Law of Evidence

Q1: What is the purpose and main features of the Indian Evidence Act?
Purpose/ significance of Evidence law:
Evidence is the “Key” which a court needs to render a decision. Without evidence there can be no
proof. Evidence provides the court with information. Proving facts through the presentation of
evidence mean convincing court to accept a particular version of events. Of course, one can search
truth even through violating the constitutional rights of the parties. However, evidences obtained
through unlawful means could not contribute for the maintenance of justice in the future. So, the
process of proof should be regulated by evidentiary rules and principles in order to achieve
accelerated, fair and economic Justice.
In both criminal and civil proceedings, the law of evidence has a number of purposes. In short, the
law of evidence regulates the process of proof. The rule of civil and criminal evidence, in
conjunction with the rules of procedure, establish the frame work for the process of proof and the
conduct of litigation, so that a lawyer advising his client or preparing his case for trial or presenting
it to the court or tribunal will know what issues his client must prove in order to succeed.
Main features of Indian Evidence Act, 1872
1. The Indian Evidence Act 1872 is divided into three parts, 11 chapters and comprises of
167 sections. Part I of the act deals with the Relevancy of facts, Part II deals with proof
and the various kinds of evidence and Part III deals with the Production and Effect of
evidence.
2. The Act came into force on September 1, 1872.
3. It applies to the whole of India except Jammu and Kashmir.
4. The Act applies to all judicial proceedings in a court including court martials other than
courts martial convened under the Army Act, the Naval Discipline Act, the Air force Act.
5. It does not apply on affidavits presented to any Court or Officer and arbitration.
6. The Act is based on English Evidence law with few exceptions.
7. The Indian Evidence Act ,1872 applies to both civil and criminal proceedings.
8. The Act is not exhaustive. There are many statutes which supplement the Evidence Act
Some of them are-
a. CRPC
b. CPC
c. Bankers book evidence act
d. Stamp act
e. Indian Limitation Act
9. The Act deals particularly with the subject of evidence and its admissibility. It is a special
law which defines, consolidates and amends the laws of evidence.
10. Parties cannot contract to exclude the provisions of the Act. Evidence excluded by the Act
will be inadmissible even if essential to ascertain the truth.
11. The Act stipulates that evidence in a court must be given of facts in issue and relevant facts
alone.
12. The Act is dynamic in nature and has evolved with time. Two of the most recent
developments in the act came with Information Technology Act, 2000 and Criminal law
(amendment) act, 2013.

Q2: Define Evidence. What are the different Kinds of evidence ?

Section 5 of the Evidence Act says," Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such other facts as are hereinafter declared
to be relevant, and of no others."The Section says that 'Evidence may be given....' But what is
Evidence? This word is used in common parlance in three different senses (a) as equivalent to
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relevant (b) as equivalent to proof, and (c) as equivalent to the material on the basis of which courts
come to a conclusion about the existence or non existence of disputed facts. For example we may
say, the presence of an accused person near the scene of the crime just before the crime was
committed, is evidence that he may be guilty; whereas his presence after the crime was committed,
at the same place, is not evidence of the guilt of the accused. In this statement the word is used as
equivalent to relevant. Again we may say that the possession of stolen article immediately after
the theft is evidence of the fact that the person in whose possession it is found is either theft, or a
receiver of stolen property. In this statement, the word is used as equivalent to proof, which is
really the effect of evidence. But it is neither of these senses that the word is used in the Act. It is
used in the third sense mentioned above, namely, as equivalent to the material placed before the
Court on the basis which the court comes to a conclusion as to the existence or non existence of a
disputed fact. It is defined in Section 3 of the Act as bellow:
Definition
“Evidence”.—“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 inquiry, 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.
The definition of word "evidence" Under Section. 3 of Indian Evidence Act is explanatory and not
precise. It consist oral evidence and documentary evidence. Oral evidence is evidence of the fact
brought to the knowledge of the court by the verbal statement of witness, quality to speak on the
point he testifies. It includes all statements, which the court permits or requires to be made before
it by witness with regard to matter of fact under inquiry.
Dcumentary Evidence is evidence of the fact brought to the knowledge of the court by inspection
of the document produce before the court. Oral evidence is verbal testimony of the witness
whereas the documentary evidence is written testimony of a witness of the document. Oral
evidence is adduced, documentary evidence proved before it is admitted as evidence.
There are following kinds of Evidence:
1) Direct Evidence -It is also known as 'positive evidence'. Evidence given by direct witness /
eyewitness is called Direct Evidence. Direct Evidence is the testimony of a witness to the existence
or non existence of a fact or fact in issue. It is evidence of fact actually perceived by a
witness with one of his own senses.
Illustrations: A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye
witness. A sues B for breach of contract C deposes that he was present at the time of agreement
entered into between A and B witnessed. In this Example C is the direct witness/ Eye witness.
2) Indirect / Circumstantial Evidence - In cases, where direct evidence is not available, then
circumstantial evidence can be resorted to. Circumstantial evidences is that which tends to
establish fact in issue by proving another fact which though does not itself conclusively establish
that fact, affords and inference as to its existence. Circumstantial evidence is that which tends to
establish the fact in issue by proving another fact which, though, does not conclusively established
that fact, affords and inference as to its existence. In simple words, circumstantial evidence is a
testimony by witnesses as to the circumstances from which an inference is to be drawn as to the
fact in issue. where direct evidence is not available then, circumstantial evidence can be resorted
to. Example: X is charged with the murder of Y. At the trial, a witnesses Z, on behalf of the
prosecution, gives evidence that he saw X stab Y or, Z may make the statement that he saw X
running away from the place where Y's corpse was found, with a blood-stained knife in his hand.
In the first case, the evidence given by Z is usually referred to as direct evidence and in the second
circumstantial evidence.
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Case Law : A. C. Lagu Vs State of Bombay AIR 1960 SC 500; 1960scj 779 In this case, accused
was a family doctor. He was tried for the murder of his patient, a rich woman and Sentenced to
death on the basis of the Circumstantial Evidence
3) Real Evidence- Real or material evidence is the evidence of fact brought to the knowledge of
the Court by inspection of physical object and not by information derived from the witness or
documents, for e.g. stolen property, weapons, etc.
4)Personal Evidence-Personal evidence is an oral testimony of the witnesses, which is afforded
by human agent by way of disclosure or by voluntary signs.
5) Original Evidence - Original evidence is that which a witness reports himself to have seen or
heard through the medium of his own senses for e.g. A says that he saw B murdered C with sword.
6) Hear-say Evidence - It is also known as second hand or unoriginal evidence, a witness is
merely reporting not what he himself saw or heard but what he has learnt in respect of the fact
through the medium of the third person. It is a statement made by a witness of what he has been
said and declared out of court by a person and not before the court. Hearsay evidence is no
evidence and is not admissible.
Illustration-'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard ’D’ saying
that 'D' saw 'A' with B's Cycle. Such evidence given by 'C' is not admissible on the ground that
testimony of C is hearsay evidence. Hearsay Evidence means whatever a person is heard to say it
includes: 1) A statement made by a person, not called as witness;
2) A statement contained or recorded in any book, document or record which is not admissible.
The hearsay witness may not be able to say correctly and completely the truth of his statement.
(General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain
exceptions to this rule see in detail Hearsay Evidence)
7) Primary evidence-Primary evidence means the document itself produced for the inspection of
the Court. (sec.62).
Illustration
A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if
B produces before the court, the sale deed, it is primary evidence.
Primary evidence is considered as the best evidence since it provides proof with certainty. That is
why law insists/requires first the primary evidence. The document may be in counter parts, and
then each counterpart is regarded as primary evidence. If the document is made by uniform process
like printing or lithography, each one constitutes the primary evidence.
8) Secondary evidence - Secondary evidence means inferior or substituted evidence which itself
indicates the existence of more Original source of information (Sec. 63). Secondary evidence may
be given in the absence of the (better) primary evidence if proper explanation is given for such
absence. Section 65 of the Evidence Act provides for circumstances in which secondary evidence
is admissible. According to Section 63 copies made and compared with the originals, or Photostat
copies may be treated as secondary evidence. Following are the circumstances in which secondary
evidence is admissible (Section 65).
1) The person in possession of the original is not within the reach of the Court.
2) If the original is in possession of the opposite party.
3) If the original is lost.
4) When original deed had already been admitted in the Court.
5) If Original is public document.
6) When the original is not easily movable; and
7) When the original consists of many accounts.
9) Oral Evidence - All statement which the Court permits or requires to be made before it by
witnesses, in relation to matter of fact under inquiry; such statements are called Oral evidence;
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10) Documentary Evidence - All document including electronic records, produced for the
inspection of the Court, such documents are called Documentary Evidence.
The expression 'document' is defined in section 3 of the Evidence Act, as follows:
“Document”.—“Document” means any matter expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.
Illustrations:
Writing is a document; Words printed, lithographed or photographed are documents; A map or
plan is a document; An inscription on a metal plate or stone is a document; A caricature is a
document.
11)Judicial Evidence - It is evidence received by courts of justice in proof or disproof of facts,
the existence of which comes in question before them. Judicial Evidence is a species of the genus
evidence and is for the most part nothing more than natural evidence, modified by rule of positive
law.
12) Non-judicial Evidence - Evidence given in the proceeding before the Magistrate or officer
not in a Judicial capacity but in an administrative one, is non Judicial evidence, e.g. evidence in
proceedings u/s. 164 of Cr. P.C. i.e. recording of confession and statements. (Confessions made
to Police Officer are inadmissible).

Q3: Define Proved, Disproved, and not Proved, Presumptions. Difference between
presumption of law and fact.
Section 3 defines proved, disproved and Not Proved as follows:
Proved
A fact is said to be proved when, after considering the matters before it, the Court either believes
it to exist, or considers its existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it exists.
Disproved
A fact is said to be disproved when, after considering the matters before it, the Court either believes
that it does not exist, or considers its non-existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it does not exist.
Not proved
A fact is said not to be proved when it is neither proved nor disproved.
A fact is said to be not proved when either its existence nor its not existence is proved. It also
indicates a state of mind in between the two that is one cannot say whether a fact is proved or
disproved. It negatives both proof and disproof.
Distinction between Proved, Disproved and Not Proved.
No Proved Disproved Not Proved
1 The term ‘proved’ is The term ‘disproved’ is The term ‘Not Proved’ is a mean
positive negative. between the terms proved and
disproved
2 When fact is proved the When a fact is disproved When a fact is not proved, it implies
court gives judgment in no further question arises further evidence either to prove or
favour of the person, as to its proof. disprove the fact.
who has proved it.
Section 4, “May presume”:Whenever it is provided by this Act that the Court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof
of it.
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“Shall presume”: Whenever it is directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.
“Conclusive proof”: When one fact is declared by this Act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to
be given for the purpose of disproving it.
May presume: A court has discretion to presume a fact as proved, or to call for confirmatory
evidence as the circumstances require. In such cases the presumption is not a hard and fast rule.
The presumption is juris et de jure. The court is free to presume any fact or not as the presumptions
are about the question of facts. It may regard such fact as proved, unless and until it is disproved
or may call for the proof of it.
If in a case the court has an option to raise the presumption and raises the presumption, the
distinction between two categories of presumptions ceases and the fact is presumed, unless and
until it is disproved. It is open to the Court upon proof of a marriage on a certain date, either to
regard as proved the subsistence of the marriage on a subsequent date unless and until it should be
disproved or else to call for proof of it.
Example:
Under section 90 of the Evidence Act when a document of thirty years old is produced before the
court, it may be presumed that the document was signed and written by a person by whom it was
presumed to have been written and signed. Similarly, Section 88 of this Act deals with presumption
(may presume in nature) such as to telegraphic message.
“Shall presume”: The court is bound to presume a fact as proved. The presumption is irrebuttable
presumption as it is presumption of law. Whenever there is provision to the effect, “that the court
shall presume a fact,” the court cannot exercise its discretion, but in such circumstance the court
shall have liberty to allow opposite party to adduce evidence to disprove the fact so presumed. If
the party is successful in disproving it the court shall not presume the fact. The expression “shall
presume” is to be understood as in terrene i.e. having some import of compulsion.
Example:
Under section 89 of the Evidence Act “the court shall presume that every document, called for and
not produced after notice to produce attested, stamped and executed in the manner required by
law.”
“Conclusive proof”: When a fact is a ‘conclusive proof’ of another fact the court has no discretion
to disprove it. It is irrebuttable presumption and the court shall not allow evidence to be given for
the purpose of disproving it. “Conclusive proof’ gives an artificial probative effect by the law to
certain facts. No evidence is allowed to be produced with a view to combating that effect. In this
sense it is irrebuttable presumption. “Conclusive proof: is also within the realm of the Evidence
Act. Where a statute makes certain facts as final and conclusive, evidence to disprove such facts
is not to be allowed. This is the strongest of all presumptions. When any person signs a document
is presumed that he has read the document properly and understood it and only them he has affixed
his signature thereon, otherwise no signature on a document can ever be accepted. “In particular,
businessman, seeing careful people (since their money is involved) would have ordinarily read and
understood a document before signing it. Hence the presumption would be even stranger in their
case.” Example:
Birth during marriage, a final judgment of the court, or a degree conferred by the University.

Distinction Between Presumption of Facet and Presumption of Law

No. Presumption of Fact/May Presume Presumption of Law
1) Presumption of fact is based on logic, Presumption of law is based on provisions of
human. law.
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2) The position of Presumption of fact is The position of Presumption of law is certain

uncertain. and uniform.
3) Presumption of fact is always The Presumption of law is conclusive unless
rebuttable and goes away when rebutted as provided under rule giving ruse to
explained or rebutted by establishment presumption.
of positive proof.
4) The court can ignore presumption of The court cannot ignore presumption law.
fact however strong it is.
5) The presumptions of fact are derived The presumptions of law are derived on
on basis of law of nature, prevalent established judicial norms and they have
customs and human experience. become part of legal rules.
6) The Court can exercise its discretion Presumption of law is mandatory i.e. Court is
while drawing presumptions of fact i.e. bound to draw presumption of law.
presumption of facts is discretionary
presumption.

Q4: What do you mean by Relevancy and Admissibility?

Relevant Evidence is evidence that makes a reality practically obligated to be legitimate than it
would be without confirmation. Relevant proof might be rejected for unreasonable partiality,
perplexity, or a waste of time. The relevant proof is commonly permissible and irrelevant proof is
never acceptable. Two main fundamental standards on relevance:
1. Nothing is to be received which is logically not verified regarding the matters which
are required to be proved.
2. Unless and until the clear ground of law or policies excludes it, everything which
is verified or probative should come in. Relevancy act as a link between a statement of
proof and a statement that needs to be proved.
One fact is said to apply to one another when one is associated with the other in any of the ways
alluded to in the provisions of The Indian Evidence Act relating to the relevancy of fact.
Indian Evidence Act does not give a particular meaning of relevancy or relevant fact. It essentially
depicts when one fact become applicable to another one.
Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact might be associated
with another fact and in this way the idea of relevant fact can be distributed. One fact is pertinent
to another fact if they are associated with one another in any of the ways as portrayed in Section 5
to Section 55. In the event, if a fact isn’t so associated, then the fact is irrelevant.
A court may bar important proof when the probative estimation of the proof is significantly
exceeded by the peril of at least one of the accompanying: out of line bias; confounding the issues;
misdirecting the jury; undue postponement; unnecessarily exhibiting aggregate proof.
Admissibility
All the relevant facts which are admissible by the court are called admissibility.
As per the Section 136 of the Evidence Act, the final discretion of the admissibility of evidence of
the case lies with the judge. Section 136 of the Evidence Act states that exactly when either
assembling proposes to give proof of any reality or actuality, the Lord justice may ask the social
event proposing to give the proof how the alleged truth, at whatever point illustrated, would be
huge; and the judge will surrender the verification if he envisions that the truth, at whatever point
appeared, would be relevant, and not something different.
Essential ingredients of Admissibility
1. The judge is the only person who determines relevancy and admissibility.
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2. When an individual proposes to show proof of any fact, the judge may ask an
individual to explain ‘in what way’ the fact is relevant.
3. The judge would concede the particular demonstrated reality just if he is content
with the suitable reaction of the individual that it is, to be sure, significant under either
provision of S. 6 to 55. Hence the thought of relevancy begins first and of admissibility
later and the judge will concede the reality only if it is relevant.
Essential ingredients of relevance
1. Relevancy is not totally dependent on law.
2. Relevancy is determined on the basis of practical experience, logic, common sense,
human experience and basic knowledge of affairs.
Difference between relevance and admissibility
Relevance Admissibility

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

It is found on the basis of the rationale and human It is established on law, not on the
experience. rationale.

The provision regarding relevancy is discussed under The provision regarding admissibility is
Section 5 to 55 of the Evidence Act. discussed under Section 56 of the Indian
Evidence Act.

It mainly emphasis on what facts are necessary to prove Between relevancy and proof, it acts as a
before the court and not? decisive factor.

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

Relevancy is basically a cause. It is mainly an effect.

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

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

Case- Ram Bihari v State of Bihar

In this case, the supreme court observed that relevance and admissibility are synonyms to each
other but their legal implications are different from each other, and the admissible facts may not
be relevant.

Evidence of Relevant Facts (Sec.5)

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Section 5, Evidence may be given of facts in issue and relevant facts: Evidence may be given
in any suit or proceedings of the existence or non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
Explanation:
This section shall not enable any person to give evidence of a fact which he is disentitled to prove
by any provision of the law for the time being in force relating to Civil Procedure.
Illustrations:
(a) A is tried for the murder of В by beating him with a club with the intention of causing his
death.
At A’s trial the following facts are in issue: —
A’s beating В with the club;
A’s causing B’s death by such beating; A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing
of the case a bond on which he relies. This section does not enable him to produce the bond or
prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the
conditions prescribed by the Code of Civil Procedure.
Principle:
The section lays down that in a suit or preceding evidence may be given of the existence or non-
existence of:
1. Facts which are in issue; and
2. Facts which are relevant according to Sections 6 to 55 of the Act.
Scope:
Where one fact is relevant to another, i.e. when one is connected with other in any of the ways
referred to the Chapter II (Sections 6 to 55), it is relevant. The relevant facts are not themselves
‘facts in issue’ but are so connective with ‘facts in issue’ that they render the latter probable or
improbable. Relevant facts give strength and vigour to the fact in issue. Section 5 excludes
everything which is not covered by some other sections of the Chapter. Alternatively, it can be
said that “the object of this Chapter is to restrict the investigation made by court within bounds
prescribed by general convenience.”
This section expressly excludes the evidence of irrelevant facts, that is found in the phrase “and of
no others; and therefore, a party is precluded from proving any ‘fact’ which is not declared relevant
by any of the remaining sections of this chapter. Evidence is not permitted to be given to any fact
unless it is either a fact in issue or one declared to be relevant by any section of this chapter.
“Evidence of all collateral facts, which are incapable of affording any reasonable presumption as
to the principal matter in dispute, is excluded to save public time.” Thus, ‘relevant’ means “which
is logically probative.” In a trial when any evidence is produced, the court, before its admission,
should decide its relevancy forthwith. If the evidence lacks of probative value it can be rejected.
The probative value of evidence is the weight to be given to it which has to be judged having
regard to the facts and circumstances of each case.” It is duty of the court to appreciate evidence
minutely, carefully and analyze the same. In case of mistake in description of hand in respect of
khata number and plot number it has been decided that boundary of land given in sale deed should
be given preference to ascertain the land actually sold.
Explanation:
The explanation appended to this section prohibits any person to give further evidence for getting
relief upon facts of documents which he had failed to state or refer in his pleadings under Civil
Procedure. There are certain provisions in the Civil Procedure Code for filing documents with the
leave of the court. Illustration (b) explains the meaning of the explanation. Relevancy and
Admissibility:
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The rules of relevancy declare certain facts relevant but rules of admissibility lay down as to
whether the relevant facts may be allowed or excluded. There are marked differences between the
two, as it is said that “all evidence that is admissible is relevant, but all that is relevant is not
necessarily admissible.”
‘Relevancy,’ according to Sections 6 to 11 is the connection between cause and effect which occur
in judicial proceedings. The question of admissibility, on the other hand, is a question of law to be
decided by the judge. The relevancy of facts, according to common course of events either leads
to prove or render probable the past, present and future existence and non-existence of the other
facts, whereas the admissibility of the relevant facts are to be decided (forthwith) by the court
when raised and should not be reserved till the date of judgment. Objection to the admissibility
cannot be allowed in appeal.
Relevancy means what facts may be proved before the court and that facts allowed to be proved
under sections 5 to 55 of the Evidence Act, are called relevant, whereas the admissibility is founded
on law and not on logic. It is the means and method of proving relevant facts. When the original
document is lost it has no effect on decision. If the secondary evidence of the lost document is
produced it may be admitted.
In relevancy the court has discretion to play but in admissibility the court is under obligation to
follow the law, it has no discretion. Evidence properly admitted for one purpose must be admissible
for all purposes in the cause. But in case of proving and disproving facts the relevancy is, no doubt,
condition precedent of admissibility. In Ram Bihari Yadav v State of
Bihar, the Supreme Court has made a difference that frequently the expression ‘relevancy’ and
‘admissibility’ are used as being synonymous with each other but their legal incidents are different,
because facts which are relevant may not be admissible. It is a question of law to be determined
by lexfori. In judicial proceeding ‘relevancy’ is “the rules of allowing or disallowing the facts tried
to be proved.”

Q5: What is the meaning of Hearsay Evidence? What are the exceptions to the hearsay
evidence?
Hearsay Evidence means whatever a person is heard to say it includes: i) A statement made by a
person, not called as witness; ii) A statement contained or recorded in any book, document or
record which is not admissible. The hearsay witness may not be able to say correctly and
completely the truth of his statement.
Definitions: Taylor says 'All the evidence which does not derive its value solely from the credit
given to the witness himself, but which rests also in part on the veracity and competence of some
other person.
Bentham : The supposed oral testimony transmitted through oral, supposed orally delivered
evidence of a supposed extra judicially narrating witness judicially delivered viva voce by the
judicially deposing witness. Hearsay Evidence means whatever a person is heard to say... it
includes...
1) a statement made by a person , not called as witness
2)a statement contained or recorded in any book, document or record which is not admissible.
Oral evidence must be direct : Evidence given by the witness may be oral or
documentary. Section 60 of the Indian Evidence Act says that, oral Evidence to be admissible, it
must be direct. In other words, Hearsay Evidence is no evidence. A statement oral or written, by a
person not called as witness comes under the general rule of hearsay.
Section 60 of Indian Evidence Act reads as follows : Oral evidence must, in all cases, whatever,
be direct; that is to say- If it refers to a fact which could be seen, it must be the evidence of a
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witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard it; If it refers to a fact which could be perceived by any other sense or
in any other manner, it must be the evidence of a witness who says he perceived it by that sense or
in that manner; If it refers to opinions or to the grounds in which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds - Provided that the opinion of
experts expressed in any treatise commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such treatise if the author is dead or cannot
be found or has become incapable of giving evidence or cannot be called as a witness without an
amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other
than a document, the Court may, if it thinks fit, require the production of such material thing for
its inspection.
Conditions : As stated above, The fundamental principle of law of evidence is: Hearsay Evidence
must not be admitted. Hearsay Evidence is also known as derivative or second hand or unoriginal
evidence. It is the evidence of facts, which the witnesses has not learnt through his own bodily
senses, but learnt through the medium of others. It is regarded as ambiguous and misleading.
Exclusion of hearsay evidence :
Section 60 excludes hearsay Evidence. The evidence of fact the happening of which could be seen
can be given only by an eyewitness. If the evidence refers to a fact which could be perceived by
any order sense or in any other manner, it shall be the evidence of a person who Personally
perceived it by that sense or in that manner.
Thus in all cases, the evidence has to be that of person who himself witnessed the happening of
the fact of which he gives Evidence. such witnesses is called as eye witnesses or a witness of fact
and the principle is known as that of direct Oral Evidence or of the exclusion of hearsay Evidence.
Reasons for Exclusion of Hearsay Evidence :
The reasons for exclusion of hearsay Evidence are as follows :
1) Hearsay Evidence cannot be tested by Cross-Examination.
2) It supposes some better evidence and encourages substitution of weaker for stronger evidence.
3) Hearsay Evidence is intrinsically weak.
4) The evidence is not given on oath or under personal responsibility by the original declarant.
5) It has a Tendency to protect legal investigation
6) As truth depreciates in the process of repetition, it is not reliable.
7) Its reception will increase opportunities for fabrication
Exceptions: Exceptions to hearsay Evidence are as follows :
1) Res gestae under Section 6 : The statement of a person may be proved through another person
who appears as a witness if the statement is a part of the transaction issue
2) Admission and Confessions (Under Section 17 - Section 23 and Section 24 - Section 30)
:An admission of liability or confession of guilt which takes place outside the court is proved
through the testimony of the witnesses to whom the admission or confession was made. such
witness is not a witness of fact as he has not seen or observed the main occurance through nay of
his sense but had only heard about it from the mouth of the party who admitted his liability or
confessed to the guilt.
3) Statement Relevant : Statements by a person who cannot be called as a witness (Dying
Declaration. Section 32(1). Statements, which are mostly the statements of the deceased persons
who are not available as witnesses. The evidence of such statement is therefore, the evidence of
hearsay and it specially declared to be relevant.
4) Evidence given in the former proceedings (Section 33): It is provided that evidence is given
by a witness in the proceeding can be used as an evidence of the truth of the facts stated in any
 11

subsequent proceeding between the same parties, provided that the witness has died or is, for some
other reasons, not available.
5) Statements in public documents (Section 35): The statement in public document such as, the
Acts of the Parliament, official books and registers can be proved by the production of the
documents and it is not necessary to produce before the court the draftsman of the document.

Q6: Define Fact. State its various forms.

The term 'Fact' means an 'an existing thing' But under Evidence Act , the meaning of the word is
not limited to only what is tangible and visible or, is in any way, the object of senses.
According to Section 3 of The Indian Evidence Act, 1872 Fact means and includes : 1) any thing,
state of things or relation of things capable of being perceived by the senses.
Illustrations : a) That a man heard or saw something, is a fact. b) That a man said certain words,
is a fact.
2) any mental condition of which any person is conscious
Illustrations: a) A person has an intention to commit murder.
b)That a man has a certain reputation, is a fact.
Rights and liabilities in a judicial proceedings emerge out of fact. Section 3 of Indian Evidence
Act categories fact into - 1) Physical facts and 2) Psychological facts.
A) Physical facts - It means and includes anything, state of thing or relation of things, capable of
being perceived by senses. In other words, all facts which are subject to perception by bodily
senses are physical facts . They are also called external facts.
B) Psychological facts - Those facts, which cannot be perceived by senses are 'Psychological
Facts' They are also known as internal facts. Examples- Intention (Mens Rea) knowledge, good
faith, fraud etc.
2) Facts in issue (Section.3) :The expression “facts in issue” means and includes,
any fact from which, either by itself or in connection with other facts, the existence, non-existence,
nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding,
necessarily follows.
Explanation.—Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure,any Court records an issue of fact, the fact to be asserted or denied in the answer
to such issue, is a fact in issue. the questions, which give rise to a right or liability are called Fact
in Issue. The fact in issue is also known by its Latin name 'Factum Probandum' or that which is
to be proved.
Relevant fact - One fact is said to be relevant to another when the one is connected with the other
in any of the ways referred to in the provisions of Indian Evidence Act, relating to the relevancy
of facts. (Section 3 of IEA).The word 'relevant' has two meanings. in one sense, it means
"connected" and another sense "admissible". One fact is said to be relevant to another when the
one is connected with the other, in any of the way referred to in the provisions of the Evidence Act
relating to the relevancy of facts (Section 5 to 55 of IEA).
There are two kinds of relevancy –(i) Logical Relevancy - (ii) Legal Relevancy -
(i) Logical Relevancy - A fact is said to be logically relevant to another when by application of
our logic it appears that one fact has a bearing on another fact.
(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as relevant under
Section 5 to 55 (Relevancy of Fact).

Q7: What is admission? Who can make admission?

Section 17 of the Indian Evidence Act, 1872 defines Admission. The provisions of Section 17 to
Section 23 of the Indian Evidence Act deals with Admission. Admission plays important role in
 12

Judicial Proceeding. If one party to a suit or any other proceeding proves that the other party has
admitted his case, the work of the Court becomes easier.
Admission Section 17 of the Indian Evidence Act Defines Admission as follows -
"An admission is a statement, oral or documentary 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." To constitute admission following elements must be present.
A) A statement oral or written
B) It is a Statement to suggest any inference as to any fact in issue or relevant fact.
C) Admission will be relevant only if it is made by any of the person specified in the said Act
D) Admission is relevant only in the circumstances mentioned in the Act.
Person Who can make Admission Sections 18 to 20 of the Act lays down the provisions relating
to persons to make admissions An admission is relevant if it is made by i) A party to the
proceeding (Civil or Criminal); ii) An agent authorized by such party;
iii) A Party suing or being sued in a representative character making admission while holding such
character, iv) A person who has a proprietary interest in the subject matter of the suit during the
continuance of such interest v) A persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit during the continuance of such interest, vi) A person whose
position is it necessary to prove in a suit, if such statements would be relevant in a suit brought by
or against himself, vii) A person to whom a party to the suit has expressly referred for information
in reference to a matter in dispute.
Admission by party to proceeding or his agent Statements made by a party to the
proceeding, or by an agent to any such party, whom the Court regards, under the
circumstances of the case, as expressly or impliedly authorized by him to made them, are
admissions. By suitor in representative character –
Statements made by parties to suits suing or sued in a representative character are
not admissions unless they were made while the party making them held that character. Statements
made by - (1) by party interested in subject matter; persons who have any proprietary or pecuniary
interest in the subject-matter of the proceeding and who make the statement in their character of
persons so interested; or (2) by person from whom interest derived; persons from whom the parties
to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are
made during the continuance of the interest of the persons making the statements.
Admissions by persons whose position must be proved as against party to suit -
Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit, are admissions, if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against the made if they are made whilst
the person making them occupies such position or is subject of such liability. (Section 19)
Illustration - A undertakes to collect rent for B. B sues A for not collecting rent due from C to
B.A denies that rent was due from C to B. A statement by C that he owned B rent is an admission,
and is a relevant fact as against A, if A denies that C did owe rent to B.

Q8 : What is confession? What are its various types? Or

Discuss the general principles relating to confessions. Or
All confessions are admissions but all admissions are not confessions.
Section 24 to 30 of Indian Evidence Act deals with confessions. Confessions should be voluntary.
There are four kinds of Confession a) judicial confession, b) Extra-Judicial Confession, c)
Retracted Confession, d) Confession by co-accused.
The meaning of Confession: The expression confession means a statement made by an accused
admitting his guilt. It is an admission as to the commission of an offence. If a person accused of
 13

an offence makes a statement against himself, it is called confession or confessional statement.

Confessions are the special form of admissions. Thus it is popularly said that "All Confessions are
admissions, but all Admissions are not confessions."
Definition of Confession: According to Sir James Stephen "An admission made at any time by a
person charged with a crime stating or suggesting the inference that he committed a crime". The
term confession no where defined in the Indian Evidence Act 1872, But the definition of admission
under section 17 of Indian evidence Act becomes applicable to confession also. Section 17
provides " A statement, oral or documentary which suggests any inference as to any fact in issue
or relevant fact."
If a statement made by a party in the civil proceeding, it is called as admission while if it is made
by the party charged with the crime, in a criminal proceeding, it is called as a confession. Thus,
the confession is a statement made by the person charged with a crime suggesting an inference as
to any fact in issue or as to relevant fact. The inference that the statement should suggest that he
is guilty of a crime. Confession, in short, is an admission by the accused charged with an offence
in the criminal proceeding.
Example :
If X is charged with the murder of Y, If X said that he has killed B, it is a confession.
Kinds of Confession: There are four kinds of Confession, are as follows:
1) Judicial confession: A Judicial Confession is that which is made before Magistrate or in a
court due course of judicial proceeding. Judicial Confession is relevant and is used as an
evidence against the maker provided it is recorded in accordance with provisions of Section
164 of Cr.P.C.The magistrate who records a confession under Section 164, Criminal
Procedure Code, must, therefore, warn the accused who is about to confess that he may or
may not be taken as an approval. After warning the accused he must give time to think over
the matter and then only record the confession. Such a confession is called judicial confession.
2) Extra-Judicial Confession: Extra-Judicial Confession is made not before a Magistrate or any
Court in due course of judicial proceeding but is made either to police during the investigation
or into police custody or made otherwise than to the police. Extra-Judicial confession is not
relevant. (See Detail Note on Extra-Judicial Confession)
3) Retracted Confession: The Accused person who confessed earlier and later denied such
confession does not destroy the evidentiary value of the confession as originally recorded. The
Supreme Court has stated that a Retracted confession may form the basis of a conviction if it
receives some general corroboration from other independent evidence. But if the court finds
that the confession originally recorded was voluntary, it should be acted upon.
4) Confession by co-accused Section 30.Consideration of proved confession affecting
person making it and others jointly under trial for the same offense: When more persons
than one are being tried jointly for the same offense, 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.
Explanation: “Offence” as used in this Section, includes the abetment of, or attempt to
commit, the offense.
Illustrations
(a) 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.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A
and B and that B said, “A and I murdered C”. The statement may not be taken into
consideration by the Court against A and B is not being jointly tried.
 14

All confessions are Admissions, but all Admissions are not Confessions…

No. Admission Confession

If a statement is made by a party in civil
If a statement made by a party charged with
1) proceeding it will be called as crime, in criminal proceeding, it is called as a
admission confession
The expression ‘Admission’ means The expression ‘Confession’ means “a
2) “ voluntary acknowledgement of the statement made by an accused admitting his
existence or truth of a particular fact”guilt. If a person accused of an offense
(accused) makes a statement against himself, it
is called confession.
An admission is genius Confession is specie hence all confessions are
3) admissions but all admissions are not
confessions.
The Term Admission is applicable to a Confession is the term for admission of guilt
4) statement, oral or in writing made by a made in the criminal side.
party on civil side.
An admission is not conclusive proof A confession, if voluntarily and free, may in the
5) of the matters admitted and is always discretion of the judge or magistrate, by itself
rebuttable. be accepted as conclusive proof of matters
confessed and is alone sufficient to warrant a
conviction.
An admission may be proved by or But confession always goes against the person
6) behalf of the person making it. making it.
An admission may be made by an agent While an agent can never make the confession
7) in course of business. of an offense against a co-defendant.
Admission by one of the several Confession made by one or two or more
8) defendants in suit is not evidence accused jointly tried for the same offense can
against other defendants. be taken into consideration against the co-
accused.

Q9: What do you mean by Burden of Proof? On whom lies the burden of proof?
According to Section 101 Whoever desires ny Court to give judgment as to any legal right or
liability dependent on the existence to 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.
Illustration - (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.
On whom burden of proof lies - According to Section 102, 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.
Illustration - (a) A sues B for 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.
 15

(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 the fraud is not proved. Therefore the burden of proof is on B.
Burden of proof as to particular fact (Section 103) - 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.
Illustration -
(a) 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.
Specific Rules of Burden of Proof - (Section 104 to 113) –
Burden of proving fact to be proved to make evidence admissible (Section 104) –
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 wishes to prove a dying declaration by B.A must prove B’s death. B wishes to
prove, by secondary evidence, the contents of a lost document. A must prove that the document
has been lost.
Burden of proving that case of accused comes within exceptions (Section 105) - Section 105
of the Indian Evidence Act is important qualification of the general rule that in criminal trials, the
burden of proving very thing essential to the establishment of charge against accused lies upon the
prosecution. If the accused claims exemption from criminal liability under Section 76 to Section
106 of the Indian Penal Code, the burden of proofs rest on it.
Section 105 of the Indian Evidence Act 1872 runs as follows -When a person is accused of
any offense, the burden of proving the existence of circumstances bringing the case within any of
the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or
proviso contained in any other part of the same Code, or in any law 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 grave and sudden provocation, he was deprived of the power of self-control. The burden
of proof is on A. (c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever,
except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject
to certain punishments. 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.
Burden of proving fact specially within knowledge (Section 106) - When any fact is specially
within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations - (a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had
ticket is on him.
Burden of proving death of person known to have been alive within thirty years (Section 107)
-When the question is whether a man is alive or dead, and it is shown that he was alive within
thirty years, the burden of proving that he is dead is on the person who affirms it.
Burden of proving that person is alive who has not been heard of for seven years. (Section
108) - According to Section 108 when the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would naturally have heard of
him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms
it.
 16

Burden of proof as to relationship in the case of partners, landlord and tenant, principal
and agent (Section Section 109) - When the question is whether persons are partners,
landlord and tenant, or principal and agent, and it has been shown that they have been acting as
such, the burden of proving that they do not stand, or have ceased to stand to each other in those
relationships respectively, is on the person who affirms it.
Burden of proof as to ownership (Section 110) – When the question is, whether any person is the
owner of anything of which he is shown to be in possession, the burden of proving that he is not
the owner is on the person who affirms that he is not the owner.
Proof of good faith in transactions where one party is in relation of active confidence.
(Section 111) - Where there is a question as to the good faith of a transaction between parties, one
of whom stands to the other in a position of active confidence, the burden of proving the good faith
of the transaction is on the party who is in a position of active confidence.
Illustrations -(a) The good faith of a sale by a client to an attorney is in question in a suit brought
by the client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by
the son. The burden of proving the good faith of the transaction is on the father.

Q10: Define the term dying declaration. Is dying declaration can be sole basis of conviction
of the accused? Discuss the evidentiary value of the dying declaration.
Dying Declaration is of the utmost importance and the evidence as to it should be exact and full
as possible. The general rule is, 'hearsay evidence is no evidence and is not admissible in evidence.'
Section 32 and 33 of the Evidence Act are among the Exceptions, as such dying Declaration is an
exception to this general rule.
Statement made by a person who cannot be called as Witness: Section. 32 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 cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be produced 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.
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 which
cases 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 made, under expectation of death,
and whatever may be the nature of the proceeding in which the cause of his death comes into
question. Following are the classes of person who cannot be called as witness under section 32
and their statements allowed to be proved in their absence.
1) Person who is dead:
2) Person who cannot be found
3) Who has become incapable of giving evidence: or
4) Whose attendance cannot be produced without unreasonable delay or expense?
Meaning and Definition: "A dying declaration is a declaration written or verbal 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"
Illustration :Sam has been attacked by Anna. If Sam, shortly before death makes a declaration
holding Anna, responsible for his injuries, it is called "Dying Declaration'.
Section 32(1) of The Indian Evidence Act defines,'dying declaration' as " a statement verbal or
written made by a person who is dead or cannot be found, who has become incapable of giving
evidence or whose attendance cannot be procured without an amount of delay or expense, which
 17

under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts
in the following cases. a) When it relates to cause of death
b) When it is made in course of business; or
c) Against the interest of maker; or
d) Gives opinion as to public right or custom or matters of general interest; or
e) Relates to existence of relationship; or
f) When it is made in will or deed relating to the family affairs; or
g) In document relating to transaction mentioned in section 13(a);
h) When it is made by several persons and expresses feeling relevant to matter in question
In short according to Section 32(1), “Dying declaration is a statement oral or written made
by a person who is dead or cannot be found or incapable of giving evidence or whose
attendance involves delay or expensive under the circumstances stated above, which the
court considers reasonable “.
Before such statements are admitted in evidence, it must be proved that who made the statement
is dead and gone and therefore cannot appear before the court unless this fact is proved, the
statement is not admissible. When the statement is admitted under any of the clause of this section,
it is substantive evidence and has to be considered along with other evidence. Dying declaration
is an exception to the general rules as to relevancy of fact. The relevancy of fact provides that the
statement made by witness in connection of fact or fact in issue are relevant but under Section 32
a statement made under certain circumstances become relevant , even though person is not called
as a witness before the court. Dying declaration in fact is a surviving declaration. Declarant died
and statement survives. It is declaration of a dead person.
The Conditions in this Section are:
1) It must be a statement, written or verbal
2) The person making statement must have died.
3) The statement relate to the cause of his death or the circumstances of the transaction which
related in his death and not the cause of the death of someone else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the statement.
6) The statement must be competent
7) Declaration must be competent
Reasons For admissibility of dying declaration: Dying declaration is admissible for the
following two reasons....
1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
2) Declaration made by a person under exception of death is presumed to be true.
Merits of Dying Declaration:
1) There is heavy conscience -, therefore law presume that there is a possibility of true statement
as to the cause of his death. It has moral and religious aspect behind it because a person who is on
the bed of death, about to die generally speaks true, so as to attain spiritual benefits in other world.
This is relative element, which changes from person to person, personality and mentality person
making Dying Declaration. So a person who is about to die, tells the truth and truth only is a half
truth as in case of harden criminals. So it is the personality, circumstances and the character of the
person making Dying Declaration that decides the relevancy of Dying Declaration.
2) There is no reason to implicate wrong person: The person making Dying Declaration and
mentioning in the name of the person responsible who has caused injuries to him which are likely
to result in his death, generally will not implicate in a wrong person who is not at all responsible
for such injuries.
 18

3) There is no reason why he will avoid the name of the person who is responsible for his death
and his worst enemy in his life. It is more logical and realistic concept because person who is on
the bed of Death will not implicate the name of wrong person for the cause of his death, but he
will not allow his enemy to go unpunished who is responsible for his death.
Infirmities/ Defects of Dying Declaration:
1) There is no oath administered:When a person is called as witness in the Court he has to make
a statement on oath. This is to have his inner conscience say truth and truth only. Law presume
and expect person to state the truth. This is the theoretical aspect as it may be correct theoretically
but not practically.
2) There is no cross-examination of such person making Dying Declaration: The need of
cross-examination is to judge the credibility of the witness. It is the right of Defense Council.
Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or
defense council have no opportunity of cross-examination of the witness who is dead.
3) Witness is not present before the Court: Behavior, manner of answering the question of
witness before the Court is a vital aspect in law because it gives opportunity to the judges to judge
the character, personality of the witness this element is absent in dying declaration and hence it is
not accepted as a rule.
Evidentiary Value of Dying Declaration: The evidentiary value of dying declaration will vary
according to the circumstances of a particular case in which it is made. Dying Declaration is
evidence but it is a weak piece of evidence. It is to be corroborated by other evidence for example
other facts and evidence supporting Dying Declaration. It gives guidance to the Court, the has to
accept the Dying Declaration as a suspicious statement, it is duty of the judge to consider the
valuation of Dying Declaration. Such valuation of Dying Declaration depends upon many things
as under
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement?
5) Whether the statement is recorded in the same language and in a same word of the declarant.
Even though Dying Declaration is said to be of weak piece of evidence it is relevant in the Indian
Evidence Act, because it is the best available evidence as to the cause of his death after his death.

Q11: Estoppel has been referred to in various laws, but its best concontour is given by
legislature in the law of evidence. Or
Explain and illustrate the rule of estoppel. How esttopel differ from resjudicata?
Part III , Chapter VII containing Section 115 to 117 of the Indian Evidence Act 1872 , lay down
the provisions relating to the "doctrine of Estoppel" Section 115 embodies the principle of
Estoppels.
Meaning and Definition: The expression 'Estoppel' is derived from the French word 'Estoup'
which means, 'shut the mouth". When a person by declaration (act or omission) makes/ induces
another to believe a thing, cannot deny its truth subsequently. The other person cannot be estopped
from proceeding upon such declaration. Estoppel is rule of evidence, by which a person is not
allowed to plead the contrary of a fact or state of things, which he formally asserted as existing.
Section 115 of the Indian Evidence Act, 1872 embodies the Principle of Estoppel, as
Follows.... 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 belied, 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.
 19

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 principle of Estoppel 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.
Kinds of Estoppel: The Principle of Estoppel is classified under three heads in English
Law: i) Estoppel by Record
ii) Estoppel by Deed
iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, Estoppel in pais)
i) Estoppel by Record: Estoppel by record arises in a case where a judgment has been
given by a competent court, and the effect of it is that the matters decided cannot be
reopened by a person who is a party to the judgment or his representative. We do not
use this rule in India but rely upon the principle of Res Judicata to get the same effect.
ii) Estoppel by Deed: Estoppel by deed also does not obtain in India. English law attaches
a particular importance to deeds, with the result that if a person makes a statement in a
deed he cannot say the opposite of it later. It means when a person enters into an
agreement, and his statement is furnished therein, he shall not be permitted to deny his
statement.
iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, estoppel in
pais) When a person, by acts or words or deeds, induces another person to believe the
existence of things and make him to act upon it he (for example - the person who
induced another) is estopped from denying the existence of such facts.
iv) Other kinds of estoppel :
a) Constructive estoppel: This phrase is a really used, and it is submitted that it is
wrongly used. The adjective "constructive" is used in cases where the true state of
affairs is different from what is construed to be. For example, under the Transfer of
Property Act, registration of a document operates as constructive notice of its
contents. A man may really know nothing of the document or its contents, but because
it is registered, it is construed as if everyone has such knowledge - because if one
wanted to have such knowledge he could obtain it. The adjective is inappropriate when
used with Estoppel. Either the conditions of Estoppel are present in which case the
principle operates, or they are not present and the principal will not operate.
b) Estoppel by election: This arises in cases where there is a plurality of gifts or rights
which are inconsistent or alternative and the party who makes the gifts or creates the
rights, shows by and express or implied intention that the person taking the gift or
claiming the right should enjoy one of them, but not both of them. Having made his
choice, the person choosing cannot go back upon it and later attempt to choose the
other. It also rises in cases where a person cannot approbate or reprobate under the
same instrument.
c) Estoppel by silence: Such Estoppel arises only when there is a duty to speak or
disclose. For instance: If A and B are parties to a litigation and A contends that B is
estopped from raising a particular plea and B, in his turn, contends that A is estopped
from raising another plea, and each establishes a case for the application of the principle
of Estoppel, then it is as if the two estoppels cannot out, and the court will have to
proceed as if there is no such plea on either side.
Relevant Case Law: Sarat Chandar Dey vs Gopal Chandra Laha (1892) 19 IA 203. A widow
was holding property under a hibanama (hiba-bil-ewaz) executed by her husband in her
 20

favour. She mortgaged the property. During the transaction, her son acted on her behalf under a
power of attorney. He has signed the mortgage on her behalf and in her name and received the
money from the mortgagee. The mortgagee filed a suit on his mortgage and in the execution of a
decree, the Appellant and purchased the property. Meanwhile, the son claiming to the owner of
the property had sold a part of it to the respondent and the respondent filed a suit for partition and
possession of the part purchased by him. The Appellant set up the widow's title to the property and
also that is if the Hibanama was ineffective her son was estopped from denying her title under
Section 115.
Satnam Gowda vs Beherampur University 1990 SC 107 1990 (3) SCC 23. In this case the
Appellant, a student was admitted to law course at Ganjam Law College. There was no dispute
that at the time of admission he had submitted his marksheet. He studied for 2 years and was
admitted to final year course. His result of Pre-law and intermediate examinations watch withheld
on the ground that he was ineligible for admission as he secured 39.5% marks in M.A. examination
Overruling the High Court decision, the Supreme Court held that Estoppel would apply. The Court
also pointed out that there was the requirement of minimum marks 40% of marks for graduates
only. There was no requirements of any percentage of marks for postgraduates. There was no
Fraud or miss-representation on the part of the candidate.
Difference between Estoppel and Resjudicata: Res Judicata - Section 11 of the Civil Procedure
Code, 1908 relates to the principle of res judicata. Res Judicata which meansmatter already
adjudged upon cannot be re-agitated again, or a matter in which judgment is already pronounced.
The Doctrine Res Judicata is based upon the principle that one should not be vexed twice for the
same cause and there should be finality of litigation. It helps to prevent endless litigations. It is
based on public policy.
Estoppel - Indian Evidence Act 1872, Part III Chapter VII containing Sections 115 to Section 117
lay down the provisions relating to the Doctrine of Estoppel. Section 116 of the said Act deals
with estoppel of tenant and of licensee of persons in possession. According to Section 115 of the
Indian Evidence Act, "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."
Distinction/Difference Between Res Judicata and Estoppel -
No Res Judicata Estoppel

1) As we all know the doctrine of Res Judicata On the other hand Estoppel results from
results from the decision of the court. the acts of the parties.

2) It proceeds on the ground of public policy Estoppels proceeds upon the doctrine of
equity

3) Res Judicata prevent a man arriving the On the other hand estoppel prevents him
same thing twice in successive litigation from saying one thing at one time and the
opposite at another.

4) The theory of res judicata is to presume The rule of Estoppel prevents a person
conclusively the truth of the former from setting up what he calls the truth.
decision.
 21

5) The Doctrine of Res Judicata outs the On the other hand Estoppel is only a rule
jurisdiction of the Court to try the case. of evidence.

Q12: Explain the rule that oral evidence must, in all cases be direct. Is there any exception
to this.
Evidence may be classified into Oral Evidence and Documentary Evidence, a fact may be proved
either by oral evidence of fact or by documentary evidence, if any. This means there are two
methods of proving a fact. One is by producing witnesses of fact, which are called oral evidence
and the other by producing the document which records the fact in question and this is called
documentary evidence. Section 59 and 60 of the Indian Evidence Act, 1872 provides the provisions
relating to oral evidence Section 59 provides for proof of Facts by oral evidence, Section 60 says
that oral evidence must direct in other words hearsay evidence no evidence.
Meaning of Oral Evidence: The term Oral signifies by word of mouth. 'Oral Evidence' literally
means “The evidence, which is confined to words spoken by mouth". It is a fact to the knowledge
of the court by the statement of a witness qualified to speak on the point. However a witness, who
is unable to speak, is permitted and considered as competent to give evidence in any matter which,
he can make it intelligible. Verbal Statements includes signs and gestures. A deaf may testify by
signs or by writing Oral evidence, if worthy of credit, is sufficient without documentary evidence
to prove a fact or title.
Definition of Oral Evidence: Section.3 of the Indian Evidence Act defines oral evidence, the
first Part of the Evidence which defines Evidence deals with ’Oral evidence'. It says - “All
Statements which the court permits or requires to be made before it, by witnesses in relation to
matter of fact under enquiry, such statements are called Oral Evidence."
The evidence of witnesses in general is given orally, and this Means Oral Evidence. Therefore
Oral Evidence includes the statement of witnesses before the court which the Court either permits
or requires them to make. The statement may made by witnesses capable of making it. A witness
who can speak may communicate his knowledge of the fact to the court by signs or by writing and
it will be treated as oral evidence.
Proof of Facts by oral Evidence (Section.59) :Section 59 says that, “All facts, except the contents
of documents, may be proved by oral evidence. (The words or electronic records inserted by IT
Act 2000)
Importance of Oral Evidence: This Section lay down that, where written documents exist, they
shall be produced as being the best evidence of their own contents and no oral evidence can be
adduced to prove as to what is wrong in the document. While receiving oral evidence great Care
must be exercised. The Court must sift the evidence, separate grain from chaff and accept what it
finds to be true and reject the rest. The real test for accepting or rejecting the evidence is:
A) How consistent the story is with itself.
B) How it stands the taste of cross examination; and
C) How far it fits in with the rest of the evidence and the circumstances of the case.
• Oral Evidence Must Be Direct: Section 60 – Oral Evidence must be Direct
According to Section 60 of the Act, Oral Evidence must be direct means that if evidence is about
any fact which is heard, seen, perceived by any sense or by making an opinion. Then as per this
section it could be valid only if it has been given by the person who heard, saw, perceived or
formed an opinion after a particular incident. Provided that the basis on which such opinions are
held may be proved by the production of such treatises.
If the author is incapable of giving evidence or is dead or cannot be found, it could not be concluded
as a witness as the court regards it as unreasonable. It is further held that if Oral evidence explains
 22

about the condition of any material thing the Court gets that material thing inspected by its
production. Hence this Section clears that any Oral evidence should be direct in nature which
means the witness should tell the Court directly what he has experienced or has a personal
knowledge about.
Oral evidence doesn’t always mean words that are spoken by mouth, but other methods also
support this method. As if the witness is unable to speak he/she could also use signs to make a
statement. As there prevailed a principle that if there is an availability of the Documentary evidence
it shall be considered the best evidence prevailed for the particular case. Hence all the facts except
the documents or any other records could be proved by Oral evidence. The Supreme Court
observed that Section 6 of the Evidence Act is an exception to the general rule where under the
hearsay evidence becomes admissible. Hence the Oral Evidence must be direct and hearsay
evidence is not acceptable in the Court of Law.
The same was held in the case of Bhima Tima Dhotre Vs the Pioneer Chemical Co.
That if the write has to be called in every case to give oral evidence of its contents then the
documentary evidence becomes meaningless. If that were the position it would mean that the oral
evidence would virtually be the only type of evidence recognized by law. Hence in the ultimate
analysis, all evidence must be oral. This provision prove that the contents of document if proved
by means of oral evidence would be a violation of that section.
Credibility of Oral Evidence
The credibility of the witness giving Oral Evidence could only be doubted if the statement
contracts to any previously given statement by the witness. But if the statement is already recorded
before the police, then with minor contradictions also it will be held as reliable oral evidence.
Exception to oral evidence:
Hearsay Rule is the exception to oral evidence.
This evidence is powerless and is just the observer’s announced evidence. This evidence is the
indirect evidence which does not come from the knowledge of the person who gave evidence but
from someone else.
Thus, hearsay evidence is an exception of Oral evidence. Kalyan Kumar Gogoi Vs Ashutosh
Agnihotri & Anr[. As the term hearsay denotes that kind of evidence which solely does not derive
its value from the credit given to the witness himself but it rests in the part of competence of some
other person. At the same time, it suggests the saying of an individual and it is considered to be
irrelevant and vague. This term has been defined in this case.
But there are some exceptions to the rule of Hearsay, namely:
• Res Gestae
The rule here is that Oral Evidence must be direct and hearsay evidence is not acceptable. But Res
gestae is the exception. This is clearly stated in case Conspiracy – Section 10 deals with
Conspiracy.
As in case State (N.C.T. of Delhi) Vs Navjot Sandhu @ Afsal Guru It is based on the principle
of agency that is operating between the parties to the conspiracy inter se and it is an exception to
the rule against hearsay testimony. If the conditions laid down are satisfied, the statement made by
one is admissible.
• Admission & Confession
This is also an exception made by the Hearsay Evidence as in Sahoo Vs State of U.P.Supreme
Court said that admission and confessions are exceptions to the Hearsay rule. Admission here
means agreeing to a statement made by another person as the admission made out of court is
received in evidence.
 23

In fact a point or a statement admitted. And the Confession means a person who is charged with
any criminal act when confers some statement which directly suggests a conclusion. In other terms
confession is admission by the accused. Both of these are an exception to the Hearsay evidence.
• Dying Declaration
It is a statement made by a declarant who made a statement under his/her final phase of illness.
The statement that declarant made relates to the cause or the situations believed for their impending
death. In Kushal Rao Vs State of Bombay[ the Section 32 has been made by the legislature by
way of an exception to the general rule of hearsay is no evidence and is also not admissible.
• Evidence in the former proceeding
Section 33 means that relevancy of certain evidence for proving the truth of facts. It also means an
evidence given by a witness before Judicial proceeding for the purpose of providing the truth of
the facts which is stated. It is given when the witness is dead or cannot be found or his presence
cannot be obtained; the Court considers the circumstances unreasonable. Hence the meaning of
this Section is a proceeding between prosecutor or accused only when the questions in the first and
second proceeding are the same and the adverse party in the first proceeding has the right to cross-
examine whose inquiry shall be deemed.
• Opinion published in treatises
Opinion that is published in treaties maybe an exception to hearsay evidence if all the conditions
are fulfilled. The opinions of experts which is expressed in any treaty on the grounds of which
opinions are held may be proved by such treaties. If the author is dead or cannot be found or has
now become incapable of giving evidence or expense with the Court regards as unreasonable.
As in the case Subramaniam Vs The Public Prosecutor it created an exception to the Hearsay
rule which held that no evidence of duress was found hence resulted in Appellant to be convicted
and it could not be believed whether the statement made by terrorist to the appellant is true or false.
Earlier Oral evidence was seen as a weaker evidence under Indian Evidence Act but in modern
times its need and importance is growing. With an increasing approach of Oral Evidence, it could
be appropriate to pass a judgement beyond a reasonable doubt if proved.
In my opinion incidents and facts could be better understood by oral ways as it is explained by the
person who himself/ herself administered the incident. As he/she could explain the facts more
clearly and more appropriately which is way good then documentary form of evidence.

Q13: Define the term adverse or Hostile evidence. When a prosecution witness can be
declared hostile? What is the evidentiary value of a hostile witness evidence?
Meaning of Hostile Witness - The hostile witness is also called adverse Witness. The word hostile
means unfriendly and a witness is generally expected to give evidence in favor of the party by
whom he is called. But in certain cases, such witness may unexpectedly turn hostile and gives
evidence or make statements against the interest of the party, who has called him. Such witness is
called "hostile witness"
Section 154 of the Indian Evidence Act 1872(IEA)speaks about Hostile witness, said Section deals
with Questions by party to his own witness.
Section 154 of the Indian Evidence Act 1872 runs as follows - "The Court may, in its discretion,
permit the person who calls a witness to put any question to him which might be put in cross-
examination by the adverse party".
Satpal vs Delhi administration AIR 1976 - In this case Supreme court held that the hostile
witness is described as one who is not desirous of telling the truth at the instance of the party
calling him unfavourable witness is one called by the party to prove a particular fact, who fails to
prove such fact or proves an opposite fact. In this case the officer was charged with taking bribe.
A trap was laid by Inspector of anti-corruption department. The office of the accused was raided
 24

immediately. The evidence of the witnesses who participated in the trap as also of Inspector, was
rejected because they were interested in the success of their trap. The other two independent
witnesses who also made contradictory statement and the prosecution itself had cross-examined
them with the permission of the court. Court laid down in a number of cases that even when a
witness is cross-examined by the party who called him, his evidence cannot be treated as Washed
off from off from the record altogether the court can still rely upon that the pa of testimony of the
witnesses who inspires confidence of credit

Q14: What is the order and kinds of examination?

1) Examination-in-Chief : According to Section 137 of the Indian Evidence Act,1872 the
examination of a witness, by the party who calls him, shall be called his examination-in-chief. This
is also called as examination. Every witness is first examined by the party who has called him, this
process called his examination-in-chief. Section 138 provides Witnesses shall be first examined-
in-chief then, if the adverse party so desires cross-examined and then if the party calling him so
desires. re-examined.
Object / Purpose of Examination-in-chief : The object / purpose behind conducting the
examination-in-chief is to make the witness depose to what he has been called by the party calling
him to prove. In other words, the object of his examination is to get him from the witness all
material facts within his knowledge relating to the party's case. It must be confined to the relevant
fact and no leading questions can be asked. except with the permission of the Court.
The court shall permit leading questions to be asked as to matters which are introductory or
undisputed,or which have in its opinion, been already sufficiently proved.
Limit : In Examination-in chief no leading questions can be put except in certain special cases.
Leading question is one , which suggests the answer. only relevant questions should be asked. It
should be noted that in examination-in-chief, the lawyer conducting the examination of the
witness, the lawyer should understand the nature and temperament of the witness and ask such
questions which do not irritate the witness. The witness should be asked to answer calmly ans
comfortably, and in his own manner as he likes to express in his own words.

2) Cross-examination -According to Section 137, para 2 of the Indian Evidence Act,1872 : The
examination of a witness by the adverse party shall be called his cross-examination . Cross-
examination considered most powerful weapon. According to Philip Wendell, "Cross-
Examination is double-edged weapon, if you know how to wield, it helps to cut enemy's neck
Otherwise, it cuts own hands"
Limit-It should be remembered that the witnesses must speak to facts and not to opinions inference
or beliefs. A witness may be cross-examined as to previous statements made by him in writing or
reduced into writing. Leading questions may be asked.
Object- The object of the cross examination is to test the truth of statement made by witness, to
see how far is memory is reliable or what powers of observation possesses whether he is partial or
impartial, etc ; in short it is an attempt to break down a witness or to show that his statement can
not be relied upon. The object and scope of cross-examination is twofold to weaken qualify or
destroy the case of the opponent; and to establish the party's own case by means of his opponents
witnesses . With this view the witness may be asked not only as facts in issue or directly relevant
thereto , but all question
(1) tending to test his means of knowledge,
(2) tending to expose the error, of omission, contradictions and improbabilities in the testimony
or (3) tending to impeach his credit. The object of cross examination are to a impeach the
 25

accuracy, credibility and general value of the evidence given in chief ; to sift the facts already
stated by the witness, to detect and and expose discrepancies or to elicit suppressed facts which
will support the case of cross examination of party.
Sukhawant Singh v. State of U.P AIR 1995 SC 1601 In this case the Supreme Court has held that
a witness cannot be thrown open to cross-examination unless he is first examined-in-chief. Where
the prosecution did not examine its witness and offered him to be cross examined, it was held that
this amounted to abandoning one's own witness, there cannot be any cross-examination without
the foundation of examine-in-chief.
3) Re-Examination : According to Section 137, para 3 of the India evidence Act 1827 :The
examination of a witness, subsequent to the cross examination by the party who called him , shall
be called his re-examination.
Purpose / Object of re-examination : The purpose / object of re-examination is to afford to the
party calling a witness an opportunity of filing in lacuna or explaining the consistencies which
the cross-examination has observed. in the examination-in-chief of the witness. It is accordingly
confined to the explanation of matter refereed to in cross-examination. It should not introduce any
new matter unless the court permits; and if such permission is given, the adverse party may further
cross examine upon that matter.
Limit : The re-examination shall be directed to the explanation of matters referred to in cross-
examination, and if new matter by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.
Leading Questions should not be asked in re-examination : According to Section 142 of the
Indian Evidence Act , leading questions should not be asked in examination-in-chief or in re-
examination, if they are objected by the opposite party. In case the opposite party objects, the court
can decide the matter and may, in its direction either permits or disallow it. The Court that that it
shall permit leading questions as to the matters which are introductory or undisputed, or which
have, in the opinion of the Court, been already sufficiently proved to the satisfaction of the court.

Q15: Who may testify?/ competency of witnesses./ who is a competent witness under Indian
Evidence Act?
Competency of witness: Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But
the general definition of ‘witness’ is a witness is a person who voluntarily provides evidence to
clarify or to help the court in determining the rights and liabilities of the parties in the case.
Witnesses can either be the person related or experts with valuable input for the case. Pieces of
Evidence are placed in the court on the basis of witness and even the genesis can be proved of the
documents can be proved in the court.
Various types of witnesses are as follow:
Prosecution Witness: A witness for the prosecution is a witness who is brought into the court in
order to provide testimony which supports the prosecution’s overall case or would produce some
form of statement which helps to push the jury in favor of the prosecution’s argument.
Defense Witness: A witness summoned on the request of the defending party is known as a
Defense Witness.
Expert Witness: An expert witness, professional witness or judicial expert is a witness, who by
virtue of education, training, skill, or experience, is believed to have expertise and specialised
knowledge in a particular subject beyond that of the average person, sufficient that others may
officially and legally rely upon the witness's specialized (scientific, technical or other) opinion
about an evidence
 26

Eye Witness: An individual who was present during an event and is called by a party in a lawsuit
to testify as to what he or she observed. An eye witness must be competent (legally fit) and
qualified to testify in court.
Hostile Witness:A hostile witness may be defined as one who from the manner in which he gives
evidence (within which is included the fact that he is willing to go back upon previous statements
made by him), shows that he is not desirous of telling the truth to the court where therefore one
comes across a witness of this description
Child Witness: The witness understands the questions, and ascertain in the best way it can,
whether from the extent of his intellectual capacity and understanding he is able to give a rational
account of what he has seen, heard or done on a particular occasion
Dumb Witness: A witness who is unable to speak may give his evidence in any other manner in
which he can make it intelligible, as by writing or by signs, but such writing must be written and
the signs made in open Court4).
Chance Witness: If by coincidence or chance a person happens to be at place occurrence at the
time it is taking place, he is called a chance witness.
Accomplice Witness: A witness to a crime who, either as principal, accomplice, or accessory, was
connected with the crime by unlawful act or omission on his or her part, transpiring either before,
at time of, or after commission of the offense, and whether or not he or she was present and
participated in the crime
Interested Witness: Interested witness is one who is interested in securing conviction of a person
out of vengeance or enmity or A witness in a trial who has a personal interest in the outcome of
the matter at hand.
Stock Witness: A ‘stock witness’ is a person who is at the back and call of the police. He obliges
police with his tailored testimony. Such a witness is used by the police in raid cases. Such witnesses
are highly dis favoured by the judges.
Who may testify: Sections 118-121 and Section 133 (Accomplice) deal with the competency of
the persons who can appear as witnesses. Section 134 lays down rule as to the number of witnesses
required to give evidence in a case. A witness may be competent and yet not compellable i.e. the
court cannot compel him to attend and depose before it (viz. Foreign ambassadors and sovereigns).
Section 118 of the Indian Evidence Act, 1872 speaks about, “Who may testify”. This section says
that all persons are competent to testify, unless the court considers that, by reason of tender age,
extreme old age, disease (of body or mind), or infirmity, they are incapable of understanding the
questions put to them, and of giving rational answers. Even a lunatic is competent to testify,
provided he is not prevented by his lunacy from understanding the questions put to him and giving
rational answers to them.
Thus, no person is particularly declared to be incompetent. It is wholly left to the discretion of the
court to see whether the person who appears as a witness is capable of understanding the questions
put to him and of giving rational answers. Thus, competency is a rule, while incompetency is an
exception.
If a witness is a relative of the person who produces him, his statement cannot be discarded only
for that reason, unless it is shown that the statement is a tainted one and was given only to benefit
the person producing him. The credibility of the witness does not get affected merely because he
is related to the deceased or does not state the incident in the same language or manner which in
the opinion of the court is natural.
Child Witness: Indian jurisprudence has accepted child witnesses as a part of the legal system.
The Supreme Court has, on occasion affirmed that the test of competency, if satisfied by a child
even as young as 5 years old, would allow him to be a witness. The view of the Supreme Court
has been to discard age as a deciding factor in terms of disqualification. The Supreme Court has
 27

repeatedly affirmed that the testimony of children can be admitted as evidence, but the standard of
scrutiny is to be maintained whilst ascertaining how much importance must be placed on each
testimony.
When the child goes into a witness box it is the general practice for the judge to ask a few questions
to see that the child is intelligible enough to give rational answers to those questions and has the
rough idea between truth and falsehood.
Child witnesses are dangerous witnesses as they can be influenced very easily therefore
uncorroborated evidence of child witness is unsafe and thus careful scrutiny of the evidence is
suggested. Therefore, the testimony of a child witness must be scrutinized by the court in each
single case so as to determine the relevance of the answers and the extent of comprehension. The
Court must also ensure that the testimony is not tainted or doctored and that it is sufficiently
reliable. It is a sound rule in practice not to act on the uncorroborated evidence of a child, but this
is a rule of prudence, and not of law.
A minor is not competent to swear in an affidavit. He also cannot affirm statements recorded in an
affidavit. An affidavit sworn by a child is not admissible under sections 4, 5 of the Oaths Act and
Section 3 of the General Clauses Act. The courts should, however, always record their opinion that
the child understands the duty of speaking the truth.
“In order to determine the competency of a child witness, the judge has to form her or his opinion.
The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid
down regarding the degree of intelligence and knowledge which will render the child a competent
witness. The competency of a child witness can be ascertained by questioning her/him to find out
the capability to understand the occurrence witnessed and to speak the truth before the court. In
criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i)
understand questions put as a witness; and (ii) give such answers to the questions that can be
understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity
to understand questions and give rational answers thereto. A child becomes incompetent only in
case the court considers that the child was unable to understand the questions and answer them
in a coherent and comprehensible manner. If the child understands the questions put to her/him
and gives rational answers to those questions, it can be taken that she/he is a competent witness
to be examined.”
Dumb Witness: Section 119 of the Indian Evidence Act, 1872 speaks about, “Witness unable to
communicate verbally”. This section says that a witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as by writing or by signs; but
such writing must be written and the signs made in open Court, the evidence so given shall be
deemed to be oral evidence.
The reason for insisting that the signs and the writing are to be made in the court is for the purpose
that the court should interpret the signs or make sure that he clearly understood the question put
forward to him before he writes. If a commissioner is appointed to take evidence all he can do is
to see and interpret the signs made by the witness his interpretations can as well be different from
what the judge interprets. If the witness happens to be deaf and dumb then the questions have to
be written on and showed to him. But this can only be done if he is a literate person. A huge amount
of care is to be taken while taking evidence from these type of witnesses. It is expedient for the
witness as well the interpreter to take the oath before giving the evidence otherwise it would not
be admissible.
Husband/ Wife of any party: Section 120 of the Indian Evidence Act, 1872 speaks about, “Parties
to civil suit, and their wives or husbands. Husband or wife of person under criminal trial”. This
section says that in all civil proceedings, the parties to the suit are competent witnesses. Therefore,
a party to a suit can call as his witness any of the defendants to the suit. The plaintiff and the
 28

defendant can give evidence against each other. Husband and wives are, in all civil and criminal
cases, competent witnesses against each other (In olden days, the husband and wife were one
person in law).
Judge & Magistrate as witness: Section 121 of the Indian Evidence Act, 1872 speaks about,
“Judge and Magistrate”. Under this section a judge or Magistrate shall not be compelled to answer
questions as to
1. His conduct in court as such judge or Magistrate, or
2. Anything which came to his knowledge in court as such judge or Magistrate, except upon
the order of a court to which he is subordinate. He may be examined as to other matters
which occurred in his presence while he was so acting.
A judge or magistrate is a competent witness. A judge can be witness to relevant facts as an
ordinary man. If a judge is personally acquainted with any material or particular fact he may be
shown as a witness in the case. If he saw something happen, he can testify to it even if it happened
before him when he was presiding as a judge or magistrate. If, for example, the accused attempted
to shoot down a witness while he was testifying before a judge, the judge may be questioned as to
what he saw.
But, subject to this, no judge or magistrate can be questioned as to his judicial conduct or as to any
matter that came to his knowledge while acting as such judge or magistrate. However, a judge can
be questioned even as to judicial matters with the court's order. Moreover, a judge can waive his
privilege and voluntarily offer to explain his conduct as such judge or magistrate. The privilege
under Sec. 121 is also available to an arbitrator.
Number of Witness: Section 134 of the Indian Evidence Act, 1872 speaks about, “Number of
witness”. This section says that no particular number of witnesses shall in any case be required for
the proof of any fact. How many witnesses are necessary for the proof of a fact is wholly left to
the judgment of the court. As a general rule, a court can and may act on the testimony of a single
witness, though uncorroborated. The court is not concerned with the number of the witnesses in a
case but with the quality of those witnesses. If the court is satisfied with the testimony of either
one of the witnesses, the other numerous witnesses contending similar testimony would be
immaterial to the case. This exclusively does not provide for any particular minimum number of
required witnesses in a case, hence, testimony of sole witness in a case is credible if it is enough
to prove the case beyond reasonable doubt.
Witness Protection Scheme:
A witness is the one with the first hand information of the crime committed and plays a huge role
in the investigation process as well revealing the truth behind the circumstances that led to the
crime. Therefore, the witness protection scheme is necessary to encourage the witnesses to produce
testimony in the court without the fear of being killed or tortured while helping the court in
deciding the case.
Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat
assessment and protection measures inter alia include protection/change of identity of witnesses,
their relocation, installation of security devices at the residence of witnesses, usage of specially
designed Court rooms, etc. The Scheme provides for three categories of witness as per threat
perception:
▪ Category ‘A’: Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.
▪ Category ‘B’: Where the threat extends to safety, reputation or property of the witness or
his family members, during the investigation/trial or thereafter.
 29

▪ Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of
the witness or his family member’s, reputation or property, during the investigation/trial or
thereafter.
The quality of witness is kept over the quantity and need for a certain witness protection scheme
has been identified considering the importance of the witnesses and the threats they are subjected
to.

Q16: who is a child witness? What is its Admissibility, Competency and Credit of a child
witness?
Witnesses and Documents are the main sources of evidence. A witness is person gives testimony
or evidence before any Court. Evidence given by witnesses is called oral evidence while the
evidence produced through the document is called documentary evidence. The Indian Evidence
Act 1872 prescribes no age limit as to the competence of giving evidence. Even a child of 3 or 4
years old is competent to give evidence provided he, is competent to give rational answers to the
questions put to him.
Competency of Witnesses: Competency of witnesses means ability or capacity or qualification
to give evidence in the court of law.
Who may Testify or who can be witness: According to Section 118 of Evidence Act, All persons
shall be competent to testify unless the Court considers that they are prevented from understanding
the question put to them, or from giving rational answer to those questions, by tender years,
extreme old age, disease, whether of body and 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.
Child Witness or Child Testimony: Under Section 118 of Indian Evidence Act, 1872 a child can
be a witness. Before admitting or recording a statement of a child the court must testify itself that:
i) The witness understands the question and
ii) Ascertain the best way it can, whether from the context of his intellectual capacity and
understanding he is able to give a rational account of what he has seen, heard or done on a particular
occasion. If a person of tender years can satisfy the requirements, his competency as a witness is
established. It is not necessary that the child should have sufficient knowledge of the nature and
consequence of an oath. In England, a child to be competent witness must believe in punishment
in a future state for lying. But in India a child, although, does not understand the moral implication
of oath can give evidence In such, a case, no oath will be administered to him.
Whether the evidence given by a Child witness is admissible? The evidence given by Child
witness is admissible in Evidence. Value/ Credit of a Child Witness. Child Witnesses are the most
dangerous witnesses Due to tender age, they often mistake dream of reality. A child has a very
vivid imagination; it hears the conversion of adults; in due course of time, it comes to believe that
it hears and even that it is an eyewitness of the various events, which have sprung only out of its
imagination. Therefore the rule was evolved, namely, that the evidence of a child should be
ordinarily corroborated. It is unsafe to rely on uncorroborated testimony of a child. It is necessary
that Evidence given by child should be scrutinized with care and caution. The competency of a
child to give evidence is not regulated by the age but by the degree of understanding he appears to
possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony.
The question depends upon a number of circumstances, such as the possibility of tutoring the
consistency of the evidence, how far it stood the test of cross-examination and how far it fits in
with the rest of evidence.
 30

Q17: When opinions of third persons are relevant? Or what is Expert opinion and when it is
relevant? Or who is an Expert Witness under the Indian Law of Evidence?
The general rule is that opinions of third parties are irrelevant. However there are certain
exceptions to this rule which are set out in Section 45 to 51 of the Indian Evidence Act.
Definition of Opinion of Expert : Section 45 of the Indian Evidence Act,1872 defines "Expert
witness" as "When the Court has to form an opinion upon a point of foreign law, or of science, or
art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or
finger impressions, are relevant facts. Such person called experts.
These are the parties not directly or indirectly connected in any manner to the suit or proceeding
which is pending in the court, but they are called by the court to assist the court when the Court
cannot form the Judgement himself.
Illustrations:
(a) The question is, whether the death of A was caused by poison. The opinions 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, at the time of doing a certain act, was by reason of unsoundness of
mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or
contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A
commonly show unsoundness of mind, and whether such unsoundness of mind usually renders
persons incapable of knowing the nature of the acts which they do, or knowing that what they do
is either wrong or contrary to law, are relevant.
(c) 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 opinion of experts on the
question whether the two documents were written by the same person or by different persons are
relevant.
Relevancy of opinion / When relevant :
I) Facts bearing upon opinions of experts (Section 46) : Facts, not otherwise relevant, are
relevant if they support or are inconsistent with the opinion of experts when such opinions are
relevant.
Illustrations
(a) The question is, whether A was poisoned by a certain poison. The fact that other persons who
were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the
symptoms of that poison, is relevant
(b) The question is, whether an obstruction to a harbor is caused by a certain seawall. The fact that
other harbors similarly situated in other respects, but where there were no such sea-walls, began
to be obstructed at about the same time is relevant.
II) Opinions as to handwriting, when relevant (Section.47) : When the Court has to form an
opinion as to the person by whom document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is supposed to be written or signed that
it was or was not written or signed by that person, is a relevant fact.
Explanation – A person is said to be acquainted with the handwriting of another person when he
has seen that person write, or when he has received document purporting to be written by that
person in answer to documents written by himself to under his authority and addressed to that
person, or when in the ordinary course of business document purporting to be written by that
person have been habitually submitted to him.
Illustrations : The question is whether a given letter is in the handwriting of A, a merchant in
London. B is a merchant in Calcutta, who has written letters addressed to A and received letters
purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s
 31

correspondence. D is B’s broker, to whom B habitually submitted thee letters purporting to be

written by A for the purpose advising with him thereon. The opinions of B,C and D on the question,
whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A,
write.
III) Opinion as to digital signature when relevant (Section 47-A) : When the Court has to form
an opinion as to the digital signature signature of any person, the opinion of the Certifying
Authority which has issued the Digital Signature Certificate is a relevant fact.
IV) Opinion as to existence of right or custom when relevant (Section.48) : When the Court
has to form an opinion as to existence of any general custom or right, the opinions as to the
existence of such custom or rights, of persons who would be likely to know of its existence if it
existed, are relevant.
Explanation –The expression “general custom or right” includes customs or right common to any
considerable class of persons.
Illustrations : The right of the villagers of a particular village to use the water of a particular well
is a general right within the meaning of this section.
V) Opinion as to usage’s, tenants, etc., when relevant (Section 49) : When the Court has to
form an opinion as to - the usage’s and tenants of any body of men or family, the constitution and
government of any religious or charitable foundation, or the meaning of words or terms used in
particular districts or by particular classes of people, the opinions of persons having special means
of knowledge thereon, are relevant facts.
VI) Opinion on relationship, when relevant (Section 50) : When the Court has to form an
opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to
the existence of such relationship, or any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not
be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869, or in
prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code, 1860.
Illustrations:(a)The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife, is
relevant.
(d) The question is, whether A was the legitimate son of B. The fact that A was always treated
as such by members of the family, is relevant.
VII) Grounds of opinion when relevant (Section 51) :
Whenever the opinion of any living person is relevant, the grounds on which such opinion is based
are also relevant.
Illustration : An expert may give an account of experiments performed by him for the purpose of
forming his opinion.
3) Evidentiary Value of Expert Opinion/ Admissibility of Expert : According to Section 45 of
Indian Evidence Act, 1872 before a person characterized as an expert, it is necessary that there
must be some material on record to show that he is skilled in particular science and is possessed
of a particular knowledge concerning the same. He must have special study of the subject or
acquired special experience therein. Thus testimony of witness becomes admissible, his
competency of an expert must be shown, may be, by showing that he was possessed of necessary
qualification or that he has acquired special skilled therein by experience, It is for judge his
expertisation of the particular subject.
4) Case Law : a) In S. Gopala Reddy v. State of A.P , it was held that the evidence of an Expert
is a weak type of evidence and court consider it is unsafe to relay on it without independent and
reliable corroboration.
 32

b) In Anwar Vs.State of Haryana, 1997) SCC 766, it was held by the Court If the medical
evidenceis totally inconsistent with the occular evidence it would be permissible for the court to
reject the oral evidence thougghbmedical evidence is opinion evidence.

Q18: Meaning, concept and different kinds of accomplice.

Section 133 of the Indian Evidence Act deals with Accomplice. The word Accomplice has not
been defined in the Indian Evidence Act Act., therefore be presumed to have been used in its
ordinary sense.
1) meaning accomplice: An Accomplice is a person who along with others has take part in the
commission of crime, a partner in wrongdoing.
2) Definition of Accomplice: The word accomplice has not been defined in the Evidence Act.
According to Judicial decisions, an accomplice is one of the guilty associates or partners in the
commission of crime or who in some way or the other is connected with the commission of crime
or who admits that he has a conscious hand in the commission of a crime, principles criminals.
3) Competency of an Accomplice as a Witness: According to Section 133 of Indian Evidence
Act, "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." The
evidence of an accomplice, though it is uncorroborated, may form the basis for conviction. The
Court may presume that an accomplice is unworthy of credit unless the corroborated in material
particulars. The rule of law says that an accomplice is competent to give evidence and the rule of
practice says that it is almost always unsafe to convict upon his testimony alone. Under the English
Law, the evidence of an accomplice against accused is no evidence at all.
4) Kinds / Categories of Accomplice: There are Three kinds of Accomplice. An accomplice
many come under any one of the following categories.
i) Principle Offender first degree or second degree
ii) Accessories Before the Crime
iii) Accessories after the crime
i) Principal Offender first degree or second degree: Principal offender of first
degree is a person, who actually commits the crime, while principal offender of second
degree is a person who abets or aids the commission of crime.Example - A administers
poison through B to kill C. Ais the principle offender in first degree, and B is the
principal offender in the second degree.
ii) Accessories Before the Fact /Crime: Accessories before the Fact, those persons,
who abet the commission of a crime, are called "Accessories Before the Crime" They
do not participate in commission of crime but make necessary arrangements.
Example: A provides facilities or gives financial aid to B to commit Murder of 'D'
Here A is Necessary before the fact
iii) Accessories after the crime / Crime: Who receive or protect or comfort the person
who committed the crime. In simple words, person who help the accused in escaping
from punishment.
Example: X commits murder of Y, If Z is knowing that X committed the murder and
gives shelter to X, Z is called accessory after the crime/ fact.

Q19: Elaborately discuss Doctrine of Res. Gestae (Sec.6)

Section 6, Relevancy of facts forming part of same transaction: Facts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different times and places.
Illustrations:
 33

(a) A is accused of the murder of В by beating him. Whatever was said or done by A or В or
the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is
a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed
insurrection in which property is destroyed, troops are attacked, and goals are broken open. The
occurrence of these facts is relevant, as forming part of the general transaction, though A may not
have been present at all of them.
(c) A sues В 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.
(d) The question is, whether certain goods ordered from В were delivered to A. The goods
were delivered to several intermediate persons successively. Each delivery is a relevant fact.
Evolution of Res Gestae
Originally the Romans used Res gestae to mean acts are done or actus. It was described by the
English and American writers as facts forming the same transaction. Res gestae are the facts that
form a part of the same transaction automatically or naturally. They are the acts that speak for
themselves. Due to their association with the main transaction, these facts become relevant in the
nature of the fact in question. Circumstantial facts are admitted to be part of res gestae,
i.e. it is part of the original evidence of what happened. Statements can also accompany physical
events such as gestures. Things said or acts done in course of transaction amounts to res gestae.
Scope and ambit of Section 6 of the Indian Evidence Act, 1872
Facts that are so linked to a fact in question that they form part of the same transaction, although
not in question, are relevant, whether they occurred at different times and places at the same time.
The principle embodied in law in Section 6, is usually referred to as the res gestae doctrine. The
facts that can be proved as a part of res gestae must be facts other than those in question but must
be linked to them. Although hearsay evidence is not admissible, it may be admissible in a court of
law when it is res gestae and may be reliable proof. The reason behind this is the spontaneity and
immediacy of such a statement that for concoction there is hardly any time. Such a statement must,
therefore, be concurrent with the acts that constitute the offense or at least immediately thereafter.
Res gestae contains facts that are part of the same transaction. It is, therefore, appropriate to
examine what a transaction is, when it begins and when it ends. If any fact does not connect to the
main transaction, it is not a res gestae and therefore inadmissible. Res gestae includes elements
that completely fall outside the definition of modern hearsay, such as circumstantial evidence of a
state of mind, so-called “verbal acts“, verbal parts of acts, and certain non-verbal behaviour.
Because excited utterances are closely connected with the event in time and the excitement flows
from the event, excited utterances have been considered part of the action and therefore admissible
despite the rule of hearsay. The hearsay exceptions were also hired by Res gestae for present-sense
impressions, excited utterances, direct evidence of a state of mind, and statements made to doctors.
Illustrations:
• An injured or injured person’s cry.
• The witness’s cry to see a murder happen.
• The sound of a shot of a bullet.
• The person being attacked is crying for help.
• Gestures made by the person dying etc.
Definition of Transaction
A transaction, as the term used in this section, is defined as a crime, contract, error, or any other
subject of inquiry that may be in question by a single name. It includes both the immediate cause
 34

and effect of an act or event and the other necessary antecedents of its occurrence at a reasonable
distance of time, pace and cause and effect.
Working test for deciding a Transaction
A good working test of deciding what is a transaction is:
• Unity or proximity of place,
• Proximity of time, Continuity of actions, and
Community of purpose.
Continuity of action and community of purpose must be the key test. The condition for
admissibility of a statement made by a person at the occurrence scene is time proximity, police
station proximity, and continuity of action. The expression does not necessarily suggest time
proximity as much as action and purpose continuity.
A transaction may be a single incident occurring for a few moments or it may be spread across a
variety of acts, statements, etc. All of these constitute incidents that accompany and tend to explain
or qualify the fact in question, although not strictly constitute a fact in the matter. All these facts
are only relevant when they are connected by time proximity, unity or location proximity,
continuity of action and community of purpose or design.
Relevance of Evidence
As one and the same part of the transaction, evidence relating to the main subject matter is relevant.
Two separate offenses may be so inseparably linked that the proof of one necessarily involves
proving the other, and in such a case proving that one cannot be excluded from prosecution, as the
other proves.
Proof of other offenses by the accused would be relevant and admissible if a nexus existed between
the offense charged and the other offenses or the two acts formed part of the same transaction to
fall within Section 6. Simply because it occurred at or about the same time as the Trial offense res
gestae, an offense that is completely separate and disconnected is not allowable. Relevance of
Facts
Facts which are, immediately or otherwise, the occasion, cause or effect of relevant facts or facts
in question, or which constitute the state of affairs under which they occurred, or which provided
an opportunity for their occurrence or transaction, are relevant. Facts forming part of the same
transaction are admissible in the previous section. Evidence relating to collateral facts is admissible
where such facts occur, where reasonable presumption as to the disputed matter has been
established, and where such evidence is reasonably conclusive. The section provides for the
admission of several classes of facts related to the transaction under inquiry which are-
1. As being the occasion or cause of a fact,
2. As giving an opportunity for its occurrence,
3. As being its effect, and
4. As constituting the state of things under which it happened.
Test for Admission of Evidence under Res Gestae
First, the judge must take into consideration the circumstances in which the particular statement
was made to satisfy him that the event was as unusual or beginning or fanatical as it was to
dominate the victim’s thoughts, so that his statement was an instinctive reaction to that event, thus
giving no real opportunity for reasoned reflection.
The statement must be so closely associated with the event that aroused the statement that it can
be fairly stated that the declaring mind was still dominated by the event in order to be sufficiently
spontaneous. Therefore, the judge must be satisfied that the event providing the trigger mechanism
for the statement was still in operation.
 35

With regard to the possibility of reporting facts narrated in the statement if only the ordinary error
of human recollection is relied on, this goes to the weight to be attached and not to the admissibility
of the statement and is therefore a matter for the jury.
The test to be used in deciding whether a statement made by a bystander or a victim indicating an
attacker’s identity is admissible can be submitted as- Was that spontaneous?
• Was the identification relevant?
• Has there been any real possibility of error?
• Was there a concoction opportunity?
Principle of Admissibility of Declarations Accompanying Acts
1. The statement (oral and written) must relate to the act in question or relevant to it; it is not
admissible simply because it accompanies an act. Moreover, the statement must relate to
and explain the fact that it accompanies, and not independent facts previously or
subsequently unless such facts form part of a continuous transaction.
2. The statement must be substantially at the same time as the fact and not just the narrative
of the past.
3. The statement and the act may be made by the same person, or they may be made by
another person, e.g. victim, assailant, and bystander statements. In conspiracy, it is
admissible to riot the statements of all concerned in the common object.
4. Although it is admissible to explain or corroborate or to understand the meaning of the act,
a declaration is not proof of the truth of the stated matters.
Cases
The test applied to make the evidence admissible in all the following cases was to consider that
the statement was made in the spur of the moment without an opportunity to concoct and do
anything. Where the judges are satisfied that the reaction was the most immediate result of the
facts concerned being relevant to the circumstances, they have allowed such evidence to be
admitted.
Vasa Chandrasekhar Rao vs PonnaSatyanarayana,
His wife and daughter were killed by the accused. Deposition of the deceased’s father that the
father of the accused made a telephone call to him, saying his son had killed the deceased was not
found admissible. The question before the court was that it was possible to admit the deposition of
the accused father under Section 6 and is Res Gestae going to be a hearsay exception? Failing to
find out whether the information given by the accused father to the deceased’s father who killed
his wife and daughter was refused to accept the evidence as relevant under Section 6 either at the
time of the crime being committed or immediately thereafter to form part of the same transaction.
GentelaVijayavardhan Rao And Anr vs State of Andhra Pradesh,
Under res gestae, the appreciable interval between the act of carnage and the recording by the
magistrate of the statement was found inadmissible.
Bishna vs State of West Bengal,
Both witnesses arrived in an unconscious state immediately after the incident and found the dead
body of Prankrishna and wounded Nepal. One of them found Prannkrishna’s and Nepal’s mother
weeping and heard from an eyewitness that their testimony was admissible under Section 6 of the
Evidence Act about the whole incident and the role played by each of the appellants. Expansion
of the Doctrine of Res Gestae
Slowly, courts have extended the scope of this section to cases like domestic violence, child
witness, etc. Domestic violence and cases of assault necessarily involve a surprising event, often
involving the issue of excited utterances. In these cases, only victims can identify the alleged
culprit. Therefore, such testimony of victims must be admitted. Cases of rape usually occur in
 36

isolation. There is therefore no eye witness to an event like this. Cases of rape and domestic
violence differ from any other crime.
Usually, evidence is brought to res gestae if it cannot be brought to any other section of the Indian
evidence act. The intention of lawmakers was to avoid injustice where cases are dismissed due to
lack of evidence. If any statement under Section 6 is not admissible, it may be admissible in
accordance with Section 157 as corroborative evidence.
Court has always believed that this doctrine should never be unlimitedly extended. For this reason,
the “continuity of transaction” test was always considered by Indian courts. Any statement made
following a long gap that was not a response to the event is not admissible under Section 6 of the
Evidence Act. But courts allowed some statement that was spoken after a long gap from the
occurrence of the transaction because there was enough evidence that the victim was still under
the stress of excitement and so everything that was said was a reaction to the occurrence.
The strength of Section 6 is its vagueness. There is no distinction in this section between the word
transaction used. It varies from case to case. Every criminal case on its own merit should be judged.
The evidence is admissible under Section 6 if it is proven to be part of the same transaction, but
whether it is reliable or not depends on the discretion of the judge.

Q20: State the facts constituting occasion, cause and effect of fact in issue.
Facts Constituting Occasion, Cause or effect of Facts in Issue (Sec.7)
Section 7, Facts which are the occasion, cause or effect of facts in issue: Facts which are the
occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, or which afforded an opportunity for
their occurrence or transaction, are relevant.
Illustrations:
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery, В went to a fair with money in his possession, and that
he showed it, or mentioned the fact that he had it, to third persons are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was
committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which
afforded an opportunity for the administration of poison, are relevant facts.
Scope:
The scope of Section 7 is wider than Section 6. Section 6 deals with relevant facts forming part of
the same transaction, whereas Section 7 provides for the relevancy of several classes of facts.
Sometimes, it is difficult to prove whether fact forms part of the same transaction, but there are
several collateral facts which are not part of the same transaction, are required to be judicially
considered for ends of justice provided they constitute the occasion, cause or effect or provide
opportunity for the happening of the facts in issue. “Evidence relating to collateral facts is
admissible when such facts will, if established, establish reasonable presumption as to the matter
in dispute and when such evidence is reasonably conclusive.” The relevancy is determined by
human experience.
For example, whenever a quantity of blood is found in particular place, a man may reasonably
think and infer that some living being has been cut or it has been seriously injured at that place.
So, the fact as to presence of blood is the effect of some living being having been cut or injured at
that place. Another example is that whether a person has committed a particular crime, the fact is
that he had also committed similar crime in the past. It can be said that the commission of crime
 37

in the past is not relevant under section 6 but is relevant under section 7. The Section 7 therefore
provides for admission of several classes of facts under enquiry when they are connected in
particular ways. These modes of connection are:
1. As being the occasion or cause of a fact;
2. As being its effect;
3. As giving opportunity for its occurrence; and
4. As constituting the state of things under which it happened.
1. Cause and occasion of facts:
Evidence relates to set of circumstances which constitute cause and occasion for the happening of
facts in issue is relevant. The cause and effect of particular fact in the past will have the same cause
and effect in future. The question is whether ‘G’ was murdered by ‘A.’ Q a girl refused A’s
(accused) offer of sex. ‘G’ was alone at her home at the time of murder being the occasion of
murder and for refusal of sex by ‘G’ is the cause and occasion of the murder.
2. Effect:
An effect is the ultimate result of an act done, which not only keeps records of the happening of
the act but also provides helps to know the nature of act. So, the facts which are the effects,
immediate or otherwise of a fact in issue or relevant fact, are relevant under section 7. Illustration
(b) states that the marks near the place where the murder took place are instances of murder. The
marks or foot prints is relevant as an effect. Similarly, the effect of conversation may be proved
with the help of Tape recorder.
3. Cause and effect:
A student was charged for trespassing girls’ hostel at night. The fact is that the coat of the student
(accused) was recovered from the room of a girl who was his classmate. The recovery of coat is
relevant and shows the cause and effect.
4. Opportunity:
Facts affording opportunity for occurrence of the fact in issue are the relevant. Illustration (c) refers
to circumstances for administering poison is relevant. An opportunity may be either mere
opportunity or exclusive opportunity. Mere opportunity for a person to do something which may
give rise an inference that he did it is relevant. In exclusive opportunity it proves conclusively that
the act was done by the person having exclusive opportunity to do it. The evidence of a woman
who was alone in the house on particular day was held admissible to show that it afforded an
opportunity to the accused to commit rape, is relevant under section 7 of the act.
5. State of things:
The state of things means the set of facts which has to be placed before the court as a background
in order to make principal fact intelligible to them. It is relevant.
Example:
Accused husband was prosecuted for shooting down his wife as he was unhappy with his wife and
was carrying an affair with another woman. Unhappiness of the husband and affairs with another
woman were held to be relevant which constituted the state of thing in which the principal fact,
‘shooting down’ happened.

Q21: State the facts which need not to be proved under the Indian Evidence Act,1872.
It is a general rule that, the party to the suit must prove his case by producing oral or documentary
evidence. Part II of the Indian Evidence Act deals with the manner in which facts received in
evidence under Part I May be given in evidence. The party, who wishes the Court to believe in the
existence of a fact, must prove it. However, exceptions to this general rule are provided under
Chapter III of the Indian Evidence Act.
 38

Chapter III containing Section 56 to 58 of the Indian Evidence Act , lays down the provisions
relating to facts which need not be proved. Section 56 says that facts in respect of which Court
must take judicial notice need not be proved.
2) Fact Judicially noticeable Need not be Proved (Section - 56) No fact of which Cort will
take judicial notice need be proved. Section 56 thus provides that the facts which the court is
capable of taking judicial notice need not be proved. “Judicial notice " signifies notice on
recognition of the truth of the facts taken by a judge without requiring proof by any evidence.
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. The very obvious
reason is that such facts are supposed to be within knowledge of the judge and any attempt to prove
them would virtually be undermining the competence of the Court.
Lord Stephen observes in his introduction, “that certain facts are so notorious in them or are stated
in so authentic manner in well known and accessible publications that they require no proof. The
court, if it does not know them, can inform itself upon them without formerly taking evidence.
These facts are said to be judicially noticed."
In order to understand the correct meaning of Section 56 and 57 they should be taken together.
Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the court
must take judicial notice of it, no evidence in proof of it should be given. Section 57 gives a list of
facts of which the Courts must take judicial notice.
3) Facts of which must take Judicial Notice (Section - 57) The Court shall take judicial notice
of the following facts;
1. All laws in force in the territory of India;
2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local
and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
3. Articles of War for the Indian Army,Navy of Air force;
4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of
India, of Parliament and of the Legislature established under any law for the time being in force in
Province or in the States;
5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom
of Great Britain and Ireland;
6. All seals of which English Courts take judicial notice; the seals of all the Courts in India and of
all Courts out of India established by the authority of the Central Government or the Crown
representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public
and all seals which any person is authorized to use by the Constitution or an Act of Parliament of
the United Kingdom or an Act or Regulation having the force of law in India;
7. The accession to office, names, titles, functions and signatures of the persons filling for the time
being any public office in any state, if the fact of their appointment to such office is notified in any
official Gazette;
8. The existence, title and national flag of every State or Sovereign recognized by the Government
of India;
9. The divisions of time, the geographical divisions of the world, and public festivals, facts and
holidays notified in the Official Gazette;
10. The territories under the dominion of the Government of India;
11. The commencement, continuance and termination of hostilities between the Government of
India and any other State or body of persons;
12. The names of the members and officers of the Court, and of their deputies and subordinate
officers and assistants and also of all officers acting in execution of its process, and of all
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advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or
act before it;
13. The rule of the road, on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may
report for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so
unless and until such person produces any such book or document as it may consider necessary to
enable it to do so.
4) Effect of Judicial Notice: Judicial notice is not conclusive proof of facts judicially noticed.
Matters may be disproved even after they are taken judicial notice of.
5) Comparison of Section 57 and Section 114 - Section 57 of the Evidence Act makes it
obligatory on the part of the Court to take judicial notice of the facts mention in it. There is nothing
in Section 57 to indicate that the Court cannot take judicial notice of the facts, regard had to the
common course of nature of events, human conduct and public and private businesses in their
relation to the fact of the particular case. The provisions under section 114 do not make it
obligatory on the part of the Court to take judicial notice of any fact, but empowers the Court to
take judicial notice of those facts which the court may presume to have happened regard been had
to common course of natural event ,human conduct and public and private business in relation to
fact of particular case.
6) Facts Admitted need not be proved (Section - 58): This Section lays down a principle that ,
what is admitted need not be proved. The Court has to try the questions on which the parties are at
issue, not those on which they have agreed. These Admissions are said to be formal admission or
judicial admissions has given during trial, either at or before the hearing. Section runs as follows:
No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit
at the hearing, or which, before the hearing, they agree to admit by any writing under their hands
or which by any rule of pleading in force at the time they are deemed to have admitted by their
pleadings;
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise
than by such admission.
Section 58 classifies the judicial admissions, which require no proof into the following :
1. facts which parties or their agents agree to admit at the hearing.
2. facts which before the hearing they agree to admit in writing.
3. facts which they are deemed , to have admitted by rules of pleadings.
The general rule is that every fact on which a party realise must be proved Either by oral or
documentary evidence. However, this general rule is subject to following three exceptions
1) Facts of which is the court takes judicial notice (Section 57).
2) Facts admitted (Section 58)
3) Facts which the law presume in favor of a party and need not be proved

Q22: How the credit of a witness is impeached under the Indian evidence act? Or elaborately
discuss impeaching the credit of a witness.
Section 155 of Indian Evidence Act 1872 deals with "Impeaching credit of witness"
" The credit of a witness may be impeached in the following ways by the adverse party, or with
the consent of the Court, by the party who calls him —(1) By the evidence of persons who testify
that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received
any other corrupt inducement to give his evidence;
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(3) By proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted;
Explanation: A witness declaring another witness to be unworthy of credit may not, upon
his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination, and the answers which he gives cannot be contradicted, though, if they are false, he
may afterwards be charged with giving false evidence.
Illustrations
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods
to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered
the goods to B. The evidence is admissible.
(b) A is indicted for the murder of B. C says the B, when dying, declared that A had given B the
wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the
wound was not given by A or in his presence. The evidence is admissible.
Method of Impeaching Credit of Witness
There are following methods mentioned in this section for impeaching credit of witnesses:-
Unworthy of Credit – Producing witnesses who testify from their personal knowledge of the
witness that he is unworthy of credit and such person should have personal knowledge of the
witness. The court cited following points from the judgement of the Supreme Court i.e., A person
who witnesses a murder reacts in his way. Some are stunned, become speechless and stands
crumble to the spot. Some become uncontrolled and start wailing and shouting for help while some
people run away to keep themselves removed from the spot and others rush to the rescue of the
victim. So, everyone reacts in his own special way. There is not set rule of natural reaction and
everyone has different reaction in different incident. To discard the evidence a witness on the
ground that they did not react in a particular manner is to appreciate evidence in a wholly
unrealistic and unimaginative way.
Corrupt Inducement – When the witness has either taken bribe or accepted the offer of a bribe
or some other corrupt inducement for giving his evidence. This type of witness is not an
independent witness but is one who has been hired. This witness often known as Pocket witness.
If this fact is proved, the witness loses his credit immediately.
Former Inconsistent Statements – By showing earlier statements of the witness which contradict
his present statements can be cited only to the extent to which section 153 would permit such
contradiction. If a witness disowns any statement which is inconsistent with any part of his
statements made earlier, he can be contradicted by calling the attention to those parts of statement
which are to be used for contradicting him, but asking questions in cross-examination with the
reference to such statements would not serve any purpose.
Immoral Character of Prosecutrix for Rape – When a man is being prosecuted for rape or an
attempt of ravish, it may be shown that Prosecutrix, the complainant, is generally a woman of
immortal character. When the Prosecutrix is being subjected to prolonged and harassing cross-
examination, the Supreme Court has advised the court not to sit as silent spectator to the
harassment. The court must safeguard the honour of the Prosecutrix otherwise woman victims of
crime would be compelled to reconcile with the stroke of luck and go on tolerating vicious attacks
violently outside the court and embarrassing inside the court.
Explanation
A witness who expresses the opinion to the court that another witness is unworthy of credit shall
not state the reasons for his opinion in the examination-in-chief. But he may be called upon to
explain his reasons in cross-examination. Whatever reason he may give shall not be contradicted
but if the answer is false, he may be prosecuted or charged for giving false evidence.
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Here, in this article I will explain the Section 155 which plays an important role in the false witness
who takes bribe or unworthy credit and can also be charged with the false evidence