Evidence Act-2nd Semester

THE INDIAN EVIDENCE ACT, 1872

EVIDENCE IMPORTANT QUESTIONS
SHORT ANSWER QUESTIONS

1. DEFINITION OF EVIDENCE (SECTION 3)

2. HEARSAY EVIDENCE
3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT
4. DOCTRINE OF RES GESTAE (SECTIONS 6 & 7)
5. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT'S
INVALID
6. AMBIGUITY, PATENT AND LATENT.
7. JUDICIAL NOTICE (SECTIONS 56 & 57)
8. ACCOMPLICE (SECTION 133)

 
LONG ANSWER QUESTIONS
1. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT?
ILLUSTRATE
(PLEA OF ALIBI SECTION 11)
2. ADMISSION, DISCUSS THE RELEVANCE OF ADMISSIONS (SECTION 17)
3. DEFINE & DISTINGUISH ADMISSION AND CONFESSION
ALL CONFESSIONS ARE ADMISSIONS BUT ALL ADMISSIONS ARE NOT
CONFESSIONS
4. DYING DECLARATION, CONDITIONS FOR THE RELEVANCY &
ADMISSIBILITY
5. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE
6. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT?
7. BURDEN OF PROOF, GENERAL RULES RELATING TO BURDEN OF PROOF
8. DEFINE ESTOPPEL? EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL
9. EXPLAIN "EXAMINATION-IN-CHIEF". CROSS-EXAMINATION &
RE-EXAMINATION (SECTION 137)
(DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF
WITNESSES)
 
 
CASE LAWS
1.Sec 115 Estoppel
2.Section 30, Confession against the co-accused
3.Section 105, Burden of Proof
4.Section 11, (Alibi)
5. Section 114, Court may presume existence of certain facts
6. Section 118, Who may testify
7.Section 93, Patent Ambiguity

8. Confession to a police officer and leads to the discovery of new fact (Section
27).

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9. Professional Communications (Section 126).

10. Confession to police officer not to be proved (Section 25).
11. Sec. 65, Cases in which secondary evidence relating to documents may be
given.

PAPER-V:
LAW OF EVIDENCE – SYLLABUS
Unit-I:
The Indian Evidence Act, 1872 — Salient features of the Act – Meaning and kinds of
Evidence – the impact of the Information Technology Act, 2000 on the Indian
Evidence Act – Interpretation clause — May Presume, Shall presume and Conclusive
proof – Fact, Fact in issue and Relevant facts —Distinction between Relevancy and
Admissibility – Doctrine of Res gestae — Motive, preparation and conduct —
Conspiracy —When Facts not otherwise relevant become relevant — Right and
custom — Facts showing the state of mind etc.
Unit-II:
Admissions & Confessions: General Principles concerning Admissions — Differences
between “Admission” and “Confession” — Confessions obtained by inducement,
threat or promise – Confessions made to police officer – Statement made in the
custody of a police officer leading to the discovery of incriminating material —
Admissibility of Confessions made by one accused person against coaccused. Dying
Declarations and their evidentiary value — Other Statements by persons who cannot
be called as Witnesses —Admissibility of evidence of witnesses in previous judicial
proceedings in subsequent judicial proceedings.
Unit-III:
Relevancy of Judgments — Opinion of witnesses — Expert’s opinion — Opinion on
Relationship especially proof of marriage — Facts which need not be proved — Oral
and Documentary Evidence – General Principles concerning oral evidence and
documentary evidence — Primary and Secondary evidence — Modes of proof of
execution of documents — Presumptions as to documents — General Principles
regarding Exclusion of Oral by Documentary Evidence – Relevance of social media in
the law of evidence
Unit-IV:
Rules relating to Burden of Proof – Presumption as to Dowry Death — Estoppels
—Kinds of estoppels — Res Judicata, Waiver and Presumption.
Unit-V:
Competency to testify — Privileged communications – Testimony of Accomplice —
Examination in Chief, Cross-examination and Re-examination — Leading questions —
Lawful questions in cross-examination —Compulsion to answer questions put to
witness — Hostile witness — Impeaching the credit of witness — Refreshing memory
— Questions

Suggested Readings:
1. Batuk Lal: The Law of Evidence, Central Law Agency, Allahabad.
2. M. Monir: Principles and Digest of the Law of Evidence, Universal Book Agency,
Allahabad.
3. Vepa P. Saradhi: Law of Evidence Eastern Book Co., Lucknow.

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4. Avatar Singh: Principles of the Law of Evidence, Central Law Publications.

5. V. Krishnama Chary: The Law of Evidence, S.Gogia & Company Hyderabad.
6. V. Nageswara Rao: The Evidence Act, LexisNexis.

  Important Sections  
S.N
o. Particulars Sec
1 Evidence 3
2 Presumptions 4
3 Alibi 11
4 Admission 17
Confession to police & recovery of
5 items 27
6 Confession against the co-accused 30
7 Dying Declaration 32(1)
8 Opinions of Experts 45
9 Opinion on relationship 50
10 Patent ambiguity 93
95
11 Latent Ambiguity -98
12 Burden of proof 101
13 Burden of proof for alibi 103
14 Burden of proof for exceptions 105
15 Presumption as to dowry death 113B
16 Estoppel 115
17 Who may testify 118
18 Professional communications 126
19 Accomplice 133
20 Chief, Cross, Re-examination 137

SHORT ANSWERS

1. DEFINITION OF EVIDENCE.
Answer: Meaning of Evidence:
 “Evidence” is a word derived from the Latin word “evidera” which means to
discover clearly, to ascertain or to prove.

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 According to Blackstone, evidence “signifies that which demonstrates, makes

clear or ascertains the truth of the facts or points in issue either in one side or
the other”.

 Taylor describes the evidence as “all means which tend to prove or disprove
any matter, fact, the truth of which is submitted to judicial investigation.

 The word ‘evidence’ in the Act signifies only the instruments by means of
which relevant facts are brought before the court. The instruments adopted
for this purpose are witnesses and documents. Under this definition, the
evidence is divided into two clauses (1) oral and (2) documentary.

 Section 3 of the Indian Evidence Act defines “evidence” means and includes :

1. All statements which the Court permits or requires to be made before it by

witnesses in relation to matters of fact under enquiry; such statements are
called oral evidence.

2. All documents including electronic records produced for the inspection of

the Court, such documents are called documentary evidence.”

 “Evidence” means that which makes evident.

 The definition of evidence covers the evidence of witnesses and documentary

evidence.

Items which are not evidence: The following are not evidence
1. An affidavit is not evidence.
2. A confession of an accused.
3. The result of a local investigation or local inspection,
Classification of evidence: Evidence may be classified under the following heads:
1. Oral and Documentary evidence.
2. Direct and circumstantial evidence.
3. Primary and secondary evidence.
4. Real and personal evidence.
5. Original and un-original evidence.
6. Best and Inferior Evidence.
7. Substantive and non-substantive.
8. Positive and negative evidence.
9. Prosecution evidence and defence evidence.
10. Presumptive or prima facie evidence.
11. Conclusive evidence.
12. Corroborative evidence.
13. Hearsay or direct evidence.

2. HEARSAY EVIDENCE.

Answer: Hearsay is what one hears (but does not know to be true). It means gossip.

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 Hearsay evidence is the evidence learnt by witnesses not through the medium
of their own senses but through the medium of the third person. It signifies
the evidence heard and said.

 It is called a second hand or unoriginal evidence.

 Peter Murphy states that “ Hearsay evidence is given when a witness

recounts a statement made (orally, in a document or otherwise,) by another
person and where the proponent of the evidence asserts that what the person,
who made the statement, said was true”

 Hearsay is that of which one has heard from another without himself having
any direct knowledge thereof.

 Section 60 of the Indian Evidence Act prohibits hearsay evidence from being
offered in judicial proceedings subject to the exceptions provided in the
Evidence Act.

Why hearsay evidence is excluded or discarded:

1. The irresponsibility of the original declarant, whose statements were made

neither on oath nor subject to cross-examination,

2. The depreciation of truth in the process of repetition,

3. The opportunities for fraud its admissions would open,

4. The tendency of such evidence to protract legal enquiries,

5. Encourages the substitution of weaker evidence in place of stronger proof,

6. The person giving such evidence does not feel any responsibility. The law
requires all evidence to be given under personal responsibility

Exceptions to the hearsay rule: A number of exceptions have been recognized to

facilitate for the admission of hearsay evidence.

1. Res gestae,

2. Admissions and Confessions,

3. Statements by persons who cannot be called as witnesses (Sec 32),

4. Evidence given in the former proceedings (Sec 33),

5. Entries in books of account including those maintained in an electronic form

are relevant (Sec 34),

6. Relevancy of entry in public record or an electronic record made in the

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performance of duty (Sec 35),

7. Opinions of experts (Section 45 & 46),

8. Opinion as to handwriting (Sec 47),

9. Opinion as to digital signature when relevant (sec. 47-A),

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

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

12. Opinion on relationship (Sec. 50),

13. Statements incorporated in Acts and Notifications, Government maps, Charts,

Plans etc., (Sections 34 to 39),

14. Provision 1, Section 60,

15. Proviso 2, Sec 60.

16. Statements in public documents,

3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT.

Answer:
 The term presumption is not defined in the Indian Evidence Act, 1872.
 Presumption means, taking a fact as true without examination or proof.
 Presumption means things taken for granted. It is an inference of fact drawn
from other known or proved facts.
 In Law of Evidence, a presumption is a conclusion or inference as to the truth
of some fact in question, drawn from some other fact judicially noticed or
proved or admitted to be true.
 Presumptions are drawn from the course of nature, the usage of society and
transactions in business.
 The presumption is an inference drawn by a judicial officer positively or
negatively about a fact.
 The presumption is a matter of opinion.
 It is a rule of law that attaches definite probative value to specific facts or
directs that a particular inference as to the existence of one fact not actually
known shall be drawn from a fact which is known and proved.
 It is an assumption of a fact and furnishes prima facie evidence of the matter
to which it relates and relives until it is rebutted.
 It means, it holds the field in the absence of evidence but when facts appear
presumptions go back.
Provisions of law:
 Sections 79 to 90 of the Indian Evidence Act, 1872 deal with the presumption
as to the genuineness of a certain kind of documents.
 Section 111A of the Indian Evidence Act, 1872 Act, deals with presumptions
as to certain offences.
 Section 112 deals with presumptions as to the birth of a child during the

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marriage.
 Section 113A of the Indian Evidence Act, 1872 deals with presumption as to
abetment of suicide by a married woman.
 Section 113B of the Indian Evidence Act, 1872 deals with presumption as to
dowry death.
 Section 114 deals with presumptions as to the existence of certain facts.
Types of presumption (Classification): Presumptions are of three kinds:
1. Presumption of fact (Natural Presumptions or May Presume): It is an
inference which is drawn from the observation of the human mind. Sections
86, 87, 88, 90 and 114 of the Indian Evidence Act, 1872 deal with the
presumption of fact. These presumptions are generally rebuttable. They may
be correct or they may not be correct. The court may presume that a
document or an account book or a telegraphic message etc., are correct; but,
this presumption may be disproved also.
e.g., (i) a watch of Ram is stolen and soon after it is recovered from the
possession of Shyam. There shall be a natural inference (Presumption) that
Shyam either stolen the watch himself or received it from some thief knowing
it to be stolen,
(ii) From the fact that a letter has been posted, the natural inference
(presumption) would be that it reached the addressee,
2. Presumption of law (artificial presumptions): Presumptions of law are divided
into two categories.
(A). Rebuttable (shall presume) presumption: Section 4 of the Evidence Act
defines ‘shall presume’ “Wherever it is directed by this Act that the court shall
presume a fact, it shall regard such fact as proved unless and until it is
disproved”. This kind of presumption arises when presumptions of law are
certain legal rules, defining the amount of evidence requisite to support a
particular allegation, which facts being proved, may be either explained away
or rebutted by evidence to the contrary, but are conclusive in absence of such
evidence. Legal presumptions of this kind are definitions of the quantity of
evidence sufficient to make a prima facie case: in other words of the
circumstances under which the burden of proof lies on the opposite party.
Sections 107, 108, 112 are examples of this presumption.
e.g., (i) Thus a man is presumed innocent until he is proved guilty; (ii) a child
born in a legal wedlock shall be presumed to be legitimate and one who
questions his legitimacy must disprove it; (iii) if a child is born during divorce
he must be presumed illegitimate unless the contrary is proved.
(B). Irrebuttable presumption: The conclusive or irrebuttable presumptions of
law are those legal rules which are not overcome by any evidence that the fact
is otherwise. A well-known instance of an irrebuttable presumption of law can
be found in Section 82 of the Indian Penal Code, wherein it is laid down that
“nothing is an offence which is done by a child under seven years of age”. In
this type of presumption, there will not be any evidence to rebut them. These
presumptions are the rules deciding the quality of evidence required by law.
Irrebuttable presumptions are deemed to be correct, because of greater
certainty. Irrebuttable presumptions are normally the laws of the land, like
ignorance of the law is no excuse.
e.g., where a man having no title obtains possession of land under lease by a

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man in possession who assumes him to give a title as a tenant he cannot

deny his landlord’s title. Thus it is clear that this kind of presumption of law is
conclusive.
3. Presumption of Fact and Law (mixed presumptions): Mixed presumptions of
law and fact are chiefly confined to the English law of real property, and it is
no place in India as Evidence Act, has made provisions for the presumptions
of fact (may presumption) and the presumptions of law (shall presume).
There are certain sections in which it is said that a certain fact is conclusive
proof of certain another fact.
Conclusive proof: Whenever it is mentioned that a fact is a “conclusive proof” of
another fact, the court has no discretion at all. It cannot call upon a party to prove
that fact nor can it allow the opposite party to adduce evidence to disprove the fact.
Section 41 of the Evidence Act provides inter alia that a final judgement, order or
decree of a competent court in exercise of matrimonial jurisdiction is conclusive
proof of that legal character. For example, suppose A files a suit in a court of law for
a declaration that B is his legally married wife. The court gives a decree in favour of
A and declares that B is his wife. After a few years in the lifetime of A, B files a suit
against D for the property of one C, alleging that she is a widow of C., In this case,
there will be an issue whether B is the wife of C. D files the copy of the judgement of
the previous case (A versus B). This judgement will prove that B is legally married
wife of A. Now that B is legally married wife of A is a conclusive proof of the fact
that she is not the wife of C. Therefore after the judgment mentioned above has
been filed, the court cannot allow B to adduce evidence to prove that she is wife of C
and not of A.
“Conclusive proof” in Section 4 of the Evidence Act – when one fact is declared by
this Act to be conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the purpose
of disproving it.

4. DOCTRINE OF RES GESTAE (SECTIONS 6 & 7).

Answer: The doctrine of res gestae has been borrowed from English Law and is
incorporated in Sections 6 and 7 of the Evidence Act, states that:
Section 6: “Relevancy of facts part of same transaction – Facts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction,
are relevant, whether they occurred at the same time and place or at different times
and places.
Illustrations: (a). ‘A’ is accused of the murder of ‘B’ by beating him. Whatever was
said or done by ‘A’ or ‘B’ or the bystanders at the beating or so shortly before or after
it as to form part of the transaction is a relevant fact.
(b). ‘A’ sues ‘B’ for a libel contained in a letter forming part of a correspondence.
Letters between the parties relating to the subject out of which the libel arose, and
forming part of the correspondence in which it is contained are relevant facts,
though they do not contain the libel itself.
(c). The question is, whether certain goods ordered from ‘B’ were delivered to ‘A’.
The goods were delivered to several intermediate persons successively. Each
delivery is a relevant fact.
Same transaction: “Same Transaction” means a transaction in a group of facts,
connected together to be referred to by a single legal name as a crime, a contract, a

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wrong or any other subject to enquiry which be in issue. Facts forming part of the
same transaction are relevant. All the facts which are parts of the same transaction
are relevant to each other so that when one of such facts in issue, the other are
admissible.
One of the essential conditions is that the statement must relate to the main
event or explain the main event. Res gestae must not be a product of a pre-plan; it
must be a result of deliberation instead. It must be a statement by a person who has
either participated in or witnessed the act and res-gestae is incidental to the main
fact and explains its occurrence. All acts which are part of one transaction or acts
constituting a series or showing continuing facts would be admissible as part of
res-gestae. All statements which are accompanied in explaining the facts in issue
are also relevant.
In Uttam Singh v. the State of M.P., the child witness was sleeping with the
deceased father at the relevant time of the incident and was awakened by the sound
of the fatal blow of the axe on the neck of the deceased. Seeing it, the child shouted
to his mother for help by naming the accused as the assailant. On hearing the
sounds the mother and sisters of the child and other witnesses gathered at the spot.
It has been held that the evidence is admissible as a part of the same transaction as
res gastae under Section 6 of the Evidence Act as such shout being natural and
probable in the facts of the case.
Res gestae is an exception to hearsay: The res gestae is an exception to the
principle that hearsay evidence is no evidence (Section 60). In R. v. Foster, the
deceased had been killed in an accident by the speeding truck. The witness had not
seen the incident but only the speeding truck. The deceased stated to him what had
happened with him in the accident. The court held the statement of the deceased to
the witness to be admissible in evidence as res gestae.

5. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT’S INVALID?

Answer: There was no specific provision in the Indian Evidence Act or Code of
Criminal Procedure regarding the identification parade of the accused until 2005. By
the amendment of Cr.P.C. in 2005, a new Section 54A was inserted for identification
of person arrested. Section 54A is as follows:
“Where a person is arrested on a charge of committing an offence and his
identification by any other person or persons is considered necessary for the
purpose of investigation of such offence, the court, having jurisdiction, may on the
request of the officer-in-charge of police station, direct the person so arrested to
subject himself to identification by any person or persons in such manner as the
Court may deem fit”.
The necessity of test identification parade:
1. Test Identification Parade is meant to test the veracity of the witness and his
capacity to identify unknown persons.
2. Test Identification Parade is not necessary where all the witnesses state that
they otherwise know accused persons and they are not strangers to them and
in the moonlight and lantern, they clearly identified them.
3. The evidence with regard to Test Identification Parade may be used by the
Court for the purpose of corroboration.
4. The purpose of test Identification Parade is to test and strengthen the
trustworthiness of substantive evidence.

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5. Where the eye-witness cannot give the name of the offender but claims that
he can identify him, it is necessary to hold Test Identification Parade.
The procedure of Identification Parade:
1. The Test Identification parade has to be conducted by the Magistrate or an
authorised person of Court,
2. The Magistrate has to make sure that at least 10 persons of similar
appearance or build or height are paraded with each suspect separately.
3. The Magistrate has to examine the marks likely to affect Identification of the
suspect.
4. Identification should be held as early as possible.
5. It is not safe to place reliance on the identification of an accused for the first
time in Court by a witness after an inordinate delay.
6. If the accused is known to the witness, the Identification Parade is not
necessary.
Circumstances of invalidity of Test Identification parade: In the following
circumstances, the evidence of a witness in the Test Identification becomes invalid.
1. Most of the crimes are committed in darkness and at secluded places. In
such cases, the light becomes a matter of crucial importance to see the
accused at the time of the offence.
2. The eye-sight of the identifier has to be taken into consideration and at the
time of offence whether he is using his spectacles (if needed) or also
important.
3. If the identifier is in stirred minds, for excitement, fear or terror,
4. If the witness was in drunken position at the time of the offence.
5. If the witness saw only the backside of the accused.
6. If the suspect was already shown to the witness before the Identification
Parade.
7. If the precautionary steps such as bringing the accused by covering faces etc.
have not been taken.
8. If the Identification Parade is conducted on all accused in a single
identification parade.
9. Where there are more offenders and a single eye-witness who cannot identify
the features of all the offenders with a short span of time.
10. If the accused persons muffled their faces in order to screen their identity by
appearance.
11. If the photograph of the accused was shown to the identifying witness before
the parade.
12. If abnormal delay in holding identification parade has taken place.
13. If the identification parade is not conducted by magistrate or an authorised
person of court.
14. When minimum 10 persons of similar appearance or build or height are not
paraded along with the accused.

6. AMBIGUITY.
Answer: Meaning of Ambiguity: Doubtfulness, duplicity, indistinctness, or
uncertainty of the meaning of an expression used in a written contract. Ambiguities
are of two kinds, they are
1. Patent Ambiguity: Patent means a doubt apparent on the face of an instrument or

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document. A patent defect is observable by the senses. A patent ambiguity

(ambiguous patents) is one which appears on the face of the instrument.
(i). Section 93, Exclusion of evidence to explain or amend ambiguous document
Section 93 of the Evidence Act states that “When the language used in a
document is, on its face, ambiguous or defective, evidence may not be given of facts
which would show its meaning or supply its defects.
This is also known as ambiguous patents. Patent ambiguity can be understood
through Section 93 of the 1872 Act. If it appears to be ambiguous on the face of the
document itself, then, patent ambiguity may be due to a wrong description or due to
the incompleteness of the document.
A patent ambiguity shows the defect, apparently, on the face of the document.
No oral evidence can be given to removing such patent ambiguities. The document
will generally be ambiguous and have no definite meaning. Sometimes, the patent
ambiguity arises because of the ungrammatical usage of the language. Hence, we
can say that it is the language of the document which will decide the question of the
ambiguity of it. E.g. (i) ‘A’ agrees, in writing, to sell a horse to B for Rs. 1000 or Rs,
1500. Evidence cannot be given to show which price was to be given. (ii) A deed
contains blanks. Evidence cannot be given of facts which would show how they
were meant to be filled.
(ii). Sec 94, Exclusion of Evidence against application of document to existing facts,
Section 94 of the Evidence Act states that “When language used in a document is
plain in itself, and when it applies accurately to existing facts, evidence may not be
given to show that it was not meant to apply to such facts”.
E.g., A sells to B, by deed “my estate at Rampur containing 100 bighas”. A has an
estate at Rampur containing 100 bighas. Evidence may not be given of the fact that
the estate meant to be sold was one situated at a different place and of different
size”.
Section 94 of the Evidence Act is a supplement to Section 93 of the Act. When
there is neither patent nor latent ambiguity evidence cannot be given to contradict
this.
2. Latent Ambiguity: This is also known as ambiguous latent. The latent ambiguity
is in a hidden form. The external circumstances do not create any difficulty or doubt
as to the application of the subject matter. However, the inherent meaning creates
difficulties in the application when the language used is clear, but, the meaning in
application creates problems. The document is said to be latent ambiguity. Latent
ambiguity is based on the principle of false demonstration on necet (false
description).
Therefore, a document with latent ambiguity can be rectified by supplying the
necessary facts. It may be done by further evidence or by knowing the intention of
the parties to a contract.
(A). Section 95, Evidence as to document unmeaning in reference to existing facts–
Section 95 of the Evidence Act states that “When language used in a document is
plain in itself, but is unmeaning in reference to existing facts, evidence may be given
to show that it was used in a peculiar sense”.
Illustration: A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta,
but it appears that he had a house at Howrah, of which B had been in possession
since the execution of the deed. These facts may be proved to show that the deed
related to the house at Howrah.

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Where in a document, the intention of the parties is clear, but one of the essential
facts is described wrongly by mistake, and if the mistake is curable the document
cannot be invalidated. In such a case evidence is allowed to prove the actual
existing fact as shown in illustration appended to Sec. 95.
(B). Section 96, Evidence as to application of language which can apply to one only
of several persons. According to Section 96 of the Evidence Act, “when the facts are
such that the language used might have been meant to apply to anyone, and could
not have been meant to apply to more than one, of several persons and could not
have been meant to apply to more than one, of several persons or things, evidence
may be given of facts which show which of those persons or things it was intended
to apply to”. E.g. A agrees to sell to B, for Rs.1000 “my white horse”. A has two
white horses. Evidence may be given of facts which show which of them was
meant.
(C). Section 97, Evidence as to application of language to one of two sets of facts, in
neither of which the whole correctly applies.
(D). Section 98, Evidence as to meaning of illegible characters, etc.

7. JUDICIAL NOTICE (SECTIONS 56 & 57).

Answer: Judicial notice is the notice or recognition which a judge will take of a fact
without proof. Judicial notice is an acceptance by court for the purpose of a case, of
the truth of certain notorious facts without requiring proof. Judicial notice takes the
place of proof and is of equal force.
 According to Stephen, “That certain facts are so notorious in themselves or
are stated in so authentic manner is well-known and accessible publications
that they require no proof. The court, if it does not know them can inform
itself upon them without formally taking evidence. These facts are said to be
judicially noticed”.
 Phipson states that “Judicial notice is the cognizance taken by the Court itself
of certain matters which are so notorious, or clearly established, that evidence
of their existence is deemed unnecessary.
 Judicial notice is a means of establishing facts, it is, therefore, superior
evidence.
 The expression ‘taking judicial notice’ means recognition, without proof, of
something as existing, or as being true and the Court is duty-bound to find out
the law and apply it to the facts of the case, even though the parties or their
counsel fails to produce such law.
Section 56 of the Evidence Act dispenses with proof of the facts which are capable
of being judicially noticed on account of their notoriety. These facts are of such
public and universal character or are so well and authentically expressed in the
treaties, that the Court is bound to take notice of such facts.
Section 57 lists out the following facts that the Courts are under the obligation to
take judicial notice of the facts and the Courts cannot refuse to take judicial notice
of the facts. They are:
(1). All laws in force in the territory of India
(2). Personal laws.
(3). Articles of war.
(4). Legislative proceedings.
(5). Accession and sign manual of the sovereign.

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(6). Seals.
(7). Accession etc. of public officers.
(8). Recognition of foreign States and their National Flags.
(9). Division of time, world geographical divisions etc.
(10). Indian Territories.
(11). Hostilities between India and other States.
(12). Members and officers of Court.
(13). Rules of Road and Matters of Public History.

8. ACCOMPLICE (SECTION 133).

Answer: An accomplice is not defined in the Indian Evidence, Act, 1872. Accomplice
means a guilty associate or a partner in crime. The accomplice is called “particeps
criminis” (Participant in a crime). The Participation may be before or after the crime.
If the accomplice participated before the crime, he is a participant in the preparation.
After the crime, means harbouring or concealing the crime. A reference is made in
this regard under Section 133.
Categories of accomplices: An accomplice is of three kinds:
(A). Principals of the first and second degree: A principal of the first degree is one
who actually commits the crime. A principal of the second degree is a person who is
present and assists in the perpetration of the crime. These persons are undoubtedly
under all the circumstances accomplices.
(B). Accessories before the act: An accessory before the fact is one who counsels,
incites, connives at, encourages or procures the commission of the crime. Of these
persons, those who counsel, incite, encourage or procure the commission of the
crime are certainly accomplices. The persons who do nothing but only connive at are
not accomplices. All accessories before the fact, if they participate in the
preparation for the crime are accomplice but if the participation is limited to the
knowledge that a crime is to be committed they are not accomplices. Persons to be
accomplices must participate in the commission of the same crime as the accused
persons in a trial are charged.
(C). Accessories after the crime: Every person is an accessory after the fact to a
felony, who knowing that a felony has been committed by another person receives,
comforts or assists him in order to escape from punishment; or rescues him from
arrest, or having him in custody for the felony, intentionally and voluntarily allows him
to escape, or opposes his arrest. Three conditions must unite to render one an
accessory after the fact: 1. the felony must be complete, 2. the accessory must have
the knowledge that the felony has been committed; 3. the accessory must harbour or
assist the principal felon.
Admissibility of accomplice evidence: It is to be noted that every person who is a
competent witness is not a reliable witness and the test of reliability is to be
satisfied through corroboration. Reasonable suspicion of mens rea is the test of
accomplice.
Section 133 Accomplice: An accomplice shall be a competent witness against an
accused person, and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.
According to the illustration to Section 114, an accomplice is unworthy of credit
unless he is corroborated in material particulars.
However, it is to be noted that the conviction based on the uncorroborated

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evidence of an accomplice is not illegal under Section 133, the courts, generally
should not convict a person on the basis of his uncorroborated evidence.
The evidence of an accomplice is held to be untrustworthy for three reasons:
(1) Accomplice is likely to speak false in order to shift the guilt.
(2) Accomplice, being a guilty associate is likely to disregard oath,
(3) The hope of pardon would lead him to favour the prosecution.
LONG ANSWER QUESTIONS

1. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT? ILLUSTRATE

(PLEA OF ALIBI SECTION 11).
Answer:
General theory of relevancy: The object of any trial is to establish or disprove a
particular claim or charge by evidence. Hence, any fact which either proves or tends
to disprove the claim of charge is relevant.
The general theory of relevancy is that any fact which either disproves or tends to
disprove the particular claim or charge is relevant.
Section 11 of the Evidence Act attempts to state in popular language the general
theory of relevancy thus:
“When facts not otherwise relevant become relevant” –
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or
improbable.
Illustrations:
(a). The question is, whether ‘A’ committed a crime at Calcutta on a certain day.
The fact that, on that day, ‘A’ was at Lahore is relevant.
The fact that, near the time when the crime was committed, ‘A’ was at a distance
from the place where it was committed, which would render it highly improbable,
though not impossible, that he committed it, is relevant.
(b). the question is, whether ‘A’ committed a crime. The circumstances are such that
the crime must have been committed either by ‘A’, ‘B’, ‘C’ or ‘D’. Every fact which
shows that the crime could have been committed by no one else and that it was not
committed by either ‘B’, ‘C’ or ‘D’ is relevant.
Alibi: Alibi is a Latin term which means elsewhere, Alibi is a claim or piece of
evidence that one was elsewhere when an alleged act took place; an excuse.
The term alibi is used to express that defence in a criminal prosecution, where the
party accused, in order to prove that he could not have committed the crime charged
against him, offers evidence that he was in a different place at the time.
Strict proof is required to prove the plea of alibi and the burden was on the
accused under Section 103. Defence of alibi, if true, is to be raised at the earliest
moment. The accused persons taking the plea of alibi have to make out the case of
their alibi and to satisfy the Magistrate that they were not present at the place of
occurrence on the day and time of the incident. The plea of alibi must be proved
with absolute certainty, so as to completely exclude the possibility of the presence of
the person concerned at the place of occurrence.
Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v Sher
Singh.
Some more alibis:

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 Non-access (the absence of the husband), in disproving legitimacy: Since the

legitimacy of a child implies a begetting by the husband, in disproving
legitimacy, it would be relevant to prove that the husband had no access to
the wife at the probable time of begetting.
 Survival of the alleged deceased.
 Commission of the crime by a third person.
 Self-infliction of harm: ‘A’ is charged with the murder of ‘B’ by administering
poison. Here ‘A’ can lead evidence under Section 11(1) to prove that ‘B’
committed suicide by consuming poison and it is relevant as it is inconsistent
with the fact in issue that ‘A’ administered poison to ‘B’.

2. ADMISSION, DISCUSS THE RELEVANCE OF ADMISSIONS.

Answer:
Definition:
According to Section 17 of the Indian Evidence Act … -“an admission is a statement,
oral or documentary or contained in electronic form, which suggests any inference
as to any fact in issue or relevant fact, and which is made by any of the persons, and
under the circumstances, hereinafter mentioned”-

According to Black Law Dictionary – “It is voluntary acknowledgement made by a

party of the existence of certain facts which are inconsistent with his claim in an
action”

Who can make an admission: As per Section 18 of the Evidence Act, the following
persons can make an admission:
1. Party to the proceedings in Criminal or Civil.
2. By his agent, authorised.
3. Parties to the suit, suing or sued in a representative character.
4. The persons having a proprietary or pecuniary interest in the subject matter,
such as joint owners of a property, co-defendants, partners to the document
of the mortgage deed, gift deed, title deed etc. are admissions,
5. A person from whom the party to the suit has derived his interest.
6. Persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute – Section 20.

Essentials of admission.
It must be ….
 Clear, certain and definite
 A voluntary acknowledgement of a fact
 Related to the question of fact in issue or relevant fact only
 A statement either oral or documentary or electronic form.
 Made by the persons prescribed by the Act
 Made under the circumstances prescribed by the Act
 Taken as a whole and not in part
 In the nature of the self-harming form

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Classification of admissions
Admissions can be broadly classified into two categories. They are;
a. Judicial or Formal admissions
Judicial admissions or formal admissions are made by a party during the
proceedings of a case. Admission in a pleading in the Court is a judicial admission
and it can be made the foundation of the rights of the parties. Judicial admissions
are fully binding on the party that makes them. They constitute a waiver of proof.
b. Extra-Judicial or Informal admissions
Extra-judicial admission is an informal statement made by the parties outside the
court. These admissions do not appear on the record of the case. They are usually
made in the course of casual conversation. Extra-judicial admissions are binding on
the party against whom they are set. However, they are binding only partially, and
not fully, except in cases where they operate as or have the effect of estoppels, in
which case again they are fully binding and may constitute the foundation of the
rights of the parties.

3. DEFINE CONFESSION. DISTINGUISH ADMISSION AND CONFESSION.

Answer:
Definition of Confession: Confession is admitting or acknowledging a fault,
wrongdoing, and crime. The word ‘confession’ appears for the first time in Section
24 of the Evidence Act, but it has not been defined in the Act.
 As defined in Tomlins Law Dictionary, confession is a direct admission or
acknowledgement of his guilty by a person who has committed a crime.
 According to Filz James Stephen, “A confession is an admission made at any
time by a person charged with the crime stating or suggesting an inference
that he committed the crime.” According to this definition a statement of an
accused will amount to a confession if it fulfils the following two conditions:
i). If he states that he committed the crime he is charged with, or
ii). If he makes a statement by which he does not clearly admit the guilt, yet
from the statement, some inference may be drawn that he might have
committed the crime.
Essentials of Confessions:
1. Confessions must be voluntary.
2. Confessions are declarations against the interest of the person making them,
3. Confession must be clear, definite and unequivocal, whether it is a judicial or
extra-judicial confession.
4. Confession must either admit in terms the offence or at any rate substantially
all the acts which constitute the offence.
5. The reason or motive for confession and the person in whom confidence is
reposed by the accused are essential for the truthfulness of the confession.
6. Confession must be related to the guilt of criminal nature.
7. Confessions should contain the admissions of incriminating facts relevant to
the offence such as motive, preparation, absence of provocation,
concealment of weapon and subsequent conduct which throw light upon the
gravity of the offence and the intention of knowledge of the accused.
8. Confession may be written or oral.
The distinction between ‘admission’ and ‘confession’:
1. The statement is genus, admission is species and confession is sub-species.

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2. The word ‘admission’ is defined by Section 17 of the Evidence Act but the
word ‘confession’ has not been defined in the Evidence Act.
3. Admission is a general term which suggests and inference as to any fact in
issue or any relevant fact while a confession is a statement made by an
accused person admitting that he has committed an offence or all the facts
which constitute the offence.
4. Admissions though generally are used in civil proceedings yet they may also
be used in criminal proceedings, whereas confessions are used only in
criminal proceedings to establish the commission of an offence by him.
5. The term ‘admission’ refers to every statement whether it runs in favour of or
against the party making it, but, a confession is the admission of the guilt in
reference to crime and therefore necessarily runs against the interests of the
accused.
6. An admission may be used on behalf of the person making it whereas a
confession always goes against the party making it except under Section 30.
7. An admission need not be voluntary to be relevant, though it may affect its
weight; but a confession to be relevant, must be voluntary.
8. The admissions made by an agent or even a stranger are relevant, but a
confession to be relevant must be made by the accused himself.
9. An admission by one of several defendants in a suit is no evidence against
another defendant whereas the confessions of one of two or more against
another defendant whereas the confessions of one of two or more accused
jointly tried for the same offence can be taken into consideration against the
co-accused (Section 30).
10. Admission is not a conclusive proof of the matters admitted though it may
operate as on estoppels. However, a confession is deliberately and voluntarily
made be accepted as evidence in itself of the matters confessed though as a
rule of prudence the courts may require corroborative evidence.
11. An admission made to any person whether he is a policeman or a person in
authority or whether it was the result of an inducement or promise is relevant,
but, in case of confession, it is not relevant unless such confession is free and
voluntary.
12. As per Section 23 of the Evidence Act, an admission made upon an
understanding that evidence of it would not be given is irrelevant but under
Section 29 of the Evidence Act, a confession made under a promise of
secrecy is relevant.
13. Statements made by certain persons, who are not parties to the case are
regarded as admissions against the parties under Sections 18-20 of the
Evidence Act, but a confession always proceeds from a person who has
committed an offence or is accused of an offence.
14. All admissions are not confessions but all confessions are admissions.
15. The acid test which distinguishes a confession from admission is that where
a conviction can be based on the statement alone, it is a confession and
where some supplementary evidence is needed to authorise a conviction, then
it is admission. And another test is that if the prosecution relies on the
statement as being true it is confession and if the statement is relied on
because it is false it is admission.
 Section 27 Confession given to a police officer.

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 Section 30 Consideration of proved confession affecting person making it and

others jointly under trial for the same offence.

4. WHAT IS DYING DECLARATION? ALSO, EXPLAIN WHEN IS IT RELEVANT AND

ADMISSIBLE?
Answer:
What is dying Declaration: A dying declaration is a declaration or statement written
or verbal or by gestures made by a person as to the cause of his/her death, or as to
any of the circumstances of that transaction which resulted in his/her death. It is a
statement, which must have been made by the deceased before his death. A dying
declaration is admissible both in civil and criminal cases.
Dying declarations are statements made by a dying person as to the injuries
which culminated in his death or the circumstances under which the injuries were
inflicted. For example, ‘A’ has been assaulted by B, or has been attacked by B, and
dies. A shortly before his death makes a declaration holding B responsible for the
injuries inflicted on him with a spear. This statement of A is admissible as it relates
to the cause of his death as a dying declaration at the trial against B. Statements
made by a deceased long period to the occurrences resulting in death are not dying
declarations and not admissible under the Section 32(1) of the Evidence Act.
Section 32 makes admissible, the statement of a person who dies, whether the
death is homicide or a suicide, provided the statement relates to the cause of death
or deals with circumstances leading to death.
Law relating to Dying Declaration: Section 32 of the Evidence Act states: Cases in
which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant – Statements, written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay or expense which,
under the circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:-
Section 32(1): When it relates to cause of death, when the statement is made by a
person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person’s
death comes into question.
Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under the expectation of death, and whatever
may be the nature of the proceeding in which the cause of his death comes into
question.
Illustration: The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was
ravished. The question is, whether she was ravished by B; or the question is, whether
A was killed by B under such circumstances that a suit would lie against them by A’s
widower.
Essentials or conditions for the relevancy and admissibility of dying declaration: In
order to admit a statement under Section 32(1) the following conditions must be

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fulfilled.
1. The declarant must have died. If the declarant does not die, the statement
will be dealt under Section 157.
2. The dying declaration must be a statement, written or oral or by gestures.
3. The declaration must be regarding Injuries are the cause of his death.
4. Circumstances of the transaction which resulted in his death.
5. The cause of the death of the declarant must be in question.
6. The declaration must be complete.
7. The dying declaration must be made as early as possible.
8. There should not be any chance for tutoring.
9. Declaration must be taken as a whole.
10. Declaration should be precise.
11. The declarant must be competent.
12. The declarant must be in a fit condition.
13. The statement must be recorded by a disinterested person e.g. Magistrate.
14. The declarant should give the statement voluntarily.
15. When the dying declaration is in instalments, it should be consistent; there
should not be any contradictions (Mukesh & Others v NCR Delhi, Nirbhaya
case)
16. Before recording the statement fitness certificate by a doctor is required.
17. Declarant's mental health, at the time of recording dying declaration, due to
the medicines administered to him also important.
Pakala Narayana Swami v. King Emperor (1939).
Reasons or justification for the admissibility and validity of dying declaration: The
admissibility of dying declaration is based on the maxim “Nemo moriturus
praesumitur mentire” which means “A man will not meet his Maker with a lie in his
mouth. The presumption is that when a person is conscious of his impending death,
when he is confident of his fast dissolution or when he has resigned from the hope
of survival, then in such cases he would not lie because “A man will not meet his
Maker with a lie in his mouth”.
The dead person cannot come and be a witness. The reasons for admitting the
evidence of dying declaration are:
(a) That it is the best evidence available,
(b) The occasion is solemn, and the dying man has to face his Maker without any
motive for telling a lie.
(c) He is the best eye witness.
Multiple Dying Declarations – J Ramulu v State of Andhra Pradesh, AIR 2008 SC
1505 at pp. 1509-1510.

5. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE.

Answer:
Opinions of third persons, when relevant (Section 45 – 51): As a general rule, the
Courts always see towards the direct evidence and tend to accept the evidence of a
witness, who saw or hear the fact. The Courts weigh only on direct and
circumstantial evidence. They do not consider the opinions of third parties when
they are irrelevant.
The Court is not an expert in every field. The rule of exclusion of opinion evidence
is relaxed and expert opinion is admitted to enable a court to come to a proper

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decision. Again, it is the duty of the Court to weigh the strength of the opinion.
Sections 45 to 51 of the Evidence Act lay down the general principles and
procedures about ‘opinion of third persons when relevant’.
The expert’s opinion, Section 45: “When the court has to form an opinion upon a
point of foreign law, or of science, or art, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such a
foreign law; science or art, or in questions as to identity of handwriting or finger
impressions are relevant facts. Such persons are called experts.
Illustrations:
(A) The question is, whether the death of A was caused by poison.
The opinion of experts as to the symptoms produced by the poison by which
A is supposed to have died are relevant.
(B) The question is, whether a certain document was written by A. Another
document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question of whether the two documents were
written by the same person or by different persons, are relevant”.
Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject.
In a general sense, an expert is a person of peculiar knowledge or skill; one who has
peculiar knowledge or skill as to some particular subject, such as any art or science,
or particular trade, or profession, or any special branch of learning; and is
professionally or peculiarly acquainted with its practices and usages.
 An ‘expert’ is a person who made a special study of the subject or acquired
special experience therein.
 An expert is a person who has special knowledge or skill in the particular
calling to which the enquiry relates.
 The person possessing superior knowledge and practical experience in a
particular field.
 Every expert need not have academic qualifications.
Kinds of experts: Some of the experts who are authorised to give opinion are:
doctor, chemical examiner, public analyst, motor vehicle inspector, coal expert,
geological expert, surveyor, valuer, crop valuation expert, an agricultural officer, a
goldsmith, auditor etc.,
Examples:
A. A goldsmith possessing technical work of gold, and having more years of
experience is an expert. He can tell how much percentage of gold and copper
are in an ornament. No academic qualification is required for it.
B. A photographer having longstanding experience in photography and have a
reputation as a good photographer in a certain locality is an expert in the field
of photography.
C. A doctor, having qualifications, and experience is an expert. When a person
died with the poison, the doctor can give a report after post-mortem. He can
estimate how much quantity of poison was and what type of poison
consumed by the deceased, and when consumed by the deceased, etc., such
type of analysis can be done only by an expert.
Admissibility of Expert Evidence: In Ramesh Chandra Agrawal v. Regency Hospitals
Ltd., it has been held that:
1. The subject-matter of the case requires the opinion of the expert,
2. The expert must be within a recognised field of experience.

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3. The witness called must be a real expert in that technical field,

4. The evidence must be based upon reliable principles.
5. It must be shown that the expert has made a special study or acquired a
special experience in the subject.
6. The expert must place before the Court all the materials, together with his
reasons for coming to the particular conclusion.
7. Expert evidence is really of an advisory character.
8. The duty of an expert is to furnish the judge with the necessary scientific
criteria for testing the accuracy of the conclusions so as to enable the Judge
to form his independent judgement by the application of these criteria with
facts proved by evidence of the case.
9. The Expert must be a disinterested person in the case.

6. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT?

Answer:
Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject.
In a general sense, an expert is a person of peculiar knowledge or skill; one who has
peculiar knowledge or skill as to some particular subject, such as any art or science,
or particular trade, or profession, or any special branch of learning; and is
professionally or peculiarly acquainted with its practices and usages, a person who
has technical and peculiar knowledge in relation to matters with which the mass of
mankind are supposed not to be acquainted, he who has some special, particular or
practical knowledge in relation to some special department of the affairs of men as
would qualify him to stand as an expert.
 An ‘expert’ is a person who made a special study of the subject or acquired
special experience therein.
 An expert is a person who has special knowledge or skill in the particular
calling to which the enquiry relates.
 The person possessing superior knowledge and practical experience in a
particular field.
 Every expert need not have academic qualifications.
Kinds of experts: Some of the experts who are authorised to give opinion are:
chemical examiner, public analyst, motor vehicle inspector, coal expert, geological
expert, surveyor, valuer, crop valuation expert, an agricultural officer, a goldsmith,
auditor, doctor etc.,
Examples:
A. A goldsmith possessing technical work of gold, and having more years of
experience is an expert. He can tell how much percentage of gold and copper
are in an ornament. No academic qualification is required for it.
B. A photographer having longstanding experience in photography and have a
reputation as a good photographer in a certain locality is an expert in the field
of photography.
C. A doctor, having qualifications, and experience is an expert. When a person
died with the poison, the doctor can give a report after post-mortem. He can
estimate how much quantity of poison was and what type of poison
consumed by the deceased, and when consumed by the deceased, etc., such
type of analysis can be done only by an export.
Relevancy of expert’s opinion: As a general rule, the opinion of the third persons is

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not allowed in the courts. But there are some exceptions to this rule. The judge is
an expert in the legal field. But he may not be expert in other fields like photography,
medicine, foreign law, architecture, art, science, handwriting, etc. When the particular
case requires the assistance of an expert in that field, it can be called for.
The opinion of the expert is admissible, to enable the court to come to a
satisfactory conclusion. The opinion of the expert is only opinion evidence. It does
not help the court in interpretation. The court is not bound to follow it blindly. The
expert cannot act as a judge or jury and the final decision is to be made by the judge.
As per Section 45 of the Evidence Act, the fields of expert are foreign law, science,
art, the identity of handwriting, and finger impressions.
The pre-requisites of expert evidence are:
1. The subject-matter of the case requires the opinion of the expert,
2. The witness called must be a real expert in that technical field,
3. The expert witness must be a truthful person,
4. Besides the experience and special knowledge, the expert witness must
possess the required academic qualification in some cases; every expert need
not have academic qualifications e.g. goldsmith.
5. The Expert must be a disinterested person in the case.
The expert witness must be subjected to cross-examination in the court. Mere
submission of his opinion on paper or certificates is not sufficient.
The expert opinion is only corroborative evidence. It need not be the sole basis
for the conclusive proof.

7. BURDEN OF PROOF (ONUS PROBANDI). GENERAL RULES RELATING TO BURDEN

OF PROOF.
Answer:
The burden of Proof Introduction: Whenever any person goes to a court of law in
order to seek redressal of any injustice caused to him, he has to establish his case
under certain statute or case law. But the rule of law applies only when certain other
circumstances and facts exist. Certain facts require no proof. All other relevant
facts, however, must be proved by evidence that is by the statement of the witness,
admission or confession of the parties and the production of the document. The
parties have to prove the existence of some facts or prove the non-existence of facts
and the responsibility of proving the facts is considered as the burden of proof.
General rules relating to Burden of Proof:
1. Burden Proof, Section 101 of the Evidence Act states that “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.
Illustrations:
a. A desires a Court to give judgment that B shall be punished for a crime which
A says B has committed.
A must prove that B has committed the crime.
b. A desires a court to give judgment that he is entitled to certain land in the
possession of B, by reason of facts which he asserts, and which B denies, to
be true.
A must prove the existence of those facts”.

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2. On whom burden of proof lies, Section 102 of the Evidence Act states that “the
burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
Illustrations:
a. A sues B for the land of which B is in possession, and which, as A asserts,
was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to retain his
possession. Therefore the burden of proof is on A.
b. A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by
fraud, which A denies. If no evidence were given on either side, A would
succeed as the bond is not disputed and fraud is not proved. Therefore the
burden of proof is on B”.
3. Burden of proof as to particular fact, Section 103 of the Evidence Act states that
“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 rule is known as the he who wishes to prove a particular fact must prove the
rule.
Illustration: A prosecutes B for theft, and wishes the Court to believe that B admitted
the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He
must prove it.
Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher
Singh.
4. Burden of proving fact to be proved to make evidence admissible, Section 104 of
the Evidence Act states that “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.
Illustrations:
a. ‘A’ wishes to prove a dying declaration by B. A must prove B’s death.
b. ‘A’ wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.

5. Burden of proving that case of accused comes within exceptions, Section 105 of
the Evidence Act states that “when a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence, is
upon him, and the Court shall presume the absence of such circumstances.
Illustrations:
a. A, accused of murder, alleges that, by reason of unsoundness of mind, he did
not know the nature of the act.
The burden of proof is on A.
b. A, accused of murder, alleges, that by a grave and sudden provocation, he was
deprived of the power of self-control. The burden of proof is on A.
c. A is charged with voluntarily causing grievous hurt under Section 325. The
burden of proving the circumstances bringing the case under Section 335 lies

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on A.
Plea of self-defence, the burden of establishing the plea of self-defence is on the
accused.
And describe remaining Sections 106 to 114A pertaining to Burden of proof.

8. DEFINE ESTOPPEL. EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL (SECTION

115).
Answer: Meaning: There is said to be an estoppels where a party is not allowed to
say that a certain statement of facts is untrue, whether in reality it is true or not.
Estoppel, or “conclusion” as it is frequently called by the elder authorities, may,
therefore, be defined as a disability whereby a party is precluded from alleging or
proving legal proceeding that a fact is otherwise than it has been made to appear by
the matter giving rise to that disability”.
 Estoppel is preclusion in law which prevents a man alleging or denying a fact
in consequence of his own previous act, allegation, or denial of a contrary
tenor.
 Estoppel is the preclusion of a person from ascertaining a fact, by previous
conduct/inconsistent therewith, on his own part, or on the part of those
under whom he claims.
 According to Tamlin’s law Dictionary “Estoppel is an impediment or bar to a
right action arising from a man’s own act; or where he is forbidden by law to
speak against his own deed, for by his act or acceptance he may be stopped
to allege or speak the truth.
 Estoppel arises where a man “has done some act which the policy of the law
will not permit him to gainsay or deny”.
Rule of estoppels: The rule of estoppels is based on the maxim “Allegans contraria
non est audiendus”, which means “A person alleging contradictory facts should not
be heard”. It is based on the principle that it would be most inequitable and unjust
that if one person, by a representation made or by conduct amounting to a
representation has induced another to act, the person who made the representation
should not be allowed to deny or repudiate the effect of his former statements, to
the loss and injury of the person who acted on it.
The principle of estoppels says that a man cannot approbate and reprobate, or
that a man cannot blow hot and cold, or, again that a man shall not say one thing at
one time and later on say a different thing.
Section 115 of the Indian Evidence Act, states “when one person has, by his
declaration, act or omission, intentionally caused or permitted another person to
believe a thing to be true and to act upon such believe neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such
person on his representative to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to
A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale
on the ground that, at the time of the sale, he had no title. He must not be allowed to
prove his want of title.
The elements of estoppels: As per Section 115 of Evidence Act,
1. Representation or declaration.
2. With the intention of inducing another person.

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3. The other person has believed and acted upon it.

4. Prevention of denial.
Kinds of estoppels: they are
1. Estoppel by record.
2. Estoppel by deed, and
3. Estoppel by conduct (estoppels in pais).
Case laws on the rule of estoppels:
Pratima Das v. The State of Orissa.
Smt. Gita Mishra v. Utkal University.

9. DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF WITNESSES

(SECTION 137).
Answer:
The purpose of the examination of witnesses:
a. To formally interrogate witness or an accused person.
b. To test critically the facts.
c. To investigate in order to form a judgment.
Various stages or steps of Examination to which a witness can be subjected
(Section 137):
1. Chief-examination.
2. Cross-examination.
3. Re-examination.
4. Re-cross examination.

1. Section 137 of the Evidence Act states that “Examination-in-chief:- The

examination of a witness by the party who calls him shall be called his
examination-in-chief.
Examination-in-chief means the party who comes to the court himself as a
witness. Where he comes as a witness he is given an oath in the witness box.
His name and address are taken down by the court. Then the advocate of the
plaintiff or defendant will be under a duty to elicit or explain the fact stated in
the plaint or written statement. Examination of the party by his own advocate
is called chief examination. The purpose of the chief examination is to give
the party a chance to place the facts before the court and explain all facts,
which require proof. The party will be placing his version with personal
knowledge. There are three rules about examination-in-chief:
(a). The chief examination must be confined to the facts in issue or relevant
facts alone. And, they must be made in a bonafide manner, where personal
opinion is irrelevant.
(b). In the chief examination, no leading questions are to be asked (Section
141).
(c). Questions which cause discredit to a witness should not be asked. The
witness can give evidence of facts only and not of law.
2. Cross-examination:- The examination of a witness by the adverse party shall
be called his cross-examination. After the party calling the witness has
finished the chief examination, the opposite party has a right to
cross-examine the witness. Cross-examination is an opportunity available to
the opposite party. It is one of the most useful methods of discovering the

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truth. It is a powerful and valuable weapon to test the veracity (correctness)

of the witness. Cross-examination need not be confined to matters proved in
the chief examination.
Main objects of the cross-examination:
(a). To weaken the witness.
(b). To destroy the case of the opponent.
(c). To establish one’s own case, by means of the opponents’ witness. If a
fact is stated in a chief examination and the witness is cross-examined on
that point it leads to the inference that the party accepted the statement. But,
there are exceptions to this rule. They are:
(i). the witness had notice before hand.
(ii). whether the story is incredible.
(iii). Non-cross examination due to delicacy of the matter.
Rules of cross-examination:
(a). The question must relate to facts in issue and relevant facts.
(b). Leading questions can be asked.
(c). A witness can be questioned of his previously recorded statements.
(d). A witness may be questioned on such fact which causes discredit to the
testimony of a witness.
3. Re-examination:- “The examination of a witness, subsequent to the
cross-examination by the party who called him, shall be called his
re-examination”. After the witness is cross-examined by the opposite party or
the party calling him again, then, this examination for the second time is
called re-examination. The purpose of re-examination is:
(a). To remove any suspicion that cross-examination has caused.
(b). To enable the witness to reconcile any contradiction.
(c). To enable the witness to state the whole truth.
Rules regarding re-examination:
(a). Leading questions must not be asked.
(b). Only such ambiguity arising out of cross-examination must be explained.
(c). All the rules followed in examination-in-chief should be followed.
4. Re-cross examination: In re-examination, new matters can also be
introduced with the permission of the court. If any new matters are introduced in
re-examination, again the adverse party has a right to cross-examine the witness
again.

PART C, CASES

1. SECTION 115, ESTOPPEL.

A. A intentionally and falsely leads B to believe that land belongs to A, and
thereby induces B to buy and pay for it. The land afterwards becomes
the property of A, and A seeks to set aside the sale on the ground that

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at the time of the sale, he had no title. Decide. (Sep 2018, May 2017,
Jul 2012)
B. ‘A’ OWNS A PIECE OF LAND OVER WHICH ‘B’ HAS NO RIGHT. BUT ‘B’
BUILDS A HOUSE ON IT ‘A’ KEEPS QUIET AND AFTER THE BUILDING IS
COMPLETED SUES FOR ITS DEMOLITION. DISCUSS WHETHER ‘A’
CAN BE ESTOPPED FROM ASSERTING HIS RIGHT. (SEP 2017, Aug
2015).
Answer: Case A.
Issue: Whether the sale by A is correct? Yes
Whether the claim by A, regarding the title is maintainable? NO
Whether “A” is stopped by Rule of Estoppel? Yes
Rule: Section 115 of The Indian Evidence Act, 1872 states that:
Estoppel – When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be
true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land
belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set
aside the sale on the ground that, at the time of the sale, he had no title.
He must not be allowed to prove his want of title.
Application: The problem is related to Rule of Estoppel, this rule prevents
a person from taking up an inconsistent position from what he has
pleaded or asserted earlier. The rule of estoppels is based on the principle
that it would be most inequitable and unjust.
Section 115 is based on the decision in Pickard v. Sears, in which it was
stated, “where a person by his words or conduct wilfully causes another to
believe in the existence of a certain state of things and induces him to act
on the belief so as to alter his own previous position, the former is
precluded from averring against the latter a different state of things as
existing at the same time.
Conclusion: In the instant problem, purchase of land by B is in good faith
and valid, whereas ‘A’ has induced the B to purchase the land. Hence A
cannot set aside the sale on the ground that, at the time of sale he had no
title. Even though at the time of the sale he was not having the title, but
subsequently he purchased the land. Now he is bound by the rule of
estoppels. And the land belongs to B.
In the second problem, the land and the house belongs to ‘B’. The
Silence of A is amounting to believe ‘B’ that the piece of plot belongs to B,
and based on the omission of the duty to stop the construction by ‘A’, he
has constructed the house. In Section 115, the word omission is there “act
or omission, intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself
and such person or his representative, to deny the truth of that thing” with
this provision in the Section, A has lost the right.

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2. SECTION 30, CONFESSION AGAINST THE CO-ACCUSED.

A. ‘A’ an accused person admitted that he along with ‘B’, the fellow accused
committed robbery. What is the admissible value of confession made by one
accused person against the co-accused? (September 2017).
B. X and Y are jointly tried for the murder of Z. X made a statement that “I
myself and Y murdered Z”. The prosecution intends to use this statement
against Y. Is it permissible? Discuss. (May 2017), (August 2015).
C. A and B are jointly tried for the murder of C. A said before the Court that B
and I murdered C. Can the court consider this confession against B? (August
2016).
Issue:
Whether it’s a joint trial? Yes.
Whether the joint trial is for the same offence? Yes.
Whether a joint trial is permissible by law for that offence? Yes.
Whether the statement by A is a confession? Yes.
Whether one accused can make a confession? Yes.
Whether one accused can make confession regarding the involvement of
co-Accused? Yes.
Rule:
Section 30 of the Evidence Act states that:
“Consideration of proved confession affecting person making it and otherwise jointly
under trial for same offence: - When more persons than one are being tried jointly for
the same offence, and a confession made by one of such persons affecting himself
and some other of such persons is proved, the court may take into consideration
such confession as against such other person as well as against the person who
makes such confession.
Illustration: A and B are jointly tried for the murder of C. It is proved that A said: ‘B’
and I murdered C. The court may consider the effect of this confession as against
‘B’.
Conditions for the application of Section 30:
1. There must be a joint trial.
2. The joint trial must be permissible under the law.
3. The joint trial must be for the same offence.
4. The statement must amount to a confession.
5. The court may take such confession into consideration.
Section 30 of the Evidence Act applies to confessions, and not to statements
which do not admit the guilt of the confession party.
Application:
The courts may consider the confession of the accused against himself and the
co-accused.
Section 30 is an exception to the rule that the confession of one person is entirely
inadmissible against another, where more persons than one are jointly tried for the
same offence.
In the instance case, the conditions laid down by Section 30 are followed, and the
confession is admissible.
Conclusion:
The confession is admissible against the co-accused.
3. Section 105, Burden of proof in case of claiming exceptions.

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A. A, accused of murder, alleges that by reason of unsoundness of mind, he did

not know the nature of the act. Decide. (Sep 2018), (July 2012), (May 2011).
B. ‘A’ is charged for committing murder. A alleges that by reason of
unsoundness of mind, he did not know the nature of the act. On whom the
burden of proof lies? Discuss (Sep 2017)
Issue:
Whether the accused can claim the exception? Yes
Whether exception is available under IPC for unsoundness of mind? Yes
Whether the burden of proof for claiming exception is on the accused? Yes
Rule:
The Section 84 of Indian Penal Code states that “Act of a person of unsound mind
– Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.
Section 105 of Evidence Act, 1872 states that “Burden of proving that case of
accused comes within exceptions, - When a person is accused of any offence, the
burden of proving the existence of circumstances bringing the case within any of the
General Exceptions in the Indian Penal Code, 1860, or within any special exception or
proviso contained in any other part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such
circumstances.
Application:
Section 105 of the Evidence Act contains two kinds of burden on the accused who
sets up an exception:
(i). the onus of proving the existence of circumstances bringing the case within any
of the general or special exceptions in the IPC or in any other law; and
(ii). The burden of introducing or showing evidence, which results from the last part
of the provision which says that the Court shall presume the absence of such
circumstances.
Under Section 105, the burden of proving the existence of circumstances bringing
the case within the exception lies on the accused and the Court shall presume the
absence of such circumstances.
In A.K.Choudhary v. the State of Gujarat, it has been held that in view of Section
105 of the Evidence Act the burden would be upon the accused to prove that the
case is falling under general exceptions.
Conclusion:
In the given case the accused can claim the general exception available under
Section 84 of IPC and the burden of proof (onus probandi) is on him, he has to prove
his unsoundness of mind.

4. Section 11, Alibi.

A. ‘X’ is charged for committing a crime at Hyderabad on a certain day. He
wants to prove the fact that he was at Delhi on that day. Is it a relevant fact?
If so which provision of the Evidence Act deals with it? (May 2017), (May
2011).
B. ‘A’ is charged for committing an offence at Warangal on a certain day. He
wants to prove that he was at Hyderabad on that day. Is it relevant? Discuss
the relevant provision of the Evidence Act. (August 2015).

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Issue:
Whether the accused can take the plea of Section 11 of Evidence Act? Yes
Whether the plea of accused is relevant to the fact in issue? Yes.
Rule:
As per Section 11 of the Indian Evidence Act, 1872, “when facts not otherwise
relevant become relevant. - Facts not otherwise relevant are relevant –
(i). if they are inconsistent with any fact in issue or relevant fact;
(ii). If by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations:
a. The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day. A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a
distance from the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it, is relevant.
b. The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed
either by A, B, C or D, every fact which shows that the crime could have been
committed by no one else and that it was not committed by either B, C, or D, is
relevant.
Application:
The given case is similar to illustration (a) of Section 11. Under sub-clause (1) of
Section11, facts are relevant because they are inconsistent with any facts in issue or
relevant fact. They are so diametrically opposed to the facts in issue that the
existence of those facts makes the existence of those facts in issue or relevant fact
impossible. Under Sub-clause (1) of Section 11, the facts are relevant because if
they are proved to exist the fact in issue or relevant facts can in no case exist.
Alibi is a claim or piece of evidence that one was elsewhere when an alleged act
took place; an excuse.
The term alibi is used to express that defence in a criminal prosecution, where the
party accused, in order to prove that he could not have committed the crime charged
against him, offers evidence that he was in a different place at that time.
Conclusion:
The accused can plead his case under Section 11 of the Indian Evidence Act; this
defence is available to him. By proving that, at the time of the crime he was
elsewhere and he can be discharged from the case.

5. Section 114, Court may presume existence of certain facts.

A. Soon after the commission of theft, stolen goods are found in possession of
‘X’. What type of presumption can be raised by the court in the trial of ‘X’?
Refer to relevant provisions of the Indian Evidence Act. (Sep 2017), (Sep
2012).
Issue:
Whether the above case comes under presumptions? Yes
Whether the court may presume that ‘X’ has stolen the goods or he has received the
goods knowing that they are stolen? Yes
Rule:
Section 114, Court may presume existence of certain facts. - The Court may

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presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.
Illustrations:
That a man who is in possession of stolen goods soon after the theft is either the
thief or has received the goods knowing them to be stolen unless he can account for
his possession.
The given case is same that of illustration (a) to Section 114.
Application:
Illustration (a) under Section 114 states that “The Court may presume that a man
who is in the possession of stolen goods soon after the theft is either the thief or
has received the goods knowing them to be stolen unless he can account for his
possession”.
Illustration (a) under Section 114 itself shows that the presumption will not arise
until two conditions are fulfilled, namely, the accused is in possession of the goods
soon after the theft and is unable to account for his possession.
In Virumal Mulchand v. the State of Gujarat, accused was found in possession of
stolen goods within two days of theft. He failed to furnish any explanation for his
possession. Held that, the presumption under illustration (a) of Section 114 can be
drawn and the accused can be convicted under Section 411 of IPC as receiver of
stolen property.
Conclusion:
In the given case, X is found with the stolen goods and the Court may presume,
under Section 114, that he has committed the theft.

6. Section 118, who may testify.

A. To prove that, ‘A’ murdered Y, C a child of 5 years was brought in as an eye
witness is it relevant? (Aug 2016) (Aug 2013).
B. ‘X’ was charged for killing his wife with an axe. Their son a child of four years
was beside them. The prosecution produced the child as a witness. There
was no other evidence. The Court convicted ‘X’ on the basis of evidence of
the child. Is the conviction valid? What is the legal position? (July 2012).
Issue:
Whether the child witness is competent to give witness? Yes.
Whether the conviction based on child witness is valid? Yes.
Whether the testimony of child witness is admissible? Yes.
Rule:
Section 118 of Evidence Act, 1872 states about the persons, who may testify:
All persons shall be competent to testify unless the Court considers that they are
prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of
body or mind or any other cause of the same kind.
Explanation – A lunatic is not incompetent to testify unless he is prevented by his
lunacy from understanding the questions put to him and giving rational answers to
them.
Comments: Evidence of child witness
(i). The deposition of a child witness may require corroboration, but in case his
deposition inspires the confidence of the court and there is not embellishment or

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improvement therein, the court may rely upon his evidence. Only in case, there is
evidence on record to show that a child has been tutored, the court can reject his
statement partly or fully.
(ii). Evidence of child witness is not required to be rejected per se; but Court as a rule
of prudence considers such evidence with close scrutiny and only on being
convinced about the quality thereof and reliability can record a conviction, based
thereon.
Application:
In criminal cases, with respect to children, a child of tender age may be allowed to
testify, if the court is satisfied that the child is capable of understanding the question
put to him and give rational answers to the court. No precise age is fixed by law
within which they are absolutely excluded from giving evidence on the presumption
that they have not sufficient understanding.
Competency of a child witness cannot be questioned if his evidence is otherwise
probable and true. A child witness is not an incompetent witness whose evidence
may have been always discarded.
The child witness who is below 12 years need not be administered the oath.
Conclusion:
In the given case, the child witness is competent.

7. Patent ambiguity, Section 93.

A. ‘A’ agrees in writing to sell his car to ‘B’ for Rs.400000/- or 500000/-. A tries
to produce oral evidence to show which price was to be given. Is it
permissible? Discuss (May 2017).
B. ‘A’ agrees, in writing, to sell his car to ‘B’ for Rs. 100000/- or Rs. 150000/- ‘A’
tries to produce oral evidence to show which price was to be given. Is
permissible? Discuss (Sep 2012).
Issue:
Whether oral evidence can be given? No
Is it patent ambiguity? Yes
Rule:
Section 93: Exclusion of evidence to explain or amend ambiguous document. –
When the language used in a document is, on its face, ambiguous or defective,
evidence may not be given of facts which would show its meaning or supply defects.
Illustration: A agrees, in writing, to sell a horse to B for Rs. 1000 or Rs. 1500.
Evidence cannot be given to show which price was to be given.
Application:
Section 93 of the Evidence Act deals with patent ambiguity – No oral evidence
can be given to remove a patent ambiguity. Under Section 93 when the language
used in the document is on its face ambiguous or defective, no evidence is
permissible to show its meaning or supply its defects. That is to say, when the
language used in a document is ambiguous on its very face and no definite meaning
can be given to it, no evidence can be given to facts which would make its meaning
clear.
In Keshaulal Lallubhai Patel v. Lalbhai T. Mills Ltd. The Supreme Court observed
that Section 93 is clear on the point that if on a fair construction the condition
mentioned in the document is held to be vague or uncertain, no evidence would be
admitted to removing the vagueness or uncertainty. It is the language of the

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document alone that will decide the question. It would not be open to the parties to
the court to attempt to remove the defect of vagueness or uncertainty by relying
upon any extrinsic evidence.
Conclusion:
In the given case, the document is not clear and having patent ambiguity. The oral
evidence is not permissible under Section 93.

8. Confession to a police officer and which leads to discovery of new fact (Section
27).
A. ‘X’ is accused of theft, during the police custody, he indicated the place where
the stolen goods were hidden and the police recovered those goods. Can this
information be used against A? (Sep 2018).
B. A, B and C are accused of murder of D. ‘A’ makes a statement to the
sub-inspector of police while in the custody that “I together with B and C
murdered D and have concealed his dead body under a culvert”. The dead
body was recovered in consequence of this information. Is the statement of
‘A’ admissible against him? Is it relevant against ‘B’ and ‘C’? (July 2012).
Issue:
Whether the confession before a police officer is valid if it leads to recovery of stolen
goods? Yes.
Whether the Confession admissible against the person making it? Yes.
Whether the confession made by one person against other accused/s admissible?
No.

Rule:
Section 27. How much of information received from accused may be proved. -
Provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.
Comments: Section 27 of the Evidence Act is applicable only if the confessional
statement leads to the discovery of some new fact.
Scope: Sections 24, 25, and 26 of the Evidence Act exclude certain confession.
Under Section 27 disclosure of statement leading to the discovery of fact is
admissible.
Application:
Requirements under Section 27: The conditions necessary for the application of
Section 27 are:
1. The fact must have been discovered in the consequence of the information
received from the accused.
2. The person giving the information must be accused of an offence.
3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact
discovered can be proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that some articles
were discovered in consequence of the information received from the
accused.

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In the given case the confession of the accused leads to recovery of stolen goods
and the confession is valid.
Section 27 is limited to the person confesses it.
Conclusion:
In the given case the confession is admissible and may be proved. And this
confession can be used against him.
The discovery statement to be used only against the maker: The statement leading
to discovery can be used only against the maker of the statement. It cannot be used
against non-makers.

9. Professional Communications (Section 126).

A. ‘A’ client says to ‘B’ an attorney, ‘I have committed murder’ of ‘C’ and I wish
you to defend me’. Can this communication be disclosed by an attorney?
(Sep 2018).
B. ‘A’, a client, says to ‘B’ a Lawyer, ‘I have committed a theft’ and requests him
to defuse him. ‘B’ intends to disclose this fact to the court. Is this fact
protected from disclosure? (May 2010).
Issue:
Whether the attorney can disclose the information? No.
Is the client protected by Professional communication? Yes.

Rule:
Section 126. Professional communications. – No barrister, attorney, pleader or vakil
shall at any time be permitted unless with his client’s express consent, to disclose
any communication made to him in the course and for the purpose of his
employment as such barrister, pleader, attorney or vakil, by or on behalf of his client,
or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to
disclose any advice given by him to his client in the course and for the purpose of
such employment.
Provided that nothing in this section shall protect from disclosure –
1. Any such communication made in furtherance of any illegal purpose,
2. If any fraud committed since the commencement of his employment.
Application:
A man of the legal profession is forbidden from disclosing without his client’s
consent
1. Any communication made to him in the course of and for the purpose of his
employment, or
2. The contents of the condition of any document which came to his knowledge
in the course of and for the purpose of his employment, or
3. Any advice by him to his client in the course of and for the purpose of such
employment.
This Section has been enacted for the protection of the client and not of the
lawyer. The lawyer is therefore bound to claim the privilege unless it is waived by
his client.
Conclusion:
In the said case the attorney cannot disclose the information which his client has
disclosed to him in course of his employment, the privilege does not get terminated

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by the termination of the litigation or the death of the parties.

10. Confession to police officer not to be proved (Section 25).

A. An arrested person confessed to the commission of a crime in a Police
Station and in the presence of DSP. Is such confession admissible as
evidence? (Apr 2011).

Issue:
Whether the confession made before a police officer admissible? No.
Rule:
Section 25 of the Indian Evidence Act, 1872: Confession to police officer not to be
proved - No confession made to a police officer, shall be proved as against a person
accused of any offence.
Admissibility: Section 25 makes a confessional statement of accused before police
officers inadmissible is evidence which cannot be brought on record by prosecution
to obtain a conviction.
Application:
In Section 25 the criterion for excluding the confession is the answer to the
question to whom the confession was made. If the answer is that it was made to a
police officer the law says that such confession shall be absolutely excluded from
evidence, the person to whom it was made is not to be relied on for proving such a
confession and he is moreover suspected of employing coercion to obtain a
confession.
The principle upon which the rejection of confession made to a police officer or
confession made by the accused while in the custody of such officer is founded is
that a confession thus made or obtained is untrustworthy. The broad ground for not
admitting confessions made to a police officer is to avoid the danger of admitting a
false confession. In order to secure a conviction in a case he may put the person so
arrested to severe torture and make him confess a guilt without having committed it
and when such steps are taken there is impunity for the real offender and great
encouragement to crime. Section 25 lays down that no confession made to a police
officer shall be proved as against the person accused of an offence.
 Ram Singh v Central Bureau of Narcotics.
Conclusion:
In the given case the confession of the arrested person in the police station
before the DSP is not admissible and cannot be proved against the accused.

11. Section 65, Cases in which secondary evidence relating to documents may be
given.
A. ‘X’ in order to prove his nativity brings a Photostat copy of the certificate
issued by the Revenue Officer. Can it be relied upon? (Aug 2016)

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 Evidence Act-2nd Semester

B. In a Civil suit, the plaintiff produced a Xerox copy of the original sale deed
as evidence. If so, when? (Aug 2015).

Issue:
Whether a Photostat copy is admissible? No.
Rule:
Section 65, Cases in which secondary evidence relating to documents may be
given – Secondary evidence may be given of the existence, condition, or contents of
a document in the following cases:
a. When the original is shown or appears to be in the possession or power –
1. Of the person against whom the document is sought to be proved, or
2. Of any person out of reach of, or not subject to, the process of the Court,
or
3. Of any person legally bound to produce it
4. And when, after the notice mentioned in Section 66, such person does not
produce it.
b. Existence of original admitted in writing,
c. Original destroyed or lost,
d. Original not easily moveable,
e. When original is a Public Document: According to Section 74 all the public
documents and records and public records kept in any state of private
documents.
f. When the original is a document whose certified copy is legally permitted.
g. When the original consists of numerous accounts or other documents.

Application:
The Clause (e) of Section 65 (regarding the Public Document Section 74) permits
only a certified copy of the public document to be given and no other form of
secondary evidence.
When the original is a public document, or when its certified copy is admitted a
certified copy of the original and no other secondary evidence is admissible.
Conclusion:
In the given case Photostat copy of a public document is not admissible.

*****

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