2 3

Application of Indian Evidence Act, 1872

Indian Evidence Act applies to all judicial proceedings in or before any Court, including Courts- Before the passing of Section 2 of the Indian Evidence Act, 1872, the rules of evidence were
martial, other than Courts-martial convened under the Army Act, the Naval Discipline Act or the governed by the
Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court
or officer, nor to proceedings before an arbitrator.  English Law
Applicable –  Hindu Laws
(i) Judicial proceedings in or before any Court  Muslim Laws
(ii) Judicial proceedings in or before any Court including Courts-martial,  Rules of justice, equity & good conscience
Not applicable  Rules and regulations under section 25 of the Indian Councils Act
(i) Administrative Proceeding  Certain enactments mentioned Schedule
(ii) Tribunal – In the case of Union of India v. T.R. Verma (1957) Supreme Court observed, “The
Section 2 had already repealed these laws. So once section 2 was repealed in 1938 there was no
Indian Evidence Act has no application to enquiries conducted by tribunals. The law only requires
effect on legal point because repealed Acts were not enacted later on.
that tribunals should observe rules of natural justice.
Provision of section 2 was unnecessary11.
(iii) Courts-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy
(Discipline) Act, 1934 or the Air Force Act
(iv) Affidavits. Although IEA is not applicable to affidavits but proving facts by affidavit is not
UP APO 2019
barred. In practice facts are proved by affidavit.
Question -Section 2 of the Indian Evidence Act, 1872 was repealed by –
(v) Proceedings before an arbitrator8.
A. Repealing Act, 1948
Enforcement of Indian Evidence Act, 1872’ B. Repealing Act, 1945
According to section 1 of the Indian Evidence Act, 1872’ it came into force on the first day of C. Repealing Act, 1883
September, 1872. This is also date of enforcement of Indian Contract Act,1872.9 It can be make D. Repealing Act, 1938
enforceable with retrospective effect10.
Answer – D. Repealing Act, 1938.
Section 2. Repeal of Enactment - Rep. by the Repealing Act, 1938 , s. 2 and Schedule.

Hira H. Advani Etc. v. State of Maharashtra (13 August, 1969) Jharkhand (J) (Mains) 2019

In the case of Hira H. Advani Etc. v. State of Maharashtra Supreme Court said, “Section 2 of the Question 8(b) (i) – Explain – “Falsus in uno falsus in omnibus” –
Indian Evidence Act before its repeal by the Repealing Act, [(1) of 1938)] provided as follows: Answer – In Bur case, this maxim was explained by Supreme Court. This is following -
“Section 2- On and from that day (1st September 1872) the following laws shall be repealed;
(1) - All rules of evidence not contained in any statute, Act or Regulation in force in any part of Bur Singh v. State of Punjab12 ( Oct. 13, 2008)
British India; “Falsus in uno falsus in omnibus” means false in one thing, false in everything.
(2) All such rules, laws and regulations as have acquired the force of law under the 25th section of The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot
the ‘Indian Councils Act’1861 in so far as they relate to any matter herein provided for; and (3) be branded as liars.
The enactments mentioned in the schedule hereto, to the extent specified in the third column in the Falsity of particular material witness or material particular would not ruin it from the beginning to
said schedule. But nothing herein contained shall be deemed to affect any provision of any Statute, end.
Act or Regulation in force in any part of British India and not hereby expressly repealed.” Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove
Privy Council in Sri Chandra Nandi v. Rakhalananda (1940) Justice Atkin observed, “It is to be guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction
noticed in this connection that Section 2(1) of the Indian Evidence Act repeals the whole of the can be maintained.
English common law on evidence so far as it was in force in British India before the passing of the
Indian Evidence Act, and that provision of the law in effect prohibits the employment of any kind
of evidence not specifically authorised by the Act itself.”
11
Batuk Lal, ‘Law of Evidence’ 5 (Central Law Agency, Allahabad, 19 th Edn. 2010).
8
Bihar (J) 1999 M. Monir, ‘Textbook on the Law of Evidence’ 15 (Universal Law Publishing Co., New Delhi 9 th Edn., 2013).
9 11
MP APO, 1997. Uttarakhand APO 2010. AIR2010SC 2914.
10 12
MP APO, 1993. AIR 2009 SC 157

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 4 5
It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from Distinguish between direct and circumstantial evidence. Can a person be convicted on
the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence circumstantial evidence alone?
has been found to be deficient to prove guilt of other accused persons. UP (J) Mains, 1986, Question 7 (b) &
The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this UP (J) Mains, 2003, Question 6 (b)
maxim come to occupy the status of a rule of law. It is merely a rule of caution. The doctrine merely
involves the question of weight of evidence which a Court may apply in a given set of Distinguish between rebuttable and irrefutable presumption of law. Discuss.
circumstances, but it is not what may be called ‘a mandatory rule of evidence’. UP (J) Mains, 2006, Question 5 (a)
Prem Singh & Ors. v. State of Haryana13, (2009) What do you understand by relevancy of facts? Are all the relevant facts admissible in Court?
Supreme Court clearly held as under: “It is now a well-settled principle of law that the doctrine Explain.
“falsus in uno, falsus in omnibus” has no application in India.” UK (J) 2011, UP APO(Pre) 2019
Ranjit Singh v. State of Madhya Pradesh (2010) (SC) Question – Which one of the following is not defined under section 3 of the evidence act?
It is well settled in law that the maxim falsus in uno, falsus in omnibus (false in one false in all)
does not apply in criminal cases in India, as a witness may be partly truthful and partly false in the A. Court
evidence he gives to the Court. B. Document
C. Evidence
UP (J) Mains, 1986, Question 7 (a) & D. Confession
UP (J) Mains, 2003, Question 6 (a)
Answer- D.
Distinguish between direct and circumstantial evidence. Can a person be convicted on
UP (J) (Mains) 2019
circumstantial evidence alone?
Question 7(c) – What do you understand by the word ‘Court’ used in the Indian Evidence Act,
UP (J) Mains, 1986, Question 7 (b) & 1872? Discuss with the help of decided cases.
UP (J) Mains, 2003, Question 6 (b) Answer- According to Stephen, “In every Court, there must be at least three constituent parts-the
actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant,
Distinguish between rebuttable and irrefutable presumption of law. Discuss
who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine
UP (J) Mains, 1986, Question 7 (c) the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to
Distinguish between relevancy and admissibility of evidence.
have been done, to ascertain, and by its officers to apply, the remedy”.
UP (J) Mains, 1992, Question 5 (a) &
UP (J) Mains, 2003, Question 5 (a)
According to Section 3 of the Indian Evidence Act, 1872, “Court” includes all Judges and
Magistrates, and all persons, except arbitrators14, legally authorised to take evidence15.
“All admissible evidence is relevant, but all relevant evidence is not necessarily admissible.”
Comment.
Name of the authority or institution is not important. Substance of the institution is important.
UP (J) Mains, 1999, Question 5
What do you understand by conclusive and rebuttable presumption. Explain.
UP (J) Mains, 2000, Question 6(a)
Brijnandan Sinha v. Jyoti Narain
“Relevancy and admissibility are neither synonymous nor is the one included in other.” Elucidate
Definition of Court under Indian Evidence Act is not exahaustive.
this statement.
AIR 1956 SC 66 it has been held that any Tribunal or authority whose decision is final and binding
UP (J) Mains, 1992, Question 5 (a) &
between the parties is a court. In the said decision, the Supreme Court, while deciding a case under
UP (J) Mains, 2003, Question 5 (a)
Court of Enquiry Act held that a court of enquiry is not a court as its decision is neither final nor
binding upon the parties.
“All admissible evidence is relevant, but all relevant evidence is not necessarily admissible.”
Difference between Court and Quasi Judicial Tribunal
Comment.
UP (J) Mains, 2003, Question 6 (a) &
Shri Virindar Kumar Satyawadi v. The State of Punjab (24 November, 1955SC) – In this case
UP (J) Mains, 1986, Question 7 (a)
Supreme Court observed,

14
UP9J) 2003.
13 15
(2009) 14 SCC 494 Raj. APO 2011.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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 “In may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is
that it is charged with a duty to decide disputes in a judicial manner and declare the rights Fact
of parties in a definitive judgment.
 To decide in a judicial manner involves that the parties are entitled as a matter of right to be
heard in support of their claim and to adduce evidence in proof of it. And it also imports an (1) Physical Fact (2) Psychological Fact
obligation on the part of the authority to decide the matter on a consideration of the evidence
adduced and in accordance with law.
 When a question therefore arises as to whether an authority created by an Act is a Court as Anything State of things Relation of things
distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard
to the provisions of the Act it possesses all the attributes of a Court”.
State of Madhya Pradesh v. Anshuman Shukla (2008) Capable of being
The very fact that the authorities under the Act are empowered to examine witnesses after
administering oath to them clearly shows that they are 'Court' within the meaning of the Evidence Perceived by senses
Act.
In this case Hon’ble Supreme Court observed, “The Arbitral Tribunal under Madhya Pradesh
Madhyastham Adhikaran Adhiniyam, 1983 is Court.The Arbitral Tribunal is constituted in terms Any mental condition
of Section 3 of the Act. Section 17 gives finality to the award made thereunder. Such awards made,
in terms of Section 18 would be deemed to be a decree within the meaning of Section 2 of the Code Of which
of Civil Procedure, 1908. Section 19 confers a power of revision on the High Court. The Tribunal
has been confirmed various powers. Any person is conscious

There, therefore, in our opinion, cannot be any doubt whatsoever that the authorities under the Act There are two types of ‘Fact’ namely; (1) Physical Fact (2) Psychological Fact
are also ‘courts’ within the meaning of the provisions of the Indian Evidence Act.
“Fact”16 means and includes-
Jagadguru Annadanishwara Maha Swami Ji .v. V.C. Allipur 20 March, 2009 (1) Physical Fact- anything, state of things, or relation of things, capable of being perceived by the
It is now well settled principle of law and having regard to the definition of the Court contained in senses;
various statutes like Code of Civil Procedure or the Evidence Act would mean a Tribunal, whose Illustrations
decision shall be final and/or would be entitled to take evidence in terms of the provisions of (a) That there are certain objects arranged in a certain order in a certain place, is a fact.
the Evidence Act. It is also well settled that although a Tribunal may exercise some of its powers (b) That a man heard or saw something, is a fact.
in terms of the Code of Civil Procedure or Code of Criminal procedure and have all the trappings (c) That a man said certain words, is a fact.
of a Court but still would not be treated as a Court.
The Director, Pre-University, Education was not functioning as a Court. (2) Psychological Fact - any mental condition of which any person is conscious.
Conclusion – Meaning of Court is decided according to particular statute.
Illustrations
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or
Section 3 (Interpretation Clause) uses a particular word in a particular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
Means & Includes Include Means Relevant UP (J) Mains 2000 Question 5(a)
Court Document India One fact is said to .. What is facts in issue? Illustrate your answer?
Fact Facts in issue Evidence
UP (J) Mains 2012 Question 7(a) (iv)
Existence of Fact Non-existence of fact Middle Write short note on Facts in issue.

Proved Disproved Not proved 16

MP HJS2011, UK(J) 2008

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Section 3- Facts in issue17 Facts in issue

“Facts in issue”.–– The expression “facts in issue” means and includes - any fact from which,
either by itself or in connection with other facts, the existence, non-existence, nature or extent of Fact
any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation - Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer (Single Facts or Fact connected with other fact)
to such issue is a fact in issue.

Illustrations From which

 A is accused of the murder of B.
 At his trial the following facts may be in issue:––
 That A caused B’s death; Existence Non-existence, Nature Extent
 That A intended to cause B’s death;
 That A had received grave and sudden provocation from B;
 That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness
of mind, incapable of knowing its nature.
Of any
There are two ingredients of facts in issue (RLD)
(1) There must be fact.
(2) That fact must be disputed between parties. Right Liability Disability

The expression “facts in issue”

(a) means and includes -
(b) any fact from which, either by itself or in connection with other facts,
(c) Four Points -the existence, non-existence, nature or extent of
(d) Three Points (RLD Party) -any right, liability, or disability, Asserted or Denied
(e) Two Points (Dispute/Opposite Claim) - asserted or denied
(f) Suit means Civil Matter and Proceeding means Criminal Matter - in any suit or proceeding,
(g) Main constituent -necessarily follows. In any

Illustrations Suit or Proceeding

A is accused of the murder of B.
At his trial the following facts may be in issue:–– Necessarily follows
(i) Whether A caused B’s death; (Causing death – Physical Fact)
“Proved”
(ii) Whether A intended to cause B’s death; ( Intention –Psychological Fact. Whether death was A fact is said to be proved when, after considering the matters before it, the Court either believes
caused with intention. Intention (Fact) converts facts in issue. So all facts in issue are fact but all it to exist, or considers its existence so probable that a prudent man ought, under the circumstances
facts are not facts in issue. of the particular case, to act upon the supposition that it exists.
(iii) Whether A had received grave and sudden provocation from B;
“Disproved”
(iv)Whether A, at the time of doing the act which caused B’s death, was, by reason of unsoundness A fact is said to be disproved when, after considering the matters before it, the Court either believes
of mind, incapable of knowing its nature. that it does not exist, or considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does not exist.
“Not proved”.
17
UP (J) Mains 2012.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 10 11
A fact is said not to be proved when it is neither proved nor disproved18. Only witness can give evidence. So this definition in rigid term is defective. It does not cover
confession or admission made by accused. Tape recorded evidence is documentary evidence rather
Remarks – after considering the matters before it …It is mandatory for the Court first of all to that oral evidence.19. Discovery of fact with the help of tracker dog is a scientific evidence.
consider (Perusal) the matters before it, then come to the conclusion regarding existence or non-
existence of fact after considering the matters before it….this compels judges to take rational
decision. It controls capricious mind of judges. Question- Is evidence includes ‘Video Conferencing’?
Answer- Yes.
Proved (Existence) Question- Is evidence in criminal cases be taken through ‘Video conferencing’?
Answer- Yes.
After considering the matters before it ( Conclusion must be based on facts)
State of Maharashtra v. Dr. Praful B. Desai20 (April 1, 2003)
Court
In this case court held that electronic evidence includes evidence through ‘Video Conferencing’.
For the purpose of presence under section 273, Cr.P.C. includes constructive presence.
(1) either believes it to exist or (2) considers its existence so probable that Facts -
Wife of Mr. P. C. Singhi (Complainant) was suffering from cancer. Spouse consulted Dr. Greenberg
Prudent Man (PM – Hon’ble Mr. Modi Ji) in USA. He suggested that surgery of this was not solution and she should be treated only by
medicine. They returned form USA and consulted Dr. Praful B.Desai. He suggested that operation
under the circumstances of the particular case was solution and he can cure. Mr. P. C. Singhi and his wife became ready for operation subject to
condition that operation would be conducted only by Dr. Praful B.Desai.
Ought to act to act upon the supposition that it exists But operation was conducted by Dr. A. K. Mukherjee on 22-12-1987. There was negligence and
wife of complainant died. Maharashtra Medical Council conducted conducted inquiry and found
negligence. FIR was registered against Dr. A. K. Mukherjeem and Dr. Praful B.Desai for under
Disproved (Non-existence) section 338 read with section 109 & 114 of IPC.
Trial was going on. On 29-06-1998 the prosecution made an application to examine Dr. Greenberg
Just opposite of ‘Prove’ through video-conferencing who was ready to give evidence but he was not ready to come to India.

“Evidence” “Evidence” means and includes - Issue - Whether in a criminal trial, evidence can be recorded by video conferencing.
(1) Oral Evidence - all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; Metropolitan Magistrate (Yes) – In a criminal trial, evidence can be recorded by video
such statements are called oral evidence; conferencing. In this case evidence of Greenberg is relevant.
It was challenged in High Court.UK APO 2010.
(2) Documentary Evidence - all documents including electronic records produced for the High Court (No) - In a criminal trial, evidence cannot be recorded by video conferencing. It was
inspection of the Court; such documents are called documentary evidence. challenged by State in Supreme Court. In this case evidence of Greenberg is not relevant.
Evidence Supreme Court (Yes) - In a criminal trial, evidence can be recorded by video conferencing. In this
case evidence of Greenberg is relevant. Guidelines were issued for recording of evidence through
video conferencing.
Oral Evidence Documentary Evidence Arguments of P.B.Desai – Cr.P.C. deals procedure established by law. Article 21 talks about just,
Court fair and reasonable procedure. So departure from procedure established by Cr.P.C. would be
Document Electronic Record violation of Article 21. There are following arguments-
(1) According to section 273, evidence must be recorded in physical presence of accused. So
Permit or Require (Even you are not interested but Court may compel you to give evidence recording of evidence of Greenberg who is sitting in USA shall be violation of section 273, Cr.P.C.
(2) Section 273 talks about evidence. Evidence does not include video conferencing.
By witness (3) Video conferencing is virtual reality.
Comment
19
18 20
UK (J)2002, UK APO 2011 & UP (J) 2006. (2003) 4 SCC 601

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 12 13
Section 273 Evidence to be taken in presence of accused – (1) Oral Evidence - all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry;
 Except as otherwise expressly provided, such statements are called oral evidence;
 all evidence taken in the course of the trial or other proceeding shall be taken in the presence (2) Documentary Evidence - all documents including electronic records produced for the
of the accused, or, inspection of the Court; such documents are called documentary evidence.
 when his personal attendance is dispensed with, in the presence of his pleader. After the amendment in the definition of ‘Evidence’ in 2000 document includes electronic records.
So Evidence includes ‘Video Conferencing’.
Issue 1
Issue 3
Whether taking evidence of Greenberg though video conferencing amounts to be in presence of
accused.
Whether video conferencing is virtual reality.
Answer – Yes. Presence includes constructive presence. Section 273 itself creates two exceptions.
These are –
Answer- No.
 Except as otherwise expressly provided, Meaning of virtual reality – Virtual reality is a state where one is made to feel, hear or imagine
 when his personal attendance is dispensed with, in the presence of his pleader. what does not really exist.
In virtual reality,
Thus Section 273 provides for dispensation from personal attendance. In such cases evidence can
be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be presence  one can be made to feel cold when one is sitting in a hot room,
of the Accused. Thus Section 273 contemplates constructive presence. This shows that actual  one can be made to hear the sound of the ocean when one is sitting in the mountains,
physical presence is not a must. This indicates that the term “presence”, as used in this Section, is  one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing
not used in the sense of actual physical presence. A plain reading of Section 273 does not support on one’s sofa etc.
the restrictive meaning sought to be placed by the Respondent on the word “presence”.
Principle of Updating construction – Hon’ble Justice Bhagwati observed observed, “Law must
constantly be on the move adapting itself to the fast-changing society and not lag behind.”21 Court S.No. Virtual Reality23 Actual reality
must endeavour to find out truth. There would be failure of justice not only by an unjust conviction 1 Feeling cold Sitting in a hot room
but also by acquittal of the guilty for unjustified failure to produce available evidence.22 2 Hearing the sound of the ocean24 Sitting in the mountains
According to this principle law must be interpreted according to changing society. Several 3 Taking part in a Grand Prix race Relaxing on one’s sofa
provisions were interpreted with this doctrine. These are -
S.No. Statutory Provision Words interpreted Word included Actual reality –
1 Section 45, Evidence Act Handwriting Typewriting Advances in science and technology have shrunk the world. They now enable one to see and hear
includes events, taking place far away, as they are actually taking place.
2 138, Negotiable Instrument Act Notice in writing Notice by Fax. Example - Today one does not need to go to South Africa to watch World Cup matches. One can
includes watch the game, live as it is going on, on one’s TV.
Section 313, Cr.P.C. Personally Need not physical  If a person is sitting in the stadium and watching the match, the match is being played in
includes presence his sight/presence and he/she is in the presence of the players.
3 Telegraph includes Telephone  When a person is sitting in his drawing room and watching the match on TV, it cannot be
4 Documents includes Computer databases said that he is in the presence of the players but at the same time, in a broad sense, it can be
5 Section 273 Cr.P.C. Presence includes Constructive presence said that the match is being played in his presence.
 Both, the person sitting in the stadium and the person in the drawing room, are watching
Issue 2 what is actually happening as it is happening. This is not virtual reality, it is actual reality.
One is actually seeing and hearing what is happening.
Whether ‘Evidence’ includes video conferencing.

Answer- Yes.
“Evidence” “Evidence” means and includes -
23
It is like… ‘Bhakt ka Chashma’. Once you use this spectacles, you will see development and prosperous everywhere.
21
National Textile Workers’ Union v. P.R. Ramakrishnan (1983) 1 SCC 228, 255. But reality is different.
22 24
Nageshwar Shri Krishna Ghobe v. State of Maharashtra (1973) 4 SCC 23. Actually you are sitting alone on mountain. But you are taking feeling of beach of Goa. This is virtual reality.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 14 15
World cup match in South Africa person in stadium person in drawing room Question DU. LL.B -2003–A tape recorded statement is a document. Discuss. What should be kept
Both will enjoy the match at the Both will same how he Both will same how he hit six. in mind while relying upon tape recorded evidence?
same time. Suppose Mr. Sachin hit six. Question DU. LL.B -2005 - Discuss the relevancy and admissibility of the evidence obtained
hit six. through ‘Video Conferencing’.
Question DU. LL.B - Is evidence collected illegal manner admissible?
Video Conferencing is actual reality - Video-conferencing has nothing to do with virtual reality. Rajasthan (J) (Mains) 2016 – Discuss the admissibility of ‘Electronic Records’ in evidence as per
It is actual reality. Video-conferencing is an advancement in science and technology which permits provisions of Indian Evidence Act.
one to see, hear and talk with someone far away, with the same facility and ease as if he is present Rajasthan (J) (Mains) 2015- What are special provisions in the Indian Evidence Act regarding
before you, i.e., in your presence. In fact he/she is present before you on a screen. Except for admissibility of ‘Electronic Records’? In what circumstances information contained in electronic
touching, one can see, hear and observe as if the party is in the same room. In video-conferencing record can be accepted in evidence in proceeding before Court? Discuss with reference to relevant
both parties are in the presence of each other.25 provisions.

Conclusion - So long as the accused and/or his pleader are present when evidence is recorded by R.M. Malkani v. State of Maharashtra (22/09/1972)
video-conferencing that evidence is being recorded in the “presence” of the accused and would thus
fully meet the requirements of Section 273 of the Criminal Procedure Code.  Admissibility of ‘Tape Recorded’ Evidence.
 Admissibility of ‘Evidence’ in illegal manner.
Guidelines for recording of evidence through video conferencing Facts- Facts of case can be divided into five parts –
First Part -Jagdish Prasad Ramnarayan Khandelwal was admitted to the hospital of Dr Adatia on
There are following guidelines were laid down before recording of evidence through video May 3, 1964. Operation was performed by Aditya. But his condition became serious. He was
conferencing - removed to the Bombay Hospital on 10.05.1984. Treatment was done by Dr. Motwani. He died on
 (1) Fixing of time by officer deputed to record evidence. 13.05.1964.
 (2) Fixing of time by officer after consultation with VSNL26 Second Part - Coroner27’s Court conducted inquest on 13.05.1964. R.M. Malkani was on leave. So
 (3) He must be expert. there was delay in inquest.
 (4) Opposite Party and his advocate must be present. Third Part- R. M. Malkani issued notice to Dr.Aditya. After some time he started to demand bribe.
 (5) The officer must have authority to administer oath. He threatened that otherwise he would charge for medical negligence even though you are innocent.
 (6) In case of perjury (False evidence) Court can ignore evidence of such person. He demanded 20000 rs. from Aditya through Motwani. When Aditya refused to pay money,
 (7) Opposite party (In this case respondent) must be allowed with documents. Malkani reduced the money.
 (8) Video Conferencing should be conducted without adjournment. Fourth Part -Dr. Aditya and Motwani lodged complaint to Anti -Corruption Bureau on 05.10.1964.
 (9)An officer would have to be deputed, either from India or from the Consulate/Embassy Mugwe was directior of ACB. He suggested them to be in contact with Malkani.
in the country where the evidence is being recorded Fifth Part - Mugwe arranged his staff at residence of Motwani with tape recording equipment to
 (10) The officer would remain present when the evidence is being recorded record telephonic conversation. Conversation was recorded. According to Malakani there was some
 (11) The officer will ensure that there is no other person in the room where the witness is share of other public officer. When they went to give money, Malkani did not take money due to
sitting whilst the evidence is being recorded. delay in payment of money.
 (12) That officer will ensure that the witness is not coached/tutored/prompted. Charge- He was charged under sections 161, 385, 420 and 511 of IPC.
Contention of Malkani –There were following contention of Malkani –
1. Evidence was illegally obtained.
Conclusion – With above observation, it was directed to trial court to dispose of the case as early 2. It was violation of Article 20(3) and Article 21.
as possible and in any case within one year from today. 3. It was during investigation. So hit by section 162 of Cr.P.C.
Remarks- It is pathetic condition of justice delivery system that a case which started 1987 could 4. There was no attempt to obtain gratification.
not be decided till 2003. It was again sent to trail court to decide acquittal or conviction of Dr. 5. Sentence should be modified.
P.B.Desai.
Reply -

25
You are in Delhi. Your girlfriend/boyfriend is in other city. With video calling you can enjoy your life except touching
body of your girlfriend/boyfriend. This is the actual reality rather than virtual reality.
26 27
Videsh Sanchar Nigam Ltd. (VSNL). Coroner means public official who conduct inquest in unnatural death.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 16 17
 (1) It was not violation of section 25 of Indian Telegraph Act. Magraj Patodia v. R. K. Birta30
The witness who produced the file could give satisfactory answer how he got document. Supreme
Reason –It was recorded after consent of Motwani. Court said that a document which was procured by improper or even by illegal means could not bar
its admissibility provided its relevance and genuineness were proved.
(2) Admission of evidence collected in illegal manner- Evidence is admissible even though it R.M. Malkani Case – Although evidence was collected secretly, but it was relevant so it was
was collected through illegal manner. accepted.
Reason- Indian Evidence Act does not say that Evidence must be collected in legal manner. This
Act is silent regarding manner of collection of Evidence. It concentrate on relevancy of facts Not Part of Malkani Case
English Case Yashwant Sinha & Ors. v. CBI Through Its Director & Anr31 (April 10, 2019)
28
In this case ‘Review Petition’ was filed on the grounds of discloser of new facts related to
Kwruma, Son of Kanju v. R. ‘Rafale Deal’ which were collected by members of The Hindu News Paper. These facts were also
The Judicial Committee in Kwruma, Son of Kanju v. R. dealt with the conviction of an accused of published in the News Paper. Maintainability of Review Petition was challenged on the ground
being in unlawful possession of ammunition which had been discovered in consequence of a search of lack of bona fide. Attorney General claimed that these copies have been taken illegally.
of his person by a police officer below the rank of those who were permitted to make such searches. Attorney General contended that documents were unauthorisely removed from the Ministry in
The defendant appealed against his conviction for unlawful possession of ammunition, saying that violation of several laws.
the evidence had been obtained by unlawful means, and should not have been admitted against him. But Supreme Court did not accept this contention and accepted ‘Review Petition’. Hon’ble
Lord Goddard held, “The test to be applied both in civil and in criminal cases, in considering Justice K.M. Joseph observed, “Under the common law both in England and in India the context
whether evidence is admissible, is whether it is relevant to the matters in issue. If it is, it is for material being considered by the court is relevancy. There can be no dispute that the manner
admissible and the Court is not concerned with how it was obtained.” in which evidence is got namely that it was procured in an illegal manner would not ordinarily
be very significant in itself in regard to the Courts decision to act upon the same”.
R. v. Maqsud Ali29

The admissibility of evidence procured in consequence of illegal searches and other unlawful acts (3) Tape recording conversation is admissible - Tape recorded conversation is admissible
was applied in a recent English decision in R. v. Maqsud Ali. In that case two persons suspected of provided:
murder went voluntarily with the police officers to a room in which, unknown to them, there was a
microphone connected with a tape-recorder in another room. They were left alone in the room. They  Firstly, the conversation is relevant to the matters in issue;
proceeded to have a conversation in which incriminating remarks were made. The conversation was  Secondly, there is identification of the voice; and,
recorded on the tape. The Court of Criminal Appeal held that the Trial Judge had correctly admitted  Thirdly, the accuracy of the tape recorded conversation is proved by eliminating the
the tape-recording of the incriminating conversation in evidence. It was said “that the method of possibility of erasing the tape record.
the informer and of the eavesdropper is commonly used in the detection of crime. The only
difference here was that a mechanical device was the eavesdropper”. The Courts often say that A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under
detention by deception is a form of police procedure to be directed and used sparingly and with Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant
circumspection. incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section
7 of the Evidence Act.
Indian Case The conversation between Dr Motwani and the appellant in the present case is relevant to the matter
Not Part of Malkani Case in issue. There is no dispute about the identification of the voices. There is no controversy about
any portion of the conversation being erased or mutilated. The appellant was given full opportunity
Barindra Kumar Ghose and Ors. v. Emperor (23 November, 1909) to test the genuineness of the tape recorded conversation. The tape recorded conversation is
Indian Revolutionary Mr. Barindra Kumar Ghose along with other was prosecuted under section admissible in evidence.
121, 122 etc. Calcutta High Court decided this case. In this case Sir Lawrence Jenkins, “I hold Shri N. Sri Rama Reddy Etc v. Shri V. V. Giri (27 April, 1970)
that what would otherwise be relevant does not become irrelevant because it was discovered in
the course of a search in which those provisions were disregarded”. In this case there was
violation of procedure relating to search and seizure mentioned in Cr.P.C.
30
AIR 1971 SC 1295.
28 31
1955 AC 197 Available at : https://www.thehindu.com/news/resources/article26793859.ece/BINARY/Rafale-Review-
29
(1963) 2 All ER 464. Judgement_10-Apr-2019.pdf (Last visited on February 19, 2020).

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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This case is known as ‘Presidential Election Case’. A tape recorded conversation between the Answer- In the case of C.Parshwanath v. State of Karnataka (August 18, 2010 S.C.) Supreme
witness and the petitioner was sought to be given in evidence by playing the tape-record to impeach Court observed, “The evidence tendered in a court of law is either direct or circumstantial” 32.
the credit of the witness. Evidence can be classified into two parts-
Supreme Court said, “Tape itself is primary and direct evidence admissible as to what has been said
and picked up by the recorder”. Supreme Court observed, “a previous statement, made by a person 1. Direct or positive evidence
and recorded on tape, can be used not only to corroborate the evidence given by the witness in 2. Indirect or circumstantial evidence
Court but also to contradict (Section 153, Exception 2) the evidence given before the Court, as
(1) Meaning of direct evidence- According to Mr. Monir, “Direct evidence is that which goes
well as to test the veracity(Section 146) of the witness and also to impeach his impartiality [Section
expressly to the very point in question and proves it, if believed, without aid from inference or
155(3)]”.
deductive reasoning33.
In the case of C. Parshwanath v. State of Karnataka34 Supreme Court observed, “Evidence is said
to be direct if it consists of an eye-witness account of the facts in issue in a criminal case”.
Conclusion of Shri N. Sri Rama Reddy Etc 1. Section 6- Res Gestae Example- Eye witness to the murder is direct evidence.
v. Shri V. V. Giri & R.M. Malkani Case are 2. Section 7 (2) Indirect or circumstantial evidence – Circumstantial evidence does not prove the point in
‘Tape Recorded Conversation’ is relevant 3. Section 8 question directly but establishes it only by inference.35
under…. 4. Section 146 In the case of C. Parshwanath v. State of Karnataka Supreme Court observed, “On the other hand,
5. Section 153 circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive
6. Section 155 reasoning, infer about the existence of facts in issue or factum probandum”.
7. Comparable to a photograph Example- A was seen running away with blood stained knife from B’s room where B was found
(4) No violation of Article 21- The telephonic conversation of an innocent citizen will be protected dead immediately after B’s cries were heard would be circumstantial evidence as against A.
by Courts against wrongful or highhanded interference by tapping the conversation. The protection Importance of circumstantial evidence - In the case of C. Parshwanath v. State of Karnataka36
Supreme Court observed, “Human agency may be faulty in expressing picturisation of actual
is not for the guilty citizen against the efforts of the police to vindicate the law and prevent incident, but the circumstances cannot fail. Therefore, many times it is aptly said that “men may
corruption of public servants. In the present case there is no unlawful or even irregular method in tell lies, but circumstances do not”.
obtaining the tape-recording of the conversation.
Question - Can a person be convicted on circumstantial evidence alone?
(5) No violation of section 162- He did not make statement to police.
Answer- In the case of Bodh Raj v. State of Jammu and Kashmir37 Supreme Court observed that a
person be convicted on circumstantial evidence alone. But circumstantial evidence must be proved.
Conclusion –R.M. Malkani could not get remedy.
What should be proved for conviction on the basis of circumstantial evidence has been discussed
Question - Is ‘Confession of co-accused’ evidence under definition of ‘Evidence’ under Evidence
in following case –
Act, 1872?
Sahoo v. State of U.P.38 (February 16, 1965)
Answer- In the strict sense confession is not evidence. According to definition of ‘Evidence’ under
Fact –Sahoo killed his daughter in law (Wife of son). Sahoo was residing with younger son (8 yrs.)
Evidence Act, 1872 oral evidence can be given only by witness. In the case of Mohd. Khalid v.
and daughter in law whose husband was doing service in Lucknow. He had developed illicit
State of West Bengal (2002) Supreme Court observed, “The confession of a co-accused does not
relationship. But there was continue quarrel between both. One day in the early morning he killed
come within the definition of evidence contained in Section 3 of the Evidence Act. These are
her. P. Ws. 9, 11, 13 and 15 saw the accused going out of the house at about 6 a.m. on that day
following reasons -
soliloquying that he had finished Sunderpatti and thereby finished the daily quarrels.
 It is not required to be given on oath, Issues1 –Is communication necessary to constitute confession?
 nor in the presence of the accused, and Answer –No.
 it cannot be tested by cross-examination”. Issue – Is circumstantial evidence sufficient for conviction?

UP (J) Mains, 1986, Question 7 (a) &

32
UP (J) Mains, 2003, Question 6 (a) C. Parshwanath v. State of Karnataka (Date of judgment -August 18, 2010 S.C.) AIR2010SC 2914.
33
M. Monir, ‘Textbook on the Law of Evidence’ 15 (Universal Law Publishing Co., New Delhi 9 th Edn., 2013).
Distinguish between direct and circumstantial evidence. Can a person be convicted on 34
AIR2010SC 2914.
circumstantial evidence alone? 35
M. Monir, ‘Textbook on the Law of Evidence’ 15 (Universal Law Publishing Co., New Delhi 9 th Edn., 2013).
36
AIR2010SC 2914.
37
(2002) 8 SCC 45.
38
AIR 1966 SC 40,

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Answer- Yes. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
Supreme Court observed, “This Court in a series of decisions has reaffirmed well-settled rule of accused;
‘circumstantial evidence’. The circumstances from which the conclusion of guilt is to be drawn (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape
should be in the first instance fully established. All the facts so established should be consistent from the conclusion that within all human probability the crime was committed by the accused and
only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive none else; and
nature and tendency that they should be such as to exclude other hypotheses but the one proposed (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of
to be proved.” explanation of any other hypothesis than that of guilt of the accused and such evidence should not
Accused was convicted. only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
Gambhir v. State of Maharashtra (1982)

In the case of Gambhir v. State of Maharashtra (1982) Supreme Court said that the circumstantial Bodh Raj v. State of Jammu & Kashmir (2000)
evidence should not only be consistent with the guilt of the accused but also should be inconsistent
Facts -
with his innocence.
In this case Swaran Singh @ Pappi (‘the deceased’) was running a finance company. Accused 2
Conclusive and Exclusive- Circumstantial evidence must be conclusive and exclusive.
(Ashok Kumar) and Accused 1 (Ravinder Kumar) had taken huge amounts as loan from the
Conclusive -It must conclusively establish his guilt.
deceased. They made plan to kill him. They hired goons and with the help of them he was killed.
Exclusive- It must exclude hypothesis of innocence of the accused.
Murder was committed in evening time at a highly populated place. Deceased had also fired and
two accused were injured. With plan they instigated to deceased to visit site for purchasing of land.
Sharad Birdhichand Sarda v. State of Maharashtra39 (July 17, 1984)
Total ten persons were charge sheeted.
(Golden Principles / Panchsheel)
Recoveries of various weapons used by the assailants were made pursuant to the disclosures made
In this case Supreme Court observed that five golden principles, if we may say so, constitute the
by the accused Bodhraj, Bhupinder, Subash Kumar, Rajesh Kumar and Rakesh Kumar. Recoveries
panchsheel of the proof of a case based on circumstantial evidence. These are-
were witnessed by several witnesses.
They were prosecuted under section 302 r/w Section 120B. On the basis of circumstantial evidence
 (1) Establish - the circumstances from which the conclusion of guilt is to be drawn should be they were convicted.
fully established. The circumstances concerned must or should and not may be established; In this case Supreme Court discussed ratio of several judgment including Sharad Birdhichand
 (2) Inclusive - the facts so established should be consistent only with the hypothesis of the Sarda v. State of Maharashtra41 & Padala Veera Reddy v. State of A.P.42 Supreme Court also
guilt of the accused, that is to say, they should not be explainable on any other hypothesis observed other important points. Ratio of some other judgments have been discussed earlier so there
except that the accused is guilty; in no need to discuss again. Some other important points are following –
 (3) Conclusive -the circumstances should be of a conclusive nature and tendency; (1) Fact may be proved by circumstantial evidence- It may be stated that for a crime to be proved
 (4) Exclusive- they should exclude every possible hypothesis except the one to be proved; it is not necessary that the crime must be seen to have been committed and must, in all circumstances
and be proved by direct ocular evidence by examining before the court those persons who had seen its
 (5) Chain - there must be a chain of evidence so complete as not to leave any reasonable commission. The offence can be proved by circumstantial evidence also.
ground for the conclusion consistent with the innocence of the accused and must show that in (2) Factum Probandum and factum Probans - Principal fact or factum probandum may be proved
all human probability the act must have been done by the accused. indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts.
To put it differently, circumstantial evidence is not direct to the point in issue but consists of
evidence of various other facts which are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the existence of the principal fact can be
legally inferred or presumed.
Padala Veera Reddy v. State of A.P.40(1990) (3) “so much of such information” under section 27- The words “so much of such information”
as relates distinctly to the fact thereby discovered, are very important and the whole force of the
In Padala Veera Reddy v. State of A.P., it was laid down that when a case rests upon circumstantial section concentrates on them. Clearly the extent of the information admissible must depend on the
evidence, such evidence must satisfy the following tests: “ exact nature of the fact discovered to which such information is required to relate.
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and (4) Doctrine of confirmation - The basic idea embedded in Section 27 of the Evidence Act is the
firmly established; doctrine of confirmation by subsequent events.

39 41
AIR 1984 SC 1622. AIR 1984 SC 1622.
40 42
AIR 1990 SC 79 AIR 1990 SC 79

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 22 23
The doctrine is founded on the principle that if any fact is discovered as a search made on the Question -Presumption under section 114A, IEA, is a/an (a) Rebuttable presumption (b)
strength of any information obtained from a prisoner, such a discovery is a guarantee that the Presumption of fact (c) Mixed presumption of law and fact (d) Irrebuttable presumption of law.
information supplied by the prisoner is true. Answer -(a) Rebuttable presumption. Section 114A- Presumption as to absence of consent in
The information might be confessional or non-inculpatory in nature but if it results in discovery of certain prosecution for rape…….the court shall presume that she did not consent.
a fact, it becomes a reliable information. It is now well settled that recovery of an object is not
discovery of fact envisaged in the section. There is difference between recovery and discovery.
(5) Last seen theory - The last-seen theory comes into play where the time-gap between the point
of time when the accused and the deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the accused being the author of the crime Presumption
becomes impossible. It would be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and possibility of other persons coming in
between exists. May Shall Conclusive
Conclusion – They were convicted on circumstantial evidence.
Court Party Court Party

Section 4 Court has option Party has option Court has no option Party has option

Presumption of Either to accept or reject If Court chose option of acceptance,

Party can disprove
Fact & Law Law & Fact
Both has option Court is bound to accept Party can disprove
Rebuttable Irrebuttable Rebuttable Irrebuttable
Only Party has option
May Presume Shall Presume Conclusive Prove
(Sections 86 to 88, 90,114) (Ss 79 to 89, 89, 105,114A) (Sections41,112,113IEA,Sec.82 IPC) Court Party
No option No option
May presume–Whenever it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may call for proof of it. No one has option

Shall presume–Whenever it is directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved43.
UP (J) (M) 2012 Question 5(a)
Conclusive proof-When one fact is declared by this Act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to What do you mean by presumption? Discuss the kind of presumption.
be given for the purpose of disproving it. UP (J) (M) 2018 -2019 Question 5(c)
Common in all- Discuss the meaning and utility of presumptions. Draw distinction between rebuttable presumption
(1)..Court of law and irrebuttable presumption of law.
(2) Regard such fact
(3) prove Answer-
May ..provided.. Meaning of Presumption – ‘Presumption’ word has not been defined under Indian Evidence Act,
Shall ..directed.. 1872. With the help of dictionary and case law, it can be defined. These are following -
Conclusive ..declared.. Stephen44

44
James Fitzjames Stephen, ‘A Digest on Law of Evidence’ 2 (Article 1, Available on
Jharkhand (Pre) (J) 2019 https://books.google.co.in/books?id=1g8-
AAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false). Last visited
43
Bihar J (Interview) 2019 February 26, 2020.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 24 25
“A presumption” means a rule of law that Courts and judges shall draw a particular inference from May Presume- In this case the Court has an option to raise the presumption or not,
particular fact, or from particular evidence, unless and until the truth of such inference is disproved.
P. Ramanatha Aiyar’s Advanced Law Lexicon Shall Presume- In this case the Court must necessarily raise the presumption.
P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd edition, at page 3697, the term ‘presumption’ If in a case the Court has an option to raise the presumption and raises the presumption, the
has been defined as under: distinction between the two categories of presumptions ceases and the fact is presumed, unless and
“A presumption is an inference as to the existence of a fact not actually known arising from its until it is disproved.
connection with another which is known”.
Definitions of ‘may presume’ and ‘shall presume’ as given in Section 4 of the Evidence Act, makes
M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (4 July, 2006) (SC) it at clear that presumptions to be raised under both the provisions are rebuttable.

In this case Hon’ble Justice S.B. Sinha said, “A presumption is a legal or factual assumption drawn Comparison between ‘May Presume’ & ‘Shall Presume’
from the existence of certain facts”.
There are following comparisons –
M/S Kumar Exports v. M/S Sharma Carpets (December 16, 2008)
In this case Hon’ble Supreme Court said, “Presumption literally means “taking as true without Ground ‘May Presume’ Shall Presume’
examination or proof”. Differences
Provided/ It provided under this Act It directed under this Act
Directed
Effect of presumption – Discretion/ Court has option either to accept or reject Court has no option.
Mandatory
M/S Kumar Exports v. M/S Sharma Carpets Fact/Law It is presumption regarding fact. It is presumption regarding law.
In this case Hon’ble Supreme Court said, “Presumptions are devices by use of which the courts are Similarity Similarity
enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or Party Party can disprove it part Party can disprove it.
insufficient evidence. A presumption is not in itself evidence, but only makes a prima facie case for Rebuttable It is rebuttable It is rebuttable.
a party for whose benefit it exists”. Example Sections 86 to 88, 90,114 Sections 79 to 89, 89, 105
Kinds of presumption – The word 'Presumption' inherently imports an act of reasoning. A
presumption is a legal or factual assumption drawn from the existence of certain facts.
Comparison between ‘Shall Presume’ & ‘Conclusive Proof
M/S Kumar Exports v. M/S Sharma Carpets
In this case Hon’ble Supreme Court said, “Under Indian Evidence Act, all presumptions must come There are following comparisons –
under one or the other class of the three classes mentioned in the Act, namely,
1. ‘May presume’ (rebuttable), Ground Shall Presume Conclusive Proof
2. ‘Shall presume’ (rebuttable) and (Rebuttable presumption of law) (Irrebuttable presumption of law)
3. ‘Conclusive presumptions’ (irrebuttable)”. Differences
Directed/ It directed under this Act It declared under this Act
‘May presume’ denotes the presumption of fact and ‘Shall Presume’ and ‘Conclusive Proof’ Declared
denotes the presumption of law. Party Party can disprove it. Party can not disprove it.
There are two types of presumption namely; Rebuttable It is rebuttable presumption of law. It is irrebuttable presumption of law.
(1) Presumption of fact Example Sections 79 to 89, 89, 105 Sections41,112,113IEA,Sec.82 IPC
(2) Presumption of law and Similarity Similarity
Mandatory Court has no option. Court has no option.
Difference between ‘May Presume’ and ‘Shall Presume’ Law It is presumption regarding law. It is presumption regarding law

In the case of M/S Kumar Exports v. M/S Sharma Carpets Supreme Court discussed difference
between may presume and shall presume. Presumption under Evidence Act and Presumption of Innocence
In this case Hon’ble Supreme Court said,

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. Supreme Court observed, “Relevancy and admissibility are neither synonymous nor is the one included in other.” Elucidate
“Presumptions are rules of evidence and do not conflict with the presumption of innocence, because this statement.
by the latter all that is meant is that the prosecution is obliged to prove the case against the accused UP (J) Mains, 1992, Question 5 (a) &
beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of UP (J) Mains, 2003, Question 5 (a)
presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility
of the non-existence of the presumed fact. “All admissible evidence is relevant, but all relevant evidence is not necessarily admissible.”
The burden of proof may be shifted by presumptions of law or fact, and presumptions of law or Comment.
presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by UP (J) Mains, 2006, Question 5 (a)
presumptions of law or fact”. What do you understand by relevancy of facts? Are all the relevant facts admissible in Court?
Explain.
Section 5 (What evidence are allowed)
Question DU. LL.B -2005 -
Section 5- Evidence may be given of facts in issue and relevant facts. ––Evidence may be given Discuss the relevancy and admissibility of the evidence obtained through ‘Video Conferencing’.
in any suit or proceeding of the existence of non-existence of every fact in issue and of such other Answer
facts as are hereinafter declared to be relevant, and of no others. Section 3

Explanation.–-This section shall not enable any person to give evidence of a fact which he is “Relevant” - One fact is said to be relevant to another when the one is connected with the other in
disentitled to prove by any provision of the law for the time being in force relating to Civil any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
Procedure.
CHAPTER II - OF THE RELEVANCY OF FACTS (Sections 5 -55)
Section 5
Section 5. Evidence may be given of facts in issue and relevant facts - Evidence may be given
Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.

Family (Parents) Suit Proceeding Ram Bihari Yadav v. State of Bihar & Ors.45 (21 April, 1998)
Hon’ble Justice Syed Shah Quadri said, “More often the expressions ‘relevancy and admissibility’
Not allowed allowed allowed are used as synonyms but their legal implications are distinct and different for more often than not
Of the facts which are relevant are not admissible; so also facts which are admissible may not be relevant,
for example, questions permitted to be put in cross-examination to test the veracity or impeach the
Existence (Prove) or Non-existence (Disprove) credit of witnesses, though not relevant are admissible”.
Relevant/ Relevancy –Relevancy is decided according to sections 5 to 55. But all relevant facts
Of are not admissible.
Example- For the example privileged communication. Some of them are communication between
Facts in issue or Relevant fact husband and wife, communication between advocate and his clients etc. might be relevant but these
are protected under section 122 & 126 respectively.
Explanation – Disentitled person shall be allowed to give evidence merely with the help of this Conclusion- Generally all relevant facts are admissible. All relevant facts are not admissible.
section. Admission –Admissibility is decided by judge. Generally relevant fact is admissible. But there are
UP (J) Mains, 1986, Question 7 (c) certain situation when irrelevant fact (Here irrelevant fact means which is not declared relevant
Distinguish between relevancy and admissibility of evidence. according to sections 5 to 55 of the Act.) may be admissible.
UP (J) Mains, 1992, Question 5 (a) & Example- For example,
UP (J) Mains, 2003, Question 5 (a)
 questions permitted to be put in cross-examination to test the veracity – Section 146(1) or
“All admissible evidence is relevant, but all relevant evidence is not necessarily admissible.”  impeach the credit of witnesses, though not relevant are admissible – Section 155.
Comment.
UP (J) Mains, 2000, Question 6(a)
45
AIR 1998 SC 1850.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 28 29
Conclusion - Generally all admissible facts are relevant. But all admissible facts are not relevant. Kinds of Relevancy
Question -Who will decide relevancy and admissibility of fact? Relevancy is based on logic. Some of them have been declared by law to be admissible in court. So
Answer- Judge. According to section 13646 judge will decide admissibility of fact. there are two types of relevancy –
(1) Logical relevancy,
Difference between Relevancy and Admissibility (2) Legal Relevancy.

S.No. Relevancy Admissibility

Ram Bihari Yadav v. State of Bihar & Ors.47
1 Relevancy is decided according to Chapter II, My opinion - Admissibility is Comparisons
Sections 5 to 55 decided by judge under section 136.
2 Rule – All relevant facts are admissible. All admissible facts are relevant Logical Relevancy Legal Relevancy
Exception –There are certain relevant facts All admissible facts are not Similarity
are not relevant. For example –privileged relevant. For example –Sections Both are based on logic and probability.
communication. 146 and 155. Differences
Batuk Lal, ‘Law of Evidence’ 41 (Central 1 ‘Logical Relevancy’ is genus. ‘Legal Relevancy’ is species.
Law Agency, Allahabad, 19th Edn. 2010). 2 Logical relevancy has no place in law. Sections 5 to 55
3 Relevancy is based on logic and probability. Admissibility is not based on logic 3 All ‘Logical Relevancy’ is not ‘Legal Relevancy’. All ‘Legal Relevancy’ is
but on strict rule of law ‘Logical Relevancy’.
4 Relevancy is described according to Chapter Rule of admissibility is described Example Shyam made confession to Police, “I have kept
II, Sections 5 to 55 after section 55. (i) in the field the knife with which I killed Ram”.
5 Rule of relevancy declares what is relevant. Rule of admissibility declares Logically whole statement is relevant. Legally only half part is
whether certain type of relevant relevant. According to section
evidence are admissible or to be 27“I have kept in the field the
excluded. knife” is relevant. I killed
Ram is not relevant.
Example Confession made to police.
(ii)
Logically relevant. His statement might be true Legally it is not relevant. It
and making confession voluntarily might be true. will be hit be section 25 of the
evidence Act.

Question [UK (J) 2009] –Which of the following is not correct?

Option –
A. Some facts are relevant, but not admissible
B. Some facts are admissible, but not relevant.
C. All relevant facts are admissible.
D. All admissible facts are not relevant.
Answer – C. All relevant facts are admissible.
Explanation - Ram Bihari Yadav v. State of Bihar & Ors.

46
Section 136- Judge to decide as to admissibility of evidence - When either party proposes to give evidence of any
fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be
relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
47
AIR 1998 SC 1850.

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Section 6 & Res Gestae Illustrations
(a) Beating - A is accused of the murder of B by beating him. Whatever was said or done by A or
B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction,
UP ( J) (Mains) 2015 Question 6 is a relevant fact.
Explain the doctrine of Res Gestae. (b) Waging War -A is accused of waging war against the Government of India by taking part in an
UP ( J) (Mains) 2018 Question 5(a) armed insurrection in which property is destroyed, troops are attacked and goals are broken open.
Discuss the limits within which the rule of Res Gestae operates. How for ambiguities involved in The occurrence of these facts is relevant, as forming part of the general transaction, though A may
this rule have been removed under the Indian Law? Explain. not have been present at all of them.
Jharkhand (J) (M) 2019 Question 7 (c) Defamation -A sues B for a libel contained in a letter forming part of a correspondence. Letters
Write detailed note on: The Doctrine of Res Gestae. between the parties relating to the subject out of which the libel arose, and forming part of the
correspondence in which it is contained, are relevant facts, though they do not contain the libel
Answer – itself.
(d) Delivery of Goods -The question is, whether certain goods ordered from B were delivered to
A. The goods were delivered to several intermediate persons successively. Each delivery is a
Section 6 relevant fact.

Fact (1) Meaning

Res Gestae is Latin Phrase. Its literal meaning is “Things done”. When it is translated into English
means “Things said and done in the course of transaction”48.
Facts in issue Facts not in issue Statutory provisions – Application of ‘Res Gestae’ was very controversial. So this word was not
used in Indian Evidence Act. Several authors says that sections 6,7,8 & 9 contents this principle.
Connected with But now it is settled that only section 6 of the Indian Evidence Act deals res gestae.

Facts in issue or Relevant Fact Bhairon Singh v. State of Madhya Pradesh (May 29, 2009)

As to form part of same transaction Supreme Court observed, “What it means is that a fact which, though not in issue, is so connected
Whether they occurred with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form
particular statement as part of the same transaction utterances must be simultaneous with the
(Singular) (Plural) incident or substantial contemporaneous that is made either during or immediately before or after
its occurrence”.
At the same At the different time
(2) Res gestae is exception of ‘Hearsay Evidence’
Rule is that hearsay evidence is not acceptable. Oral evidence must be direct. But Res gestae is
Time & Place Times & Places exception of ‘Hearsay Evidence’.

When (Ill.(a)) Sukhar vs. State of U.P.49(1999)

In the case of, Sukhar vs. State of U.P., Supreme Court said that Section 6 of the Evidence Act is an
At (Simultaneously) Shortly before or Shortly after exception to the general rule whereunder the hearsay evidence becomes admissible.

Javed Alam v. State of Chhattisgarh and Anr. (8 May, 2009)

Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not
admissible.
Bhairon Singh v. State of Madhya Pradesh (May 29, 2009)
Section6. Relevancy of facts forming part of same transaction -Facts which, though not in issue,
are so connected with a fact in issue as to form part of the same transaction, are relevant, whether 48
Dr. Avtar Singh, ‘Principles of the law of Evidence’, 42 (Central Law Publications, Allahabad 18 th Edn., 2010).
they occurred at the same time and place or at different times and places.
49
(1999) 9 SCC 507.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Supreme Court observed, “The rule embodied in Section 6 is usually known as the rule of res gestae. English Case
1695 (First Case) Thompson v. Trevanion Justice Holt
1879 Regina v. Bedingfield Chief Justice Cockburn
(3) Condition for application of Section 6- 1971 Rattan v. The Queen Lord Wilberforce
Sukhar v. State of U.P.50(1999) -For bringing such hearsay evidence within the provisions of
Thompson v. Trevanion (1695)
Section 6, what is required to be established is that
In this case Chief Justice Holt said, “What the wife said immediately upon hurt being received and
 (a) it must be almost contemporaneous with the acts and
before that she had time to devise or contrive anything for her own advantage, might be given in
 (b) there should not be an interval which would allow fabrication.
evidence”.51
The statements sought to be admitted, therefore, as forming part of res gestae, must have been made
Regina v. Bedingfield (1879)
contemporaneously with the acts or immediately thereafter”.
A woman with her throat cut came suddenly out of a room, in which she had been injured and
shortly before she died, said: “Oh dear Aunt, see what Bedingfield has done to me.”
Javed Alam v. State of Chhattisgarh and Anr. (8 May, 2009)
Chief Justice Cockburn said that this statement was not admissible. She stated this thing after
The test for applying the rule of res gastae is that the statement should be spontaneous and should
completion of all acts.
form part of the same transaction ruling out any possibility of concoction.
This judgment was criticized.
Rattan v. The Queen (1971)
Fact - Few minutes before a woman was shot dead, she made a telephone call and hysterically
S.No. Sukhar v. State of U.P. Javed Alam v. State of Chhattisgarh and Anr. asked the operator to get her the police. Before the operator could do anything, the sobbing woman
Two conditions for application Two conditions for application of section 6 gave her address and the call was dead. Within five minutes the police reached there and found the
of section 6 dead body of woman.
1 contemporaneous Spontaneous Lord Wilberforce said: “Evidence would have been admissible as part of the Res Gestae because
2 Fabrication Concoction not only was there a close association in place and time between the statement and the shooting, but
also the way in which the statement came to be made, in a call for the police and the tone of voice
(4) Whose statement is relevant under section 6(Res Gestae) used showed intrinsically that the statement was being forced from the wife by an overwhelming
Facts related to pressure of contemporary events”.
It was held that the telephone call and the words spoken were parts of the same transaction.
 Accused
Argument of husband that fire was accidental was rejected.
 Victim
 Third person (e.g. by standers)
(7) Indian Law
are relevant if they form part of same transaction.
Section 6 Illustration (a) - A is accused of the murder of B by beating him. Whatever was said or R.M.Malkani v. State of Maharashtra (September 22, 1972)
done by
 A (Accused) or Hon’ble Justice Ajit Nath Ray said, “A contemporaneous tape record of a relevant conversation is
 B (Victim) or the a relevant fact and is admissible under section 6 of the Evidence Act. It is res gestae”.
 by-standers (Third Party) at the beating, or so shortly before or after it as to form part of
the transaction, is a relevant fact. Sawal Das v. State of Bihar (9 January, 1974)
(5)Timing Sawal Das (Husband), his stepmother and father killed deceased.
Section 6 Illustration (a) - A is accused of the murder of B by beating him. Whatever was said or
done by A or B or the by-standers The appellant took or pushed Chanda Devi inside her room followed by the appellant’s father and
 at the beating, or so shortly his stepmother. Immediately after that, cries of at least “Bachao” “Bachao”, were heard from
 before or inside the room. No body heard the voice of Smt. Chanda Devi after that. Immediately after these
 after it as to form part of the transaction, is a relevant fact. cries, the children of Chanda Devi were heard crying and uttering words indicating that their mother
English Case was either being killed or had been killed.

50 51
(1999) 9 SCC 507. Dr. Avtar Singh, ‘Principles of the law of Evidence’, 44 (Central Law Publications, Allahabad 18th Edn., 2010).

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Supreme Court accepted it as same transaction.
Section 7
Shayam Nandan Singh and Ors. v. The State Of Bihar (9 May, 1991 S.C.)
(FIR as Res Gestae) Facts

On 11-3-1986 Mungeshwari Devi along with her daughter Surji Devi (the deceased) had gone to
her land in Bagicha Baghar for harvesting Masuri crop. At about 5.30 p.m. Surji Devi began to
make bundles of the harvested Masuri crop. Three accused tried to rape and cut her throat. Mother Occasion Cause Effect State of things Opportunity
tried to save her. On hearing alarm P.Ws. Suba Yadav, Ram Lakhan Yadav, Karu Yadav,
Kameshwar Yadav and Birja Yadav ran towards the place of occurrence. On reaching to the place Immediate or otherwise
of occurrence P.Ws. found the dead body of Surji Devi the deceased, lying on the ground with
injury, her neck in pool of blood. Mother narrated about the occurrence to these P.Ws. and thereafter
mother went to the Police Station along with these P.Ws. and Chaukidar Brij Kishore Paswan (not OF
examined) to lodge information. On the statement of mother, FIR was recorded on the same night,
i.e., on 12-3-1986 at 1.30 a.m. Facts in Issue Relevant Fact

Supreme Court –Mother narrated about the occurrence and disclosed the names of the accused
persons and immediately thereafter she went to the police station with them situated at the distance DU LL.B. 2019
of 12 kms. from the place of occurrence and lodged F.I.R. Thus, whatever was said by her to the Question 1(a) –State the provisions of law and give reasons as to the relevancy of the facts:
P.Ws. or in the F.I.R. after the occurrence forms part of the same transaction and thus is relevant In charge of murder by the domestic help by an elderly couple, evidence is given by prosecution
fact under Section 6 of the Act. that they received money sent their son from the USA on the same day.
FIR was treated relevant under section 6. Answer- Problem of this question is based on section 7.
Opportunity – They were elderly.
Cause – Robbing the money which was sent from USA.

Section 8 - Motive, preparation and previous or subsequent conduct –

Section 7 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
Facts which are the occasion, cause or effect of facts in issue. – relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto,
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in and the conduct of any person an offence against whom is the subject of any proceeding, is relevant,
issue, or which constitute the state of things under which they happened, or which afforded an if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
opportunity for their occurrence or transaction, are relevant. previous or subsequent thereto.
Explanation 1.––The word “conduct” in this section does not include statements, unless those
Illustrations statements accompany and explain acts other than statements; but this explanation is not to affect
(a) Robbery- The question is, whether A robbed B. the relevancy of statements under any other section of this Act.
The facts that, shortly before the robbery, B went to a fair with money in his possession, and that Explanation 2.––When the conduct of any person is relevant, any statement made to him or in his
he showed it, or mentioned the fact that he had it, to third persons, are relevant. presence and hearing, which affects such conduct, is relevant.
(b) Murder-The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was committed,
are relevant facts.
(c) Administration of poison -The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which
afforded an opportunity for the administration of poison, are relevant facts.

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Section 8 (MP PSC) Illustrations
DU LL.B. 2019& UP (J) (M) Question 6(a)
Illustration (a) A is tried for the murder of B.
Motive Preparation Conduct The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort
(Previous or subsequent) money from A by threatening to make his knowledge public, are relevant.
DU LL.B. 2019 – Question 1 (C) - State the provisions of law and give as to the relevancy of the
Section 8 (MP PSC) following facts:
In a trial for murder of B by A, evidence is given by the prosecution that A murdered C and B knew
this fact and was extorting money from A by threatening to make his knowledge public.
Motive & Preparation Conduct
(Previous or subsequent) Answer- This problem is similar to section 8, illustration (a).
Fact Illustration (a) - A is tried for the murder of B. The facts that A murdered C, that B knew that A
had murdered C, and that B had tried to extort money from A by threatening to make his knowledge
public, are relevant. (b) A sues B upon a bond for the payment of money, B denies the making of
Shows or Constitutes Whose What Effect the bond. 1. Subs. by the A.O. 1950, for “Queen”. 13 The fact that, at the time when the bond was
alleged to be made, B required money for a particular purpose, is relevant.

Party Agent Victim Witness Conclusion – This fact will be relevant under section 8 of the Indian Evidence Act.

Motive or Preparation Illustration (b) - A sues B upon a bond for the payment of money, B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a particular
Suit or Proceeding purpose, is relevant.
For Illustration (c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was administered to
Facts in issue or Relevant Fact In reference to B, is relevant.
Illustration (d) The question is, whether a certain document is the will of A.
The facts that, not long before, the date of the alleged will, A made inquiry into matters to which
Suit Proceeding Facts in issue relevant Fact the provisions of the alleged will relate; that he consulted vakils in reference to making the will,
and that he caused drafts of other wills to be prepared, of which he did not approve, are relevant.
Thereto Therein Illustration (e) A is accused of a crime.
The facts that, either before, or at the time of, or after the alleged crime, A provided evidence which
Suit or Proceeding Suit or Proceeding would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed
or concealed evidence, or prevented the presence or procured the absence of persons who might
have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(1) If such conduct influences or If such conduct is influenced by Illustration (f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A’s presence –– “the police are coming to look for the
man who robbed B,” and that immediately afterwards A ran away, are relevant.
Facts in issue or Relevant Fact Facts in issue or Relevant Fact UP APO (M) 1982
Explanation – Statement affecting conduct is relevant if it is made in presence & hearing. Illustration (g) The question is, whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing–– “I
advise you not to trust A, for he owes B 10,000 rupees,” and that A went away without making any
answer, are relevant facts.
Illustration (h) The question is, whether A committed a crime.
The fact that A absconded, after receiving a letter, warning him that inquiry was being made for the
criminal, and the contents of the letter, are relevant.
Illustration (i) A is accused of a crime.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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The facts that, after the commission of the alleged crime, he absconded, or was in possession of Section 9
property or the proceeds of property acquired by the crime, or attempted to conceal things which Facts necessary to explain or introduce relevant facts
were or might have been used in committing it, are relevant. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an
UP APO (M) 1982 inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or
person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact
Illustration (j) The question is, whether A was ravished. happened, or which show the relation of parties by whom any such fact was transacted, are relevant
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the in so far as they are necessary for that purpose.
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been ravished is not relevant as Section 9
conduct under this section, though it may be relevant as a dying declaration under section 32, clause
(1), or as corroborative evidence under section 157.
Illustration (k) The question is, whether A was robbed. Facts in issue/Relevant Fact Relevant fact
The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that he said he had been robbed, without making any complaint, is not relevant, as conduct (1)Fact (2) Fact which (3)Fact which fix (4)Fact which show
under this section, though it may be relevant as a dying declaration under section 32, clause (1), or
as corroborative evidence under section 157. Necessary to Support or Rebut Relation of Parties

By whom
Explain or Introduce any inference as to

FII RF
Facts in issue or Relevant Facts
Facts in issue or Relevant Facts was transacted

Time or Place

at which any fact in issue or relevant fact happened

Establish identity of

Anything (Property) or Person

Whose identity is relevant.

Illustrations
Illustration (a) The question is, whether a given document is the will of A.
The state of A’s property and of his family at the date of the alleged will may be relevant facts.
Illustration (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter
alleged to be libellous is true. The position and relations of the parties at the time when the libel
was published may be relevant facts as introductory to the facts in issue. The particulars of a
dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though
the fact that there was a dispute may be relevant if it affected the relations between A and B.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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UP APO (M), 1988, UP (J)(M) 2013 Matru Alias Girish Chandra v. State of Utttar Pradesh52 (3 March, 1971)
Illustration (c) A is accused of a crime. The fact that, soon after the commission of the crime, A
absconded from his house, is relevant under section 8, as conduct subsequent to and affected by Supreme Court observed, “Identification tests do not constitute substantive evidence. Such tests are
facts in issue. The fact that, at the time when he left home, he had sudden and urgent business at primarily meant for the purpose of helping the investigating agency with an assurance that their
the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. progress with the investigation into the offence is proceeding on right lines”.
The details of the business on which he left are not relevant, except in so far as they are necessary
to show that the business was sudden and urgent. Santokh Singh v. Izhar Hussain and Anr.53 (25 April, 1973)
UP (J)(M) 2012& DU LL.B. 2019 The identification can only be used as corroborative of the statement in Court.

Illustration (d) A sues B for inducing C to break a contract of service made by him with A. C, on Ram Nath Mahto v. State of Bihar [Justice Punchhi, M.M.] (April 10, 1996).
leaving A’s service, says to A –– “I am leaving you because B has made me a better offer.” This In this case there was dacoity with murder in running train. Accused was put to identification parade
statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue. conducted by Judicial Magistrate. Victim accepted but later on due to fear denied to identify in
Court. Judicial Magistrate came as a witness. Only on the basis of identification parade accused
DU LL.B. 2019 – Question 1(b) and UP J (Mains) 2012 Question 6(b) was convicted. In this case Supreme Court did not clearly said that TIP is substantive evidence. But
Question 1(b) – State the provisions of law and give as to the relevancy of the following facts: he rejected the argument that TIP is not substantive evidence.
In a dispute between X &Y for inducing A to break his contract of service, made by him with X,
following statement of A as been produced as evidence by X: Mulla & Another vs State Of U.P. (8 February, 2010) (Division Bench)
“I am leaving you because B has made me a better offer.” Unfortunately in this case ratio of Ram Nath Mahto v. State of Bihar was not discussed. Regarding
Question 6(b)- A sues B for inducing C to break a contract of service made by him with A. C, on corroborative evidence several cases were discussed. In this case Supreme Court discussed
leaving A’s service, says to A –– “I am leaving you because B has made me a better offer.” following points-
Whether the statement of C is relevant? “The identification parades are not primarily meant for the Court. They are meant for investigation
Answer – Problem of this question is based on section 9, Illustration (d). purposes. The object of conducting a test identification parade is two -fold.
According to section 9, Facts necessary to explain or introduce a fact in issue or relevant fact are
relevant.  First is to enable the witnesses to satisfy themselves that the accused whom they suspect is
Section 9 Illustration (d) – really the one who was seen by them in connection with the commission of the crime.
A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s  Second is to satisfy the investigating authorities that the suspect is the real person whom the
service, says to A –– “I am leaving you because B has made me a better offer.” witnesses had seen in connection with the said occurrence.
This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.
Therefore, the following principles regarding identification parade emerge:
UP (J)(M) 2006 Question 5(b) (i) (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on
the part of witnesses;
Illustration (e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it (2) this condition can be revoked if proper explanation justifying the delay is provided; and, (3) the
to A’s wife. B says as he delivers it––“A says you are to hide this.” B’s statement is relevant as authorities must make sure that the delay does not result in exposure of the accused which may lead
explanatory of a fact which is part of the transaction to mistakes on the part of the witnesses.

UP (J) Mains, 1992, Question 5 (b)(ii) Raju Majhi v. State of Bihar, (February 2, 2018)
UP (J) Mains, 1992, Question 5 (b)(ii)
Raj.(J) Pre. 2011 The identification parade belongs to the stage of investigation, and there is no provision in the Code
which obliges the investigating agency to hold or confers a right upon the accused to claim, a test
Illustration (f) A is tried for a riot and is proved to have marched at the head of a mob. The cries identification parade. They do not constitute substantive evidence and these parades are essentially
of the mob are relevant as explanatory of the nature of the transaction. governed by Section 162 of the Code. Failure to hold a test identification parade would not make
Jharkhand (J) (Pre) 2019 inadmissible the evidence of identification in Court. The weight to be attached to such identification
Question – Test Identification Parade is should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of
(a) Substantive evidence (b) Corroborative evidence (c) No evidence (d) Hearsay Evidence. identification even without insisting on corroboration.
Answer- (b) Corroborative evidence
52
(1971) 2 SCC 75
53
(1973) 2 SCC 406).

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 42 43
(iii) Said, done or written after common intention- anything said, done or written by him should
Chhattisgarh (J) (Pre) 2011 or 2012 have been said, done or written by him after the intention was formed by any one of them ;
Question- Test Identification Parade is permissible under section 9 of the Indian Evidence Act of (iv) Relevant for proving conspiracy and member- it would also be relevant for the said purpose
following fact/s- against another who entered the conspiracy whether it was said, done or written before he entered
(a) Person (b) Anything (c) Both (d) Neither person nor anything. the conspiracy or after he left it ; and
Answer- C. Both (v) Use- it can only be used against a co-conspirator and not in his favour.

Conspiracy In Kehar Singh & ors. vs. State (Delhi Administration) [1988 (3) SCC 609], Jagannatha Shetty,
DU LL.B. 2019 Question 2 J., has analysed the section as follows: “From an analysis of the section, it will be seen that Section
On the 9th Oct. 1930 a police officer and his wife were wounded by revolver shots near the police 10 will come into play only when the court is satisfied that there is reasonable ground to believe
station at Lamington Road in Bombay. These shots were fired by some persons who were in Motor that two or more persons have conspired together to commit an offence. There should be, in other
Car which was standing on the opposite side of the road. As a result of investigation into incident words, a prima facie evidence that the person was a party to the conspiracy before his acts can be
several persons were arrested and placed on trial. used against his co- conspirator. Once such prima facie evidence exists, anything said, done or
Evidence was sought to be given of a statement of an absconding accused, to the approver that the written by one of the conspirators in reference to the common intention, after the said intention was
conspirators had shot a police officer, that a pamphlet should be written and distributed to start a first entertained, is relevant against the others.
propaganda in furtherance of the objects of the conspiracy. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving
Decide the relevance of the statement with the help of judicial pronouncements. that the other person was a party to it.”

State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005

Fact- The genesis of this case lies in a macabre incident that took place close to the noon time on
Section10 13th December, 2001 in which five heavily armed persons practically stormed the Parliament House
Things said or done by conspirator in reference to common design.–– complex and inflicted heavy casualties on the security men on duty.
 Where there is reasonable ground to believe (Prima Facie) that
 two or more persons have conspired together Section 10 of Evidence act is based on the principle of agency operating between the parties to the
 to commit (i) an offence or (ii) an actionable wrong, conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions
 anything said, done or written by any one of such persons laid down therein are satisfied, the act done or statement made by one is admissible against the co-
 in reference to their common intention, conspirators.
 after the time when such intention was first entertained by any one of them, is a relevant fact
 as against (i) each of the persons believed to be so conspiring, as well for the purpose of proving UP (J) (Mains) 2018
(ii) the existence of the conspiracy as for the purpose of showing that any such person was a
party to it. A, B and C are prosecuted for the murder and conspiracy to murder of D. As the principle evidence
of conspiracy, certain letters written by the accused to each other during the conspiracy are
Section 10 Section 10 is based on ‘Principle of Agency’. It is exception of the rule submitted. A statement made to the examining Magistrate by B, giving an account of the conspiracy,
Principle of Agency that one cannot be criminally liable for others. after arrest, is also put in evidence. What is relevant –the letters or the statement or both?
Answer –
Ingredients of section 10
In the cases of Sardar Sardul Singh Caveeshar v. State Of Maharashtra (SC 18 March, 1963), You have to discuss ingredients of section 10 and Mirza Akbar v. Emperor.
Bhagwan Swarup Lal Bishan and Others v. State of Maharashtra (AIR 1965 SC 682) & CBI (1) Letters are relevant. Reason – These were written during conspiracy.
v.V.C.Shukla following ingredients of section 10 can be concluded- (2) A statement made to the examining Magistrate by ‘B’ is not relevant. Reason – It was made
In short, section 10 can be analyzed as follows: after ceasing of conspiracy.
(i) Prima facie evidence - There shall be a prima facie evidence affording a reasonable ground for
a Court to believe that two or more persons are members of a conspiracy;
(ii) Reference to their common intention - if the said condition is fulfilled, anything said, done Mirza Akbar v. Emperor
or written by any one of them in reference to their common intention will be evidence against the This case is related to killing of husband with lover by making conspiracy. There was exchange of
other; love letters and those letters were also containing plan to kill. Husband (Ali Askar) was killed by
Umar Sher (Hired goon) on August 23, 1938 in pursuance of conspiracy between Mehr Taja (wife)

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 44 45
and Mirza Akbar (Lover). Umar Sher was caught red handed by public Mirza Akbar was requesting (3) Statement to Magistrate –It was observed that statement to Magistrate was not part of
public to release Umar Sher. conspiracy. It was made after ceasing conspiracy. After murder common intention had fulfilled.
Mehr Taja (wife) made confession before Magistrate and revealed about conspiracy. The Court observed,
The words “a common intention” signify a common intention existing at the time when the thing
was said, done or written by the one of them.
Court
 Admissible- Things said, done or written while the conspiracy was on foot are relevant as
evidence of the common intention, once reasonable ground has been shown to believe in its
Additional Session Judge Judicial Commissioner Privy Council existence.
(Conviction Section 302r/w 120B) Appeal dismissed Appeal should be dismissed  Inadmissible- Any narrative or statement or confession made to a third party after the
common intention or conspiracy was no longer operating and had ceased to exist is
Argument of appellant- inadmissible against the other party.
The appellant’s contention was that this conclusion was vitiated by the admission as against him of
Conclusion-
a statement made by Mst. Mehr Taja before the Examining Magistrate after she had been arrested
on the charge of conspiracy. That statement which was made in the appellant’s absence was  Admissible - It was concluded that contents of letters were admissible as showing
admitted in evidence both by the trial judge and by the Judicial Commissioner on appeal as relevant conspiracy.
against the appellant under Section 10 of the Evidence Act.  Inadmissible - Statement made to Magistrate was not relevant under section 10 of the IEA
Admissibility of because it was made after ceasing conspiracy.
With this conclusion it was advised that keeping these observations appeal should be dismissed.
Letters Statement to Magistrate On the material before the Court, after the statement made to Magistrate is excluded, there was
evidence sufficient to justify the conviction. The terms of the letters are only consistent with a
conspiracy between the prisoners to procure the death of Ali Askar.
Privy Council considered and advised following important points -
Badri Rai and Another v. State of Bihar55 (18 August 1958)
(1) Queen v. Blake54 – In this case ratio of Queen v. Blake case was considered.
This case illustrates the two aspects of conspiracy namely; what is admissible and what is Introduction -This case is related conspiracy to give bribe to police office to hush up case. Case is
inadmissible. related to section 165A r/w120B of IPC and section 10 of the IEA. This is related to section 10 of
the Evidence Act. It was concluded that at the time of giving bribe in police station saying of Badri
 Admissible-What in that case was held to be admissible against the conspirator was the Rai, “Ramji, had sent the money through him in pursuance of the talk that they had with him, in the
evidence of entries made by his fellow conspirator contained in various documents actually evening of August 24, as a consideration for hushing up the case that was pending against Ramji”
used for carrying out the fraud. clearly denote that money was given in pursuance of conspiracy.
 Inadmissible- A document not created in the course of carrying out the transaction, but
made by one of the conspirators after the fraud was completed, was held to be inadmissible Fact-
against the other. First Appellant- Badri Rai
Second appellant- Ramji Sonar
Queen v. Blake is related to conspiracy. In this case there was carrying away goods without
payment of full custom duty.  Ramji Sonar, is a gold smith by profession, and runs a shop on the main road in the Village
A mere statement made by one conspirator to a third party or any act not done in pursuance of Naogachia. In that village, there is a police station, and the shop in question is situated in
the conspiracy is not evidence for or against another conspirator. between the police station building and the residential quarters of the Inspector of police.
 Badri, runs a school for small boys in the same village, about 50 yards away from the shop
(2) Three letters -The three documents taken as a whole show that the two writers of the documents aforesaid, of the second appellant.
desired to get rid of Ali Askar so that they should marry each other. There was a question of finding August 22, 1953 - On August 22, 1953, the First Informant, who, holding the position of an
money for hired assassin to get rid of him. Inspector of Police, was in charge of the police station, made a seizure of certain ornaments and
molten silver from a vacant building in front of the house of Ramji. Those ornaments were being

54 55
(1844) 6 Q.B. 126. AIR 1958 SC 953

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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melted by six strangers coming from distant places, with implements for melting, said to have been  L.K.Adwani was M.P. He received some bribe to help in allotting tender in illegal manner.
supplied by Ramji. The seizure was made on the suspicion that the ornaments and the molten silver  V.C. Shukla was M.P. He received some bribe to help in allotting tender in illegal manner.
were stolen property, which were to be sold to Ramji in a shape which could not be identified with
any stolen property. In course of the search they recovered, besides other articles and documents, two diaries, two
Ram Ji was arrested and released on bail. small note books and two files containing details of receipts of various amounts from different
August 24, 1953 -Both appellants met with police officer and offered for bribe to hush up the case sources.
on August 24, 1953. The Inspector told them to come to the police station. Thereafter, the Inspector
 It talks about Rs. 65.47 crores, out of which 53.5 crores had been illegally transferred from
reported the matter to his superior officer, the DSP and to the Sub-Inspector, attached to the same
abroad through hawala channels, during the years 1988 to 1991 to 115 persons including
police station.
L.K.Adwani & V.C. Shukla.
August 31, 1953- On August 31, the same year, the first appellant, Badri, came to the police station,
 the Jain brothers and J.K. Jain, who is their employee, had acted as middlemen in the award
saw the Inspector in the central room of the thana, and offered to him a packet wrapped in a piece
of certain big projects in the power sector of the Government of India to different bidders;
of old newspaper, containing Rs 500 in currency notes. He told the Inspector, that Ramji, had sent
that they had official dealings with politicians and public servants whose names were
the money through him in pursuance of the talk that they had with him, in the evening of August
recorded in the diaries and the files.
24, as a consideration for hushing up the case that was pending against Ramji. At the time the offer
was made, a number of police officers, besides a local merchant, were present there. The Inspector Court of the Special Judge - On such revelation the CBI registered a case on March 4, 1995
at once drew up the first information report of the offer of the bribe on his own statement, and under Prevention of Corruption Act, 1988 and Foreign Exchange Regulation Act, 1973. Charge-
prepared a seizure-list of the money, thus offered, and at once arrested Badri, and put him in the sheets (challans) in the Court of the Special Judge, New Delhi were submitted. Charges were
thana lock-up. framed against accused.
One serious issue was raised on behalf of Ram Ji, Second Appellant. High Court-It was challenged in High Court under section 482 which deals inherent power of
Issue - Whether the statement made by Badri, on August 31, 1953, that he had been sent by the High Court. High Court quashed the proceeding and discharged accused.
Ram Ji with the money to be offered by way of bribe to the police officer, was admissible against Supreme Court – Decision of High Court was challenged by CBI in Supreme Court. The entire
Ram Ji. edifice of the prosecution case is built on the diaries and files - and for that matter the entries
Answer – Yes. It was made in reference to common intention in pursuance of conspiracy. made therein which was recovered from J. K. Jain. While the appellant claimed that the entries
Conspiracy was to give the bribe to hush up the case. in the documents would be admissible under Sections 10, 17 and 34 of the Evidence Act, 1872.
In this case Supreme Court also considered ratio of Marza Akbar case and Blake case. Section 34. Entries in books of account when relevant - Entries in the books of account, including
Conclusion-Appeal was dismissed. those maintained in an electronic form], regularly kept in the course of business, are relevant
whenever they refer to a matter into which the Court has to inquire, but such statements shall not
alone be sufficient evidence to charge any person with liability.
Central Bureau of Investigation v. V.C. Shukla56 (SC 1998) Illustration
A sues B for Rs. 1,000, and shows entries in his account books showing B to be indebted to him to
Indian Evidence Act, 1872 this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the
Section 10 debt.
Sections 17 to 21
Section 34 Arguments of CBI –Arguments of CBI was based on three sections –

Facts-  (1) Section 34 - The documents unmistakably showed that accounts of business
On May, 3, 1991 the Central Bureau of Investigation (CBI), searched the premises of J.K. Jain at regarding receipt and payment of money during the period 1988 to 1991 were regularly
G-36, Saket, New Delhi. maintained those documents would be admissible under Section 34 of the Act. Relying
According to charge of CBI - upon the statements of some of the witnesses recorded during investigation and report
of the handwriting expert that the entries in the documents were in the handwriting of
 J.K.Jain was employee of Jain Brothers (Three Brothers) was maintain books of account. J.K. Jain, and that the three Jain brothers had signed those documents in token of their
 Jain brothers -S.K. Jain, B. R. Jain, and N.K. Jain, who were three brothers carrying on authenticity,
different businesses. They were working as middleman.  (2) Section 10 -it was contended that entries therein would be admissible also under
Section 10 of the Act to prove that pursuant to a conspiracy hatched up by the Jains to
56
obtain favours from politicians and other public servants payments were made to them
AIR 1998 SC 1406
from moneys received through hawala transactions.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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 (3) Sections 21 - Section 17 and 21 were also pressed into service to contend that the Since the first requirement of Section 10 is not fulfilled the entries in the documents cannot be
entries would be 'admission’ of the Jains of such payments. pressed into service under its latter part.
Reply of V.C. Shukla and Others. (4) Communication for admission – In this case Supreme Court with the help of Bhogilal v. State
In refuting the above contentions it was submitted on behalf of the respondents that of Maharashtra57 and Section 21, Illustration (b) concluded that communication of admission is not
(1) Section 10 – necessary.
 Since those documents were not books of accounts (5) Meaning of statement- In this case Supreme Court with the help of Bhogilal v. State of
 nor were they maintained in regular course of business they would not be relevant Maharashtra said that word ‘statement’ used in section 17 (An admission is a statement…) has
under Section 34. been used in its primary meaning namely, ‘something that is stated’ and communication is not
 It was next submitted that even it was assumed that those documents were relevant and necessary in order that it may be a statement. Entries in book without any communication may be
admissible under Section 34 they could be, in view of the plain language of that Section, an admission.
used only as corroborative evidence, but in absence of any independent evidence to (6) Difference between admission and confession –In this case Supreme Court accepted
prove the payments alleged therein the documents were of no avail to the prosecution. difference between admission and confession as discussed in Monir’s Law of Evidence. Difference
was made on the basis of section 30 of the Evidence Act. It was concluded that confession made by
(2) Section 10 - There was not an iota of material to show even, prima facie, that there was a co-accused can be used against other accused but admission made by co-accused cannot be used
conspiracy. against other accused.
(3) Section 21- Absence of any material to prove ‘admission’ of Jains. Decision- There was no prima facie case of existence of conspiracy. Admission cannot be used
against other co-accused. So appeal of CBI was dismissed.
Decision of Supreme Court Mohd. Khalid v. State of West Bengal (Sept. 3, 2002 SC)
(a) Meaning of book –‘Book’ ordinarily means a collection of sheets of paper or other material, There was demolition of Babari on December 6, 1992. Terrorist attacked in Calcutta on March 16
blank, written, or printed, fastened or bound together so as to form a material whole. Loose sheets & 18, 1993. Several people were killed and injured. Several persons were arrested and Challan was
or scraps of paper cannot be termed as ‘book’ for they can be easily detached and replaced. submitted for commission of offences under sections 120B, 436, 302, 307, 326 of IPC. Section 10
(2) Principles of agency - Ordinarily, a person cannot be made responsible for the acts of other of the Indian Evidence Act was discussed to establish conspiracy.
unless they have been instigated by him or done with his knowledge or consent. This section Arguments of Mohd. Khalid –
provides an exception to that rule, by laying down that an overt act committed by any one of the (1)Purpose of collection of weapons was to protect ourselves
conspirators is sufficient, (on the general principles of agency) to make it the act of all. (2) Confession was not voluntarily. It was retracted confession.
(3) Acceptance of ratio of Sardar Sardul Singh Caveeshar v. State Of Maharashtra (SC 18 March, (3) There was delay in examination of witness.
1963)and Bhagwan Swarup Lal Bishan and Others v. State of Maharashtra (AIR 1965 SC 682) Reply of State –
In short, section 10 can be analysed as follows: (1) Purpose of collection of weapons was not to protect themselves. There was collection of large
(i) Prima facie evidence - There shall be a prima facie evidence affording a reasonable ground for quantity of explosive. Real motive was to destroy harmony.
a Court to believe that two or more persons are members of a conspiracy; (2) Confession was voluntarily. Retraction was overthought.
(ii) Reference to their common intention - if the said condition is fulfilled, anything said, done (3) First priority of State was to save lives. So there was some delay in examination of witnesses.
or written by any one of them in reference to their common intention will be evidence against the Supreme Court – In this case Supreme Court discussed following important points –
other; (1) Section 24 of IEA- The principle therein is that confession must be voluntary. It must be the
(iii) Said, done or written after common intention- anything said, done or written by him should outcome of his own free will inspired by the sound of his own conscience to speak nothing but the
have been said, done or written by him after the intention was formed by any one of them ; truth.
(iv) Relevant for proving conspiracy and member- it would also be relevant for the said purpose ‘Voluntary’ means a statement made of the free will and accord of accused, without coercion,
against another who entered the conspiracy whether it was said, done or written before he entered whether from fear of any threat of harm, promise, or inducement or any hope of reward.
the conspiracy or after he left it ; and (2) Section 30 – There are following important points-
(v) Use- it can only be used against a co-conspirator and not in his favour.
 Firstly (Confession)-There should be a confession proper and not a mere circumstance or
Shri Shukla was known to the Jain brothers and had gone to their residence on formal occasions an information which could be an incriminating one.
was not sufficient to show existence of conspiracy. So far as Shri Advani is concerned, no one  Secondly (No evidence u/s 3) - it being the confession of the maker, it is not to be treated
has even spoke about him in their statements. Two constitutes the conspiracy there must be two as evidence within the meaning of Section 3 of the Evidence Act against the non-maker co-
parties. One person cannot constitute conspiracy. accused and

57
(1959) Supp. 1 SCR 310.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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 Thirdly (Corroborative) - Its use depends on finding other evidence so as to connect the
co-accused with the crime and that too as a corroborative piece. (11) Acceptance of ratio of Mirza Akbar Case -
In this case Supreme Court accepted the ratio of Mirza case regarding scope of section 10.
(3) Definition of confession - Confession is statement containing an admission of guilt and not Privy Council observed in Mirza Akbar case, “The words ‘common intention’ signify a common
merely a statement raising the inference with regard to such a guilt. intention existing at the time when the thing was said, done or written by the one of them. Things
(4) Confession is not admission under section 3- The confession of a co-accused does not come said, done or written while the conspiracy was on foot are relevant as evidence of the common
within the definition of ‘Evidence’ contained in Section 3 of the Evidence Act. These are following intention, once reasonable ground has been shown to believe in its existence. But it would be a very
reasons - different matter to hold that any narrative or statement or confession made to a third party after the
common intention or conspiracy was no longer operating and had ceased to exist is admissible
 It is not required to be given on oath,
against the other party.”
 nor in the presence of the accused, and
Conclusion – Appeal was dismissed.
 it cannot be tested by cross-examination”.
(5) Ratio of Bhuboni Sahu58 & Kashmira Singh59 Cases- In this case ratio of these cases were Section 11. When facts not otherwise relevant become relevant.––Facts not otherwise relevant
followed. are relevant––
(6) Double Test - Ratio of Shankaria v. State of Rajasthan60 was accepted. In Shankaria Case (1) if they are inconsistent with any fact in issue or relevant fact;
the court applied double test for deciding the acceptability of a confession, i.e., (2) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.
 (i) whether the confession was perfectly voluntary, and
 (ii) if so, whether it is true and trustworthy. Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day.
Satisfaction of the first test is a sine qua non for its admissibility in evidence. The fact that, on that day, A was at Lahore is relevant.
(7) Post arrest statement does not come u/conspiracy -The post-arrest statement made to a police The fact that, near the time when the crime was committed, A was at a distance from the place
officer, whether it is a confession or otherwise touching his involvement in the conspiracy, would where it was committed, which would render it highly improbable, though not impossible, that he
not fall within the ambit of Section 10 of the Evidence Act. committed it, is relevant.
(8) Prima facie is opening lock of Section 10 -The first condition which is almost the opening lock Comment
of that provision is the existence of “reasonable ground to believe” that the conspirators have Section 11 contains two principles namely;
conspired together. This condition will be satisfied even when there is some prima facie evidence (1) Principle of ‘Inconsistency’ – Section 11(1)
to show that there was such a criminal conspiracy. (2) Principle of ‘Probability’ - Section 11(2)-
(9) Substantive evidence- If prima facie condition is fulfilled then anything said by one of the There are following example of ‘Principle of Inconsistency’ –
conspirators becomes substantive evidence against the other, provided that should have been a 1. Alibi [Section 11(Illustration (a)]
statement “in reference to their common intention”. 2. Absence of husband (Non-access – Section 112)
(10) Difference between English and Indian Law -Under the corresponding provision in the 3. Survival of deceased
English law the expression used is “in furtherance of the common object”. No doubt, the words “in 4. Self-infliction of the alleged harm.
reference to their common intention” are wider than the words used in English law. There are following example of ‘Principle of Probability’-
S. No. English Law Indian Law  [Section 11(Illustration (a) third part & Illustration (b)]
1 “in furtherance of the common object”. “in reference to their common intention”
2 Narrower Wider Plea of alibi
UP J (M) 2006 Question 5(b)(ii)
(11) Theory of Agency- Section 10 contains theory of agency. Every conspirator is an agent of his (b) The question is, whether A committed a crime.
associate in carrying out the object of the conspiracy. Section 10, which is an exception to the The circumstances are such that the crime must have been committed either by A, B, C or D. Every
general rule, while permitting the statement made by one conspirator to be admissible as against fact which shows that the crime could have been committed by no one else, and that it was not
another conspirator restricts it to the statement made during the period when the agency subsisted. committed by either B, C or D, is relevant.
UP (J) Pre. 2018 Series C Question 70
58
The case of Dudh Nath Pandey v. State of Uttar Pradesh is related to:
Bhuboni Sahu v. The King (DOJ -February 17, 1949)
(a) Res gestae
59
Kashmira Singh v. State of Madhya Pradesh(4 March, 1952) (b) Plea of alibi
60
(1978) 3 SCC 435

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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(c) Admission  If the evidence adduced by the accused is of such a quality and of such a standard that the
(d) Accomplice court may entertain some reasonable doubt regarding his presence at the place and time of
Answer - (b) Plea of alibi occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced
on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The
burden of the accused is undoubtedly heavy.
There are two leading cases-  Section 103- This flows from Section 103 of the Evidence Act which provides that the
1. Dudh Nath Pandey v. The State of U.P. (February 11, 1981) burden of proof as to any particular fact lies on that person who wishes the court to believe
2. Jayantibhai Bhenkarbhai v. State of Gujarat (September 11, 2002). in its existence. However, while weighing the prosecution case and the defence case, pitted
against each other, if the balance tilts in favour of the accused, the prosecution would fail
Dudh Nath Pandey v. The State of U.P.61 (1981) and the accused would be entitled to the benefit of that reasonable doubt which would
emerge in the mind of the court.
In this case Hon’ble Supreme Court observed, “The plea of alibi postulates the physical Burden of prove
impossibility of the presence of the accused at the scene of offence by reason of his presence at Section 103. Burden of proof as to particular fact -The burden of proof as to any particular fact
another place. The plea can therefore succeed only if it is shown that the accused was so far away lies on that person who wishes the Court to believe in its existence, unless it is provided by any law
at the relevant time that he could not be present at the place where the crime was committed”. that the proof of that fact shall lie on any particular person.
Illustrations (b) - B wishes the Court to believe that, at the time in question, he was elsewhere. He
Jayantibhai Bhenkarbhai v. State of Gujarat62 must prove it.

In this case ‘Sarkar on Evidence’ was quoted. DU LL.B. Semester Exam. 2019
Question 1- State the provisions of law and give reasons as to the relevancy of the facts:

 Origin & Meaning - The word “alibi” is of Latin origin and means “elsewhere”. (d) A is accused of kidnapping a child from Agra on 31/08/2018. A produces a certificate that he
 Provision -The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). was admitted in PGI, Chandigarh form 25/08/2018 -05/09/2018 for treatment of liver infection.
 It is a convenient term used for the defence taken by an accused that when the occurrence
took place he was so far away from the place of occurrence that it is highly improbable that UP (J) Pre. 2018 Series C Question 70
he would have participated in the crime. The case of Dudh Nath Pandey v. State of Uttar Pradesh is related to:
 Not exception - Alibi is not an exception (special or general) envisaged in the Indian Penal (a) Res gestae
Code or any other law. (b) Plea of alibi
 Rule of Evidence - It is only a rule of evidence recognized in Section 11 of the Evidence (c) Admission
Act that facts which are inconsistent with the fact in issue are relevant. (d) Accomplice
 Burden of prove-The burden of proving commission of offence by the accused so as to Answer - (b) Plea of alibi
fasten the liability of guilt on him remains on the prosecution and would not be lessened by
the mere fact that the accused had adopted the defence of alibi. Section 12. In suits for damages, facts tending to enable Court to determine amount are
 Timing of consideration of this evidence- The plea of alibi taken by the accused needs to relevant. – In suits in which damages are claimed, any fact which will enable the Court to determine
be considered only when the burden which lies on the prosecution has been discharged the amount of damages which ought to be awarded, is relevant.
satisfactorily. If the prosecution has failed in discharging its burden of proving the
commission of crime by the accused beyond any reasonable doubt, it may not be necessary Section 13. Facts relevant when right or custom is in question.––Where the question is as to the
to go into the question whether the accused has succeeded in proving the defence of alibi. existence of any right or custom, the following facts are relevant:-
 But once the prosecution succeeds in discharging its burden then it is incumbent on the (a) any transaction by which the right or custom in question was created, claimed, modified,
accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of recognised, asserted or denied, or which was inconsistent with its existence;
his presence at the place and time of occurrence. An obligation is cast on the court to weigh (b) particular instances in which the right or custom was claimed, recognised or exercised, or in
in scales the evidence adduced by the prosecution in proving the guilt of the accused and which its exercise was disputed, asserted or departed from.
the evidence adduced by the accused in proving his defence of alibi. Illustrations
The question is, whether A has a right to a fishery.
A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent
61
Date of decision - February 11, 1981. grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which
62
Date of decision - September 11,2002

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A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, Illustration (f) - A is sued by B for fraudulently representing to B that C was solvent, whereby B,
are relevant facts. being induced to trust C, who was insolvent, suffered loss.
UP (J) Mains, 1999, Question 6 (b) - What facts are relevant when the question is as to the The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his
existence of right or custom? Answer with example. neighbours and by persons dealing with him, is relevant, as showing that A made the representation
Answer – Section 13. in good faith.
Illustration (g) - A is sued by B for the price of work done by B, upon a house of which A is owner,
Section 14. Facts showing existence of state of mind, or of body of bodily feeling -Facts showing by the order of C, a contractor.
the existence of any state of mind such as intention, knowledge, good faith, negligence, rashness, A’s defence is that B’s contract was with C.
ill-will or good-will towards any particular person, or showing the existence of any state of body or The fact that A paid C for the work in question is relevant, as proving that A did, in good faith,
bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling make over to C the management of the work in question, so that C was in a position to contract with
is in issue or relevant. B on C’s own account, and not as agent for A.
Explanation 1 - A fact relevant as showing the existence of a relevant state of mind must show that Illustration (h) - A is accused of the dishonest misappropriation of property which he had found,
the state of mind exists, not generally, but in reference to the particular matter in question. and the question is whether, when he appropriated it, he believed in good faith that the real owner
Explanation 2 -But where, upon the trial of a person accused of an offence, the previous could not be found.
commission by the accused of an offence is relevant within the meaning of this section, the previous The fact that public notice of the loss of the property had been given in the place where A was, is
conviction of such person shall also be a relevant fact. relevant, as showing that A did not in good faith believe that the real owner of the property could
Illustrations not be found.
Illustration (a) - A is accused of receiving stolen goods knowing them to be stolen. It is proved that The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who
he was in possession of a particular stolen article. had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing
The fact that, at the same time, he was in possession of many other stolen articles is relevant, as that the fact that A knew of the notice did not disprove A’s good faith.
tending to show that he knew each and all of the articles of which he was in possession to be stolen.
UP (J) (Mains), 2012 Question 7(b) Illustration (i) - A is charged with shooting at B with intent to kill him. In order to show A’s intent
Illustration (b) - A is accused of fraudulently delivering to another person a counterfeit coin which, the fact of A’s having previously shot at B may be proved.
at the time when he delivered it, he knew to be counterfeit. Illustration (j) - A is charged with sending threatening letters to B. Threatening letters previously
The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit sent by A to B may be proved, as showing the intention of the letters.
coin is relevant. Illustration (k) - The question is, whether A has been guilty of cruelty towards B, his wife.
The fact that A had been previously convicted of delivering to another person as genuine a Expressions of their feeling towards each other shortly before or after the alleged cruelty are
counterfeit coin knowing it to be counterfeit is relevant. relevant facts.
UP (J) (M) 2006 Question 7(b)(ii) Illustration (l) - The question is whether A’s death was caused by poison.
Illustration (c) A sues B for damage done by a dog of B’s, which B knew to be ferocious. Statements made by A during his illness as to his symptoms are relevant facts.
The fact that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are Illustration (m) -The question is, what was the state of A’s health at the time when an assurance on
relevant. his life was effected.
Illustration (d) - The question is, whether A, the acceptor of a bill of exchange, knew that the name Statements made by A as to the state of his health at or near the time in question are relevant facts.
of the payee was fictitious. Illustration (n) - A sues B for negligence in providing him with a carriage for hire not reasonably
The fact that A had accepted other bills drawn in the same manner before they could have been fit for use, whereby A was injured.
transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A The fact that B’s attention was drawn on other occasions to the defect of that particular carriage is
knew that the payee was a fictitious person. relevant.
UP APO (M), 1988 1996, UP (J) (Mains), 2012 Question 5(c) The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.
Illustration (e) - A is accused of defaming B by publishing an imputation intended to harm the UP (J) Mains, 1992, Question 5 (b)(i)
reputation of B. UP (J) Mains, 2003, Question 5 (b)(i)
The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is UP (J) Pre. 2018 Series C Question 113 (Same question in 2016 also).
relevant, as proving A’s intention to harm B’s reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B, and that A repeated the matter A is tried for the murder of B by intentionally shooting him dead. The fact that A was in the habit
complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of shooting at people with intent to murder them –
of B. A. Relevant Fact
B. Irrelevant

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 56 57
C. Neither relevant nor irrelevany Admission
D. Fact in issue
Answer - Irrelevant. Section 14 Illustration (o) Chapter –IV, Sections 17 to 31 of the Indian Evidence Act, 1872

UP (J) Mains, 1992, Question 6 (a)

Illustration (o)- A is tried for the murder of B by intentionally shooting him dead.
 The fact that A on other occasions shot at B is relevant as showing his intention to shoot B. What do you understand by “admission” and “confession”? Distinguish between the two and
(Particular – Relevant – Explanation 1). explain their evidentiary values.
 The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
(General – Irrelevant – Explanation 1). UP (J) Mains 2006 Question 6(a)
Explain admission and confession and distinguish between them and discuss also to what extent
Illustration (p) - A is tried for a crime. they are admissible in the Court?
The fact that he said something indicating an intention to commit that particular crime is relevant.
The fact that he said something indicating a general disposition to commit crimes of that class is Introduction –‘Admission’ has been defined under sections 17 to 20. Definition of admission does
irrelevant. not complete unless and until all sections i.e. 17 to 20 are discussed. Section 21 talks about
relevancy, use, non-use and its exceptions. Section 22 deals about relevancy of oral admission as
Section 15. Facts bearing on question whether act was accidental or intentional.––When there to contents of document. Section 22A deals about relevancy of oral admission as to contents of
is a question whether an act was accidental or intentional, or done with a particular knowledge or electronic records. Section 23 deals when admission is not relevant in civil cases. According to
intention, the fact that such act formed part of a series of similar occurrences, in each of which the section 31 says that admissions are not conclusive proof of the matters admitted but they may
person doing the act was concerned, is relevant. operate as estoppels under the provisions hereinafter contained.
Illustrations
Illustration (a) A is accused of burning down his house in order to obtain money for which it is Sahoo v. State of U.P.63 (February 16, 1965)
insured. A scrutiny of the provisions of Section 17 to 31 of the Evidence Act discloses that statement is a
The facts that A lived in several houses successively each of which he insured, in each of which a genus, admission is the species and confession is the sub-species.
fire occurred, and after each of which fires A received payment from a different insurance office, In the case of Aghanoo Nagesia v. State of Bihar64 (SC 4 May, 1965) Supreme Court said that
are relevant, as tending to show that the fires were not accidental. confession is a species of admission.
Illustration (b) A is employed to receive money from the debtors of B. It is A’s duty to make entries Opinion of author65
in a book showing the amounts received by him. He makes an entry showing that on a particular Fact Statement Admission Confession
occasion he received less than he really did receive. Fact Statement Admission Confession
The question is, whether this false entry was accidental or intentional. Meaning of ‘Statement’ – Bhogilal v. State of Maharashtra66 (1959)
The facts that other entries made by A in the same book are false, and that the false entry is in each In this case Supreme Court said that word ‘statement’ used in section 17 (An admission is a
case in favour of A, are relevant. statement…) has been used in its primary meaning namely, ‘something that is stated’ and
Illustration (c) A is accused of fraudulently delivering to B a counterfeit rupee. communication is not necessary in order that it may be a statement.
The question is, whether the delivery of the rupee was accidental. Sahoo v. State of U.P.67 (February 16, 1965)
The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D The dictionary meaning of the word ‘statement’ is ‘the act of stating, reciting or presenting verbally
and E are relevant, as showing that the delivery to B was not accidental or on paper.’ The term ‘statement’ therefore, includes both oral and written statements.
Question -Is Communication of admission or confession to third person necessary?
Section 16. Existence of course of business when relevant.––When there is a question whether a
particular act was done, the existence of any course of business, according to which it naturally Answer- Communication of admission or confession is not necessary. There are following cases-
would have been done, is a relevant fact. Bhogilal Chunilal Pandya v. The State of Bombay68 (DOD 4 November, 1958)
Illustrations
Illustration (a) The question is, whether a particular letter was dispatched.
63
The facts that it was the ordinary course of business for all letters put in a certain place to be carried AIR 1966 SC 40
64
to the post, and that particular letter was put in that place are relevant. AIR 1966 SC 119
65
Krishna Murari Yadav, Assistant Professor, Faculty of Law, University of Delhi, Delhi.
Illustration (b) The question is, whether a particular letter reached A. The facts that it was posted 66
(1959) Supp. 1 SCR 310.
in due course, and was not returned through the Dead Letter Office, are relevant. 67
AIR 1966 SC 40
68
(1959) Supp. 1 SCR 310, AIR 1959 SC 356.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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In this case Hon’ble Justice of Supreme Court Mr. K.N. Wanchoo, with help Section 21, Illustration the case of a statement in writing, there cannot be any difference in principle in the case of an oral
(b) concluded that communication of admission is not necessary. statement. Both must stand on the same footing.
Sahoo v. State of U.P.69
The dictionary meaning of the term ‘Statement’ does not demand communication; nor the reason ADMISSIONS
of the rule underlying the doctrine of admission or confession demands it.
Central Bureau of India v. V.C.Shukla70 (1988) Section 17. Admission defined.––An admission is a statement, oral or documentary or contained
In this case Supreme Court with the help of Bhogilal v. State of Maharashtra71 and Section 21, in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which
Illustration (b) concluded that communication of admission is not necessary. Entries in book is made by any of the persons, and under the circumstances, hereinafter mentioned.
without any communication may be an admission. Section 18. Admission by party to proceeding or his agent.––Statements made by a party to the
UP (J) Pre. 2018 Series C Question 113 proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of
“A confession even consists of conversation to oneself, for it is not necessary for relevancy of a the case, as expressly or impliedly authorised by him to make them, are admissions.
confession that it should be communicated to some other person”, was held in the case of By suitor in representative character - Statements made by parties to suits suing or sued in a
representative character, are not admissions, unless they were made while the party making them
A. Shankaria v. State of Rajasthan held that character.
B. Boota Singh v. State of Punjab Statements made by -
C. Sahoo v. State of U.P. (1) by party interested in subject-matter - persons who have any proprietary or pecuniary interest
D. Nishikant Jha v. State of Bihar in the subject-matter of the proceeding, and who make the statement in their character of persons
so interested, or
Answer- C. Sahoo v. State of U.P.
(2) by person from whom interest derived - persons from whom the parties to the suit have
derived their interest in the subject-matter of the suit, are admissions, if they are made during the
Question –Is admission and confession exception of ‘Hearsay Evidence’?
continuance of the interest of the persons making the statements.
Answer- Yes. Sahoo v. State of U.P.72
In this case Supreme Court said that Admissions and confessions are exceptions to the hearsay rule
Section 19. Admissions by persons whose position must be proved as against party to suit.
Question- What is justification declaration of confession and admission as relevant facts?
Statements made by persons whose position or liability, it is necessary to prove as against any party
Answer-
to the suit, are admissions, if such statements would be relevant as against such persons in relation
Sahoo v. State of U.P.73
to such position or liability in a suit brought by or against them, and if they are made whilst the
Evidence Act places them in the category of relevant evidence, presumably on the ground that, as
person making them occupies such position or is subject to such liability.
they are declarations against the interest of the person making them, they are probably true.
UP (J) (M) 2006 Question 6(b)(i)
Question – How to prove admission and confession? Jharkhand (J) (M) 2014 Question 8(b)(i)
Answer-
Illustration
Sahoo v. State of U.P.74
A undertakes to collect rents for B.
The probative value of an admission or a confession does not depend upon its communication to
B sues A for not collecting rent due from C to B.
another, though, just like any other piece of evidence, it can be admitted in evidence only on proof.
A denies that rent was due from C to B.
This proof in the case of oral admission or confession can be offered only by witnesses who heard
A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies
the admission or confession, as the case may be. The following illustration pertaining to a written
that C did owe rent to B.
confession brings out the said idea: A kills B; enters in his diary that he had killed him, puts it in
his drawer and absconds. When he places his act on record, he does not communicate to another;
Section 20. Admissions by persons expressly referred to by party to suit. ––Statements made
indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the
by persons to whom a party to the suit has expressly referred for information in reference to a matter
said statement of the accused can certainly be proved as a confession made by him. If that be so in
in dispute are admissions.
UP (J) (M) 2006 Question 7(b) (i)
Jharkhand (J) (M) 2014 Question 8(b)(ii)
69
AIR 1966 SC 40 Illustration
70
AIR 1998 SC 1406. The question is, whether a horse sold by A to B is sound.
71
(1959) Supp. 1 SCR 310.
72
AIR 1966 SC 40 A says to B –– “Go and ask C, C knows all about it.” C’s statement is an admission.
73
AIR 1966 SC 40
74
AIR 1966 SC 40

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 60 61
UP (J) (M) 1991Question 2(a) Illustration (c) A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore
Whether an admission can be used by the maker of the admission in his own favour? If so, in what post-mark of that day.
circumstances? Explain and illustrate. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible
under section 32, clause (2).
Section 21. Proof of admissions against persons making them, and by or on their behalf.–– Illustration (d) A is accused of receiving stolen goods knowing them to be stolen.
Admissions are relevant and may be proved as against the person who makes them, or his He offers to prove that he refused to sell them below their value.
representative in interest; but they cannot be proved by or on behalf of the person who makes them A may prove these statements, though they are admissions, because they are explanatory of conduct
or by his representative in interest, except in the following cases:–– influenced by facts in issue.
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature Illustration (e) A is accused of fraudulently having in his possession counterfeit coin which he
that, if the person making it were dead, it would be relevant as between third persons under section knew to be counterfeit.
32. He offers to prove that he asked a skillful person to examine the coin as he doubted whether it was
(2) An admission may be proved by or on behalf of the person making it, when it consists of a counterfeit or not, and that that person did examine it and told him it was genuine.
statement of the existence of any state of mind or body, relevant or in issue, made at or about the A may prove these facts for the reasons stated in the last preceding illustration.
time when such state of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise Section 22. When oral admissions as to contents of documents are relevant.––Oral admissions
than as an admission. as to the contents of a document are not relevant, unless and until the party proposing to prove them
Three parts of shows that he is entitled to give secondary evidence of the contents of such document under the
section 21 rules hereinafter contained, or unless the genuineness of a document produced is in question.
(i) Admissions (ii) Rule- It may (iii) Three Exceptions – It can be used in favour of maker.
are relevant be proved These three exceptions are – Section 22A. When oral admission as to contents of electronic records are relevant.––Oral
against maker (a) Clause 1- Statement relevant under section 32.(Ills. b & admissions as to the contents of electronic records are not relevant, unless the genuineness of the
c) electronic record produced is in question.
(b) Clause 2- Statement as to existence of state of mind or
body. Ground Section 22 Section 22A
(b) Clause 3- Statement relevant otherwise than as Rule Oral admissions as to contents of Oral admissions as to contents of
admission. .(Ills. d & e) documents are not relevant. electronic records are not relevant.
Exceptions There are two exceptions There is one exception
Illustrations 1 The genuineness of a document produced The genuineness of the electronic
Illustration (a) The question between A and B is whether a certain deed is or is not forged. A is in question record produced is in question.
affirms that it is genuine, B that it is forged. 2 The party proposing to prove them shows
A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed that he is entitled to give secondary
is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a evidence of the contents of such document
statement by himself that the deed is forged. under section 65 of the Evidence Act.
UP (J) Mains, 2013Question 5(c)
Illustration (b) - A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business showing observations alleged
to have been taken by him from day to day, and indicating that the ship was not taken out of her
proper course. A may prove these statements, because they would be admissible between third
parties, if he were dead, under section 32, clause (2).

Section 21 Ill.(b) Casting her away.

Section 32 Ill. (h) Cause of ship
Section 32 Ill. (d) whether a ship sailed from Bombay harbour on a given day

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 62 63

Section 23 Ground Admission Confession

Admissions in civil cases when relevant.––In civil cases no admission is relevant, if it is made Definition This word has been defined under This word has not been defined under
either upon an express condition that evidence of it is not to be given, or under circumstances from Under IEA Indian Evidence Act. Sections 17 to Indian Evidence Act. There is two
which the Court can infer that the parties agreed together that evidence of it should not be given. 20 deal definition of admission. popular definition of confession given
Explanation.––Nothing in this section shall be taken to exempt any barrister, pleader, attorney or by Stephen and Atkin.
vakil from giving evidence of any matter of which he may be compelled to give evidence under Definition An admission is a statement, oral or Atkin, “Confession must
section 126. documentary or contained in  either admit in terms the
Rule is that in civil case admissions are relevant. But there are two exceptions of it. These are – electronic form, which suggests offence,
any inference as to any fact in issue  or at any rate substantially all
 if it is made either upon an express condition that evidence of it is not to be given, or or relevant fact. the facts which constitute the
 under circumstances from which the Court can infer that the parties agreed together that offence”
evidence of it should not be given. Admission is made by any of the Here two persons can make confession
By whom
Section 23 Section 23 persons, and under the namely;
Rule Rule is that in civil case admissions are relevant circumstances, as mentioned under  Accused
Exceptions There are two exceptions ss. 18 to 20. There are total seven  Co-accused.
persons who can make admission.
1 Expressly prohibited by Parties
These are -Five person under
2 Impliedly prohibited by Parties
section 18, one person under
section 19 and one person section
20. Admission can also be made by
Section 31. Admissions not conclusive proof, but may estop.––Admissions are not conclusive
accused which come under the
proof of the matters admitted but they may operate as estoppels under the provisions hereinafter
category of party under section 18.
contained.
Here proceeding means civil or
criminal.
Genus/ Admission is genus. In the case of Aghanoo Nagesia v. State
Species of Bihar Supreme Court said that
Admission is Substantive Evidence
confession is a species of admission.
Relevant Admission is relevant under section Confession is relevant under sections 27
In the case of Bharat Singh and Anr. v. Bhagirathi75 (26 August, 1965) Supreme Court observed,
21. to 30.
“ Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian
Evidence Act, though they are not conclusive proof76 of the matters admitted.” Section 30 Admission by Co-accused - Confession by Co-accused- A
In the case of Bishwanath Prasad v. Dwarka Prasad77 (October 30, 1973) Supreme Court (CBI v. V.C. Admission is admissible only statement made by an accused person is
observed, “Admission by a party is substantive evidence if it fulfills the requirements of Section 21 Shukla, 1998) against its maker as an admission admissible against others who are being
of the Evidence Act”. and not against those who are being jointly tried with him only if the
Burden of prove jointly tried with him. statement amounts to a confession.
Section 103. Burden of proof as to particular fact - The burden of proof as to any particular fact Use In exceptional cases admission can Confession cannot be used in his
lies on that person who wishes the Court to believe in its existence, unless it is provided by any law be used in his favour. There are favour.
that the proof of that fact shall lie on any particular person. three exceptions mentioned under
Illustrations (a) - A prosecutes B for theft, and wishes the Court to believe that B admitted the theft section 21.
to C. A must prove the admission. Proceeding Admission is used in both civil and Generally confession is used in criminal
Admission & Confession criminal proceeding. proceeding.
Classification There is no kind of admission. There are two kinds of confession
namely; (1) Judicial Confession & (2)
75
AIR 1966SC 405 Extra-judicial confession
76
Indian Evidence Act, 1872, Section 31 - Admissions are not conclusive proof of the matters admitted but they may
operate as estoppels under the provisions hereinafter contained.
77
AIR 1974 SC 117

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 64 65
Nature of In the case of Bharat Singh and Judicial confession is substantive (4) When extra-judicial confession is sole basis of conviction-
evidence Anr. v. Bhagirathi78 (26 August, evidence.
1965) and Bishwanath Prasad v. Extra judicial confession -Evidence The value of the evidence as to confession, like any other evidence, depends upon the veracity of
Dwarka Prasad (1974) Supreme of extra judicial confession is generally the witness to whom it has been made. The value of the evidence as to the confession depends on
Court observed, “ Admissions are of a weak nature. No conviction the reliability of the witness who gives the evidence. It is not open to any Court to start with a
substantive evidence by ordinarily can be based solely presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature
themselves, in view of Sections thereupon unless the same is of the circumstances, the time when the confession was made and the credibility of the witnesses
17 and 21 of the Indian Evidence corroborated in material particulars80. who speak to such a confession. Such a confession can be relied upon and conviction can be founded
Act, though they are not conclusive But in exceptional cases it can be sole thereon if the evidence about the confession comes from the mouth of witnesses who appear to be
proof79 of the matters admitted.” basis of conviction.81 unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out
which may tend to indicate that he may have a motive for attributing an untruthful statement to the
accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that
Confession and Extra-judicial Confession the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate
against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of
State of Rajasthan v. Raja Ram (13 August, 2003) credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it
In this case following important points were laid down – passes the test of credibility.
If the evidence relating to extra judicial confession is found credible after being tested on the
(1) Classification of confessions - Confessions may be divided into two classes, i.e. judicial and touchstone of credibility and acceptability, it can solely form the basis of conviction.
extra-judicial.
Sansar Chand v. State Of Rajasthan (October 20, 2010) Justice Markandey Katju
(2) Meaning – There is no absolute rule that an extra judicial confession can never be the basis of a conviction,
although ordinarily an extra judicial confession should be corroborated by some other material.
 Judicial confessions are those which are made before Magistrate or Court in the course of Difference between Confession and Extra-judicial Confession
judicial proceedings.
 Extra- judicial confessions are those which are made by the party elsewhere than before Meaning Judicial confessions are those
Extra- judicial confessions are
a Magistrate or Court. Extra judicial confessions are generally those made by a party to or which are made before Magistrate
those which are made by the
before a private individual which includes even a judicial officer in his private capacity. It under section 164 or Court in the
party elsewhere than before a
also includes a Magistrate who is not especially empowered to record confessions under course of judicial proceedings.
Magistrate or Court.
Section 164 of the Code or a Magistrate so empowered but receiving the confession at a Value It is substantive evidence It is not substantive evidence
stage when Section 164 does not apply. Conviction Conviction is safe without Legally conviction can be done
(3) Kind of confession-There are two types of confession. These are - corroboration without corroboration. But it is
not safe without corroboration
 Voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in Method of To prove judicial confession, the Extra-Judicial confession is
law. proof person to whom judicial confession proved by the calling the person
 An involuntary confession is one which is not the result of the free will of the maker of it. is made need not be called as as a witness before whom it was
So where the statement is made as a result of the harassment and continuous interrogation witness82. made.
for several hours after the person is treated as an offender and accused, such statement must
be regarded as involuntary.

78
AIR 1966SC 405
79
Indian Evidence Act, 1872, Section 31 - Admissions are not conclusive proof of the matters admitted but they may
operate as estoppels under the provisions hereinafter contained.
80
Baldev Singh v. State of Punjab (May 6, 2009)
81
State of Rajasthan v. Raja Ram (13 August, 2003)
82
Batuk Lal, ‘Law of Evidence’ 151 (Central Law Agency, Allahabad, 19th Edn. 2010).

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 66 67
Confession UP (J) Mains, 1986, Question 8
(a)What is confession? Distinguish between judicial and extra-judicial confession.
Answer- meaning of confession – In this case Supreme Court analyzed earlier definition of
UP (J) Mains, 1985, Question 7 (a) confession and concluded that confession may be defined as an admission of the offence by a person
Discuss fully evidentiary value of retracted confession. Illustrate your answer. charged with the offence.
UP (J) Mains, 1986, Question 8 S. Jurist Name of Book/Case Definition
(a)What is confession? Distinguish between judicial and extra-judicial confession. 1 Stephen. A Digest of the Law of A confession is an admission made at any time
(b) State the exception to the rule that confession by accused in police custody is not admissible in Evidence by a person charged with a crime and
evidence. suggesting the inference that he committed
UP (J) Mains, 1988, Question 3(a) that crime.
When does a confession become irrelevant? 2 Atkin Pakala Narayanaswami v. Positive Definition- “confession must either
UP (J) Mains, 1988, Question 8 (a) King-Emperor admit in terms the offence, or at any rate
What do you understand by “Inculpatory Statement” and “Exculpatory Statement” of confession? substantially all the facts which constitute the
What is the law relating to admissibility of such statement? offence”
Negative Definition- No statement that
Introduction contains self-exculpatory matter can amount
to confession, if the exculpatory statement is
In the case of Aghanoo Nagesia v. State of Bihar Supreme Court said that confession is a species of some fact which if true would negative the
of admission. It has been discussed under sections 24 to 30 of Indian Evidence Act and section 164 offence alleged to be confessed.
of Cr.P.C. 3 Justice M Palvinder Kaur v. State of accepted the definition given by Justice Atkin
Confession has not been defined under Indian Evidence Act. For a long time, the courts in India C Punjab in Pakala narayanswami Case
adopted the definition of “confession” given by Stephen. Confession was defined under Article Mahajan
2183 rather than Article 22 of ‘A DIGEST OF THE LAW OF EVIDENCE’ (1876) written by Sir 4 Justice State of U.P. v. Deoman Confession is statement made by a person
Stephen. According to this Article “A confession is an admission made at any time by a person Shah Upadhyaya stating or suggesting the inference that he has
charged with a crime and suggesting the inference that he committed that crime. Confessions if committed a crime.
voluntary are relevant facts as against the persons who make them only”. 5 Justice R. Aghanoo Nagesia v. State of confession may be defined as an admission of
Bachawat Bihar, the offence by a person charged with the
Definition of Stephen was discarded by Justice Atkin. In the case of Pakala Narayanaswami v. offence
King-Emperor84 [(1939) Justice Atkin observed, “confession must either admit in terms the offence, Difference between Confession and Extra-judicial Confession
or at any rate substantially all the facts which constitute the offence” S.No. Ground Judicial Confession Extra-judicial Confession
Justice Atkin also observed what did not come under definition of confession and said, “No 1 Meaning Judicial confessions are those Extra- judicial confessions are
statement that contains self-exculpatory matter can amount to confession, if the exculpatory which are made before Magistrate those which are made by the party
statement is of some fact which if true would negative the offence alleged to be confessed. under section 164 or Court in the elsewhere than before a
In the Palvinder Kaur v. State of Punjab85 Justice M C Mahajan accepted the definition given by course of judicial proceedings. Magistrate or Court.
Justice Atkin in Pakala narayanswami Case. 2 Value It is substantive evidence It is not substantive evidence
3 Conviction Conviction is safe without Legally conviction can be done
In State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR 14], Shah, J. referred to a confession as a without corroboration. But it is
corroboration
statement made by a person stating or suggesting the inference that he has committed a crime.
not safe without corroboration
4 Method of To prove judicial confession, the Extra-Judicial confession is
In the case of Aghanoo Nagesia v. State of Bihar, Justice Bachawat observed, “ confession may be
proof person to whom judicial confession proved by the calling the person
defined as an admission of the offence by a person charged with the offence”.
is made need not be called as as a witness before whom it was
witness86. made.
83
https://books.google.co.in/books?id=1g8-
AAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
84
[(1939) LR 66 IA 66, 81].
85
Supreme Court Oct. 22, 1952 -Palvinder Kaur,was tried for offences under sections 302 and 201, Indian Penal Code,
86
in connection with the murder of her husband, Jaspal Singh. Batuk Lal, ‘Law of Evidence’ 151 (Central Law Agency, Allahabad, 19th Edn. 2010).

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Question –What is retracted confession? What is evidentiary value of retracted confession?  (b) an account of his reasons for doing so,
Answer-
Meaning the former element being inculpatory and the latter exculpatory and the question referred to the Full
When accused or co-accused makes confession and at later stage he denies from making of Bench was:
confession that is called retracted confession. Question- Can the court if it is of opinion that the inculpatory part commends belief and the
Evidentiary value of Retracted Confession exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter?
Pyare Lal Bhargava v. State Of Rajasthan87 (22 October, 1962) Answer -The answer to the reference was that where there is no other evidence to show
Fact- Ram Pyare was prosecuted under section 379, IPC for removing of documents from office affirmatively that any portion of the exculpatory element in the confession is false, the court must
and handing over his friend. Although, he returned the file on next day. He made confession when accept or reject the confession as a whole and cannot accept only the inculpatory element while
the Chief Engineer threatened that if he did not disclose the truth that matter would be send to rejecting the exculpatory element as inherently incredible.
police. Ram Pyare made confession. But later on he retracted from his confession and said that he
had never made confession. Court said that in this circumstances warning of Chief Engineer did not In the case of Pakala Narayanaswami v. King-Emperor89 (1939) Justice Atkin also observed what
amount to threat. did not come under definition of confession and said, “No statement that contains self-exculpatory
Supreme Court observed, matter can amount to confession, if the exculpatory statement is of some fact which if true would
negative the offence alleged to be confessed.
 “A retracted confession may form the legal basis of a conviction if the court is satisfied that
it was true and was voluntarily made. Palvinder Kaur v. State of Punjab (Oct. 22, 1952)
 But it has been held that a court shall not base a conviction on such a confession without In this case Supreme Court observed, “The well accepted rule regarding the use of confession and
corroboration. It is not a rule of law, but is only rule of prudence. admission that these must either be accepted as a whole or rejected as a whole and that the court is
 It cannot even be laid down as an inflexible rule of practice or prudence that under no not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently
circumstances such a conviction can be made without corroboration, for a court may, in a incredible”.
particular case, be convinced of the absolute truth of a confession and prepared to act upon Fact-
it without corroboration; but it may be laid down as a general rule of practice that it is unsafe Palvinder Kaur was accused of causing murder of her husband (Sardar Jaspal) by administering
to rely upon a confession, much less on a retracted confession, unless the court is satisfied potassium cyanide with help of another person. After 13 days of murder body was thrown.
that the retracted confession is true and voluntarily made and has been corroborated in Confession made by Palvinder Kaur -
material particulars” “My husband Jaspal Singh was fond of hunting as well as of photography….One day I placed his
medicine bottle in the almirah where medicine, for washing photos had been placed. I was sitting
outside and Jaspal Singh enquired from me where his medicine, was. I told him that it was in the
UP (J) Mains, 1988, Question 8 (a) almirah. By mistake he took that medicine which was meant for washing photos….”
What do you understand by “Inculpatory Statement” and “Exculpatory Statement” of confession? High Court –
What is the law relating to admissibility of such statement? (1) High Court accepted inculpatory part i.e. One day I placed his medicine bottle in the almirah
where medicine, for washing photos had been placed.
Answer- Use of Admission and Confession (2) High Court rejected exculpatory part i.e. I was sitting outside and Jaspal Singh enquired from
me where his medicine, was. I told him that it was in the almirah. By mistake he took that medicine
Inculpatory statement -Inculpatory statement is that statement by which accused admits that he which was meant for washing photos.
had committed crime. Supreme Court -The statement read as a whole is of an exculpatory character. It does not suggest
Exculpatory statement -Exculpatory statement is that statement by which accused admits that he or prove the commission of any offence. It states that the death of Jaspal was accidental. This was
had not committed crime. exculpatory statement. In Pakala Case90 Justice Atkin said that exculpatory statement cannot
amount confession. Supreme Court clearly said that it was concur with ratio of Emperor v.
Emperor v. Balmakund Balmakund91.
Reference in this connection may be made to the observations of the Full Bench of the She was acquitted by Supreme Court.
Allahabad High Court in Emperor v. Balmakund88. The confession there comprised of two
elements,
 (a) an account of how the accused killed the women, and 89
[(1939) LR 66 IA 66, 81].
90
A statement that contains self-exculpatory matter 'cannot amount to a confession, if the exculpatory statement is of
87
AIR 1963 SC 1094. some fact, which if true, would negative the offence alleged to be confessed.
88 91
(193o) I.L.R. 52 All. 101. (193o) I.L.R. 52 All. 101.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Aghanoo Nagesia v. State of Bihar (1965) -Supreme Court said that confession must be accepted imported surreptitiously from Reti Bunder under cover of darkness. It was further established de
as whole. It cannot be divided into parts.
hors the statement of the appellant that these packages, on opening by the customs officer, were
found to contain contraband goods of foreign make. His statement was recorded under section 108
Section 24. Confession caused by inducement, threat or promise, when irrelevant in criminal of Customs Act, 1962.
proceeding.––A confession made by an accused person is irrelevant in a criminal proceeding, if They were brand new articles packed in bulk. No duty on these goods had been paid.
the making of the confession appears to the Court to have been caused by any inducement, threat There were prosecuted under –
or promise having reference to the charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the Court, to give the accused person grounds which  Section 5, Import & Export (Control) Act, 1947
would appear to him reasonable for supposing that by making it he would gain any advantage or  Section 135(a), Custom Act, 1962
avoid any evil of a temporal nature in reference to the proceedings against him.  Section 135(b), Custom Act, 1962
Section 24
Disputed sentence – Veera Ibrahim claimed to be an innocent traveller in the truck when he said:
Veera Ibrahim v. State of Maharashtra “I did not ask Mullaji (driver) what goods were being loaded in his lorry … Mullaji was only my
friend and I was not aware of any of his mala fide activities”.
In the case of Veera Ibrahim v. State of Maharashtra92 Supreme Court observed, “To attract the Issue -Whether this is confession.
prohibition enacted in Section 24, Evidence Act, these facts must be established: Trial Court – Trial Court convicted both for all three charges.
High Court – In High Court there were separate two appeals. High Court acquitted for some
 (i) that the statement in question is a confession; charges and convicted for some. These are –
 (ii) that such confession has been made by an accused person;
 (iii) that it has been made to a person in authority;  Acquittal –They were acquitted for charge under Section 5, Import & Export (Control) Act,
 (iv) that the confession has been obtained by reason of any inducement, threat or promise 1947 and Section 135(b), Custom Act, 1962.
proceeding from a person in authority;  Convicted –They were convicted under for charge under Section 5, Import & Export
 (v) such inducement, threat or promise, must have reference to the charge against the (Control) Act, 1947.
accused person; Supreme Court – High Court issued certificate for appeal. Appeal was filed before Supreme Court.
 (vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give The appellant contended before this Court that his statement taken under Section 108 Custom Act,
the accused person grounds, which would appear to him reasonable, for supposing that by could not be used against him;
making it he would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him.  firstly, as it was hit by Article 20(3) of the Constitution on account of its having been
taken while he was already an ‘accused’ and
 secondly, it was barred under Section 24 of the Evidence Act, the same being a confession
Facts – There are two accused namely; obtained under compulsion of law.
 (1) Abdul Umrao Rauf – Accused no.1 Disputed sentence – Veera Ibrahim claimed to be an innocent traveller in the truck when he said:
 (2) Veera Ibrahim – Accused no. 2. (Now appellant) “I did not ask Mullaji (driver) what goods were being loaded in his lorry … Mullaji was only my
friend and I was not aware of any of his mala fide activities”.
They were prosecuted for attempt to supply of contraband goods by truck. These goods were loaded
in the truck under cover of darkness at Reti Bunder (seashore) from the side of seaside wall, in the
presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by
his side in the truck, and drove towards Sandhurst railway station. Unfortunately, the truck skidded
Supreme Court Confession Admission
near the Dongri police station and came to a stop. On hearing the impact of the accident, the police Decision of Supreme Court This was not confession. It It was admission which was
came out, took both the accused into the police station and seized the truck and the goods. In short, was not hit by section 24 of relevant under section 21 of
the appellant had clearly admitted that these packages containing the contraband goods were IEA. IEA.

Issue 1- Whether his statement was his by Article 20(3) of the Constitution.
92
AIR 1976 SC 1167

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Issue 2- Whether disputed sentence is confession. If yes, whether this sentence shall be irrelevant So section 24 is not applicable in this case. His statement was admission of incriminating fact
under section 24 of the Indian Evidence Act. which is relevant under section 21 of the Indian Evidence Act.
Issue 3- Whether evidence is sufficient for conviction of Veera Ibrahim. Answer of Issue 3

Answer of Issue 1 Conviction- Conviction of Veera Ibrahim was upheld by Supreme Court for fraudulent attempt at
Clause (3) of Article 20 provides: “ evasion of duty chargeable on those contraband goods.
. Court held that there were sufficient evidences for his conviction. These are -
 No person accused of any offence
 shall be compelled  the appellant had clearly admitted that these packages containing the contraband goods
 to be a witness were imported surreptitiously from Reti Bunder under cover of darkness.
 against himself.”  contraband goods of foreign make were seized.
 The circumstances of the arrest of the appellant while escaping from the truck,
 the seizure of the truck and the goods,
 the contraband nature of the goods,
Meaning of accused –  the fact that at the time of the seizure the goods were in the charge of the appellant, the
(1) Only a person against whom a formal accusation relating to the commission of an offence has fact that no duty on these goods had been paid,
been levelled which in the normal course may result in his prosecution, would be called accused.  the seizure of Rs 2,000 as cash from the appellant etc.
(2) Accused is that person against whome either FIR has been lodged or complaint has been made.
Conclusion-
Section 25. Confession to police-officer not to be proved.-
 In this case appellant was not accused. FIR was recorded by Police. It is clear that when the  No
statement of the appellant was recorded by the Customs Officer under Section 108, the  confession
appellant was not a person “accused of any offence” under the Customs Act, 1962.  made to
 An accusation which would stamp him with the character of such a person was levelled only  a police-officer,
when the complaint was filed against him, by the Assistant Collector of Customs  shall be proved as against a person accused of any offence.
complaining of the commission of offences under Section 135(a) and Section 135(b) of the
Customs Act. Purpose of Section 25
Supreme Court said that the High Court was right in holding that the statement recorded by the
Inspector of Customs was not hit by Article 20(3) of the Constitution. In the case of Raj Kumar Karwal v. Union of India (21 March, 1990) Supreme Court said that
purpose of the restriction under Section 25 of the Evidence Act, is broadly speaking, two-fold,
Answer of Issue 2 namely,

 (i) to protect the person accused of a crime from third degree treatment and,
Meaning of Confession –  (ii) to ensure a proper and scientific investigation of the crime with a view to bringing
Firstly, the statement in question is not a “confession” within the contemplation of Section 24. It is the real culprit to book.
now well-settled that
Meaning of Confession
 a statement in order to amount to a “confession” must either admit in terms the offence, or
at any rate substantially all the facts which constitute the offence. I have already discussed.
 An admission of an incriminating fact, howsoever grave, is not by itself a confession.
 A statement which contains an exculpatory assertion of some fact, which if true, would Meaning of Police Officer
negative the offence alleged cannot amount to a confession.
On the basis of Badku Joti Savant v. State of Mysore and Raj Kumar Karwal v. Union of India
In this case there was no confession. His statement was exculpatory nature. it can be concluded that to be Police officer two conditions must be fulfilled namely,
Person in authority – Custom Officer was person in authority.  Power to investigate
Warning about perjury – warning about perjury was not in reference to charge. It did not  Power to submit police report i.e. power to prosecute.
created in mind of accused that he will get any types of temporal advantages.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 74 75

Confession made to police officer

Badku Joti Savant v. State of Mysore ( March 1, 1966)
Constitutional Bench (Five Judges) Sita Ram v. State Of Uttar Pradesh (25 April, 1965)

Facts of Case - The appellant who lived in a village near Goa was found in possession of contraband There was confession but not made to police officer.
gold when his house was raided and searched in the presence of panches on November 27, 1960.
Sita Ram and his wife Sindura Rani were living apart and that this was because Sita Ram suspected
The appellant was arrested on November 30, 1960. He made confession. He was prosecuted under that his wife was a woman of loose character. He murdered his wife and wrote a letter addressed to
Section 167 of the Sea Customs Act. the ‘Sub-Inspector’ and bears the signature of the appellant in Urdu. It reads thus:
Issue- Whether confession made to Central Excise Officer shall be hit by section 25 of the “My Dear Darogaji,
Evidence Act. I have myself committed the murder of my wife Smt. Sindura Rani. Nobody else perpetrated this
Answer-The Central Excise Officer was not a police officer under Section 25 of the Evidence Act. crime. I would appear myself after 20 or 25 days and then will state everything. One day the law
Supreme Court while dealing with the submission based on Section 21(2) of the Central Excise & will extend its hands and will get me arrested. I would surrender myself.
Salt Act, 1944, observed that even though this sub-section confers on the Central Excise Officer the (Sd. in Urdu).Sita Ram Naroola,
same powers as an officer-in-charge of a police station investigating a cognizable case “It does not, 14th September, 1962.”
however, appear that a Central Excise Officer under the Act has power to submit a charge- sheet On the back of this letter is written the following:
under Section 173 of the Code ......”. “It is the first and the last offence of my life. I have not done any illegal act nor I had the courage
Conclusion- Thus the ratio of the decision appears to be that even if an officer is invested under to do that, but this woman compelled me to do so and I bad to break the law”.
any special law with powers analogous to those exercised by police officer in charge of a police This letter was found on a table near the dead body of Sindura Rani. It was noticed by the Sub-
station investigating a cognizable offence, he does not thereby become a police officer Inspector Jagbir Singh, and seized in the presence of three persons who attested the seize memo
under Section 25 of Evidence Act unless he has the power to lodge a report under Section 173 of and were later examined as witnesses in the case.
the Code. Supreme Court held that it was not hit by section 25because letter was not made to police officer.
The police officer was not nearby when the letter was written or knew that it was being
Raj Kumar Karwal v. Union of India (21 March, 1990) written. Punishment was upheld by Supreme Court.

UP J (Mains) 2015
Facts of Case- The officers of the Department of Revenue Intelligence (DRI) intercepted one
truck. On search, a large quantity of hashish was recovered. Both of them made confessional Question 5(c) ‘A’ is accused of murder of ‘B’. ‘A’ wrote a letter addressed to his friend ‘C’ stating
statements to the DRI officials. Case was registered under Narcotic Drugs & Psychotropic Sub- that he had committed that crime. The letter fell into the hands of a police officer. Are the contents
of this letter relevant as evidence against ‘A’?
stances Act, 1985 (NDPS Act) and the Custom Act, 1962. Confession was used against them. They Answer- Yes. There was confession. But that confession was neither made to person in authority
claimed that the confession was hit by section 25 because officers of DRI were police officers under (section 24) nor police officer (Section 25). At the time of making confession he was not in police
section 25 of the Act. They have power to investigate under section 53 of the NDPS Act. custody (Section 26). So this confession can be used against accused.
Even if an officer is invested under any special law with powers analogous to those exercised by a
police officer in charge of a police station investigating a cognizable offence, he does not thereby Section 26. Confession by accused while in custody of police not to be proved against him.––
become a police officer under Section 25of the Evidence Act, unless he has the power to lodge a No confession made by any person whilst he is in the custody of a police-officer, unless it be made
in the immediate presence of a Magistrate4, shall be proved as against such person.
report under Section 173 of the Code.
Explanation - In this section “Magistrate” does not include the head of a village discharging
magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a
Appeal was dismissed. In this case officers of DRI had no power to submit police report under
Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, (10 of
section 173. So they were not police officer for the purpose of section 25 of the Evidence Act.
1882).
‘Police officer’ is decided not according to his designation. He is decided according to actual power.
Police Officer is that person has power to investigate and submit ‘Police Report. It means he has
power to prosecute.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 76 77
UP (J) Mains, 1987, Question 2 Argument of Prosecutor- FIR can be divided into parts. Only that part can be rejected which are
Write short note – confessional and those parts which talks about motive, occasion, intention, opportunity etc. must
Confession made in police custody be accepted.

UP (J) (M) 1997 Question 9(b) Issue –Whether entire statement is confession.
Some other important points
A while in police custody, makes statement of admission of a fact. During trial, Public Prosecutor These are following –
produces evidences of his admission. ‘A’ objects the admissibility of evidence on the ground of rule
laid down in section 26 of the Indian Evidence Act. Decide  (1) What is meaning of accused?
 (2) What is meaning of confession?
Section 27. How much of information received from accused may be proved.––Provided that,  (3) What is evidentiary value of FIR?
when any fact is deposed to as discovered inconsequence of information received from a person  (4) Is section 27 exceptions of sections 24, 25, and 26?
accused of any offence, in the custody of a police-officer, so much of such information, whether it  (5) Is confession species of admission?
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.  (6) What is jurisprudence of non-acceptance of confession either made to police officer or
UP (J) Mains, 1991, Question 2 (b) made to any other person when he is in the custody of police officer?
 (7) Whether custody included constructive custody?
 ‘A’ lodged FIR alleging that in morning he had killed his aunt by an axe and the dead body  (8) Was Aghanoo Nagesia acquitted for commission of four murder?
was lying at his house. Dead body and blood stained axe were lying at his house. The dead
body and blood stained axe were recovered therefrom by the police. (1) What is meaning of accused?
 ‘A’ is prosecuted for murder. There is no eye witness or any other evidence against him. The expression “accused of any offence” covers a person accused of an offence at the trial
 Prosecution seeks ‘A’s conviction for murder on the basis of his version contained in the whether or not he was accused of the offence when he made the confession.
FIR. (2) What is meaning of confession? In this case Supreme Court analyzed earlier definition of
confession and concluded that confession may be defined as an admission of the offence by a person
Examine the validity of this contention and admissibility of the FIR as substantive piece of charged with the offence.
evidence. Decide. S. Jurist Name of Book/Case Definition
Answer - Problem of this question is similar to Aghanoo Nagesia v. State of Bihar. 1 Stephen. A Digest of the Law of A confession is an admission made at any time
Evidence by a person charged with a crime and
Aghanoo Nagesia v. State of Bihar93 (SC 4 May, 1965) suggesting the inference that he committed
that crime.
Facts- Aghanoo Nagesia committed four murders. He committed murder of his aunt, her daughter, 2 Atkin Pakala Narayanaswami v. Positive Definition- “confession must either
her son-in –law and son of son-in –law by tangi (axe). His aunt had not any son. She had only King-Emperor admit in terms the offence, or at any rate
daughter. He quarreled several times with aunt. His intention was to get whole property of his aunt substantially all the facts which constitute the
after her death. But she was interest to transfer that property to her daughter rather than Aghanoo offence”
Nagesia. Negative Definition- No statement that
So Aghanoo Nagesia decided to kill all four persons so that he can get her property. He killed all contains self-exculpatory matter can amount
these persons during 7 to 8 a.m. on August, 1963. He narrated about this matter to his uncle. He to confession, if the exculpatory statement is
went to police station at 3.15 and narrated all things. FIR was registered against him. That was of some fact which if true would negative the
confessional FIR. On his information four dead bodies, axe, blood stain cloths were recovered. offence alleged to be confessed.
No one was eye witness of murder. 3 M.C. Palvinder Kaur v. State of accepted the definition given by Justice Atkin
Decision of the case is solely based on evidentiary value of FIR and relevancy of confession under Mahajan Punjab in Pakala narayanswami Case
section 27 of the Indian Evidence Act. 4 Justice State of U.P. v. Deoman Confession is statement made by a person
FIR was divided into 18 parts. Shah Upadhyaya stating or suggesting the inference that he has
committed a crime.
Argument of accused – Statement cannot be divided into parts. Whole FIR is confessional. So 5 Justice R. Aghanoo Nagesia v. State of confession may be defined as an admission of
whole should be rejected. Bachawat Bihar, the offence by a person charged with the
offence
93
AIR 1966 SC 119

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 78 79
 For the purposes of the case, we shall assume that the appellant was constructively in police
(3) What is evidentiary value of FIR? custody and therefore the information contained in the first information report leading to
the discovery of the dead bodies and the tangi is admissible in evidence.
Section 154 of the Code of Criminal Procedure provides for the recording of the first
information.
 The information report as such is not substantive evidence.
 It may be used to corroborate the informant under Section 157 of the Evidence Act or  (8) Was Aghanoo Nagesia acquitted for commission of four murders?
 to contradict him under Section 145 of the Act, if the informant is called as a witness.
Yes. Aghanoo Nagesia was acquitted for commission of four murders.
 If the first information is given by the accused himself, the fact of his giving the information
Reason – Reason was that court held that entire statement except his identification was part of
is admissible against him as evidence of his conduct under Section 8 of the Evidence Act.
confession. So statement cannot be divided into parts. Discovery of tangi (axe), dead bodies, blood
 If the information is a non-confessional statement, it is admissible against the accused as an
stained chadar are relevant under section 27 of Indian Evidence Act. But it were not sufficient for
admission under Section 21 of the Evidence Act and is relevant.
conviction.
 But a confessional first information report to a police officer cannot be used against the
accused in view of Section 25 of the Evidence Act.
Issue –Whether entire statement is confession.
(4) Is section 27 exceptions of sections 24, 25, and 26? In this case FIR was divided into 18 parts. According to public prosecutor there are following parts
of statement –
Yes. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of
the information whether it amounts to a confession or not, as relates distinctly to the fact discovered 1, 15 & 18 – About appellant and he went to PS for making lodge FIR
in consequence of the information, if the other conditions of the section are satisfied. 2& 16 Motive
Statement 8….Intention
(5) Is confession species of admission? 3, 5,8,10Movement and Opportunity
Yes. Confession is species of admission. 4,6,9,11 ..He killed
Fact Statement Admission Confession 12 - Motive
Fact Statement Admission Confession `` 7,13,17 – Concealment of body & tangi
14 - Extra- judicial confession
Trial Convicted – Trial Court convicted for murder.
(6) What is jurisprudence of non-acceptance of confession either made to police officer
or made to any other person when he is in the custody of police officer? High Court- High Court partially accepted and partially rejected. High Court rejected parts
6,9,11,12 &14. High Court convicted him.
Police officers are not to be trusted. So confession made to police officer during investigation
(section 161 Cr.P.C.) or confession due to inducement, threat or promise (section 24), confession Supreme Court – Supreme Court observed, “Save and except Parts 1, 15 and 18 identifying the
made to police (Section 25) or confession made to third person while in the custody of police appellant as the maker of the first information report and save and except the portions coming within
(section 26) is not relevant. They are based upon grounds of public policy, and the fullest effect the purview of Section 27, the entire first information report must be excluded from evidence”.
should be given to them. Courts said that recovery of bodies, axe and blood-stained chadar which are relevant under section
27of the Act. But these evidence are not sufficient to for conviction of Aghanoo Nagesia.
(7) Whether custody included constructive custody? So he was acquitted.
Yes. Custody included constructive custody.
 Section 27 applies only to information received from a person accused of an offence in the Example given by Supreme Court-
custody of a police officer.
 Now, the Sub-Inspector stated he arrested the appellant after he gave the first information Example 1-
report leading to the discovery. Prima facie therefore, the appellant was not in the custody  Section 304A -Sometimes, a single sentence in a statement may not amount to a confession
of a police officer when he gave the report, unless it can be said that he was then in at all. Take a case of a person charged under Section 304-A of the Indian Penal Code and a
constructive custody. statement made by him to a police officer that “I was drunk; I was driving a car at a speed
 On the question whether a person directly giving to police officer information which may of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the
be used as evidence against him may be deemed to have submitted himself to the custody horn; I made no attempt to stop the car; the car knocked down A.”
of the police officer within the meaning of Section 27, there is conflict of opinion.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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 No single sentence in this statement amounts to a confession, but the statement read as a UP (J) Mains 2000
whole amounts to a confession of an offence under Section 304-A of the Indian Penal Code, Haryana (J) Mains -2012 –
and it would not be permissible to admit in evidence each sentence separately as a non- When FIR becomes substantive piece of evidence?
confessional statement. Jharakhand (J) (Mains) 2019)
Write detailed note on: FIR is not substantive piece of evidence.
Example 2-
Answer -
Again, take a case where a single sentence in a statement amounts to an admission of an
offence. ‘A’ states “I struck ‘B’ with a tangi and hurt him.” In consequence of the injury
‘B’ died. ‘A’ committed an offence and is chargeable under various sections of the Indian
Penal Code. Unless he brings his case within one of the recognised exceptions, his EVIDENTIARY VALUE OF FIR
There are following leading cases on this point -
statement amounts to an admission of an offence, but the other parts of the statement
(1) Aghnoo Nagesia v. State of Bihar (SC, 4 May, 1965)
such as the motive, the preparation, the absence of provocation, concealment of the
Facts –Aghnoo Nagesia was tried for murder for his aunty and her relatives. He reached to the
weapon and the subsequent conduct, all throw light upon the gravity of the offence and
police station and make registration of FIR. FIR was confessional FIR. He pointed places from
the intention and knowledge of the accused, and negatives the right of private defence,
where dead bodies and arms were recovered. Under section 25 confessions to police cannot be
accident and other possible defences. Each and every admission of an incriminating
proved against accused. But section 27 is exception of sections 24, 25 and 26 of Indian Evidence
fact contained in the confessional statement is part of the confession.
Act.
Issue – Whether the whole confessional statement in the FIR was banned by section 25 of the
Evidence Act or only those portions of it were barred which related to the actual commission of
the crime.
Answer – Confession cannot be divided into parts. Whole confession is irrelevant except those
parts which come under section 27 and identifying the maker of FIR.
Ratio of Judgment - In the case of Aghnoo Nagesia v. State of Bihar Supreme Court observed,
“Section 154 of the Code of Criminal Procedure provides for the recording of the first information.
(1) The information report as such is not substantive evidence. (2) It may be used to corroborate
the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of
the Act, if the informant is called as a witness. (3) If the first information is given by the accused
himself, the fact of his giving the information is admissible against him as evidence of his conduct
under Section 8 (MP PSC) of the Evidence Act. (4) If the information is a non-confessional
statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act
and is relevant. (5) A confessional first information report to a police officer cannot be used against
the accused in view of Section 25 of the Evidence Act.”
(2) Ravi Kumar vs. State of Punjab (SC, March 4, 2005) Division Bench
Hon’ble Justice Arijit Pasayat said “It has been held time and again that the FIR is not a substantive
piece of evidence and can only be used to corroborate the statement of the maker under Section 157
of the Indian Evidence Act, 1872 or to contradict him under Section 145 of that Act. It can neither
be used as evidence against the maker at the trial if he himself becomes an accused nor to
corroborate or contradict other witnesses.”
(3) Pancham Yadav v. State of U.P. (All. H.C. 1993)
Information of victim was recorded as FIR. Later on he died. This FIR was also treated as a dying
declaration under section 32(1) of Indian Evidence Act, 1872. This is the only circumstances when
FIR becomes substantive piece of evidence.
(4) Shayam Nandan Singh and Ors. v. The State Of Bihar (Pat.H.C. 9 May, 1991)
FIR was also treated as res gestae and it was also relevant under section 6 of IEA.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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DU LL.B. 2019

Evidentiary Value of FIR Question 3(a) (i) -A was tried for murder of B whose dead body was recovered from well. B was
wearing certain ornaments which were not found on his dead body.
A made following statements to the police:
(i) I killed B, removed ornaments from body and pushed B into the well.
(ii) The ornaments are pledged with X. I can take you there.
On the basis of above statements the police recovered ornaments from X. Whether the statements
Third Person (If the made by A are relevant as confession or not? Give reasons.
Victim informant is called Accused
as a witness at the Answer – Problem of this question is similar to Pulukuri Kottaya v. Emperor.95 In this case there
time of trial. was murder caused by nine accused. There were prosecuted and convicted by lower court and
decision of lower court was upheld by High Court. Admission of evidence under section 27 of the
Evidence Act was challenged.
Privy Council observed following important points-

(1) Section 27, which is not artistically worded – In this case the Court observed that it was not
Sec.32 (1) (IEA) Sec.6(IEA) Sec.8(IEA) Sec.145(IEA) Sec.157(IEA) properly drafted.
(Y) (Y) (Y) (Y) (Y)
(Substantive evidence) (2) Section 27 is exception of section 25 and 26-Section 27 provides an exception to the
prohibition imposed by section 25& 26 and enables certain statements made by a person in Police
custody to be proved.
Sec.6(IEA) Sec.145(IEA) Sec.157(IEA)
(Y) (Y) (Y) (3) Condition of section 27- In this case The condition necessary to bring section 27 into operation
is that
 the discovery of a fact
Sec. 31594(Cr.P.C) Sec.8 (IEA) Sec.21 (IEA) Sec.25  in consequence of information
(IEA)  received from a person accused of any offence
(Y) (Y)  in the custody of a Police Officer must be
 deposed to, and
 thereupon so much of the information
Sec.145(IEA) Sec.157(IEA) Sec.145(IEA) Sec.157(IEA)  as relates distinctly to the fact thereby discovered
(Y) (No) (Y)  may be proved.

*Failure in lodging of FIR by public servants in certain cases is punishable under section 166A (c) (4) Jurisprudence behind admission of statement/ confession u/s 27 -The section seems to be
of IPC. For this failure minimum punishment is 6 months rigorous imprisonment and maximum based on the view that if a fact is actually discovered in consequence of information given, some
punishment is 2 yrs. Section 166A was inserted in 2009. guarantee is afforded thereby that the information was true, and accordingly, can be safely allowed
to be given in evidence.

(5) Extent of the information admissible - The extent of the information admissible must depend
on the exact nature of the fact discovered to which such information is required to relate.

(6) Difference between facts discovered & produced –

94
Haryana Judicial Service (Pre) 2018. Question 108. As per the provision of Section 315 of the Cr.P.C. an accused
(a) can be compelled to give his own evidence generally, (b) Cannot be a witness (c) can be called as a witness only on
95
his own request in writing, (d) None of these. AIR 1947 PC 67

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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The fact discovered embraces the place from which the object is produced and the knowledge of
the accused as to this. Solution of problems
The information given must relate distinctly to this fact. Information as to past user, or the past
history, of the object produced is not related to its discovery in the setting in which it is discovered. (i) Inadmissible - “I killed B, removed ornaments from body and pushed B into the well”. This is
Example - Information supplied by a person in custody that “I will produce a knife concealed in not admissible. This is confession made to police officer. Confession to police was hit by section
the roof of my house” does not lead to the discovery of a knife; knives were discovered many years 25. Body was not recovered in consequence of his information. On what information body was
ago. recovered this problem is silent. This problem says only about ornaments that ornaments were
It leads to the discovery of the fact that a knife is concealed in the house of the informant to his recovered on his information.
knowledge, and if the knife is proved to have been used in the commission of the offence, the fact (ii) Admission -The ornaments are pledged with X. I can take you there.
discovered is very relevant. On the basis of above statements the police recovered ornaments from X. So this is relevant.
But if to the statement the words be added “with which I stabbed A”, these words are inadmissible
since they do not relate to the discovery of the knife in the house of the informant. UP (J) Pre. 2018 Series C Question 110

(7) Application of 27- Normally the section is brought into operation when a person in Police In which of the following case constitutional validity of section 27 of the Indian Evidence was
custody produces from some place of concealment some object, such as a dead body, a weapon, or challenged on the basis of violation of Article 20(3) of the Indian Constitution?
ornaments, said to be connected with the crime of which the informant is accused. A. State of U.P. v. Deoman Upadhaya
B. State of Bombay v. Kathi Kalu
(8) Acceptance of confession / statement– Whole confession / statement is not relevant. Only that C. Inayatullah v. State of Maharashtra
part of the confession or statement is relevant which is distinctly related to discovery of facts. D. Nandini Satpathi v. P.L.Dani
In this case Privy Council said that only that part of statement or confession can be proved in
consequence of which fact has been discovered and other part shall be excluded. In this case there Answer- State of Bombay v. Kathi Kalu
were two confessions by which there were discovery of fact. One example was also quoted in that
case. These are - 1 State of U.P. v. Deoman Upadhaya (1960 Article 14 & Section 27
There are following 2 State of Bombay v. Kathi Kalu Oghad (1961) Article 20(3)& Section 27

Confession 1 – “I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show 3 State of Rajasthan v. Teja Ram (2000) Section 162(1), Cr.P.C & 27 IEA.
you the place”. There was discovery of spear. Taking signature wrongfully shall not affect
The first sentence must be omitted. section 27. Reason - Section 162(2).
Confession 2 - “About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and Inayatullah v. State of Maharashtra (09.09.1975)
others at about sunset time at the corner of Pulipad tank. We, all beat Boddupati China Sivayya and
Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati The appellant was tried in the court of the Presidency Magistrate 5th Court, Dadar on the charge of
Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave committing theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/- from the
it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you premises of the Bombay Port Trust on 1-8-1968 at 8.40 a.m. There was confession. Confession was
come. We did all this at the instigation of Pulukuri Kotayya. “I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder
Admissible - I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you on 1st August.”
come. The accused then led the Police officer and the Panchas the drums were recovered.
Inadmissible - The whole of that statement except the passage "I hid it (a spear) and my stick in In this case Supreme Court observed following important points-
the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. (1) On what grounds section 27 creates exception- The expression “Provided that” together with
phrase “whether it amounts to a confession or not” shows that the section is in the nature of an
Example 1 – “I will produce a knife concealed in the roof of my house with which I stabbed A.” exception to the preceding provisions particularly Secs. 25 and 26.
Knife was recovered. There are two parts of this sentence. Second part i.e. with which I stabbed A
is not relevant. On what grounds section 27 There are following words which creates exceptions of
Decision – Privy Council did not decide conviction or acquittal. Privy Council said that only some creates exception section 27 –
part of confessions were admissible and remaining part was inadmissible. The Court observed that  “Provided that”
High Court was wrong After observation regarding admissibility of evidence under section 27  “whether it amounts to a confession or not”
matter was remitted (sent back) to High Court.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Section 30. Consideration of proved confession affecting person making it and others jointly
(2) Four condition of section 27 –There are four conditions which are following- under trial for same offence.––When more persons than one are being tried jointly for the same
First condition – First condition is the discovery of a fact, albeit a relevant fact, in consequence of offence, and a confession made by one of such persons affecting himself and some other of such
the information received from a person accused of an offence. persons is proved, the Court may take into consideration such confession as against such other
Second Condition- Second Condition is discovery of such fact must be deposed to. person as well as against the person who makes such confession.
Third Condition- Third Condition is that at the time of the receipt of the information the accused Explanation.––“Offence,” as used in this section, includes the abetment of, or attempt to commit,
must be in police custody. the offence.
Fourth Condition- Fourth condition is that only "so much of the information" as relates distinctly
to the fact thereby discovered is admissible. The rest of the information has to be excluded. Illustrations
(3) Meaning of ‘distinctly’ - The word ‘distinctly’ means ‘directly’, ‘indubitably’, ‘strictly, UPAPO (M) 1988
‘unmistakably’. UP (J) Mains, 1988, Question 3(b)
The word has been advisedly used to limit and define the scope of the provable information. The UP J (M) 1992 Question 6(b)
phrase “distinctly” relates to the fact thereby “discovered” is the linchpin of the provision. This
phrase refers to that part of the information supplied by the accused which is the direct and
immediate cause of the discovery. (a) Joint Trial- A and B are jointly tried for the murder of C. It is proved that A said - “B and I
(4) Discovery of fact is guarantee of truth -The reason behind this partial lifting of the ban against murdered C”. The Court may consider the effect of this confession as against B.
confessions and statements made to the police, is that if a fact is actually discovered in consequence UPAPO (M) 1988, 2002, 2006
of information given by the accused, it affords some guarantee of truth of that part, and that part 2006
only, of the information which was the clear, immediate and proximate cause of the discovery. , 2013
No such guarantee or assurance attaches to the rest of the statement which may be indirectly or UP (J) Mains, 2000, Question 6 (b) -
remotely related to the fact discovered.
(5) Meaning of ‘facts discovered’ - At one time it was held that the expression ‘fact discovered’ Illustration (b) No joint trial -A is on his trial for the murder of C. There is evidence to show that
in the section is restricted to a physical or material fact which can be perceived by the senses, and C was murdered by A and B, and that B said - “A and I murdered C”.
that it does not include a mental fact. This statement may not be taken into consideration by the Court against A, as B is not being jointly
Now it is fairly settled that the expression ‘fact discovered’ includes not only the physical object tried.
produced, but also the place from which it is produced and the knowledge of the accused as to this.
Section 28. Confession made after removal of impression caused by inducement, threat or
promise, relevant.––If such a confession as is referred to in section 24 is made after the impression Bhuboni Sahu v. The King (February 17, 1949)
caused by any such inducement, threat or promise has, in the opinion of the Court, been fully
removed, it is relevant. Justice John Beaumont decided this case. Following important points regarding section 30 of the
Section 29. Confession otherwise relevant not to become irrelevant because of promise of IEA were observed in this case -
secrecy, etc. - If such a confession is otherwise relevant, it does not become irrelevant merely (1) Reason of admissibility of confession of co-accused - An admission by an accused person of
because it was made under a promise of secrecy, or in consequence of a deception practiced on the his own guilt affords some sort of sanction in support of the truth of his confession against others
accused person for the purpose of obtaining it, or when he was drunk, or because it was made in as well as himself.
answer to questions which he need not have answered, whatever may have been the form of those (2) Nature of evidence - A confession of a co-accused is obviously evidence of a very weak type.
questions, or because he was not warned that he was not bound to make such confession, and that (3) Confession of co-accused is not evidence u/s 3 -It does not indeed come within the definition
evidence of it might be given against him. of ‘evidence’ contained in Section 3 of the Evidence Act. There are following reasons-

UP (J) Mains, 2012 Question 7(a)(iii)  (i) It is not required to be given on oath,
Write short note on –  (ii) It is not given in the presence of the accused, and
(iii) Evidence of Co-accused  (iii) It cannot be tested by cross-examination.
UP (J) Mains, 1999 Question 7(b) (4) Comparison between approver and co-accused -It is a much weaker type of evidence than
Who is said to be co-accused under Indian Evidence Act? Under which circumstances a conviction
the evidence of an approver which is not subject to any of those infirmities.
can be made on the basis of evidence of a co-accused?
(5) The tendency to include the innocent - The tendency to include the innocent with the guilty
is peculiarly prevalent in India. The only real safeguard against the risk of condemning the innocent

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 88 89
with the guilty lies in insisting upon independent evidence which in some measure implicates each
accused. Section 32
Kashmira Singh v. State of Madhya Pradesh96 (4 March, 1952) Justice Vivian Bose
Kashmira Singh was an Assistant Food Procurement Inspector there. Father of deceased was senior STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
officer. On report of father of deceased Kashmira Singh was terminated from service. Kashmira
Singh along with other accused killed small boy of five year of his senior officer. Gurubachan who Section 32. Cases in which statement of relevant fact by person who is dead or cannot be
was co-accused made confession. found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who
Conclusion – Ratio of Bhuboni Sahu v. The King97 was followed. is dead, or who cannot be found, or who has become incapable of giving evidence, or whose
Mohd. Khalid v. State of West Bengal - Ratio of Bhuboni Sahu and Kashmira Singh Cases were attendance cannot be procured without an amount of delay or expense which under the
followed regarding section 30 of the evidence Act. circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the
following cases: ––
(1) When it relates to cause of death.––When the statement is made by a person as to the cause
of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases
UP(J) Pre. 2018 in which the cause of that person’s death comes into question.
Question - Palvinder Kaur v. State of Punjab relates to which of the following? Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may be the nature of the proceeding in
A. Dying declaration which the cause of his death comes into question.
B. Confession (2) or is made in course of business.––When the statement was made by such person in the
C. Relevancy of Judgment ordinary course of business, and in particular when it consists of any entry or memorandum made
D. Entries in the books of account by him in books kept in the ordinary course of business, or in the discharge of professional duty; or
of an acknowledgement written or signed by him of the receipt of money, goods, securities or
Answer – Confession
property of any kind; or of a document used in commerce written or signed by him; or of the date
of a letter or other document usually dated, written or signed by him.
(3) or against interest of maker.––When the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it would expose him or would have exposed him
to a criminal prosecution or to a suit for damages.
(4) or gives opinion as to public right or custom, or matters of general interest.––When the
statement gives the opinion of any such person, as to the existence of any public right or custom or
matter of public or general interest, of the existence of which, if it existed, he would have been
likely to be aware, and when such statement was made before any controversy as to such right,
custom or matter had arisen.
(5) or relates to existence of relationship.––When the statement relates to the existence of any
relationship by blood, marriage or adoption] between persons as to whose relationship 1[by blood,
marriage or adoption] the person making the statement had special means of knowledge, and when
the statement was made before the question in dispute was raised.
(6) or is made in will or deed relating to family affairs.––When the statement relates to the
existence of any relationship 1[by blood, marriage or adoption] between persons deceased, and is
made in any will or deed relating to the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which
such statements are usually made, and when such statement was made before the question in dispute
was raised.
(7) or in document relating to transaction mentioned in section 13, clause (a).––When the
statement is contained in any deed, will or other document which relates to any such transaction as
is mentioned in section 13, clause (a).

96
AIR 1952 SC 159.
97
Date of decision- February 17, 1949

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(8) or is made by several persons and expresses feelings relevant to matter in question.––When Illustration (m) The question is, whether, and when, A and B were married.
the statement was made by a number of persons, and expressed feelings or impressions on their part An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A
relevant to the matter in question. on a given date, is a relevant fact.
Illustration (n) A sues B for a libel expressed in a painted caricature exposed in a shop window.
Illustrations The question is as to the similarity of the caricature and its libellous character. The remarks of a
Illustration (a) The question is, whether A was murdered by B; or crowd of spectators on these points may be proved.
A dies of injuries received in a transaction in the course of which she was ravished. The question is
whether she was ravished by B; or Substantive Evidence
The question is, whether A was killed by B under such circumstances that a suit would lie against 1 FIR Aghanoo Nagesia v. State of Bihar and Pancham Yadav
B by A’s widow. v. State of U.P.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the 2 Conspiracy Mohd. Khalid v. State of West Bengal
rape and the actionable wrong under consideration, are relevant facts. 3 Admission Bharat Singh and Anr. v. Bhagirathi98 and Bishwanath
Illustration (b) The question is as to the date of A’s birth. Prasad v. Dwarka Prasad99
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on 4 Judicial Confession R.V.Kelkar’s Criminal Procedure
a given day he attended A’s mother and delivered her of a son, is a relevant fact. 5 Dying Declaration Ram Bihari Yadav v. State of Bihar (1998)
Illustration (c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a Raju Majhi v. State of Bihar, (February 2, 2018)
given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring Test Identification Parade under section 9 is not substantive evidence.
with him upon specified business, is a relevant fact. Mohd. Khalid v. State of West Bengal ( Sept. 3, 2002 SC)
Illustration (d) The question is, whether a ship sailed from Bombay harbour on a given day. Conspiracy is substantive evidence
A letter written by a deceased member of a merchant’s firm by which she was chartered to their
correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given Admission is Substantive Evidence
day from Bombay harbour, is a relevant fact.
Illustration (e) The question is, whether rent was paid to A for certain land. In the case of Bharat Singh and Anr. v. Bhagirathi100 (26 August, 1965) Supreme Court observed,
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held “ Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian
it at A’s orders is a relevant fact. Evidence Act, though they are not conclusive proof101 of the matters admitted.”
Illustration (f) The question is, whether A and B were legally married. In the case of Bishwanath Prasad v. Dwarka Prasad102 (October 30, 1973) Supreme Court
The statement of a deceased clergyman that he married them under such circumstances that the observed, “Admission by a party is substantive evidence if it fulfills the requirements of Section 21
celebration would be a crime, is relevant. of the Evidence Act”.
Illustration (g) The question is, whether A, a person who cannot be found, wrote a letter on a certain Judicial confession is substantive evidence.
day. The fact that a letter written by him is dated on that day is relevant. Aghanoo Nagesia v. State of Bihar
Illustration (h) The question is, what was the cause of the wreck of a ship. FIR is not substantive evidence
A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. Pancham Yadav v. State of U.P. (All. H.C. 1993)
Illustration (i) The question is, whether a given road is a public way. Information of victim was recorded as FIR. Later on he died. This FIR was also treated as a dying
A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. declaration under section 32(1) of Indian Evidence Act, 1872. This is the only circumstances when
Illustration (j) The question is, what was the price of grain on a certain day in a particular market. FIR becomes substantive piece of evidence.
A statement of the price, made by a deceased banya in the ordinary course of his business, is a Ram Bihari Yadav v. State of Bihar (1998)
relevant fact.
Illustration (k) The question is, whether A, who is dead, was the father of B. Hon’ble Justice Syed Shah Quadri said, “Dying declaration is substantive evidence and like any
A statement by A that B was his son, is a relevant fact. other substantive evidence requires no corroboration for forming basis of conviction of an accused”.

UP (J)(M) 2012 Question 7(C)

98
AIR 1966SC 405
99
Illustration (l) The question is, what was the date of the birth of A. AIR 1974 SC 117
100
AIR 1966SC 405
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant 101
Indian Evidence Act, 1872, Section 31 - Admissions are not conclusive proof of the matters admitted but they may
fact. operate as estoppels under the provisions hereinafter contained.
102
AIR 1974 SC 117

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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What is dying declaration? Discuss fully its evidentiary value. Can accused be convicted on the
basis of dying declaration alone? Cite Case law.

Dying declaration [Section 32(1)] UP (J) Mains, 2013, Question 5(a)

In what circumstances statements made by person who are dead or who otherwise cannot be called
UP (J) Mains, 1985, Question 9 (a) as a witness, may be proved in a case?
UP (J) Mains, 2003, Question 7 (b) UP (J) Mains, 2015, Question 7 (a)

What is dying declaration? Discuss fully its evidentiary value. Can accused be convicted on the Discuss the essential elements of ‘dying declaration’. When is dying declaration relevant? Can the
basis of dying declaration alone? dying declaration form the sole basis of conviction?
UP (J) Mains, 1986, Question 8 (c) UP (J) Pre. 2018 Series C Question 102
‘A’, an woman, whose throat had been cut by some sharp edged weapon, indicated by gestures
before her death that ‘B’ was the person who had cut her throat. Is this statement of ‘A’ made by UP APO (Pre.) 2019
gesture admissible as an evidence against ‘B’? The case of Pakala Narayan Swami v. Emperor relates to –
UP (J) Mains, 1986, Question 9 (b) (a) Doctrine of estoppel
UP (J) Mains, 2000, Question 7 (b) (b) Accomplice
(c) Dying Declaration
‘A’ who was hit by ‘bullet’ stated in the hospital in the presence of Magistrate that ‘B’ had fired at (d) Cross- examination
him. But ‘A’ did not die of this injury. Is the statement of ‘A’ made in the presence of Magistrate Answer- (c) Dying Declaration
admissible in evidence against ‘B’? Can be it of any other use?

UP (J) Mains, 1991, Question 3 (a)

‘A’ was severely beaten. His dying declaration was recorded by a Magistrate, in which he
implicated ‘X’ and ‘Y’.
‘A’ survived due to medical treatment. ‘X’ and ‘Y’ were prosecuted for attempt to commit murder
of ‘A’.
During the trial, the aforesaid dying declaration was sought to be given in evidence by the
prosecution in support of its case.
The defence opposed on the ground that the declarant was not dead and the alleged dying
declaration did not point towards any cause for assault or the declarant therefore it was irrelevant.
Decide.

UP (J) Mains, 1997, Question 10 (c)

A comes to the police station and lodge FIR that B has beaten him and has threatened to kill him.
After two days A is murdered. B is arrested and prosecuted for the offence of murdering A. Decide
whether the FIR may be admitted as dying declaration.

UP (J) Mains, 2000, Question 7 (b)

‘A’ who was hit by ‘bullet’ stated in the hospital in the presence of Magistrate that ‘B’ had fired at
him. But ‘A’ did not die of this injury. Is the statement of ‘A’ made in the presence of Magistrate
admissible in evidence against ‘B’? Can be it of any other use?
UP (J) Mains, 1985, Question 9 (a)
UP (J) Mains, 2003, Question 7 (b)

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Dying Declaration In case of homicidal deaths, statements made by the deceased is admissible only to the extent of
proving the cause and circumstances of his death.
‘Nemo moriturus proesumitur mentiri’ Statement
Statement may be written or verbal.
Shakuntala v. State of Haryana103 (27/07/07)104 Question – Whether statement used under section 32 includes sign?
Answer –Yes. In the case of Queen Empress v. Abdullah106 (27 February, 1885) Hon’ble Chief
In this case Supreme Court observed, “The principle on which dying declaration is admitted in Justice of Allahabad W C Petheram said that statement includes sign.
evidence is indicated in legal maxim ‘nemo moriturus proesumitur mentiri’ (a man will not meet
his maker with a lie in his mouth)”. UP (J) Mains, 1986, Question 8 (c)
Sudhakar & Anr. v. State of Maharashtra (July 17, 2000) ‘A’, a woman, whose throat had been cut by some sharp edged weapon, indicated by gestures before
(1) Principle of necessity - Such statements are admitted in evidence on the principle of necessity. her death that ‘B’ was the person who had cut her throat. Is this statement of ‘A’ made by gesture
(2) NM PM (Narendra Modi Prime Minister)105 Dying declaration is based on the legal maxim admissible as evidence against ‘B’?
“Nemo moriturus praesumitur mentire” i.e. a man will not meet his Maker with a lie in his mouth.
Queen Empress v. Abdullah (27 February, 1885)

Section 32(1) -Statements, written or verbal, of relevant facts made by a person who is dead...
are themselves relevant facts in the following case: Facts- Dulari was prostitute. Abdullah cut her throat by razor on Sep.27,1884. She was admitted to
When the statement is made by a person hospital. She was in fit mental condition but unable to speak. She questioned by mother, Sub-
 as to the cause of his death, or inspector, Deputy Magistrate and surgeon. Magistrate mentioned several name. She was replying
 as to any of the circumstances of the transaction which resulted in his death, by waving her hands. She waved her hands backwards and forwards and thus making negative sign.
When she was questioned about Abdulla, she moved her hands up and down. Regarding other
in cases in which the cause of that person’s death comes into question. questions she replied by waving her hands.
Such statements are relevant She died on Sep.29,1884.
 whether the person who made them was or was not at the time when they were made
under expectation of death and Question - Did Abdullah kill the deceased by cutting her throat?
 whatever may be the nature of the proceeding in which the cause of his death comes into
question. Reference to Allahabad High Court-– Trial Court referred a question to High Court through
Illustration (a) ‘reference’.
 Criminal Case -The question is, whether A was murdered by B; or Question 1-- The next question is, whether mere signs can be regarded as "conduct" within the
 Criminal Case -A dies of injuries received in a transaction in the course of which she meaning of Section 8.
was ravished. The question is whether she was ravished by B; or Question 2-When a witness is called who deposes to having put certain questions to a person, the
 Civil Case -The question is, whether A was killed by B under such circumstances that a cause of whose death is the subject-matter of the trial, which questions have been responded to by
suit would lie against B by A’s widow. certain signs, can such questions and signs, taken together, be properly regarded as ‘verbal
Statements made by A as to the cause of his or her death, referring respectively to the murder, statements’ under Section 32 of the Evidence Act, or are they admissible under any other sections
the rape and the actionable wrong under consideration, are relevant facts. of the same Act?
Response of Allahabad High Court
Sudhakar & Anr. v. State of Maharashtra (July 17, 2000)
Statement of the victim who is dead is admissible in so far as it refers to Answer 1- The signs made by the deceased cannot be admitted by way of ‘conduct’ under Section
8 of the Evidence Act.
 cause of his death or Answer 2. Such questions and signs, taken together, can be properly regarded as ‘verbal
 as to any circumstances of the transaction which resulted in his death. statements’ under Section 32 of the Evidence Act.
Question 3-Is the statement a “verbal” one?
Answer- ‘Verbal’ means by words. It is not necessary that the words should be spoken. If the term
used in the section were ‘oral’, it might be that the statement must be confined to words spoken by
103
AIR 2007 SC 2709. the mouth. But the meaning of "verbal" is something wider.
104
Judgment is available: https://main.sci.gov.in/jonew/judis/29258.pdf (Last visited February 27, 2020).
105 106
It is nothing merely clue to remember Latin Maxim. (1885) ILR 7 All 385

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Verbal [Section 32(1)] Oral  Exception of admissibility of ‘Hearsay Evidence’ -Though dying declaration is indirect
It is wider. It is narrower evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of
Verbal includes words spoken by the mouth Words spoken by the mouth hearsay evidence.
and sign also.  Substantive evidence - Indeed, it is substantive evidence and like any other substantive
evidence requires no corroboration for forming basis of conviction of an accused.
 But then the question as to how much weight can be attached to a dying declaration is a
question of fact and has to be determined on the facts of each case”.
Meaning of Dying Declaration
Sudhakar & Anr. v. State of Maharashtra (July 17, 2000) Sudhakar & Anr. v. State Of Maharashtra
Sub-section (1) of Section 32 which provides that when the statement is made by a person as to the Dying declaration is substantive evidence.
cause of his death or as to any circumstances of the transaction which resulted in his death, being
relevant fact, is admissible in evidence. Such statements are commonly known as dying
declarations. Pakala Narayan Swami v. Emperor (January 19, 1939)

In 1936, ultimately an independent state Odisha was constituted as a separate province by carving
Difference between English law and Indian Law out certain portions from the provinces of Bihar, Odisha and Madras.
Sudhakar & Anr. v. State of Maharashtra (July 17, 2000)
As distinguished from the English Law section 32 does not require that such a statement should Fact- The accused, his wife, his wife’s brother, and his clerk living at his house were charged with
have been made in expectation of death. the murder before the Sub-divisional Magistrate, Chatrapur, in May and June, 1937. They were
charged under Sections 120B, 201 & 302.

S. No. Ground English law Indian Law Kuree He had been a peon in the service of During 1936 the accused’s wife
1 Expectation of Declaration must be made during Here expectation of death is Nukaraju the Dewan whose daughter was the borrowed from the deceased
death. expectation of death. immaterial. (Deceased) wife of the accused. Earlier she had
2 Nature of Dying Declaration (DD) is admissible DD is admissible in all had an intrigue with the deceased.
proceeding only in criminal proceeding especially proceeding i.e. Criminal and March 20, 1937 The deceased man received a letter he The widow said that on that day her
in case of charge of homicide or Civil Both. was invited to come that day or next husband showed her a letter and said
manslaughter. day to Berhampur. that he was going to Berhampur as the
3 Death/ As to cause of his death (i) cause of his death or appellant’s wife had written to him and
Circumstances (ii) as to any circumstances of told him to go and receive payment of
the transaction which resulted his due.
in his death. March 21, The deceased left his house on March
1937 21, in time to catch the train for
4 Homicide/ English law does not include suicide. It includes both i.e. homicide Berhampur.
Suicide & suicide. 22 March Trunk was purchased.
March 23, 1937 Body of the deceased man was found The body had been cut into seven
in a steel trunk in a third class portions. Widow identified this body.
Ram Bihari Yadav v. State of Bihar (1998) compartment at Puri
April 4 The accused and the other three The alleged statement was that the
Hon’ble Justice Syed Shah Quadri said, members of his household were deceased had come to his house on the
 Meaning -“A dying declaration made by a person who is dead as to cause of his death or as arrested on the 4th April. On this date evening of March 21, slept in one of
to any of the circumstances of the transaction which resulted in his death, in cases in which the police visited the house, examined the outhouse rooms for the night and
cause of his death comes in question, is relevant under Section 32 of the Evidence Act and the inhabitants and obtained a left on the evening of the 22nd by the
is also admissible in evidence. statement from the accused. passenger train; that on the morning of
March 23 the accused went to the
station.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Sharad Birdhichand Sarda v. State of Maharashtra (17 July, 1984)
Patna High Court –Patna High Court convicted him.
Privy Council -This is an appeal by special leave from a judgment of the High Court of Patna who This is leading case on following two points -
affirmed the decision of the Sessions Judge at Berhampur who had convicted the appellant of the
murder of one Kuree Nukaraju and sentenced him to death. Circumstantial Evidence Dying Declaration
Bench: Atkin, G Rankin, Porter, Thankerton, Wright. Golden Rule/Panchsheel Five rule
Author: Atkin
Issue - Whether the statement of the widow, that on March 20 the deceased had told her that he Fact –Manju and Sharad Birdhichand Sarda got marriage on February 11, 1982. Soon after the
was going to Berhampur as the accused’s wife had written and told him to go and receive payment marriage, Manju left for her new marital home and started residing with the appellant in Takshila
of his dues, was admissible under section 32(1) of the Indian Evidence Act, 1872. apartments at Pune.
Answer – Yes. She was introduced with mistress and directed to obey her command. She was very good girl. She
started to live with peacefully. But her husband and his family members started to torture her. when
The statement may be made before the cause of death has arisen, or before the deceased has any she narrated her woeful tale to her sister Anju in the letters written to her, she took the abundant
reason to anticipate being killed. care and caution of requesting Anju not to reveal her sad plight to her parents lest they may get
(1) Question in this case -In the present case the cause of the deceased’s death comes into question. extremely upset, worried and distressed.
(2) Meaning of ‘Circumstances of the transaction’ – ‘Circumstances of the transaction’ is a Decision -Both the High Court and the trial court rejected the theory of suicide and found that
phrase that conveys some limitations. Manju was murdered by her husband by administering her a strong dose of potassium cyanide.
Supreme Court – Sharad Birdhichand Sarda was acquitted. Offence could not be proved beyond
 It is not as broad as the analogous use in ‘circumstantial evidence which includes evidence reasonable doubt. Supreme Court said that if there are two possible view, court must lean toward
of all relevant facts. acquittal rather than conviction.
 It is narrower than ‘res gest’.
Circumstances must have some proximate relation to the actual occurrence: though as for instance There are following propositions regarding section 32(1) :-
in a case of prolonged poisoning they may be related to dates at a considerable distance from the
date of the actual fatal dose. (1) Exception to the rule of hearsay -Section 32 is an exception to the rule of hearsay and makes
(3) Meaning of confession – admissible the statement of a person who dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or exhibits circumstances leading to death.
 No statement that contains sell exculpatory matter can amount to a confession, if the (2) The test of proximity - The test of proximity cannot be too literally construed and practically
exculpatory statement is of some fact which if true would negative the offence alleged to be reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket.
confessed. Distance of time would depend or vary with the circumstances of each case. For instance, where
 Moreover a confession must either admit in terms the offence, or at any rate substantially death is a logical culmination of a continuous drama long in process and is, as it were, a finale of
all the facts which constitute the offence. the story, the statement regarding each step directly connected with the end of the drama would be
 An admission of a gravely incriminating fact, even a conclusively incriminating fact is not admissible because the entire statement would have to be read as an organic whole and not torn
of itself a confession e.g., an admission that the accused is the owner of and was in recent from the context. Sometimes statements relevant to or furnishing an immediate motive may also be
possession of the knife or revolver which caused a death with no explanation of any other admissible as being a part of the transaction of death. It is manifest that all these statements come
man’s possession. to light only after the death of the deceased who speaks from death. For instance, where the death
(4) Rejection of definition given by Stephen - The definition is not contained in the Indian takes place within a very short time of the marriage or the distance of time is not spread over more
Evidence Act, 1872: and in that Act it would not be consistent with the natural use of language to than 3-4 months the statement may be admissible under s.32.
construe confession as a statement by an accused ‘suggesting the inference that he committed’ the (3) Acceptance without cross-examination -The second part of cl.1 of s.32 is yet another
crime. exception to the rule that in criminal law the evidence of a person who was not being subjected to
Conclusion – Conviction of accused was upheld. or given an opportunity of being cross-examined by the accused, would be valueless because the
place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that
a person on the verge of death is not likely to make a false statement unless there is strong evidence
to show that the statement was secured either by prompting or tutoring.
(4) Homicide & suicide - It may be important to note that s.32 does not speak of homicide alone
but includes suicide also, hence all the circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of suicide.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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(5) Distance of time -Where the main evidence consists of statements and letters written by the Conclusion –No. Prosecutor could not prove rape and other facts beyond reasonable doubt. Appeal
deceased which are directly connected with or related to her death and which reveal a tell-tale story, was decided in favour of teachers and they were released.
the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The
distance of time alone in such cases would not make the statement irrelevant. Reason of decision –
Rattan Singh v. The State of Himachal Pradesh (11 December, 1996)
Fact - Kanta Devi(deceased) had uttered immediately before she was fired. She cried that Rattan (1) Cross- examination- In the cross examination some important matters came out-
Singh was standing nearby with a gun. Her mother-in-law heard this. In a split second the sound  She came to school on July 09, 1994 & July 10, 1994.
of firearm shot was heard and in a trice the life of Kanta Devi was snuffed off.  She informed her mother on July 12, 1994.
 Father said that she was not interested to lodge FIR on July 17, 1994 to July 19, 1994.
Comparison between both (2) Failure of prosecution –Prosecutor failed to prove rape by using force.
(3) No connection between death and contents of FIR – There was no proximate relation
Section 32(1) between rape and suicide. In this case prosecutor was failed to prove proximate relationship
‘Circumstances of the transaction which ‘Circumstances which caused his death’. between suicide and rape.
resulted in his death’ Legal points in this case
Wider Narrower

There are several legal points were discussed in this case –

 Comparison between both-The collocation of the words in Section 32(1) ‘Circumstances
of the transaction which resulted in his death’ is apparently of wider amplitude than saying (1) Principle of necessity - Such statements is admitted in evidence on the principle of necessity.
‘circumstances which caused his death’. (2) NM PM (Narendra Modi Prime Minister)107 Dying declaration is based on the legal maxim
 There need not necessarily be a direct nexus between ‘circumstances’ and death. It is “Nemo moriturus praesumitur mentire” i.e. a man will not meet his Maker with a lie in his mouth.
enough if the words spoken by the deceased have reference to any circumstance which has (3) Meaning of Dying Declaration - Sub-section (1) of Section 32 which provides that when the
connection with any of the transactions which ended up in the death of the deceased. Such statement is made by a person as to the cause of his death or as to any circumstances of the
statement would also fall within the purview of Section 32(1) of the Evidence Act. In other transaction which resulted in his death, being relevant fact, is admissible in evidence. Such
words it is not necessary that such circumstance should be proximate, for, even distant statements are commonly known as dying declarations.
circumstances can also become admissible under the sub-section, provided it has nexus with (4) Dying Declaration is admissible only in two circumstances- Statement of the victim who is
the transaction which resulted in the death. dead is admissible in so far as it refers to
Conclusion – Accused was convicted.  cause of his death or
 as to any circumstances of the transaction which resulted in his death.

Sudhakar & Anr. v. State of Maharashtra (July 17, 2000) In case of homicidal deaths, statements made by the deceased is admissible only to the extent of
(Rape & Suicide of school teacher) proving the cause and circumstances of his death.
Facts- Ms. Rakhi was school teacher whose age was 20 years. Sudhakar Bhujbal (Princiipal) and (5) Difference between English law and Indian Law –
Bhaskar (Teacher) committed rape on July 07, 1994. FIR was lodged on July 20, 1994. She lost her
i. In the English Law the declaration should have been made under the sense of impending
equilibrium of mind. She committed suicide on December 22, 1994.
death whereas under the Indian Law it is not necessary for the admissibility of a dying
declaration that the deceased at the time of making it should have been under the expectation
Chronology
of death.
S. No. Date Remarks ii. The Indian law on the question of the nature and scope of dying declaration has made a
1 July 07, 1994 Rape was committed by two collogue teachers. distinct departure from the English Law where only the statements which directly relate to
2 July 20, 1994 FIR was lodged. the cause of death are admissible. The second part of clause (1) of section 32, viz., “the
3 December 22, 1994 Ms. Rakhi committed suicide. circumstances of the transaction which resulted in his death, in cases in which the cause of
that person’s death comes into question” is not to be found in the English Law.
Charge – They were charged for committing offence under sections 376 & 306 of IPC.

Issue –Whether contents of FIR lodged on July 20, 1994 shall amount to ‘Dying Declaration’.
Answer – No. In this case it was not accepted. 107
It is nothing merely clue to remember Latin Maxim.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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S. No. Ground English law Indian Law Patel Hiralal Joitaram v. State of Gujarat (October 18, 2001)
1 Expectation of Declaration must be made during Here expectation of death is
death. expectation of death. immaterial. Fact- Patel Hiralal Joitaram developed some affair with the sister (Sharada Ben) of Asha Ben. Asha
DD may be related to Ben opposed. He had illicit relationship. She scolded Hiralal and hence he would annoyed with
homicide her. Patel Hiralal Joitaram decided to take revenge.
2 Death/ As to cause of his death (i) cause of his death or On -21.10.1988 at about 10 A.M., Asha Ben wan proceeding to the school for collecting her child
Circumstances (ii) as to any circumstances of back home. On the way appellant who was on a scooter met her. appellant took out a can and doused
the transaction which resulted combustible liquid contained therein on Asha Ben. He then whipped out a lighter and after lighting
in his death. it hurled its flame on her.
She reached the water column situated near the railway station and at beneath it, and the water
followed therefrom eventually extinguished the flames and embers which enwrapped her. Among
(6) Proximity Test – The words “as to any of the circumstances of the transaction which resulted the pedestrians there was a lady who flanked Asha Ben with some clothes to cover up her nudity
in his death” appearing in Section 32 must have some proximate relation to the actual occurrence. and a rickshaw was procured for rushing the charred victim to the hospital.
In the case of Pakala Case Justice Atkin also observed, “The circumstances must have some Three Dying Declaration - On 21.10.1988, FIR was registered on the basis of the statement made
proximate relation to the actual occurrence”. by Asha Ben to the police officer. In the meanwhile, the Executive Magistrate on being informed
Distance of time would depend or vary with the circumstances of each case. For instance, where by the doctor who examined the lady, visited the hospital and recorded her statement around 11.15
death is a logical culmination of a continuous drama long in process and is, as it were, a finale of A.M. She also narrated to her husband.
the story, the statement regarding each step directly connected with the end of the drama would be
admissible because the entire statement would have to be read as an organic whole and not torn In that statement she mentioned the name of ‘Hiralal Patel’ as the culprit. She succumbed to her
from the context. Sometimes statements relevant to or furnishing an immediate motive may also be burn injuries on 15.11.1988.
admissible as being a part of the transaction of death. It is manifest that all these statements come
to light only after the death of the deceased who speaks from death. For instance, where the death Mistake regarding description of name of accused –
takes place within a very short time of the marriage or the distance of time is not spread over more FIR ‘Hiralal Lalchand’
than 3-4 months the statement may be admissible under Section 32. Clarification during investigation ‘Hiralal Joitaram’
(7) Nexus Theory – Ratan Singh v. State of Himachal Pradesh108
In Ratan Singh v. State of Himachal Pradesh Supreme Court held that the expression In the FIR name of the accused was ‘Hiralal Lalchand’. But during investigation she clarified and
‘circumstances of transaction which resulted in his death’ mean that there need not necessarily be said that his name was ‘Hiralal Joitaram’. This mistake occurred due to mistake of name of father.
a direct nexus between the circumstances and death. Even distant circumstance can become Patel Hiralal Joitaram was charged under section 302, IPC.
admissible if it has nexus with the transaction which resulted in death.
(8) Exception of hearsay evidence - Section 32 is an exception of the rule of hearsay and Session Court – Session Court acquitted accused.
(9) DD may be as to homicide or suicide - Dying declaration whether the death is a homicide or a High Court – High Court convicted.
suicide is admissible, provided the statement relates to the cause of death, or exhibits circumstances Supreme Court- Supreme Court said that there was some more information in the dying
leading to the death. declaration which was sufficient to identify accused. Section 32 of the Indian Evidence Act is
(10) Substantive evidence - Dying declaration is substantive evidence. exception of section 162 of the Code of Criminal Procedure.

Legal Points-
(1) Two categories - Two categories of statement are made admissible in evidence [Section 32(1)]
and further made them as substantive evidence. They are:
i. His statement as to the cause of his death;
ii. His statement as to any of the circumstances of the transaction which resulted in his death.

(2) Compare between First and Second Category -

108
AIR 1997 SC 768.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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 The second category can envelope a far wider amplitude than the first category. When the (3)Duty of Court -The court has to always be on guard to see that the statement of the deceased
word ‘circumstances’ is linked to ‘transaction which resulted in his death’ the sub-section was not as a result of either tutoring or prompting or a product of imagination. The court also must
casts the net in a very wide dimension. further decide that the deceased was in a fit state of mind and had the opportunity to observe and
 Anything which has a nexus with his death, proximate or distant, direct or indirect, can identify the assailant.
also fall within the purview of the sub-section. As the possibility of getting the maker of the (4) Eye-witness will prevail over medical opinion- Normally, therefore, the court in order to
statement in flesh and blood has been closed once and for all the endeavour should be how satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to
to include the statement of a dead person within the sweep of the sub-section and not how the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious
to exclude it therefrom. state to make the declaration, the medical opinion will not prevail, nor can it be said that since there
 Admissibility is the first step and once it is admitted the court has to consider how far it is is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration
reliable. Once that test of reliability is found positive the court has to consider the utility of is not acceptable.
that statement in the particular case. (5) Mode of making of ‘Dying Declaration’ - A dying declaration can be oral or in writing and in
any adequate method of communication whether by words or by signs or otherwise will suffice
(3) Sharad Birdhichand Sarda v. State of Maharashtra – Second proposition of Sharada case provided the indication is positive and definite.
regarding timing was accepted. (6) Who can record dying declaration - In most cases dying declarations are made orally before
(4) Rattan Singh v. The State of Himachal Pradesh – This case was also cited. death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer.
(6) Form of recording of confession - When it is recorded, no oath is necessary nor is the presence
Conclusion – Dying declaration was accepted. He was convicted for causing murder. of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate,
if available for recording the statement of a man about to die. There is no requirement of law that a
dying declaration must necessarily be made to a magistrate and when such statement is recorded by
Laxman v. State of Maharashtra (February 27, 2002) a magistrate there is no specified statutory form for such recording.
(7) Evidentiary value of ‘Dying Declaration’ - What evidential value or weight has to be attached
to such statement necessarily depends on the facts and circumstances of each particular case.
The conviction of the Laxman is based upon the dying declaration of the deceased (Chandrakala) What is essentially required is that the person who records a dying declaration must be satisfied
which was recorded by the judicial magistrate (P.W.4). Chandrakala was physically and mentally that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate
fit. The magistrate in his evidence had stated that he had contacted the patient through the medical that the declarant was fit to make the statement even without examination by the doctor the
officer on duty and after putting some questions to the patient to find out whether she was able to declaration can be acted upon provided the court ultimately holds the same to be voluntary and
make the statement; whether she was set on fire; whether she was conscious and able to make the truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and
statement and on being satisfied he recorded the statement of the deceased. There was a certificate truthful nature of the declaration can be established otherwise.
of the doctor which indicates that the patient was conscious. Conclusion – With above observation matter was sent back to decide case in the light of these
Sessions Judge & High Court - Sessions Judge as well as the High Court held the dying declaration observations.
made by the deceased to be truthful, voluntary and trustworthy.
Supreme Court -There was contradictory decision of Supreme Court decided by three Judges Question – What would be used if ‘Dying Declaration’ is made to police officer or investigating
Bench. So matter was referred to Constitutional Bench for legal opinion. Constitutional Bench officer?
propounded following important points – Answer- Use of such ‘Dying Declaration’ shall not be hit by section 162 of Cr.P.C. Section 162 (2)
(1) Juristic Theory - The juristic theory regarding acceptability of a dying declaration is that such makes two exceptions of section 162(1). These exceptions are –
declaration is made in extremity, when the party is at the point of death and when every hope of
this world is gone, when every motive to falsehood is silenced, and the man is induced by the most i. Section 27 of the Indian Evidence Act, 1872.
powerful consideration to speak only the truth. ii. Section 32 of the Indian Evidence Act, 1872.
Notwithstanding the same, great caution must be exercised in considering the weight to be given to
this species of evidence on account of the existence of many circumstances which may affect their Dying declaration is substantive evidence.
truth.
(2) No oath & No cross-examination -The situation in which a man is on death bed is so solemn
and serene, is the reason in law to accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since the accused has no power
of cross-examination, the court insist that the dying declaration should be of such a nature as to
inspire full confidence of the court in its truthfulness and correctness.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
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Dying declaration [Section 31(1)] accentuated by the fact that there were three or four persons of the name of Tukaram, residing in
the neighborhood and some of them are Telis.
UP (J) Mains, 1985, Question 9 (a) Conviction of Khushal Rao by High Court-
UP (J) Mains, 2003, Question 7 (b) High Court upheld the conviction and sentence of the appellant on the ground that the dying
declarations were corroborated by the fact that the appellant had been absconding and keeping out
What is dying declaration? Discuss fully its evidentiary value. Can accused be convicted on the of the way of the police, and had been arrested under very suspicious circumstances.
basis of dying declaration alone?

UP (J) Mains, 1985, Question 9 (a) Supreme Court –

UP (J) Mains, 2003, Question 7 (b) Issue -Whether it is settled law that a dying declaration by itself can, in no circumstances, be the
What is dying declaration? Discuss fully its evidentiary value. Can accused be convicted on the basis of a conviction.
basis of dying declaration alone? Cite Case law. (1) Section32 is exception hearsay -This provision has been made by the Legislature, advisedly,
as a matter of sheer necessity -by way of an exception to the general rule that hearsay is no evidence
UP (J) Mains, 2015, Question 7 (a) and that evidence, which has not been tested by cross-examination, is not admissible. Here there is
Can the dying declaration form the sole basis of conviction? neither cross-eaxamination nor oath.
(2) Unreliable Dying Declaration - It may also be shown by evidence that a dying declaration is
not reliable because
Question – Is sole dying declaration is sufficient for conviction of accused?
Answer –It was laid down in case of Khushal Rao v. State of Bombay that true and voluntarily i. it was not made at the earliest opportunity, and, thus, there was a reasonable ground to
‘Dying Declaration’ can be sole basis of conviction. believe its having been put into the mouth of the dying man, when his power of resistance
On 1 May 1960, Bombay State was dissolved and split on linguistic lines into the two states against telling a falsehood was ebbing away; or
of Gujarat, with Gujarati speaking population and Maharashtra, ii. because the statement has not been properly recorded, for example, the statement had
with Marathi speaking population been recorded as a result of prompting by some interested parties or was in answer to
leading questions put by the recording officer, or, by the person purporting to reproduce
that statement.
Khushal Rao v. State of Bombay (25 September, 1957) These may be some of the circumstances which can be said to detract from the value of a dying
declaration.
(3) Dying Declaration without corroboration is sufficient- There is no absolute rule of law, or
Facts -There are two rival factions in what has been called the Mill area in Nagpur. Khushal Rao even a rule of prudence which has ripened into a rule of law, that a dying declaration unless
and Tukaram are the leaders of one of the factions, and Ramgopal, Inayatullah, and Tantu are said corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a
to be the leaders of the opposite faction. There were several criminal cases against each other. conviction.
Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the
accused, Sampat, Mahadeo, Khushal and Tukaram suddenly attacked Baboolal with swords and Conclusion – Supreme Court concluded following conclusion regarding section 32(1) -
spears and inflicted injuries on different parts of his body. The occurrence took place in a narrow
lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo (1) Dying declaration and Corroboration -it cannot be laid down as an absolute rule of law that
hospital where he reached at about 9.25 p.m. February 12, 1956. Baboolal died the next morning at a dying declaration cannot form the sole basis of conviction unless it is corroborated;
about 10 a.m. in hospital. (2) Dying declaration depends upon fact of each case -Each case must be determined on its own
More than Three Dying Declaration – Dying declaration was recorded by Doctor, Sub-Inspector facts keeping in view the circumstances in which the dying declaration was made;
and Judicial Magistrate First Class. He was in fit mental condition. Deceased also narrated with (3) No general proposition regarding weight of Dying declaration -that it cannot be laid down
several other persons also. Baboolal died the next morning at about 10 a.m. in hospital. as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of
Acquittal of Tuka Ram by High Court - evidence;
In a very well-considered judgment, the High Court, by its judgment and orders dated October 13, (4) Dying declaration is equal to other evidence- that a dying declaration stands on the same
1956, acquitted Tukaram, giving him the benefit of the doubt caused chiefly by the fact that in the footing as another piece of evidence and has to be judged in the light of surrounding circumstances
dying declaration recorded by the magistrate as aforesaid, he has been described as a Teli, whereas and with reference to the principles governing the weighing of evidence;
Tukaram before the Court is a Kolhi, as stated in the charge-sheet. The doubt was further (5) Dying declaration in question- answer form - that a dying declaration which has been
recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 108 109
and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a
much higher footing than a dying declaration which depends upon oral testimony which may suffer Evidentiary value of Dying Declaration if victim survived
from all the infirmities of human, memory and human character, and
(6) Test for reliability of a dying declaration - In order to test the reliability of a dying UP (J) Mains, 1986, Question 9 (b)
declaration, the Court has to keep in view the circumstances like the opportunity of the dying man UP (J) Mains, 2000, Question 7 (b)
for observation, for example, whether there was sufficient light if the crime was committed at night;
whether the capacity of the man to remember the facts stated had not been impaired at the time he ‘A’ who was hit by ‘bullet’ stated in the hospital in the presence of Magistrate that ‘B’ had fired at
was making the statement, by circumstances beyond his control; that the statement has been him. But ‘A’ did not die of this injury. Is the statement of ‘A’ made in the presence of Magistrate
consistent throughout if he had several opportunities of making a dying declaration apart from the admissible in evidence against ‘B’? Can be it of any other use?
official record of it and that the statement had been made at the earliest opportunity and was not the
result of tutoring by interested parties. UP (J) Mains, 1991, Question 3 (a)
Dying Declaration without Dying Declaration with corroboration
corroboration ‘A’ was severely beaten. His dying declaration was recorded by a Magistrate, in which he
Once the court has come to the conclusion If, on the other hand, the court, after examining the implicated ‘X’ and ‘Y’. ‘A’ survived due to medical treatment. ‘X’ and ‘Y’ were prosecuted for
that the dying declaration was the truthful dying declaration in all its aspects, and testing its attempt to commit murder of ‘A’.
version as to the circumstances of the veracity has come to the conclusion that it is not During the trial, the aforesaid dying declaration was sought to be given in evidence by the
death and the assailants of the victim, there reliable by itself, and that it suffers from an prosecution in support of its case. The defence opposed on the ground that the declarant was not
is no question of further corroboration. infirmity, then, without corroboration it cannot form dead and the alleged dying declaration did not point towards any cause for assault or the declarant
the basis of a conviction. therefore it was irrelevant. Decide.
Whether corroboration is necessary or not depends
upon particular facts of the case. Answer – Condition of application of section 32(1) is that victim must die. If he survived that
his/her statement shall not be relevant under section 32(1) as dying declaration.
Conclusion – Three successive dying declarations was made in the course of about two hours, by
the deceased and he consistently named Khushal and Tukaram as the persons who had assaulted
him with sword and spear. No part of his dying declarations has been shown to be false. He was fit No death, No dying declaration, No application of Section 32(1)
state of mind. So conviction without corroboration was justified.
Conviction of Khaushal Rao was upheld by Supreme Court. Maqsoodan & Others v. State of Uttar Pradesh (15/12/1982)

On 8 6.1972 at about 5.45 or 6.00 a.m. when Sulley along with his brother, Jadon, his son, Rajendra
and his nephew Vijay Kumar were going from their house in Neem Gali, Mathura, to their
Dharamshala in Mohalla Bengali Ghat, via Vishram Ghat and reached the area called Shyam Ghat,
they were waylaid by the twelve persons accused in the case and were assaulted. After the assault,
the miscreants left. The injured persons were sent to the District Hospital. Dying declaration was
recorded. But victim survived.
Supreme Court observed, “When a person who has made a Statement, may be in expectation of
death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the
Evidence Act. Maker of the statement are alive. Their statements, therefore, are not admissible
under Section 32; but their statements however are admissible under Section 157 of the Evidence
Act as former statements made by them in order to corroborate their testimony in the Court”.
Conclusion of Maqsoodan Case – Such statement can be used under section 157 rather than section
32.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI
 110 111
Section 40 to 44
Ram Prasad v. State of Maharashtra109 (12 May, 1999)
There was political vendetta. Victim survived. JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT

Supreme Court observed, Previous Year Question Papers

 “We are in full agreement with the contention of the learned counsel that Ext.52 (Dying
declaration of person who survived) cannot be used as evidence under Section 32 of the Bihar (J) 1978Question- Write short note on Relevancy of judgments of Court of Justice.
Evidence Act though it was recorded as a dying declaration. Answer- Sections 40 to 44.
 As long as the maker of the statement is alive it would remain only in the realm of a DJS 1973 & Bihar (J) 1979 Question – Write brief explanatory note on Judgment in rem.
statement recorded during investigation110. Answer- Section 41.
 Be that as it may, the question is whether the court could treat it as an item of evidence for Question – Discuss “Ordinarily judgments bind only parties to it”
any purpose. Section 157 of the Evidence Act permits proof of any former statement made
by a witness relating to the same fact before any authority legally competent to investigate UP (J) 1988 & 2012 Question –
the fact but its use is limited to corroboration of the testimony of such witness. Question 3(c) A prosecutes B for adultery with C, A’s wife.
 Though a police officer is legally competent to investigate, any statement made to him B denies that C is A’s wife, but the Court convicts B of adultery.
during such investigation cannot be used to corroborate the testimony of a witness because Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime.
of the clear interdict contained in Section 162 of the Code. C says that she never was A’s wife.
 But a statement made to a magistrate is not affected by the prohibition contained in Section Is the judgment against B irrelevant as against C?
162. A magistrate can record the statement of a person as provided in Section 164 of the Answer- Section 43 Illustration (b)
Code and such statement would either be elevated to the status of Section 32 if the maker UP (J) 1999 Question –
of the statement subsequently dies or if not die it would remain within the realm of what it Question 7(a) Whether a judgment in previous case is admissible as an evidence in a subsequent
was originally. A statement recorded by a magistrate under Section 164 becomes usable to case? If so, for what purpose?
corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him UP (J) 2012 Question
as provided in Section 155 thereof”. Question 5(b) A prosecutes B for adultery with C, A’s wife.
B denies that C is A’s wife, but the Court convicts B of adultery.
Section 162 (1) Cr.P.C. (If he comes He can be contradicted by his previous statement. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime.
as a prosecutor witness) C says that she never was A’s wife.
Section 162 (2) Cr.P.C. If victim died his statement will come under section Is the judgment against B irrelevant as against C?
32(1) which is exception of section 162(1). UP (J) 2018
Section 164 Cr.P.C. Recording of statement Question 7(a) Discuss the relevancy of judgment with the help of the provisions of the Indian
Section 155 (3) Indian Evidence Act Impeaching of credit of witness by his former Evidence Act, 1872 and reasonable illustrations.
statement.
Section 157 Indian Evidence Act Corroboration with former statement. Introduction
Rajan Rai v. State of Bihar (Supreme Court 10 November, 2005) – In this case Supreme Court
Conclusion – If victim survived, his statement will not come under section 32(1). His statement summarized following important points -
will be relevant subject to condition of Sections 162 & 164 Cr.P.C. It will be relevant under sections
 Section 40 states the circumstances in which a previous judgment may be relevant to bar a
145, 155and 157 of the Indian Evidence Act. Such statement shall be treated as made during
second suit or trial.
investigation.
 Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty
Burden of prove
or insolvency jurisdiction.
Section 104. Burden of proving fact to be proved to make evidence admissible - The burden of
 Section 42 refers to the relevancy and effect of judgments, orders or decrees other than those
proving any fact necessary to be proved in order to enable any person to give evidence of any other
mentioned in Section 41 in so far as they relate to matters of a public nature.
fact is on the person who wishes to give such evidence.
 Section 43 which clearly lays down that judgments, order or decrees, other than those
Illustration -
mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment,
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
order or decree is a fact in issue, or is relevant under some other provisions of the Evidence
109
AIR 1999 SC 1969.
Act.
110
Sections 161, 162 and 164 of Cr.P.C.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LAW CENTRE-1, D.U. DELHI