EXAM CAPSULE

Prepared by Law Exam Destination (LED)

(DU LLB semester exam material)
Subject – Law of Evidence

Ahmad Khan
History Honours, JMI
M.A. History, HCU (NET Qualified)
LLB, DU

Shweta Suman
Zoology Honours, MU
LLB, DU
 Topic - 2
(Principal Reading)

RELEVANCY AND ADMISSIBILITY OF FACTS

SECTION 5 Evidence may be given of facts in issue and relevant facts. –– Evidence may be
given in any suit or proceeding of the existence of 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
Ingredients
According to this section, in a suit or proceeding evidence may be given of the existence or non-
existence of (1) facts in issue, and (2) of such other facts as are declared to be relevant in the
following sections (Sections 6 to 55).

• "And of no others"
This section excludes everything which is not declared relevant under any of the Sections
6 to 55.
The words "and of no others" impliedly impose a duty on the court to exclude evidence
of irrelevant facts, irrespective of objections by the parties.

OBJECT- The object of this section is to restrict the investigation made by courts within
the bounds prescribed by general convenience.

Difference between relevancy and admissibility

RELEVANCY ADMISSIBILITY

1. Relevancy is based on logic and 1. Admissibility is not based on logic

probability but on strict rules of law.

2. The rules of relevancy are described 2. The rules of admissibility are not
under Sections 5-55 of Evidence Act, described under Sections 5 to 55 of
1872. Evidence Act, 1872
 3. The rules of relevancy declare what 3. The rule of admissibility means that
is relevant to be proved. the Court can permit the evidence to be
given of a fact only if it is relevant.

4. Under Evidence Act, 1872 the rules 4. Admissibility is the means and
of relevancy means relevant evidence. method to prove the relevant fact and
they may be admissible or not. to keep the evidence limited to the
relevant fact.
5. The facts which are relevant are not 5. The facts which are admissible are
necessarily admissible. necessarily relevant.

Admissibility of evidence - Supreme court in Magraj Patodia v. R. K. Birta 1971 dealt with
the admissibility in evidence. This Court said that a document which was procured by improper or
even by illegal means could not bar its admissibility provided its relevance and genuineness were
proved.

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.

The doctrine of Res Gestae is enshrined in this section. This phrase means simply a transaction,
'thing done', 'the subject matter’. Res gestae is an exception to the principle that hearsay evidence
is no evidence.
Principle - This section admits those facts the admissibility of which comes under the technical
expression res gestae (i.e the things done (including words spoken) in the course of a transaction],
but such facts must "form part of the same transaction". Every fact which is part of the same
transaction as the fact in issue is deemed to be relevant to the fact in issue although it may not be
actually in issue, and although if it were not part of the same transaction, it might be excluded as
hearsay.
• "Facts forming part of same transaction."
The transaction consists both of the physical acts and the words accompanying such physical
acts, whether spoken by the person doing such acts, the person to whom such acts are done or any
other person or persons.
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.
SECTION 7 - Facts which are the occasion, cause or effect of facts in issue
Ingredients -
The facts which are connected with the fact in issue in the following modes are relevant under the
section:
(1) The facts as being occasion or cause of (the fact in issue) or of relevant fact. (2) Facts as
being their effect. (3) Facts as giving opportunity for their occurrence. (4) Facts as
constituting the state or things under which they happened.
Scope - Section 7 lays down that the facts which are cause or effect of the facts in issue or of
relevant facts are relevant. It also lays down that the facts which are occasion or which afford an
opportunity for the occurrence of the fact in issue or of relevant fact, are relevant.
Occasion, cause, effect and opportunity-The elements are so connected together that it would be
convenient to take them together, Ex- J was tried for the murder of K. The dead body of K was
found near a bridge in a gunny bag. At the trial the. facts proved were: (i) the wife of K deposited
all her ornaments with J;(ii)J took all the money that K had for purchasing a truck that he never
purchased; (iii) K demanded money from Jon the 17th May, 1947. J asked K to come on the 19th
May; (iv) K came and stayed with J on the 19th night, of these facts, the facts of J being indebted
to K and K's demand for money are relevant as the cause of murder and the fact that K went and
stayed there and slept are relevant as the occasion of murder and also opportunity for it.

SECTION 8 - Motive, preparation and previous or subsequent conduct

ingredients
Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that
(1) a fact which shows or constitutes a motive for any fact in issue or relevant fact is relevant;
(2) a fact which constitutes or shows preparation for any fact in issue or relevant fact, is relevant;
(3). previous or subsequent conduct of any party or of any agent to any party to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any fact in issue or relevant
fact, are relevant provided such conduct influences or is influenced by any fact in issue or relevant
fact;
(4) previous or subsequent conduct of any person an offence against whom is the subject of any
proceeding or suit is relevant provided such conduct influences or is influenced by any fact in issue
or relevant fact;
(5) Conduct accompanying or explaining statements (Explanation 1);
(6) Statements Affecting Conduct (explanation 2) - statements made in the presence and hearing
of a person whose conduct is relevant provided the statement affects such conduct.
Comment – Under this section the motive which induces a party to do act, or the preparation
which he makes in its commission, will be taken into account. Evidence of motive becomes
important when a case depends upon circumstantial evidence only.
Motive – Motive is that which moves a man to do a particular act. Motive in the correct sense is
the emotion supposed to have led to the act. It is often proved by the conduct of a person.
Preparation – Preparation consists in devising or arranging the means or measures necessary for
the commission of a crime. Preparations on the part of the accused to accomplish the crime
charged, or to prevent its discovery, or to aid his escape, or to avert suspicion from himself are
relevant on the question of his guilt.
Conduct – The conduct of any party or his agent in reference to a suit or proceeding will be
scanned under this section. A fact can be proved by conduct of a party and by surrounding
circumstances. The production of articles by an accused person is relevant as evidence of conduct.
Statements accompanying or explaining conduct are also relevant as part of the conduct itself. In
R. M. Malkani v. State of Maharashtra, 1973 - Conversation over telephone for settling details
for passing bribe-money was recorded by secret instruments was held to be evidence of conduct.

SECTION 9 Facts necessary to explain or introduce relevant facts

ingredients
Under Section 9 the following facts are relevant:
(a) Facts which are necessary to explain a fact in issue or relevant fact.
(b) Facts which are necessary to introduce a fact in issue or relevant fact.
(c) Facts which support an inference suggested by a fact in issue or relevant fact.
(d) Facts which rebut an inference suggested by a fact in issue or relevant fact.
(e) Facts which establish the identity of anything or person whose identity is relevant.
(f) Facts which fix the time or place at which the facts in issue or relevant fact happened.
(g) Facts which show the relation of parties by whom any such fact was transacted.
***note - Facts which establish the identity of a person - Identity of Accused: Test Identification
(TI) Parade –
One of the methods of establishing the identity of the accused is "test identification parade". Its
evidence is received under this section. The idea of the parade is to test the veracity of the witness
on the question of his capability to identify, from among several persons made to stand in a queue,
an unknown person whom the witness had seen at the time of the occurrence. It is only an aid to
investigation. The practice is not borne out of procedure but out of prudence. The purpose is to
test and strengthen the substantive evidence of the witness in court. Such evidence is used for
corroboration.
The main object of holding TI parade during investigation is to test the memory of the witness
based upon the first impression and also to enable the prosecution to decide whether all the
witnesses or any of them could be called as an eye-witness to the crime.
The test identification parade should be held at the earliest-possible opportunity, but there is no
hard-and-fast rule that can be laid down in this regard. If the delay is inordinate and there is
evidence probabilising the possibility of the accused having been shown to the witnesses, the court
may not act on the basis of such evidence.

SECTION 10 -Things said or done by conspirator in reference to common design

Principle-The basic principle which is underlined under Section 10 is the theory of agency and
hence every conspirator is agent of this association in carrying out the object of conspiracy
Under Section 10 anything done or written by any one of the conspirators in respect of their
common intention is admissible against all the conspirators for the purpose of proving (1) that the
conspiracy existed, and (2) for the purpose of proving that a person was a party to it.
"An overt act committed by any one of the conspirators is sufficient on the general
principles of agency to make it the act of all.
Ingredients - In Bhagwan Swamp v. State of Maharashtra [AIR 1965 SC 682], this court
analyzed the section as follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that
two or more persons are members of a conspiracy ; (2) if the said condition is fulfilled, anything
said, done or written by any one of them in reference to their common intention will be evidence
against the others; (3) anything said, done or written by him should have been said, done or written
by him after the intention was formed by any one of them; (4) it would also be relevant for the
said purpose against another who entered the conspiracy, whether it was said, done or written
before he entered the conspiracy or after he left ; (5) and it can be used only against a conspirator
and not in his favour
In Bhagwan Swarup v. state of Maharashtra , it was also observed that the expression “in
reference to their common intention” is wider than the words “in furtherance of the common
intention” and this is very comprehensive and it appears to have been designedly used to give it a
wider scope than the words “in furtherance of” in the English law. But, once the common intention
ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one
made “in reference to the common intention”. Therefore, a post-arrest statement made to the police
officer was held to be beyond the ambit of Section 10 of the Evidence Act
SECTION 11 - When facts not otherwise relevant become relevant
ingredients
In order that a collateral fact may be admissible as relevant under this section there are two
requirements:
(1) that the collateral fact must itself be established by reasonably conclusive evidence; and
(2) that it must, when established, afford a reasonable presumption or inference as to the matter in
dispute.
Analysis of the section 11 - Section 11 contains two clauses. The first clause lays down that the
facts, which are inconsistent with the facts in issue or relevant facts, are relevant Under the second
clause the facts which by themselves or in connection with other facts make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable are relevant.

• "Inconsistent with any fact in issue"- Plea of Alibi

Alibi-The plea of absence of a person, charged with an offence, from the place of
occurrence at the time of the commission of the offence is called the plea of alibi.
The plea of alibi postulates the physical impossibility of the presence of the accused at the
scene of offence by reason of his presence at another place. Indian Evidence Act section 11
postulates the concept of alibi. Alibi is, a negation of “opportunity”, and the fact that that
the accused was at a different place and had no opportunity to commit the crime`` is
something best known to the accused and it should be for him to make that fact known to
the prosecution and the court and prove it.
The plea of "alibi" has to be weighed against the positive evidence led by the prosecution,
i.e., not only the substantive evidence of the witness and the dying declarations, but also
against the scientific evidence, viz., the DNA analysis, finger print analysis and bite marks
analysis, the accuracy of which is scientifically acclaimed

• "Highly probable or improbable"

These words point out that the connection between the facts in issue and the collateral facts
sought to be proved must be so mediate as to render the co-existence of the two highly
probable

ADMISSIONS
Sections 17, 18, 19 and 20 taken together define 'admission'
SECTION 17 – Admission defined–An admission is a statement, [oral or documentary or
contained in electronic form], which suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
Ingredients
 a) An admission is a statement (i) oral or (ii) documentary
b) Which suggests any inference as to any (i) fact in issue or (ii) relevant fact
c) Which is made by a person authorised by the Indian Evidence Act
d) And under the circumstances as described by the Indian Evidence Act
Comment
➢ An "admission" is a statement of fact which waives or dispenses with the production of
evidence by conceding that the fact asserted by the opponent is true. Admissions are
admitted because the conduct of a party to a proceeding, in respect to the matter in dispute,
whether by acts, speech, or writing, which is clearly inconsistent with the truth of his
contention, is a fact relevant to the issue.
➢ Admissions are very weak kind of evidence and the court may reject them if it is satisfied
from other circumstances that they are untrue.
➢ Admission of a party in the proceedings either in the pleadings or oral is the best evidence
and the same does not need any further corroboration
➢ A statement to be used as an admission must be clear, specific and unambiguous and in the
own words of the person making it and has to be proved to be so.
➢ An admission must be examined as a whole and not in parts. It is settled law that an
admission of any party has to be read in its entirety and no statement out of context can
constitute admission of any fact
➢ Admissions are substantive evidence by themselves, though they are not conclusive proof
of the matters admitted

SECTION 18 - Admission by party to proceeding or his agent

ingredients
Section 18 lays down five classes of persons who can make admissions –
(1) Party to the proceeding.
(2) Agent authorized by such party.
(3) Party suing or sued in a representative character making admissions while holding such
character.
(4) Person who has any proprietary or pecuniary interest in the subject-matter of the proceeding
during the continuance of such interest.
(5) Person from whom the parties to the suit have derived their interest in the subject-matter of the
suit during the continuance of such interest – This clause indicates that there ought to be a privity,
i.e. mutual or successive relationship to the same right of property. Privies are of three kinds: 1)
Privies in blood, as an heir, an ancestor and coparceners. ii) Privies in law, as executor and testator,
administrator and a person dying intestate. iii) Privies in estate or interest, as vendor and purchaser,
lessor and lessee. mortgagor and mortgagee, donor and donee.
SECTION 19 - Admissions by persons whose position must be proved as against party to suit
Ingredients
a) Statements made by persons
b) Whose position or liability it is necessary to prove as against any party to the suit, are
admissions,
c) If such statements would be relevant as against such persons in relation to such position or
liability in a suit brought by or against them,
d) And if they are made whilst the person making them occupies such position or is subject to such
liability.
Comment - The admission of a third person against his own interest when it affects his position
or liability and when that position or liability has to be proved as against a party to the suit, is
relevant against the party. Ordinary statements by strangers to a proceeding are not relevant as
against the parties
SECTION 20 - Admissions by persons expressly referred to by party to suit.
Statements made by persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.
Ingredients
a) Out of two parties to a suit, one party
b) refers third person for information
c) in reference to a matter in dispute
d) the third person makes a statement in respect of property or matter in dispute
e) the statement of third person is relevant and an admission.
Comment- This section forms another exception to the rule that admissions by strangers to a suit
are not relevant. Under it the admissions of a third person are also receivable in evidence against,
and have frequently been held to be in fact binding upon, the party who has expressly referred
another to him for information in regard to an uncertain or disputed matter

SECTION 21 - Proof of admissions against persons making them and by or on their behalf
This section lays down as a general rule that admissions are relevant and may be proved against
the person who makes them or his representative in interest. Admissions must be clear if they are
to be used against the person making it. Admissions are substantive evidence by themselves, in
view of section 17 and this section, though they are not conclusive proof of the matters admitted.
The principle underlying this rule of law is very clear, it is natural for a man to make statements
in his favor. Where the statements are against the interest of the person making them there is a
natural presumption of truth, and they may be proved.
To this principle three Exceptions are laid down in the section:
(Exception 1) Statements of deceased person relevant in dispute between third parties - This
exception enables a person to prove his own statement where the circumstances are such that if he
were dead, the statement would have been relevant in a dispute between third parties.
(Exception 2) Explanation of state of mind or body or mental or bodily feeling-
When the admission of man consists of a statement of existence of any state of mind or body
relevant, and when it was made at or about the time when such state of mind or body existed and
is recommended by conduct rendering its falsehood improbable, it may be used by the person who,
makes it even for his own benefit.
(Exception 3) Statement relevant otherwise than as admission
An admission may be proved by or on behalf of the person making it, if it is relevant otherwise
than as an admission.
For ex- Where an injured accused person was examined by a doctor and in the course of such
examination he explained the cause of his injuries, it was held by the Supreme Court that the
statement was not an admission and was a relevant evidence under section 3 otherwise than as an
admission. He could prove his own statement.
Difference between Confession and Admission
CONFESSION ADMISSION
A confession is a statement made by an
An admission usually relates to civil
accused person which is sought to be transaction and comprises all
proved against him in criminal statements amounting to admission
proceeding to establish the commission
defined under Section 17 and made by
of an offence by him person mentioned under Sections 18, 19
and 20.
Confession if deliberately and Admission are not conclusive as to the
voluntarily made may be accepted as matters admitted it may operate as an
conclusive of the matters confessed. estoppel.

Confessions always go against the Admissions may be used on behalf of

person making it the person making it under the
exceptions provided in Section 21 of
Evidence Act.
 Confessions made by one or two or Admission by one of the several
more accused jointly tried for the same defendants in suit is no evidence against
offence can be taken into consideration other defendants.
against the co-accused (Section 30).
Confession is statement written or oral Admission is statement oral or written
which is direct admission of guilt. or contained in electronic form which
gives inference about the liability of
person making admission.

Difference between Judicial and extra judicial confessions

JUDICIAL EXTRA JUDICIAL
CONFESSIONS CONFESSIONS
Judicial confessions are those which are Extra judicial confessions are those
made to a judicial magistrate under which are made to the persons other
Section 164, Cr.P.C. or before the court than those authorised by law to take
during committal proceeding or during confession. It may be made to any
trial. person or to police during investigation
of an offence.
To prove judicial confession the person Extra judicial confessions are proved
to whom judicial confession is made by calling the person as witness before
need not be called as witness. whom the extra judicial confession is
made.
Judicial confessions can be relied as Extra judicial confession alone cannot
proof of guilt against the accused be relied. It needs support of other
person if it appears to the court to be supporting evidence.
voluntary and true.
A conviction may be based on judicial It is unsafe to base conviction on extra
confession. judicial confession.

CONFESSION
The substantive law of confession is contained in sections 24 to 30 of the Evidence Act and the
adjective law, in sections 164, 281 and 463 of the Code of Criminal Procedure, 1973.
SECTION 24 Confession caused by inducement, threat or promise, when irrelevant in
criminal proceeding - A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been caused by any
inducement, threat or promise having reference to the charge against the accused person,
proceeding from a person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds which would appear to him reasonable for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings
against him.
The ingredients of Section 24.-To attract the prohibition enacted in Section 24 the following facts
must be established
• The confession has been obtained by any inducement, threat or promise.
• Such inducement, threat or promise was given from a person in authority.
• Such inducement, threat or promise, was about the charge against the accused person.
• Such inducement, threat or promise must, in the opinion of the court, be sufficient to give
the accused person grounds for supposing that by making it, he would gain any advantage
or avoid any evil of a temporal nature about the proceedings against him.
Principle underlying Section 24.-The ground upon which confessions are received in evidence
is the presumption that no person will voluntarily make a statement which is against his interest
unless it be true. But the force of the confession depends upon its voluntary character. There is
always a danger that the accused may led to incriminate himself falsely.
SECTION 25.-Confession to police officer not to be proved-No confession made to a police
officer, shall be proved as against a person accused of any offence.
According to this section, no confession made to the police officer shall be proved against the
person who made it.
The purpose behind this restriction is:
• To protect the accused person from third-degree treatment.
• To ensure a proper and fair investigation.
• To bring the actual culprit to the books.
Section 26 Evidence Act – Confession by Accused When in Custody
According to section 26 of the Indian Evidence Act, a confession by the accused while in police
custody cannot be proved against him.
Exception to Section 26 of the Evidence Act.
If such confession while in the custody of police was made in the immediate presence of a
Magistrate, it shall be proved as against such person.
Ingredients
a) the accused is in police custody
b) A confession is made to him (i) to the police officer (section 25) or (ii) to any person who is not
a magistrate
c) is not admissible in the proceeding and cannot be proved against the accused
d) Exception: It is admissible, if it is made in the immediate presence of the Magistrate.

Section 27. How much of information received from accused may be proved - Provided that,
when any fact is deposed to as discovered inconsequence of information received from a person
accused of any offence, in the custody of a police-officer, so much of such information, whether
it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Section 27 starts with the word "provided". Therefore, it is a proviso by way of an exception to
sections 25 and 26 of the Evidence Act.
ingredients of Section 27
Following are the conditions for a confession to be proved under section 27 of the Indian Evidence
Act
a) There must be the discovery of a fact in consequence of information received from a person
accused of any offence.
b) The accused must be in the custody of a police officer.
c) Such information should relate distinctly to the fact discovered.
For instance, the statement given by the person was “I will produce a sword concealed in the
courtyard of my house with which I stabbed A”. And the sword was recovered.
There are two parts to this sentence. The second part i.e. with which I stabbed A, is not relevant.
But the remaining part is relevant, which led to the discovery of the weapon used in the offence.
Section 27 How much of information received from accused may be proved –– Provided that,
when any fact is deposed to as discovered inconsequence of information received from a person
accused of any offence, in the custody of a police-officer, so much of such information, whether
it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Ingredients
a) A person accused of any offence.
b) He is in custody of police.
c) Some information relating to the offence is given by the accused.
d) Some facts are discovered in consequence of the information.
e) Only so much of information relates distinctly to the fact discovered, can be proved.
Section 28 Confession made after removal of impression caused by inducement, threat or
promise, relevant - If such a confession as is referred to in section 24 is made after the impression
caused by any such inducement, threat or promise has, in the opinion of the Court, been fully
removed, it is relevant.
Section 32(1) Cases in which statement of relevant fact by person who is dead or cannot be
found, etc., is relevant-
Ingredients
A statement by a person made before his death to be relevant, the following ingredients are to be
satisfied: (i) The statement is made by a person who is conscious and believes or apprehends that
death is imminent. (ii) The statement must pertain to what the person believes to be the cause or
circumstances of his/her death. (iii) What is recorded must be a statement made by the person
concerned, since it is an exception to the rule of hearsay evidence. (iv) The statement must be
confidence bearing, truthful and credible.
There is no rule mandating the corroboration of a dying declaration, it is a rule of prudence and
not a rule of law. The evidentiary value of a dying declaration is completely dependent upon the
facts and circumstances of the matter.
DYING DECLARATION - based on the maxim “Nemo moriturus praesumitur mentire” A
man would not like to meet his maker with a lie in his mouth
Dying declaration is an exception to the general rule against hearsay. The grounds of admission
are firstly, the victim is generally the only principal eye-witness to the crime; secondly, sense of
impending death creates a sanction which is equal to obligation of an oath. A man would not like
to meet his maker with a lie in his mouth.
The words "dying declaration" mean a statement written or verbal of relevant facts made by a
person who is dead. A dying declaration is not complete unless the full names and addresses of the
persons involved are given in it. Therefore, only because the deceased in his dying declaration
uttered first names similar to that of the accused, it was not proper to accept the prosecution version
based on such incomplete dying declaration. Evidence of dying declaration is admissible not only
against the person actually causing death but also against other persons participating in causing
death.

EXPERT OPINION
Section 45 Opinions of experts –– When the Court has to form an opinion upon a point of foreign
law or of science, or art, or as to identity of handwriting, [or finger impressions], the opinions upon
that point of persons specially skilled in such foreign law, science or art, [or in questions as to
identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.
Ingredients
i) When the Court has to form an opinion of technical matters, extraneous assistance may become
necessary
ii) this section allows such assistance in the following cases
iii) opinion of experts i.e., persons specially skilled in (a) foreign law; (b) science; (c) art; (d)
handwriting and (e) finger impressions.
Comment
This section is an exception to the rule as regards the exclusion of opinion evidence opinions of
experts are relevant upon a paint of (a) foreign law, (b) science, (c) art, (d) identity of hand writing
(e) finger impressions.
Principle - It is a general rule that the opinion of witness possess in peculiar skill is admissible,
whenever the subject-matter of enquiry is such that inexperienced person are unlikely to prove
capable of forming a correct judgment upon it without the assistance of an expert.
Who is an Expert? An 'expert' witness is one who has devoted time and study to a special branch
of learning and thus is specially skilled on those points on which he is asked to state his opinion.
His evidence on such points is admissible to enable the tribunal to come to a satisfactory
conclusion. [Vide - Powell, 10th Edition, P 39] An expert, in order to become a competent witness,
need not have acquired his knowledge professionally. It is sufficient, so far as the admissibility of
the evidence goes, if he has acquired special experience therein. In is the duty of the Judge to
decide whether the skill of any person in the matter on which evidence of his opinion is offered, is
sufficient to enable him to be considered as an expert. [Vide: Miglani v. Miglani, AIR 1979 SC]

CASES
State of Maharashtra v. Prafulla B. Desai, 2003
Fact - Wife of Mr. P. C. Singhi (Complainant) was suffering from cancer. Spouse consulted Dr.
Greenberg in USA. He suggested that surgery of this was no solution and she should be treated
only by medicine. They returned from the USA and consulted Dr. Praful B.Desai. He suggested
that operation was the solution and he can cure.
Mr. P. C. Singhi and his wife became ready for operation subject to the condition that the
operation would be conducted only by Dr. Praful B. Desai. But operation was conducted by Dr.
A. K. Mukherjee. There was negligence and wife of complainant died.
FIR was registered against Dr. A. K. Mukherjee and Dr. Praful B. Desai. Trial was going on. The
prosecution has made an application to examine Dr. Greenberg through video-conferencing who
was ready to give evidence.
The Metropolitan Magistrate observed that evidence can be recorded by video conferencing in a
criminal trial.
Decision of the Metropolitan Magistrate was challenged before the Bombay High Court by
accused.
Bombay High Court held that evidence could not be recorded by video conferencing in a
criminal trial.
It was challenged by State of Maharashtra and P. C. Singhi through SLP in the Supreme Court.
Issue - Whether taking evidence of Greenberg through video conferencing amounts to be in
presence of an accused?
Whether 'Evidence' includes video conferencing? Whether video conferencing is virtual reality?
Observation & Judgement:
➢ What view has been taken by Courts in other countries is irrelevant.
➢ Under section 273, evidence can be recorded in the presence of the pleader. The presence
of the pleader is thus deemed to be the presence of the Accused. Thus, Section 273
contemplates constructive presence.
➢ This indicates that the term ‘presence’ as used in this Section, is not used in the sense of
actual physical presence.
➢ Law cannot stand still; it must change with the changing social concepts and values. Law
must constantly be on the move adapting itself to the fast-changing society and not lag
behind.
➢ All documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence. After the amendment in the definition of
‘Evidence’ in 2000 document includes electronic records. So, Evidence includes “Video
Conferencing”.
➢ Video conferencing has nothing to do with virtual reality. It is an actual reality. Video-
conferencing is an advancement in science and technology which permits one to see, hear
and talk with someone far away, with the same facility and ease as if he is present before
you, i.e., in your presence.
➢ So long as the accused and/or his pleader are present when evidence is recorded by
video-conferencing that evidence is being recorded in the ―presence of the accused and
would thus fully meet the requirements of Section 273 of the Criminal Procedure Code.
Guidelines for recording of evidence through video conferencing:
→ Fixing of time by officer deputed to record evidence.
→ Fixing of time by an officer after consultation with VSNL.
→ He must be an expert.
→ Opposite Party and his advocate must be present.
→ The officer must have the authority to administer an oath.
→ In case of perjury (False evidence) Court can ignore evidence of such person.
→ Opposite party (In this case respondent) must be allowed with documents.
→ Video Conferencing should be conducted without adjournment.
→ An officer would have to be deputed, either from India or from the Consulate/Embassy in
the country where the evidence is being recorded.
→ The officer would remain present when the evidence is being recorded.
 → The officer will ensure that there is no other person in the room where the witness is
sitting whilst the evidence is being recorded.
→ That officer will ensure that the witness is not coached/tutored/prompted.

R.M. Malkani v. State of Maharashtra, 1973

Fact - Jagdish Prasad Ramnarayan Khandelwal was admitted to the hospital of Dr Adatia.
Operation was performed by Dr. Adatia. But his condition became serious. He was referred to
the Bombay Hospital on. Treatment was done by Dr. Motwani, but he couldn’t save him.
R. M. Malkani issued notice to Dr. Adatia. After some time, he started to demand a bribe. He
threatened that otherwise, he would charge for medical negligence even though you are innocent.
He demanded 20,000 from Dr. Adatia through Dr. Motwani.
Dr. Adatia and Motwani lodged a complaint to Anti-Corruption Bureau (ACB). ACB suggested
them to be in contact with Malkani. ACB used tape recording equipment to record a telephonic
conversation. The conversation was recorded.
When they went to give money, Malkani did not take money due to delay in the payment of
money.
He was charged under Sections 161, 385, 420 and 511 of IPC.
Issue – Does Illegally obtained evidence admissible in court?
Isn’t it violation of Article 20(3) and Article 21?

Observation & Judgement:

➢ Evidence is admissible even though it was collected through illegal manner. Indian
Evidence Act does not say that Evidence must be collected in a legal manner. This Act is
silent regarding the manner of collection of Evidence. It concentrates on the relevancy of
facts.
➢ Lord Goddard held in Kwruma, Son of Kanju v. R., "The test to be applied both in civil
and in criminal cases, in considering whether evidence is admissible, is whether it is
relevant to the matters in issue. If it is, it is admissible, the Court is not concerned with
how it was obtained."
Tape recorded conversation is admissible provided:
→ Firstly, the conversation is relevant to the matters in issue;
→ Secondly, there is identification of the voice; and,
 → Thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the
possibility of erasing the tape record.
A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible
under Section 8 of the Evidence Act. It is res gestae.
➢ It is not a violation of Article 20(3) and Article 21. The telephonic conversation of an
innocent citizen will be protected by Courts against wrongful or highhanded interference
by tapping the conversation.
➢ The protection is not for the guilty citizen against the efforts of the police to vindicate the
law and prevent corruption of public servants. In the present case there is no unlawful or
even irregular method in obtaining the tape-recording of the conversation.

Mirza Akbar v. Emperor, 1940

Fact - There was exchange of love letters. These letters were also containing plan to kill.
Husband (Ali Askar) was killed by Umar Sher (Hired goon) on August 23, 1938 in pursuance of
conspiracy between Mehr Taja (wife) and Mirza Akbar (Lover). Umar Sher was caught red
handed by public. Mirza Akbar was requesting public to release Umar Sher.
Mehr Taja (wife) made confession before Magistrate and revealed about the conspiracy.
Issue – Could Mehr Teja’s statement which was made in the appellant’s absence be admissible
under section 10 against the appellant.
Observation & Judgement:
In this case, ratio of Queen v. Blake case was considered. This case illustrates the two aspects
of conspiracy namely; what is admissible and what is inadmissible.
→ Admissible-What in that case was held to be admissible against the conspirator was the
evidence of entries made by his fellow conspirator contained in various documents used
for carrying out the fraud.
→ Inadmissible- A document not created while carrying out the transaction, but made by
one of the conspirators after the fraud was completed, was held to be inadmissible against
the other.
➢ The three documents taken as a whole show that the two writers of the documents desired
to get rid of Ali Askar so that they should marry each other. There was a question of
finding money for hired assassin to get rid of him.
➢ It was observed that statement to Magistrate was not part of conspiracy. It was made after
ceasing conspiracy. After murder common intention had fulfilled.
Relevancy under Section 10:
 → Admissible- Things said, done or written while the conspiracy was on foot are relevant as
evidence of the common intention, once reasonable ground has been shown to believe in
its existence.
→ Inadmissible- Any narrative or statement or confession made to a third party after the
common intention or conspiracy was no longer operating and had ceased to exist is
inadmissible against the other party.
In this case court concluded that:
→ Admissible - It was concluded that contents of letters were admissible as showing
conspiracy.
→ Inadmissible - Statement made to Magistrate was not relevant under Section 10 of the
IEA because it was made after ceasing conspiracy.

Badri Rai v. State of Bihar, AIR 1958

Fact - Ramji Sonar, was a gold smith by profession, and runs a shop. Inspector of Police, made a
seizure of certain ornaments and molten silver from a vacant building in front of the house of
Ramji. The seizure was made on the suspicion that the ornaments and the molten silver were
stolen property, which were to be sold to Ramji in a shape which could not be identified with any
stolen property.
Both appellants met with police officer and offered for bribe to hush up the case. The Inspector
told them to come to the police station. The first appellant, Badri (friend of Ramji), came to the
police station, saw the Inspector, and offered to him a packet wrapped in a piece of old
newspaper, containing Rs 500 in currency notes.
He told the Inspector, that Ramji, had sent the money through him in pursuance of the talk that
they had with him, in the evening of August 24, as a consideration for hushing up the case that
was pending against Ramji. At the time the offer was made, several police officers, besides a
local merchant, were present there.
Inspector at once write down the FIR and took action.
The case is related to Section 165A r/w120B of the IPC and Section 10 of the IEA.
Issue - Whether the statement made by Badri, that he had been sent by the Ram Ji with the
money to be offered by way of bribe to the police officer, was admissible against Ram Ji.
Observation & Judgement:
➢ Court has responded in affirmative and held that, it was made in reference to common
intention in pursuance of conspiracy. Conspiracy was to give the bribe to hush up the
case.
 ➢ In this case Supreme Court also considered ratio of Marza Akbar case and Blake case.

Mohd. Khalid v. State of West Bengal, 2002

Fact - There was demolition of Babari mosque on December 6, 1992. Terrorist attacked in
Calcutta in March 1993. Several people were killed and injured. Several persons were arrested
and Challan was submitted for commission of offences under Sections 302, 307, 326, 436 read
with 120B, of the IPC. Section 10 of the Indian Evidence Act was discussed to establish
conspiracy.
Observation & Judgement:
➢ Under Section 24 of IEA, the principle therein is that confession must be voluntary. It
must be the outcome of his own free will inspired by the sound of his own conscience to
speak nothing but the truth. Voluntary means a statement made of the free will and
accord of accused, without coercion, whether from fear of any threat of harm, promise, or
inducement or any hope of reward.
➢ The confession of a co-accused does not come within the definition of Evidence
contained in Section 3 of the Evidence Act.
These are following reasons:
→ It is not required to be given on oath,
→ nor in the presence of the accused, and
→ it cannot be tested by cross-examination.
In Shankaria Case, the court applied double test for deciding the acceptability of a confession,
i.e.,
→ (i) whether the confession was perfectly voluntary, and
→ (ii) if so, whether it is true and trustworthy.
Satisfaction of the first test is a sine qua non for its admissibility in evidence.
➢ The post-arrest statement made to a police officer, whether it is a confession or otherwise
touching his involvement in the conspiracy, would not fall within the ambit of Section 10
of the Evidence Act.
➢ Section 10 contains theory of agency. Every conspirator is an agent of his associate in
carrying out the object of the conspiracy. Section 10, which is an exception to the general
rule, while permitting the statement made by one conspirator to be admissible as against
another conspirator restricts it to the statement made during the period when the agency
subsisted.
 Jayantibhai Bhenkarbhai v. State of Gujarat, 2002
Fact - Singha Magan came to buy liquor at house of Lalji Rajia. Singha Magan demanded liquor
from Ashwin, a minor son of Lalji Rajia, which was objected by Ushniben wife of Lalji Rajia.
Singha Magan was speaking foul language and was insisting on fulfilling his demand for liquor.
At this point of time, Lalubhai and his brother Kantibhai, who were next door neighbors of Lalji
Rajia came out, and intervened. Singha Magan annoyed by it, and he left threatening that he
would see them later.
Later, on the same day, Singha Magan returned back with severally armed people. They attacked
over Lalubhai and killed him. Nine accused persons were charged with having committed
offences punishable under Sections 302/149 and 147/148/ 452 IPC.
Trial court has convicted 5 of them and acquitted 4 of them on the ground of the benefit of doubt.
High Court also upheld the conviction of all five of them. One accused Jayantibhai Bhenkarbhai
appealed in Supreme Court by special leave on the ground of alibi.
The accused denied his participation in the incident, and said on the same day, he was present at
Ahmedabad to attend hearing in an election appeal filed by him before Additional Development
Commissioner. After this, he went to zoo. Seeing zoo, he went to meet his friend.
Issue - Whether Jayantibhai, the accused- appellant can be held to have participated in the
incident of assault and as a member of unlawful assembly?
Observation & Judgement:
➢ The word ―alibi is of Latin origin and means ―elsewhere.
➢ The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). It is a
convenient term used for the defence taken by an accused that when the occurrence took
place, he was so far away from the place of occurrence that it is highly improbable that he
would have participated in the crime.
➢ It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which
are inconsistent with the fact in issue are relevant.
➢ The burden of proving commission of offence by the accused so as to fasten the liability
of guilt on him remains on the prosecution and would not be lessened by the mere fact
that the accused had adopted the defence of alibi.
➢ The plea of alibi taken by the accused needs to be considered only when the burden
which lies on the prosecution has been discharged satisfactorily.
➢ But once the prosecution succeeds in discharging its burden then it is incumbent on the
accused taking the plea of alibi to prove it with certainty so as to exclude the possibility
of his presence at the place and time of occurrence.
 ➢ Section 103. Burden of proof as to particular fact -The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its existence, unless
it is provided by any law that the proof of that fact shall lie on any particular person.
➢ Court having arrived at a finding in favour of the accused appellant, that his presence at
Gandhi Nagar up to 11.00 a.m. on the date of the incident cannot be doubted.
➢ The Supreme Court observed, we are of the opinion that the accused-appellant is entitled
to benefit of doubt and his appeal therefore deserves to be allowed.

Bishwanath Prasad v. Dwarka Prasad, 1974

Fact - There was suit for partition. Two items claimed by the plaintiffs but disallowed by the
High Court.
Observation & Judgement:
➢ Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the
Indian Evidence Act, though they are not conclusive proof of the matters admitted.
➢ We are of opinion that the admissions duly proved are admissible evidence irrespective
of whether the party making them appeared in the witness box or not and whether that
party when appearing as witness was confronted with those statements in case it made a
statement contrary to those admissions.
➢ Admission is substantive evidence of the fact admitted while a previous statement used to
contradict a witness does not become substantive evidence and merely serves the purpose
of throwing doubt on the veracity of the witness.
➢ What weight is to be attached to an admission made by a party is a matter different from
its use as admissible evidence.

CBI v. V.C. Shukla, 1998

Fact - In May 1991 the Central Bureau of Investigation (CBI), searched the premises of J.K. Jain
at G-36, Saket, New Delhi. J.K.Jain was employee of Jain Brothers (Three Brothers) who was
maintaining books of account.
Jain Brothers were working as middleman. L. K. Adwani and V.C. Shukla were M.P. They
received some bribe to help in allotting tender in illegal manner.
In course of the search they recovered, besides other articles and documents, two diaries, two
small note books and two files containing details of receipts of various amounts from different
sources.
The Jain brothers and J.K. Jain, who is their employee, had acted as middlemen in the award of
certain big projects in the power sector of the Government of India to different bidders.
On such revelation, the CBI registered a case on March 4, 1995 under Prevention of Corruption
Act, 1988 and Foreign Exchange Regulation Act, 1973.
It was challenged in High Court under Section 482 which deals inherent power of High Court.
High Court quashed the proceeding and discharged accused.
Observation & Judgement:
➢ The entire edifice of the prosecution case is built on the diaries and files - and for that
matter the entries made therein which were recovered from J. K. Jain. While the appellant
claimed that the entries in the documents would be admissible under Sections 10, 17 and
34 of the Evidence Act, 1872.
➢ Section 34. Entries in books of account when relevant - Entries in the books of account,
including those maintained in an electronic form], regularly kept in the course of
business, are relevant whenever they refer to a matter into which the Court has to inquire,
but such statements shall not alone be sufficient evidence to charge any person with
liability.
➢ Loose sheets or scraps of paper cannot be termed as ‗book‘ for they can be easily
detached and replaced.
➢ Ordinarily, a person cannot be made responsible for the acts of other unless they have
been instigated by him or done with his knowledge or consent. Section 10 provides an
exception to that rule, by laying down that an overt act committed by any one of the
conspirators is sufficient, (on the general principles of agency) to make it the act of all.
➢ Shri Shukla was known to the Jain brothers and had gone to their residence on formal
occasions was not sufficient to show existence of conspiracy. So far as Shri Advani is
concerned, no one had even spoken about him in their statements. Two constitutes the
conspiracy there must be two parties. One person cannot constitute conspiracy.
➢ Entries in book without any communication may be an admission.
➢ It was concluded that confession made by co-accused can be used against other accused
but admission made by co-accused cannot be used against other accused.
➢ There was no prima facie case of existence of conspiracy. Admission cannot be used
against other co-accused. So appeal of CBI was dismissed.
 Veera Ibrahim v. State of Maharashtra, 1976
Fact - Abdul Umrao Rauf and Veera Ibrahim were prosecuted for attempt to supply of
contraband goods by truck. These goods were loaded in the truck from the seaside, in the
presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat
by his side in the truck. While they were going to supply, police seized the truck and the goods.
They were brand new articles packed in bulk. No duty on these goods had been paid.
Their statements were recorded under Section 108 of Customs Act, 1962.
Veera Ibrahim claimed to be an innocent traveler in the truck when he said: “I did not ask
Mullaji (driver) what goods were being loaded in his lorry … Mullaji was only my friend and I
was not aware of any of his mala fide activities”.
Trial Court & High Court convicted both of them.
Issue – Whether Veera Ibrahim’s statement comes under the definition of confession? If yes,
whether this statement shall be irrelevant under Section 24 of the Indian Evidence Act?
Whether his statement was his by Article 20(3) of the Constitution?
Observation & Judgement:
➢ Clause (3) of Article 20 provides: ― No person accused of any offence shall be
compelled to be a witness against himself.
➢ Only a person against whom a formal accusation relating to the commission of an offence
has been levelled which in the normal course may result in his prosecution, would be
called accused.
➢ In this case appellant was not accused. FIR was recorded by Police. It is clear that when
the statement of the appellant was recorded by the Customs Officer under Section 108,
the appellant was not a person “accused of any offence” under the Customs Act, 1962.
➢ Supreme Court said that the High Court was right in holding that the statement recorded
by the Inspector of Customs was not hit by Article 20(3) of the Constitution.
The statement in question is not a “confession” within the contemplation of Section 24. It is now
well-settled that:
→ A statement in order to amount to a “confession” must either admit in terms the offence,
or at any rate substantially all the facts which constitute the offence.
→ An admission of an incriminating fact, howsoever grave, is not by itself a confession.
→ A statement which contains an exculpatory assertion of some fact, which if true, would
negatively affect the offence alleged cannot amount to a confession.
➢ His statement was admission of incriminating fact which is relevant under Section 21 of
the Indian Evidence Act.
➢ Conviction of Veera Ibrahim was upheld by Supreme Court for fraudulent attempt at
evasion of duty chargeable on those contraband goods.
 Aghnoo Nagesia v. State of Bihar, 1966
Fact - Aghnoo Nagesia was accused of committing four murders. He committed murder of his
aunt, her daughter, her son-in –law and son of son-in –law by axe. His aunt had no son and only
one daughter. He had quarreled several times with aunt regarding property. His intention was to
get whole property of his aunt after her death. But she was interested to transfer her property to
her daughter rather than Aghnoo Nagesia.
He killed all these persons and after that he went to police station and narrated all things. FIR
was registered against him. That was confessional FIR. On his information four dead bodies, axe,
blood stain cloths were recovered. No one was eye witness of murder.
Trial Court and High Court convicted him. Accused filed an appeal to the Supreme Court.
Issue –Whether entire statement is confession?
Observation & Judgement:
➢ In this case Supreme Court analyzed earlier definition of confession and concluded that
confession may be defined as an admission of the offence by a person charged with the
offence.
➢ The information report (FIR) as such is not substantive evidence. It may be used to
corroborate the informant under Section 157 of the Evidence Act or to contradict him
under Section 145 of the Act, if the informant is called as a witness.
➢ If the first information is given by the accused himself, the fact of his giving the
information is admissible against him as evidence of his conduct under Section 8 of the
Evidence Act.
➢ If the information is a non-confessional statement, it is admissible against the accused as
an admission under Section 21 of the Evidence Act and is relevant.
➢ But a confessional first information report to a police officer cannot be used against the
accused in view of Section 25 of the Evidence Act.
➢ Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much
of the information whether it amounts to a confession or not, as relates distinctly to the
fact discovered in consequence of the information, if the other conditions of the Section
are satisfied.
➢ Confession made to police officer during investigation (Section 161 Cr.P.C.) or
confession due to inducement, threat or promise (Section 24), confession made to police
(Section 25) or confession made to third person while in the custody of police (Section
26) is not relevant.
➢ Custody includes constructive custody. Section 27 applies only to information received
from a person accused of an offence in the custody of a police officer.
 ➢ The Sub-Inspector stated he arrested the appellant after he gave the first information
report leading to the discovery. Prima facie therefore, the appellant was not in the custody
of a police officer when he gave the report.
➢ We shall assume that the appellant was constructively in police custody and therefore the
information contained in the first information report leading to the discovery of the dead
bodies and the tangi is admissible in evidence.
➢ Supreme Court acquitted Aghanoo Nagesia. Reason of acquittal was that entire statement
except his identification was part of confession. So, statement cannot be divided into
parts. Whole FIR was hit by Section 25 except those parts of the FIR which were relevant
under Section 27 of the IEA and related to identification of accused. Discovery of tangi
(axe), dead bodies, blood stained chadar are relevant under Section 27 of Indian Evidence
Act. But these were not sufficient for conviction.

Pulukuri Kottaya v. Emperor, 1947

Fact - In this case there was murder caused by nine accused. This case is related to murder and
rioting. They were prosecuted and convicted by Court of Session, Guntur and decision of lower
court was upheld by Madras High Court.
Madras High Court said that whole confession was admissible otherwise there would be no
connection. Admission of evidence under Section 27 of the Evidence Act was challenged to
Privy Council. They argued that statement of some of them had been admitted in violation of
Section 26 and Section 27.
Observation & Judgement:
➢ Section 27 provides an exception to the prohibition imposed by Section 25 & 26 and
enables certain statements made by a person in Police custody to be proved.
➢ If a fact is discovered in consequence of information given, some guarantee is afforded
thereby that the information was true, and accordingly, can be safely allowed to be given
in evidence.
➢ The information given must relate distinctly to this fact. Information as to past user, or
the past history, of the object produced is not related to its discovery in the setting in
which it is discovered.
➢ Normally the Section is brought into operation when a person in Police custody produces
from some place of concealment some object, such as a dead body, a weapon, or
ornaments, said to be connected with the crime of which the informant is accused.
➢ Whole confession / statement is not relevant. Only that part of the confession or
statement is relevant which is distinctly related to discovery of facts. In this case Privy
Council said that only that part of statement or confession can be proved in consequence
of which fact has been discovered and other part shall be excluded.
 ➢ Confession 1 (By one of the accused) – “I stabbed Sivayya with a spear. I hid the spear in
a yard in my village. I will show you the place”
➢ Confession 2 (By another accused) - “About 14 days ago, I Kotayya and people of my
party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank.
We, all beat Boddupati China Sivayya and Subayya, to death. The remaining persons,
Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party
received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it
and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did
all this at the instigation of Pulukuri Kotayya.
➢ Only this part is admissible “I hid it and my stick in the rick of Venkatanarasu in the
village. I will show if you come.”
➢ Privy Council said that only some part of confessions were admissible and remaining part
was inadmissible. The Court observed that High Court was wrong. After observation
regarding admissibility of evidence under Section 27, matter was sent back High Court to
decide.

Bodhraj v. State of J. & K., 2002

Fact - In this case, Swaran Singh @ Pappi was running a finance company. Ashok Kumar and
Ravinder Kumar had taken huge amounts as loan from the Swaran Singh. They made a plan to
kill him. They hired goons, and he was killed with their help.
With a plan, they instigated to deceased to visit a site to purchase the land. A total of ten persons
were charge-sheeted. Recoveries of various weapons used by the assailants were made, in
accordance to the disclosures made by the accused Bodhraj, Bhupinder, Subash Kumar, Rajesh
Kumar and Rakesh Kumar.
They were prosecuted under Section 302 r/w Section 120B. On the basis of circumstantial
evidence.
Observation & Judgement:
➢ It may be stated that for a crime to be proved it is not necessary that the crime must be
seen to have been committed and must, in all circumstances be proved by direct ocular
evidence by examining before the court those persons who had seen its commission. The
offence can be proved by circumstantial evidence also.
➢ Circumstantial evidence is not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the existence of the principal fact
can be legally inferred or presumed.
➢ Principal fact may be proved indirectly by means of certain inferences drawn from the
evidentiary facts.
 ➢ The basic idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the information supplied by the prisoner is
true.
➢ The information might be confessional or non-inculpatory in nature but if it results in the
discovery of a fact, it becomes a reliable information.
➢ The last-seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is found dead is
so small that possibility of any person other than the accused being the author of the
crime becomes impossible.
➢ In this case accused were convicted on circumstantial evidence.

Khushal Rao v. State of Bombay, 1958

Fact - There were two rival factions in the Mill area in Nagpur. Khushal Rao and Tukaram are
the leaders of one of the factions, and Ramgopal, Inayatullah, and Tantu are said to be the leaders
of the opposite faction. There were several criminal cases against each other.
Being infuriated by the conduct of Baboolal in associating with the enemy party of the accused.
Sampat, Mahadeo, Khushal and Tukaram suddenly attacked Baboolal with swords and spears
and inflicted injuries on different parts of his body. Baboolal was taken by his father and other
persons to the Mayo hospital.
Dying declaration was recorded by Doctor, Sub Inspector and Judicial Magistrate First Class. He
was in fit mental condition. Baboolal died the next morning in hospital.
High Court acquitted Tukaram giving him the benefit of the doubt, and convicted Khushal Rao
on the ground that the dying declarations were corroborated by the fact that the appellant had
been absconding and keeping out of the way of the police, and had been arrested under very
suspicious circumstances.
Khushal Rao filed an appeal to Supreme Court and challenged decision of High Court.
Issue - Is sole dying declaration is sufficient for conviction of accused?
Observation & Judgement:
➢ This provision has been made by the Legislature, advisedly, as a matter of sheer necessity
by way of an exception to the general rule that hearsay is no evidence and that evidence,
which has not been tested by cross-examination, is not admissible. Here there is neither
cross-eaxamination nor oath.
It may also be shown by evidence that a dying declaration is not reliable in some cases because:
 → It was not made at the earliest opportunity, and, thus, there was a reasonable ground to
believe that someone has put words into the mouth of the dying man,
→ Because the statement has not been properly recorded, for example, the statement had
been recorded as a result of prompting by some interested parties or was in answer to
leading questions put by the recording officer, or, by the person purporting to reproduce
that statement.
➢ There is no absolute rule of law, or even a rule of prudence which has ripened into a rule
of law, that a dying declaration unless corroborated by other independent evidence, is not
fit to be acted upon, and made the basis of a conviction.
➢ A dying declaration stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principles
governing the weighing of evidence.
➢ A dying declaration which has been recorded by a competent magistrate in the proper
manner in the form of questions and answers, and, as far as practicable, in the words of
the maker of the declaration, stands on a much higher footing.
In order to test the reliability of a dying declaration, the Court has to keep in view the
circumstances like the opportunity of the dying man for observation:
→ whether there was sufficient light if the crime was committed at night,
→ whether the capacity of the man to remember the facts stated had not been impaired at the
time he was making the statement,
→ by circumstances beyond his control,
→ that the statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the official record,
→ statement had been made at the earliest opportunity and was not the result of tutoring by
interested parties.
➢ Once the court has come to the conclusion that the dying declaration was the truthful
version as to the circumstances of the death and the assailants of the victim, there is no
question of further corroboration.
➢ If, on the other hand, after examining the dying declaration in all its aspects, and testing
its veracity has come to the conclusion that it is not reliable by itself, and that it suffers
from an infirmity, then, without corroboration it cannot form the basis of a conviction.
➢ Three successive dying declarations was made in the course of about two hours, by the
deceased and he consistently named Khushal and Tukaram as the persons who had
assaulted him with sword and spear. No part of his dying declarations has been shown to
be false. He was fit state of mind. So, conviction without corroboration was justified.
 Sudhakar v. State of Maharashtra, 2000
Fact - Ms. Rakhi was a school teacher in Primary School at Banegaon, Maharashtra. Her age
was 20 years. Sudhakar Bhujbal (Principal) and Bhaskar (Teacher) committed rape of her. FIR
was lodged against them. She lost her equilibrium of mind. And later, nearly after six months,
she has committed suicide.
On completion of the investigation the charge- sheet was filed against both the appellants. They
were charged under Section 376 read with Section 34 of the Indian Penal Code. After her
suicide, section 306 was also added.
Session Court convicted them for offences under Sections 376 (2)(g) & 306 read with Section
34, the IPC. FIR recorded on July 20, 1994 was treated a dying declaration. FIR was lodged after
2 weeks by victim.
High Court dismissed the appeal.
Issue - Whether contents of FIR lodged on July 20, 1994 shall amount to “Dying Declaration”?
Observation & Judgement:
➢ Dying declaration is based on the legal maxim “Nemo moriturus praesumitur mentire”
i.e. a man will not meet his Maker with a lie in his mouth.
➢ Statement of the victim who is dead is admissible in so far as it refers to
→ cause of his death or
→ as to any circumstances of the transaction which resulted in his death.
In case of homicidal deaths, statements made by the deceased is admissible only to the extent of
proving the cause and circumstances of his death.
➢ In the English Law the declaration should have been made under the sense of impending
death whereas under the Indian Law it is not necessary for the admissibility of a dying
declaration that the deceased at the time of making it should have been under the
expectation of death.
➢ The words “as to any of the circumstances of the transaction which resulted in his death”
appearing in Section 32 must have some proximate relation to the actual occurrence.
➢ It is manifest that all these statements come to light only after the death of the deceased
who speaks from death. For instance, where the death takes place within a very short time
of the marriage or the distance of time is not spread over more than 3-4 months the
statement may be admissible under Section 32.
➢ Dying declaration whether the death is a homicide or a suicide is admissible, provided the
statement relates to the cause of death, or exhibits circumstances leading to the death.
➢ Dying declaration is substantive evidence.
➢ There was no proximate relation between rape and suicide. In this case prosecutor failed
to prove proximate relationship between suicide and rape.
 ➢ Prosecutor could not prove rape and other facts beyond reasonable doubt. Appeal was
decided in favour of teachers and they were released.
➢ In this case, the FIR was not accepted as a dying declaration.

Patel Hiralal Joitaram v. State of Gujrat, 2002

Fact - Patel Hiralal Joitaram developed some affair with Sharada Ben, sister of Asha Ben. Asha
Ben opposed this relationship. He had illicit relationship. She scolded Hiralal and hence he
annoyed with her. Patel Hiralal Joitaram decided to take revenge.
One day Asha Ben was proceeding to the school for collecting her child back home. On the way
appellant who was on a scooter met her. Appellant took out a can and doused combustible liquid
contained therein on Asha Ben. He then whipped out a lighter and set her on fire.
FIR was registered on the basis of the statement made by Asha Ben to the police officer on the
same day. In the meanwhile, the Executive Magistrate, on being informed by the doctor who
examined the lady, visited the hospital and recorded her statement around 11.15 A.M. She also
narrated to her husband.
In that statement she mentioned the name of “Hiralal Patel” as the culprit. She succumbed to her
burn injuries after 25 days.
In the FIR name of the accused was “Hiralal Lalchand”. But during investigation she clarified
and said that his name was “Hiralal Joitaram”.
Patel Hiralal Joitaram was charged under Section 302, the IPC. In this case, relevancy of dying
declaration of Asha Ben was disputed.
Session Court acquitted accused. High Court convicted the accused.
Observation & Judgement:
➢ Supreme Court said that there was some more information in the dying declaration which
was sufficient to identify accused. Section 32 of the Indian Evidence Act is exception of
Section 162 of the Code of Criminal Procedure.
Two categories of statement are made admissible in evidence [Section 32(1)] and further made
them as substantive evidence:
→ i. His statement as to the cause of his death;
→ ii. His statement as to any of the circumstances of the transaction which resulted in his
death.
➢ The second category can envelope a far wider amplitude than the first category. When the
word ‘circumstances’ is linked to ‘transaction which resulted in his death’ the sub-
Section casts the net in a very wide dimension.
 ➢ Anything which has a nexus with his death, proximate or distant, direct or indirect, can
also fall within the purview of the sub-section.
➢ Admissibility is the first step and once it is admitted the court has to consider how far it is
reliable. Once that test of reliability is found positive the court has to consider the utility
of that statement in the particular case.
➢ Dying declaration was accepted. Appellant was convicted for causing murder.

Laxman v. State of Maharashtra, 2002

Fact - The magistrate in his evidence had stated that he had contacted the patient through the
medical officer on duty and after putting some questions to the patient to find out whether she
was able to make the statement; whether she was set on fire; whether she was conscious and able
to make the statement and on being satisfied he recorded the statement of the deceased. There
was a certificate of the doctor which indicates that the patient was conscious.
Session Court and High Court convicted accused relying on her dying declaration.
Matter reached to Supreme Court in appeal.
Observation & Judgement:
➢ Due to contradictory previous judgments, matter was referred to Constitutional Bench for
legal opinion in the matter of “role of medical opinion in dying declaration.”
➢ The juristic theory regarding acceptability of a dying declaration is that such declaration
is made in extremity, when the party is at the point of death and when every hope of this
world is gone, when every motive to falsehood is silenced, and the man is induced by the
most powerful consideration to speak only the truth.
➢ The situation in which a man is on death bed is so solemn and serene, is the reason in law
to accept the veracity of his statement. It is for this reason the requirements of oath and
cross-examination are dispensed with.
➢ The court has to always be on guard to see that the statement of the deceased was not as a
result of either tutoring or prompting or a product of imagination. The court also must
further decide that the deceased was in a fit state of mind and had the opportunity to
observe and identify the assailant.
➢ Where the eyewitnesses state that the deceased was in a fit and conscious state to make
the declaration, the medical opinion will not prevail, nor can it be said that since there is
no certification of the doctor as to the fitness of the mind of the declarant, the dying
declaration is not acceptable.
➢ A certification by the doctor is essentially a rule of caution and therefore the voluntary
and truthful nature of the declaration can be established otherwise.
 ➢ A dying declaration can be oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will suffice provided the
indication is positive and definite.
➢ In most cases dying declarations are made orally before death ensues and is reduced to
writing by someone like a magistrate or a doctor or a police officer.
➢ There is no requirement of law that a dying declaration must necessarily be made to a
magistrate and when such statement is recorded by a magistrate there is no specified
statutory form for such recording.
➢ With above observation matter was sent back to decide case in the light of these
observations.

Ram Narain v. State of U.P., 1973

Fact - On August 15, 1964 Mannu (5 yrs.) s/o Shri Gajendra Natth, an Excise Inspector was
kidnapped. An FIR was registered. 501 Rs. reward was also announced for giving information.
A post-card bearing post office seals dated 21 August 1964 and later an inland letter, bearing the
date October 21, 1964 were received by Gajendra Nath demanding, in the first letter a ransom of
Rs. 1,000/-, and in the second a ransom of Rs. 5,000/- for the return of the boy in December,
1964.
On January 11, 1965 the child was recovered from the house of Ganga Bux Singh and
Chandrabushan Singh in village Pandeypur, district Kanpur.
The investigation of the case revealed that Ram Narain, was also responsible for kidnapping and
wrongfully confining the said child and that it was he who had sent the two anonymous letters
demanding ransom.
All the three persons were prosecuted under ss. 363, 468 and 384/511, of the IPC.
Session Court acquitted Ganga Bux Singh and Chandrabushan and Ram Narian’s conviction by
Trial court were upheld. This conviction was solely based on the conclusion that the two
anonymous letters had been written by him.
High Court also upheld conviction.
The appellant having categorically denied his authorship of those letters, Shri R. A. Gregory, a
hand-writing expert was produced in support of the prosecution case.
Question raised before Supreme Court related to the legality and propriety of the appellant’s
conviction on the uncorroborated testimony of the hand-writing expert.
Issue - Whether person can be convicted solely on the basis expert opinion?
Observation & Judgement:
➢ Both under Section 45 and Section 47 the evidence is an opinion, in the former by a
scientific comparison and in the latter on the basis of familiarity resulting from frequent
observations and experience.
➢ Where an expert’s opinion is given, the Court must see for itself and with the assistance
of the expert come to its own conclusion whether it can safely be held that the two
writings are by the same person.
➢ This is not to say that the Court must play the role of an expert but to say that the Court
may accept the fact proved only when it has satisfied itself on its own observation that it
is safe to accept the opinion whether of the expert or other witness.
➢ In State of Gujarat v. Chhotalal Pitambardas,1964, court observed that the opinion of a
handwriting expert is also relevant in view of s. 45 of the Evidence Act, but that too is not
conclusive. It has also been held that the sole evidence of a handwriting expert is not
normally sufficient for recording a definite finding about the writing being of a certain
person or not.
➢ The opinion of a hand-writing expert given in evidence is no less fallible than any other
expert opinion adduced in evidence with the result that such evidence has to be received
with great caution. But this opinion evidence, which is relevant, may be worthy of
acceptance if there is internal or external evidence relating to the document in question
supporting the view expressed by the expert.
➢ Solely on the ground of expert opinion conviction of accused was upheld by Supreme
Court. All the Court themselves ensures authenticity of hand writing.
 Topic - 3
(Principal Reading)

Facts which the parties are prohibited from proving – Doctrine of Estoppel – sections 115-
117
Section 115 Estoppel - When one person has, by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon such belief, neither
he nor his representative shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing.
Ingredients -
The section says that when one person has by his, (a) declaration, (b) act or (c) omission,
intentionally caused or permitted another person, (i) to believe a thing to be true and (ii) to act
upon such belief, then neither he nor his representative shall be allowed to deny the truth of that
thing in any suit or proceeding between himself and such person or his representative.
To invoke the doctrine of estoppel three conditions must be satisfied; (1) representation by a person
to another, (2) the other shall have acted upon the said representation and (3) such action shall
have been detrimental to the interests of the person to whom the representation has been made.
Even where the first two conditions are satisfied but the third is not, there is no scope to invoke
the doctrine of estoppel.
The burden of proving the ingredients of this section lies on the party claiming estoppel. The
representation which is the basis for the rule must be clear and unambiguous and not indefinite,
upon which the party relying on it is said to have, in good faith and in belief of it, acted
ESTOPPEL - Estoppel is based on the maxim, allegans contraria non est audiendus (a person
alleging contradictory facts should not be heard), The doctrine of Estoppel is steeped in the
principles of equity and good conscience. Equity will not allow a person to say one thing at one
time and the opposite of it at another time
This section is founded upon the doctrine laid down in Pickard v Sears, namely, that where a
person "by his words or conduct wilfully causes another to believe the existence of a certain state
of things, and induces him to act on that belief, so as to alter his own previous position, the
former is concluded from averring against the latter a different state of things as existing at the
same time." The doctrine embodied in this section is not a rule of equity, but is a rule of evidence
formulated and applied in courts of law. It precludes a person from denying the truth of some
statement previously made by himself. No cause of action arises upon estoppel itself.
Privileged communications – sections 122-129
Section 122 Communications during marriage –– No person who is or has been married shall
be compelled to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclose any such communication, unless
the person who made it, or his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any crime committed
against the other.
Ingredients -
The communications between a husband and a wife have been given the status of privileged
communication under this section. It states that a married person:
• Shall not be compelled to disclose any communication made to them during the marriage
by their spouse or ex-spouse.
• They are not permitted to disclose anything without their spouse’s or ex-spouse’s consent
even if they are willing to.
However, this privilege is not absolute and information can be disclosed if:

• The person who made such communication or their representative gives free consent;
or
• There is a suit between a married couple; or
• One of the spouses has been prosecuted for any crime committed against the other.

The idea behind this privilege is that if testimonies are accepted from private communications
between spouses, such testimonies have powerful tendency to disturb household peace among
families and create a domestic broil. It will hamper the mutual trust and confidence between the
spouses and weaken the marital bond.

Section 126 Professional communications

ingredients
Under this section no barrister, attorney, pleader or vakil shall at any time be permitted to— (1)
disclose (i) any communication made to him by or on behalf of his client or (ii) any advice given
by him to his client in the course and for the purpose of his employment; (2) to state the contents
or conditions of any document with which he has become acquainted in the course and for the
purpose of his employment. The privilege also extends to documents prepared in connection with
the client's claim for the dominant purpose of preparing for litigation.
The section does not protect from disclosure— (1) any communication made in furtherance of any
illegal purpose; (2) any fact observed in the course of employment showing that any crime or fraud
has been committed since the commencement of the employment.
This section is based upon the principle that if communications to a legal adviser were not
privileged, a man would be deterred from fully disclosing his case, so as to obtain proper
professional aid in a matter in which he is likely to be thrown into litigation.

CASES
R. S. Maddanappa v. Chandramma, 1965
Case - R.S. Maddanappa and Puttananjamma were married and having two daughters.
Gowramma, the mother of Puttananjamma, having property which was disputed in this case.
Gowramma had no other child except Puttananjamma. So, Puttananjamma was absolute owner
of property. After her death her two daughters became owner of property. Although possession
of property was in the hands of their father (R.S. Maddanappa).
R.S. Maddanappa got another marriage. And he had kids too with his second wife.
Initially second daughter from first wife was not interested in property. She had written some
letters in favour of her father. Some notice was also issued against her, but she did not reply. But
later, she claimed her share. Once she claimed her share, defendants demanded for application of
doctrine of estoppel against her.
High Court has given judgment in her favour. Matter has reached to Supreme Court through
appeal.
Issue - Whether the first defendant was estopped by her conduct from claiming possession of her
alleged half share of the properties?
Observation & Judgement:
➢ Supreme Court said that merely non-replying of suit and noncooperation with plaint are
not sufficient for applying estoppel against respondent (Defendant -1- Chandramma). It
does not mean that she impliedly admitted that she had no interest in the properties.
➢ Father knew the true legal position. That is to say, the father knew that these properties
belonged to Puttananjamma, and that he had no authority to deal with these properties.
➢ There is nothing on the record to show that by reason of the conduct of the first defendant
Maddanappa altered his position to his disadvantage.
➢ The object of estoppel is to prevent fraud and secure justice between the parties by
promotion of honesty and good faith.
➢ Therefore, where one person makes a misrepresentation to the other about a fact he
would not be shut out by the rule of estoppel, if that other person knows the true state of
facts and must consequently not have been misled by the misrepresentation.
➢ The person claiming benefit of the doctrine must show that he has acted to his detriment
on the faith of the representation made to him. In this case there was no detriment.
Reason was that both parties aware about truth.
 ➢ Estoppel was not applied against Chandramma. The reason was that truth was known to
both parties.

Madhuri Patel v. Addl. Commissioner, Tribal

Development, 1995
Fact - Suchita and Madhuri are daughters of Lakshman Panduranga Patil. The fact is related to
admission of Suchita in MBBS Course and other Madhuri in BDS Course. Both claimed that
“Hindu Koli” is “Mahadeo Koli” which falls under ‘Scheduled Caste’ category. In this case their
admission was challenged on the base of false caste certificate, as their father caste belong to
OBC category but they made certificate for ST category. After surfacing of these facts,
university decided to cancel their admissions. In response appellant filed for the application of
estoppel against university.
Issue - Whether Hindu Koli is “Mahadeo Koli” (Scheduled Tribe)?
Whether Suchita and Madhuri were “Mahadeo Koli” and entitled to take admission as S.T. in
MBBS and BDS Course respectively?
Observation & Judgement:
➢ The courts have constitutional duty and responsibility, in exercise of the power of its
judicial review, to see that constitutional goals set down in the Preamble, the
Fundamental Rights and the Directive Principles of the Constitution, are achieved.
➢ Kolis are fisherman and declared OBC community in the State of Maharashtra, and they
live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes. Suchita
and Maduri were declared OBC rather than ST.
➢ Suchita and Madhuri got caste certificate, for which they were not entitled. After taking
admission, they plead estoppel against State and University. Supreme Court observed,
“There is no estoppel as no promise of the social status is made by the State when a false
plea was put forth for the social status recognized and declared by the Presidential Order
under the Constitution as amended by the SC & ST (Amendment) Act, 1976, which is
later found to be false.
➢ Therefore, the plea of promissory estoppel or equity has no application. When it is found
to be a case of fraud played by the concerned, no sympathy and equitable considerations
can come to his rescue. Nor the plea of estoppel is germane to the beneficial
constitutional concessions and opportunities given to the genuine tribes or castes.
➢ “A party that seeks equity, must come with clean hands” is a Latin maxim. He who
comes to the court with false claim, cannot plead equity nor would the court be justified
to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the
social status is made by the State when a false plea was put forth for the social status.
➢ In this case, Suchita was in final year. So, she was allowed to complete her degree.
➢ Madhuri was in mid-session. So, she was not allowed as ST candidate. It was said that if
she was otherwise eligible, then she should be allowed.
 ➢ Supreme Court said, ―We uphold the cancellation and confiscation of Madhuri and of
Suchita of social status as Mahadeo Koli ordered by Scrutiny Committee and affirmed by
the order of Appellate Authority and that of the High Court in that behalf.

Sanatan Gauda v. Berhampur University, 1990

Fact - After passing his M.A. examination securing more than 40 percent marks (364 out of
900), the appellant secured admission in 1983 to three-years law course in Ganjam Law College.
Along with his form seeking admission he had submitted the mark-sheet with his M.A. degree
certificate.
The appellant completed his first-year & second year course and admitted in 3rd year, but his
results were not declared on the ground that in view of the Regulations of the University, he was
not qualified to be admitted to the law course. His admission being improper, he was not eligible
to sit at the examinations aforesaid.
Qualification of admission in LL.B. Course, there were two conditions:
I. He should have on the aggregate more than 39.5 per cent marks in Master’s Degree
Examination.
II. In each paper he must secure 25 percent marks.
Observation & Judgement:
➢ Supreme Court held that these two qualifications are applicable for under graduate
course. A person who had passed Master Exam for those it is not applicable.
➢ Sanatan Gauda submitted his marks-sheet along with the application for admission. The
Law College had admitted him. He had pursued his studies for two years. He was also
admitted to the Final year of the course. It is only at the stage of the declaration of his
results of the first year and second year examinations that the University raised the
objection to his so-called ineligibility to be admitted to the Law course.
➢ The University is, therefore, clearly estopped from refusing to declare the results of the
appellant's examination or from preventing him from pursuing his final year course.

M.C. Vergheese v. T.J. Ponnan, 1970

Fact - Rathi daughter of M.C. Verghese, was married to T.J. Ponnan. Relation between wife and
husband was not good. Wife wanted to take divorce on the ground of impotency of her husband.
Ponnan wrote letters from Bombay to Rathi who was then residing with her parents at
Trivandrum, Kerala which it was claimed contained defamatory imputations concerning
Verghese. She handed over letters to her father.
Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against
Ponnan charging him with offence of defamation.
Ponnan submitted an application raising two preliminary contentions:
(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as
they were barred by law or expressly prohibited by law from disclosure; and
(2) that uttering of a libel by a husband to his wife was not “publication” under the law of India
and hence cannot support a charge for defamation, and prayed for an order of discharge.
District Magistrate held that a communication by a husband to his wife or by a wife to her
husband of a matter defamatory to another person does not amount in law as publication, since
the husband and wife are one in the eye of the law.
High Court upheld the decision of district magistrate.
Issue – Whether letters can be proved against husband?
Whether subsequent declaration of nullity of marriage will remove the bar against disclosure by
wife?
Observation & Judgement:
➢ Unless there is publication, there will be no offence of defamation committed under
Section 499 of the Indian Penal Code.
➢ The rule that husband and wife are one in the eye of law has not been adopted in its full
force under our system of law and certainly not in our criminal jurisprudence.
➢ In Queen Empress v. Butch, it was held that there is no presumption of law that the wife
and husband constitute one person in India for the purpose of the criminal law.
➢ No person who is or has been married, shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married;
➢ Nor shall he be permitted to disclose any such communication, unless the person who
made it, or his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any crime
committed against the other.
➢ If Rathi appears in the witness box to give evidence about the communications made to
her husband, prima facie the communications may not be permitted to be deposed to or
disclosed unless Ponnan consents. That does not, however, mean that no other evidence
which is not barred under s. 122 of the Evidence Act or other provisions of the Act can be
given.
➢ When the letters were written by Ponnan to Rathi, they were husband and wife. The bar
to the admissibility in evidence of communications made during marriage attaches at the
time when the communication is made, and its admissibility will be adjudged in the light
of the status at the date and not the status at the date when evidence is sought to be given
in court.
 ➢ If the complainant seeks to support his case only upon the evidence of the wife of the
accused, he may be met with the bar of Section 122 of the Indian Evidence Act.
➢ The letters were in appellant’s possession and were available for being tendered in
evidence, and he could prove the letters in any other manner. Therefore, the accused (first
respondent) should not have been discharged.

State of U.P. v. Raj Narain, 1975

Fact - Raj Narain filed ‘Election Petition’ challenging election of Smt. Indira Gandhi. He alleged
misuse of public funds by a political party that fraudulently used the finances to re-elect the
Prime Minister of India.
The petition was filed before the Allahabad High Court. The petitioner Raj Narain asked the
Government of U.P. to produce the Blue Book, which contained the guidelines for the safety of
the Prime Minister when he/she travels.
The High Court of Allahabad ruled that the Blue Book did not certify the conditions underlying
Section 123 of the Indian Evidence Act, 1872, which states that no one can give any singular
evidence which derives from unpublished sensitive official records which relate to the affairs of
the State.
The High Court of Allahabad ordered that the Blue Book need to be produced, as the non-
production of the document will jeopardize public interest, and gave the verdict in favor of Mr.
Raj Narain.
Decision of Allahabad High Court was challenged before Supreme Court.
Observation & Judgement:
➢ A witness, though competent generally to give evidence, may in certain cases claim
privilege as a ground for refusing to disclose matter which are relevant to the issue.
Secrets of State, State papers, confidential official documents and communications
between the government and its officers or between such officers are privileged from
production on the ground of public policy or as being detrimental to the public interest or
service.
➢ The principle behind Section 123 of the Evidence Act is the overriding and paramount
character of public interest.
➢ In Sukhdev Singh case this Court said that the first limb of Section 162 required a
witness to produce a document to bring it to the Court and then raise an objection
against its production or its admissibility. The second limb refers to the objection
both as to production and admissibility. Matters of State in the second limb of
Section 162 were said by this Court in Sukhdev Singh case to be identical with the
expression “affairs of State” in Section 123.
➢ Objection as to production as well as admissibility contemplated in Section 162 of the
Evidence Act is decided by the Court rather than State in the enquiry.
➢ The several decisions to which reference has already been made establish that the
foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in
English law. It is that injury to public interest is the reason for the exclusion from
disclosure of documents whose contents if disclosed would injure public and national
interest.
➢ Public interest which demands that evidence be withheld is to be weighed against the
public interest in the administration of justice that courts should have the fullest possible
access to all relevant materials.
➢ The Court will disallow the objection if it comes to the conclusion that the document
does not relate to affairs of State or that the public interest does not compel its non-
disclosure or that the public interest served by the administration of justice in a particular
case overrides all other aspects of public interest.
➢ An overriding power in express terms is conferred on the Court under Section 162 to
decide finally on the validity of the objection.
➢ In the present case, it cannot be said that the Blue Book is a published document. Any
publication of parts of the Blue Book which may be described as innocuous part of the
document will not render the entire document a published one.
➢ Decision of High Court was set aside in this case.
 Topic - 4
(Principal Reading)

SECTION 133
Accomplice- An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice
SECTION 114(b) that an accomplice is unworthy of credit, unless he is corroborated in material
particulars.
Principle (sec 133)- The evidence of an accomplice, though it is uncorroborated, may form the
basis for a conviction.
This section is the only absolute rule of law as regards the evidence of an accomplice. But
illustration (b) to section 114 is a rule of prudence to which also the court should have regard. It
is, however, not a hard-and-fast presumption, incapable of rebuttal, a presumptio juris et de jure.
The combined effect of this section and section 114, Illustration (b), is that though the conviction
of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will,
as a matter of practice, not accept the evidence of such a witness without corroboration in material
particulars. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by
repetition.
The evidence of an accomplice requires to be accepted with a great deal of caution and scrutiny
because— (a) he has a motive to shift guilt from himself; (b) he is an immoral person likely to
commit perjury on occasion; (c) he hopes for pardon or has secured it, and so favours the
prosecution. However, if the statement of the accomplice/approver implicating the accused is
otherwise admissible and reliable, it can sustain conviction.
Therefore, a definite rule has become crystallised to the effect that though a conviction can be
based on uncorroborated evidence of an accomplice, as a rule of prudence it is unsafe to place
reliance on the uncorroborated testimony of an approver as required by Illustration (b) of section
114 of the Act
An accomplice by becoming an approver becomes a prosecution witness. An approver's
evidence has to satisfy a double test: (1) his evidence must be reliable and (2) his evidence
should be sufficiently corroborated.
 Cases
Bhuboni Sahu v. The King, 1949
Fact - This case is related to murder of Kalia Behra who was doing of his business as jutka
driver. He was murdered in October 1946. Eight persons were charged for committing murder
under section 302 r/w 34. Kholi Behra (20 years age) became approver. Confession of Trinath
was recorded under Section 164 but during trial, he retracted. During investigation there was
recovery of loin cloth.
Eight persons were charged with the offence and tried by the Sessions Judge. The learned Judge
convicted six of the accused including Bhuboni Sahu and Trinath.
Patna High Court also upheld conviction of Bhuboni Sahu.
The only question which arose before Privy Council in the appeal was whether there was
evidence upon which the appellant could be convicted.
The evidence against Bhuboni Sahu consist of:
(1) the evidence of Kholi Behara who had taken part in the murder and had become an approver;
(Sections 114, Illustration (b) & Section 133),
(2) the confession of Trinath (Co-accused), but which was retracted in the Sessions Court;
(3) the recovery of a loin cloth identified as the one which the deceased was wearing when he
was assaulted, and a khanti (instrument for cutting grass), in circumstances alleged to implicate
the appellant.
Observation & Judgement:
➢ Reading Section 114 Illustration (b) and Section 133 together the Courts in India have
held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice.
But it is a rule of prudence so universally followed as to amount almost to a rule of law
that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in
material respects to implicate the accused.
➢ The evidence of one accomplice cannot be used to corroborate the evidence of another
accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose,
its taint by repetition.
➢ The evidence of one accomplice cannot be used to corroborate the evidence of another
accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose,
its taint by repetition.
➢ Confession of a co-accused is obviously evidence of a very weak type. It does not indeed
come within the definition of ‘evidence’ contained in Section 3 of the Evidence Act.
➢ The danger of acting upon accomplice evidence is not merely that the accomplice is on
his own admission a man of bad character who took part in the offence and afterwards to
 save himself betrayed his former associates, and who has placed himself in a position in
which he can hardly fail to have a strong bias in favour of the prosecution.
➢ This tendency to include the innocent with the guilty is peculiarly prevalent in India, as
Judges have noted on innumerable occasions, and it is very difficult for the Court to
guard against the danger.
➢ The only real safeguard against the risk of condemning the innocent with the guilty lies in
insisting upon independent evidence which in some measure implicates each accused.
➢ Privy Council declined to act upon the evidence of the approver supported only by the
confession of Trinath. These two persons appear to have been nothing but hired assassins.
They had ample opportunity of preparing their statements in concert, and, in addition, the
approver has sworn to two contradictory stories, and Trinath has denied that his
confession was true.
➢ Privy Council concluded that conviction of Bhuboni Sahu cannot stand. Decision of the
High Court regarding conviction of Bhuboni Sahu was set aside.

Haroon Haji Abdulla v. State of Maharashtra, 1975

Fact - Gold was smuggled into India by bringing it in steam launches from places on the Persian
Gulf, transshipping it into Indian boats standing out at sea, then bringing it to the Indian shores
and by being taken away by persons waiting for it.
There was a raid on the night of August 13, 1961 while a consignment was being brought in.
Many of the smugglers were arrested.
On the 14th, the Customs Authorities served notices upon the suspects under Section 171A of the
Sea Customs Act. On the 15th, two Customs Officers recorded the statements, in answer to the
notices, from two of the suspects Kashinath and Bengali, independently, and almost
simultaneously.
The statement of Kashinath implicated himself and Haroon Haji Abdulla in the smuggling. The
statement of Bengali contained a confession of his own guilt as well as the implication of Haroon
in the smuggling, but retracted later alleging duress and torture.
Trial court convicted the appellant, High Court confirmed the conviction relying on the statement
of Kashinath and the retracted confession of Bengali.
Observation & Judgement:
Appellant contended that, as Kashinath was an accomplice, no conviction could be based on his
evidence unless it was corroborated in material particulars; and the statement of Kashinath
before the Customs authorities and the confession of Bengali to the Customs authorities which
was later retracted, could not be used for purposes of such corroboration.
 ➢ The Evidence Act in Section 133 provides that an accomplice is a competent witness
against an accused person and that a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice.
➢ There is a rider in illustration (b) to s. 114 of the Act which provides that the Court may
presume that an accomplice is unworthy of credit unless he is corroborated in material
particulars.
➢ This cautionary provision incorporates a rule of prudence because an accomplice, who
betrays his associates, is not a fair witness and it is possible that he may, to please the
prosecution, weave false details into those which are true and his whole story appearing
true, there may be no means at hand to sever the false from that which is true.
➢ It is for this reason that courts, before they act on evidence, insist on corroboration in
material respects as to the offence itself and also implicating in some satisfactory way,
however small, each accused named by the accomplice.
➢ This rule of caution or prudence has become so ingrained in the consideration of
accomplice evidence as to have almost the standing of a rule of law.
➢ A retracted confession is a weak link against the maker and more so against a co-accused.
Retracted confession can be used against maker and co-accused. It is not substantive
piece of evidence. It can be used as corroborative piece of evidence. It is very weak
evidence.
➢ There is corroboration to the evidence of Kashinath in respect of Haroon from the
confession of Bengali given independently and in circumstances which exclude any
collusion or malpractice. The appeal was dismissed. Conviction of Haroon was upheld.

Ravinder Singh v. State of Haryana, 1975

Fact - Ravinder Singh husband of Bimla was employed in the Air Force Department at Sirsa. He
was asking for divorce from her wife, but she was not ready to give divorce. Ravinder had
threatened her for life. Ravinder had a girlfriend, Balbir Kaur, and wanted to marry with her.
Ravinder, Bimla, Satinder Kumar, Jasbir Inder Singh and Bhanu Prakash Singh left for Sirsa by
train from Sasni Railway Station.
Ravinder and Bhanu Prakash Singh threw acid in the mouth of Bimla, when there was no other
passenger in the compartment except the above five persons. The accused threw Bimla from the
running train. Some acid drops fell on the hands of the accused and Bhanu Prakash Singh and on
their pants and shirts.
Jasbir Inder Singh, friend of Ravinder Singh turned into Approver.
Trial Court acquitted Ravinder Singh. High Court convicted him under Section 302, I.P.C. and
awarded life sentence.
Observation & Judgement:
➢ We also find from the approver’s evidence that the accused went to the Doctor of the Air
Force to show the burns on his hands. This fact is not denied by the accused.
➢ An approver is a most unworthy friend if at all and he having bargained for his immunity,
must prove his worthiness for credibility in court.
➢ The story given by an approver so far as the accused on trial is concerned, must implicate
him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.
➢ In a rare case taking into consideration all the factors, circumstances and situations
governing a particular case, conviction based on the uncorroborated evidence of in
approver confidently held to be true and reliable by the court may be permissible.
➢ Every approver comes to give evidence in some such manner seeking to purchase his
immunity and that is why to start with he is an unreliable person and the rule of caution
calling for material corroboration is constantly kept in mind by the court by time-worn
judicial practice.
➢ Ravinder Singh’s conviction was upheld by the Supreme Court.
 Topic - 5
(Principal Reading)

HOSTILE WITNESS SECTION 154

S 154. Question by party to his own witness. –– (1) The Court may, in its discretion, permit the
person who calls a witness to put any questions to him which might be put in cross-examination
by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-
section (1), to rely on any part of the evidence of such witness.
HOSTILE WITNESS- During a trial, when the prosecution council calls a person to witness in
his favor and such person when called upon does not confirm to his previous statement which was
collected during the investigation is called a hostile witness.
The common law describes a person as a hostile witness when the person is not desirous of telling
the truth in favor of the party that called him.
A hostile witness testifies for the opposing party or a witness who offers adverse testimony to the
calling party during direct examination. Only the judge has the right to declare a person as hostile
on the request of the examiner.
Section 154 of the Indian Evidence Act States: The court may, in its discretion permit the person
who calls a witness to put any questions to him which might be put in cross-examination by the
adverse party.
Analysis of sec 154 will bring following points into picture:
1. The provision permits only those questions that can be asked during a cross-examination.
2. The law nowhere mentions the need to declare the witness as “hostile” before the provision
can be evoked.
3. The request to declare a person as a hostile can be invoked only when the examining party
feels that the statement presently spoken or the testimony given by the witness would be
against his duty to speak the truth.
Reasons for witness turning hostile:
There might be many reasons for a witness to turn hostile. Some of the important reasons are:
• The absence of Witness Protection.
• Prolonged trials.
• Easy bail of the rich accused.
 • The absence of adequate facilities of the court to the witnesses.
• Usage of the money and power by the accused.
• Threat by the accused.
• Other factors like, fear of police or legal system, political fear, etc.

Examination, cross-examination and re-examination- sections 137-139, 155

[s 137] Examination-in-chief - The examination of a witness by the party who calls him shall be
called his examination-in-chief.
Cross-examination- The examination of a witness by the adverse party shall be called his cross
examination.
Re-examination- The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination.
S 138. Order of examinations –– Witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross-examined, then (if the party calling him so desires) re-examined. The
examination and cross-examination must relate to relevant facts, but the cross-examination need
not be confined to the facts to which the witness testified on his examination-in-chief. Direction
of re-examination. –– The re-examination shall be directed to the explanation of matters referred
to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-
examination, the adverse party may further cross-examine upon that matter.

Section 138 envisages that a witness would first be examined-in-chief and then subjected to cross-
examination and for seeking any clarification, the witness may be re-examined by the prosecution.
No witness can be cross-examined unless he has been first examined-in-chief. This section
provides that cross-examination follows examination-in-chief but it cannot be so without
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. It must be confined to the relevant
fact and no leading questions can be asked. Leading question is one, which suggests the answer.
The objects of cross-examination are to impeach the accuracy, credibility, and general value of
the evidence given in chief; to sift the facts already stated by the witness, to detect and expose
discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party
Like examination-in-chief, cross-examination must "relate to relevant facts": but unlike re-
examination, it need not be confined to facts deposed to in the preceding examination (section 138)
Cross-examination is the right of the adverse party. The party itself cannot call his witness for
cross-examination
The object of re-examination is to afford the party calling a witness an opportunity of filling in
the lacuna or explaining the inconsistencies which the cross-examination has discovered in the
examination-in-chief of the witness. It is accordingly limited to the explanation of matters referred
to in cross-examination (section 138)

CASES
State of Bihar v. Laloo Prasad, 2002
Fact - During examination-in-chief by Public Prosecutor, Baleshwar Choudhary (Prosecution
Witness) gave evidence and some evidence was unfavorable to Public Prosecutor (State). But the
Public Prosecutor did not request the Court to declare him a “Hostile Witness”.
During cross-examination Baleshwar Choudhary stated in favour of accused and against the
State. At this stage, Public Prosecutor requested with Trial Court to declare him as a hostile
witness.
Trial Court rejected requested on the basis that request should have been made before cross-
examination.
High Court declined to interfere with the decision of Trial Court.
Observation & Judgement:
➢ If the public prosecutor had sought permission at the end of the chief examination itself,
the trial court would have no good reason for declining the permission sought for. But the
public prosecutor did not do so at that stage. That is precisely the reason why the trial
judge declined to exercise his discretion when the permission was sought for after the
cross-examination was over.
➢ It is again open to the public prosecutor to tell the court during final consideration that he
is not inclined to own the evidence of any particular witness although said witness was
examined on his side.
➢ When such options are available to a public prosecutor, it is not a useful exercise for this
Court to consider whether the witness shall again be called back for the purpose of
putting cross questions to him.
➢ Appeal was dismissed. No remedy was granted to State. Supreme Court declined to
interfere with the decision of Trial Court, decision of Trial Court is good in the eye of
law.
 Topic - 6
(Principal Reading)

PRESUMPTION
[s 112] Birth during marriage conclusive proof of legitimacy-
The fact that any person was born during the continuance of a valid marriage between his mother
and any man, [s 112.2] or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, [s 112.3] shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access to each other [s 112.4] at any
time when he could have been begotten.
Principle - The section is based on the principle that when a particular relationship, such as
marriage, is shown to exist, then its continuance must prima facie be presumed.
ingredients
Under the section the fact that any person was born—
(a) during the continuance of a valid marriage between his mother and any man, or
(b) within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof
that he is the legitimate son of that man unless the parties had no access to each other at any time
when he could have been begotten.
legislative intention and spirit behind section 112
once the validity of marriage is proved then there is strong presumption about the legitimacy of
children born from that wedlock. The presumption can only be rebutted by strong, clear, satisfying
and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities
or any circumstance creating doubt. It is well-settled principle of law that odiosa et inhonesta non
sunt in lege praesumenda (nothing odious or dishonourable will be presumed by the law). The
law presumes against vice and immorality. In a civilised society it is imperative to presume the
legitimacy of a child born during continuation of a valid marriage and whose parents had "access"
to each other. It is undesirable to enquire into the paternity of a child whose parents "have access"
to each other. section 112 is based on presumption of public morality and public policy.
"Access" and "non-access" mean the existence or nonexistence of opportunities for sexual contact;
it does not mean actual cohabitation.
 Cases
Goutam Kundu v. State of West Bengal, 1993
Fact – Goutam Kundu married to second respondent (name of wife is not mentioned in
judgment) on 16th January, 1990. They lived together for some time until his wife left the
matrimonial home to reside with her parents to prepare for Higher Secondary Examination which
commenced on April 5,1990.
In month of April, she had shared that she is pregnant. Husband and his family members started
to force her for abortion. But she denied. She came back to the matrimonial home during Durga
Pooja in the month of October, 1990. A female child was born on January 3, 1991.
She was meted out cruel treatment both physically and mentally. She filed a petition for
maintenance under Section 125 of the CrPC for her and her child. Court granted that.
Husband filed a petition for blood test of his wife and the child in Calcutta High Court. He
challenged paternity of daughter. According to him if she is not his child, he would not be liable
to pay maintenance. The High Court dismissed the Petition.
Husband filed Appeal to the Supreme Court against the decision of High Court.
Issue - Whether ‘Blood Group Test’ should be allowed to prove or disprove paternity? If yes, in
what circumstances?
Observation & Judgement:
➢ Under English Law, Courts can give directions for the use of the blood test and taking
blood samples from the child, the mother and any person alleged to be the father.
However, it is to be stated the court cannot order a person to submit to tests if he/she is
not willing, but can draw adverse inferences from a refusal to do so.
➢ In India there is no special statute governing this. Neither the Criminal Procedure Code
nor the Evidence Act empowers the court to direct such a test to be made.
➢ The English law permitting blood test for determining the paternity of legitimacy could
not be applied in view of Section 112 of the Evidence Act.
➢ Blood grouping test is a useful test to determine the question of disputed paternity. It can
be relied upon by courts as a circumstantial evidence which ultimately excludes a certain
individual as a father of the child. However, it requires to be carefully noted no person
can be compelled to give sample of blood for analysis against her will and no adverse
inference can be drawn against her for this refusal.
➢ Purpose of the application is nothing more than to avoid payment of maintenance,
without making any ground whatever to have recourse to the test.
➢ Section 112 is based on the well-known maxim “pater est quem nuptioe demonstrant”
which means he is the father whom the marriage indicates.
 ➢ The presumption of legitimacy is this, that a child born of a married woman is deemed to
be legitimate, it throws on the person who is interested in making out the illegitimacy, the
whole burden of proving it.
➢ It is a rebuttable presumption of law that a child born during the lawful wedlock is
legitimate, and that access occurred between the parents. This presumption can only be
displaced by a strong preponderance of evidence, and not by a mere balance of
probabilities.
➢ Section 112 requires the party disputing the paternity to prove non-access in order to
dispel the presumption. ‘Access’ and ‘non-access’ mean the existence or non-existence of
opportunities for sexual intercourse; it does not mean actual cohabitation.
➢ The court must carefully examine as to what would be the consequence of ordering the
blood test; whether it will have the effect of branding a child as a bastard and the mother
as an unchaste woman.
➢ We find no difficulty in upholding the impugned order of the High Court, confirming the
order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood
test.

Dipanwita Roy v. Ronobroto Roy, 2015

Fact - The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were
married at Calcutta in January, 2003. The present controversy emerges from a petition filed
under Section 13 of the HMA, 1955 by the respondent, inter alia, seeking dissolution of the
marriage.
Since, 2007 the petitioner never lived with the respondent and did not share bed at all. On a very
few occasions since then the respondent came to the petitioner's place of residence to collect her
things and lived there against the will, to avoid public scandal. She was leading a fast life and has
lived in extra marital relationship with the said Mr. Deven Shah and the respondent had given
birth to a son. She denied this allegation.
Husband moved an application in July 2011, seeking a DNA test of himself and the child.
She asserted, that she had continuous matrimonial relationship with husband, and that, husband
had factually performed all the matrimonial obligations with her, and had factually cohabited
with her. The petitioner-wife accordingly sought the dismissal of the application filed by the
husband, for a DNA test of himself and the male child born to wife.
The Family Court dismissed the prayer made by the husband.
Calcutta High Court directed for DNA Test on the request of Ronobroto Roy.
Issue - Whether Court can pass order for DNA Test?
Observation & Judgement:
 ➢ Once the validity of marriage is proved then there is strong presumption about the
legitimacy of children born from that wedlock. The presumption can only be rebutted by
a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced
by mere balance of probabilities or any circumstance creating doubt.
➢ Even the evidence of adultery by wife which though amounts to very strong evidence, it,
by itself, is not quite sufficient to repel this presumption and will not justify finding of
illegitimacy if husband has had access.
➢ In a matter where paternity of a child is an issue before the court, the use of DNA test is
an extremely delicate and sensitive aspect.
➢ The court must be reluctant in the use of such scientific advances and tools which result
in invasion of right to privacy of an individual and may not only be prejudicial to the
rights of the parties but may have devastating effect on the child.
➢ When there is apparent conflict between the right to privacy of a person not to submit
himself forcibly to medical examination and duty of the court to reach the truth, the court
must exercise its discretion only after balancing the interests of the parties and on due
consideration whether for a just decision in the matter, DNA test is eminently needed.
➢ DNA testing is the most legitimate and scientifically perfect means, which the husband
could use, to establish his assertion of infidelity. This should simultaneously be taken as
the most authentic, rightful and correct means also with the wife, for her to rebut the
assertions made by the respondent-husband, and to establish that she had not been
unfaithful, adulterous or disloyal.
Supreme Court held that order passed by the High Court for DNA Test is correct. But this order
was modified and two options were given for wife regarding DNA Test:
→ In case, she accepts the direction issued by the High Court, the DNA test will determine
conclusively dispute regarding paternity.
→ In second option, if she declines to comply with the direction issued by the High Court,
the allegation would be determined by the concerned Court, by drawing a presumption of
the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of
illustration (h) thereof.
This will protect right to privacy without sacrifice cause of justice.