Question 1: De ne Evidence.

Explain the di erent types

of Evidence.
Ans: Introduction: Evidence is an important aspect of any case in a court of law because every
allegation or demand in court has to be supported by some evidence otherwise it will be
considered baseless. The word ‘Evidence’ has derived from the Latin expression ‘Evidens
Evidere’ which means the state of evidence being plain, apparent, or notorious.

Genesis:

Indian law, evidence has been given a more de nite meaning and is used only in its rst sense.
Thus going by the act, it can be concluded to say that the word ‘evidence’ means only those
instruments through which suitable and appropriate facts are brought before the Court and by the
help of which the Court is convinced of these facts.

Therefore, even matters other than the statements of witnesses and documents provided for the
inspection of the Court like any confession or statement of any accused person in the course of a
trial.

Also, it should be noted that statements given by parties when examined otherwise than as
witnesses, the demeanour of the witnesses, consequences of the local investigation or
inspection, and material objects other than documents such as weapons, tools, stolen property,
etc, will not be considered evidence according to the de nition of evidence given under Indian
law.

Nonetheless, these matters are legitimately taken into consideration by the Court. The de nition
of ‘evidence’ should be read together with the de nition of ‘proved’ and the merged result of
these two de nitions are considered for ascertaining a fact to be evident to the case. However,
these are not the only things courts take into consideration when forming their conclusions.

A statement that is being recorded under Section 164 of the Act, is not considered evidence
within the purview of the Act. So even a confession given by an accused will not be considered
evidence in the ordinary sense of the term. Even the entire evidence produced or stated by hostile
witnesses are not excluded completely by the Court.

The court of law has wide powers when it comes to recognizing the powers of the appellant in a
case. Court has full authority to review the whole evidence. It is within the powers of the court
through the entire evidence and relevant circumstances to reach its conclusion about the
conviction or innocence of the accused person.

De nition of evidence in the Indian Evidence Act:

According to Section 3 of the Evidence Act 1872, evidence means and includes:

• All such statements which the court allows or needs to be presented before it by the
witnesses in connection to matters of fact under inquiry. These statements are termed as
oral evidence.

• All such documents including any electronics record, presented before the court for
inspection. These documents are termed as documentary evidence.

Types of Evidence:

1. Oral Evidence: Oral evidence renders to the evidence that is mainly words spoken by mouth. It
is adequate to be proved without the support of any documentary evidence, provided it has
credibility. Primary oral evidence is the evidence that has been personally heard or seen or
gathered by the senses of a witness. It is called direct evidence as de ned by Section 60 of
the Indian Evidence Act.
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 Indirect or hearsay evidence is generally not admissible in a court of law as the person
reporting the facts is not the actual witness of the facts in issues. However, there are some
exceptions made in the case of hearsay evidence where it is admissible in a court of law.
Section 32 and Section 33 of the Indian Evidence Act, states the exceptional cases of hearsay
evidence.

2. Documentary Evidence: Documentary evidence is the evidence that mentions any issue
described or expressed upon any material by way of letters, gures or marks or by more than
one of the ways which can be used for recording the issue. Such evidence is presented in the
form of a document to prove a disputed fact in court.

Primary documentary evidence includes the evidence that shows the original documents as
mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary
evidence is the evidence that includes copies of documents that can be presented in the court
under certain circumstances or as mentioned in Section 63 and Section 65 of the Indian
Evidence Act.

3. Direct Or Primary Evidence: Direct Evidence is acknowledged as the most important evidence
required for deciding the matter in issue. Direct evidence directly proves a fact or disapproves
of the fact by its virtue. In the case of direct evidence, a particular fact is accepted directly
without giving any reason to relate to the fact.

One does not even need to point out the illustration provided as the evidence given by the
witness in the court of law is the direct evidence which is su cient enough to prove the matter
as against the testimony to a fact proposing guilt.

Also, at times the rule of best evidence plays an important part in upholding direct evidence in
a court of law. The rule of the best evidence is a rule of law that only includes the primary
evidence in itself. It states that if evidence such as a document or a recording is presented in
the court then only the original ones will be admissible unless there is a reason for not using
the original one in the court.

4. Indirect Evidence: Indirect evidence is that evidence which proves the facts in question by
giving other facts that are indirect evidence and afterwards, proving their relevance to the
issue. The deduction that can be drawn is from such evidence by connecting a series of other
facts to the facts in question. These indirect facts must have been related to the facts in
question and have a cause and e ect connection.

Direct Evidence is used in two ways:

a. As against hearsay evidence: According to this opposition, direct evidence is the evidence
given by a fact that is sensed by a witness with his senses or an opinion held by the witness
whereas hearsay evidence is the evidence that what some other person has told the witness
to have seen or heard by the other person. This di erentiation can be noticed in Section 60 of
the Indian Evidence Act, where the word ‘direct’ is used in contradistinction with the term
‘hearsay’ evidence.

b. As against circumstantial evidence: Direct evidence is that evidence which goes expressly to
the very issue in question and which, if believed will prove the fact in question without needing
any help from any reasoning for example evidence such as the testimony of an eye-witness to
murder, whereas circumstantial evidence will not prove the issue in question but it ascertains
the point only by inference or reasoning.

For example, the evidence of the fact that a person had a motive to murder another individual
and at the time of the murder the person was seen with a dagger, going towards the place of
the murdered individual and shortly afterwards, was seen returning from that very place in
blood-stained clothes, would be called as indirect or circumstantial evidence.
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 Di erence Between Direct and Circumstantial Evidence:

As per Section 5 of the Indian Evidence Act, evidence may be presented in a court proceeding of
the existence or non-existence of facts in issue and of such other facts that are considered
relevant by the Act. If the presented evidence relates directly to the existence or non-existence of
a fact in issue then the evidence will be considered direct, but if the evidence relates to the
existence or non-existence of only a relevant fact then it will be considered as indirect or
circumstantial evidence.

However, direct evidence as understood by this section should not be confused as de ned in
Section 60 of the Indian Evidence Act. According to Section 60, the word ‘direct evidence’ is used
as opposed to ‘hearsay evidence’ and not in contradistinction to ‘circumstantial evidence’ and
thus, going by the section, circumstantial evidence should always be direct as in the facts from
which the existence of the fact in issue is to be established have to be proved by direct evidence
and not by any hearsay evidence.

For establishing proof by circumstantial evidence, four things are required:

1. All the facts should be consistent with the theory.

2. The circumstances from which the inference for the theory was drawn, should be fully
established.

3. The circumstances should be of a decisive nature.

4. The circumstances should serve to mean and prove only the theory proposed to be proved
and should not entertain any other theory.

It is recommended to use both the direct and circumstantial evidence to prove a theory that is in
question in a court of law and no theory prevents the use of both the rules of law in a case.

And also because using the powers of both circumstantial and direct evidence can have a
considerable e ect in restricting the dishonest parties from tampering with witnesses and any
other means of witness. It would have been possible for them to distort the evidence if they had
knowledge.

Power of Written Evidence:

Section 144:

Section 144 the Indian Evidence Act deals with the evidence as to matters in writing. This section
states that under the section, a witness who is being examined can be asked whether any
agreement, grant, or any other disposition of property as to which the witness is disposing of was
not included in the document.

When the witness responds to the question a rmatively or when the witness is about to give any
statement as to the contents of such a document which in the judgment of the court have to be
presented before the court, the opposite party in the case has a right to object to such evidence
being presented before the document itself is produced or the proper establishment is laid for the
objective of proving the contents of the document by way of any secondary evidence.

Section 144 permits a witness to present oral evidence of statements made by any other
individual about the contents of a document if such statements are in itself relevant facts.

For example, if it is alleged that A has assaulted B and C, a witness testi es that he has heard A
to say that the B had sent a letter accusing A of committing a murder and A will take revenge from
B. This statement given by C about the contents of the letter can be proved even if the letter is not
presented since the statement is relevant enough to show A’s motive for assaulting B as per
Section 8 of the Indian Evidence Act.
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 Section 145:

According to of the Indian Evidence Act 1872, a witness can be cross-examined as to the
previous statements made by the witness in writing or deduced in the form writing and on relevant
matters in question, without showing the witness any such writing or as of that matter proved to
before him but if it is meant to contradict the witness by the writing, the witness’s attention
should, before the writing can be proved, be called to those portions of the writing which are to be
used for contradicting the witness.

Generally, what happens is that the contents of a writing are not used as evidence until and unless
the writing itself is produced in the court. But section 145 makes an exception in this case as it
states that a witness can be cross-examined as to prior statements made by the person in writing
or reduced in writing and on the relevant matters in question without showing such writing to the
witness or being proved.

Conclusion:

Evidence is simply everything that is utilized to acknowledge or explain the truth of submission
and every kind of evidence is considered extremely important to determine the outcome of a
case.

Whether it is a civil or a criminal case, evidence plays a signi cant role as the proof of facts will
not be e ective without having any evidence. Moreover, the di erent types of evidence are
notable concerning their relevance and admissibility standards. In simple words, it would be
impossible to determine the results of a case without having any evidence in the case.
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 Question 2/11: What is primary evidence? Discuss its
scope and importance.

Ans: The Indian Evidence Act, 1872 lays down the provisions relating to evidence given in any civil
or criminal proceedings in any court. Evidence may be proof which indicates whether a belief or a
proposition is true or valid.

De nition of evidence in the Indian Evidence Act:

According to Section 3 of the Evidence Act 1872, evidence means and includes:

• All such statements which the court allows or needs to be presented before it by the witnesses
in connection to matters of fact under inquiry. These statements are termed as oral evidence.

• All such documents including any electronics record, presented before the court for inspection.
These documents are termed as documentary evidence.

It must be noted that evidence must be produced before the Court in any suit or proceeding to
prove the existence or non-existence of a fact in issue or any other fact relevant to such suit or
proceeding only.

Primary Evidence: Section 62 of the Indian Evidence Act, 1872 de nes Primary Evidence. Primary
evidence means the document itself produced for the inspection before the Court.

For the purpose of the de nition, the section lays down two explanations which are as follows:

Explanation 1 – Where a document is executed in several parts, then each part is deemed to be
the primary evidence of the document. Furthermore, where a document is executed in
counterpart and each of such counterparts is being executed by one or more parties, then in such
case each counterpart is primary evidence as against the parties executing it.

Explanation 2 – Where a number of documents are all made by one uniform process, as in the
case of printing, lithography or photography, each is primary evidence of the contents of the rest.
However, where they are all copies of a common original, they are not primary evidence of the
contents of the original.

Prithi Chand v. State of Himachal Pradesh:

The Supreme Court laid down the rule regarding the admissibility of the carbon copy of a
document. The Court held that since the carbon copy of the medical certi cate was made by one
uniform process the same was primary evidence within the meaning of Explanation 2 to Section
62 of the Evidence Act. Hence, a carbon copy prepared under one uniform process is admissible
as primary evidence under Section 62 of the Evidence Act.

Theresa v. Special Court under A.P. Land:

The Court laid down that a printed copy obtained from an original document is not primary
evidence under Section 62 of the Indian Evidence Act, 1872, as Explanation 2 clearly lays down
that where a number of documents are all copied an original, they are not primary evidence.

Explanation 2 can be interpreted to stipulate that when all the documents are made at the same
time by one uniform process, such as printing, cyclostyle or lithography, as they are not mere
copies in the strict legal sense of the term but are counterpart originals, then each document can
be regarded as primary evidence of the contents of the others.
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When is Primary Evidence Given?

Evidence to prove any document must be given in its best form. Section 64 of the Indian Evidence
Act, 1872 provides for the proof of documents by primary evidence. It states that documents
produced in any suit or proceeding before any Court of law must be proved by primary evidence.

Sheo Nath Prasad vs. Sarjoo Nonia and Anr:

It was laid down that when a plainti alleges a loan and les with his plaint a document which he
alleges to be a promissory note and it is found to be unstamped or insu ciently stamped, there
can be no proof of the contents of the document, including the fact whether it is signed by any
person or not, or if signed, the identity of the person signing it, or of the terms of the transaction
recorded in the document. In such a case, the document is not admissible as primary evidence
under Section 64 of the Indian Evidence Act.

Exceptions as to when Secondary Evidence May Be Given:

While Section 64 mandates that proof of documents must be given in the form of primary
evidence, certain exceptions are there when secondary evidence may be produced.

Section 65 lays down the cases in which secondary evidence may be given of the existence,
condition, or contents of a document:

1. When the original is shown or appears to be in possession or power of the person against
whom the document is sought to be proved, or if it is the possession of any person out of
reach of, or not subject to the process of the Court, or of any person legally bound to produce
it and even after given notice as mentioned under Section 66 does not produce it. In such a
case, any secondary evidence of the contents of the document is admissible.

2. When the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by a representative in the interest of such
person. In such a case, written admission is admissible.

3. When the original has been destroyed or lost, or when the party o ering evidence of its
contents cannot produce it in a reasonable time given that it is not due to his own fault or
neglect, then any secondary evidence is admissible.

4. When the original is of such a nature as not to be easily moveable, any secondary evidence of
the contents of the document is admissible.

5. When the original is a public document within the meaning of Section 74, the certi ed copy
only, and no other kind of secondary evidence is admissible.

6. When the original is a document of such nature that is a certi ed copy of the same is
permissible under this Act to be given as evidence, or by any other law in force in British India,
then the secondary evidence is admissible.

7. When the original consists of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the whole
collection. In such a case, evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the examination of such
documents.

Types of Secondary Evidence:

Under section 76 the certi ed copies are de ned. The correctness of certi ed copies will be
presumed under section 79, but that of other copies will have to be proved. This proof might be
managed by calling a witness who can swear that he had contrasted the copy o ered in evidence
and the original, or with some other person read as the contents of the original and that such is
right. Copies are arranged by a mechanical process.
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The copies arranged by mechanical process and copies contrasted and such copies as
referenced in clause 2 of this section. In the previous case, as the duplicate is produced using the
original it guarantees precision. To this classi cation have place copies by photography,
lithography, cyclostyle, and carbon copies.

Section 62 (2) expresses that, where some of the document is made by one uniform process, as
on account of printing, lithography, or photography, each is primary evidence of the substance of
the rest, yet where they are on the whole copies of a typical original, they are not primary
evidence of the substance of the original.

HALSBURY states:

Photographs properly veri ed on oath by a person able to speak to their accuracy are generally
admissible to prove the identity of persons, or the con guration of land as it existed at a particular
moment, or the contents of a lost document.

The counterfoils of rent receipts being admissible for the property manager are not admissible
against the occupant.

A Photostat copy of a letter is a piece of secondary evidence, and it tends to be conceded in case
the original is demonstrated to have been lost or not promptly accessible, for a given reason, it
isn't convincing proof in itself of the honesty of the contents contained in that.

A carbon copy of a signature is a piece of secondary evidence within the meaning of section 63
(2) of this Act, being a copy made by a mechanical process that ensures its correctness.

A typed copy of a supposed parcel deed without charging that the archive falls under one of the
classes identi ed in section 63 of this Act, couldn't be held to be secondary evidence.

Rakesh Mohindra v. Anita Beri:

The Apex Court has considered the scope of Section 63 and Section 65 of the Indian Evidence
Act in case of admissibility of secondary evidence. It laid down that the pre-conditions for leading
secondary evidence are that such original documents cannot be produced by the party relying
upon such documents in spite of best e orts and is unable to produce the same due to reasons
beyond their control. The party seeking to produce secondary evidence must establish for the
non-production of primary evidence.

Conclusion:

Primary evidence is known as the best evidence, which is the best available proof of the existence
of an object because it is an actual item. It di ers from secondary evidence, which is a copy or
substitute of the original. If the primary evidence is available, then the party must produce it
before the court as proof. However, if it is not available due to loss or destruction, then secondary
evidence may be produced, provided that the reason for its unavailability is su ciently
established.
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 Question 3: De ne Evidence. Distinguish between
Relevancy and Admissibility of Evidence.
Ans: Introduction: As per Janab’s Key to Evidence, relevance alludes to the level of connection
and probative incentive between a reality that is given in evidence and the issue to be proved.
Admissibility includes the procedure whereby the court decides if the Law of Evidence allows that
important proof to be gotten by the court.

The articulations ‘relevancy’ and ‘admissibility’ are frequently taken to be synonymous. Be that as
it may, they are not the equivalent. The rst hurdle to presenting any piece of evidence to a court
is showing that the evidence is relevant.

Relevance is a threshold requirement that must be met before the court can consider the value
the evidence may have. Evidence is relevant when it “has any tendency to make a fact more or
less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.”

De nition of Relevancy and Admissibility

Relevancy: Relevant Evidence is evidence that makes a reality practically obligated to be

legitimate than it would be without con rmation. Relevant proof might be rejected for
unreasonable partiality, perplexity, or a waste of time. The relevant proof is commonly permissible
and irrelevant proof is never acceptable. Two main fundamental standards on relevance:

1. Nothing is to be received which is logically not veri ed regarding the matters which are
required to be proved.

2. Unless and until the clear ground of law or policies excludes it, everything which is veri ed or
probative should come in. Relevancy act as a link between a statement of proof and a
statement that needs to be proved.

One fact is said to apply to one another when one is associated with the other in any of the ways
alluded to in the provisions of The Indian Evidence Act relating to the relevancy of fact.

Indian Evidence Act does not give a particular meaning of relevancy or relevant fact. It essentially
depicts when one fact become applicable to another one.

Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact might be
associated with another fact and in this way the idea of relevant fact can be distributed. One fact
is pertinent to another fact if they are associated with one another in any of the ways as portrayed
in Section 5 to Section 55. In the event, if a fact isn’t so associated, then the fact is irrelevant.

A court may bar important proof when the probative estimation of the proof is signi cantly
exceeded by the peril of at least one of the accompanying: out of line bias; confounding the
issues; misdirecting the jury; undue postponement; unnecessarily exhibiting aggregate proof.

Admissibility: All the relevant facts which are admissible by the court are called admissibility.As
per the Section 136 of the Evidence Act, the nal discretion of the admissibility of evidence of the
case lies with the judge.

Section 136 of the Evidence Act states that exactly when either assembling proposes to give
proof of any reality or actuality, the Lord justice may ask the social event proposing to give the
proof how the alleged truth, at whatever point illustrated, would be huge; and the judge will
surrender the veri cation if he envisions that the truth, at whatever point appeared, would be
relevant, and not something di erent.
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Essential Ingredients for Admissibility:

1. The judge is the only person who determines relevancy and admissibility.

2. When an individual proposes to show proof of any fact, the judge may ask an individual to
explain ‘in what way’ the fact is relevant.

3. The judge would concede the particular demonstrated reality just if he is content with the
suitable reaction of the individual that it is, to be sure, signi cant under either provision of S. 6
to 55. Hence the thought of relevancy begins rst and of admissibility later and the judge will
concede the reality only if it is relevant.

What is Classi ed as Relevant Evidence?

All reality is relevant which is equipped for bearing any reasonable assumption as to facts in issue
or principal matter in dispute. Sir “Stephen,” said that relevancy means a connection of event as
cause and e ect.

By and large, the realities signi cant to an issue are those actualities that are important for
evidence or disproof of reality in the issue. Such realities might be given in proof legitimately or
inferentially.

What is truly implied by ‘relevancy of fact’ is a fact that has a speci c level of probative power.
They are not certainties in issue but rather may in uence the probability of reality in the issue.

Relevant evidence is auxiliary or collateral in nature, yet appropriate or likely in o ering ascend to
a derivation of right or risk by a procedure of thinking.

A fact will be relevant only when it has a link with the facts in issue, but it is not admissible. For
example-communication between spouses during the marriage or any professional
communication or communication which is made regarding the a airs of the state these all are
not admissible but they are relevant.

A particular fact is reasonably connected to the main issue it can be easily ascertained by logic
and not by law. Therefore logical relevancy signi es a reasonable link between the facts.

Basically, it is a question of fact in which lawyer duty arises and they have to decide whether to
tender the proof in the court or not. The Relevant fact is given in evidence to act from Section 5 to
55 and they are admissible in court.

Knapp v State:

In the American case of Knapp v. state, the standard of law expressed by the court was that “the
assurance of the determination of a particular thing of evidence lays on whether veri cation of
that evidence would sensible in general assistance settle the essential issue at trial.

Essential ingredients of relevance:

1. Relevancy is not totally dependent on law.

2. Relevancy is determined on the basis of practical experience, logic, common sense, human
experience and basic knowledge of a airs.

Ram Bihari v State of Bihar:

In this case, the supreme court observed that relevance and admissibility are synonyms to each
other but their legal implications are di erent from each other, and the admissible facts may not
be relevant.
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 Di erence between Relevance and Admissibility:

Relevance Admissibility

At the point when certainties are so related as At the point when facts have been announced
to render the presence or non-presence of to be lawfully signi cant under I.E.Act, they
di erent facts likely as indicated by the normal become admissible.
course of occasions or human conduct, they
are called relevancy.

It is found on the basis of the rationale and It is established on law, not on the rationale.
human experience.
The provision regarding relevancy is discussed The provision regarding admissibility is
under Section 5 to 55 of the Evidence Act. discussed under Section 56 of the Indian
Evidence Act.
It mainly emphasis on what facts are necessary Between relevancy and proof, it acts as a
to prove before the court and not? decisive factor.

It basically implies the relevant facts. It mainly focuses on what facts are admissible
and what facts are not admissible.

Relevancy is basically a cause. It is mainly an e ect.

The court has the power to apply discretion in The discretion cannot be applied by the court
relevancy. in admissibility.

Admissible facts can be relevant. Relevant facts are not admissible. Legal
relevant facts are admissible.

Relevant Facts (Section 9): Facts will help in supporting, refuting, clarifying or presenting
signi cant realities are additionally important under this section, for instance, if an individual is
absconding away not long after in the wake of being blamed for a wrongdoing, it is applicable as
lead ensuing and in uenced by certainties in the issue.

Lakkshmandas Chaganla Bhatia v State: Section 9 of the Evidence Act, 1872, brings out certain
facts which can be treated as applicable. On the basis of this case Lakshmandas Chaganlal
Bhatia v. State, the court laid down some of the following relevant facts:

1. Facts are important to clarify or present reality in issue or relevant fact.

2. Certainties that support or counter an induction proposed by a fact or truth in issue or a

relevant fact. Realities that set up the character of anything or individual whose personality or
identity is relevant. Substances which x the time and spot at which any reality in issue or
noteworthy assurance occurred. Certanities which shows the relationship of social events by
whom any reality in issue or tting truth was executed.

Another section of the Indian Evidence Act which manages adequacy is Section 11. Section 11
manages those substances which are not regularly noteworthy yet somewhat wound up being
signi cant in the event that they are con icting with any appropriate truth or they make the
proximity or non-closeness of any relevant sureness exceedingly more likely than not or
fantastical.
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 Conclusion:

Relevancy is a test for admissibility. The topic of admissibility is one of the laws and is controlled
by the Court. In Section 136 of Evidence Act 1950, a variation is made among relevancy and
admissibility, on the o chance that it very well may be demonstrated that the proof would be
relevant whenever demonstrated, the court will concede proof of it.

All admissible evidence is relevant but all relevant evidence is not admissible. An irrelevant truth
isn’t allowable in court. Be that as it may, in speci c cases, proof which isn’t relevant under
Section 5 to 55 may, in any case, be acceptable.

Evidence is considered as more important in deciding cases over many years. The power vested
on the managing o cial in choosing whether a proof is permissible or not is immense and must
be limited through rules. the law identifying with proof isn’t reasonable for the present age and it
must be changed for the better working of the legitimate framework.

An unmistakable line must be drawn between the intensity of the judge and the intensity of the
judge all things considered a gigantic power vested on individuals would just bring about
de lement of intensity. the law is incomparable and no man should given the optional capacity to
twist it to his desire.

Each bit of proof which concerns the case must be admissible whether it is found through illicit
hunt or some other methods. There are many people among us who envade the eyes of law
forever because of inadmissible evidence.
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 Question 5/7: Explain the relevancy of the facts forming
the part of same transaction.
Ans: Evolution of Res Gestate: Originally the Romans used Res gestae to mean acts are done or
actus. It was described by the English and American writers as facts forming the same
transaction. Res gestae are the facts that form a part of the same transaction automatically or
naturally. They are the acts that speak for themselves.

Due to their association with the main transaction, these facts become relevant in the nature of
the fact in question. Circumstantial facts are admitted to be part of res gestae, i.e. it is part of the
original evidence of what happened. Statements can also accompany physical events such as
gestures. Things said or acts done in course of transaction amounts to res gestae.

Scope and ambit of Section 6 of the Indian Evidence Act, 1872:

Facts that are so linked to a fact in question that they form part of the same transaction, although
not in question, are relevant, whether they occurred at di erent times and places at the same
time.

The principle embodied in law in Section 6, is usually referred to as the res gestae doctrine. The
facts that can be proved as a part of res gestae must be facts other than those in question but
must be linked to them.

Although hearsay evidence is not admissible, it may be admissible in a court of law when it is res
gestae and may be reliable proof. The reason behind this is the spontaneity and immediacy of
such a statement that for concoction there is hardly any time. Such a statement must, therefore,
be concurrent with the acts that constitute the o ense or at least immediately thereafter.

Res gestae contains facts that are part of the same transaction. It is, therefore, appropriate to
examine what a transaction is, when it begins and when it ends. If any fact does not connect to
the main transaction, it is not a res gestae and therefore inadmissible.

Res gestae includes elements that completely fall outside the de nition of modern hearsay, such
as circumstantial evidence of a state of mind, so-called “verbal acts“, verbal parts of acts, and
certain non-verbal behavior.

Illustrations:

• An injured or injured person’s cry.

• The witness’s cry to see a murder happen.
• The sound of a shot of a bullet.
• The person being attacked is crying for help.
• Gestures made by the person dying etc.

De nition of Transaction: A transaction, as the term used in this section, is de ned as a crime,
contract, error, or any other subject of inquiry that may be in question by a single name. It
includes both the immediate cause and e ect of an act or event and the other necessary
antecedents of its occurrence at a reasonable distance of time, pace and cause and e ect.

A good working test of deciding what is a transaction is:

• Unity or proximity of place,

• Proximity of time,
• Continuity of actions, and
• Community of purpose.

Continuity of action and community of purpose must be the key test. The condition for
admissibility of a statement made by a person at the occurrence scene is time proximity, police
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 station proximity, and continuity of action. The expression does not necessarily suggest time
proximity as much as action and purpose continuity.

A transaction may be a single incident occurring for a few moments or it may be spread across a
variety of acts, statements, etc. All of these constitute incidents that accompany and tend to
explain or qualify the fact in question, although not strictly constitute a fact in the matter.

All these facts are only relevant when they are connected by time proximity, unity or location
proximity, continuity of action and community of purpose or design.

Relevance of Evidence:

As one and the same part of the transaction, evidence relating to the main subject matter is
relevant. Two separate o enses may be so inseparably linked that the proof of one necessarily
involves proving the other, and in such a case proving that one cannot be excluded from
prosecution, as the other proves.

Proof of other o enses by the accused would be relevant and admissible if a nexus existed
between the o ense charged and the other o enses or the two acts formed part of the same
transaction to fall within Section 6. Simply because it occurred at or about the same time as the
Trial o ense res gestae, an o ense that is completely separate and disconnected is not allowable.

Relevance of Facts: Facts which are, immediately or otherwise, the occasion, cause or e ect of
relevant facts or facts in question, or which constitute the state of a airs under which they
occurred, or which provided an opportunity for their occurrence or transaction, are relevant. Facts
forming part of the same transaction are admissible in the previous section.

Evidence relating to collateral facts is admissible where such facts occur, where reasonable
presumption as to the disputed matter has been established, and where such evidence is
reasonably conclusive. The section provides for the admission of several classes of facts related
to the transaction under inquiry which are-

1. As being the occasion or cause of a fact,

2. As giving an opportunity for its occurrence,
3. As being its e ect, and
4. As constituting the state of things under which it happened.

Test for Admission of Evidence under Res Gestae:

First, the judge must take into consideration the circumstances in which the particular statement
was made to satisfy him that the event was as unusual or beginning or fanatical as it was to
dominate the victim’s thoughts, so that his statement was an instinctive reaction to that event,
thus giving no real opportunity for reasoned re ection.

The statement must be so closely associated with the event that aroused the statement that it can
be fairly stated that the declaring mind was still dominated by the event in order to be su ciently
spontaneous. Therefore, the judge must be satis ed that the event providing the trigger
mechanism for the statement was still in operation.

With regard to the possibility of reporting facts narrated in the statement if only the ordinary error
of human recollection is relied on, this goes to the weight to be attached and not to the
admissibility of the statement and is therefore a matter for the jury. The test to be used in deciding
whether a statement made by a bystander or a victim indicating an attacker’s identity is
admissible can be submitted as-

• Was that spontaneous?

• Was the identi cation relevant?
• Has there been any real possibility of error?
• Was there a concoction opportunity?
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 Principle of Admissibility of Declarations Accompanying Acts:

1. The statement (oral and written) must relate to the act in question or relevant to it; it is not
admissible simply because it accompanies an act. Moreover, the statement must relate to and
explain the fact that it accompanies, and not independent facts previously or subsequently
unless such facts form part of a continuous transaction.

2. The statement must be substantially at the same time as the fact and not just the narrative of
the past.

3. The statement and the act may be made by the same person, or they may be made by
another person, e.g. victim, assailant, and bystander statements. In conspiracy, it is
admissible to riot the statements of all concerned in the common object.

4. Although it is admissible to explain or corroborate or to understand the meaning of the act, a

declaration is not proof of the truth of the stated matters.

Vasa Chandrasekhar Rao vs Ponna Satyanarayana:

His wife and daughter were killed by the accused. Deposition of the deceased’s father that the
father of the accused made a telephone call to him, saying his son had killed the deceased was
not found admissible. The question before the court was that it was possible to admit the
deposition of the accused father under Section 6 and is Res Gestae going to be a hearsay
exception?

Failing to nd out whether the information given by the accused father to the deceased’s father
who killed his wife and daughter was refused to accept the evidence as relevant under Section 6
either at the time of the crime being committed or immediately thereafter to form part of the same
transaction.

Gentela Vijayavardhan Rao And Anr vs State of Andhra Pradesh:

Under res gestae, the appreciable interval between the act of carnage and the recording by the
magistrate of the statement was found inadmissible.

Bishna vs State of West Bengal:

Both witnesses arrived in an unconscious state immediately after the incident and found the dead
body of Prankrishna and wounded Nepal. One of them found Prannkrishna’s and Nepal’s mother
weeping and heard from an eyewitness that their testimony was admissible under Section 6 of the
Evidence Act about the whole incident and the role played by each of the appellants.

Expansion of the Doctrine of Res Gestae:

Slowly, courts have extended the scope of this section to cases like domestic violence, child
witness, etc. Domestic violence and cases of assault necessarily involve a surprising event, often
involving the issue of excited utterances.

In these cases, only victims can identify the alleged culprit. Therefore, such testimony of victims
must be admitted. Cases of rape usually occur in isolation. There is therefore no eye witness to an
event like this. Cases of rape and domestic violence di er from any other crime.

Conclusion:

Usually, evidence is brought to res gestae if it can not be brought to any other section of the
Indian evidence act. The intention of lawmakers was to avoid injustice where cases are dismissed
due to lack of evidence. If any statement under Section 6 is not admissible, it may be admissible
in accordance with Section 157 as corroborative evidence.
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Court has always believed that this doctrine should never be unlimitedly extended. For this
reason, the “continuity of transaction” test was always considered by Indian courts. Any
statement made following a long gap that was not a response to the event is not admissible under
Section 6 of the Evidence Act. But courts allowed some statement that was spoken after a long
gap from the occurrence of the transaction because there was enough evidence that the victim
was still under the stress of excitement and so everything that was said was a reaction to the
occurrence.

The strength of Section 6 is its vagueness. There is no distinction in this section between the word
transaction used. It varies from case to case. Every criminal case on its own merit should be
judged. The evidence is admissible under Section 6 if it is proven to be part of the same
transaction, but whether it is reliable or not depends on the discretion of the judge.
 Question 6: De ne Admissions. State the persons
whose admissions are relevant.
Ans: Introduction: According to the Due Process Model, the burden of proof lies on the parties to
prove their case. The common method of discovering the truth plays an important role in the
modernisation of evidence. If the allegations of one party are not disputed or contested by the
other, then no proof is required. Therefore, the evidence is introduced to the judge to prove the
required and important facts of the case.

As per the law, evidence helps in establishing the guilt or innocence of a person. Section 3 of the
Indian Evidence Act, 1872 de nes the “Evidence.” The de nition states that any statements
through which the court sanctions or requires to be presented before it by witnesses, concerning
matters of fact under inquiry, such statements or documents are oral evidence.

Whereas any documents including any electronic evidence which the court permits or requires,
concerning matters of fact under inquiry, such documents are documentary evidence. There is no
exact distinction between admissibility and receivability under this Code. Evidence may be
described as inadmissible irrelevant evidence or an immaterial fact as evidence.

De nition: According to Section 17 of the Indian Evidence Act, 1872, admission is de ned as any
statement made by any of the persons, which suggests any inference as to any fact in issue or
relevant fact, and under certain circumstances. Admissibility simply means the power to
approach. Admission can be oral or documentary or contained in electronic form. Thus, the
admissibility of evidence means any evidence or document used in the court of law to prove or
disprove alleged matters of fact.

“Admissions are considered primary evidence and they are admissible to prove even the contents
of written documents, without notice to produce, or accounting for the absence of, the originals.”

Bishwanath Prasad v. Dwarka Prasad, he court said “Admissibility is substantive evidence of the
fact which is admitted when any previous statement made by the party used to contradict a
witness does not become substantive evidence. The Admissibility of evidence serves the purpose
of throwing doubt on the veracity of the witness.”

Principles of admission:

1. Any kind of statement in the plaint is admissible in evidence.

2. No obligation on the Court to accept all the statements as correct and the court may accept
some of the statements as relevant and reject the rest.

3. There is no distinction between an admission made by a party in a pleading and other

admissions.

4. An admission made by a party in a plaint signed and veri ed by him may be used as evidence
against him in other suits.

5. Admissions are always examined as a whole, hence they cannot be divided into parts.

6. Any admission cannot be regarded as conclusive and it is open to both parties to show
whether it’s true or not.

7. Admissibility of a plea of guilt can be determined only if the plea is recorded by the accused in
his own words.

8. An admission to have a substantive evidence e ect should be voluntary in nature.

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 9. Admissions do not carry a conclusive value, it is only limited to being prima facie proof.

10. Admissions that are clear in the words of the accused are considered as good evidence of the
facts submitted.

The relevancy and admissibility of admission:

The admission is said to be relevant when the facts are so related as to render the existence or
non-existence of other facts probable according to a common course of events or human
conduct. Nothing which is not relevant may be adduced as evidence as per the law. In the
common-law countries, the evidence is both ascertained and simultaneously restricted by the
assertions of the parties.

Ram Bihari Yadav vs. State of Bihar:

The Apex Court observed that the terms ‘Relevancy’ and ‘Admissibility’ are not interchangeable
though sometimes they may be taken as synonymous. However, all relevant evidence may not be
admissible but all admissible evidence is relevant. The legal implications of the relevancy and
admissibility are distinct. It is determined by the ruler of the Act that the relevancy is the test of
admissibility.

The word ” relevant” as used in the Act, is equivalent to “having probative force” and the e ect of
the Section is to make the evidence admissible in the circumstances speci ed independently of
the consent of the parties.

Relevancy has been stated in Section 5 to Section 55 of the Indian Evidence Act, 1872. The
concept of relevancy is based on logic and human experience. Relevancy merely implies the
relevant facts and signi es what facts are necessary to prove or disprove a fact in an issue.

Admissibility is the concept in the law of evidence that determines whether or not the evidence
can be received by the court. Under the Indian Evidence Act, 1872, when any fact has been
declared to be legally relevant then they become admissible. All admissible facts are relevant but,
all relevant facts are not admissible. Admissibility is a decisive factor between relevance and proof
and only legally relevant facts are admissible.

According to Section 136 of the Indian Evidence Act, 1872, the nal discretion on the admissibility
of evidence lies with the judge. It states that when either party proposes to give evidence of any
fact, the judge may ask the proposing party to give the evidence in what manner the facts were
alleged, then the judge shall admit that, if he thinks that a relevant fact and if the facts were
proved relevant, then it would be considered, otherwise not. The evidence is admissible only upon
proof of some other fact until the party undertakes to give proof of such fact, and the court is
satis ed with such an undertaking.

Conditions required for the admissibility of evidence in Court:

Section 20 of the Indian Evidence Act, 1872 states the admissions made by any person expressly
referred to by party to suit. The section states, any statements made by a person to whom a party
to the suit has expressly referred for facts in respect to a matter in dispute are referred to as
admissions. This section also brings an exception to the general principle of admissions which are
made by strangers.

The admissibility of evidence depends upon the relevance and reliability of the fact. The evidence
is not related to the particular case, it is considered irrelevant and is inadmissible in the court.
Whereas, reliability refers to the credibility of a source that is being used as evidence.

K.M Singh v. Secretary Indian University Association:

The court held that the statement of the nominees under Section 20 of the Evidence Act would be
treated as an admission of the parties. The court said that a third person’s opinion shall be taken
into consideration when the third person is referred to by one party in reference to a matter of
dispute.
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 Admissibility of evidence in the Courts:

1. Admissibility of evidence in the criminal proceeding: In criminal proceedings, evidence can

only be produced when it is considered admissible and relevant to the facts or issues. Here,
the evidence is used to prove whether the defendant in a disputed matter is guilty or not
beyond a reasonable doubt.

The general rule is that the burden of proof always lies with the prosecution to prove the guilt
of the defendant. The substantive law in the criminal proceedings de nes what the appellant
has to prove to convict the defendant.

In criminal proceedings, the prosecution must prove all the necessary elements of the o ence
laid out in the Criminal Code against the defendant.

2. Admissibility of evidence in the civil proceeding: In civil proceedings, the evidence is generally
produced in the form of government documents such as leases, sale deeds, rent agreements,
gift deeds, etc.

The general rule in a civil proceeding is that the burden of proof lies on “the person who
claims must prove”.

In a civil trial, the legal burden of proving a fact lies on the party who claims that fact. If the
defendant denies the allegations and nds a positive default such as “counterclaim”, then in
that case the burden of proof shifts towards the defendant. However, at rst, the burden of
proof lies on the plainti in civil proceedings, after that it will shift to the defendant.

Case Law:

Lakshmandas Chaganlal Bhatia v. State

The court laid down some “relevant facts” under Section 9 of the Indian Evidence Act, 1876. The
Court held that a fact in an issue became relevant if it is necessary to explain or introduce, or facts
which support or rebut an inference, facts which establish the identity of anything or person, facts
which x the time and place at which any fact in issue has happened and any facts which show
the relation of parties by whom any fact in issue was transacted.

Ambica Charan Kundu And Ors. v. Kumud Mohun Chaudhury And Ors.

A general rule of Section 11 is controlled by Section 32, “when evidence consists of a statement
of persons who are dead and further tests the relevance of such a statement under Section 11.
Though it is not relevant and admissible under Section 32, it is admissible or relevant under
Section 11. It states that it is admissible even if it is altogether immaterial, but it is highly material
that it was said whether it was true or false.

Conclusion:

Hence, evidence is signi cant and crucial in both civil and criminal proceedings. It is the most
integral and indispensable element of any proceedings. The evidence should always be
admissible in court if the facts are relevant and reliable. The evidence shall satisfy all the speci c
provisions under the code. Both logical and legal relevance should be considered during
admission. Hence, the courts should let in only those facts which have a high degree of probative
value that would help the courts.

The law relating to evidence is not suitable for the present age and it must be amended for better
functioning. The law is supreme and no man should be given the discretionary power to bend it.
There must be a distinction between the law and the discretionary power of the judge. However, a
new mechanism must be developed to admit or not admit a particular evidence.
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 Question 9: Discuss the relevancy of facts relating to
motive, preparation and conduct.
Ans: Introduction: Motive, preparation, and conduct nd a very speci c reference in The Indian
Evidence Act,1872. Thus, it is very necessary to understand and establish the relevancy and
di erence between them. Many criminal cases depend on circumstantial evidence and when the
evidence is not clear.

Hence, Section 8 of The Indian Evidence Act, 1872 deals with these terms, and therefore this
section plays a very important role in those cases where evidence is not clear and direct. The
Motive, preparation, and conduct are very essential to prove the mens rea or a guilty mind in a
criminal case.

This section is accorded with a high amount of importance in the case of circumstantial evidence.
And it is due to this reason that section 8 is often regarded as one of the best provisions in the
Indian Evidence Act,1872.

Section 8 of the Act: As per section 8 of the Evidence Act, the Motive with which the person
commits a certain crime or the preparation which he/she makes towards the commission of the
act is a relevant fact.

The question of motive, as well as preparation, is very important in cases that purely rely on
circumstantial evidence. The rule of res gestae testimony is that it may be allowed when the said
testimony goes right to the root of a matter directly connected with the commission of the crime.
Thus, this particular principle has been embodied in section 8 of the Evidence Act.

“Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
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,
and the conduct of any person an o ence against whom is the subject of any proceeding, is
relevant if such conduct in uences or is in uenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto”.

Explanation: This section says that if there is any fact that shows or constitutes a motive or
preparation for any fact in issue is a relevant fact in the case. The conduct of a party/ agent to a
party to a suit or reference to any proceeding is relevant whether it is subsequent or previous.

The word “CONDUCT” in this section does not include the statements unless those statements
accompany and explain the acts other than statements, but this explanation is not to a ect the
relevancy of any statements under any other section of the Act.

When the conduct of any person is relevant in the proceeding, any statement made to him or her
in there presence and hearing, which a ects such conduct is also relevant here.

Here are some illustrations for better understanding of the section and is relevancy :-

• “A” a person who is tried for the murder of another person “B”. The facts that “A” murdered “C”,
that “B” knew that “A” had murdered “C”, and that “B” had tried to extort some money from “A”
by threatening to make his knowledge public, are relevant in the case.

• “A” sues a person “B” upon a bond for the payment of money. And “B” denies the making of
the bond. So the fact that, at the time when the bond was alleged to be made, “B” required
money for a particular purpose is very relevant in a case.

• “A” is tried for the murder of “B” by poison. Hence, the fact that before the death of “B”, “A”
procured poison from somewhere similar to that which was administered to the person “B”, is
relevant here. Here, the question is, whether a certain document is the will of “A”?
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So the facts that not long before the date of the alleged will, “A” inquired into matters to which the
provisions of the alleged will relate that he consulted vakils about making the will and that he
caused drafts or other wills to be prepared of which he did not approve, are relevant in the case.

• Here, “A” is accused of a crime:

So the acts that, either before or at the time of, or after the alleged crime, “A” proved evidence
that would tend to give to the facts of the case an appearance favorable 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
to it. Hence these types of facts are relevant in the eyes of law.

• Now the question is, whether “a” robbed “B”?

So, the facts that, after “B” was robbed, and “C” said in A’s presence—”the police are coming
to look for the man who robbed “B”, and that immediately afterward the person “A” ran away,
are relevant for the case.

• The question is, whether “A” owes “B” Rs. 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.

• The question is, whether “A” committed a crime?

The fact that “A” absconded after receiving the letter warning him that inquiry was being made
for the criminal and the contents of the letter, are relevant to the case.

Motive: Motive means “a reason for doing something” so we can say that, the reason behind the
act or conduct or an act to be achieved in doing an act is motive. The motive in itself is not an
incriminating circumstance and cannot be used in place of proof.[2] A thing to be noted here is
that motive is di erent from intention because intention refers to the immediate consequences
and motive means ultimate purpose in which an act is done. So an Act may be done with bad
intention but with a good motive. Hence, the evidence of the existence of a motive for the crime
charged is Admissible in the court.

State of MP V Dhiredra Kumar:

In this case, a person named “Munni Bai” was killed. Here, the respondent named “Dhiredra
Kumar” had an evil eye on her and was the tenant in the house of the father-in-law of the
deceased (Munni bai). When Munnibai reported the matter to her mother in law who in turn told
her husband, who told her to vacate the house. Hence, this may be taken as a motive of the
murder.

Kundula Bala V. State Of A.P

In this case, the son-in-law before his marriage demanded a piece of land from the deceased. The
connivance of the mother-in-law was also there before this demand. The marriage took place but
the deceased refused to transfer the property in the name of the accused and wanted to give it to
the daughter. That infuriated the accused and crime was committed. Therefore, it was held that
there was a strong motive for the accused to commit the crime.

Preparation: Preparation means an act of arranging for the means and the methods required for
the commission of a crime by a person. The Supreme Court of India interpreted the word
“Preparation” not only as of the action or process of preparing the components to produce the
compound, but also that which it is prepared.
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 Section 8, Para I of the Indian Evidence Act, 1872 says, “Any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant fact.” However, no inference of
guilt should arise when it has been established that the preparation so made was innocent or was
for another act that may be legal or may be illegal in nature.

App v State:

This was a case of burglary. Here the 4 accused conducted a meeting to make arrangements for
the crime. A bar made of iron and a pair of pincers were necessary and these were brought by the
accused of the case. And these facts were admitted as they showed the preparation on the part
of the accused. The preparation showed clearly that an intention to commit the o ence of
burglary was framed and that intention remained in the minds of the accused until they were
grabbing any opportunity to put the preparation into the execution of the crime.

Mohan Lal v Emperor:

In this case the accused was charged with cheating for importing goods in Karachi port without
paying the proper custom duty to the government. The Evidence was produced of the previous
visit of the accused to the port of Okha, where it was said he tried to make some arrangements
with the customs whereby he could import other goods without payment of the proper duty.
Hence, evidence was held to be admissible as they were the preparation being made out by the
accused in order to do the wrongful act by him.

Conduct: Conduct means the manner in which a person behaves, especially in a particular place
or situation. But here, the Conduct means speci cally the external behavior of the person. The
conduct of a person involved in crime becomes relevant if his conduct is related to the incident
that happened. The 2nd paragraph of section 8 of The Indian Evidence Act, 1872 talks about the
signi cance of the conduct. Conduct is di erent from the character because Conduct is what a
person is in the estimation of the others. Therefore, conduct to become relevant under section 8
of IEA need not become simultaneous or spontaneous, i.e. to say with that particular incident that
happened.

M.Malkani v State of Maharashtra:

The recorded telephone conversation about the settling of the bribe-money was held to be
evidence of conduct. Therefore Absconding of an accused is relevant conduct under the Indian
Evidence Act, 1872. However, it must be noted that the act of absconding shows the guilt of the
accused only to a certain extent because even innocent persons tend to escape due to the
instinct of self-preservation.

Analysis:

The Evidence tending to show that the accused had prepared for the crime is always admissible
in the court of law. But the mere preparation does not depict the whole scenario of the crime
scene but only the arrangements made with respect to the crime. Therefore it is not compulsory
that the preparation is always carried out but it is more or less likely to be carried out. Hence, it
becomes very di cult to prove the preparation concretely though it is a mere physical fact. From
the given facts, the Court is required to draw the inference that most of the facts could be said to
constitute preparation of the crime so committed.

Conclusion: In conclusion, we can say that “Motive”, “preparation” and “conduct” are essential to
prove a mens rea or a guilty mind in a crime. Section 8 of the Indian Evidence Act,1872 is
accorded a high amount of importance in case of circumstantial evidence. Hence, it is due to the
reason that section 8 is often regarded as one of the most provisions of the Evidence Act. The
relevance of the “motive”, “preparation”, “previous and subsequent conduct” has been explained
in the article in a very proper way and safeguards have been made inbuilt and that can be found
from the illustrations given after the section. If there remains any reasonable doubt in the evidence
then the bene t of doubt must be given to the accused. We should remember the principle that
no innocent should be punished wrongfully in a crime.
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 Question 10: Discuss the law relating to Proof of Public
Documents.
Ans: Introduction: Evidence which is provided to the court in the written form is called
Documentary Evidence as per section 3 of the Indian Evidence Act, 1872. There are two types of
documentary evidence, namely, public documents and private documents.

Public Documents: Public Documents are those documents which are authenticated by a public
o cer and subsequently which is made available to the public at large for reference and use.
Public documents also contain statements made by the public o cer in their o cial capacity,
which acts as admissible evidence of the fact in civil matters. These documents are also known
as public records as these are issued or published for public knowledge.

Private Documents: Private documents are those documents which are prepared between
persons for their usual business transactions and communications. These documents are kept in
the custody of the private persons only and are not made available to the public at large. Certi ed
copies of the private documents are generally not considered as evidence unless there is proof of
the original copy is provided.

What Documents are said to be Public Documents?

Section 74 of the Indian Evidence Act, 1872 states that the following documents are considered
public documents:

Documents forming the acts or records of the acts:

1. Of sovereign authority

2. Of o cial bodies and tribunals

3. Of public o cers, legislative, judiciary and executive of any part of India or of the
commonwealth, or of a foreign country.

4. The public record kept in any State of Private document

Documents forming the acts or records of acts:

1. Statements which are recorded by police o cers under section 161 of Cr.P.C.

2. Records that are maintained by the revenue o cers relating to land revenue, survey and
settlement of land disputes, etc are public documents.

3. Records of the developmental authorities of the regions are public documents.

Published under the Statue:

Schemes which are published in the O cial Gazette. Example scheme published under the
Electricity Supply Act, 1948. The scheme so published talked about the installation of overhead
transmission lines, thereby, making it a public document.

Orders of a civil court, FIR, Charge-sheet:

1. The certi ed copies of the orders of the civil court and FIR are Public Documents.

2. A charge-sheet led under Section 120-B of Indian Penal Code, 1860 against any individual is
held to be a public document.
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 Public document kept in any state of private documents:

To get the document within the purview of section 74 of the Indian Evidence Act, 1872, it should
be shown that the document is prepared by a public servant in the discharge of his/her o cial
duty, the fact that it is kept in public o ce does not make it a public document.

Section 74 (2) of the Indian Evidence Act, 1872 states that the private documents though made by
an individual person but it is kept as records in the public o ces are regarded as a public
document.

Narattam Das V. Md. Masadharali (1991) 1 Gau LR 197 (DB)

Which said that “Public Documents are those documents, which are required to be kept in the
Governmental units and discharge their duty as prescribed by law. A Public record is one required
by law or directed by law to serve as a memorial and evidence of something written, said or done.

Therefore, a Private Document would be called a ‘Public Document’ under the purview of section
74(2) if the Private Document is led and Public o cial is required to keep it for a memorial or
permanent evidence of something written, said or done.”

An Example of section 74(s): Memorandum of Association of a company is a public document

under the purview of this Section.

Exceptional Cases:

A private record turns into a public record when public interest is involved at large and prepared
by the public servant. Example: The share allotment certi cates to the members of the Adarsh
Housing Society, Mumbai which normally would be a private document as the parties to the
documents are the society and the individual members, but since the society at large was
involved in the fraudulent act of taking the government defense such records become public
records and were accessible by the public.

Hardayal vs Aram Singh And Ors [ AIR 2001 MP 203]:

The Madhya Pradesh High Court said that the panchanama prepared by a police o cer would not
be considered to be prepared in the course of his/her public duty and hence, it is not a public
record.

Private Documents: Section 75 of the Indian Evidence Act states that all documents other than
the documents mentioned in section 74 of the act are private documents. Private Documents are
those documents which are made by an individual for his/her personal interest under his/her
individual right.

These documents are in the hands of the individual to whom the public document belongs to and
is not made open to the general public for inspection. Certi ed copies of the private documents
are not admissible in court unless the proof of original document is submitted.

Certi ed Copies of Public Documents: Section 76 of the Indian Evidence Act, 1872 gives us the
method of getting certi ed copies of public documents from the public o cer.

It states that if a public document is open to inspection, it’s copy may be issued to any person
who is demanding it. The copy of the public document is issued on payment of legal fees and a
certi cate shall be attached thereof, containing the following particulars:

1. That it is a true copy.

2. The date of the issue of the copy.
3. The name of the o cer and his o cial title.
4. The seal of the o ce, if there is any.
5. It must be dated.
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 Rasipuram Union Motor Service vs Commissioner Of Income-Tax:

If a person has the right to inspect the document then, he would be entitled to get a copy of the
public document and if he has no right to inspect the public document he cannot get a copy of
the public document

Suraj Narain V Seth Jhabhu Lal And Others:

On receiving the certi ed copy of the public document he has the right to look into the order of
the copy which is sought and not the right to inspect the whole record. If a person has no right to
inspect the certi ed copy of the public document and still he obtains it then, the certi ed copy so
obtained is illegal and inadmissible as evidence in court

Proof of Documents by the production of certi ed copies:

Section 77 of the Indian Evidence Act, 1872 states that “such certi ed copies may be produced in
proof of the contents of the public documents or parts of the public documents of which they
purport to be copies.”

In simple words it states that, when the contents of the public documents are to be veri ed in
court of law, the original copy of the public document need not be presented before the court,
instead the certi ed copy of the public document taken from the public o cer in accordance with
Section 76 of the Indian Evidence Act, 1872 may be presented before the court which would be
accepted by the court.

The basic idea of this principle is that the record of the court should not be taken away from its
place of custody into courts meaning if public documents or public records are summoned in
courts it would be di cult for the time being for others to use the public records.

Suppose a particular public record or public document is presented in one court in 1940 and the
case is dragged till 1950, in this time period many other individuals who want to or needs to
present those public records or documents are crippled.

So, if copies of these public documents or records are not allowed and the originals are led in
cases, the individuals would be deprived of the use of those public documents or records for 10
years and plus there would be a constant risk of loss and additional wear and tear of the
documents if they are moved from place to place.

State Of Haryana vs Ram Singh:

The Supreme Court held that it is not the law that the certi ed copy of a registered agreement for
sale is inadmissible in court if it can be shown that the parties to the certi ed copy are asked to
examine and prove the same.

This would be contrary to section 77 read with section 74 (2) and section 76 of the Indian
Evidence Act, 1872 more especially Section 51-A of Land Acquisition Act. A certi ed copy of the
document registered under the Registration Act including a copy under section 57 of the Land
Acquisition Act may be accepted as evidence of transactions recorded in such documents.

It is available to the court to acknowledge the certi ed copy as solid proof and without inspecting
parties to the documents. This, however, does not preclude the court from rejecting the
transaction itself being mala de provided such challenge is laid before the court.

Madamanchi Ramappa & Anr vs Muthalur Bojjappa:

A certi ed copy of the public document or public record can be presented and received as
evidence in the court and without proof, as concluded by the judges of the Supreme Court of
India.
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 Proof of o cial Documents: Section 78 of the Indian Evidence Act, 1872 states that the following
public documents may be proved as follows:

1. Acts, orders or noti cations of the Central Government in any of its departments, or of the
Crown Representative or any of the State Government or any department of any State
Government; by the records of the departments, certi ed by the heads of those departments
respectively, or by any document purporting to be printed by order of any such Government
or; as the case may be, of the Crown Representative.

2. The proceedings of the Legislatures; by the journals of those bodies respectively, or by

published Acts or abstracts, or by copies purporting to be printed by order of the Government
concerned.

3. Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any
department of Her Majesty’s Government; by copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen’s Printer.

4. The Acts of the Executive or the proceedings of the Legislature of a foreign country; by
journals published by their authority, or commonly received in that country as such or by a
copy certi ed under the seal of the country or sovereign, or by a recognition thereof in some
Central Act.

5. The proceedings of a municipal body in a State; by a copy of such proceedings, certi ed by

the legal keeper thereof, or by a printed book purporting to be published by the authority of
such body.

6. Public documents of any other class in a foreign country; by the original, or by a copy certi ed
by the legal keeper thereof, with a certi cate under the seal of a Notary Public, or of an Indian
Council or diplomatic agent that the copy is duly certi ed by the o cer having the legal
custody of the original, and upon proof of the character of the document according to the law
of the foreign country.

Kinds of Public Documents: Section 78 of the Indian Evidence Act, 1872 gives us six kinds of
Public Documents:

1. Central Acts, orders or noti cations - certi ed by the Heads of the Departments concerned.

2. Proceedings of the Legislatures - Journals of those bodies or copies printed by the

Government.

3. Proclamations, orders or regulations issued by Her Majesty or Privy Council - by copies of

extracts of London Gazette.

4. The acts of the executives or proceedings of the foreign legislatures.

5. Municipal bodies proceedings - publication of such body certi ed by their legal keeper.

6. Public documents of some other class in a foreign country might be proved by the original or
certi ed copy issued by the lawful attendant of the document with a certi cate and sal of a
notary public, or Indian counsel or diplomatic agent.

Conclusion: One can infer that the public documents are those documents prepared by the public
o cer in the discharge of his/her o cial duty. According to the case laws cited above, we know
that the documents prepared by the private individual kept in public o ce are considered as
public documents and not a private document.

But when the question of admissibility of these documents arises in the court, then, the certi ed
copies of the public documents are admissible and they need not any witnesses to prove it
whereas, in case, of private documents certi ed copy is admissible only when the original private
document is shown as proof in the court.
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 Question 12: De ne ’confession’. Explain the law
relating to relevancy and admissibility of confessions.
Ans: Introduction: Though it an undiscovered fact that the term ‘confession’ is nowhere de ned or
expressed in the Indian Evidence Act, but the inference explained under the de nition of
admission in Section 17 of Indian evidence Act also applies to confession in the same manner.

Section 17 expressly provides that any statement whether oral or in the form documentary which
put forward for the consideration of any conclusion to the fact in issue or to the relevant facts.

Now after understanding the discovery of both the term it is very much clear that when is put
forward for the consideration of any inference to the fact in issue or to the relevant facts in the civil
proceeding then such consideration of statements is known as confession.

Thus, the confession is something which is made by the person who is charged with any criminal
o ences and such statements conferred by him shall be suggesting a conclusion as to any fact in
issue or as to relevant facts.

The statements may infer any reasoning for concluding or suggesting that he is guilty of a crime.
We may also de ne the confession in other words that the admission by the accused in the
criminal proceedings is a confession.

Pakala Narayan Swami V. Emperor:

“A confession must either be admitted in the context of any o ence or in relation with any
substantial facts which inaugurate the o ence with criminal proceedings. And an admission of
serious wrongdoing, even conclusively incriminating fact is not itself a confession”.

Palvinder Kaur V. State of Punjab:

The Supreme Court uplifted the Privy Council decision in Pakala Narayan Swami case and
substantiated their arguments over two reasoning-

Firstly, the de nition of confession only comes to exist when the statements conferring the
admission that he is either guilty of any o ence or the admission is probating all the facts which
constitute the o ence.

Secondly, when the statement has di erent qualities and contains such a mixture of confessional
statements which conclude to the acquittal of the person making the confession, then such
statements cannot be considered as a confession.

Nishi Kant Jha v State of Bihar:

The Supreme Court highlighted that there is no wrong on relying some part of statements
confessed by the accused and neglecting the other part, the court has traced out this concept
from English Law and when court in its capacity understood that it has enough evidence to
neglect the exculpatory part of the confession, then it may rely on the inculpatory part such
confession.

Conclusively we can understand that the expression of confession means any statements made
by an accused which proves his guilt. And there is just a thin line di erence between the two
terminologies of the Indian Evidence Act that admission is no other di erent term than admission
as a confession only ends up in admission of guilt by the accused.

So a person accused of any o ence makes any statement against him which may prove his guilt,
is called confession or confessional statement. It is observed that confessions are upgrades of
admission which makes it special, thus, it is popularly administered that “All Confessions are
admissions, but not all Admissions are confessions.”
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 Meaning of Admission: Admission plays a vital part in judicial proceedings as if in a case either of
the parties to the suit in the judicial proceeding proves that the other party has admitted the fact
in issues or the relevant facts in the case then it becomes easy for the Court to administer justice
e ectively as the court need not take much evidence and has not to involve in the judicial
proceedings because the question of the case has already been settled by either of the parties in
the course of admission. Section 17 to 23 of the Indian Evidence Act speci cally deals with the
portions related to admission.

The word ‘Admission’ expressed in the Evidence Act means “When any person voluntarily
acknowledges the existence of any facts in issue or facts”. Like in the case of confession we
discovered that confession is not much described in the Evidence Act in the same manner the
Indian Evidence Act also has not done much e ective work on expressing, the term ‘Admission’ in
an outspread sense.

Section 17 of Indian Evidence Act, de nes admission as any statement made in either form such
as oral, documentary or in electronic form which has enough probative value to suggest or
conclude any inference as to any fact in issue or relevant fact.

Admissions have no de nite pattern but still, it can either be formal or informal. The formal
admission is also called as judicial admission which is made at the time of the judicial proceeding,
while the informal admission is those admissions which are made in during the normal day to day
activity like in the normal course of life.

Formal admission or the judicial admissions are completely admissible by the Court of law under
Section 58 of the same act and has much higher probative value into substantive any fact. They
are generally rebuttable in nature and require no further proof to disprove the facts admitted in a
court of law unless the court asks for the same.

Nagindas Ramdas v Dalpatram Ichharam:

The Supreme Court of India explained the e ects of admission, that admissions are generally true
and clear of any ambiguity, and they shall be considered as the best proof for proving any fact in
issue or relevant fact by the admission of certain facts. On the other hand, the informal admission
which is made during the day to day activity just help in bringing the facts either by an oral or
written statement by the admission of either party.

Under the English law, the term ‘admission’ is speci cally utilised in civil proceedings, and on the
other hand, the term ‘confession’ is used in criminal proceedings. But, under the Indian statute,
the Evidence Act didn’t distinguish much between both the term rather the Indian Evidence Act
short distinguished as that- confession is a statement which is made by the accused declaring
himself guilty.

Types of Confession:

1. Formal Confession: Formal confession is also known as Judicial Confession and those
statements which are made before an o ce of magistrate or in the court of law during any
criminal proceedings are known as formal or judicial confession.

A judicial confession not much other than a “plea of guilty” as per the provision explained
under Article 20(3) if Indian Constitution otherwise any confession made against the person
who is making the confession will have no evidentiary value and he cannot be concluded
guilty of any o ence on the behalf of such confession.

Judicial confessions should not be mixed up with informal confession though being a part of
the same branch but both have di erent values and relevancy in determining the accused’s
guilt. There may be some arguments stating that a conviction can be arranged even on the
basis of an extra-judicial confession but on the other hand we must also see that there is no
reason in neglecting the arrangement of conviction solely based on the judicial confession.
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 So a confession made by the accused where his statements are leading himself to the bar is
probative evidence to prove his guilt but all such confession shall be made in the presence of
a magistrate or in a court of law. On the other side the court must take care of all the
necessary steps to check if the confession made by the accused which may prove his guilt
must be voluntary and true, so that no innocent can be charged for wrongful act of others as
provided in Article 20(3) of the Indian Constitution which talks about ‘self incrimination.’
2. Informal Confession: Informal confession is also known as extrajudicial confession and those
statements which are made at any place other than the place where there is an absence of
magistrate or at any place other than the court is considered as an extra-judicial confession.

It is not necessary that the statements should have been addressed to any de nite individual.
Just like in the principle of judicial confession, informal confession can also be made in the
form of prayer, the informal confession is in any private room or a self conversation.

But the court has to take care that no matter judicial or extrajudicial confession, the
confession by the accused must be consistent with Article 20(3) of Indian Constitution which
say ‘No one should be compelled to give evidence against himself’ that means the confession
should be on the will of the confessor and must be true, then only a person can be charged for
any criminal o ence.

A person expressing the guilt of the o ence he committed to any private person like any friend
or his related persons than such commission of a crime will cover the aspects of extrajudicial
confession. Though both judicial and extrajudicial confession can be accepted in the court but
both have di erent evidentiary value or di erent probative value so as to establish any fact.

Which means a conviction will not solely be based on the confession rather the court will test
the extrajudicial confession to make any person guilty of any o ence committed by him. What
makes the extra-judicial confession di erent from judicial confession is that extrajudicial
confession can be made to any private person which also includes a judicial o cer in his
private capacity. The extra-judicial confession in some cases also restricts a magistrate to
record confession which he is not empowered under Section 164 of Cr.Pc.

Sahadevan v. State of Tamil Nadu:

The Supreme Court while deciding the case has made few principles in the form of guidelines
where the court has to check such principles before admitting the confession of the accused,
The following principles mentioned by the Supreme Court are:

• Extrajudicial confessions are generally a very weak kind of evidence by itself and the court must
examine such statements e ciently.

• Extrajudicial confession should be made by the person’s own Willard such statements must be
true.

• The evidentiary value of extra-judicial confession instantly increases when it is supported by

other such evidence.

• The statements of the confessor must prove his guilt like any other fact in issue is proven in the
judicial proceedings.

3. Retracted Confession: The English meaning of retraction is ‘the action of drawing back
something’ retraction confession is a type of confession which is previously voluntarily made
by the confessor but afterwards it is revoked or retracted by the same confessor. Retracted
confession can be utilised against the person who is confessing some retracted statements if
it is substantiated by another independent and corroborative evidence.

Confession by co-accused: When there are more than one accused in a case and they are
jointly prosecuted for the same o ence, and when any of them confesses any statements
against himself in such a way that he may be proved guilty of that o ence then the court on
such believes may prosecute other accused also who are jointly persecuted in the same
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 o ence.

Illustration- If three persons Aman, Vinod and Vijay are charged jointly for the same o ence
and they are prosecuted for the murder of Harsh. And during the judicial proceedings, Aman
gives confessions that he along with Vinod and Vijay killed Harsh and if the statements of the
Aman are recognised as true statements then the court may use the confession of Aman
against all the accused and can prove the guilt of Vinod and Vijay also. Evidentiary value of
di erent types of confessions

4. Judicial Confession: Section 80 of the Indian Evidence Act give the evidentiary value to the
judicial confession and expresses that a confession made in the presence of magistrate or in
the court which is recorded by the magistrate as prescribed by the law then such confession
shall be presumed to be true and genuine confession and the accused can be tried with the
o ence.

Section 165 of CrPc empowers magistrate to record confession so it is not necessary that
which magistrate recorded the confession unless he is restricted to record the confession.
Hence, for raising the presumption the identity of the accused must be clear and proved in the
confession to persecute him for the guilt of the o ence he committed.

5. Extra-Judicial Confessions: Though extra-judicial confession don’t have much evidentiary

value as compared to judicial confession but in the case of a written confession the writing of
the accused itself is one of the best evidence available to the court to charge the accused of
the o ence.

And if the confession is not available in the form of written statements then the court may test
the oral confession of the accused which was made to any other person. On the court’s
discretion and satisfaction, the statements of the accused to any other person may be
admissible and thereafter the accused may be prosecuted for the o ence on which he is
charged.

When is a confession relevant: Sections 24, 25, 26 and relevant part of Section 27 of the Indian
Evidence Act, 1872 deals with condition that when can confession be irrelevant.

Section 24 of the same Act describes di erent instances when a confession on the basis of such
instances becomes irrelevant. Section 24 of Indian Evidence Act provides that a confession made
by a person who is accused of some o ence is irrelevant if such confession comes out of any
inducement, threat or promise and such instances have proceeded from a person in authority like
police, magistrate, court etc., the other condition of this section is that inducement, threat or
promise should be in reference to charge of any o ence and all such inducements, threat or
promise should give bene t of temporal nature.

For better understanding, we may divide the complete structure into 4 di erent essentials that are:

• The confession must be out of inducement, threat or promise, inducement, etc.

• Such confession should proceed from a person in authority.

• It should relate to the charge in question.

• It should have the bene t of temporal nature or disadvantage.

Thus, when these conditions are ful lled then the confession becomes irrelevant.
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 Question 13: Who is an ‘Expert’ ? When does his opinion
become relevant ?
Ans: Introduction: Generally, when a person is summoned to court for giving testimony as a
witness, he is expected to state only facts and not to give any opinion. It is the job of the court to
form an opinion in the case. Moreover, if a person is asked to give his testimony then it is
expected that the person must be factually related to the case not merely a third party.

But there is an exception to this rule. The experts are considered as witnesses although they are
not actually related to the case. The court requires these experts to give an opinion regarding the
case to help the court in having a wider perspective to give justice. The rationale behind the same
is that it is not practical to expect the Judges to have adequate knowledge of medical issues. The
statutes regarding the experts’ opinion are discussed in The Indian Evidence Act.

Who is an Expert: The court cannot form a correct judgement without the help of a person with
special skills or experience in a particular subject. When the court needs an opinion in a subject
which requires special assistance, the court calls an expert, a specially skilled person. The opinion
given by a third person is considered as relevant facts if the person testifying is an expert.

For example, the court was confused that a letter has been written by person ‘X’ or not. The court
calls a handwriting expert to nd out the same. This person will be known as an expert and the
opinion which he gives in the case is relevant.

De nition: Section 45 of the Act de nes an Expert if the court needs an expert to form an opinion
upon:

• Foreign law
• Science & Art
• Identity of Handwriting
• Identity of nger impression
• Electronic evidence

Only in the expertise in the above-said elds, a person’s opinion is considered to be an expert
opinion. If a eld not mentioned above requires an opinion, it is not considered as an expert
opinion. There have been cases such as:

• The disposition or temper of animals

• Colour, weight or scale of similar facts
• Age of a person
• If a man or women were intimate
• If a person was intoxicated or not

If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has
devoted his time in learning a special branch of expertise and thus is specially skilled in the
subject. It can include:

• Superior knowledge, and

• Practical experience

The court of law, before admitting any of the opinion made by an expert, needs to ensure that the
person is an expert under the law. If it is found that the person is not an expert, his opinion is
discarded by the court. For checking that the witness is an expert, he must be examined and
cross-examined. A person becomes an expert by:

• Practice,
• Observation, or
• Experience
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Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors.:

The court stated that the rst and foremost requirement for expert evidence to be admissible is
that it is necessary to hear the expert evidence. The test is that the matter is outside the
knowledge and experience of the layman. People who can be termed as an expert are explained
in detail below.

A. Handwriting Expert’s opinion Section 47: When the court has an opinion that who has written
or signed a document the court will consider the opinion of a person who is acquainted with
the handwriting. That person will give an opinion that particular handwriting is written or not
written by that particular person or not.

1. A person who is an expert in this eld

2. A person who has actually seen someone writing, or

3. A person who has received any document which is written by the person whose handwriting is
in question or under the authority of such person and is addressed to that person

4. A person who regularly receives letters or papers which are written by that person

5. A person who is acquainted with the signatures or writing of that person

6. A certifying authority who has issued a digital signature certi cate when the court has formed
an opinion as to the digital signature of a person. This is mentioned under section 47-A of the
act.

7. The evidence of the writer himself. This is mentioned in section 60 of the act.

8. If another person admits that the documents were written by him. This is mentioned in section
21 of the act.

9. A person who has seen the person writing or signing. This is mentioned under section 6o of
the act.

10. When the court himself compares the document in question with any other document which is
proved genuine in the court. This is mentioned in section 73.

11. The court may ask the person to write something for the court to compare it with the
document in question.

Illustration, Ms. Pinky claims in the court that she has not signed any document for sale of her
property. To match her signatures with the one on papers, the court calls Mr. Raju who is the
personal assistant of Ms. Pinky. Mr. Raju’s job is to get all the o cial documents of the
company to be signed by Ms. Pinky. Mr. Raju gives a testimony that the papers were signed
by Ms. Pinky only. Here, Mr. Raju will be termed as an expert under the meaning of s. 47 as he
has seen Ms. Pinky signing the documents and regularly receives such papers.

However, there have been several instances where the courts have been discouraged to
decide cases of matching of signatures without evidence and merely on inspection. The court
needs to work with the utmost care and caution in determining the authenticity of the
documents.

B. Opinion for Electronic Evidence (Section 45A): When a piece of information is transmitted or
stored in a computer system and the court needs assistance or opinion for the same in any
case; they refer an examiner of electronic evidence. This examiner of electronic evidence is
known as the expert in such cases. For this section, electronic evidence includes any
information transmitted or stored in any computer resource or any other electronic or digital
form for which the opinion of electronic evidence examiner is required as per section 79A of
the Information Technology Act, 2000.
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 C. Opinion on Foreign Law (Section 38 r/w Section 45): When there is a law of prevailing in any
foreign country which needs to be considered for giving judgement in any case, the court
needs an expert who is well versed with that law.

Otherwise, the court can take opinion from a law-book which contains the answer regarding
any foreign law. These books must be printed or published under the authority of the
government of that country. Other reports of the ruling of the courts can also be taken as
relevant which are given in such books of foreign law.

Foreign law in India is always considered as a question of fact. There have been cases where
the court has interpreted personal laws as Indian laws and thus are the laws of the land
Therefore, the court does not require a person to interpret the law as the courts can do that
task on their own.

D. Opinion on Fingerprint: Footprint studies are gaining importance nowadays but the courts
have been reluctant to accept that as a piece of evidence. A person, who is a ngerprint
expert, is called to match two or more ngerprints, than the opinion of such an expert is
relevant and admissible in the court.

E. Opinion of a Medical Expert: In many cases, the opinion of medical experts is required.
Especially in criminal cases, the medical examination of accused and victim is necessary.
When in a case, the court requires some opinion which involves medical technicalities, they
ask medical o cers.

Opinions of a medical o cer can be used to prove:

The Physical condition of the person,

1. Age of a person

2. Cause of death of a person

3. Nature and e ect of the disease or injuries on body or mind

4. Manner or instrument by which such injuries were caused

5. Time at which the injury or wounds have been caused.

6. Whether the injury or wounds are fatal in nature

7. Cause, symptoms and peculiarities of the disease and whether it is likely to cause death

8. Probable future consequences of an injury etc.

In a rape case, the medical report of the victim and accused are of great importance. If the
medical o cer says that he thinks that act was not consensual referring to the injuries on
the body of the victim and the nail scratches on the body of the accused, this opinion
carries a lot of importance.

But the problem with these experts is that they are always called by one party only who has
evidenced in their favour. This is the reason that the court is reluctant to rely completely
upon the views and opinions of the expert though they consider the same while imparting
their judgement.

In other cases, if the court nds that the expert’s opinion is in contradiction with the opinion
of an eye-witness then for obvious reasons, the normal witness’s opinion is given
preference over the expert’s opinion. This is because the expert’s statement is just
opinionative whereas the other witness’s statement is based upon the facts of the case.
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The Evidentiary Value of an Expert Opinion: The data given by the expert are relevant and
admissible. If any oral evidence contradicts the data/ report; it will not make the data evidence
obsolete. But, as per section 46, in case any fact is in contradiction to the opinion of the expert,
that fact becomes relevant. If the opinion of the expert is relevant, the contradictory fact becomes
relevant even though it was not relevant as such. The value of expert opinion depends upon the
facts on which he is based and the competency of such expert in forming a reliable opinion.

However, the personal appearance of the expert in the court can be excused unless the court
expressly asks him to appear in person. In such a case, where the expert is excused, he can send
any responsible o cer who is well versed with the facts of the case and the report and can
address the court with the same.

If a judge relies upon the opinion of the expert only and not on the facts and the testimony of
ordinary witnesses to give judgement then is the weakness of the case. This is because even if a
person is an expert in his eld, he cannot be termed as a direct witness and cannot give a
statement on the facts of the case. He is just giving an opinion as per the evidences given to him
and cannot draw a conclusion regarding the guilt of the accused in all the cases.

The evidence given by the expert is just an opinion and is not a fact-based testimony and thus are
given slight value. This is the reason that eye-witnesses or other factual witnesses are given a
priority over the expert’s opinion. This is because opinion evidence cannot supersede substantive
evidence. No expert can claim that he could be absolutely sure that his opinion was correct,
expert depends to a great extent upon the materials put before him and the nature of the question
put to him.

However, the evidentiary value of an expert’s opinion depends upon the facts and circumstances.
For example, if there is a dispute as to who is the biological parent of a child, the DNA report of
the Medical expert is of great importance. If the expert says that the DNA of the child or parents
matches, than it is a relevant fact in deciding the case.

But in case if a handwriting expert says that the signatures matches or not matches with the
person; this fact does not hold much value because there can be a possibility that the person has
practiced a lot to copy the signature. But on the other hand, DNA cannot be copied or changed.

The court must be satis ed that the accused is guilty. The court cannot hold him guilty mere
because an expert has said that in his opinion, the person is guilty. The court needs to look into
the evidence along with the opinion of the expert before giving any judgement or order.

Conclusion: Unlike an ordinary witness, expert witnesses have a separate standing as a witness in
a court. It is interesting to note that an expert’s report cannot be questioned in the court. The
report is questioned when the ability and knowledge of the expert to make that report is in
question.

The experts are judged with a di erent eye by the court since they are just giving an opinion and
are not aware of the facts of the case. But still, an expert’s opinion matters as the court has no
knowledge of that particular eld of expertise and they will not be able to impart justice without
seeing the other side of the coin.
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 Question 14: What is dying declaration ? What are the
conditions for its admissibility as evidence ?
Ans: Introduction: Dying Declaration is a statement made by the person while he was dying and
states the reason for his death. The statement given by the dying person can be circumstantial or
tells the cause for his death. Hence, the only statement given just before the death of a person is
called Dying Declaration.

The person who is conscious of Compos Mentis and knows that death is about to happen can
make a declaration and state the cause of his death and that statement will be Admissible and
treated as Evidence in the Court. Declaration made by the deceased person can be in oral, written
and by conduct. The word Dying Declaration explain the word itself.

De nition: Section 32(1): When the statement is made by the person as the cause of his death, or
as any of the circumstances of the transaction which resulted in his loss of life, in cases in which
the cause of that person’s death comes into question. Such statements made by the person are
relevant whether the person who made them was alive or was not, at the time when they were
made, under the expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.

The statement made by the deceased person will be treated as Evidence and Admissible in a
Court of law. The reason behind this can be followed by Latin maxim Nemo Mariturus
Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying On His Mouth.
More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the
lips of dying man. Hence, the Dying Declaration is Admissible and considered as Evidence in
Court, and can be used as a weapon to punish the culprit.

Types of Dying Declarations:

1. Gestures and Signs: In the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by
her in the form of sign and gesture.The dying declarations made by Nirbhaya were
recorded.The rst declaration was recorded by the doctor when she was admitted in the
hospital on the night of December 16, 2012 and the second on December 21 by the sub-
divisional magistrate during which she gave exact details of the miss-happening.

The third declaration was recorded by the metropolitan magistrate on December 25 and was
mostly by gestures. The bench said that as far as the third dying declaration is concerned, this
court has already held that the dying declaration made through signs, gestures or by nods are
admissible as evidence.

2. Oral or Written: When the person gives the name of the murderer to a person present and
written by any of them then it is a relevant dying declaration. However, people may dispose of
the name of the mugger orally.

An oral dying declaration is admissible in evidence as an exception to the general rule of

evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration
made before his wife, father-in-law and other near relatives were made in the conscious state.

3. Incomplete Dying Declaration: Dying declaration made by the person, which is found to be
incomplete can not be admissible as evidence. When the condition of the deceased is grave
and at his own request a statement made by him in the presence of the doctor was later taken
by the police but could not be completed as the deceased fell into a coma from which he
could not recover. It was held that the dying declaration was not admissible in court as the
declaration appears to be incomplete on the face of it.

But the statement, though it is incomplete in the sense but conveys the declarant all
necessary information or what he wanted to state, yet stated as complete in respect of certain
fact then the statement would not be excluded on the ground of its being incomplete.
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 4. Question - Answer Form: Dying Declaration can be made in the form of Question-answer. the
deceased, in some of her statement, did not state the actual part played by the appellant. She
merely answered the questions put to her. The court held that when questions are put
di erently then the answer will also appear to be di erent.

At rst glance, the detailed description of the o ence may appear to be missing but the
statement of the deceased construed reasonably. However, when the magistrate records the
dying declaration, it must be preferred to be recorded in the form of a question-answer must
be preferred. If there is nothing to doubt that the person who records the statement made by
the deceased exact word to word, would not make any di erence merely because the same
was not recorded in the form of question and answer.

Fitness of the Declarant should be examined: At the time of giving a declaration, the person who’s
making the statement must be in a t state of mind. If the court has the slightest doubt about the
mental soundness of the maker of dying declaration, it is unsafe and unfair for the base on such a
statement.

The mere fact that the victim in his dying declaration did not make any reference to injuries
received by the accused is not a genuine ground that decides the merit of dying declaration.
Where the dying declaration was recorded by the doctor who himself certi ed that the patient was
in a t condition for giving the statement, his non-mentioning that the patient was in a t mental
condition and throughout remained conscious would be of no consequence.

It is improper to reject the dying declaration on the ground that the tness of the maker depends
solely on the certi cate of the doctor and the magistrate himself did not require independently as
to whether the deceased was in a t state to make a dying declaration.

Who May Record the Dying Statement: Any person can record the dying declaration made by the
deceased, but the person who is recording the dying declaration must have some nexus with the
deceased either circumstantially or by some fact. However, the doctor or police o cer hold more
value as compared to the normal person. As far as the dying declaration is concerned the
magistrate entrusted to record the dying declaration, as the statement recorded by him is
considered more evidential rather than statement recorded by the doctor, police o cer and by the
normal person.

Requirements of Dying Declaration: According to section 32 clause (1) of Indian Evidence Act, the
requirement of dying declaration is as follows:

1. The statement made by the deceased may be oral or written. But in some cases it can be
made with sign and gesture depends on the condition of the deceased.

2. The statement must be as:

• Cause of death- when the statement is made by the person as to the cause of his death or
as to any of the circumstances of the transaction which was the reason for his death not
cover all the incident which are not relevant in order to determine the cause.

• Circumstances of the transaction- the statement made by the deceased is only related to
the circumstances of the transaction will result in the death of the deceased, remoteness or
having no nexus which can not be connected with the transaction have no value.

• Resulted in the death- the deceased statement should have the cause and circumstances
that will clearly reason for his death or ultimately result in his death.

Case Law Analysis:

Pakala Narain Swami v. Emperor Case:

The deceased was a man of about 40. He had been a peon in the dewan of Pithapur. Pakala
Narain Swami, the accused, was married to one of the daughters of dewan of pithapur. After
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 marriage pakalana narain swami and his wife went to live at Berhampur about 250 miles away
from pithapur. In the year of 1993, they came back to pithapur and where they stayed with the
dewan. They seemed at that time to have been in need of money, and during 1936 the wife of the
accused borrowed money from the deceased at various times an amount of Rs. 3,000.

On Saturday 18th March 1937, the deceased received a letter from the accused inviting him to
come that day or the next day to Berhampur. The deceased left his house in order to go there and
catch the train of Berhampur. He did not come back.

On 23rd March 1937, the body of the deceased was found in steel trunk in the third class
compartment at puri. The body has been cut into seven portions. The body of the deceased was
identi ed by his widow. The accused was tried and convicted for murder and was sentenced to
death.

During the trial, the widow of the deceased stated before the court that on the day her husband
showed her a letter and said that he was going to Berhampur as the appellant’s wife had written
to him to come and receive payment of his dues.

The lordship of the privy council held that the statement related to the circumstances of the
transaction which resulted in the death of the deceased so it was relevant. They also held that the
statement made by the deceased that he was proceeding to the spot where he was killed or as to
his reason for proceeding or that he was going to meet him would each of them be circumstances
of the transaction. However, circumstances must have some proximate relation to the actual
cause and must be related to the transaction which resulted in death.

For instance, in case of prolonged poisoning, they may be related to date at the considerable
distance from the date of the actual fatal date. It is not necessary that there should be a known
transaction other than the death of the declarant has ultimately been caused comes into question.

In the present case the cause of death comes into question, the transaction is one in which the
deceased was murdered on 21th march or 22nd march, the statement that he was setting out the
place where the accused lived and to meet a person, the wife of the accused, who lived together
with the accused’s appears to be clear statement as of some transaction which resulted in his
death.

Khushal Rao v. State of Bombay

1. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. A true & voluntary declaration needs no corroboration.

2. A dying declaration is not a weaker kind of evidence than any other piece of evidence;

3. Each case must be determined on its own facts keeping in view the circumstances in which
the dying declaration was made.

4. A dying declaration stands on the same footing as other pieces of evidence & has to be
judged in the light of surrounding circumstances & with reference to the principle governing
the weight of evidence.

5. A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, 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 su er from all the in rmities of
human memory & human character.

Exception of Dying Declaration: There are many circumstances in which the statement made by
the dying person is not admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death of the deceased. For
example, if a person in his declaration state anything which is not remote or having a
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 connection with the cause of death than the statement is not relevant and hence not be
admissible.

2. The declarant must be competent to give a dying declaration, if the declaration is made by the
child then the statement will not be admissible in court as it was observed in case of Amar
Singh v. State of M.P that without the proof of mental tness and physical tness the
statement would not be considered reliable.

3. The statement which is inconsistent has no value and can not be considered as evidentiary in
nature.

4. The statement made by the deceased should be free from any in uential pressure and should
be made spontaneous.

5. It is perfectly allowed to the court if they reject any untrue statement which contradicting in
nature.

6. If the statement is incomplete in the sense which means it can not answer the relevant
questions which are necessary to found guilty, and on the counterpart, statement deliver
nothing so it will not be deemed to consider.

7. Doctor’s opinion and the medical certi cate should with the statement and support that the
deceased is capable of understanding what statement he makes.

8. If the statement is not according to the prosecution. In this regard, the following points should
be taken into consideration by the apex court.

• While making the statement deceased must be in t mind of the state.

• Should be recorded by the magistrate or by a police o cer and person in a case when
deceased was so precarious.

• A dying declaration should be recorded in question-answer form and written in words of the
persons exactly who gives the statement.

Conclusion: The dying declaration is not speci cally mentioned in our penal law under Section
32(1) of IPC. it is the statement made by the person who is going to die, and that statement will
be considered as evidence in court, how his death caused and who is the mugger. There are
many conditions that relied upon the dying declaration that it should be in an adequate manner as
dying declaration is the weapon who convicted the accused and stood as strong evidence. The
admissibility of dying declaration accepted in our Indian court because the law presumes that in
Leterm Mortem i.e in his last parting words the man will never lie as anyone will meet his maker
with a lie on his lips. This is because a man who is going to die, end with all his needs and wants
and his interest is no more passionate for self deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the right to
reject the statement. Or there are other situations and circumstances which coupled with dying
declaration for its admissibility which discussed above.
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 Question 15: “Oral evidence must in all the cases
whatever be direct” Explain with exceptions.
Ans: Introduction: All of us know what importance evidence holds under any court proceedings.
Evidence is a certain reliable and relevant set of facts which proves or abstains from proving any
matter; there is a prescribed manner on which the cycle of evidence works which has been
divided into two main heads- Oral and Documentary evidence by the Evidence Act 1872.

In this article we will be dealing with oral evidence, how is it made and everything which will make
us understand Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence is
de ned under Section 3 (under evidence head) which explains that “All statements which the
court permits or requires to be made before it by witnesses, in relation to matters of fact under
inquiry, such statements are called as oral evidence.”

The word ‘Oral’ itself describes its meaning as something spoken or expressed by mouth; so
anything which is accepted in the court in relation to the inquiry and expressed by any witnesses
who are called in the trial is termed as oral evidence. Oral Evidence also includes the statements
made by people in signs and writing forms (inclusive of people who cannot speak).

Importance of Oral Evidence: Every evidence plays an important role in the trials, oral evidence
has been growing in regards to usage; as earlier it was not considered to be as precise and blunt
as documentary but its need and importance has been constantly subjected to rapid growth. Oral
evidence is also equally important as it stimulates a person and extracts what a person has seen
or what he wants to say in regards to the trial. Oral evidence is comparatively easier to refer.

Section 59 - Proof of Facts by Oral Evidence: All the facts and circumstances may be proved by
oral evidence by expressing or speaking except the contents of documents and electronic
records. The contents of documents and electronic records cannot be proved by oral evidence. It
is held that if any person has to be called for proving their documents then that document
becomes oral and documentary evidence loses its signi cance.

Bhima Tima Dhotre v. The pioneer chemical co:

“Documentary evidence becomes meaningless if the writer has to be called in every case to give
oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis,
all evidence must be oral and that oral evidence would virtually be the only kind of evidence
recognised by law. This provision would clearly indicate that to prove the contents of a document
by means of oral evidence would be a violation of that section.”

Section 60 - Oral Evidence must be direct: This is the cardinal principle of any evidence to be
admissible in the court. If any oral evidence needs to be admissible, all the conditions under
Section 60 of the Indian Evidence Act must be ful lled. If anyone of the following conditions is not
ful lled, then the evidence will fail to be pictured as an Oral Evidence. Oral evidence and section
60 is a proportional equation. For acting out one, the other needs to be ful lled.

The base principle on which section 60 is placed is that the evidence which is taken into regards
must be direct. The word direct does not include any category of hearsay as its main element is
vested in the word “must”. Every statement under oral evidence must be direct. Now let’s focus
on some conditions which need to be ful lled to make oral evidence admissible;

Direct Oral Evidence: Oral Evidence must be direct in all cases. Indirect ways or hearsay is not
considered a part of direct oral evidence. The word “Direct” in all matters must mean that it is
administered by any person on their own i.e through their personal knowledge and is not passed
by any other person (hearsay) which on the other hand will be inadmissible. This involves certain
cases in which the word “direct” is involved :-
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1. It refers to a fact which could be seen, it must be the evidence of a witness who says he saw it

It refers to evidence which has been given by the person who has actually seen or observed
the matter by their own eyes, This will be actuated as direct evidence.For example: if A saw
that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that of
direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it

It refers to evidence which has been given by the person who was present and has actually
heard the matter by themselves, this will come under direct evidence.For example: if A
overheard B’s conversation that stated; that he is going to kill C tomorrow under the bridge,
A’s testimony will be that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner, it must
be the evidence of person who says he perceived it by that sense or manner

Meaning such evidence that has been given by the person who has perceived it in any other
manner or by any other senses but it has been perceived by that person itself. For example:
through sense of smell or taste.

4. If it refers to an opinion or to grounds on which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds

It means when a person holds any opinion on any matter or incident, only his testimony on the
ground of which his opinion is formed will be admissible in the court.For example A thinks that
B is not a good guy, so his testimony of that opinion will be termed under direct evidence.

Hearsay Evidence: All of us are aware of what hearsay is; hearsay is any information which is
received by any person from any other source. Hearsay means when a person does not have a
personal knowledge about a particular matter or incident and he has been informed about that
particular matter by any other person.

As oral evidence includes rst-hand knowledge thus, Hearsay evidence is excluded under the
ambit of oral evidence because hearsay is not directly obtained evidence.

Rationale behind the exclusion of Hearsay Evidence: From the above head now we know that
Hearsay Evidence is second-hand knowledge. But why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of rst-hand knowledge. It only
includes what is directly seen, heard and perceived by a person. There is no room for second-
hand knowledge. A conviction passed on hearsay may be truly unjusti ed as there is no reliability
as to whether the person who has passed on the following information is credible enough or not.

For example: if A has received information through B that he saw C hitting D. This will be hearsay
because A himself has not administered the incident. For this reason, Hearsay has been excluded
from Oral Evidence.

Statement to witnesses by persons not called: There may be some cases in which witnesses may
not be called but their testimony is accepted and not treated as hearsay. In certain cases, such
statements may be admissible.

Opinions of experts which are embedded in things which are maintained for sale like books of
authors can be accepted as oral evidence when the author of the book is dead, cannot be found,
cannot come to the court for some reason or the court thinks that calling such person may be a
delay of proceeding, so any such statements shall be admissible.
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 Section 33 as an Exception to Section 60: Section 33 of Indian Evidence Act, 1872 basically gives
us a structure of exception to section 60, it has certain exceptions against rule of hearsay which
we will see below:

1. Res-gestae( derived from a Latin word meaning something deliberately undertaken or done)–
For example, if A sees B passing by him on a bike and after that he sees that B has been
injured but A has not administered the accident on his own, when A goes to B; B says that C
has hit him by truck, such statement though hearsay may be admissible.

2. Admission or confession- For example, A coming out of the court tells B his guilt of
committing murder of C, though hearsay but statement shall be accepted as evidence.

3. By any reason the person cannot come to the court if he is dead, cannot be found, is
incapable of coming to court; every such information which has been passed to the other
person and that person giving the testimony in the court shall be held admissible.

Di erence Between Oral and Documentary Evidence

Basis Oral Evidence Documentary Evidence

Meaning Oral evidence is the evidence given by Documentary evidence, on the

witnesses who are called in the court in regards other hand, is the evidence
to the trial orally. which is submitted in the court
in written form including
documents, papers etc.
Legally Oral evidence is mentioned under section 59 Documentary evidence is dealt
De ned and 60 of the Indian Evidence Act. from section 61 to 66 of the
Indian Evidence Act.
Types Oral evidence should be given direct form. Documentary evidence has
direct documents and
secondary documents.

Forms of Oral evidence can be given through speaking, Documentary evidence must
Submission signs or gestures be given in writing.

Case laws: State v. Rajal Anand:

It was held under this case that section 60 of the Indian Evidence Act only includes the word
“direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence does
not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae has been
observed as an exception to the rule of hearsay which explained that any person who has
experienced any series of relevant facts, his testimony after the incident even if he has not seen
the crime being committed will be accepted.

Amar Singh v Chhaju Singh And Anr.

A relationship between section 50 and 60 of Indian Evidence Act has been established which says
that for proving an evidence completely, two things shall be ful lled rstly, there shall be a
presence of relevant facts and those facts have been presented directly by the person who has
either seen them, heard them or etc.

Conclusion: On concluding the article, oral evidence, with its increasing approach can be
appropriate for passing judgement if proved beyond a reasonable doubt. Earlier it was seen to be
weak evidence but its need has been growing in modern times. In my opinion incidents and facts
can be better understood through oral ways as the person who has administered the incident
itself can explain it in a more clear way rather than documentary form of evidence.
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 Question 17: Explain the relevance of character
evidence in civil and criminal cases

Ans: Introduction: We often term the habit of judging people based on their character as normal
human nature. Judges are also human beings and the question that arises is, doesn’t to know
about the character of an individual in uence their decision? The next set of questions that arise
are, does the character have relevance, especially under the Indian Evidence Act? What is the
scope of relevance of character?

The word ‘Character’: The term ‘character’ has not been described in Indian law. The Cambridge
dictionary de nes conduct as a particular combination of qualities that make a person di erent
from others. Honesty, good-natured, modest, violent temper, etc. are all traits of character.

Section 55 of the Indian Evidence Act provides that the term ‘conduct’ includes both reputation
and disposition. It is normally established that reputation is the general opinion about an individual
in the eyes of the others whereas disposition is how that person is in real and what are his
inherent qualities.

Evidence of character is irrelevant in civil cases

Section 52: The Indian Evidence Act provides that in civil cases, a fact pertaining to the character
of an individual is not relevant. It lays the principle that the character of a party as a piece of
evidence can’t be used to manifest that conduct attributed to him is probable or improbable.

Illustration-

• ‘A’, a businessman is charged with fraud.

• In this case, no evidence of the fact can be treated as relevant which states that he is an
honest man i.e. the character is such that he can never commit fraud.

• Neither can the opposite party present evidence of the fact that A’s character had been so
trickery that he must have committed the fraud.

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

There are a few exceptions to Section 52-

• Section 55 of the Evidence Act provides that in civil cases, evidence of the good or bad
character of the person that is to receive the amount of damages is relevant. The character
of the original plainti is relevant.

For example- In a case of the action of damages for rape or seduction, the character of the
plainti is relevant as it is likely to a ect the damages that the plainti ought to receive.

• When the character of the party is itself a fact in issue then the evidence pertaining to the
character of that party is relevant.

For example- if divorce is sought on the ground of cruelty of husband, in such case
evidence pertaining to the character of the husband will be relevant as the cruel character is
itself a fact in issue.

Evidence of previous good character is relevant in criminal cases: Section 53: Unlike civil cases
where the character is irrelevant, in criminal cases it is relevant. Section 53 of The Indian Evidence
Act provides that in criminal cases, the good character of the accused person is relevant. The
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 reason behind this is the basic human psychology that a person of good character will not
generally resort to a criminal act. If goodness is proved it helps in a presumption of non-
commission of the o ence by that individual.

Evidence of good character is always admissible. In a doubtful case, it may be used to tilt the
balance in favour of the accused but in a case where there is positive evidence of guilt of the
accused then the good character cannot outweigh the positive evidence. It depends on the
discretion of the court that how much weight the evidence of the good character has to be given
while deciding the case.

Habeeb Mohammad v. State of Hyderabad:

The Supreme Court held that in criminal proceedings, the character of the accused can help in
determining the innocence or guilt of the accused. It can help in either making him suspicious or
free from all the suspicions. Accused is allowed to prove general good character in the question
of punishment.

Previous bad character not relevant, except in Reply:

Section 54: The Indian Evidence Act, evidence pertaining to the fact that the accused has a bad
character is not relevant in criminal cases. In other words, the prosecution cannot present
evidence of the accused’s bad character as a part of the main case.

There are certain exceptions to this section-

• When the accused has submitted any evidence of his good character, in such a case to
rebut, the prosecution can present evidence pertaining to the bad character of the accused.

• Explanation 1 to Section 54 provides that when the character is itself a fact in issue then
evidence of bad character can be submitted.

Illustration: In a defamation case, the character of the plainti becomes a fact in issue. Section
110 of the Code of Criminal Procedure provides that if a person is by habit a robber, a
housebreaker, etc. then he is to be bound down.

Character as a ecting Damages Section 55: Indian Evidence Act states that in cases of civil
nature, the character of the person who is ought to receive the amount of damages is relevant.
This section is an exception to Section 52 mentioned above. The evidence pertaining to the good
or bad character of the accused is irrelevant whereas evidence of the good or bad character of
the victim is relevant.

For instance, in cases of seduction or rape or defamation, the evidence of the good or bad
character of the original plainti is relevant to decide the amount of damages that the plainti is
ought to receive. This is generally used to reduce the amount of damages.

Explanation of this section states that the term character which is used in sections 52, 53, 54 and
55 includes both reputation and disposition.

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

qualities which he had obtained through education, upbringing or any material condition in
life is called disposition. A bad reputed person may have a good disposition.

• Reputation is often referred to as the general estimation of a person. It is what other people
think about that individual. It is to be noted the evidence of those who do not know the
individual but have heard of his reputation is not admissible in court.

Illustration: In the show ‘Suits’, the character Harvey Specter had a reputation of an arrogant and
sel sh individual whereas he had a disposition of a highly con dent, self-motivated, practical
thinker and focused individual. Both of these things combinedly de ned the character of Harvey
Specter.
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 Distinction Between Relevancy of character in Criminal and Civil Cases:

In order to di erentiate the rst thing to note is that the Indian Evidence Act talks about two types
of characters- good and bad character.

In cases of civil nature, the evidence pertaining to character is irrelevant as per Section 52 of the
Evidence Act. There are two exceptions to this rule: rst, when the character of the party is a fact
in issue then evidence of character is relevant and second, the character of the person who ought
to receive the amount of damage is relevant(Section 55).

Whereas in cases of criminal nature, the previous good character of the accused person is
relevant(section 53) but the previous bad character is not relevant(section 54). Evidence of the
bad character of the accused is relevant in two cases: rst, to rebut the evidence of good
character presented by the prosecution and second, when the character of the party is itself a
fact in issue.

Case Laws: Bharpur Singh v. Parshotam Dass:

In this case, the Court described the scope of sections 52 and 54 of the Indian Evidence Act. This
case was led to resist an action for recovery brought on a promissory note. While deciding the
scope of Section 52, the Court observed that this section refers to a situation where evidence of
character is relevant in a civil case. Normally any evidence of character cannot render the
probability or improbability of any conduct and is irrelevant in civil cases. If the character is a fact
in issue then evidence of character is relevant.

Section 54 observed that previous bad character can be relevant only in case of rebuttal to good
character evidence or when the character is a fact in issue.

Sardar Sardul Singh Caveeshar v. State Of Maharashtra:

This case is also referred to as the Empire Conspiracy Case. The Court answered the question of
what is the evidentiary value of the character of an accused in a criminal case. It observed that
Section 53 mentions that the good character of the accused is relevant in cases of criminal
nature.

Section 55 of the Act makes it clear that general reputation and general disposition in criminal
cases are relevant. The Court also explained the di erence between reputation and disposition. It
stated that disposition is ‘inherent qualities of a person’ whereas reputation is ‘general credit of
the person amongst the public’.

A man may have a good reputation but in reality, may have a bad disposition. The value of
evidence depends on the cleverness of the person to hide his real traits, and the witness’s
opportunity to observe the accused.

The court quoted Wigmore’s proposition which stated that evidence can be used in a doubtful
case to tilt in favour of the accused but it can’t outweigh a piece of evidence which shows the
guilt of the accused. Evidence of good character is a weak evidence but can be used in criminal
cases.

Conclusion: It is concluded that according to the Indian Evidence Act, in civil cases, the evidence
pertaining to character isn’t relevant subject to certain exceptions. In criminal cases, the evidence
pertaining to good character is relevant but evidence depicting the bad character isn’t relevant
subject to certain exceptions. Various countries like the USA, UK and many more also deal with
the relevance of character as evidence.
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 Question 18: What are presumptions? Dowry Death
Ans: Introduction: Presumption generally means a process of ascertaining few facts on the basis
of possibility or it is the consequence of some acts in general which strengthen the possibility and
when such possibility has great substantiate value then generally facts can be ascertained. A
presumption in law means inferences which are concluded by the court with respect to the
existence of certain facts. The inferences can either be a rmative or negative drawn from
circumstance by using a process of best probable reasoning of such circumstances.

The basic rule of presumption is when one fact of the case or circumstances are considered as
primary facts and if they are proving the other facts related to it, then the facts can be presumed
as if they are proved until disproved. Section 114 of Indian Evidence Act speci cally deals with the
concept that ‘the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human conduct, and
(c) public and private business, in their relation to the facts of the particular case’.

Di erence between May Presume Shall Presume and Conclusive proof:

1. May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
con rm or recon rm the presumption set by the court in its discretion. Section 4 of the Indian
Evidence Act provides that a fact or a group of facts may be regarded as proved, until and
unless they are disapproved. The concept is de ned under Section 4 of this act that ‘May
Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.

2. Shall Presume denotes a strong assertion or intention to determine any fact.Section 4 of

Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any
discretionary power in the course of presumption of ‘Shall Presume’, rather the court has
presumed facts or groups of facts and regard them as if they are proved until they are
disproved by the other party.

Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be
called ‘Presumption of Law’ or ‘Arti cial Presumption’ or ‘Obligatory Presumption’ or
‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.

3. Conclusive Proof can be considered as one of the strongest presumptions a court may
assume but at the same time the presumptions are not completely based on logic rather court
believes that such presumptions are for the welfare or upbringing of the society.

With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs
contrary to the presumption which means if the facts presumed under conclusive proofs
cannot be challenged even if the presumption is challenged on the basis of probative
evidence.

This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of
the Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions
related to the irrefutable form of presumptions or Conclusive Presumption.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later
he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable
for paying damages either to his wife or to his illegitimate son. And also explains that he never
consumed his marriage as just after one day of marriage he left his home for his work.

But in this case, the court will conclusively presumed that the son born out of his wife is legitimate
because he was with his wife for at least 1 day and shall not allow any proof contrary to the
conclusive proof even if he provides probative evidence.

General Classi cation of Presumption: The traditional approach of common law system has
classi ed presumption only under two categories that are a presumption of law and presumption
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 of facts but to avoid any ambiguity in deciding any case the Indian legal system has adopted the
third classi cation that is mixed presumptions which includes both the aspects of facts as well as
law. Hence the existing legal system has three types of presumptions which are as follows:

1. Presumption of facts: These inferences that are naturally and reasonably concluded on the
basis of observations and circumstances in the course of basic human conduct. These are
also known as material or natural presumptions.

Natural Presumptions are basically instances of circumstantial evidence as it is believed that it

is very good to act in the course of reasoning where much inferences can be easily concluded
from other evidence otherwise it will keep much ambiguity on the legal system because it will
be much more di cult because of the legal system to prove every fact to capture the
o enders or law con icted member of the society. Natural Presumptions are generally
rebuttable in nature.

a. Foreign Judicial Records: Section 86 explains the principle that the court has the discretionary
power to make presumptions with respect to the originality and accuracy of the certi ed
copies of a di erent foreign country’s judicial records and the called document should be
consistent with the local or domestic rules.

The presumption explained under this Section has a very signi cant role, therefore, should be
complied with it. It is also observed that if the court does not feel that the foreign judgments
are not consistent with the local laws then these judgments lose the evidentiary values in the
court.

b. Abetment as to Suicide by Married Women: Section 113A deals with the presumptions of
abetment of suicide of a married woman either by her husband or any of his relatives. The
court has mentioned few essentials to check that whether a suicide executed by married
women is inconsistent with the essentials mentioned under the provision, and if they are
consistent to it then the court in such cases will presume that such suicide has been abetted
either by the husband or his relative. The essentials of this provision are:

i. The incident of suicde was committed within a period of seven years form the date of her
marriage; and

ii. Her husband or his relative, has subjected her to cruelty as according to the Section 498A of
IPC.

Chhagan Singh v State of Madhya Pradesh:

The victim was badly beaten by the accused at some place and for such guilty act the
accused explains the reasons that the victim was stealing rice and because of it, he has
beaten the victim. But just after the few days of the incident victim committed suicide.

The court in this matter acquitted the accused or discharged the accused of o ence
mentioned under Section 113A of Indian Evidence Act as the court didn’t nd any evidence
subject to cruelty and also mentioned that the essentials of Section 113A are not ful lled with
the facts of the cases, hence in the case of murder legal presumptions of Section 113A is not
a part of it.

Because the death of the person is caused due to other reasons and the legal principles of
113A cannot be just applied blindly as one has to see the nexus of it. The advantage of the
presumption of Section 113A can only be granted if either her husband or any of his relative
has treated the women with cruelty in any sense.

c. Abetment of Suicide to married Women for the purpose of Dowry: Section 114B of the Act
deals with the principles of presumption related to abetment of suicide to married women for
the purpose of dowry. This Section empowers the court to presume that the husband and his
relative are the abettors of suicide and the wife was subjected to cruelty or any torture related
to demand of dowry. While explaining the concept of Section 113B the court explains certain
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 essentials which are to be ful lled for raising any presumption related to abetment of dowry
death. The essentials of Section 113B are completely the same as of essentials of Section
113A of Indian Evidence Act.

But a thin line di erence between Section 113A & 114B is that the presumption of Section
114B only comes to the picture if the prosecution has certain proofs that the cause of death
was cruelty or maltreatment or harassment for dowry demand. Hence, under this Section, the
presumption is carried only when the prosecution proves the case.

Hem Chand v State of Haryana:

The couple married on 24 May of 1962. The wife left her husband’s home just after 2 months
of her marriage and explained the reason to her parents that her husband is demanding for a
TV and a refrigerator. After listening to such demands her father out of his hard money gave
her around Rs. 6,000 and she left for her matrimonial home.

But the husband’s desire was not nishing and he again asked her to get twenty- ve thousand
rupees from her home as he is willing to buy some real estate property. Thereafter the
accused took his wife to her parents’ home and said that he’ll take back her only if he will be
paid Rs. 25,000. One year after she came back to her matrimonial home with Rs. 15,000 and
promised the balance amount will be paid soon.

But on the same day, she died of strangulation in her husband’s home. The trial court and
both Supreme Court found accused to be guilty and convicted on carrying the presumptions
that her husband has performed cruelty against her and the reason for her death could be the
husband’s cruelty for the purpose of dowry.

2. Presumption of Law: Presumptions of law are such inferences and beliefs which are
established or assumed by the law itself. It can further be divided into rebuttable
presumptions of law and irrefutable presumptions of law.

Rebuttable Presumptions: Rebuttable Presumptions are certain presumption which is

regarded as evidence of good quality and does not lose their quality until proven contrary to
the presumption.

Although it does not easily measure the extent of such presumption as their validity only exists
until they are not proven wrong. The basic example of rebuttable presumptions can be- if a
person who is in possession of some stolen property than it is quite obvious that he can either
be a thief or a receiver.

Matrimonial o ences are one of the best examples to explain any presumption because in
such o ence the possibility of getting evidence is nearly low as these o ences that take place
within the closed area of matrimonial house.

Hence the presumption is very important in such cases/o ences. There are broadly three
important provisions regarding the presumption in matrimonial o ences which are:

• Presumption as to abetment of suicide by a married woman within seven years of marriage

covered under Section 113A of Indian Evidence Act.

• Presumption as to dowry death within seven years of marriage covered under Section 113B of
Indian Evidence Act.

• Birth during the marriage is the conclusive proof of legitimacy covered under Section 112 of the
Indian Evidence Act.

Shantiv. State of Haryana:

The in-laws of the bride did not allow her to visit her maternal house to meet her parents, and
when the bride’s parents came to meet her they were not permitted to enter the house and
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 complained to them about the amount of dowry that the demand of scooter & TV was not
ful lled. Soon after the incident, the wife of the accused su ered an unnatural death.

The Supreme Court allowed the presumption stated under Section 113B of Indian Evidence Act
as the death was caused within seven years of marriage and that too just after such incident
prohibited under this Act, and on the basis of applications of this Section one of the in-laws
was convicted for causing dowry death.

Ir-rebuttable Presumption (praesumptio iuris et de iure)- Such presumptions cannot be ruled out
by any additional probative evidence or argument. Therefore the presumption explained comes
under the roof of conclusive presumption which cannot be proven contrary. Eg. A child under
the age of seven years is presumed that he is not capable of committing any crime.

- Few Conditions Where Court May Use the Presumption of Law To Ascertain Some Facts:
1. Presumption of Innocence: According to this legal maxim, the burden of proof is with the
person who declares the facts, not the person who denies the fact. The presumption of
innocence is the legal principle which means every person should be considered as an
innocent person unless it is proven guilty or until court believes that the person is in charge of
acts prohibited under law.

Dataram Singh v. State of Uttar Pradesh & anr.:

The Supreme Court said that a person should be presumed and believed to be innocent
unless proven guilty.

2. Birth During Marriage: Section 112 of the Indian Evidence Act deals with the legitimacy of a
child born during the marriage. The Section implies that if a child is born during the
continuance of a valid marriage between the couple then it is conclusive proof of that the child
is legitimate and the only ground which is available to either of the parties to prove the
illegitimacy is to prove any access to each other in such a way that their marriage was not
consumed. The main objective of the lawmaker institute is to provide legitimacy to the child
born during a valid marriage and the legislature also explains that such presumption is not
only limited to provide legitimacy to the child but also it is to maintain the public morality so
that the legitimacy of the child cannot be questioned.

It must be noted that the application used under the Section 112 derives from Section 4 of the
same Act and must be read together to understand the general applicability Section 4 which
expresses that wherever there is a doubt of the legitimacy of children born during a valid
marriage the court will presume, fact that the person whom the mother married the father of
that child. Hence to achieve the objective of the legislature the court must assume it to be a
case of ‘conclusive proof’. Just like all laws, no law is absolute therefore the legitimacy of such
a child can only be rebutted the party proves no non-access to each other or if no marriage
was consumed. Which means even the DNA test other such tests are not capable of
disproving the presumption.

3. Mixed Presumptions of fact and law: Mixed presumptions is a blend of di erent concepts
explained above in this article. When the court in its inferences uses such blend consists of
di erent classi cation of presumption i.e., Presumption of Facts and Presumption of Law then
the presumption is considered to be a Mixed Presumption.

Conclusion: Presumption can e ectively help the judiciary in providing quick and complete
justice to the society. According to Stephen presumption is mandatory, not permissive
presumption and especially permissive is dealt in Section 90 of the evidence act. Permissive
presumption means it is on the court discretion whether to believe or not to believe.
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 Question 19: What are presumptions? Explain the
presumption in Rape Cases.
Ans: Introduction: Presumption generally means a process of ascertaining few facts on the basis
of possibility or it is the consequence of some acts in general which strengthen the possibility and
when such possibility has great substantiate value then generally facts can be ascertained. A
presumption in law means inferences which are concluded by the court with respect to the
existence of certain facts. The inferences can either be a rmative or negative drawn from
circumstance by using a process of best probable reasoning of such circumstances.

The basic rule of presumption is when one fact of the case or circumstances are considered as
primary facts and if they are proving the other facts related to it, then the facts can be presumed
as if they are proved until disproved. Section 114 of Indian Evidence Act speci cally deals with the
concept that ‘the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human conduct, and
(c) public and private business, in their relation to the facts of the particular case’.
Di erence between May Presume Shall Presume and Conclusive proof:

1. May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
con rm or recon rm the presumption set by the court in its discretion. Section 4 of the
Indian Evidence Act provides that a fact or a group of facts may be regarded as proved,
until and unless they are disapproved. The concept is de ned under Section 4 of this act
that ‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.

2. Shall Presume denotes a strong assertion or intention to determine any fact.Section 4 of

Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have
any discretionary power in the course of presumption of ‘Shall Presume’, rather the court
has presumed facts or groups of facts and regard them as if they are proved until they are
disproved by the other party.

Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also
be called ‘Presumption of Law’ or ‘Arti cial Presumption’ or ‘Obligatory Presumption’ or
‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.

3. Conclusive Proof can be considered as one of the strongest presumptions a court may
assume but at the same time the presumptions are not completely based on logic rather
court believes that such presumptions are for the welfare or upbringing of the society.

With regards to Conclusive proofs, the law has absolute power and shall not allow any
proofs contrary to the presumption which means if the facts presumed under conclusive
proofs cannot be challenged even if the presumption is challenged on the basis of probative
evidence.

This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113
of the Evidence Act and S. 82 of the Indian Penal Code are one of the most important
provisions related to the irrefutable form of presumptions or Conclusive Presumption.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months
later he discovered that her wife is pregnant he divorced the wife and challenges that he is
not liable for paying damages either to his wife or to his illegitimate son. And also explains
that he never consumed his marriage as just after one day of marriage he left his home for
his work.

But in this case, the court will conclusively presumed that the son born out of his wife is
legitimate because he was with his wife for at least 1 day and shall not allow any proof
contrary to the conclusive proof even if he provides probative evidence.
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Section 114-A: Section 114-A of the Indian Evidence Act lays down that there will be a
presumption of absence of consent in certain instances of rape cases. It says that if rape has
been committed under any of the clauses of sub-section (2) of Section 376 of the Indian Penal
Code, and the woman states in her evidence that she had not given consent, the court shall
presume that the woman did not consent.

History of Section 114: The Mathura Rape case was the reason behind the insertion of this
section. The decision of the Supreme Court, in this case, was widely ridiculed in the country.
Thus, the government decided to revamp the laws and it passed the Criminal Amendment Act,
1983. Let’s delve further into this case.

Herein, a girl named Mathura ed with her boyfriend Ashoka. Her family registered a complaint
against her boyfriend. The girl, her boyfriend, her brother Gama and other relatives were called to
the police station to settle the matter. The investigation was completed and everybody was asked
to go back.

But Mathura was asked to stay back. It was alleged that a police constable Ganpat took Mathura
to a chhapri and raped her. After he had satis ed his lust, another policeman Tukaram came there
and fondled her private parts.

The case went to the Sessions Court which held that the policemen were not guilty. They said that
Mathura might have invented the story. The High Court took a di erent stance on the case. It said
that mere passive surrender of the body would not amount to consent on the part of the plainti .
The Court commented that the overtures might have come from the policemen themselves and
not from Mathura.

Further, on appeal, the Supreme Court overturned the decision of the High Court. It held that she
submitted her body to the policemen as she did not resist. The Hon’ble Court said that the “onus
is always on the prosecution to prove a rmatively each ingredient of the o ence it seeks to
establish and such onus never shifts.”

The judgment was criticized and there was an uproar in the country. Gender-based violence came
to the forefront and it was at that time Section 114-A was inserted in the Indian Evidence Act. It
was substituted by the Amendment Act of 2013 and then recently by the Amendment Act of 2018.

Case Laws: The courts have tried to de ne ‘consent’ and have also tried to explain that if there is
evidence, the presumption cannot negate that evidence outrightly. Let us discuss some important
rape cases to understand these concepts.

Rachna Singh v. NCT of Delhi:

Herein the accused of raping a woman was acquitted by the Trial Court. Aggrieved by this
decision of the Trial Court, the victim knocked at the doors of the Delhi High Court saying that
there is a presumption of guilt under Section 114-A of the Indian Evidence Act.

The High Court rejected this averment and said to prove the presumption of guilt under Section
114-A one needs to rst prove that there was sexual intercourse. As the conduct of the woman
was itself tainted in this act as she refused to undergo an internal examination as well as she
made a number of calls to the accused from time to time.

The Court held that as her conduct did not match her allegations, and no sexual intercourse could
be proved therefore the accused cannot be held guilty.

State of Rajasthan v. Roshan Khan:

In this case, a girl was kidnapped by six boys and then was raped. She said that she did not
consent to sexual intercourse. As the sexual intercourse was proved in this case, the Court
applied the presumption of guilt factor and the boys were jailed.
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Burden of Proof under the POSCO Act:

Under the Protection of Children from Sexual O ences Act, 2012 (POCSO), the burden of proof is
on the accused himself. The concept of ‘guilty until proven innocent’ is followed under this Act.
Section 29 of the POCSO Act lays down “When a person is prosecuted for committing an o ence
of sexual assault against a minor, the special court trying the case shall presume the accused to
be guilty.”

As the conviction rate of the accused was lower in the sexual o ences against children, the
legislature shifted the burden of proof on the accused so as to ensure justice.

A recent judgment of the Jammu and Kashmir High Court held that the burden of proof is on the
accused even after the pre-trial stage.

Badrinath v. Union Territory of J&K (2020):

The High Court took the opposite decision to the Delhi High Court, which held in the case of
Dharmander Singh v. State (Government of NCT of Delhi) (2020), which maintained that the
presumption of guilt against the accused under Section 29 of the POCSO Act can only be
adopted by the court on the commencement of the trial. The onus shifts on the accused as it is
shifted under Section 114-A of the Indian Evidence Act.

Conclusion: Justice should be of paramount importance. Our judiciary and legislature ensure the
same by adopting such laws which live up to the spirit of the constitution. The conviction rates
under anti-rape laws were getting low and justice was not being ensured.

Therefore amendments were made to the Indian Evidence Act. The onus which was usually on the
victim has now shifted to the accused in the cases of rape. The POCSO Act is also a special Act
when it comes to the protection of children against sexual o ences. The onus here too is on the
accused.

The legislature is trying to solidify the anti-rape laws and shifting the onus of proof on the accused
is just a step of that e ort.
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 Question 20: De ne burden of proof. On whom does it
lie? Explain.
Ans: Introduction: The term ‘Burden of Proof’ means when a person states something and
considers it to be fact he or she needs to prove the statement made by him. This is an important
concept integrated in the Indian Evidence Act, 1872. The concept of burden of proof is explained
in Chapter VII of the Indian Evidence Act, 1872.

Section 101 of Indian Evidence Act: “Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that those facts
exist. When a person is bound to prove the existence of any fact, it is said that the burden of
proof lies on that person.”

The section states that if someone is desirous of obtaining a judgement or an order from the
courts or authorities upon some facts which he thinks are true and correct that he is required to
prove the same. Whoever is required to prove the said fact it is said that the burden of proof lies
on that person. The following examples will help for understanding this concept better:

• If Ram is of the opinion that Shyam has committed a crime and that he must be punished
for the same, then it is upon him to prove that Shyam has committed the said crime.

• Rita is of the opinion that a certain land belongs to her but Sita has occupied the same
stating it is her land. If Rita decides to le a suit and obtain a decree stating that the land
belongs to her then she is required to prove the same to the court. Hence, here the burden
of proof is on Rita.

Section 102 of Indian Evidence Act: “On whom burden of proof lies.—The burden of proof in a suit
or proceeding lies on that person who would fail if no evidence at all were given on either side.”

This section states on whom does the burden of proof shall lie. In a case or a suit, the burden of
proof usually lies on the person who will su er if the same is not proved. This means that it is
necessary for a person to prove his case since he was the one who has led a complaint/suit.
Person ling such complaint or suit will have to bear the loss if he/she is unable to convince the
court with the facts that they are stating. Illustration:

• Sunil has led a case stating that the land which is in possession of Anil belongs to him.
Here, the burden of proof is on the one who will su er if he/she does not prove the fact.
Hence, if Sunil does not prove that the land belongs to him then Anil will continue to have
possession of the land and Sunil will su er by losing his land.

Section 103 of Indian Evidence Act: “Burden of proof as to particular fact.—The burden of proof
as to any particular fact lies on that person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact shall lie on any particular person.”

This section mainly talks about the burden of proof in relation to a particular incident or fact. If a
person wishes that the court should believe the existence of a particular fact then it is upon him to
prove the same. In simple words it means that if a person wishes the court to believe the story
that he/she has narrated then he/she will require to prove the same to the court. Illustration:

• Chirag says that at the time of his neighbour’s murder he was not at home and was at his
uncle’s place. In this case it is upon Chirag to prove that he was at his uncle’s place.

Section 104 of Indian Evidence Act: “Burden of proving fact to be proved to make evidence
admissible.—The burden of proving any fact necessary to be proved in order to enable any
person to give evidence of any other fact is on the person who wishes to give such evidence.”

This section states that the burden of proof to prove a fact so that he can prove another fact or
provide another evidence lies on the person who wishes to prove that another fact. This means
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 that if a person wants to produces certain evidence or prove something else which will require
him/her to prove another set of fact or statement then he/she will be responsible to prove both of
them. Illustrations:

• Nita states that Anita has made a dying declaration. In order to prove that Anita has made a
dying declaration Nita will have to prove that Anita is dead. Hence, the burden of proof for
both the fact lies on Nita.

Section 105 of Indian Evidence Act: “Burden of proving that case of accused comes within
exceptions.—When a person is accused of any o ence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Indian Penal Code,
(45 of 1860), or within any special exception or proviso contained in any other part of the same
Code, or in any law de ning the o ence, is upon him, and the Court shall presume the absence of
such circumstances.”

This section states that the burden of proof lies on the accused in case where he states or
defends saying that it falls under one of the exceptions. When a person is accused of an o ense
and the person pleads that there existed a circumstance then he has to prove the same. During
such times it is presumed by law that there was absence of any such circumstance. Illustration:

• Mr. Shetty is accused of murdering Mr. Gulati. Mr. Shetty pleads that it was not murder but
self defense as Mr. Gulati was about to shoot him with his gun, then the burden of proof is
upon Mr. Shetty to prove that upon grave and sudden provocation Mr. Shetty in his self
defense killed Mr. Gulati.

Burden of proof in case of Civil Cases: When a person les a civil proceeding, it contains two
things within it. The rst one is the facts of the case and the second one being the legal reason.
The burden of proof in such cases is upon the person who les such civil suit known as the
plainti .

This means that if the plainti is unable to provide evidence and proof or is not able to convince
the court that the facts are in existence or are true then even if the Defendant does not o er any
defense or states anything he will win the case. Therefore, in such cases the defendants usually
try to harm the plainti ’s case in some way or the other rather that positively proving their side.

Burden of proof in case of Criminal Cases: Generally, the most important rule is that a person is
innocent until proven guilty. Hence, it is the duty of the prosecution to convince the court the
accused has committed a crime which means that the burden of proof lies upon the prosecution
mainly. The burden of proof may change if and when the accused claims one of the exceptions to
the crime, claims or states something.

In this case the burden of proof shall then lie upon the accused to prove such exception or claim.
It is necessary for the prosecution to prove their case beyond reasonable doubt which means that
the burden of proof upon the prosecution is quiet heavy and thus the accused or the defendant
gets a good advantage.

Case Laws: M.S. Reddy Vs State Inspector of Police, A.C.B., Nellor: Preliminary burden of
proof falls upon the prosecution

In the above case it was held that the preliminary burden of proof falls upon the prosecution. It is
unfair on the part of the defendant to be the one bearing the burden and it is important for the
prosecution to establish its case upon its own ndings. It gives an undue advantage to the
prosecution if the defendants place their evidence rst as this will only give a chance to the
prosecution to poke holes and use strategies to get through things.

Savithri Vs Karthyayani Amma: Each party had to prove their allegations

In this particular case there was a question of execution of a will and it being executed by
coercion. The court held that each party had to prove its allegations which means the one alleging
that the will was executed by coercion has to prove the same.
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 Special Development Area Vs Pooran lal: Burden of proof lies on the complaining authority

In the present case a complaint was lodged stating that the person was carrying out unauthorized
construction. A suit was led upon which the court held that the burden of proof lies on the
complaining authority and that it is for him to prove that the land belongs to him and that he is
carrying out unauthorized construction.

Prakash Chandra Vs Managing director, ORTCO: It is upon him to prove the existence of the
fact

This is a case where a person had led a claim against the nationalization of the roads. In this
particular claim the court held that if the person thinks show then it is upon him to prove the
existence of the fact that it is not in the interest of the nation for road to get nationalized.

Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors.– Burden of proof in
relation with the electronic evidence being authentic and correct is upon the person
producing the same

In this case the evidence was provided in electronic format. There was a question regarding the
authenticity of the same. In the present matter the court held that the burden of proof in relation
with the electronic evidence being authentic and correct is upon the person producing the same.
The electronic document submitted is proving the fact that it was brought forth for shall also be
taken care by the person upon who the burden of proof in relation with the electronic evidence
lies.

Conclusion: The Indian Evidence Act, 1872 has explained the entire aspect in regard with burden
of proof. Burden of proof varies in civil and criminal matters as their needs and requirements. The
main principle is that a person who claims reliefs or any such orders or judgement from court, the
burden of proof falls on that person unless the law speci cally requires the other person to prove
the fact’s existence or lead evidence.

A person is deemed to be innocent until he is proven guilty by the court. Therefore, it is upon the
Plainti to prove that the person has committed the o ense.

Recently, the courts are receiving evidence majorly in electronic form. The sections are yet not
that clear upon burden of proof with regards to such electronic evidence and proving the
authenticity of such electronic evidence produced in the court.
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Question 21: De ne Estoppel. Explain the various kinds
of Estoppel.
Ans: Introduction: Dealt from Section 115 to 117 of the Indian Evidence Act, 1872 Doctrine of
Estoppel is that provision which prohibits a person from giving false evidence by preventing them
from making contradicting statements in a Court of Law.

The objective of this doctrine is to avert the commission of fraud by one person against another
person. This doctrine holds a person accountable for false representations made by him, either
through his words or through his conduct.

Meaning of Estoppel: Section 115 of the Indian Evidence Act, 1872 incorporates the meaning of
estoppel as when one person either by his act or omission, or by declaration, has made another
person believe something to be true and persuaded that person to act upon it, then in no case
can he or his representative deny the truth of that thing later in the suit or in the proceedings. In
simple words, estoppel means one cannot contradict, deny or declare to be false the previous
statement made by him in the Court.

Illustration: If Mr.T is an employee of company XYZ but in court, he denies to be an employee of

that company, then, later on he could not claim the salaries and emoluments from that company.

Conditions for application of Doctrine of Estoppel:

The following conditions are to be satis ed in order to apply the doctrine of estoppel:

1. The representation must be made by one person to another person.

2. The representation made must be as to facts and not as to the law.

3. The representation must be made as to an existing fact.

4. The representation must be made in a manner which makes the other person believe that it is
true.

5. The person to whom the representation is being made must act upon that belief.

6. The person to whom the representation would be made should su er a loss by such
representation.

Types of Estoppel:

1. Estoppel by a matter of Record or Quasi-record: Alike res judicata once a court has given the
judgement, the parties, their representatives, their executors, etc. all are bound by that
decision. This doctrine stops the parties to a case, from raising another suit in the same
matter or to dispute the facts of the case after the decision has been made by the court.

Situations where estoppel by record or quasi record arises are as follows:

a. Where the dispute between the parties on the facts have been decided upon by the tribunal
which was entitled to take decision in the particular case, and when the same dispute arises
again in the matter subsequent to the rst one, between the same parties;

b. Where the issue raised between the parties which has been resolved by the judiciary,
incidently comes again into question in the subsequent proceedings between the same party.

c. Where an issue raised on the facts, a ecting the status of the person or thing, has been willing
determined in a manner that in the nal decision it be included as a substantive part of the
judgment in rem of the tribunal that has been setup to decide the particular case.
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 This should take place when the same issue comes directly in question in subsequent civil
proceedings between any party whatever.

For example, if Nano has been held guilty in a murder case, then neither he, nor his
representative, Mantro, nor his executor Berna, would be allowed to raise a suit again in the same
matter. Parties are stopped from doing so under this doctrine.

This doctrine has been dealt in:

• Section 11 to 14 of the Code of Civil Procedure, and

• Section 40 to 44 of the Indian Evidence Act, 1872.

2. Estoppel by Deed: It is the concept where two parties enter into an agreement by way of a
deed as to certain facts. This implies that neither he nor his representatives or any person
claiming under him can deny the facts mentioned and agreed in the deed.

For example, Mickey Shro decided to make his will in favor of his two sons, Lion Shro and
Wolf Shro , and his daughter’s son Deer Shro . Lion Shro induced some third person to buy
Deer Shro ’s share of the property.

This deed was attested by Wolf Shro who was not aware of the facts mentioned in the deed.
Deer Shro died without giving birth to a male child. Lion Shro led a suit to recover the
property from the third party. Here Lion Shro would be estopped but not Wolf Shro as Wolf
was not aware of the facts of the deed.

3. Estoppel by Pais or Estoppel by Conduct: The elucidated meaning of ‘Estoppel by Pias’ is

‘Estoppel in the Country’ or ‘Estoppel before the public’. It has been discussed in Ss. 115 to
117.

Estoppel by conduct means when a person through agreement, misrepresentation or

negligence makes the other person believe in certain things upon which the other person had
taken some action causing a change in their current situation, then the rst person cannot
deny the veracity of the statements given by him in the latter stages.

Sardar Chand Singh v. Commissioner; Burdwan Division:

Chang Singh, the Managing Director of Messrs., was denied any revolver license as he was
accused in a gruesome murder case and other cases. When the District Magistrate issued an
order that he could not hold any revolver license on the grounds of public order and safety,
Chand made no appeal. This planted a reasonable belief that he has consented to it. Later on
when makes an application to the District Magistrate to reconsider his case, it was denied
following the doctrine of ‘Estoppel by Conduct’.

4. Estoppel by election: Kantabai o ers his maid Meena Malhotra her second-hand car. Meena
out of generosity says that she would not take it for free. Kantabai says to Meena that she has
the freedom to take it as a gift or to make a payment as per her willingness. Meena has the
option to either take it as a gift or claim a right over it by purchasing the car.

Now, Meena makes the payment and takes the car in her possession. After a year, Meena
becomes bankrupt and asks Kantabai to return the money which she had given to her as the
payment for buying the car, as she now wants it as a gift. According to the doctrine of
estoppel by election the person receiving the gift or claiming the right can enjoy one of them
and not both of them. So Meena cannot now go back upon it and take the other option.

Revision v. Lekshmy Sukesini Devi:

The court clearly stated that: Parties should not take inconsistent pleas as it makes the
conduct far from satisfactory. And also that parties should not take inconsistent stands and
lengthen the proceedings unnecessarily.
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 In another case, the petitioner was given a land on licence and not on interest. In the terms
and conditions of the contract it was stated that in case a dispute arises, the decision of the
chairman would be the nal one.

The land was given to the petitioner to build an amusement park on it. While building the park
it was found that the necessary actions have not been taken for the establishment of the park
and as a result half of the land remained undeveloped, which went on to violate the conditions
of the contract. In the suit led, the court said that the doctrine of estoppel cannot be pleaded
in the given circumstances.

5. Equitable estoppel: When a person tries to take a legal action that would con ict with his
previously given statements, claims or acts, this legal principle would prohibit him from doing
so. So, the plainti would be stopped from bringing a suit against the defendant who acted
pursuant to the commands of the plainti .

Suppose Tetanus gives his gold jewellery to Vaccine, the most famous jeweller in the town, for
repairing. Vaccine, while handing over the jewellery to Tetanus after repair informed that a
mark has been made by mistake at the back of the jewellery.

Tetanus didn’t mind that and took the jewellery happily with her. Later on if she brings a suit
against Vaccine, she would be stopped under this principle as her suit would run counter to
her earlier statement of forgiveness for the damages caused to her jewellery by mistake.

Estoppel on a Point of Law: The Doctrine of estoppel does not apply to statutes but only to the
facts. Estoppel, if applied to the law would go against public policy and general welfare of the
society. The principle of estoppel can never be invoked for the purpose of defeating the provisions
of law.

For example, if a minor, representing himself to be a major, enters into an agreement with Mr
Kanjilal for the sale of a plot of land, the agreement would be void. And nothing would stop the
minor from taking the defence that the agreement was void ab initio, as it was true that at the time
when he entered into the agreement he was a minor.

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors:

Pavement dwellers who migrated to India, because of proximity to their place of work started
living on the pavements in Bombay. Bombay Municipal Corporation (BMC) initially allowed them
to stay as they constituted the major part of the population of Bombay.

Later on when the pavement dwellers were evacuated, Olga Tellis, a journalist raised questions
against this action. It was upheld that no estoppel can arise against the Constitution of India or
against the fundamental right, i.e. the right to life and livelihood in this case.

1. Estoppel on Tax Law: I.T. Commissioner v. Firm Muar: The court upheld that doctrine of
estoppel would not hold in the case where a non-taxable income under Income-Tax Act, has
been taxed. Also once it has been said that a tax would be collected then one cannot give up
on it.

2. Unambiguous laws cannot be dodged: The doctrine of estoppel would not arise in cases
where the law clearly, without any ambiguity, states that the plainti should be given relief.
When any law is absolute and has no exception clauses, than anybody acting against it would
be acting beyond powers which would be void and the party getting a ected by it can le suit
claiming estoppel against it. Whereas if any exemption clause exists in the law then relaxation
can be given based upon it.
Categories under which the doctrine of estoppel cannot be applied against the state:

• By entering into bilateral agreement parties can contract himself out of the statutory
provisions,
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 • There must exist some provision in the statute which prevents the parties from entering into
such types agreements which the parties would have entered into,

• The provision should be such that it satis es the interest of the public at large,

• The provisions should not be such that only a particular category of people can avail its
bene ts, and,

• Merging of the agreement between the parties into a court’s order where the parties have
been discouraged from performing its obligation imposed on them by law, because of
certain actions by the parties.

By saying that there can be no estoppel against the statute it is meant that where the
converse of a provision mentioned in a statue exists, the party would not be estopped by
his previous given statement(s).

3. Judicial Estoppel: It prevents a party from making con icting or contradicting statements as to
what was previously said in the court as this would adversely a ect the court proceedings and
also cause disrepute to the court.

First National Bank of Jacksboro v. Lasater:

A bankrupt person by not following the schedule and preventing from giving all the information
of his property nally lead the estate to shut down due to bankruptcy. After this, he started
claiming a title over the property on the ground that the trustee never took any action against
it. It was held that the creditors were automatically entitled to the property and asserting title
over the property in such manner is not permissible.

4. Legal Estoppel: It means that the assignor or the grantor, in the subject matter of assignment
or grant, cannot in the latter stage deny the validity of title.

Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co:

The court reached a conclusion that the legal principle of estoppel by deed should apply to
the patent right as well. Law clearly recognizes that assignor of the patent for novelty or utility
cannot say that a patent is void.

He would be estopped by law from doing so. In such cases court is allowed to view the art or
work in order to understand what that thing was which was assigned and to decipher the
primary and secondary character of the assigned patent.

This would also assist them in determining the extent to which the doctrine of equivalents
could be invoked against the one infringing it. It is believed that the court would not make any
assumptions other than that the invention presented a su cient degree of utility and novelty
which would justify the issuing of the patent assignee.

Conclusion: The Doctrine of estoppel is an important principle which protects people against
fraud or misrepresentation. There are several instances where an innocent person becomes a
prey to false representations made to them by some party. Sometimes the case may be such
that the plainti su ered huge losses.

This doctrine avoids such situations and charges the person for his wrongful conduct. This
legal principle gives an incentive to every one of those people who tries to make false
representations to other and induces them to act upon it by planting their faith in them, and
incur losses as a result of such false representations, by not performing such acts, else they
would be held liable.
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 Question 22: What are leading questions ? When they
can be asked?
Ans: Introduction: Section 141 to Section 143 of Chapter -X, Part III of the Indian Evidence Act
1872 deals with leading questions. Section 142 and Section 143 provides circumstances under
which the leading Questions may be asked or may not be asked. Leading Questions have been
de ned under section 141 of the Indian Evidence Act 1872.

Meaning: The expression "Leading Questions" literally means a question which itself suggest
answer. As expected by the person asked the same, any questions which leads to answer, or a
question which is pregnant with the answer.

De nition: Section 141 of the Indian Evidence Act 1872 de nes 'Leading Questions' as, “Any
questions suggesting the answer which the person putting it wishes or expects to receive is
called a leading question.”

Bentham: Bentham de nes leading questions as," A question is a leading one, when it indicates
to the witness the real or supposed fact which the examiner expects and desires to have
con rmed by the answer.

Examples:

1. Is your name so and so?

2. Do you reside in such and such a place?

3. Are you not in service of such and such person?

4. Have you not lived with him for so many years?

5. Did you see him enter X's o ce and take a le?

It is clear that under this form every sort of information may be conveyed to the witness in
disguise. It may be used to prepare him to give the desired answers to the questions about to be
put to him; the examiner, while he pretends ignorance and is asking for information is, in reality,
giving instead of receiving it.

Taylor: According to Taylor "A Leading question, in other words, is one which suggests to the
witness the answer desired or which embodying a material fact, admits of a conclusive answer by
a simple negative or a rmative."

It is a question framed in such manner that it throws a hint as to or suggests directly indirectly, the
answer which the examiner desires to elicit from the witness, e.g., when a witness called to testify
to an alleged assault on A by B is asked, " Did you see B take a stick and Strike A "? Or did you
not hear him say this.

What leading questions must not be asked?

According to Section 142 of Indian Evidence Act, leading questions may not be asked in
Examination-in-chief, or in a Re-examination, except with the permission of the Court.

Section 142: Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in re-examination, except with the permission of the Court. The court
shall permit questions as to matters which are introductory or undisputed or which have, in its
opinion been already su ciently proved.
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When may leading questions be asked?

Leading questions may be asked in the following cases.

1. According to Section 143 of the Indian Act, Leading Questions may be asked in cross-
examination.

2. Under Section 142- In Examination-in-chief, Leading questions can only be asked with the
permission of Court in certain matters.

3. When the witness has defective memory, it may be agitated by a few leading questions.

4. When the object of the leading question is to contradict another witness as to the expressions
used by him but at which denies having asked, the witness may be asked leading questions.

Objection to Leading Questions:

Objection to leading question is not that they are illegal but only that they are unfair. The rule
excluding leading questions is intended to prevent unfairness in the conduct of the inquiry. The
Act gives absolute discretion to the court to allow or disallow leading questions.
Question 23/24: Discuss the scope of cross examination
and explain the questions lawful in cross examination.
Ans: Introduction: The examination of witnesses is an integral part of a criminal trial. Witness
testimonies are one of the most reliable evidence because the person giving the statements has
personally witnessed the event happen. Section 135–165 of the Evidence Act, 1872 deals with
examination and cross-examination of witnesses. This article will cover each section one by one,
along with case laws.

Admissibility of evidence: Under the Evidence Act, 1872 Section 5 states that evidence is
admissible only when it supports a relevant fact in issue. It is further provided in Section 136 that
the judge may ask the parties if the evidence they have adduced deals with a relevant fact or not.

For evidence to be admissible in Court, the judge must be convinced that the evidence is relevant
and does help establish a relevant fact in issue.

Examination Order: Witnesses are required to answer the relevant questions presented to them. A
question asked to a witness must be relevant to a fact in issue, and must help establish the same.
Their answers when recorded are called testimonies of witnesses. This questioning of the witness
and recording their answers is called witness examination.

Examination of witnesses: Examination of a witness is asking the witness questions regarding

relevant facts in the case and recording the statements of witnesses as evidence. There are three
parts to the examination of a witness and Section 138 of the Evidence Act states that the witness
must be examined in the following order:

• First, the party that called the witness examines him, this process is called examination-in-chief
as mentioned under Section 137 of the Indian Evidence Act.

• After the completion of the examination-in-chief, if the opposite party wants to, they can take
over the witness and cross-question him about his previous answers. The opposite party may
ask him any question regarding all the relevant facts and not merely the facts discussed during
the examination-in-chief. This process has been described in Section 137 of the act as cross-
examination.

• If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.

Section 138 states that the re-examination must be directed by the Court for explaining matters
referred to in cross-examination. The section further states that if any new fact or issue arises
during re-examination, the opposite party can further cross-examine the witness on that fact or
issue.

Examination of Non-Witnesses:

Section 139: Apart from witness testimonies, there are numerous other forms of evidence
admissible in the Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might
be called just in order to produce a document. Section 139 of the Act states that- such a person
called in for producing documents, does not become a witness.

He can be examined in order to establish the credibility of the document. But, he cannot be
cross-examined unless he has been called as a witness.

Section 140: Section 140 talks about the character of a party. “Character” of someone refers to
their quality or characteristics that distinguish them. Especially mental and moral characteristics.
It also includes a person’s reputation in society. The section states that the witness to a party’s
character can be cross-examined if the examination-in-chief has already been completed. The
evidence of character is helpful to assist the Court in determining the value of statements given by
the witnesses.

Oral Evidence of written documents: states that any witness may be asked questions regarding
the contents of a document or contract that is not present in the document. If the witness gives
statements regarding such documents, it must be produced before the Court. The opposite party
can object to such evidence until it has been produced in the Court.

For example:

Harry claims that overheard Hermoine telling Ron that “Tom has written a letter threatening to kill
my family and I will kill him before he can do anything”. This statement is relevant in showing
Hermoine’s intention for the murder, and evidence may be given for it, though no other evidence is
given about the letter.

If a witness is giving evidence regarding a contract, grant or any other disposition of property he
may be asked whether there is a documentation of the same. If he answers with yes, then Section
91 of the Act becomes applicable and oral evidence of the terms of the said document will not be
permitted.

Atul Bora v. Akan Bora,:

The Court held that Section 144 has no application when the witness is sought to be cross-
examined by the election-petitioner, has not been asked any question on any contract, grant or
other disposition of property.

Cross-Examination on Previous Statements: Every statement given by a witness must be reduced

to writing. He can on a later stage of cross-examination be contradicted on his prior made
statements.

Section 145 of the act states that such contradictions can be made in relevant questions without
showing the writings to the witness before they are proved. Once the statements have been
proved to be true, there is no use of contradicting the witness then.

Purshottam Jethanand v. The State Of Kutch:

The Court observed that this section does not help the accused to get the statements made
during the investigation, but it does help him to use such statements in case he somehow
obtained them. The statement on which the witness is being contradicted must be relevant to the
matter issue.

Lawful Questions: The witness’s statements will be taken as evidence by the Court, but it must be
proved that the witness is actually telling the truth. Section 146 states that during cross-
examination of a witness, he may be in addition to the aforementioned questions also be asked
questions that try to:

Test his accuracy or truthfulness:

• Understand more about the witness and his position in life.

• To shake his credit by questioning his character.

Even though the answers to these questions have the capacity to directly or indirectly criminate or
expose him or directly or indirectly lead him to penalty or forfeiture, the witness is compelled to
answer such questions.

However, the section does not permit to adduce any evidence or ask any questions in cross-
examination that may include the victim’s moral character or previous sexual experience with any
person.
Compelling the Witness to answer: Section 147 of the Act states that if any question related to a
relevant issue of the case, then Section 132 shall be applicable.

Section 132 says that the witness will not be excused from answering any question on the
grounds that the answer might criminalize him or lead to a penalty or forfeiture on any question
regarding a relevant issue in the case.

The proviso to the section says that no such answer shall subject him to arrest or prosecution or
be proved against him in any criminal proceeding. Apart from prosecution for giving false
evidence by his statements.

It is mentioned in Section 148 of the Act, that the Court must decide whether a witness should be
compelled to answer or not.

This statute provides the witness with protection from aggressive cross-examination. He is not
obligated to answer questions that:

• Injures his character, or

• Doubts his credibility.

Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal:

It has been pointed out that such questions relate to relevant facts and are relevant only to the
issue whether the witness should or should not be believed.

In cases where the decision is solely dependent on oral evidence, it is most important to answer
such questions.Therefore, the Court can decide when a witness is compelled to answer questions
and if the questions tend to criminalize him in any way, he cannot be prosecuted on the basis of
his statements. He has been granted protection by the statute.

Questions must be on reasonable grounds: No question must be asked to the accused without
any reasonable ground as mentioned in Section 149 of the Evidence Act. The section states that
any questions referred to in Section 148 are to be asked only when there are reasonable grounds
to ask such questions that might injure the witness’s character or expose him.

To understand the provision better, let’s look at illustrations of Section 149:

• A barrister is informed by an advocate that the witness is a dacoit. This is a reasonable

ground to ask whether the witness is a dacoit or not.

• When nothing is known about a witness and he is randomly asked whether he is a dacoit.
There are no reasonable grounds for this question.

It is clear upon reading the illustration that this Section also intends to protect the witness from
getting his character injured.

Further Section 150 mentions that if any barrister, pleader, vakil or attorney asks such questions
as mentioned above, without any reasonable grounds, then the Court must report the matter to
the High Court or other authority to which such advocate is the subject in the exercise of his
profession.

Questions should not attack the witness’s character: A question asked during an examination of a
witness must establish a fact in the case, it should not be asked merely to shake his credit or
injure his character. It is stated in Section 153 of the act.

It says that if any question has been asked and the witness has answered it and it only causes
injury to the witness’s character, no evidence shall be given to contradict him. Unless he answers
falsely, in which case he will be charged for giving false statements.
There are two exceptions to this section, which are:

• If a witness has been asked whether or not he was previously convicted. On denial of the
witness, the evidence regarding the proof of his previous conviction can be given.

• If a witness has been asked a question that impeaches is impartiality, on denial of witness,
he may be contradicted.

It means that if a party has su cient grounds to believe that the witness is not impartial,
they may contradict him and try to furnish proof.

State of Karnataka v. Yarappa Reddy:

The Supreme Court added that the basic requirement for adducing such contradictory evidence is
that the witness, whose impartiality is in question, must be presented with evidence and asked
about it and he should have denied it.Without adopting such preliminary measures, it would be
meaningless and unfair to bring a new witness to speak something fresh about a witness already
examined.

To understand this better, here’s a hypothetical situation:

• A claims to have seen B at Delhi on a certain date,

• A is asked whether he himself was at Calcutta that very day or not,

• A denies it,

• Evidence is adduced to show A was actually in Calcutta.

The evidence is admissible, not as contradicting A on the fact which a ects his credit but as
contradicting the alleged fact that he saw B in Delhi on that same date.

Questions by a party to his own witness: Section 154 of the Evidence Act allows a party who calls
a witness to ask any question to their own witness like they are cross-examining him.

Sometimes a witness can turn hostile and it is necessary for the party that called a witness to
cross-examine him if such a situation occurs.

Impeaching credit of witnesses: If the witness has turned hostile, his credit can be impeached by
the opposite party, or by the party that calls him (subject to permission from the Court). Section
155 provides three ways of doing so:

1. By calling such a person who can from their personal experience and knowledge testify
against the witness and establish that the witness in question is unworthy of credit.

2. By furnishing proof that the witness has taken a bribe, or has accepted to take a bribe, or
any other incentive to turn hostile.

3. By showing inconsistency in his former statements and contradicting him to the extent
permitted by Section 153.

Corroboration of evidence: Sometimes merely asking the most relevant fact may not be enough to
obtain all the necessary facts from a witness. Some questions that do not seem very much
connected to the relevant fact can be asked if they help corroborate such fact.

Section 156 allows parties with the permission of the Court to beat around the bush a little with
the intention of connecting the dots and establishing the relevant fact in issue. Previous
statements given by the witness can also be used to corroborate the later testimony regarding the
same fact as prescribed under Section 157 of the Act.
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 Question 24: What are the Privileged Communications?
Discuss the law relating to ProfessionalCommunication.
Ans: De nition: Privileged Communication refers to the con dential conversations or interactions
between two parties who are in a legally recognized protected relationship. The information
cannot be leaked to any third party, not even in the Court. Law can never force an individual or a
corporation to disclose the contents of privileged communications.

Illustration:

• ‘A’, the husband and ‘B’, the wife are undergoing a rough patch in their matrimonial life.

• ‘A’ decides to transfer all his property to C via his will and only his lawyer knows about this.
If B ever asks A’s lawyer to disclose it, the lawyer can’t tell as it is a privileged
communication.

• He can tell only if A gives consent to do so or A himself discloses to a third party.

Professional communication between a lawyer and a client: It is a statutory obligation under

Section 126 of the Indian Evidence Act for an advocate to not disclose without the consent of the
client any-

1. communication to him by the client or vice versa,

2. contents or conditions of a document, and

3. the advice given to the client,

which was obtained or given in the course and for the ‘purpose of such employment’. This phrase
means that no privilege attaches to communication to an attorney consulted as a friend. This
obligation continues even after employment has ceased. This encapsulates the rule of “once
privileged always privileged”.

The privilege under Section 126 is subject to certain exceptions i.e. under the following conditions
communication can be disclosed:

1. When the communication was made in furtherance of an illegal purpose;

2. When the attorney gets to know that a crime or fraud has been committed since
employment began;

3. When the client gives consent;

4. When the information falls into the hands of a third party;

5. When a lawyer sues the client for professional purpose.

Section 127 of the Evidence Act states that Section 126 applies to-

• Interpreters

• Clerks or servants of barristers

• Pleaders

• Attorneys

• Vakils
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 Board Of Directors, Y.M.C.A. and v. R.H. Niblett:

The Court observed that in a defamation case where the evidence in question is proved to be
privileged than the burden to prove not just normal malice but express malice lies on the plainti .
The Court stated that if the occasion is privileged then the publication by a person ‘exercising the
privilege to third persons’ if it is reasonable and in the ordinary course of business, where
communication wasn’t possible except in the presence of uninterested people, it is protected. The
privilege can’t be destroyed merely because third-persons(clerks, typists or copyists, etc.) do not
have a legitimate interest in the subject matter.

Privilege can not be waived by voluntary evidence: Section 128 states that if the client himself
presents some evidence regarding privileged communication, it doesn’t amount to a waiver of
privilege. Summoning the lawyer as a witness by the client doesn’t amount to consent to disclose
but when the client himself asks questions pertaining to the con dential communication then it
amounts to an implied waiver of privilege.

Con dential communications with legal advisers: This section states that no one can be
compelled to disclose privileged communication between a client and an attorney. If a client o ers
to be a witness then the Court can extract from him any communication as it deems necessary.

Section 129 prohibits the client from disclosing, unlike Section 126 which prohibits a lawyer. It lifts
the restrictions imposed under Section 126 partially, it acts as a counterpart of Section 126 of the
Evidence Act.

Privileged communication under the Companies Act, 1956: Usually, the job agreement and bylaws
of a company make it obligatory to keep communications con dential. Section 251 of the
Companies Act, 1956 (now Section 227 of the Companies Act, 2013) states that a legal adviser, a
banker of any company, a corporate body should not be required to disclose any privileged
communication to the Central government, inspector or registrar appointed by the Central
government.

The Rules on Professional Standards: Bar Council of India(BCI) has some rules on professional
standards which every advocate has to abide by, these are mentioned in Chapter II, Part VI of
BCI. Attorney-client privilege is further strengthened by these rules.

It is believed that an advocate owes a duty towards the Court, client, their opponent, and other
advocates. The power to make these rules is inherited by the BCI under Section 49(1)(c) of
Advocates Act, 1961.

Rule 7 & 15: Part VI, Chapter II, Section II of Bar Council of India Rules(BCIR) mentions the Rules
on an advocate’s duty towards the client.

Rule 7 of it provides that no advocate shall commit a direct or indirect breach of obligations under
Section 126 of the Evidence Act. Thus, violating it would amount to a violation of BCI rules.

Rule 15 prohibits an advocate from misusing or taking advantage of the client’s con dence
reposed in him.

An advocate would be subject to disciplinary proceedings in case of breach of the above-

mentioned rules.

Privileged communication between a married couple: Trust between the spouses is the foundation
of a marriage. It is very crucial to protect the privacy of the con dential communication between
the spouses during the marital relationship to maintain the peace of families.

Both the spouses are obliged under Section 122 of the Indian Evidence Act not to disclose any
communication which has happened during their marriage. It is important to note that the
protection applies to all sorts of communications between husband and wife.
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Exceptions to this Clause: Acts or conducts apart from the communication can be disclosed.

Ram Bharose v. State of U.P.:

The husband was accused of theft of jewellery which he had gifted to her wife. He told his wife
that he had obtained it from her previous home. The wife in the Court discloses the conduct of the
accused that he had seen her husband coming down from the roof and after taking a bath gifted it
to her. Court held that the wife could testify as to the conduct but not the conversation.

• If the party who made the communication consents to its disclosure i.e. waives the
privilege, then the evidence of privileged communication can be given.

• In Suits or criminal proceedings between the two spouses.

• Communications made before marriage or after dissolution of marriage.

Nagraj Alias Kumar v. State of Karnataka:

The Court observed that even though Section 120 of the Evidence Act permits a spouse to tender
evidence against the other spouse except in suits or criminal proceedings between the two
spouses. Section 122 makes it clear that privilege extends to all communications, the said
communication does not need to be con dential.

Only spouses who made the communication can waive it and not the witness as the privilege
doesn’t extend to them. Even the Court cannot permit the witness to disclose even if he/she is
willing to share. It is incumbent to ask for the consent of the party against who the evidence is
being given under Section122 of the Evidence Act.

M.C. Verghese Vs. T.J. Poonan and Anr.:

The Supreme Court held that only communications that took place during the marriage are
protected under the privilege mentioned in Section 122 of the Evidence Act. The protection
continues even after the dissolution of marriage or the death of one of the spouses.
Communication before the marriage or after the dissolution of a marriage doesn’t come under the
purview of sec 122.

Privileged communication between a doctor and the patient: In India, The Indian Medical Council
(Professional Conduct, Etiquettes and Ethics) Regulations, 2002 regulate the conduct of medical
professionals.

Rule 7.14 of these regulations provides that the secrets of a patient that the registered medical
practitioner has learned during the exercise of his/her profession cannot be disclosed. Few
exceptions to this rule are:

1. When a presiding judge in a court orders to disclose the privileged communication

2. When there exists a serious risk to a speci c person and/or community

3. In case of a noti able disease concerned public authorities should be immediately informed

Rule 7.17 states that “A registered medical practitioner shall not publish photographs or case
reports of his / her patients without their permission, in any medical or other journal in a manner
by which their identity could be made out.” It is to be noted that if the identity is not to be
disclosed then no consent is needed.

Chapter 8 of the Rules states that if any medical practitioner violates the Physician-patient
privilege then the Medical Council of India(MCI) can take any action as it deems t against the
registered medical practitioner in question, once he/she is held guilty after the inquiry. MCI can
also “direct the removal altogether or for a speci ed period”.
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The power to formulate these rules is enshrined in MCI under Section 20A of Indian Medical
Council Act.

Mr. X Vs. Hospital Z:

The Supreme Court held that a rule of con dentiality has certain exceptions, one of which is the
disclosure of privileged communication between the doctor and client if it poses a serious risk to
a person in case of non-disclosure. Public interest can override the right to con dentiality. For
instance, in the given case it was necessary to disclose to the wife that the husband has HIV-
AIDS.

Right to privacy and Privileged Communication: Article 21 of the Constitution of India states, “No
person shall be deprived of his life or personal liberty except according to the procedure
established by law”, it has an encyclopedic ambit. It covers all aspects of life, one of which is
Privacy. Right to privacy isn’t expressly written in the Indian Constitution but overtime judicial
proceedings have shown that it comes under the ambit of Article 21.

The law safeguards the right to privacy by protecting from the disclosure of privileged
communication. It takes away the evidentiary value of con dential communication.

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any con dential
communication which happens during the marriage. Similarly, sections 126 to 129 of the Evidence
Act deal with attorney-client privilege. The concept of privileged communication strengthens the
fundamental right to privacy.

Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for attorneys and
Rule 4.14 and 4.17 of The Indian Medical Council (Professional Conduct, Etiquettes and Ethics)
Regulations, 2002 for medical practitioners bars the disclosure of privileged communication.
Violation of any of these laws is an automatic violation of the right to privacy under Article 21 of
the Indian Constitution.

Vishal Kaushik v. Family Court:

The Court held that if the conversation between two spouses is recorded by one of the spouses
without the knowledge of the other spouse, that evidence will not be admissible in the Court. In
fact, this act will amount to a breach of privacy under Article 21 of the Indian Constitution and the
spouse who has recorded will be held liable.

Conclusion: Various legislations oblige the parties of a protected relationship (attorney-client,

doctor-patient, husband-wife) to adhere to the rule of privileged communication. The foundation
of this is to guard the trust that a client re-poses in an attorney, patient in a doctor and spouses in
each other. However, the privilege is not absolute in nature, it is subjected to certain exceptions.
The law also provides for punishment in case of its violation.
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Question 26 A : Short Notes: Hostile Witness.
Ans: Section 154: A witness who readily gives answers desired by the advocate examining him is
called a ‘favourable witness’, because his answers are favourable to the party calling him to give
evidence.

A witness who is reluctant or refuses to give such answers is called a ‘hostile witness’, because of
his hostile attitude towards the advocate examining him.

Normally the same witness is favourable and hostile: favourable during examination- in-chief and
re-examination, and hostile during cross-examination. However, at times, especially in criminal
case, a witness may turn hostile during examination-in-chief itself.

In such cases, the advocate for the party calling him, may, with the permission of Court under
sec. 154, ask questions which are permissible in cross-examination.

Refreshing Memory: Section 159: A witness may, while under examination, refresh his memory by
referring to any writing made by himself at the time of the transaction concerning which he is
questioned, or so soon afterwards that the Court considers it likely that the transaction was at
that time fresh in his memory.

The witness may also refer to any such writing made by any other person, and read by the
witness within the time aforesaid, if when he read it he knew it to be correct.

Whenever a witness may refresh his memory by reference to any document, he may, with the
permission of the Court, refer to a copy of such document.

Provided the Court be satis ed that there is su cient reason for the non-production of the
original. Proviso to sec. 159 permits an expert to refresh his memory by reference to professional
treatises.

Sec. 160 provides that a witness may also testify to facts mentioned in any such document as is
mentioned in sec. 159, although he has no speci c recollection of the facts themselves, if he is
sure that the facts were correctly recorded in the document.

Illustrations: A book-keeper may testify to facts recorded by him in books regularly kept in the
course of business, if he knows that the books were correctly kept, although he has forgotten the
particular transactions entered.

Right of Adverse party: Where a party uses any writing to refresh its memory while giving
evidence, sec. 161 gives a right to the adverse party to inspect that writing. Any writing referred to
under the provisions secs. 159 and 150 must be produced and shown to the adverse party as if
he requires it. Such party may, if he pleases, cross-examine the witness thereupon.

Pran Dutt v. State of Uttar Pradesh:

That a statement of record by the investigating o cer such as police reports, under Section 161 is
not usable for contradicting a witness.
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Question 26B: Short Notes: Facts in Issue
Ans: According to Section 3 the expression “facts in issue” means and includes — any fact from
which, either by itself or in connection with other facts, the existence, non-existence, nature, or
extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily
follows.

Explanation:

Whenever, under the provisions of the law for the time being in force relating to Civil
Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to
such issue, is a fact in issue.

1. llustrations - A is accused of the murder of B. At his trial, the following facts may be in issue —

2. That A caused B’s death;

3. That A intended to cause B’s death;

4. That A had received grave and sudden provocation from B

5. 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.

he expression “Facts in issue” refers to facts out of which a legal right, liability or disability arises
and such legal right, liability, or disability is involved in the inquiry and upon which the Court has
to give the decision.

The question as to what to what facts may be “facts in issue” must be determined by substantive
law or the branch of procedural law which deals with pleadings. Generally, in criminal cases the
charge constitutes the facts in issue whereas in civil cases the facts in issue are determined by
the process of framing issues.

Proof: Normally “proof” and “evidence” are mistaken to be synonymous. “Proof” of a fact is
showing the existence of the fact. Thus, a fact may be “proved”, “disproved” or “not proved”.

Proved: A fact is said to be proved when, after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists.

Disproved : A fact is said to be disproved when, after considering the matters before it, the Court
either believes that it does not exist, or considers its non-existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon the supposition that it
does not exist.

Not Proved:A fact is said not to be proved when it is neither proved nor disproved.

Thus, where neither party can produce evidence in its favour, the fact is said to be not proved. In
normal parlance, expression “proof” included “dis-proof” also. Thus “burden of proof” is burden
not only of proving but also disproving depending upon circumstances.
Question 26C: Short Notes: Alibi
Ans: The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the
Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and
makes the provision as a defending ground for the accused.

The simplest meaning of this section is a condition when the incident took place and the accused
is charged for the incident then he may make defend him on explaining that at the time of the
incident he was not present at the location.

Although previously it was not relevant for the court to know that where he was as the
investigation showed that he committed the crime but his explanation that he was not at the place
of incident make the irrelevant facts a relevant fact.

The important part of Section 11 of the Evidence Act is that this rule is only accepted in the
course of admission of the evidence and no other statute provides such rule.

The plea of alibi has to be taken on the very rst stage of the trial and must be proved without any
reasonable doubt as the burden of proof is on the person who is taking advantage of Section 10
i.e., Plea of Alibi.

Essentials of Alibi:
• There must be an o ence punishable by the law.

• The person taking the defence of Section 10 should be accused of that particular o ence
punishable by the law.

• The defence must be satisfactory and beyond any reasonable doubt.

• The defence must be backed by evidence.

Lakhan Singh @ Pappu vs The State of NCT of Delhi:

A plea of alibi cannot be compared with a plea of self-defence although both the plea is to be
taken on the very rst instance of the court proceedings.

Sahabuddin & Anr vs the State of Assam:

Once the court is in doubt with respect to plea of alibi and the accused does not give any
substantive explanation to support his statement under Section 313 CrPC, then the Court is
authorised to conclude a negative or not a positive inference against the accused.

Jitender Kumar v State of Haryana:

The Court not believing the plea of alibi as the accused did not provide the su cient supportive
evidence for establishing the defence. And the Court supported the case from the prosecution
side.
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 Question 26D: Short Notes: Confession Co-Accused.
Ans: An “accomplice” is a person who helps someone else to commit a crime. If he is tried jointly
with the accused, he becomes a “co-accused”. An accomplice who is granted pardon under sec.
306 of the Criminal Procedure Code, 1973 to give evidence for the prosecution is called an
“approver”.

Sec. 133 provides that an accomplice shall be a competent witness against an accused person.
Sec. 133 further clari es that a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.

But it has now become almost a universal rule of practice not to base a conviction on the
testimony of an accomplice unless it is corroborated in material particulars. As to the amount of
corroboration which is necessary, no hard and fast rule can be laid down.

It will depend upon various factors, such as the nature of the crime, the nature of the accomplice’s
evidence, the extent of his complicity and so forth.

When a victim has to confess her incident in front of the whole community, this a ects the victim’s
image in front of the whole community. She has to face every bad circumstance in every point of
her life. She loses the support from everyone.

If any o ence is committed than only one person has to face all the trials. He tried jointly in the
court. The confession of one person a ects himself and some other of such persons is proved.
The court takes the confession against the one person or the other person.

But the confession of the co-accused is undoubtedly and admissible in court. The court cannot
start the confession of the co-accused. If there is substantial evidence then the only confession is
taken into consideration to set the doubt at rest.
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Question 26E: Short Notes: Identi cation Parade.
Ans: One of the methods of establishing identity of the accused is ‘test identi cation parade. The
purpose of TI parade is “to check memory of eye-witness and also for prosecution to decide as to
who can be cited as eye-witness.”Its object is also to enable the eye-witness of the incident to
identify the accused before a Magistrate.

Illustrations:

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.

b. A sues B for a libel imputing disgraceful conduct to A;B a rms that the matter alleged to be
libelous 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 a ected the
relations between A and B.

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 a conduct subsequent to and a ected by facts
in issue.

The fact that, at the time when he left home he had sudden and urgent business at the place
to which he went is relevant, as tending to explain the fact that he left home suddenly. The
details of the business on which he left are not relevant except in so far as they are necessary
to show that the business was sudden and urgent.

d. A sues B for inducing C to break a contract of service made by him with A.C, on leaving A`s
service, says to A - "I am leaving you because B has made me better o er." The statement is
a relevant fact as explanatory of C`s conduct which is relevant as a fact in issue.

e. A, accused of theft is seen to give the stolen property to B, who is seen to give it to A`s wife. B
says as he delivers it "A says you are to hide this." B`s statement is relevant as explanatory of
a fact which is pat of the transaction.

f. A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob
are relevant as explanatory of the nature of the transaction.
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