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Evidence Act-2nd Semester

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Harinath Janumpally Practicing

Advocate
Advocate in Civil &
Criminal Matters 1

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Harinath Janumpally – [email protected]

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B.Com; MBA; LLB & Medchal & Other Courts

(Studying LLM in OU Campus) Mob: 94406 29864
Mail: [email protected]
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.
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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.
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.No
. Particulars Sec
1 Evidence 3
2 Presumptions 4
3 Alibi 11
4 Admission 17
5 Confession to police & recovery of 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.
 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”. 3

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 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.

 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
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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
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. 5

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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 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.
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(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 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.
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“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 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? 8

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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.
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
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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
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’
agree, 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 10

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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.
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
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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.
(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
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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 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.

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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:
 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.
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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

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.
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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.
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.
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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.
 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
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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 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’.
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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.
3. The witness called must be a real expert in that technical field,
4. The evidence must be based upon reliable principles.
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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 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
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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”.
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:
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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 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 22

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“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.
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.

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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 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.
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(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 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
o Whether the claim by A, regarding the title is maintainable? NO
o 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.
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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.

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.
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Rule:
Section 30 of the Indian 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.

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
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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).
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,
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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.

CASE: 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 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 of the Indian Evidence Act,
1872.

Application:
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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 the Indian 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 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 30

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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 of the Indian Evidence Act, 1872: 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 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.
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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 of the Indian Evidence Act, 1872. 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.
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.
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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 of the Indian Evidence Act, 1872. 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 by the
termination of the litigation or the death of the parties.

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

Case: 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). 33

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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 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 lies 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)
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 of the Indian Evidence Act, 1872, 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 – 34

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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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