumed to be a legitimate child.
2. If the child is born within 280 days after dissolution of marriage it is conclusive
proof of legitimacy.
3. To establish legitimacy of a child under section 112 the following conditions
must be satisfied.
a. Child must be born during the subsistence of a valid marriage.
b. Child must be born within 280days of dissolution of marriage.
c. When child is born within 280days of dissolution of marriage the
mother must have remained unmarried.
d. It should not be shown that the husband and wife had no access to
each other.
4. When a child is born within 280days after the dissolution of marriage the
mother must have remained unmarried.
5. Children born during live-in is legitimate
6. Burden of proof is on husband to non accessibility

Ambiguity / Patent ambiguity/Latent Ambiguity – 93 to 98

1. Ambiguity means confusion
2. The ambiguity or confusion that can be found in document is basically 2 types
a. Patent Ambiguity
b. Latent Ambiguity
Patent Ambiguity
1. When the ambiguity or confusion can be found very easily on the fact of the
document such ambiguity is known as patent ambiguity.
2. For Ex: X agreed to sell his property to B either for 10 lacs or 15 lacs. If a
document is drafted with such fluid consideration that confusion is known as
patent ambiguity.
3. It can be identified by any person very easily. Consideration in any contract
must be certain when a document contains patent ambiguity court does not
allow any evidence to clear that ambiguity or confusion.
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4. Such document is considered invalid

5. A fresh document without any ambiguity should be drafted.
Latent Ambiguity
1. Latent ambiguity means the ambiguity hidden in the contents of the document
2. In case of latent ambiguity on the face of the document everything seem to be
quite clear but when we go through the contents of the document we find
some confusion hidden inside them
3. For ex: X agreed to sell his house in Hyderabad to B but in fact X has no
house in Hyderabad but he has one in Secundrabad. In this case X can give
evidence saying that his house in Hyderabad means his house in
Secundrabad.
4. Court allows such evidence to clear the confusion as it is latent ambiguity.
5. In case of latent ambiguity the document is not declared invalid.
6. A party is allowed to produce evidence to clear the confusion.
7. Basically latent ambiguity arises because of 3 reasons:
a. Misrepresentation of parties or places
b. Due to variance in language used in the document
c. Due to difficulty in understanding technical terms

Presumption being alive - Section 107

1. This section applies when the question arises whether a person is alive or
dead.
2. If a person is proved to have been living for last 30 years he shall be
presumed to be living.
3. But, anybody says that he is dead the burden of proving that he is dead is on
that person who affirmed it.
4. C/L Surjit Kaur vs J Singh – A person was shown to be alive for last 30years.
His wife said that her husband had gone to Indonesia and his whereabouts
are unknown for a period of more than 7years.It was held not sufficient to
rebut the presumption U/S 107.
Presumption of Death - Section 108
1. If a person has not been heard of for 7 years he is presumed to be dead by
law.
2. If anybody says he is alive the burden of proving that he is alive is on that
person who affirmed it.
3. This is known as presumption of death.

Presumption of Rape – Section 114A

1. Inserted by Criminal laws (Amendment) Act 1983
2. Amendment became necessary with increasing rape cases and acquittal in
Mathura Rape Case.
3. Direct evidence not possible in Rape cases since the offence takes place in
secluded places.
4. Statement made by the victim (of rape) can be taken as material evidence.
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5. Generally in rape cases, the accused pleads consent as defence and gets
acquittal. But after the amendment the court presumes no consent was given
by the victim.
6. Prior to amendment the prosecution had to prove the absence of consent and
post amendment the burden of proving consent from victim is on the accused.
7. Essentials for presumption of rape:
a. The accused must be prosecuted for rape U/S 376
b. Where the girl is under 16years even if she consented it comes under
rape.
c. The fact of sexual intercourse between the accused and the victim
must be proved.
d. Statement of the victim before the court that she did not give her
consent.
8. If all these conditions are satisfied the court shall presume the absence of
consent and the burden of proving consent will be on the accused.
9. C/L Mathura Rape case:
a. Mathura lost her parents in childhood and was brought up by her
brother.
b. Both were working as laborers and at the place of work Mathura came
in contact with the employers sisters son and decided to marry him.
c. Mathuras brother lodged a police complaint that Mathura has been
kidnapped by her lover and her family members.
d. All of them were rounded up and brought to police station.
e. After taking the statements of Mathura and her lover, head constable
asked the brother to get her birth certificate and left for his evening
meal.
f. At that time only the 2 accused police men were at the police station.
g. When Mathura and her brother were about to leave these 2 accused
police men told her to stay and asked others to move out.
h. From this point all that could be known was from Mathura‟s mouths.
i. She narrated the incident but that court considered that there was no
evidence.
j. 16 year old Mathura was called shocking liar, habituated to sexual
intercourse and that she had sexual intercourse with the police but out
of fear she might not have admitted that she had sexual intercourse
willingly.
k. Sessions court acquitted on the ground that rape was not proved and
probably with her consent.
l. High Court on appeal based on circumstantial evidence convicted
them.
m. Against Supreme Court upheld the decision of Sessions court and
acquitted them stating that when the police was taking her aside she
must have resisted and cried for help. Secondly the onus is on
prosecution to prove each ingredient of the offence.
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General rules and principles relating to Burden of Proof - Section 101 to 114A
1. Burden of proof means the responsibility of a party to the suit or proceeding to
establish its case before the court.
2. Generally who ever desires the court to give the judgment in his favor must
prove his case
3. Whoever asserts a claim before the court must prove.
a. In criminal law burden of proof is always on the public prosecutor but
for few exceptions like right to private defence the accused gets that
responsibility.
b. In civil cases basing on the issues framed by the court burden of proof
shifts from plaintiff to defendant and vice versa.
4. Whoever fails if no evidence is given after raising the claim must prove the
claim.
5. For example A sues B for a land of which B is in possession. A asserts that
the land was left to A by will of C, Bs father. If no evidence is given by either
side B would be entitled to retain his possession. So the BOP is on A.
6. Whenever a party to the suit or proceeding, requests the court to believe in
the existence of a particular fact burden of proving that particular fact is on
that party.
7. For Ex: When the accused is charged with murder he raises the plea of Alibi,
the burden of proof is on the accused to establish before court as to how he
was elsewhere and how it was impossible for him to commit murder. Here
alibi is a particular fact.
8. Under certain circumstances when a party to the suit or proceeding intends to
prove a fact before the court prior to that another fact should be proved.
9. For Ex: To prove dying declaration death of the declarent must be first proved.
10. When any fact is considered to be exclusively within the knowledge of any
person the burden of proving that fact is on him.
11. For Ex: A charged for travelling without ticket in a train. BOP that he had a
ticket is on him.
12. When the Question before the court is whether the persons are partners,
landlord and tenant or principal and agent if it is shown that they have been
acting so, court presumes the existence of such relationship between those
persons.
13. But either a partner or a landlord or a tenant or a principal or a agent says that
such a relationship never exists burden of proof as to non existence of such
relationship between them is on him.
14. When the question before the court is whether a person is the owner of the
property or not and if it is proved that the so called person is in possession of
the property court presumes him to be owner of that property.
15. But if somebody says that the person in position of that property is not the
owner burden of proof is on him to establish as to how he is not the owner of
that property.
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16. Where there is a question of good faith in transactions based on trust &
confidence between parties burden of proof is on the superior party to
establish the good faith.
17. Suppose when a transaction is there between
a. Father and Son
b. Doctor and Patient
c. Lawyer and Client
d. Swamiji and disciple
the good faith of the transaction should be proved respectively by father,
doctor, lawyer and swamiji by the court.
18. Whenever a person is accused of committing offences like waging war
against the state sedition etc in a disturbed area declared by the Government
and if that person is in position of arms, explosives etc he is presumed to be
offender. Burden of proof is on that person to establish as to how he is not the
offender.
19. A person in possession of stolen property immediately after the theft may be
presumed by the court either as thief or as receiver of stolen property, unless
he can account for his possession.
20. Whenever a married woman commits suicide within 7yrs of her marriage due
to cruelty or harassment of her husband or any of his relatives. Court may
presume such death as abetment of suicide. Burden of proof is on the
husband or any of relatives to establish as to how such suicide is not
abetment of suicide
21. Whenever a married woman dies within 7yrs of her marriage in connection
with demand for dowry either from her husband or any of his relatives‟ court
shall presume such death as dowry death. Burden of proof is on the husband
or his relative to establish as how that death is not dowry death.
22. In a prosecution for rate U/S 376 the burden of proof is on the accused to
establish as to how that sexual intercourse is not rape and how it is a result of
consent of the victim.

Presumption as to abetment of Suicide - Section 113A

1. Inserted by Criminal law Amendment act 1983.
2. Whenever a married woman commits suicide within 7yrs of her marriage law
presumes that her husband or his relatives subjected her to cruelty.
3. Court may presume such death as abetment of suicide.
4. Cruelty has the same meaning as in Sec 498A of IPC.
5. Dowry prohibition Act, 1961 did not serve the purpose.
6. Objective of this section is to eradicate atrocities and dowry deaths committed
to married women.
7. Essential conditions:
a. The case must be a suicide not murder
b. Suicide must have occurred within 7years of marriage

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c. It must be shown that she was subjected to cruelty by the husband or

any of his relative.
8. Burden of proof is on the husband or any of relatives to establish as to how
such suicide is not abetment of suicide.

Presumption as to dowry death - Section 113B

1. Inserted by dowry prohibition act 1986.
2. Whenever a married woman dies within 7yrs of her marriage in connection
with demand for dowry either from her husband or any of his relative‟s court
shall presume such death as dowry death.
3. Dowry death shall have the same meaning as in Sec 304B of IPC.
4. Essential conditions:
a. The woman must have died on account of burns, bodily injury or
otherwise in abnormal circumstances
b. She must have died within 7 years of marriage
c. It must be shown that before her death she was subjected to cruelty or
harassment or in connection with demand for dowry by any person.
5. Burden of proof is on the husband or his relative to establish as to how that
death is not dowry death.
6. Punishment is not less than 7yrs which may extend to life.
7. C/L Rajbir vilas Raju – Better to consider the offence as murder and not dowry
death when the death is gruesome.
8. Shamlal vs State of Haryana – As a result of dispute regarding dowry the
deceased was sent back to her parental home. After staying there for one and
half year she rejoined her husband after the dispute was patched up by
panchayat, shortly afterwards she died of burn injuries. SC set aside the
conviction of the accused in the absence of anything on record that she was
treated cruelly or harassment for dowry during the period she of return from
parental home to the tragic end under 304B of IPC, however found him guilty
under 498A.

Different modes of proof of hand writing – Sec 47 & 67

When the court has to form an opinion as to the hand writing or signature or both of
a person:
1. The persons well acquainted with such hand writing or signature can come to
the court and give their opinion - such opinion is relevant.
2. Generally the wife children friends business partners colleagues in the office
etc are expected to know the hand writing or signature of a person. So any
one of them can come to the court and give his opinion. It is relevant.
3. As per 47A the opinion of certifying authority which issued the digital signature
certificate is also relevant fact.

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Proof of Signature and hand writing of person alleged to have signed or written the
document produced.
1. If the person who is said to have written the document or signed the
document is alive, he must come and explain before the court whether the
handwriting or signature is of his own or not.
2. If the person who is said to have written or signed the document is not alive,
other persons who are all well acquitted with such hand writing or signature
can come to the court and explain whether the hand writing or signature is of
the person who is said to have written or signed that document.
3. Generally wife, children, friends, colleagues, business partners, clerks etc are
considered to be well acquainted with the hand writing or signature of the
deceased. So any one of them can come and explain before the court.
4. To determine the hand writing or signature of a person to be genuine court
can send that hand writing or signature to the expert called Calligraphist (Sec
45).

Judicial Notice – Sections 56 & 57.

1. Judicial notice means the power of the court to notice the existence or on
existence of certain facts.
2. Facts which are judicially noticeable need not to be proved.
3. It means there are certain well known facts or notorious facts which are
known to judiciary. So such facts need not be proved unless court directs a
person to prove them.
4. Section 57 contains lists of facts which the court is bound to take as judicial
notice. Some of them are
a. All laws in force in the territory of India.
b. All the laws or Acts caused by Parliament & State Legislatures
including special laws and local laws.
c. All seals of courts in India, all seals of the authorities of central and
state governments.
d. All the territories within India
e. Divisions of time, geographical divisions of world all the public festivals,
all the holidays notified in the official gazette.
f. All nationals facts of various nations and names of all countries in the
world
g. The national flag of every country recognized by GOI.
h. The commencement continuation and termination of war between GOI
and any other country..
i. The rules of land road and sea.

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Relevancy of judgments – Section 40 to 44

1. Sections 40 to 44 of IEAct,1872 lays down the provisions relating to relevancy
of judgments.
2. Judgments delivered by the courts are of 2 types
a. Judgments in rem
b. Judgments in personum
3. Judgments in rem are the judgment delivered by the court in a suit between
two or more parties but applicable to the whole world.
4. Judgments in personum are the judgments delivered by the court in suit
between two parties and these judgments are applicable only to those parties
not to the whole of the world.
5. Judgments in rem are delivered in matters like
a. Matrimonial jurisdiction
b. Insolvency jurisdiction
c. Probate jurisdiction
d. Admiralty jurisdiction
6. A previous judgment in rem is relevant in a present pending suit relating to
status of parties to prevent that court from deciding the status of parties that
has been already decided in the previous judgment.
7. Previous judgment in rem delivered by the court is the conclusive proof of the
status of the parties.
8. When the previous judgment operates as Res Judicata or double jeopardy
that previous judgment is relevant to prevent the court from taking cognizance
of an offence or a suit.
9. Res Judicata means between the same parties in the same type of court on
the same cause of action, second suit is barred.
10. Double jeopardy means nobody should be prosecuted or punished for the
same office twice. Every accused person has right against double jeopardy.
11. As a general principal previous judgment in personum delivered in a suit
between 2 parties is not relevant in the present pending suit where the parties
are different.
12. But there is one exception to the above general principal. When the previous
judgment in personum related to the matters of public nature, it is relevant in
the present pending suit where the subject matter is also concerned with
public nature.
13. Judgments other than those mentioned U/S 40, 41 & 42 are irrelevant unless
the existence of such judgment is a fact in issue or is relevant fact under
some other provision of this Act.
14. When the previous judgment has been obtained by the parties to the suit or
proceedings by committing fraud on the court of by colluding with each other
or from a court which does have the jurisdiction to decide the case, such
judgment can be challenged to be invalid by filing a case before the court.
15. In the case before the court the previous judgment can be presented as
relevant evidence to prove as to how it is obtained by fraud collusion etc
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Oral evidence must in all cases whatever be direct.

Explain and state the exception to this rule
1. Evidence may be classified as oral and documentary evidence.
2. Section 59 & 60 deal with provisions relating to oral evidence.
3. Oral evidence means all the statements made by the witness before the court
verbally to prove or disprove either the facts in issue or the relevant facts.
4. Verbal statements include signs and gestures.
5. Oral evidence plays a significant role in majority of criminal cases.
6. All the facts except the contents of documents and electronic records may be
proved by oral evidence.
7. However, written documents are considered the best evidence.
8. Great care must be exercised while receiving the oral evidence. Need to
check
a. How consistent the story is with itself
b. How it stands the test of cross examination
c. How far it fits with rest of the evidence / circumstance Etc.
1. As per the best evidence rule oral evidence must always be direct
2. Whenever a fact is perceived by a person by any one of his 5 senses such as
– Seeing, Hearing, Smelling, Tasting, Touching and if that person come to
court and explain orally that fact that evidence is called as oral evidence
which is direct.
3. Whenever an opinion is expressed by an expert and if he cannot be called as
a witness before the court the report or the commentary can be produced
before the court to explain his opinions.
4. Evidence relating to materials objects like knives, revolvers, vehicles, blood
stained clothes etc is also considered oral evidence.
5. Hearsay evidence is no evidence but circumstantial evidence is valid
evidence and admissible.
6. Even though Sec 60 says that hearsay evidence is no evidence there are so
many concepts under IE Act where hearsay evidence is admissible.
7. For ex: Res Gestae, Admissions (Sec 17-23 & 31), Confessions (Sec 24 to
30), Persons who cannot be called as witness (Sec 32 & 33), Expert
evidence/Opinions of 3rd person (Sec 45 to 51).
8. Falsus in uno falsus in omnibus – Evidence that is false is in one is false in all.
Indian courts treated this maxim merely as a rule of caution affecting the
weight of evidence only as there is always fringe of embroidery to a story
however true in the main. Where falsehood is merely embroidery it is not right
to discredit the whole of witness‟s evidence.
9. Admissibility of tape recorded statement as oral evidence:
a. To make relevant the tape recorded evidence the following conditions
must be fulfilled –
 The voice in the tape must be clearly audible

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 Voice of the speaker must be clearly identified to be the voice of the

accused or any other party to the suit or proceeding.
 Tampering with the tape should be totally excluded.
 The statement recorded on the tape should be explaining either the
facts in issue or other relevant facts.
 It should be proved before the court that the tape has been properly
sealed and kept in a safe place where is no chance of disturbing.
b. In C/L Pratap Singh vs State of Punjab SC held that tape recordings
are not inadmissible merely on the ground of possibility of their being
tampered with. Held that tape recorded conversation can only be
corroborative evidence but cannot be direct or primary evidence.

Hearsay evidence is no evidence. Discuss exceptions to this rule

1. Evidence given could be oral or documentary.
2. Sec 60 of IEA says that oral evidence to be admissible must be always direct;
in other words hearsay evidence is no evidence.
3. Hearsay evidence means
a. Statement made by a person not called as a witness
b. Statement contained or recorded in any book document or record
which is not admissible.
4. Hearsay evidence is also known as derivative, second hand or unoriginal
evidence.
5. It is the evidence of facts which the witness has not learnt through his own
bodily senses but learnt through the medium of others.
6. Whenever a fact is perceived by a person by any one of his 5 senses such as
– Seeing, Hearing, Smelling, Tasting, Touching and if that person come to
court and explains orally that fact that evidence is called as oral evidence
which is direct.
7. General reasons for exclusion of hearsay evidence:
a. Hearsay evidence is not given on oath or under personal responsibility
by the original declarent.
b. Hearsay evidence cannot be tested by cross examination.
c. It is intrinsically weak
d. To encourage for substitution of weaker for stronger evidence.
e. It has a tendency to prolong legal investigation
f. As truth depreciates in the process of repetition it is not reliable.
g. It may increase the opportunities for fabrication.
8. Even though Sec 60 says that hearsay evidence is no evidence there are so
many concepts under IE Act where hearsay evidence is admissible.
9. For ex: Res Gestae (Sec 6), Admissions (Sec 17-23 & 31), Confessions (Sec
24 to 30), Dying declaration (32a) evidence given in former proceedings (Sec
33) Persons who cannot be called as witness (Sec 32 & 33), Expert
evidence/Opinions of 3rd person (Sec 45 to 51).

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Conspiracy (Section 10 read with Sec 120A & 120B of IPC)

1. Conspiracy means breathing together.
2. When 2 or more people agree to do an illegal act or an act which is not illegal
but using illegal means such agreement is called conspiracy.
3. Under this provision whatever is said or done by anyone of the conspirators
relating to their common design those sayings or doings are equally relevant
against the remaining conspirators.
4. The statement given by one of the conspirators equally binds the remaining
conspirators, when they are tried jointly for that conspiracy.
5. Ingredients for conspiracy:
a. There must be an agreement between 2 or more persons
b. Agreement should be do an illegal act or to do a legal act by illegal
means.
c. There must be some overt act.
6. Conditions for application conspiracy:
a. Reasonable grounds to believe the existence of conspiracy – There
must be prima facie evidence in support of the existence of conspiracy
between two or more people.
b. Act or statement of conspirator – There should be something said or
done or written by one of the conspirator
c. Common Intention – There should be a desire of doing an act by prior
meeting or prearranged plan.
d. Act or statement must be in reference to common intention – Offence
must be committed with reference to common intention or in
furtherance of the common intention.
7. In criminal conspiracy mere agreement between 2 or more persons is
punishable. It is not necessary for the prosecutor to prove preparation or
attempt or commission.
Ex: Rajiv Gandhi Assassination case
Indira Gandhi Assassination case
Bombay Blast case.

Define secondary evidence. Explain the circumstances in which secondary

evidence is permissible
1. Secondary evidence is also known as inferior or substituted evidence.
2. Dealt under Sections 63, 65 & 66 of IE Act.
3. Though best evidence rule says that a document must be proved by
producing the primary evidence only, Sec 61 says the contents of a document
may be proved either by primary evidence or by secondary evidence.
4. Secondary evidence, however, should be produced before the court only with
the permission of the court.
5. The party who wishes to produce secondary evidence must satisfactorily
explain to the court as to why it is not possible for him to produce primary

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evidence. Only then, he will be allowed to produce secondary evidence to

prove the contents of a document.
6. Different kinds of secondary evidence are:
a. Certified copies of the original
b. Copies made from the original by mechanical processes and compared
with the original
Ex: Xerox copies of the original.
c. Copies made from and compared with the original.
Ex: Hand written copies of the original.
d. Counter parts of the original documents
Duplicate copy of a challan or pay in slip.
e. Oral accounts of the contents of the document given by a person who
has himself seen it.
7. Cases in which secondary evidence relating to documents is admissible:
a. The person in possession of the original is not within the reach of the
court
b. If the original is in the possession of the opposite party
c. If the original is lost
d. When the original deed had already been admitted in the court
e. If original is a public documents
f. When the original is not easily movable
g. When the original consists of many accounts.
8. Procedure to be following in admitting secondary evidence:
a. When a document to be produced by one party is in possession of
another person first notice should be served to the other party with a
direction to produce the same before the court.
b. If the other party does not produce the original before the court even
after notice, then secondary evidence of the original can be produced
before the court to prove the contents of the document.

Section 118 - 120 – Competency of Witness

1. Witness and documents are the main sources of evidence.
2. Evidence given by witnesses is called oral evidence
3. Evidence produced through documents is called documentary evidence.
4. Competency of witnesses means capacity or ability or qualification required to
give evidence in a court of law.
5. Sections 118 to 120 deals with competence of witness.
6. Generally every person is a competent witness subject to the condition that he
understands the questions and gives the correct answer.
7. If the person is
a. Of extreme tender age
b. Of extreme old age
c. Suffering from any mental or physical disability

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He may not be able to understand the question and give correct answers.
Then such person is considered unfit to be a witness and give evidence.
8. As per the explanation of this Section even a lunatic is a competent witness if
he can understand the questions and give correct answer.
Value of child evidence
9. Child witnesses are most dangerous witnesses.
10. Due to tender age they often mistake dreams for reality
11. Children are capable of cramming things easily and reproducing them
12. Hence it is unsafe to rely on uncorroborated testimony of a child
13. Evidence given by a child should be scrutinized with care caution.
Value of dumb and deaf evidence
14. Evidence given by deaf and dumb persons by means of gestures or signs or
in writing is admissible.
15. When evidence is given by such witness in the form of writing or by signs or
gestures it should be given in the open court.
16. Evidence so given is considered oral evidence.
17. If necessary the court can take the assistance of an interpreter or a special
educator in recording the statement of such witness.
18. Such recording of the statement of witness shall be video graphed.
Value of evidence between wife and husband
19. Both in civil and criminal cases husband or wife of a party can give evidence
before the court in favor of that party or against that party.

Section 154 – Hostile Witness

1. Hostile witness means a witness who appears before the court on behalf of
one party but starts giving evidence in favor of opposite party.
2. A witness is generally expected to give evidence in favor of the party by whom
he is called. But in certain cases such witness may unexpectedly turn hostile
and give evidence against the interests of the party.
3. Such biased witness who gives evidence in favor of one party by appearing
before the court on behalf of the other party is called hostile witness.
4. When a witness turns hostile, the party which called him to the court on its
behalf must request the court to declare him as hostile.
5. If the court is satisfied with the request of the party, then it may disclose that
witness to be a hostile witness
6. In such a case the party calling him as witness is permitted to put to such
witness all those questions which would have been permitted in the cross
examination by his adverse party.
7. He can be cross examined by the prosecutor on the basis of his previous
statement recorded by the investigating officer U/S 161 of CrPC.
8. When a witness turns hostile his name will be removed from the list of the
witness of the party which called him as its witness and it is included in the list
of witness of the opposite party in whose favor he starts giving evidence.

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9. It is left exclusively to the court to decide whether a party should be permitted

to cross examine the witness whom he has called.
10. When the witness is declared hostile by the court leading questions can be
put to him and the credit of such hostile witness can be impeached by the
party who called him as witness before the court.
11. C/L Satpaul vs Delhi Administration – Officer was charged for taking bribe.
Trap was laid by ACB. Office of the accused was raided after the bribe money
was supposed to have been passed on to him. But that evidence of witness
and inspector was rejected on the ground that they were more interested in
the success of their trap. 2 other witnesses who were supposed to be
independent made contrary statement and the prosecution with the
permission of the court cross examined them. Then the question of the value
of their evidence arose. Then court remarked that in view of uncertain nature
of expressions it was not felt necessary for the court to grant permission for
the party to cross examine his own witness.

Impeaching the credit of a witness - Section 155

1. A witness is required to appear before the court and give evidence trustfully.
2. It is the duty of the party to the suit or proceedings to destroy the creditability
of the witnesses of each other, then only those parties are expected to get
judgment in favor of them.
3. Impeaching the creditability of witnesses‟ means destroying the creditability of
a witness before the court.
4. The credit of a witness can be impeached in either of 3 ways given below:
a. By the evidence of the persons who explained to the court that they,
from their knowledge of witness, believe him to be unworthy of credit.
b. By establishing before the court that the witness has appeared before
the court to give evidence after accepting bribe or any inducement.
c. By proving the inconsistency in his previous statement and the present
statement.
In either of above 3 ways the creditability of witness is destroyed by the
advice party.
5. Ex: When a man prosecuted for rape or attempt to rape may show that the girl
was of generally immoral character.

Refreshing Memory - Section 155 to 161

1. After the witness has given the statements to the police or judicial magistrate
during the time of investigation court may take its own time to conduct the trial
into the case.
2. Because of the vast time gap between investigation and trial the witnesses
are thrown to forget the statements given by them during the time of
investigation.

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3. So when they appear before court to give evidence, court allows them to
refresh their memory by seeing the concerned documents if any that
contained their statements.
4. Exact recollection of the statement is not necessary
5. A witness can refresh his memory by referring to any of the below:
a. The documents prepared by him
b. The documents prepared by others on the basis of his own statement o
c. Any professional commentaries or treaties.
d. An expert like a doctor can refer either the postmortem report or the
wound certificate prepared by him and submitted to the court.
Privileged Communication
1. Sections 122 to 132 of IE Act provide for privileged communications.
2. Privileged means a peculiar advantage or some special benefit conferred by
virtue of sec or ones position.
3. A qualified advantage wherein certain people are immune from liability.
4. There are certain circumstances wherein certain people are not compelled to
give evidence.
5. Statement made by such persons is called privilege communication.
6. Some of the privileged communications are:
a. Communication during marriage:
 Whatever communication is exchanged by the wife and husband during
the subsistence of their valid marriage is protected from disclosure before
the court in a civil suit or criminal suit.
 It includes both oral as well as written communication.
 The communication exchanged by spouse should be connected by facts in
issue or relevant facts
 The communication exchanged by a man or a woman before their
marriage is not protected.
 Communication exchanged by the wife or husband during marriage is
protected even after the dissolution of marriage.
 There are 2 exceptions to this privilege
o The communication made by the wife or husband to the other can be
disclosed before the court on the basis of the consent of the
communicator.
o When the civil suit or criminal trial is between the wife and husband as
parties.
b. Evidence as affairs of State - No one is permitted to give any evidence
derived from unpublished official records relating to affairs of the State.
Such disclosure affects public interest. Permission of the concerned
departmental head must be taken.
c. Official communication – No public officer shall be compelled to disclose
any communication made to him in official confidence.

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d. Information as to commission of offences – No magistrate or police officer

will be compelled to say when he got any information as to commission of
an offence.
e. Professional communications:
 Deals with communication between an advocate and his clients.
 No barrister, attorney, pleader or wakeel shall be permitted to disclose
any communication made to him by his client. But if the client gives
express consent for such disclosure that communication can be
disclosed before the court.
 But there are 2 exceptions to this privilege.
a. After being employed by the client if the advocate comes to know
about the communication made by his client for any legal purpose it
will not be protected.
b. If the advocate observes in the course of his employment any crime
committed by his client it is also not protected by this Section.
 This privilege applicable even to the clerks, servants, interpreters
appointed by the advocates.
 If a client discloses the communication made to his advocate before
the court at the time of trial it becomes admissible.
 If a client calls his advocate before the court and directs him to disclose
the communication made to him such advocate can disclose it as the
client is deemed to have consented for such disclosure.
 It is an absolute privilege – means an advocate or his clerk etc is not
compelled to disclose the communication by the court.
7. Witness may be compelled by the court to testify.
8. A witness must give complete information known to him truthfully
9. A witness will not be excused from giving evidence on the ground that the
answers will incriminate him in the commission of an offence.
10. Before compelling the witness he must be given the assurance that the
answers given by him will not used against him and he will not be arrested
and prosecuted on the basis of the information given by him.
11. When a witness gives evidence even though it contained any information
explaining his involvement in the commission of another offence. On the basis
of such information he should not be arrested and prosecuted.

Section 141 to 143 – Leading Questions

1. Leading question is a question which contains answers in it. Generally the
answer to a leading question would be either yes or no.
2. Leading question is a question which leads the witness to give a particular
answer wished by party putting it. Ex: Do you reside at Koti?
3. Leading questions must not be asked in examination-in-chief or in
reexamination, except with the permission of the court.
4. Court may permission when the matters are

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a. Introductory in nature or
b. Undisputed or
c. When they are been sufficiently proved.
5. Objection is not because they are illegal but because they are unfair.
6. That rule is maintained to prevent unfairness in the conduct of the inquiry.
7. It is the absolute discretion of the court to allow or disallow the leading
questions during examination-in-chief or reexamination.
8. Leading questions can be asked during cross examination.

Stages in examination of witness - Section 137

1. Examination of witness consists of the following stages:
a. Examination-in-chief or chief examination
b. Cross examination
c. Re-examination.
2. Examination-in-chief
a. Examination-in-chief is the examination of witnesses called by the party
b. If advocate appearing for the plaintiff introduces witnesses in support of
his case and examines them such an examination is called
examination-in-chief.
c. Similarly if advocate appearing for the defendant introduces witnesses
in support of his case and examines them such examination is also
called examination-in-chief.
d. It is the first stage of examination where witnesses are examined by
the respective parties who called them.
e. Goal of the parties is to make the witness make statements that prove
facts alleged by them.
f. Questions are put viva voce in a chronological order so that the
information that is obtained from the witness may have a proper linking
to establish the case in sequential order.
g. Only relevant questions can be asked in Examination-in-chief.
h. No leading questions can be put in this stage except in certain special
cases, that too with the permission of the court.
3. Cross examination
a. Examination of a witness in the court by his adverse party is called
cross examination.
b. It is considered as the most powerful weapon.
c. The objective of the cross examination
 Is to find out the truth of the information relating to the facts in issue
and find out how far the witness speaks truth.
 Is to discredit the evidence that the adverse witness has given.
d. In cross examination a witness can be asked all the questions relating
to facts in issue or other facts deemed relevant under IE Act.
e. However certain questions may or may not be asked in cross
examination.
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f. Leading questions may be asked under cross examination.

g. When a witness is cross examined he may be asked questions which
tends
 To testify his veracity (honesty and correctness)
 To discover who he is and what is his position
 To impeach his credit and expose his reputation to see whether he
is respectable person.
 To check his character and conduct.
h. Court enjoys the discretionary powers whether the questions should be
permitted or not or witness should be compelled to answer or not.
i. If court believes certain questions are groundless, scandalous or
indecent court may refuse to permit such questions.
4. Re-examination
a. Reexamination means the examination of witness subsequent to
prosecution by his own party.
b. After cross examination is over if the party feels necessary to once
again re-examine his own witness he may do so with the permission of
the court.
c. Normally all facts must be elicited from the witness during the
Examination-in-chief itself.
d. Re-examination as a matter of right cannot be claimed except with the
permission of the court.
e. The purpose of Re-examination is only to explain any new matter that
may be raised in cross-examination but not prove any other fact.

What are ancient Documents? Explain the modes of proof of executions of

documents
1. Section 90 of IE Act talks about 30year old documents which are also called
Ancient documents.
2. A document which is 30yrs old if produced from proper custody, and if court is
satisfied with presumption that the signature attestation and writing which
appear in the document are the signature and writing of that person whose
signature in bears.
3. The presumption with regard to its execution and attestation is based on the
principle of convenience and necessity.
4. Such presumption becomes necessary since it is impossible to prove the
handwriting of a person after lapse of 30yrs.
5. Essential ingredients:
a. Should deal with 30yrs old document
b. Document must be produced form proper custody.
6. With regards to age of the document there will be to difficulty to prove
7. Custody will be proper if it is proved to have legitimate origin or circumstances
of the case make such origin probable.

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8. For ex: A produces a document relating to a mortgage transaction of which he

is the mortgagee which had in his possession. This custody is proper
according to section 90.

Medical opinion
1. In criminal proceedings very often expert opinion of medical men is taken
2. Forensic medicine is different from healing art.
3. A forensic medicine expert has to look at the matters with the eyes of a lawyer
rather than with eyes of a doctor.
4. Opinions of forensic medicine experts play a prominent role in criminal
proceedings.
5. Medical opinion is often admissible in matters of identification causes of death
nature of injuries etc.
6. Sometimes it becomes necessary to know the cause of death and/or probable
time of death of a person.
7. Medical science has not yet advanced to such perfection so as to determine
the exact time of death not can the same be determined in a computerized or
mathematical fashion.
8. Sometimes it becomes necessary to know the nature of injuries inflicted on a
person and whether these injuries were the cause of death.
9. Sometimes it becomes necessary to take opinion of a medical expert in
matters of rape, unnatural offences abortion virginity impotency etc.
10. However medical opinion cannot be regarded as a conclusive proof in the
medical examination, it is only approximate tenure of time that can be
ascertained.
11. Where evidence of the eye-witness showed that the death of the deceased
was caused due to drowning merely because the autopsy surgeon expressed
some other possibility of death
12. Testimony of eyewitness is a considered to be more credible evidence where
there is difference between the testimony of eyewitness and medical opinion.

Relevancy and Admissibility

1. A fact which is logically relevant may not be legally relevant under the
provision of evidence act and so it is inadmissible as evidence.
2. All admissible evidences are relevant but all relevant evidences are not
necessarily admissible
3. A fact however relevant it may be unless it is allowed it be proved by the
provisions of Evidence act is not admissible.
4. A fact is said to be relevant when it is connected with other facts in any one of
the ways mentioned U/S 6 – 55.
5. Logical relevancy is wider than legal relevancy, every fact which is logically
relevant is legally relevant but not vice versa.
6. Mere fact of logical relevancy does not ensure admissibility of a fact.

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7. Thus a confession made a police officer may appear o be logically relevant

but such confession is not legally relevant as per Sec 25 of the act.
8. Very often public consideration of fairness and practical necessity of reaching
speedy decisions drives parties opt for evidence based on logical relevance
rather than legal relevance and that becomes inadmissible.
9. Relevancy is the genus and admissibility is the species.
10. Hearsay statement may be relevant but not being direct evidence are not
admissible.
11. As per Section 6 – 55 the following 7 facts are relevant:
a. Facts relevant are either connected with facts in issue or relevant facts.
b. Facts relevant to the issue are admission (Sec 17-23) and
Confessions(Sec 24-30)
c. Statements by person who cannot be called witness (Sec 32-33 & 158)
d. Statements made under special circumstances (Sec 34–39)
e. Judgments of courts of justice (Sec 40-44)
f. Opinions of thirds persons (Sec 45-51)
g. Character evidence (Character when relevant 52 – 55)

Res Judicata
1. Res Judicata means a thing upon which the court has exercised its judicial
mind.
2. The concept of Res Judicata has been explained U/S 11 of CPC.
3. The main object of doctrine of res Judicata is to prevent multiplicity of suits
and endless disputes between the litigants.
4. Thus between the same parties in the same type of court on the same cause
of action, second suit is barred
5. This same concept is there under our constitution under Article 22 as double
jeopardy and under 300 of Criminal Procedure Code this principal is known as
autrifois convict and autrifois acquit.
6. As per Sec 40 of Evidence Act the previous judgment operates res judicata
and is relevant to prevent the court from taking cognizance of an offence or a
suit.

Judicial Proceedings and Non Judicial Proceedings

1. Proceeding means a sequence of events occurring at a particular place or
occasion.
2. Judicial proceedings refer to any preceding that take places in a court of law
in which a judge presides.
3. The proceedings can be either criminal or civil.
4. The judge need not even be the one making final decision on the case in
order of proceedings to be considered judicial proceedings as long as the
action occurs in a courtroom where the judge has authority.
5. In certain cases although a judge presides over the proceedings and has
control over certain aspects the trial, ultimate decision is made by the jury.
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6. Indian Evidence act is applicable to all courts where judicial proceedings are
conducted, election tribunals, labor courts, industrial tribunals and national
triubunals.
7. Non Judicial Proceedings are mostly administrative proceedings typically
conducted by government or military institutions.
8. They do non-judicial determination of fault or wrongdoing and may include in
some cases penalties of various forms.
9. Various administration of the government for example Road Transport
Authority, Air & water pollution boards etc may impose fines or revocation of
permits or licenses upon persons or corporations when found violating the
rules.
10. Such rules are typically formulated in specific by their administrative authority.
11. Indian Evidence act is not applicable to such functions like administrative
tribunals, income tax tribunals, departmental enquiries etc are

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