h20/03/23

EVIDENCE

BDO: Best, Direct and Original Evidence.

S. 59: Proof of facts by oral evidence. –– All facts, except the [contents of documents or electronic
records], may be proved by oral evidence.

Exception: S. 65. Cases in Which secondary evidence relating to documents may be given.

S. 60: Oral evidence must be direct.

Primary Evidence (S. 62)

Secondary Evidence (S. 63)

4/5 Rule.
Section 32. (Four categories of persons under whose absence the court considers their statements,
be it oral or documentary).

Section 33: The person has already gone examination-in-chief, i.e., he has already given evidence
once before the court and has been cross-examined by the adverse party. Whereas in Section 32,
only statement is considered and only those statements which has not been given before a court or
any competent authority.

Section 32(1): Dying Declaration: When it relates to cause of death. –– When the statement is made
by a person (a) as to the cause of his death, (b) 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 expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.

Statement written or verbal of relevant facts when made by a person 1,2,3,4 are considered under
Section 32:

Landmark case of Pakla Narayan Swami v King Emperor related to dying declaration. [32(1)(b)]

Declarant died of injuries to be proved: Moti Singh vs State of UP (1964). Before a statement of a
person as to cause of his death may be used as dying declaration, it must be proved that his death
first caused by the injuries he received in the incident and for which the accused has to be
prosecuted.

Statement about the death of some other person: Not admissible. Ratan Gond vs State of Bihar.
(1959).

Different forms of dying declaration: Queen vs Abdullah (dying declaration can also be given by
Gestures and Signs).
When a person can be convicted just on the basis of dying declaration? If a dying declaration is found
to be true and voluntary, it can be made the basis of conviction without any further corroboration.
(SP Devaraji vs State of Karnataka, 2009).

21/03/23

EVIDENCE

Difference between Section 32(1)(b) and Circumstantial evidence: In section 32(1)(b), we are not
considering the whole chain of circumstances but only those that specifically points out to the
transaction around his death.

Types of dying declaration

 There is no particular form to be employed in making the dying declaration, it can be oral,
written, gestures & signs, incomplete and can also be in the form of question-answer (best
form). It is not necessary that dying declaration is only considered in homicide cases, it is
also considered in suicide cases.

 In Abdul Sattar vs State of Mysore (1956), it was held that, if the declaration only talks about
circumstances and doesn’t mention about someone’s guilt, then it is an incomplete dying
declaration. But it can be used as a corroborative or contradictory evidence.

 Before taking DD, the magistrate needs to take a certificate from the doctor declaring that
the victim is fit to give declaration.

 Ram Bihari Yadav vs State of Bihar (1998): Generally, the dying declaration is recorded in
question and answer form, but sometimes it consists of only a few sentences and is in actual
words of the maker. The mere fact that it is not in question and answer form cannot be
ground against its acceptability or reliability.

 Normal person -> Doctor -> Police/investigating officer -> Magistrate (Proper know how of
the procedures). This is how evidentiary value’s weight increases.

Multiple dying declarations:

 Ganpat Mahadev vs State of Maharashtra: Here, all dying declarations were considered.
NOTE:

 In Indian evidence law, anticipation or expectation of death is not important.

 Difference between discharge and acquittal (Section 300 or CrPC): Once a person is
acquitted, charges cannot be brought against that person for the same alleged offences.

In Kaushal Rao vs State of Bombay (1958), Pakla Narayan Swami v Emperor was reiterated.

Evidentiary value of Dying declaration

Landmark case for dying declaration: Kalavati vs state of Maharashtra (2009) (It must be mentioned
in the exam if a question comes). In this case, the court held that there is a neither a rule of law nor
of prudence that a dying declaration cannot be acted upon without corroboration. Furthermore, if
the court is satisfied that the declaration is true and voluntary and not a result of prompting and
given in a fit state of mind, it can be a basis of conviction.

EVIDENCE LAW

Dying Declaration
  Conviction in murder case on the basis of truthful dying declaration even made to SI of police
and to the parents and not to the magistrate is sufficient to convict the accused if there
where other circumstantial evidence to support it. (Jaswant Singh vs the state)

 What evidentiary value or the weight has to be attached to such statements necessarily
depends upon the facts and circumstances of each case. The person who records a dying
declaration must be satisfied that the deceased was in a fit condition and stable mind to
understand the gravity of the situation while giving the statement. (Lakshman vs the State)

 Whenever dying declaration is considered, it must be proved with certainty that the person
giving such declaration has died.

 What if the declarant survives what is the relevancy of statement given? The statement can
be used under section 157 for the purpose of corroboration and section 145 for
contradiction and such statement becomes relevant under S. 164 (Recording of Confessions
and statements) of the CrPC.

 In K Ramchandra Reddy vs Public Prosecutor, it was held that, when an injured person
lodged an FIR and then dies immediately after that, the FIR would be held to be relevant as
dying declaration.

NOTE: Read before charge and after charge procedures under CrPC

Under Section 32(5), Statements are relevant if the person making the statement had special means
of knowledge about the relationship and the statement was made before the question or dispute
arose. If no special means of knowledge is proved, the statement is not admissible.

Under Section 32(6), any will or deed and it is relating to family affairs, it is considered under this
section provided it must be written and there is no necessity of proving of having any special means
of knowledge. (Evidence under this section is a pedigree evidence).

Difference between Clause 5 and 6 of Section 32: Both these clauses are similar in a way that they
relate to admissibility of evidence relating to “relationship”, but there are two differences. (a) In
clause 5 the evidence is the declaration of a person deceased or otherwise unproduceable whereas
under clause 6, the evidence is that of things such as will, family genealogical trees, etc.

(b) Under clause 5, it refers to relationship between any person alive or dead. Whereas under clause
6, it relates to relationship between persons who are dead. For e.g., A and B both are alive. The
question is whether A and B are related to each other as cousins? This can be proved by adducing
evidences in conformity with clause 5.

Again, suppose A is dead and B is alive. The question is whether A was grandfather of B? In this case,
the evidence can be brough on record provided by clause 5.

Now suppose C and D both are dead. The question is whether they are cousins? In this case, both the
clauses may be invoked but in the cases where one of the persons or both about whose relationship
the controversy has arisen are alive, clause 6 cannot be invoked.

(c) Statements made under clause 5 may be oral or written whereas under clause 6, it must be
written only.
(d) Under clause 5, the person making the statement must have special means of knowledge about
the relationship, but under clause 6, it is not necessary that the statement in wills, documents, etc.,
should have been made by a person having special means of knowledge about the relationship.

Several persons opinion becomes evidence under Section 32(8) and that statement is not hearsay.
For example, a group of persons give statement that A ran away with B. (Illustration N).

The requirement of oath and cross-examination, in case of dying declaration specifically, is dispensed
with. The situation in which a person is in his death bed is so solemn that, the situation is such grave
in which he is placed is that the reason in law to accept the veracity of the statement. The exclusion
of dying declaration may result in miscarriage of justice where the victim is the only eye-witness in
the serious offence. (Dashrath vs State of MP).

Section 33 (Section

32 is based on statements whereas, 33 is based on evidence)

 Under Section 32 statement covered by sub-section of this sections are relevant whether it is
written or verbal or whether in a judicial proceeding or not. But under section 33, only
evidence of a witness in a judicial proceeding or before a person authorized to take evidence
is relevant.

Section 34. Entries in Book of Accounts when Relevant

Section 35.

Section 36. Relevancy of Statements in maps, charts and plans.

Section 37.

Section 38.

Section 39.

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EVIDENCE

Section 24. Confession caused by inducement, threat or promise, when irrelevant in criminal
proceeding–– A confession made by an accused person is irrelevant in a criminal proceeding, if the
making of the confession appears to the Court to have been caused by any inducement, threat or 2
promise having reference to the charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the Court, to give the accused person grounds which would
appear to him reasonable for supposing that by making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against him

 The confession must have been made by an accused person to a person in authority.
  It must appear to the court that the confession has been caused or obtained by reason of
any inducement, threat or promise proceeding from a person in authority.

 The inducement, threat or promise must have reference to the charge against the accused
person.

 The inducement, etc. must be such that it would appear to the court that the accused, in
making the confession, believed or supposed that he would, by making it, gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against
him.

The expression made by an accused in the section includes any person who subsequently becomes
accused provided that at the time of making the statement criminal proceedings were in prospects.
Section 24 of evidence act would apply even if the person who is said to have made the confession
was not an accused person at the time when he made the confessional statement. A person who
afterwards becomes an accused may have made the confession. What is to be considered is it is
sufficient if a person ultimately comes to be an accused person with reference to the charges in
respect of which he said to have made the statements amounting to confession and such confession
would be controlled by S 24.

Palvindar kaur v state of Punjab: A wife had given her husband potassium cyanide and killed him
and that she, along with another person with whom she had an illegitimate relationship, had put the
deceased’s body in a trunk, loaded it into a jeep, and threw it into a well. There were no signs of
potassium cyanide poisoning, according to the post-mortem report. The Supreme Court in this case
held that, firstly, the definition of confession is that it must either admit the guilt or admit
substantially all the facts which constitute the offence; secondly, that a mixed-up statement which
even though contains some confessional statement will still lead to acquittal, is no confession. This is
so because a confession must either be accepted as a whole or rejected as a whole and the court is
not competent to accept only the inculpatory part (self-incriminating) and reject exculpatory part
(self-defence).

Difference between admission and confession

 A confession must either admit in terms the offence or at any rate substantially the facts
which constitute the offence. Any statements short of this will not amount to confession
even if by that some inferences of implication of the accused may be drawn.

 A confessional statement in a criminal case can be taken as an admission in a further civil

trial.

A confessional statement is a statement made by an accused person which is sought to be proved

against him in criminal proceedings to establish the commission of an offence by him. An admission
usually relates to civil transactions and comprises all statements amounting to admission under
Section 17,18,19 and 20.

Confession if deliberately and voluntarily made may be accepted as conclusive of the matters
confessed. Admissions are not conclusive (additional evidences can be asked) to the matters
admitted. However, in some cases, admissions may operate as an estoppel also.
Confessions always goes against the person making it, i.e., it is always self-harming. But admissions
may be used on the behalf of the person

making it under the exception provided under section 21.

Confession made by two or more accused jointly tried for the same offence can be taken into
consideration against co-accused also. Admission by one of the several defences in suit is no
evidence against the other defences.

Confession is statement, written or oral, which is direct acceptance of the offence. Admission, on the
other hand, is a statement, oral or written, which gives inferences about the liability of the person
making admission.

Ram Singh v State. The acid test which distinguishes a confession from an admission is that a
conviction can be based solely on conviction but when other evidence are required is called
admissions.

There are two types of confessions:

 Judicial: Made before a magistrate during a legal proceeding. Judicial confessions are those
which are made to a magistrate under S. 164 CrPC before the court during committal
proceedings or during trial. To prove judicial confession the person to whom judicial
confession is made needn’t be called as witness. They can be relied as proof of guilt against
the accused person if it appears to the court to be voluntarily and true. A conviction may be
made on judicial confession.

Evidentiary value of judicial confession: The confession of an accused person brought by

way of judicial confession is substantive evidence and a conviction can be based solely on
the confession provided the confession is truthful and voluntary.

 Extra-Judicial: Not before a court, not to a magistrate. They are made to person other than
those authorised by law to take confession. It maybe made to any person or to police during
investigation of an offence. They are proved by calling the person as witness before whom
the extra-judicial confession is made. They are alone cannot be relied, it needs support from
other supporting evidences. It is unsafe to base conviction on extra-judicial confession.

Evidentiary value of extra judicial confession: It is a weak piece of evidence and it must be received
with great care and caution. Usually as a matter of caution, courts require some material
corroboration to an extra-judicial confessional statement, corroboration which connects the accused
person with the crime in question and also which has to pass the test of credibility.

A confession recorded by a magistrate who is not authorised to take under Section 164 is an extra
judicial confession.

State of Punjab vs Harjag Dev Singh: Difference between extra-judicial and judicial confession. It
must be borne in mind that every inducement, threat or promise does not vitiate a confession.

A conviction on the basis of extra-judicial confession can be based only after subjecting the evidence
of witness to whom confession was made to rigorous test on the touchstone of credibility, i.e., the
extra-judicial can be accepted and can base a conviction also if it passes the test of credibility.
Communication of confession to others, is it essential or not? Sahoo v State of UP: The Court
clarified that; confession need not be made by the accused to someone else mere muttering is
sufficient. The Court also cited an example for better understanding which is, If A after murdering B
pens down in his personal diary that he murdered B, the words written in his diary will be a valid
confession under Section 17 of the Act.

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EVIDENCE LAW

Notice under 41(a) of CrPC

Its not necessary that a confessional statement should be conveyed to some person (Sahu Case).
(Sending message to oneself from different number will be counted as a confession)

Retracted Confessions: When a person goes back upon his/her confession owing to the violation of
S. 164 of CrPC. A court shall not base conviction on such a statement without corroboration.

Section 24 must be read with Section 28 and 29 (ITP by other than person in authority).

Confession received under Section 24 will only be regard to the particular charge at the case at hand.
Any confession regarding any other offence will not be considered in the present case or the case
pertaining to any other offence.

Section 167 of IEA: De Novo trial.

Section 28: A induced B to give confession. B gave the confession to the judicial magistrate believing
on A’s inducement. This will not be hit by section 24.

3/04/23

EVIDENCE LAW

Relevancy of Judgements

 Section 40-44

 Competent court and conclusiveness of the judgement.

 Section 11 of CPC talks about res judicata and section 300 of CrPC talks about double
jeopardy.

 When a previous judgement can be accepted as a relevant fact in a present case: (a) Section
41 (PAMI)

 Judgements in rem and not in personam are binding.

 Under Section 41, question of its existence of such legal character must be there then that
judgement is relevant.

The following three are to any legal character:

Conferring Judgement
Takeaway judgement

Declaring judgements

Entitle judgement to any specific thing.

 Remember Judgement, Order and Decree (JOD) in Section 41.

 Judgements are conclusive proof

 Decree comes after Judgement. Decree is just the operative part of the judgement.

 Section 42: This section is also an exception to the general rule that no one should be
affected by a judgement to which he not a party. It is important to note that judgement
relating to public matters or nature are relevant under Section 42 and it neither works as res
judicata nor they are conclusive proof.

 Section 43: It will go in neither 42 and nor in PAMI. When JOD is relevant under some other
provision of the Act. Illustration: A has filed a suit against B for ejectment from a property
where B is staying. Here, A has obtained a judgement against B.

 Character is irrelevant under Section 52

 Section 55: When character affects damages then evidence of character is relevant.

 Talking about relevancy of character in criminal cases, refer Section 53, 53A and 54.

In criminal cases, good character is relevant but not bad character except when the evidence is
negating the false character.

05/04/23

EVIDENCE LAW

ESTOPPEL

 Section 115: three ingredients: (a) Representation (b) Acted upon (c)

 The representation must be made with the intention to be acted upon and the
representation must have been acted upon.

 Representation can be by way of statement or by conduct also. (Declaration, act or

omission).

 Sharad Chandra Dey vs Gopal Chandra Laha: the doctrine of estoppel applies in cases
affecting rights of parties. Estoppel can be described as rule of creating or defeating rights.
Though, estoppel is described as merely rule of evidence and may have the effect of creating
substantive rights as against person estopped.

 Premanand vs Champalal (1996): The court here held that when the party is affected by the
representation had come to know before he had acted upon that the representation was
false, he can’t claim the rule of estoppel.
  BL Shreedhar vs KM Munnireddy (2003):

Estoppel means to estop in general if a person said certain thing which the other person believed
and acted upon accordingly, and by doing so, he has suffered loss, i.e., by spending money/interest
loss, and then the person states that he doesn’t wants to continue with the transaction, then in this
case, estoppel will operate by section 115 of the IEA. But if the person knows the truth and still he
acted upon then no estoppel will lie (reasonable inquiry and future transaction).

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EVIDENCE LAW

Who can be witness (Chapter IX. – Of witness)

 Competency, Compellability, Privilege

 Section 118.

 Characterisation of witness: (a) Chance witness: The person was by chance present at the
scene (b) Interested witness: Interested in the conviction of the accused (c) Expert witness:
Exercising their skill while providing evidence (d) Hostile witness: Section 157 of the IEA.
Only the procedure has been laid but who exactly is a hostile witness is not defined. (e)
Police as witness: Bheema Bai vs Suresh Dayanand Kesar (f) Eye witness (g) Injured witness

 Child witness: Considering the competency of a child, evidence act doesn’t prescribe any
particular age for determining the competency of a child witness and they can be permitted
to testify if such child witness has intellectual capacity to understand questions and give
rational answers.

Whether a child witness is competent or not, we must check that he must understand the questions
and he must be in a position to give rational answers to the questions. Voir-Dire Test. (Ram Huzur
Pandey vs State AIR 1959 AL 409)

Voir dire test:

Under this test the court puts certain preliminary questions before the child which have no

connection with the case, in order to know the competency of the child witness. Some examples of
the questions asked under this test can be that regarding their name, father’s name or their place of
residence. When the court is fully satisfied after hearing the answers to these preliminary questions,
as to the capability of the child to understand these questions and to give rational answers thereto.

Challenges: They can be easily tutored. They can depose false things just for the sake of fame or
excitement.

Evidentiary value of child witness: Nirmal Kumar vs State of UP.

In Nirmal Kumar v. State of U.P, 1992, the Supreme Court stated that a
child’s evidence should be scrutinised carefully and that the court should
seek some form of corroboration because corroboration is more of a norm of
practical judgement than of law.
The testimony of the child witness is very likely to be taught and should be
accepted only after careful consideration. Because of fear and temptations,
the child may testify about things he has not seen. The court must carefully
consider whether the child witness is under any teaching influence. However,
the evidence should not be dismissed as he is likely to be taught because of
his soft age.

Privileged Communication (Section 120)

 Section 122: Spousal communication. Under this section, the partners shall not be compelled
nor shall be permitted. Conduct is permitted to be disclosed. (Ram Bharose vs State of MP
and M.C. Verghese). NOTE: Write about Before, During and After marriage in exam.

Exception: when disclosure is permitted by the partner.

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

 If the party who made the communication consents to its disclosure

i.e. waives the privilege, then the evidence of privileged
communication can be given.
 In Suits or criminal proceedings between the two spouses.
 Communications made before marriage or after dissolution of
marriage.

In another landmark case of M.C. Verghese Vs. T.J. Poonan and Anr., the
Supreme Court held that only communications that took place during the
marriage are protected under the privilege mentioned in Section 122 of the
Evidence Act. The protection continues even after the dissolution of marriage
or the death of one of the spouses. Communication before the marriage or
after the dissolution of a marriage doesn’t come under the purview of sec
122.

Judges and Magistrates (Section 121)

Professional Communication (Section 126)

Section 123, 124, 125

Accomplice (s. 133)

 Who is some way or the other with the offence in question.

 s. 133 + 114 (illustration B). According to the illustration, an accomplice is unworthy of credit
unless he is corroborated in materials particular which implies corroboration is must. But at
the same time, section 133 says that no corroboration is required. After reading both the
sections, it appears that both the sections are contradictory to each other. However, the
above doubt can be cleared having a harmonious of these two sections. In a particular case,
where corroboration is available, then it must be done. When no corroboration is available,
then courts shall act upon the evidence of accomplice only. (Dagdu vs State of Maharashtra
1977)

ELD: (1) There is no antithesis between s. 133 and

illustration (b) to section-114 'of the Evidence Act
because
the illustration only says that-the-Gourt may
presume a
certain state of affairs under s. 114 of the
Evidence Act
The Court may 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-
theparticular casee. Under s. 133 -of the Evidence-Act,
an
accomplice shall be acompetent wireess against an
accused
person and a conviction is not illegal merely because
it
proceeds upon-the uncorroborated testimony of an
accomplice:
[643 B-C]
(2) Though an accomplice is,a competent witness and
though a conviction may lawfully rest upon his
uncorroborat-
 ed testimony yet the court is entitled to presume and
may be
justified in presuming in the generality of cases that
no
reliance can be placed on the evidence of an
accomplice
unless that evidence is corroborated in material
particulars, by which is meant that there has to be some
independent evidence tending to incriminate the particular
accused in the commission of the crime.

Chapter IX – Of the examination of witness

 Section 135.

 Section 136. Read Illustrations.

 Section 137

 Section 138. In examination in chief, we introduce the facts, but at the same time, it is
explanation of matters referred in the cross examination.

 Section 139.

 Section 140-143.

Hostile witness (S. 154)

 Exact definition of hostile witness is not given.

 In examination-in-chief and cross examination, statements are contradictory.

 According to the right given by section 154, one can cross-examine its own witness only
when the witness has turned hostile. Furthermore, testimony given by such witness at initial
stage cannot be discredited completely. (Prafulla Kumar sarkar and ors vs Emperor 1931). It
was held that the evidence of such a witness in not to be rejected either in whole or in part
and it is also not to be rejected so far as it is in favour of the opposite party. The whole of the
evidence so far as it affects both the parties favourably must go to the jury for what it is
worth for.

 Mahindra Chawla vs UOI: Witnesses are turning hostile and one of the major reasons for
this is lack of witness protection scheme. Witness Protection Scheme of 2018. A police
officer has to make a threat analysis report. This scheme has not been implemented properly
all over India.

Zaheera Habibullah Sheikh and Anr Vs State of Gujarat (2006): The Indian judiciary is actively
protecting the witnesses from threat, coercion and corruption and other extraneous factors, such
trial would not be considered as fair if it is proved that witness gave statements due to coercion. It is
a state’s duty to protect the witness. There is no role of courts in the WPS 2018.

17/04/2023

EVIDENCE

Primary evidences under 62, Secondary evidences under 63.

Under Section 61 to 66, it deals with how the contents of a document are to be proved. Under
Section 67 to 90, it deals with how the document is to proved to be genuine. Under Section 91 to
100, it deals with how far and in what cases oral evidences are excluded by documentary evidences.

4/5 rule: in 4 ways, section 62 says what documents can be said to be primary document. In 5 ways,
Section 63 says what documents can be said to be secondary document.

Section 62 (4 rules):

 (I) The document itself (original)

 (ii) When a document is executed in several parts: Three persons A, B and C partitioned
their property in three different shares. The said portioned deed has to be registered and
executed by each of them as all of them wants to have a copy with them. These three deeds,
each describing the distant shares, of the partners will be prepared and signed by all of
them. All these three deeds will be primary document and original.

 (iii) Documents executed in counterparts: Where a document is executed in counterparts,

each counterpart is executed by one of the parties to the deed, each counterpart is a
primary evidence against the party executing it and secondary against the other parties.

 (IV) Document made by uniform process: E.g., Carbon Paper. When a number of documents
are prepared by one uniform process such as printing or photography, each is primary
evidence of the contents of the other but where they are all copies of a common original,
they are not primary evidence of the contents of the original.

Section 63 (5 rules)

 (I) Certified copies given under the provisions herein contained:

 (II) Copies made from the original by mechanical process which in themselves insure the
accuracy of the copy, and copy compared with such copies.

 (III) Copies made from or compared with original.

 (IV) Counterparts of documents as against the parties who did not execute them.

 (V) Oral accounts of the contents of a document given by some person who has himself seen
it. It is an exception when the document is lost.

Primary and secondary evidence: Primary evidence is original document which is presented before
the court for inspection. SE is a document which is not original document but those documents
which are mentioned under Section 63. PE is the best evidence in all circumstances while SE is not
the best evidence but is evidence of secondary nature and is admitted in exception cases. No notice
is required before giving PE, but it is required before giving SE. The value of primary evidence is high
while the value of SE is not as that of the PE.

Section 65

 (i) When the original is shown to be in the possession of adverse party.

 (ii) When the original is in possession of a person out of reach or not subject to the process
of court.

 (iii) When the original is in possession of a person legally bound to produce it but even after
notice under Section 66, they don’t produce it.

 (iv) Where the existence of the contents of the original have been admitted.

 (v) When the original has been destroyed, lost or cannot be produced.

 (vi) When the original is not easily movable.

 (vii) When the original is a public document. E.g., birth certificate

 (viii) Certified copies permitted by the act. E.g., Banker’s bank evidences.

 (ix) when the original consists of numerous accounts or other documents which are huge in
nature which cannot conveniently be examined in court and the fact to be proved is the
general result of the whole collection.

Section 66

 Rules as to notice to produce.

CONFESSION

 Section 24 read with S. 28

 Confession given to a Police is not accepted. Who is a police officer? A person who has
power to investigate the case and frame chargesheet under Section 173 of the CrPC. E.g.,
Confession before an officer of excise act. Abdul Rashid vs State of Bihar (2001).

 Confession to police when accepted: Confession before an officer of Custom act and NDPS
act won’t be hit by Section 25 of the IEA.

 Section 26: If police is there while giving confessions to the magistrate, the confession won’t
be accepted. (S. 164 of the CrPC).

 Section 27: Confession which proves direct guilt won’t be accepted if given to the police. But
a part of that confession will be accepted if it will aid in discovery of certain other facts.
[Pandu Ram vs State of Maharashtra (2002)]

Section 34: Statements made under special circumstances

Section 45 (Expert Witness)

 Special knowledge, skill and experience (must be written in exam).

 An expert is one who has acquired special knowledge, skill or experience in any science, art,
trade or profession and also such knowledge may have been acquired by practice,
observation or careful study. [Collector of Jabalpur vs A.R. Jahangir (1971)]

 E.g., DNA report, Ballistic expert, handwriting expert, firearm expert. Narco-analysis and
brain mapping test validity. (Selvi vs State of Karnataka). Violates 313 of the CrPC.

 Evidentiary value of expert witness: It is only a piece of evidence and weight to be given to
it has to be judged along with the other evidences of this nature and again which is not
conclusive. Such evidence therefore cannot be taken as substantial piece of evidence unless
corroborated by other evidence. In S. Gopal Reddy vs state of Andhra Pradesh (1996), the
court here held that expert evidence is a weak type of evidence. The courts don’t consider it
as conclusive and therefore it is not safe to rely on it without seeking independent and
reliable corroboration.

Section 59, 60 (To explain best evidence rule).

18/04/23

EVIDENCE

Attested Documents and Non-attested Documents.

Registered documents and Non-registered Documents.

Stamped Documents and Unstamped Documents.

Burden of Proof (S. 101)

 Whoever asserts, burden of proof lies on that person. (Must be written in exam).

 In criminal case it is accepted principle of criminal jurisprudence that burden of proof is

always on the prosecution, it never changes. This conclusion is derived from the fundamental
principle that the accused shall be presumed to be innocent till he is proved guilty beyond
reasonable doubt and the accused had got right to take benefits of these reasonable doubts.

 Under S. 101, burden of proof is of two kinds, (I) BOP on pleadings (II) Burden of adducing
evidences.

 The burden of proof that arises from the pleadings depends upon the facts asserted or
denied and is determined by the rules of substantive and statutory law or by presumption or
law or fact.
  The burden of adducing evidence rests on the party who would loose if no evidence is led by
any of the parties

On whom burden of proof lies (S. 102)

Difference between burden of proof (S.101) and onus of proof (S. 102). Burden of proof cannot be
shifted.

Burden of proof as to a particular fact (S. 103)

S. 104: Dying Declaration. That the person is dead.

S. 105.

S. 106.

S. 107.

 It has been laid down under section 107 that if a person is proved is proved to have been
living within 30 years, it shall be presumed that he is alive and the burden of proving that he
is dead lies on that person who affirms that he is dead.

S. 108.

 When it is proved that a person hasn’t been heard for about 7 years by those who would
naturally have heard of him if he had been alive, the burden of proving that he is living is
shifted to the person who affirms it.

S. 109.

S. 110

S. 111

S. 112

 Dipanwita Rao vs Pranabroto Rao

 The question that has to be answered in this case, is in respect of the alleged
infidelity of the appellant-wife. The respondent-husband has made clear and
categorical assertions in the petition filed by him under Section 13 of the Hindu
Marriage Act, alleging infidelity. He has gone to the extent of naming the person,
who was the father of the male child born to the appellant-wife. It is in the process
of substantiating his allegation of infidelity, that the respondent-husband had made
an application before the Family Court for conducting a DNA test, which would
establish whether or not, he had fathered the male child born to the appellant-wife.
The respondent feels that it is only possible for him to substantiate the allegations
levelled by him (of the appellant-wife's infidelity) through a DNA test. We agree
with him. In our view, but for the DNA test, it would be impossible for the
respondent-husband to establish and confirm the assertions made in the pleadings.
We are therefore satisfied, that the direction issued by the High Court, as has been
extracted hereinabove, was fully justified. DNA testing is the most legitimate and
scientifically perfect means, which the husband could use, to establish his
assertion of infidelity. This should simultaneously be taken as the most authentic,
 rightful and correct means also with the wife, for her to rebut the assertions made
by the respondent-husband, and to establish that she had not been unfaithful,
adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.
 12. We would, however, while upholding the order passed by the High Court,
consider it just and appropriate to record a caveat, giving the appellant-wife liberty
to comply with or disregard the order passed by the High Court, requiring the
holding of the DNA test. In case, she accepts the direction issued by the High
Court, the DNA test will determine conclusively the veracity of accusation
levelled by the respondent-husband, against her. In case, she declines to comply
with the direction issued by the High Court, the allegation would be determined by
the concerned Court, by drawing a presumption of the nature contemplated
in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h)
thereof. Section 114 as also illustration (h), referred to above, are being extracted
hereunder:

Kanti Devi vs Poshiram (2001)

In the present case the plaintiff has examined all the evidence which he possibly could
do in the circumstances. He has proved by convincing evidence, that he did not visit his
village or house where the defendant was allotted one room. He has further proved that
the defendant also never visited him at Mandi where he had been living for more than 2
year before the child was born to Kamti Devi. In other words he has proved that he had
no access or opportunity for sexual intercourse with defendant No.1 for more than 280
days before Roahan Lal (defendant No.2) was begotten by the defendant No.1 The said
conclusion was reached on the strength of the evidence adduced by both sides and the
first appellate court was satisfied in a full measure that the plaintiff-husband had no
opportunity whatsoever to have liaison with the defendant mother. The finding thus
reached by the first appellate court cannot be interfered with in a second appeal as no
substantial question of law would have flowed out of such a finding.

Recently by the Supreme Court in Kanti Devi v. Poshi Ram 200(CS) SCC 311 = AIR 2001 SC 2266. That case
concerned DNA evidence but the Supreme Court refused to permit the evidence on the ground that except 'non-
access' no other evidence is permissible to prove that a person is not the father.
Sections 25, 26, 27.—
The scope and effect of the provisions of these sections are as follows522:—
(i) No confession made to a police-officer by an accused person whether in custody
or not can be proved against the accused unless it be made in the immediate
presence of a Magistrate.
(ii) So much of the information received from a person accused of an offence in
custody of a police-officer as relates distinctly to the fact thereby discovered is
admissible under section 27 and can be proved against him; but any statement
made to a police-officer which connects the fact discovered with the offence
charged is inadmissible.
(iii) The statement of the accused while in police custody regarding the
concealment of any article or the accused's knowledge of its whereabouts and
the discovery in consequence of the said statement is admissible in
evidence.

[s 29.1] Principle.—

A relevant confession does not become irrelevant because it was made—

(1) under a promise of secrecy; or
(2) in consequence of a deception practised on the accused; or
(3) when the accused was drunk; or
(4) in answer to questions which the accused need not have answered; or
(5) in consequence of the accused not receiving a warning that he was not bound to
make it and that it might be used against him.