1. What is Evidence?

State different types of evidence

Meaning

“Evidence” is derived from the Latin term “Evidere” which means-“to show clearly, to make
plainly certain, to ascertain, to prove”Definition of evidence in the Indian Evidence Act

According to Section 3 of the Evidence Act 1872, evidence means and includes:

 All such statements which the court allows or needs to be presented before it by
the witnesses in connection to matters of fact under inquiry. These statements are
termed as oral evidence.
 All such documents including any electronics record, presented before the court
for inspection. These documents are termed as documentary evidence.

KINDS OF EVIDENCE

A. DIRECT EVIDENCE & INDIRECT EVIDENCE (Circumstantial Evidence)

Direct Evidence: This type of evidence involves facts that are perceived directly by a
witness through their senses. According to Section 60 of the Evidence Act oral evidence must
be direct.
For example, an eyewitness seeing a crime occur. Example: A is tried for setting fire to the
house. B deposes that he saw A setting Fire. B is eyewitness.

INDIRECT EVIDENCE OR CIRCUMSTANTIAL EVIDENCE: It doesn’t directly prove

the
fact but provides clues or inferences. Example: If there are no eyewitnesses to a murder, it
would
be considered circumstantial evidence against ‘A’ if it can be shown that ‘A’ had a reason to
kill
‘B’ or that ‘A’ fled from B’s room carrying a blood-stained knife after hearing B’s cries.

In Kalua v. State of U.P. (AIR 1958 SC 180): In this case Kalua was charged with the
murder of
the deceased by shooting him with a pistol. The Circumstantial evidence proved was:
A) Few days before the killing of the deceased the accused had held out a threat against him.
B) A cartridge was found near the coat of the deceased.
C) A pistol was recovered from his house.
REAL EVIDENCE & PERSONAL EVIDENCE:
Real Evidence (also known as Physical / Material Evidence): This type of evidence involves
the
inspection of physical objects or tangible items that are relevant to the case. For instance, a
murder
weapon or fingerprints, blood samples found at a crime scene.
Personal Evidence (Testimonial Evidence): Personal evidence is the oral testimony provided
by
witnesses based on their own observations or experiences. Example: A testifies that he
witnessed. B threaten C. B’s bloody knife is discovered close to where C was discovered
dead. The knife is real evidence; A’s testimony is personal evidence.

C. ORIGINAL EVIDENCE & HEARSAY EVIDENCE

Original Evidence: Original evidence refers to the testimony given by a witness who
personally saw or heard the event in question. Example: A says that he saw B murdered C
with sword.
Hearsay Evidence: Hearsay evidence is second-hand information obtained through the
medium of a third person. It is considered unoriginal evidence and may not be admissible in
court

State of U. P. v. Satish Chandra (1985 Supp. SCC 576): The Supreme Court held that a
witness’s testimony about what others told him at the crime scene is hearsay and thus
irrelevant since he was not an eyewitness to the incident.

D. PRIMARY AND SECONDARY EVIDENCE

Primary Evidence: Primary evidence refers to documents or evidence itself produced in

court

during legal proceedings. Example: A sold his house to B for Rs. 50,000/- and executes
registered

sale deed. In a dispute as to the title, if B produces before the court, the sale deed, it is
primary

evidence.

Secondary Evidence: Secondary evidence indicates the existence of original sources of

information but is not the original itself. It means evidence that has been reproduced from
an

original document or substituted for an original item. For example, a photocopy of a

document
would be considered secondary evidence

Evidence Act provides for circumstances in which secondary

evidence is admissible.

a. The person in possession of the original is not within the reach of the Court.

b. If the original is in possession of the opposite party.

c. If the original is lost. d. When original deed had already been admitted in the Court.

e. If Original is public document.

E. ORAL AND DOCUMENTARY EVIDENCE

Documentary Evidence: This type of evidence consists of documents produced for the
inspection of the court, such as contracts, letters, or records

Oral Evidence: Oral evidence is testimony given verbally before the court by witnesses. Oral
evidence is verbal testimony of the witness whereas the documentary evidence is written
testimony of a witness of the document. Documentary evidence is superior to oral evidence in
permanence

F. JUDICIAL AND NON-JUDICIAL EVIDENCE

Judicial Evidence: Judicial evidence is evidence received and considered by courts during
legal proceedings.
Non-judicial Evidence: Non-judicial evidence is evidence given in proceedings before a
Magistrate or officer not in a Judicial capacity but in an administrative one, e.g. evidence in
proceedings u/s. 164 of Cr. P.C. i.e. recording of confession and statements.

CHARACTER EVIDENCE
The term character under Section 50 (Old Sec.55) of Indian Evidence Act includes both
reputation and disposition, where the former means the opinion of the people, in general and
the latter means the habitual behavior of a particular person.

As per Section 46 (Old Sec.52) in civil cases, a fact pertaining to the character of an
individual is not relevant. Whereas as per Section 47 (Old Sec.53), in criminal cases a fact
pertaining to theprevious good character of an individual is relevant but as per Section 49
(Old Sec.54),, in criminal cases a fact pertaining to the previous bad character of an
individual is not relevant.
 2. Define confession? Explain relevancy and admissibility of confession

According to Sir James Stephen "An admission made at any time by a person charged with a
crime stating or suggesting the inference that he committed a crime".

The term confession no where defined in the Indian Evidence Act 1872, But the definition of
admission under section 17 of Indian evidence Act becomes applicable to confession also.
Section 17 provides " A statement, oral or documentary which suggests any inference as to
any fact in issue or relevant fact."

If a statement made by a party in the civil proceeding, it is called as admission while if it is

made by the party charged with the crime, in a criminal proceeding, it is called as a
confession. Thus, the confession is a statement made by the person charged with a crime
suggesting an inference as to any
fact in issue or as to relevant fact. The inference that the statement should suggest that he is
guilty of a crime.
Confession, in short, is an admission by the accused charged with an offence in the criminal
proceeding.
Example :
If X is charged with the murder of Y, If X said that he has killed B, it is a
confession.

Confessions and Admissions Distinguished

Both Confession and Admissions have many common features that all the provisions relating
tothem occur under Admission. In both the cases the statements suggest an inference as to a
factin issue or a relevant fact. As the definition of admission is also applicable to that of
confession and confession comes under the topic of ‘admission,’ it can be inferred that
admission is a broader term and it covers confessions. Hence, all confessions are admissions
but not all admissions are confessions. However, there are few points which distinguishes
them. They are
as under:

Admissions are genus, where as Confessions are species

Section 17 which defines admissions also defines confessions
A confession is admission of guilt in reference to a crime and therefore always goes
against the interest of the maker. Where as the admission though against the interest of the
maker, but under section 21 which provides and exception that admissions by or on behalf of
the of the persons making them.
The conditions for admissibility of confessions and admissions as evidence are different.

In Palvinder Kaur v State of Punjab & Haryana the Supreme Court has also held that
confession and admission must either be admitted as a whole or rejected as a whole and the
Court is not competent to accept only the inculpatory part while rejecting the exculpatory part
as inherently incredible.

In State of Haryana v Rajender Singh it was held that a confession must be true and
voluntary. Where the statement though recorded by a magistrate merely stated about the
assault on the deceased that it was a mistake and did not admit his guilt, it was not a
confession that could be used against its maker.

Essential conditions:
From the above discussions a statement of an accused will amount to a confession if it fulfils
the following conditions:

(1) The accused must admit that he had committed the crime.

(2) From the statements of the accused some positive inferences must be drawn about his
implication in the offence where the accused in so many words admits to have committed the
offence.

(3) If the exculpatory part of the statement given by the accused is inherently improbable it
may be rejected and inculpatory part may be admitted.

(4) The confession must be voluntary, true and trustworthy.

(5) The confession must not be prompted by inducement, threat or promise. A statement
could not be said to be result of any threat, coercion or inducement by police or any other
person

RELEVANCY AND ADMISSIBILITY

(SECTION 24 TO 30)

Sec 23 : Admissions in civil cases when relevant

In civil cases no admission is relevant, if it is made either upon an express condition that
evidence of it is not to be given, or under circumstances from which the Court can infer that
the parties agreed together that evidence of it should not be given.
SECTION 24 CONFESSION CAUSED BY INDUCEMENT, THREAT OR PROMISE
WHEN IRRELEVANT IN CRIINAL 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

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

SECTION 26 CONFESSION BY ACCUSED WHILE IN CUSTODY OF POLICE

NOT TO BE PROVED AGAINIST HIM

No confession made by any person whilst he is in the custody of a police officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.

SECTION 27HOW MUCH INFORMATION RECEIVED FROM THE ACCUSED

MAY BE PROVED

Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

‘A’ was arrested by the police officer on a charge of murder. ‘A’ confessed to the police
officer that he had committed murder with a dagger what he had hidden in the
neighbouring field. On the basis of such information the police officer recovered the dagger
from the field. The statement regarding hiding of dagger to the police officer is relevant.

SECTION 28 CONFESSION MADE AFTER REMOVAL OF IMPRESSIONCAUSED 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 29 CONFESSION OTHERWISE RELEVANT NOT TO BECOME IRRELEVANT BECAUSE
OF PROMISE OF SECRECY, ETC

If such a confession is otherwise relevant, it does not become irrelevant merely because it
was made under a promise of secrecy

SECTION 30 CONSIDERATION OF PROVED CONFESSION AFFECTING PERSON MAKING IT

AND OTHERS JOINTLY UNDER TRIAL FOR SAME OFFENCE

When more persons than one are being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some other of such persons is proved,
the Court may take into consideration such confession as against such other person as well
as against the person who’ makes such confession.

3. Doctrine of Res Gestae

Res gestae is the basic principle contained in Section 6. It is latin term which literally means
“things done.” In English it means “things said and done in the course of a transaction.” The
essence of the principle is that a fact which though not in issue is so connected with the fact
in issue as to form the part of the same transaction. The test for applying of rule of res gestae
is that statement (or fact) should be spontaneous and should form part of the same transaction
ruling out any possibility of concoction

“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 in the same time and place or at
different times and places”
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or
the by-standers at the beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact
This section is based on the English Law of Evidence Doctrine of Res Gestae which means,
things done or words spoken. Indian Evidence Act doesn’t use the word Res Gestae but
holds that whenever any fact in issue all the facts which form the part of the same
transaction becomes relevant.

Sec. 6 read in the light of illustrations appended to it makes the following points clear:

1. Acts including statements which form the part of the transaction of which a fact in issue is
also a part are relevant.
2. Such acts and statements may be of the parties to the case or of third persons.
3. They must be contemporaneous with the fact in issue or must be so soon before or after
it that it may be considered as part of the same transaction of which the fact in issue is a
part.
4. Such acts or statements may take place at the same time and place or at different times
and places.

The statement must be a spontaneous statement and not a narrative of the past. This is
because if the statement is a spontaneous statement there is no chance of concoction and
hence it is reliable. If there is some time gap between the occurrence of the fact and the
statement, there is enough time to fabricate facts or to distort the fact, and its reliability is
lost
R v Christie

The accused was charged with indecent assault on a five year old boy. Shortly after the
assault the boy and his mother came up to the accused and the boy told his mother, “Mom,
this is the man.” The evidence of the statement of the boy identifying the accused was
admitted as forming the part of the same transaction, but evidence of the boy’s explanation
of assault was rejected as hearsay.

R v. Beddingfield

Here, a woman with a cut throat came running out of a house. She was crying continuously
but did not say a word about how the injury was caused. However, as soon as her aunt
came she told her, O Aunt, see what Beddingfield has done to me. Not admissible as he
statements should not amount to a mere of a past occurrence

Ratten v Reginan

The accused was prosecuted for committing the murder of a woman by shooting her. His
defence was that the gun fired accidentally and that he did not intend to kill her. There was
evidence to show that the victim had tried to call the police shortly before her death. Her
call and the words she spoke were held to be relevant under s. 6. Her call showed that the
shooting was intentional and not accidental because no victim of accidental shooting can
think of calling police.
4) Explain the relevancy of facts showing occasion, cause or effect ?

Relevancy of several facts such as Occasion, Cause, Effect, Opportunity and State of things

(Section 7 of IEA & 5 of BSA 2023)

The evidence of any particular case has to be confined to the facts of the case. The first duty
ofany Court of law, therefore, is to ascertain the area of controversy between the parties.
The ‘facts’which are in dispute are ‘facts in issue’. Section 3 of the Evidence Act, 1872, while
defining ‘facts in issue’ only adds that, in addition to being in controversy, the fact should be
such that the questionof liability should depend upon it.

Section 7: Facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts in issue or which constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction are relevant.

Illustrations

(a) The question is whether A robbed B. The facts that, shortly before the robbery, B went to
a fair with money in his possession and that he showed it, or mentioned the fact he had it,
to third persons are relevant.

(b) The question is whether A murdered B. Marks on the ground produced by a struggle at
or near the place where the murder was committed are relevant facts.

(c) The question is whether A poisoned B. The state of B’s health before the symptoms
ascribed to poison and habits of B known to A, which afforded an opportunity for the
administration of poison are relevant facts.

The section provides for the relevancy of:

1. Facts constituting the occasion
2. Facts which show the cause
3. The effects of principal fact
4. Facts which provide the opportunity for the happening of the principal fact.
5. Facts which constitute the state of things under which the principal facts happened.

OCCASION: Facts constituting the occasion for the principal fact. (Eg: murder)
The fact that the deceased girl was alone in her cottage at the time of the murder is relevant as
it constituted the occasion for the murder.

CAUSE: Explains why a particular act was done. Evidence can be given of the set of
circumstances which constituted the cause. It helps the court to connect a person with the act.
The act must have been done by the person who had the cause for it. A person is running
short of money, he had the cause to take a loan.
Indian Airlines V. Madhuri Chowdhary (AIR 1965 Cal. 252: Report of the Enquiry
Commissioner relating to an air crash is relevant under section 7 as establishing the cause of
the accident
EFFECT: Facts which constitute the effect of a fact in issue or of a relevant fact are relevant
Evidence that there were footprints at or near the scene of offence of the accused is relevant
as effect of going of the accused that way (Sidik Sumar v. Emperor, AIR 1942 Sind 11).
OPPORTUNITY: Facts and circumstances which provide an opportunity for the happening
of a fact in issue or of a relevant fact are relevant. Often a person has to carve out an
opportunity to do the act in question. Evidence of opportunity thus becomes important as it
shows that the act must have been done by the person.

R. v. DONELLAN (Illustration c) the deceased suffered a trifling ailment for which he took
some laxative. Accused knew this and the further fact about the time at which the laxative
was served by his mother. He replaced the laxative with a bottle of poison in a similar bottle.
The mother served the poison thinking that it was the laxative and the deceased died.

STATE OF THINGS: The state of things under which or the background of which the
principal facts happened are relevant. Ratten v. Reginan (1971) 3 All E R 801: Accused was
prosecuted for shooting his wife. The fact that accused was unhappy with his wife and was
carrying an affair with other women are relevant facts.

5) Explain the relevancy of facts showing motive, preparation and conduct ?

Section 8: Motive, Preparation, Conduct Previous or Subsequent

"Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.

Under this section, the motive which induces a party to do an act or the preparation which he
makes in its commission will be taken into account. Evidence of motive or preparation
becomes important when a case is dependent on circumstantial evidence only

Illustration

A is tried for the murder of B by poison

The fact that, before the death of B, A procured poison similar to that which was
administered to B is relevant
Motive

Motive, generally means that which moves or induces a person to act in a certain way. A
desire, fear, reason etc. which influences a person’s volition. Motive is productive of
physical or mechanical motion. Motive is often used as meaning, purpose, something
objective and external as contrasted with a mere mental state. Motive by itself is no crime,
however heinous it be. But once the crime is committed, the evidence of motive become
important. Helps the court to connect the person with the crime.

A is tried for the murder of B.

The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to

extort money from A by threatening to make his knowledge public, are relevant.

According to illustration A has committed a murder of which B has knowledge and B tries to
extort money from A by threatening to make his knowledge public. A in consequence kills B
also. B’s Knowledge of A’s earlier murder and threatening him are relevant to show the
motive

on the part of A for killing B.

Preparation

Conduct
Facts constituting the Conduct are also relevant under this section. The conduct of the party

before or after the transaction is also very relevant as circumstantial evidence. To be

relevant under s. 8, conduct must satisfy the following conditions:

1. The conduct must be

(a) of any party to any suit or proceeding, or
(b) of any agent to any party to any suit or proceeding, or
(c) of any person an offence against whom is the subject of any proceeding.

2. The conduct must be in reference to

(a) such suit or proceeding, or
(b) any fact in issue in such suit or proceeding, or
(c) a fact relevant to any fact in issue in such suit or proceeding.

3. The conduct must

(a) influence any fact in issue or relevant fact; or
(b) be influenced by any fact in issue or relevant fact.

4. The conduct may be

(a) previous conduct, or (b) concurrent conduct, or (c) subsequent conduct.
Illustrations:

. A is accused of a crime
.
The facts, either before or at the time of, or after the alleged crime, A provided evidence
which would tend to give to the facts of the case an appearance favourable to himself, on
that he

Acts of preparation are relevant under this section. Again preparation by itself is no crime.
But

once an offence is committed the evidence of preparation becomes important. For example
in R v Palmer, where the death is caused by poisoning, the a fact shortly before the accused

procured the poison similar to the one administered is relevant

destroyed or concealed evidence, or prevented the presence or procured the absence of

persons who might have been witnesses, or suborned persons to give false evidence
respecting it, are relevant

2. A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded or was in
possession of property or the proceeds of property acquired by the crime, or attempted to
conceal things which were or might have been used in committing it, are relevant
6) Explain the relevancy of facts showing existence of state of mind and state of body?

Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling, is in issue or relevant.

Explanations

A fact relevant as showing the existence of a relevant state of mind must show that the
state of mind exists, not generally, but in reference to the particular matter in question.

But where, upon the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of this section, the previous conviction
of such person shall also be a relevant fact.

Sec. 14 deals with the relevancy of facts showing the existence of a person’s

1. state of mind,
2. state of body, or
3. bodily feeling.

Illustrations

1. (a) A is accused of receiving stolen goods knowing them to be stolen. It is proved

that he was in possession of a particular stolen article. The fact that, at the same
time, he was in possession of many other stolen articles is relevant, as tending to
show that he knew each and all of the articles of which he was in possession, to be
stolen.
2. (b) A is accused of fraudulently delivering to another person a counterfeit coin
which, at the time when he delivered it, he knew to be counterfeit. The fact that, at
the time of its delivery, A was possessed of a number of other pieces of counterfeit
coin is relevant. The fact that A had been previously convicted of delivering to
another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.
3. (c) A sues B for damage done by a dog of B’s which B knew to be ferocious. The facts
that the dog had previously bitten X, Y, and Z, and that they had made complaints to
B, are relevant.
4. The question is, whether A has been guilty of cruelty towards B, his wife. Expressions
of their feeling towards each other shortly before or after the alleged cruelly, are
relevant facts.
5. (l) The question is, whether A’s death was caused by poison. Statements made by A
during his illness are relevant facts
Intention, knowledge and other states of mind are matters of cogent inquiry in criminal cases
and in some civil cases they are very material e.g malicious prosecution

A is tried for the murder of B by intentionally shooting him dead. The fact that A on other
occasions shot at B is relevant as showing his intention to shoot B. The fact that A was in the
habit of shooting at people with intent to murder them is irrelevant.

A is tried for a crime. The fact that he said something indicating an intention to commit that
particular crime is relevant. The fact that he said something indicating a general disposition
to commit crime of that class is irrelevant

Ingredients
Under Section 14, the fact showing the existence of any state of -
 Mind (e.g., intention, knowledge, good faith, negligence, rashness, ill-will, good will)
or
 Body
 Bodily feelings are relevant when the existence of any such state of mind or bodily
feeling is at issue or relevant.
7) Distinction between admissibility and relevancy of evidence ?

RELEVANT FACTS

The word ‘relevant’ strictly means that what is admissible in evidence. It means what facts
may be proved before a Court. Under the Act the terms ‘relevant’ or ‘the facts that may be
proved’are synonyms. A fact in order to be relevant fact must be connected with the fact in
issue or with any other relevant facts in any of the way referred to in Section 5 to 55 of the
Act. A fact not so connected is not a relevant fact

Section 3 defines the term ‘relevant’ as follows: One fact is said to be relevant to another
when the one is connected with the other in any of the ways referred to in the provisions of
this Act relating to the relevancy of facts.

The concept of relevancy can be classified as:

● Logical Relevancy: A fact is said to be logically relevant to another when by application
of our logic if it appears that one fact has a bearing upon another. (connection of two facts as
cause and effect).
If A beats B and B cries and the beating has left a mark of contusion on the body of B, the
beating is the cause and the cry and the contusion mark are the effects. They are relevant
logically since they are connected as cause and effect.

● Legal Relevancy: A fact is said to be legally relevant when it is expressed as relevant

under Section 5 to 55 (Relevancy of Fact). Some facts are connected as cause and effect but
they are not admissible in evidence. Such facts are not relevant and are irrelevant in legal
sense. Outstanding example is hearsay evidence. Hearsay evidence may sometimes relate to
real matters but as a public policy hearsay evidence will not be admitted because that will
lead to injustice and delay of decision.
All legally relevant facts are logically relevant, all logically relevant facts may not be
legallyrelevant.

Father Benedict v. State of Kerala (1967 KLT 466)

Father Benedict was charged under Sections 34 and 302 of the Indian Penal Code for the
abduction
and murder of Mariakutty, with whom he had an immoral relationship and a child born two
years
prior to the incident. Mariakutty frequently visited Benedict to extort money, threatening to
expose
their relationship. On the day of the murder, Benedict took her 32 miles from his residence,
pretended to engage in a love play, stabbed her to death, and left her body on the road before
returning home that night. Although there were no eyewitnesses, the prosecution relied on
circumstantial evidence, leading to his conviction and a death sentence by the Sessions Court.
The trial court convicted the accused on the following evidence.
1. The accused (Father Benedict) had a strong motive for murder (Fact in Issue).
2. The deceased (Mariakutty) was last seen alive with the accused by some witnesses on their
way
to the particular place. i.e., 32 miles away (Relevant Fact).
3. The accused was seen returning alone at about mid night by a few witnesses (Relevant
Fact).
4. A bed sheet with the dhobi mark of the accused was found on the dead body. (Relevant
Fact).
5. Mariakutty used to tell her neighbors about her connections with Benedict. (Relevant fact -
Dying Declaration).Law of Evidence 20 The Oxford College of Law, Bangalore
Compiled By: Subin Thomas

6. A knife and a blood-stained blue bag were recovered from the accused (relevant fact).

Admissibility
Admissibility, on the other hand, is the acceptance of relevant evidence by the
court. All relevant facts that meet the criteria established by the legal
framework are considered admissible. The final discretion on the admissibility
of evidence lies with the judge, as outlined in Section 136 of the Evidence Act.

When a party proposes to present evidence, the judge has the authority to
inquire about how the alleged truth, when illustrated, would be relevant. This
inquiry ensures that the evidence presented is not only relevant but also
aligned with the legal requirements for admissibility. The judge will admit the
evidence only if convinced that it is relevant under the provisions of Sections 6
to 55 of the Evidence Act.

Aspect Relevancy Admissibility

The logical connection between The status of facts declared

facts that makes the existence legally significant under the
Definition
or non-existence of others Indian Evidence Act, eligible for
likely. consideration in court.

Basis Grounded in logic and human Based on legal principles,

experience, focusing on the conforming to the rules outlined
inherent relationship between in the Evidence Act.
 facts.

Discussed under Section 5 to Primarily discussed under Section

Legal 55 of the Indian Evidence Act, 56 of the Indian Evidence Act,
Framework outlining ways in which facts specifying criteria for legal
may be associated. acceptance.

Focuses on what facts are Centres on what facts are

necessary to prove before the admissible, with consideration of
Emphasis
court and their logical legal criteria rather than inherent
connection. relevance.

Acts as a decisive factor,

More of an effect, determining
guiding the court in
Role whether evidence meets legal
considering evidence logically
criteria for acceptance.
connected to the issues.

Essentially a cause,
Essentially an effect, resulting
determining the logical
Nature from facts meeting legal
connection between facts and
requirements.
their impact on the case.

8) SN Test Identification Parade

What is Test Identification Parade?
A test identification parade, is a procedure commonly used in criminal cases to
identify the accused in a court of law. Witnesses play a crucial role in this
process as it’s their responsibility to recognise the accused among a group of
individuals presented in the parade.

The main purpose of this procedure is to assess whether the witness can
accurately identify the accused from a group of people. This helps establish
the witness’s reliability in identifying an unknown person in relation to the
context of the crime.

Law enforcement frequently employs this method to verify the witness’s

credibility, especially in cases where the witness has never encountered the
accused except at the crime scene.

Purpose of Test Identification Parade

In the case of Ramkishan vs Bombay State [AIR 1955 SC 104], it was
established that, during the investigation of a crime, the police are required to
conduct identification parades. These parades serve the purpose of enabling
witnesses to identify either the properties that are the focus of the offence or
the individuals involved in the crime.

A test identification parade has the following key dimensions:

 It aims to assure the investigating authorities that a specific person, previously

unknown to the witnesses, may have been involved in the commission of the
crime or that a particular property was linked to the offence.
 It is also designed to provide evidence that supports and corroborates the
testimony given by the concerned witness in a court of law.
 Additionally, it serves the interests of the accused by helping to eliminate the
possibility of false implication.

When Test Identification is Necessary?

Test Identification is necessary in cases where the victim or witness did not
know the accused before the occurrence. In such situations, conducting a Test
Identification Parade helps in the process of identifying the perpetrator.

When Test Identification is Not Necessary?

Conversely, Test Identification is not necessary when the accused is well known
to the witnesses. If the witnesses are already familiar with the accused, there
may be no need for a formal identification parade. It’s worth noting that Test
Identification Parades are not always essential and their necessity can vary
based on the circumstances of the case.

Hare Kishan Singh v. State of Bihar

The Supreme Court held that when a witness has failed to identify the accused
at the test identification parade, the court identification of the accused by the
witness becomes unreliable. In such cases, the court identification may be
considered useless and it can weaken the prosecution’s case.

Conclusion
A Test Identification Parade is a legal procedure used to verify the accuracy of
a witness’s identification of a suspect in a criminal investigation. During this, a
group of individuals, including the suspect (referred to as the accused), is
presented to the witness. The witness is then asked to identify the person they
believe to be the perpetrator.

9) State the persons whose admissions are relevant?

What is Admission in Evidence Act?

Admissions are defined under Section 17 to 31 under the Indian Evidence
Act ,1872. Sections 17 to 23 deal with general admission whereas Sections 24
to 31 deal with Confession. A Confession is an admission of guilt by the
accused in a criminal case which is acceptable and valid in evidence.[1]

Admission in evidence act can either be self-harming or self-serving (serve

own interest). Self-harming evidence are acceptable evidence in a court of law.
Admission can be done by silence too.

Section 17- An Admission is a statement, oral or documentary [or contained

in electronic form], which suggests any inference as to fact in issue or relevant
fact, and which is made by any of the persons, and under the circumstances,
hereinafter mentioned.[2]

Who Can Make Admissions?

Section 18 of the Indian Evidence Act lays down the rules regarding as to who
can make an admission. According to this section, there are five classes of
persons whose statements will be considered as an admission in a suit. These
five classes are: –

Party to the proceedings

The statements made by the parties to a proceeding as against himself are

considered as relevant admission in Evidence Act. Under this Section, the term
‘parties’ not only means the persons who appear on the record in that capacity
but also includes those persons who are parties to a suit without appearing.
Persons who have an interest in the subject matter of the suit but are not
parties on the record are also considered as parties in the proceedings and
their statements have the same relevancy as the parties on record. Similarly, a
person who although appears as a party on the record but has no real interest
in the subject matter will not have any effect through his admission against
the person he is appearing on behalf of.

By the agent of such party who is authorised

The statements made by an agent in a suit would be admissible against the

person he is representing. The statements made by an agent are, however,
binding only when they are made during the continuance of his agency. So,
when the agent’s right to interference has come to an end any statement
made by him after that will not have any effect on the principal.

Suitor is a representative character, when he held that character

When a person such as trustees, administrators, executors etc., sue or are sued
in a representative character, any statement made by them will only be
admissible if made in their representative character. Any declarations made by
them in their personal capacity will not be taken as an admission in Evidence
Act.

Party having pecuniary or proprietary interests

In any such suit where several persons are interested jointly in the subject
matter of the suit, then any admission made by anyone of the parties will be
taken as an admission against himself as well as the other parties jointly
interested in the subject matter. It does not matter whether the persons jointly
interested in the subject matter are suing or being sued jointly or separately.
However, for this rule to apply there has to be a prima facie foundation
showing that joint interest exists between the parties suing or being sued.

Predecessor in the title (who was in the title before me)

Any statement made by the predecessor-in-title from who the party to the suit
derives his title will be admissible. But this will only be held as an admission in
Evidence Act if the predecessor-in-title made the declaration while still holding
the title and not after the title has been transferred. The statement made by
the former owner will not be considered as an admission as against the parties
if it was made title has been passed.

Section 19- Person Whose Position or Liability in

Question Can Make Admissions.
As general rule statements made by a third party to a suit are not considered
as admissions but Section 19 is an exception to this rule. It refers to the
statements made by a third party as against himself when it affects his
position or liability and when such liability or position is relevant to be proved
as against the party to the suit. The statements made by the third party, in this
case, would only be relevant if the liability or position of that third party still
exists at the time of the suit.
Section 20- Admissions by persons expressly referred
to by the party to suit
This section refers to when a party to the suit refers to a third party regarding
some information a matter of dispute. Under this section, any statement made
by such party will be taken as an admission against the person who referred to
the third party. This Section is another exception to the general rule that
statements made by strangers are not considered as an admission.

Admission means conceding something against the person making the

admission. The sections deal only with admissions oral and written. Admissions
by conduct are not covered by the sections. The relevancy of such admissions
by conduct depends upon Section 8 and its Explanations.

UNIT – II
 1) Discuss the General principles regarding relevance of
judgements?

RELEVANCE OF JUDGMENTS: GENERAL PRINCIPLES FRAUD AND

COLLUSION (SEC
40 TO 44)

The word judgment is a word of general importance and means only judicial determination or
decision of a Court. Judgment is the sentence of the law or decision pronounced by the Court.
A judgment is an adjudication of a matter in dispute by a Court

KINDS OF JUDGMENT
There may be either judgments in personam or judgments in rem.

JUDGMENT IN PERSONAM (Judgment interpartes)

Judgment in personam or judgment interpartes is one which operates only upon those who
have been duly made parties and then privies, The judgment is binding only on the parties to
the suit or the proceeding and their privies.

• A judgment in personam is a court decision that applies to a specific person or persons.

• It affects the rights and obligations of the parties involved in the case.
• Example: If someone sues another person for breach of contract and wins, the judgment
requires the defendant to pay damages to the plaintiff.

JUDGMENTS IN REM (Sec. 41)

• A judgment in rem is a court decision that applies to a specific thing or property, rather than
a person.
• Binding nature: It determines the status or ownership of that property, and the decision is
binding on the whole world. A judgment in rem is binding on all persons whether they were
parties to the proceedings or not. This means that the decision affects the rights or status of
the subject matter of the judgment against the whole world.
• Example: If a court declares a piece of land as belonging to a particular person, this
judgment affects everyone, not just the people involved in the case. Judgments declaring a
person's legal status (such as marriage or divorce), the status of a property (such as ownership
or title), or the status of a ship in admiralty law.

GENERAL RULES AS TO RELEVANCY AND ADMISSIBILITY OF JUDGEMENT

1. RES JUDICATA:
When a matter has been finally decided by a competent Court, then the same case between
the same parties or their representatives cannot be filed in similar Court or subordinate Court.
But it can be filed by way of appeal in a superior Court.
The filing of an already decided case in a similar Court by the same parties is known as Res
Judicata. The new similar Court is barred from entertaining such suit if the plea of Res
Judicata is raised.
If A gets a favorable judgment in a money suit against B, suit cannot lie again in a similar
Court by A or B or their representatives. This is applicable only to civil cases.

The doctrine of res judicata is based on the following principles:

a. If a matter in dispute is adjudicated, it should be taken as the truth.
b. No man should be twice vexed for one and the same cause.
c. In the interest of the State or the public, there should be an end to all litigations

PRINCIPLE OF AUTREFOIS ACQUIT

This is applicable only to criminal cases. Autrefois Acquit means once a person has been
acquitted of charge by a competent Court, then he cannot be punished for the same offence
by a similar court. ‘Once an acquittal is always an acquittal’ and the judgement of acquittal
cannot be breached by punishing him in another trial in a similar Court. But the other party
can go in appeal to a superior Court and get him convicted.

PRINCIPLE OF AUTERFOIS CONVICT

Auterfois convict means once a person is convicted for an offence, he cannot be convicted
again for the same offence. This is based on the maxim’ Nemo debet bis vexari prevuna at
eadem causa’- it means a man shall not be punished twice for the same offence.

PUBLIC NATURE (SEC. 42)

Judgements relating to matters of public nature or importance are relevant to the inquiry
subsequent to the suit even though parties are different. But the previous judgement is not a
conclusive proof as in the case of judgement in rem. Thus, the judgement of public nature can
be reversed by disproving such judgements.

RELEVANCY
By virtue of section 43 judgements, orders or decrees of courts of law are irrelevant in
subsequent proceedings. However, in the subsequent proceeding if the existence of such
judgement, order or decree is a fact in issue, then it will be relevant. Thus, evidence can be
given of judgement when the existence of the judgement is itself a fact in issue.
Examples
▪ ‘A’ prosecutes ‘B’ for adultery with his wife ‘C’. B denies that C is A’s wife. But the court
convicts B for adultery. Afterwards C married B during A’s lifetime and A prosecuted C for
bigamy. C defended the case by asserting that she never was A’s wife. The judgement against
B is irrelevant as against C.

▪ A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the
cow which B had sold to him before his conviction. As between A and C the judgement
against B is irrelevant.
▪ A is charged with theft and convicted. He is again charged with theft by a servant. A
contented that he was previously convicted for the offence of theft. The previous conviction
is relevant as a fact in issue.

FRAUD OR COLLUSION IN OBTAINING JUDGMENT

Section 44 of the Indian Evidence Act, 1872 speaks about, “Fraud or collusion in obtaining
judgment, or incompetence of Court, may be proved”.
The general rule is a judgment of a competent court shall be binding on the parties operating
as Res judicata in subsequent proceedings between the same parties. Section 44 contains
exceptions to this general rule. According to Section 44, a judgment is liable to be annulled/
impeached on the ground of a) want of jurisdiction; b) fraud; and c) collusion

2) Define confession and distinguish it from admission?

RELEVANCY AND ADMISSIBILITY OF CONFESSION (SECTIONS 24 TO 30)

The word confession is not defined in the Evidence Act. The expression “confession” means
“a statement made by an accused admitting his guilt. It is an admission or acknowledgement
as to commission of an offence. If a person accused of an offence (accused) makes a
statement against himself, it is called confession or confessional statement. Confession is an
admission of guilt and is used against the maker.

ESSENTIALS OF CONFESSIONS:

1 Confessions 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 truth.
2 Confessions are the declarations against the interest of the person making them, they are
probably true.
3) Confessions must be clear, definite and unequivocal, whether it is a judicial or extra-
judicial confession.
4) Confessions must either admit in terms the offence, or at any rate substantially all the acts
which constitute the offence.
5) The reason or motive for confession and the person in whom confidence is reposed by the
accused are essential for the truthfulness of the confession.
6) Confession must be related to the guilt of criminal nature.
7) Confession should contain the admissions of incriminating facts relevant to the offence
such as motive, preparation, absence of provocation..etc.
8) Confession may be written or oral.

RELEVANCY OF CONFESSION
Section 24 to 26 lays down the provisions about when confessions are irrelevant or not
admissible.

Section 24 of IEA deals with confession caused by inducement, threat or promise when
relevant 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

Conditions for making confession (Sec. 24)

❖ It must not be made due to “inducement, threat or promise” from person in authority.
❖ The accused should have made the confession voluntarily.
❖ If the confession is made by the accused in a criminal proceeding due to the inducement,
threat or
promise from a person in authority the confession will be irrelevant.
❖ It should not be made to a police Officer.
❖ If the accused is in the custody of police, then it should be made in the presence of
Magistrate.

Prosteroy Lyngkhoi v. State of Meghalaya, 2023 Cri LJ 218 (Meg): The statement of
accused contains specific reference to a murder weapon and its location. The wife of accused
and her brother corroborated confession made by accused. Hence, conviction of accused was
held proper.

CONFESSION TO THE POLICE OFFICER (Sec. 25)

Sections 25, 26, 27 of the IEA deal with relevancy of Confession to the Police officer. A
Confession made by the accused to the police is an extra- judicial confession. As a general
rule an extra judicial confession can be admitted as evidence. But by virtue of section 25 of
the Act, a confession made to the police officer shall not be proved as against a person
accused of any offence. Such confession cannot even be used to corroborate any other
evidence

Balakrishnan v. State of Maharashtra (1980 Crl. L. J. 1424): The Supreme Court held that a
member of the Railway Protection Force is not a police officer and a confession made to an
officer of Railway Protection Force can be proved.

CONFESSIONS IN POLICE CUSTODY

Section 26 of the IEA 1872 deals with confession by accused while in custody of police. A
confession made by an accused while he is in police custody cannot be proved against him.

“Police custody” means police control even if it is exercised in house, in an open place, or in
the course of a journey. If the accused is in effective police control he is in police custody and
temporary absence of the policemen makes no difference. If there is custody in fact the
confession would be irrelevant even though the detention was illegal.

Moddovdare Rawthor Smile v. State, 1882 Cr. LJ 2102: Police custody in the real sense
commences from the time when the movements of the accused are restricted or controlled
and he is under direct or indirect police surveillance.

SECTION 27HOW MUCH INFORMATION RECEIVED FROM THE ACCUSED

MAY BE PROVED

Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

‘A’ was arrested by the police officer on a charge of murder. ‘A’ confessed to the police
officer that he had committed murder with a dagger what he had hidden in the
neighbouring field. On the basis of such information the police officer recovered the dagger
from the field. The statement regarding hiding of dagger to the police officer is relevant.

SECTION 28 CONFESSION MADE AFTER REMOVAL OF IMPRESSIONCAUSED 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 29 CONFESSION OTHERWISE RELEVANT NOT TO BECOME IRRELEVANT BECAUSE

OF PROMISE OF SECRECY, ETC

If such a confession is otherwise relevant, it does not become irrelevant merely because it
was made under a promise of secrecy
CONFESSION OF CO-ACCUSED: Sec. 30.
If one of the accused makes a confession affecting himself and some other person, the court
may take into consideration such a confession as against the other person, and of himself.
When two or more persons are jointly tried for an offence they are called co-accused. If any
one of them makes a confession admitting his guilt and the guilt of other accused persons the
question of evidentiary value of that confession would arise. By virtue of section 30 when a
confession is made by co-accused admitting his guilt and guilt of others the court may use
that confession against the maker and the other co-accused persons.

Illustration
A and B are jointly tried for murder of C. It is proved that A, confessed stating “B and I,
murdered C’. The court may consider the effect of this confession as against B.

Corroboration necessary to convict a person on the confession of an accomplice or co-

accused.

In Bhuboni Sahu v. King, the Privy Council held that a confession of a co-accused does not
tantamount to proof. It can be used only in support of other evidence and cannot be the
ground for conviction.

DIFFERENCE BETWEEN CONFESSION AND ADMISSION

1. A confession is a statement made by an accused person which is sought to be proved
against him in a criminal proceeding to establish the commission of an offence by him.
Admission usually relates to a civil transaction and comprises of statements amounting to
admission as defined in Sec. 17 and made by a person mentioned under Sections 18, 19 and
20.
2. A confession if deliberately and voluntarily made may be accepted as conclusive in itself,
of the matters confessed.
An admission is not a conclusive proof of matters admitted but may act as estoppel.
3. A confession always goes against the person making it. But an admission may be used on
behalf of the person making it under exception to Sec. 21 only.
4. Confession of one of two or more accused jointly tried for the same offence can be taken
into consideration against the co-accused (Sec.30).
Admission of one of several defendants in a suit is no evidence against another defendant.
5. Confession is a statement made by an accused person, a person accused of any offence, or
a suspect and a person, not accused at the relevant time, but who subsequently becomes an
accused. Admission is a statement oral or written which gives inference about the liability of
person making admission.
6. Every confession is an admission, but every admission is not a confession. The word
‘admission’ is more comprehensive and includes a confession also. A confession is only a
species of admission.
7. A confession is the admission of guilt and, thus, invariably runs against the interest of the
accused. A confession should necessarily be of inculpatory nature. The term ‘admission’
includes every statement whether it runs in favor of or against the party making it.
8. Admissions are genus, whereas Confessions are species

3) Explain the evidentiary value of confession of a co-accused ?

CONFESSION OF CO-ACCUSED: Sec. 30.

If one of the accused makes a confession affecting himself and some other person, the court
may take into consideration such a confession as against the other person, and of himself.

When two or more persons are jointly tried for an offence they are called co-accused. If any
one of them makes a confession admitting his guilt and the guilt of other accused persons the
question of evidentiary value of that confession would arise.

By virtue of section 30 when a confession is made by co-accused admitting his guilt and guilt
of others the court may use that confession against the maker and the other
co-accused persons.

Illustration
A and B are jointly tried for murder of C. It is proved that A, confessed stating “B and I,
murdered C’. The court may consider the effect of this confession as against B.
A is on his trial for the murder of C. There is evidence to show that C was murdered by A and
B and that B said, “A and I murdered C”. The statement may not be taken into consideration
by the Court against A, as B is not being jointly tried.
Corroboration necessary to convict a person on the confession of an accomplice or co-
accused.

In Bhuboni Sahu v. King, the Privy Council held that a confession of a co-accused does not
tantamount to proof. It can be used only in support of other evidence and cannot be the
ground for conviction.
In the case of Kashmira Singh v. State of M.P. (AIR 1952 SC 159), the Supreme Court
overturned Kashmira Singh’s conviction and death sentence, ruling that he could not be
deprived of his life or liberty solely based on the uncorroborated confession of his co-
accused, Gurubachan Singh. The trial court and High Court had previously convicted and
sentenced both accused to death primarily on this confession.

CONDITIONS FOR THE APPLICATION OF SEC. 30

Before the confession of one accused is taken into consideration against others, it has to be
shown that:
● The person confessing and others are being tried jointly.
● They are being tried for the same offence.
● The confession to be taken into consideration affect the person confessing and the others.
● It must be a confession.
● The confession of guilt must be duly proved.

Ram Swaroop v. Emperor, AIR 1937 Cal 39: Where during the course of joint trial of two
accused, one, who confessed, died, it was held that the confession could be used against the
other accused.
Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra, AIR 1998 SC 3258:
When accused who made confessional statement was discharged and did not face trial, his
statement could not be used against the co-accused.

4) Discuss the relevancy of confessions made to police and consequential recoveries ?

CONFESSION TO THE POLICE OFFICER (Sec. 25)

Sections 25, 26, 27 of the IEA deal with relevancy of Confession to the Police officer. A
Confession made by the accused to the police is an extra- judicial confession. As a general
rule an extra judicial confession can be admitted as evidence. But by virtue of section 25 of
the Act, a confession made to the police officer shall not be proved as against a person
accused of any offence. Such confession cannot even be used to corroborate any other
evidence

Balakrishnan v. State of Maharashtra (1980 Crl. L. J. 1424): The Supreme Court held that a
member of the Railway Protection Force is not a police officer and a confession made to an
officer of Railway Protection Force can be proved.

CONFESSIONS IN POLICE CUSTODY

Section 26 of the IEA 1872 deals with confession by accused while in custody of police. A
confession made by an accused while he is in police custody cannot be proved against him.

“Police custody” means police control even if it is exercised in house, in an open place, or in
the course of a journey. If the accused is in effective police control he is in police custody and
temporary absence of the policemen makes no difference. If there is custody in fact the
confession would be irrelevant even though the detention was illegal.

Moddovdare Rawthor Smile v. State, 1882 Cr. LJ 2102: Police custody in the real sense
commences from the time when the movements of the accused are restricted or controlled
and he is under direct or indirect police surveillance.

Exception: If the accused who is in the custody of police makes a confession to any person
other than a police officer and in the immediate presence of Magistrate, the confession can be
proved against him

ADMISSIBILITY OF CONFESSION (Sec. 27)

How much of information received from accused may be proved.
Provided that, when any act is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered may be proved.
If the accused has given information to the police while he is in the police custody and that
resulted in the discovery of a fact connected with the crime (such as weapon used for
commission of crime, or stolen property, or dead body, or dress of the accused, or dress of the
deceased, which was hidden by the accused), that much of the information which distinctly
related to the fact discovered can be proved.
The discovery of fact, in consequence of the information, guarantee that the information
supplied by the
accused is true. The discovery should be effected in the presence of witnesses.
Illustration: A is tried for murder of B. If A, in police custody says, “I have killed B and
buried the dead body in my garden”. Accordingly, if the body is found, A’s statement
(confession) becomes provable under Section 27.

Conditions for the operation of Sec. 27

Following conditions have to be satisfied for the application of Section 27

i) There must be discovery of a fact;

ii) The fact must have been discovered in consequence of the information.
iii) The information must have been given by the accused while he is in police custody.
iv) So much of such information which distinctly relates to the fact thereby discovered may
be proved.

Mohan Lal v. Ajith Singh (AIR 1978 SC 1183), the accused was arrested within four days of
murder and robbery. He informed the police as to the place where he had hidden the robbed
articles. A gold ring and currency notes were recovered from the place as indicated by the
accused. The statement of the accused to the police was held to be relevant and admissible in
evidence.

Digamber Vaishnav and Ors. v. State of Chhattisgarh (2019) 4 SCC 522: The Apex court
considered the scope of Section 27 of IEA, it was held that it is not the discovery of every
fact that is admissible but the discovery of relevant fact is alone admissible. Relevancy is
nothing but the connection or the link between the facts discovered with the crime.

CONSTITUTIONAL VALIDITY OF SEC. 27

Article 20 (3) states that “No person accused of an offence shall be compelled to be a witness
against himself”. Information voluntarily received from the accused leading to the discovery
is relevant under section 27 of IEA. If such disclosure is made on compulsion, Art. 20 (3)
would be hit

5) Hearsay evidence is no evidence, justify with exceptions

According to the Indian Evidence Act, hearsay evidence is no
evidence. Hearsay evidence is not a direct evidence.

The word hearsay itself gives a clue that something which is not
directly heard. Hearsay evidence means any information that a
person gathers or collects from a person who has first-hand
knowledge of that fact or information. Therefore, we can
conclude that it is second-hand information.

The general rule is that hearsay evidence is not admissible in a

court of law. Section 60 of the Evidence Act states that oral
evidence must be direct. The person must directly hear, see, or
sense the fact. For example:

1. I saw a woman running with a bloodied knife. The

information is itself seen by the witness. It is admissible.
2. I heard from my watchman that a woman was running
with a bloodied knife. It is hearsay evidence. Generally, it is
not admissible in court.

Exceptions to the Rule of Hearsay

Evidence
It is said that “hearsay evidence is no evidence.” Direct evidence is
more reliable and acceptable in court. But there are some
exceptions to this rule. Here are five instances when hearsay
evidence is accepted by the court:
 1. Res Gestae
2. Admission
3. Confessions
4. Dying Declaration
5. Evidence Given in Former Proceedings

1. Res Gestae

The rule of res gestae means ‘the facts which form part of the
same transaction.’ This rule is given under section 6 of the Indian
Evidence Act. The statement of a person may be proved in court
through another person who appears as a witness in court if the
fact that he states in court forms a part of the same transaction.

2. Admission

Admission is also an exception to the rule that says hearsay

evidence is no evidence. Section 17 of the Indian Evidence
Act defines admission as a statement, either oral or in the form of
a document or electronic form, which gives inference to any fact in
issue.

If a person in the court makes a statement against his own

interests, then the court accepts such a statement on the ground
that a person shall never make a statement against his own
interests.

3. Confessions
Confession means when a person admits his guilt in court.
Confession has nowhere been defined in the Indian Evidence
Act. Section 24 to section 30 of the Indian Evidence Act deals with
the provisions relating to confession.

If a person gives an extra-judicial confession that is outside the

court, it may be proved through the testimony of that person to
whom such confession was made. Though the witness did not
hear himself or see anything related to the offence. But the
confession by a person may be proved through his testimony in
court.

4. Dying Declaration

Section 32 of the Indian Evidence Act talks about the statement of

a person who cannot be called as a witness in court.

There might be a situation when a person is on his deathbed or

suffering from any disability due to which he cannot appear before
the court. In such cases, if the person gives his statement to any
other person relating to his death or cause of death, then the
person to whom such statement has been transmitted may
appear before the court as a witness and give hearsay evidence as
to what he heard from the declarant.

For More: Dying Declaration Under the Indian Evidence Act

5. Evidence Given in Former Proceedings

If the person to be called as a witness dies or due to some other
reason, is not able to appear before the court, then the statements
given by such a person in former or previous proceedings may be
used as a piece of evidence for proving the truth in subsequent
proceedings.

Even the entries in books of accounts and public registers like

official books are relevant statements that can be adduced before
the court in matters of inquiry. Though the person may not be
alive, the statements he made previously in books or official
registers are admissible in court.

R v Christie

The accused was charged with indecent assault on a five year old boy. Shortly after the
assault the boy and his mother came up to the accused and the boy told his mother, “Mom,
this is the man.” The evidence of the statement of the boy identifying the accused was
admitted as forming the part of the same transaction, but evidence of the boy’s explanation
of assault was rejected as hearsay.

6) What is dying declaration, explain relevance in dowry death cases?

DYING DECLARATION (Section 32)
A dying declaration is a declaration or statement written or verbal made by a person as to the
cause of his/her death, or as to any of the circumstances of that transaction which resulted in
his/her death. It is a statement, which must have been made by the deceased before his/her
death.
Example: A has been assaulted by B or has been attacked by B and dies. A shortly before his
death makes a declaration holding B responsible for the injuries inflicted on him with spear.
This statement of A is admissible as it relates to the cause of his death as a dying declaration
at the trial against B.

Section 32 of the IEA deal with the relevancy of statements of a person who is dead. By
virtue of section 32, statements of the following persons will be relevant even though he is
not examined in the court as a witness.
(1) A statement made by a person who is dead.
(2) Statement of a person who cannot be found.
(3) Statement of persons who has become incapable of giving evidence before the court.
(4) Statement of persons whose attendance cannot be procured without delay or expense.

Section 32 (1): When it relates to cause of death (Dying Declaration)

By virtue of Section 32 (1) statements of a deceased person will be relevant and it can be
proved before the court. In order to be relevant, the statement should be as to the cause of
death of the maker of the statement or as to any of the circumstances of the transaction which
resulted in his death. The statement of the deceased person will be relevant only when the
cause of that person’s death comes into question before the court.

The statement of the deceased person which shows the cause of his death or which relates to
the circumstances of the transaction which has resulted in his death is called dying
declaration. A person who heard the statement of deceased person can give evidence in the
court as witness. Dying declaration constitutes an exception to the rule against hearsay
evidence. Dying declarations are admitted as evidence because of two reasons.
(i) Necessity: Victim is the only eyewitness In most of the murder cases there will be no
eyewitness other than the deceased. The only witness to the fact in issue is dead and he has
become incapable to give evidence in the court. In such a situation the only way open is to
admit his statements through the witness who heard it.
(ii) Occasion
Dying declarations are made by the deceased persons after getting injury and apprehends his
death. The occasion is such that he will not lie. The presumption of law is that a person who
is about to die will not lie.

ESSENTIALS FOR THE RELEVANCY AND ADMISSIBILITY OF DYING DECLARATION

1. The declarant must have died: The first condition is that the person who made the
declaration must be dead. If the person making a dying declaration chance to live his
statement is inadmissible as a dying declaration under Sec.32 (1).
2. The dying declaration must be a statement: Written or verbal. The word ‘statement’
means that which is stated. It may be in written or oral form.
3. Injuries are the cause of his death: It must be proved that his/her death was caused by the
injury he/she received in the incident for which accused is being prosecuted.
Moti Singh v State of UP [AIR 1964 SC 900], Gaya Charan received gunshot injuries. He
was admitted into a hospital. His declaration was recorded. He went out of the hospital and
afterwards died. It was not proved that he died of the injuries received at the incident. His
evidence did not amount to be a dying declaration and was excluded.
4. Circumstances of the transaction which resulted in his death:
The words ‘resulted in his death’ do not mean cause his death’. The expression “any of the
circumstances of the transaction which resulted in his death” are wide enough to include the
motive of the alleged Crime. The circumstances must have some proximate relation to the
actual occurrence. Any statement made by the deceased long before the incident of murder
will not be admissible.
5. The Cause of the death of the declarant must be in question: A dying declaration
would be relevant in any proceedings, Civil or Criminal, where the cause of death comes into
question. Wherever the cause of the person’s death is a point at issue, the statement will be
admissible.
Ratan Goud v State of Bihar, AIR 1959 SC 18: it has been held that the statement of the
deceased did not relate to the cause of her death or any of the circumstances related to her
death; on the contrary the statements related to the death of her sister and they were not
admissible under section
32(1) of the Evidence Act.
6. The declaration must be complete: A dying declaration must be complete, from the point
of view of the declarant. It he had said all that he wanted to say it would be relevant. But it
happens that after making same statements he is about to state something more when he
becomes unconscious and dies, the statement would be an incomplete dying declaration and
therefore will not be relevant.
Muniappan v State of Madras, AIR 1962 SC 1252: it has been held that the incomplete
dying declaration is admissible because it unmistakably points out the guilt of the accused.
7. Declaration be taken as a whole: Though there is a controversy on this point, in some
cases it has been held that it must be taken as a whole. In Tafiz Parmanik v. Emperor [AIR
1930 Cal 229] it has been held that if a statement is admissible, it must either go in a whole or
not at all.
8. Declaration should be precise: Dying declaration should be short, concise and to the
point. Detailed statement covering the minutest details could not be expected from the
declarant who is under a severe stress and agony.
9. The declarant must be competent: The person who is making a dying declaration must
be competent. Even a dying declaration made by an infant is admissible but the competency
of the minor has to be determined in terms of section 118 of the Evidence Act.
10. The declarant must be in a fit condition: The declarant was in a fit state of mind to
make the dying declaration.
ADMISSIBILITY OF DYING DECLARATION
The admissibility of dying declaration is based on the maxim “Nemo mortiturus
Praesumutur mentire” which means “A man will not meet the Maker with a lie in his mouth.
The presumption is that when a person is conscious of his impending death, when he is
confident of his fast dissolution or when he has resigned from the hope of survival, then in
such cases he would not lie.

According to Sec. 32 (1), two categories of statements are made admissible as substantive
evidence:
1. His/her statement as to the cause of his death
2. His/her statement as to any of the circumstances of the transaction which resulted in his
death.
The second point widens the scope of admissibility of dying declaration. Accordingly,
anything which has a nexus (connection) with his death, proximate or distant, direct or
indirect are included. After admission of the statement, the Court has to consider its
reliability.

WHEN THE DYING DECLARATION CANNOT BE TAKEN INTO CONSIDERATION

A. Incomplete: A dying declaration is inadmissible in evidence if it is incomplete due to his
coma from which he could not recover and no one could tell what the deceased was about to
add.
B. False: If the accused proves by evidence that the deceased gave false statement, with the
ill intention to implicate the accused in the case, then the dying declaration cannot be taken
into consideration.
C. Suspicious Circumstances: If many suspicious circumstances creating a doubt as to its
genuineness such evidence of dying declaration would not be taken into consideration.
D. Tutoring: If it is proved that there was discussion between the injured person and
interested persons before giving the dying declaration or the person giving such declaration
was tutored, then the dying declaration cannot be considered.
E. Delay: If unduly delay has occurred in recording the dying declaration, the veracity of it
may be affected.
F. Accused already named: If it is proved that accused had already been named and the fact
is known to the declarant the dying declaration may not be considered.
G. Plurality of declaration (Conflicting declarations): When there are multiple conflicting
dying declarations, they cannot be used for conviction as they may indicate the deceased’s
confused state of mind or a motive to implicate the accused. In such cases, neither oral nor
written declarations made at different times can be relied upon if they are inconsistent on key
details.
H. When the injured Survives
7) Explain the matters upon which expert opinon becomes important?

EXPERT TESTIMONY

GENERAL PRINCIPLES (SECTIONS 45-51)

Sections 45 to 51 of the Indian Evidence Act deal with relevancy of opinion of witnesses.
The general rule is that opinion of witnesses is irrelevant. However, by virtue of section 45
opinion of experts is relevant. Opinion evidence is weak evidence, and hence corroborative
evidence is required to act upon the opinion of experts.
Section 45 to 51 of the Evidence Act lay down the General Principles and procedures about
opinion of third persons when relevant. The opinion of the following persons may be
accepted by the court.
❖ Opinion of experts (Sec.45)
❖ Facts bearing upon unions of experts (Sec.46)
❖ Opinion as to handwriting, when relevant (Sec.47)
❖ Opinion as to digital signature when relevant (Sec.47-A)
❖ Opinion as to existence of right or custom, when relevant (Sec.48)
❖ Opinion as to usages, tenets etc., when relevant (Sec.49)
❖ Opinion of relationship when relevant (Sec.50) and
❖ Grounds of opinion, relevant (Sec.51)

WHO IS AN EXPERT?
An ‘expert’ is defined as a person who possesses specialized knowledge or skills in a
particular subject, often gained through extensive practice or study. This includes individuals
with unique expertise in fields such as art, science, trade, or any specialized branch of
learning. The essential criterion for someone to be considered an expert is their peculiar
knowledge and familiarity with the practices and usages of their specific domain. Unlike
other witnesses, an expert’s qualification does not necessarily

THE EXPERTS OPINION (Sec. 45)

When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as
to identity of handwriting or finger impression, 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.
Illustrations
▪ The question is whether the death of A was caused by poison. The opinions of experts as to
the symptoms produced by the poison by which A is supposed to have died, are relevant.
▪ The question is whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A. Opinion of experts on the
question whether the two documents were written by the same person or by different persons,
are relevant
ADMISSIBILITY OF EXPERT EVIDENCE

Ramesh Chandra Agrawal v. Regency Hospitals Ltd., AIR 2010 SC 806

a. It is necessary to hear the expert evidence.
b. The expert must be within a recognized field of experience.
c. The evidence must be based upon reliable principles.
d. The expert must be qualified in the particular discipline.
e. It must be shown that the expert has made a special study or acquired a special experience
in the subject.
f. The expert must place before the Court all the materials, together with his reasons for
coming to the particular conclusion.
g. Expert evidence is really of an advisory character.
h. An expert’s duty is to provide the judge with scientific criteria to test conclusions, enabling
the judge to make an independent judgment.

THE PRE-REQUISITES OF EXPERT EVIDENCE

(i) the subject-matter of the case requires the opinion of the expert.
(ii) The witness called must be a real expert in that technical field.
(iii) the expert witness must be a truthful person
(iv) besides experience and special knowledge, the expert witness must possess the required
academic qualifications viz doctors, foreign language, forensic scientists etc.,

MATTERS IN WHICH EXPERT OPINION IS ADMISSIBLE

By virtue of section 45 opinion evidence is admissible with regard to the following matters.
1. Questions of Foreign law
2. Matters of Science.
3. Questions of Art.
4. Identity of Handwriting
5.Identity of finger impression

1. FOREIGN LAW
Foreign law means any law which is not in force in India. Whenever the Indian courts has to
appreciatethe principles of a foreign law the court can seek the help of those who are experts
on the particular Foreign law

MATTERS OF SCIENCE OR ART

Experts opinion is relevant on all questions on points of science or Art. The words science or
Art include all subjects on which the courts of special study or experience is necessary to the
formation of opinion. In criminal cases opinion of doctors with regard to the cause of injury
and death is relevant

Sunil Chandra v. State, AIR 1954 Cal. 315: The medical opinion, when accepted, is the
opinion of the Court
3. IDENTITY OF HANDWRITING
When the court has to decide upon the identity of handwriting, the court may receive the
opinion of a person who has acquired an expertise or special knowledge on the matter. Apart
from persons possessing professional qualification on the subject the court may receive the
opinion of persons who is otherwise acquainted with the subject

4. IDENTITY OF FINGER IMPRESSIONS.

Reasons as well as opinion given by a fingerprint expert as to identity of palm impression are
admissible in evidence. Evidence given by a fingerprint expert need not necessarily be
corroborated but the court may satisfy itself of the evidence of the expert in the same way as
it must satisfy itself of the value of other evidence
 UNIT III

1) Explain the relevancy of character evidence in civil and criminal cases?

IN CIVIL & CRIMINAL CASES (SECTIONS 52- 55)

Sections 52 to 55 of the Indian Evidence Act deal with relevancy of character of parties in
civil and criminal cases. In those sections character is to include both “reputation and
disposition”. The word disposition means a person’s natural qualities of mind and character.

Reputation and character are not synonymous terms. Character is what a man or a woman is
morally while reputation is what he or she is reputed to be i.e. reputation is the estimate
which the community has of the person’s character

DISPOSITION
Disposition is a natural tendency, an inclination, a person’s temperament. It is the prevailing
spirit of mind, resulting from constitution. It is the aptitude or tendency of character. The
word ‘disposition’ is used to give the meaning a tendency to act, think or feel in a particular
way. Character certificate given by the employer or character certificate given by the Heads
of the Educational Institutions are the good examples of ‘Disposition’

RELEVANCY OF CHARACTER OF PARTIES IN CIVIL CASES

Sections 52 and 55 of Indian Evidence Act deal with relevancy of character of parties in civil
cases.

Section 52: In civil cases, character to prove conduct imputed, irrelevant. By virtue of section
52, the evidence of character of a party to the suit is not relevant. A very bad man may have a
righteous cause.In fact, the court is to try the case and not the man

Character as affecting damages (Sec. 55)

By virtue of section 55, the court is entitled to take note of the character of the plaintiff if it
affects the amount of compensation to be awarded to him. The evidence of good or bad
character of defendant is irrelevant to fix the damages. This is obvious in cases of
defamation, breach of promise of marriage etc. Evidence of bad character of plaintiff will
mitigate the quantum of damages.

Abdul Shakur and others v. Kotwaleshwar Prasad and others, AIR 1958 All 54: The Court
held that where the contention that certain pronotes had been obtained from the insolvent
while he was under the influence of drink, has been found to be baseless. Mere general bad
character of the insolvent would be quite irrelevant in a civil case to prove want of
consideration.

RELEVANCY IN CRIMINAL CASES

Section 53: The good character of an accused is always relevant and admissible in Criminal
cases.
1. The bad character of the accused is not considered (Irrelevant). There are two exceptions.
If the accused gives evidence of his good character, then the prosecution (police) can
disprove it by giving evidence of his bad character.
2. When the fact in issue is the bad character of the offender, then the character of the person
is admissible. The previous conviction of the accused is relevant evidence to prove the bad
character.
3. By way of defense, one can prove the bad character of the complainant. For e.g., when a
man is accused of rape, then he can show evidence for the immoral character of the woman.
4. In criminal proceedings, the good character of the accused is relevant, as it gives the
opinion that the accused may not have committed the crime.

Amrita Lal Hazra v. Emperor, (1915) 42 Cal. 957: A man’s guilt is to be established by
proof of the facts alleged and not by proof of his character; such evidence might prejudice but
not lead a step towards substantiation of guilt.

VALUE OF CHARACTER EVIDENCE

The word ‘Character’ includes both reputation and disposition, the inherent qualities of a
person.

Reputation means what is thought of a person by others or otherwise called public opinion.

Disposition refers to the whole personality.

1. The good character of a person is always relevant.
2. The bad character of a person is relevant and not admissible.
3. Only to disprove the good character of the offender, evidence of bad character is allowed.
4. Character evidence is weak evidence. When other evidences are available and are opposed
to the person’s character, then such other evidence will prevail over the character evidence of
the offender.
2) What is secondary evidence? Explain the rules regarding proof of attested documents?

SECONDARY EVIDENCE
Secondary evidence is the evidence which may be given under certain circumstances in the
absence of the better evidence ie., primary evidence which the law requires to be given first.
The general rule is that the secondary evidence is not allowed to be given until the non-
production of the primary evidence is satisfactorily accounted for.

Section 63 of the IEA 1872 defines the term “Secondary evidence”. It mentions 5 different
things that accepted as secondary evidence. They are:
1. Certified copy of documents (Sec. 76): Seal of the officer affixed to the copy. As per Sec.
79, a certified copy of a document can be admitted without any formal proof.
2. Copies made by the original through a mechanical process (ensure the accuracy of the
copy) It ensures the copies to be free from any kind of tampering or error to some extent.

Earlier when the printing machine or the xerox machine was not invented then the copies
used to be made by the court clerk manually, which led to a lot of errors and tampering. To
avoid those issues and to ensure the accuracy of the copies mechanical process is included in
this section.

State of Karnataka v. M. Muniraju [AIR 2002 Kant 287] it has been held that the Xerox
copy of a document was inadmissible as it was not a substantive piece of evidence.
3. Copies made from or compared with the original: Sec. 63 (3): 2 types of copies: A copy
made from the original and copy compared with the original.
4. Counterparts of documents as against the parties who did not execute them.
5. Oral accounts of the contents of a document given by some person who has himself seen it.
The oral account of the contents of a document given by a person who has merely seen it with
his own eyes, but not able to read it is not admissible as secondary evidence.

ILLUSTRATIONS:
 A Photograph of an original is secondary evidence of its contents, though the two have not
been
compared, if it is proved that the thing photographed was the original.
 A copy, compared with a copy of a letter made by a copying machine is secondary
evidence of the
contents of the letter, if it is shown that the copy made by the copying machine was made
from the
original.

PROOF OF EXECUTION OF DOCUMENT (Sec. 67 to 73)

Section 67: Proof of signature and handwriting of person alleged to have signed or written
document produced.
If a document is alleged to be signed or to have been written by any person, the signature or
the handwriting of the document must be proved to be in his handwriting.
Section 68: Proof of execution of document required by law to be attested (attestation)
As per Sec.68, the execution of a document is required by law to be attested. This means that
the
affixing of signature on a document in the presence of two witnesses who also add their
signatures and addresses in proof of the fact that the document was signed in their presence.
These two witnesses are called ‘attesting witnesses. The principle behind attestation is that
whenever such a document is produced before a court as evidence, at least one attesting
witness shall be called to prove the execution of the document.
• For this, at least one of the attesting witnesses must be alive, capable of giving evidence
and subject to the process of the court.
• No attesting witness need be called in the case of document not being a will which has been
registered in accordance with the Indian Registration Act, 1908.

Section 69: Proof where no attesting witness found.

If no attesting witness is available or if the document is executed in the United Kingdom, two
things need to be proved:
 It should be proved that the signature of the person executing the document is in his
handwriting,
 The signature of at least one attesting witness is in his handwriting
3) Explain the provisions relating to proof of handwriting and signatures?

PROOF OF EXECUTION OF DOCUMENT (Sec. 67 to 73)

Section 67: Proof of signature and handwriting of person alleged to have signed or written
document produced.
If a document is alleged to be signed or to have been written by any person, the signature or
the handwriting of the document must be proved to be in his handwriting.

Related Case- Ramkrishna Dode v. Anand, 1999

Section 68: Proof of execution of document required by law to be attested (attestation)

As per Sec.68, the execution of a document is required by law to be attested. This means that
the
affixing of signature on a document in the presence of two witnesses who also add their
signatures and addresses in proof of the fact that the document was signed in their presence.
These two witnesses are called ‘attesting witnesses. The principle behind attestation is that
whenever such a document is produced before a court as evidence, at least one attesting
witness shall be called to prove the execution of the document.
• For this, at least one of the attesting witnesses must be alive, capable of giving evidence
and subject to the process of the court.
• No attesting witness need be called in the case of document not being a will which has been
registered in accordance with the Indian Registration Act, 1908.

Endorsement by sub registrar-

Endorsement by sub registrar that executant had acknowledged

execution before him amounts to attestation.
Related Case- Pentakota Satyanarayana v. Pentakota Seetharatnam,
2005

Section 69: Proof where no attesting witness found.

If no attesting witness is available or if the document is executed in the United Kingdom, two
things need to be proved:
 It should be proved that the signature of the person executing the document is in his
handwriting,
 The signature of at least one attesting witness is in his handwriting

Section 70: Admission of execution to attested document.

If the execution of a document is by a person himself, then the admission of such party to the
attested document is a sufficient proof of its execution. However, the document may be
required by law to be
attested separately.

Section 71: Proof when attesting witness denies execution.

If the attesting witness denies or does not recollect the execution of the document, then its
execution may be proved other evidence.

Section 72: Document not required by law to be attested

If law does not require a document to be attested, but if it is attested, then it may be proved as
if it was unattested.

Section 73: Comparison of signature, writing or seal with others admitted or proved
Sometimes, the court has to satisfy itself whether the signature or seal on a document is
genuinely that of a person whose signature or seal it has. Here, the court may compare the
signature or seal of the document with another signature or seal which is proved to be of the
concerned person.
4) Explain the provisions relating to exclusion of oral evidence by documentary evidence ?

Section 91 – Exclusion of Oral Evidence by Documentary Evidence

 Section 91 addresses situations where oral evidence may be excluded by

documentary evidence. It establishes that when the terms of a contract, grant,
or other disposition of property are reduced to writing, no oral evidence can be
admitted to contradict or vary the terms of that document.
 In simpler terms, if there is a written contract or document, the parties cannot
use oral evidence to change or contradict what is clearly stated in that
document. The written document is the primary evidence and takes precedence.

Section 91 is applicable in cases:

(i) where the terms of the contract, grant or any other disposition of the property; and
(ii) when any matter is required by law to be reduced to the form of a document.
The best evidence regarding the contents of the document is the document itself.

Illustrations:
a. If through several letters a contract is created, then all the letters must be proved.
b. If a contract is contained in a bill- of- exchange, the bill- of - exchange must be proved.
c. If a bill- of- exchange is drawn in a set of three, it is sufficient if one only is proved.

EXCLUSION OF EVIDENCE OF ORAL AGREEMENT

By section 92 it is not possible to bring forth oral evidence of agreements to contradict or to

vary or to add to or substract from, the terms reduced in writing. However oral evidence may
be given in certain exceptional situations provided in section 92.

The following are exceptions:

1. Oral evidence can be given to prove any invalidating circumstances like a fraud, illegality,
want of consideration, lack of capacity or mistake of fact or law.
2. Oral evidence can be given to prove collateral terms about any matter on which the
document is silent.
3. Oral evidence can be given to prove the existence of separate oral agreement which
constitutes a condition precedent to the obligation under the contract or grant or disposition of
property.
4. Oral evidence can be given to prove the existence of any subsequent oral agreement to
rescind or modify the terms in the document. It is not possible in the case of a document
registered as required by law.
5. Oral evidence can be given to prove customs by which incidents not expressly provided
are annexed to the contracts or grant but they should not be repugnant or inconsistent with the
express terms.
6. Oral evidence can be given to prove any fact which shows in what manner the language of
the document is related to existing facts.

EXCEPTIONS TO DOCUMENTARY EVIDENCE RULE

These are exceptions to the production of primary/ secondary evidence in documents. In the
following cases, oral evidence can be produced.

1. Appointment of public servant may be provided by actual acting as the public servant.
Here appointment order is not necessary.

2. Will may be proved by probates.

Explanation:
The section 91 provides that primary documentary evidence is required only for the terms of
a contract, grant or other disposition of property reduced in the form of document. For
proving other statements of fact in any document, oral evidence can be adduced.

Illustrations:
• A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract
mentions the fact that B had paid A the price of other indigo contracted for verbally on
another occasion.

Now, oral evidence can be offered to prove that no payment was made for the other indigo.
This oral evidence is admissible.
• A give B a receipt for money paid by B. Oral evidence is offered of the payment. This oral
evidence is admissible.
3. Interpretation of documents may be by way of oral evidence.
4. If the document was made under fraud, illegality, mistake, incapacity etc, then oral
evidence can be introduced to prove such fraud, etc -

For e.g. A enters into a written contract with B to work in certain mines of B. B has
misrepresented the salary and the value of mines etc. Now A can produce oral evidence to
prove misrepresentation, etc.

5. If the written document is silent with regard to certain terms of the contract, then oral
evidence can be produced to know the intention of the parties for such silent parts in the
terms of the contract.

G. Raja Rama Goundan vs. Ramier and Another (1928)

 In this case, the Madras High Court held that Section 91 applies to dispositions
of property in writing, and oral evidence cannot be admitted to vary the terms
of such written documents. The court emphasized the importance of the written
word in such cases.

5) what are public documents? How are they proved?

PUBLIC DOCUMENT AND PRIVATE DOCUMENT (Sec 74 to 78)
A fact in issue or relevant fact may be proved by oral evidence or by documentary evidence.
However, the contents of documents shall be proved by primary evidence or by secondary
evidence. The Indian Evidence Act classifies documents into two heads. They are (1) Public
Documents
and (2) Private Documents.

Section 74 of IEA: The following documents are public documents.

(a) Documents forming the acts or records of the acts of the sovereign authority
(b) Documents forming the acts or records of the acts of official bodies and Tribunals
(c) Documents forming the acts or records of the acts of public officers, legislative, judicial
and
executive of any part of India or of the Commonwealth or of a foreign country.
(e) Public records kept in any state of private documents.

Thus, the following documents can be regarded as public documents.

1. Birth and death registers of Municipality.
2. First Information Report
3. Charge Sheet or final report filed by the police
4. Confession recorded by Magistrate under section 164 of the Code of Criminal Procedure
5. Deposition of witnesses recorded by a court
6. Memorandum and Articles of Association of a company registered with the Registrar of
Companies.
7. Voters List prepared by the Election Commission.

Section 75: Any document which is not a public document is a Private Document.

Section 76: Certified copies of public documents

A public officer having the custody of a public document shall give certified copy of such
document to a person who makes an application for the same on payment of the legal fees. At
the foot of such copy, it should be stated that it is a true copy of such document.
Such certificate should be dated and subscribed by such officer with his name and his official
title. It should also be sealed, if such officer is authorized by law to make use of a seal. Such
copies so certified are called certified copies.

Section 77: Such certified copies may be produced in proof of the contents of the public
documents

Section 78: Proof of official documents

The following public documents may be proved as follows:

1. Acts, orders or notifications of the Central Government in any of its departments, of the
Crown Representative or of any State Government or any department of any state
Government: By the records of the departments, certified by the heads of the departments,
or by any document printed by order of any such Government or, of the Crown
Representative
2. The proceedings of the Legislatures: By the journals of the bodies, or by published Acts
or abstracts, or by copies printed by order of the Government concerned.
3. Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by
any department of Her Majesty’s Government: By copies or extracts contained in the
London Gazette or printed by the Queen’s Printer.

4. The Acts of the Executive or Legislature of foreign country: By journals published by

their authority
6) Latent and Patent Ambiguity SN
7) Proof of electronic records
 UNIT - IV
1) what is burden of proof and on whom does it lie?

Burden of Proof[sections 101-113

‘Burden of proof’ may be defined as the obligation to offer evidence that the court or jury
could reasonably believe, in support of a contention, failing which the case will be lost.
Burden of proof is the obligation on a party to establish such facts in issue or relevant facts
in a case to the required degree of certainty in order to prove its case.

The pleadings predominantly contain the facts of the case. Pleadings of each party
contain the relevant party’s version of the facts of the case. Thus, the plaint contains
plaintiff’s version of the facts of the case. This is called the plaintiff’s case Similarly,
written statement contains the defendant’s version of the case. This is called
defendant’s case.

In majority of cases, cases of both sides will not be entirely different. There may be
facts pleaded by one party and admitted by the other party. These facts are called
admitted facts. In respect of some other facts, the parties may differ. Facts pleaded
by one party may be denied by the opposite party. These facts are called disputed
facts. The function of the Court is to find out which of the two versions is true. To
discharge this function, Court needs evidence.

Under the adversarial procedure followed by the Indian Courts, evidence has to be
presented by the parties to the Court. By presenting the evidence, each party
attempts to prove its case and disprove the case of the opposite party.

This requirement of proving or disproving a fact is called burden of proof. The requirement
of proving a fact is called the initial burden of proof and when the party on whom the initial
burden lies is able to prove the fact and therefore when the opposite party is required to
disprove the fact we say that the burden of proof has shifted – is called onus of proof.

Burden of Proof and Onus of Proof

“burden of proof” and “onus of proof”, though literal meaning of these expressions
may be the same. Yet they differ

The ‘Burden of Proof’ is the burden to prove the main contention of party requesting
the action of the court, while the ‘Onus of Proof’ is the burden to produce actual
evidence.
The Burden of Proof is constant and is always upon the claimant but the Onus of
Proof shifts to the other party as and when one party successfully produces evidence
supporting its case.

Rules of Burden of Proof

Section 101 explains the concept of Burden of Proof which states that when a person is
bound to prove the existence of a fact, the burden to provide evidence for the same lies
upon him. Burden of proof is not defined in the Act. But it is based on the principle that in
criminal cases the burden of proving the charges lies on the prosecution not on the accused.
Evidence Act

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B
has committed. A must prove that B has committed the crime.

In short, the burden of proof means the obligation to prove a fact. Every party has to
establish fact which goes in his favour or against his opponent and this is the burden of
proof.

Section 102: On whom Burden of Proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence
at all were given on either side.
Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the
will of C, B’s father. If no evidence were given on either side, B would be entitled to retain
his possession.
Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A
denies. If no evidence were given on either side, A would succeed as the bond is not
disputed and the fraud is not proved. Therefore the burden of proof is on B.

In Triro vs Dev raj in this case when there was a delay in filing the suit, the defendant had
taken a plea of limitation period. The burden of proving that the case was within prescribed
limit was on the plaintiff.
2) what is estoppel , explain the types and estoppel of tenant in detail?

Doctrine of Estoppel

Estoppel is a rule of evidence that bars a party from denying or alleging a certain fact
owing to that party's previous conduct, allegation, or denial The rationale behind
estoppel is to prevent injustice owing to inconsistency or Fraud.

Types of Estoppel

There are two general types of estoppels

1. EquitableEstoppel
1. Promissory Estoppel and
2. Estoppel by laches
2. Legal Estoppel
1. Estoppel by Record
2. Estoppel by Deed

Equitable Estoppel

Equotable Estoppel sometimes known as estoppel in pais, protects one party from
being harmed by another party’s voluntary conduct. Voluntary conduct may be an
action, silence, acquiescence, or concealment of material facts.

There are several specific types of equitable estoppel:

Promissory Estoppel

It is a contract law doctrine. It occurs when a party reasonably relies on the promise
of another party, and because of the reliance is injured or damaged.

Estoppel by Laches

Estoppel by laches precludes a party from bringing an action when the party
knowingly failed to claim or enforce a legal right at the proper time.

This doctrine is closely related to the concept of statutes of limitations, except that
statutes of limitations set specific time limits for legal actions, whereas under Laches,
generally there is no prescribed time that courts consider “proper.”

Legal Estoppel

Legal estoppels onsists of estoppel by deed and estoppel by record.

Estoppel by Deed
Under the doctrine of estoppel by deed, a party to a property deed is precluded from
asserting, as against another party to the deed, any right or title in derogation of the
deed, or from denying the truth of any material fact asserted in the deed.

Estoppel by Record

Estoppel by record, also known as “collateral estoppel”, or as “estoppel by

judgment”, prevents the re-argument of a factual or legal issue that has already been
determined by a valid judgment in a prior case involving the same parties.

Estoppel by record is frequently confused with the related doctrine of res judicata,
which bars re-litigation of the same cause of action between the same parties o n c e
there has been a judgment.

Estoppel under Indian Evidence Act, 1872

The doctrine of Estoppel is based on the principal of equity. Secs. 115, 116 and 117 of
Indian Evidence Act deal with the doctrine Estoppel.

It would be most inequitable and unjust if one person is allowed to speak contrary to
his earlier statement, as it would cause loss and injury to the person who has acted
on such statement.

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and
thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on
the ground that, at the time of the sale, he had no title. He must not be allowed to
prove his want of title.

Conditions for the application of Doctrine of Estoppel

1. There must be a representation made by one person to another person. The

representation must have been made as to fact and not as to law. The
representation must be false.

2. The person to whom the representation is made must have believed the same
to be true.
3. The person to whom the representation is made must have acted upon it.
4. By so acting, the person to whom the representation is made must have
suffered some detriment.

Estoppel of Tenant and of Licensee of Person In Possession [sec 116]

Under sec. 116, a tenant of an immovable property is estopped from contending that
his landlord did not have title to such property at the time of creation of the tenancy.
In other words, he cannot say that the property which he is occupying as a tenant
was taken by him on lease from an unauthorised person. This bar is applicable
against the tenant only during the continuance of the tenancy. Thus,

1. After terminating the tenancy the tenant may say that his landlord did not have
title at the time of creation of the tenancy;

2. Even during the continuance of the tenancy he may say

(a) thatsubsequenttothecreationofthetenancy,thelandlordceasedto

have title to the property, or

(b) that at any time before the creation of the tenancy he was not having title to the
property.

The same rule is applicable, mutatis mutandis, to person who came upon any
immovable property by the license of the person in possession thereo.
3) Explain the scope of privileged communications between advocate and client ?

Privileged Communications[sections 121-126]

Certain communications cannot be revealed in evidence. The bar is to protect the

someone whose interest, other than the interest involved in the suit or proceeding,
may be affected.

In most of the cases, the interest likely to be affected is a private interest of an

individual. In such cases, it is his discretion to reveal or to give consent to reveal the
communication.

In other cases, the interest likely to be affected is not a private interest, but is some p
u b l i c interest. In such cases, the discretion to reveal the communication or to give
consent to its revealing is vested in the person whose responsibility it is to protect
that interest.

It is the privilege of the person, at whose discretion the communication may be

revealed, to withhold the communication. Therefore, these communications are
called privileged communications. In relation to documents it means privilege to
withhold documents.

Provisions concerning privileged communications use two different expressions: the

witness shall not be ‘compelled’;
the witness shall not be ‘permitted’.

The witness shall not be ‘compelled’ means if the witness is willing to reveal the
communication, he may be permitted to do so. If he is not willing, he cannot be
compelled to reveal it.

The witness shall not be ‘permitted’ means even if the witness is willing to reveal the
communication, he cannot be permitted to do so.

This means that it is not the discretion and privilege witness but some other person
to disclose or to withhold the revealing of the communication. This further means
that revealing the communication is likely to affect the interest not of the witness,
but of some other person.

The following are the privileged communications: Marital Communication [Sec. 122]
Evidence as to Affairs of State [Sec. 123]; and Official Communication [Sec. 124]

Information About Commission of Offence [Sec. 125] Professional Communication

[Secs. 126-129]
Communications During Marriage [S. 122]

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.

Evidence as to Affairs of State [Sec. 123]

No one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of State, except a with the permission of the officer at
the head of the department concerned, who shall give or withhold such permission
as he thinks fit.

Official Communication [Sec. 124]

No public officer shall be compelled to disclose communications made to him in official

confidence, when he considers that the public interests would suffer by the disclosure .

Information as to Commission of Offence [sec. 125]

No Magistrate or police-officer shall be compelled to say whence he got any information as
to the commission of any offence, and no revenueofficer shall be compelled to say whence
he got any information as to the commission of any offence against the public revenue.
Explanation.–– “Revenue-officer” in this section means any officer employed in or about the
business of any branch of the public revenue.

Professional Communication [sec. 126-129]

Sec. 126 of Indian Evidence Act deals with the professional communications. Here
Professional Communication means, the communication made by the client to his
advocate or the advocate to the client for the purpose of or in the course of
employment of his advocate. Accordingly no facts disclosed by the client to his
advocate and no advice given by the advocate to the client during the pendency of
employment of the advocate may be permitted to be disclosed without the client’s
express consent. A person is said to be a client of an advocate if he approaches the
advocate with a case, whether or not the advocate is employed by him.
Sec. 126 has been enacted to enable free communication of facts between the
advocate and his client. The purpose of this section is not to enable the people to
take legal advice to commit crimes or illegal activities in a full proof manner.

Illustration

A, a client, says to B, an attorney, “I have committed forgery and I wish you to defend
me.”

As the defence of a man known to be guilty, is not a criminal purpose, this

communication is protected from disclosure.
4) Explain presumptions? In case of dowry deaths, good faith, rape cases?

Presumptions

The term “presumption” refers to an affirmative or non-affirmative illation pertaining to a

doubtful fact or proposition and drawn by following a process of probable reasoning from
something substantive.

Section 4 of the Indian Evidence Act, 1872, enunciates the law of presumption. It defines
“May Presume”, “ Shall Presume” and “Conclusive Proof”

May Presume

Whenever it is required by this Act that the court may presume a fact, it may it may regard
the fact as proved until and unless it is disproved or may call for the proof of it.

Thus, wherever the words “may presume” have been used, the court has the discretion to
either make a rebuttable presumption or call for confirmatory evidence. It must be noted
here that the presumption so made is not conclusive or incapable of being rebutted.

Shall Presume

Whenever it is directed by this Act ,that the court shall presume a fact, it shall regard the
fact as proved until it is disproved.

Unlike “may presume”, wherever the words “shall presume” have been used, the court has
to regard a fact as proved unless it is disproved. Thus, the court has to necessarily make a
rebuttable presumption regarding the existence or non-existence of a fact. For disproving a
fact so presumed or, in other words, rebutting a statutory presumption, the evidence has to
be clear and convincing. It must be such that, by judicial application of mind, it is established
that the real fact is not the one that has been presumed.

Conclusive Proof

When one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given
for the purpose of disproving it.” The section provides for non-rebuttable presumptions,
that is, presumptions which are conclusive in nature.

Section 4 deals with two types of presumptions. Presumptions of Fact and Presumptions of
Law. Presumptions fact is a natural presumptions based upon the human experience which
are always rebuttable. The court enjoys a discretion either to presume a fact as proved or
may call evidence to disprove it. May presume cases come under the natural presumptions.

Presumptions of Law or legal presumptions are based upon a systematic analysis of facts.
Legal presumptions are of two types, rebuttable and irrebutable. Rebuttable presumptions
are those where the courts shall presume as fact as proved until it is disproved. The court
has no discretion except to presume the fact, however can allow the evidence to disprove it.
Irrebuttable presumptions are those where the court shall presume the fact as proved on
proof of another fact and cannot call any evidence to disprove it. Ex: Sec. 40 Relevancy of
Judgments, Sec 112 Legitimacy of Children.

Section 114-A
Section 114-A of the Indian Evidence Act lays down that there will be a
presumption of absence of consent in certain instances of rape cases. It says
that if rape has been committed under any of the clauses of sub-section (2)
of Section 376 of the Indian Penal Code, and the woman states in her
evidence that she had not given consent, the court shall presume that the
woman did not consent.

History of Section 114-A

The Mathura Rape case was the reason behind the insertion of this section.
The decision of the Supreme Court, in this case, was widely ridiculed in the
country. Thus, the government decided to revamp the laws and it passed the
Criminal Amendment Act, 1983. Let’s delve further into this case.

Herein, a girl named Mathura fled with her boyfriend Ashoka. Her family
registered a complaint against her boyfriend. The girl, her boyfriend, her
brother Gama and other relatives were called to the police station to settle
the matter. The investigation was completed and everybody was asked to go
back. But Mathura was asked to stay back. It was alleged that a police
constable Ganpat took Mathura to a chhapri and raped her. After he had
satisfied his lust, another policeman Tukaram came there and fondled her
private parts. The case went to the Sessions Court which held that the
policemen were not guilty. They said that Mathura might have invented the
story. The High Court took a different stance on the case. It said that mere
passive surrender of the body would not amount to consent on the part of
the plaintiff

State of Rajasthan v. Roshan Khan, (1947)

This case is a good example of ‘presumption of guilt’ under this Section. In
this case, a girl was kidnapped by six boys and then was raped. She said that
she did not consent to sexual intercourse. As the sexual intercourse was
proved in this case, the Court applied the presumption of guilt factor and the
boys were jailed.
Presumption as to Dowry Death
Section 113B of the Indian Evidence Act, 1872 states about the Presumption
as to Dowry Death. If a woman dies in relation with any demand for dowry
and it was shown that soon before her death she was subjected to
harassment or cruelty by any person. Then the court will assume such a
person responsible for her death.

In the case of Keshab Chandra Pandey v. State1, the Court held that
presumption under Sec 113B of the Indian Evidence Act shall be raised only on
the proof of the following essentials:

“(i) Whether the accused has committed the dowry death of a woman. So the
presumption can be raised if the accused is being tried for an offence under s
304B, Indian Penal Code.

(ii) The woman was subjected to cruelty or harassment by her husband or his
relatives.

(iii) Such cruelty or harassment was for or in connection with the any demand
for dowry.

(iv) Such cruelty or harassment was soon before her death”

 UNIT V

1) What are leading questions, when can they be asked?

LEADING QUESTIONS
SECTION 141 TO 145
SECTION 141 LEADING QUESTIONS
Any question suggesting the answer which thee person putting it
wishes or expects to receive is called leading question
SECTION143 WHEN THEY MAY BE ASKED
Leading questions may be asked in cross-examination.

Comments:
Leading Question:
A ‘leading Question’ is one suggesting the answer which the person
asking it wishes to receive from a witness. According to Section 141
“any questing suggesting the answer which the person putting wishes
or expects to receive is called a leading question.” For example, Is not
your name so and so? Do you live in such and such place? However,
if any has to be assessed on facts of each case it is not as if every
single leading question would involidate trial.

Whether a question is leading or not the test has been suggested by

Justice Amir Ali. According to him “a question may be answered by
‘yes’ or ‘no’ is generally leading, but not if it does not suggest the
answer.”

When leading question cannot be asked:

Under section 142 leading questions must not be asked in
examination-in-chief, or in re-examination or objected by the adverse
party. It may be asked in the examination-in-chief of a witness with
the permission of the court. But it can be asked if permitted by the
court as to matter which are introductory or which are undisputed or
which in the opinion of the court have already been sufficiently
proved.

When leading question may be asked:

Section 143 lays down that the leading questions may be put in cross-
examination. No leading question is allowed in cross- examination
where the facts have already been proved or admitted by the party.

therefore, the essentials for leading questions are:

1. Objection by the Adverse Party: If the adverse party objects to the asking of
leading questions during examination-in-chief or re-examination, then the
questions should not be asked unless the court grants permission.
2. Permission of the Court: The court has the authority to allow or disallow the
asking of leading questions. If the adverse party objects, the party seeking to ask
leading questions must seek permission from the court before proceeding.
In accordance with Section 141 of the Indian Evidence Act, 1872, the use of leading
questions is subject to specific circumstances. Leading questions are permitted under the
following conditions:

1. Examination of an Incapable Witness: Leading questions may be employed when

examining a witness who is deemed incapable of providing a coherent response
without the aid of such questions. This often includes individuals such as children
or those with mental challenges, where the nature of their understanding requires
guidance through leading queries.
2. Examination of a Hostile Witness: Another situation allowing the use of leading
questions arises when dealing with a hostile witness. A hostile witness is one who
demonstrates an adverse stance toward the party that called them a witness. In
such instances, leading questions are permitted to extract information effectively.
3. Examination of an Expert Witness: Leading questions are generally admissible
during the examination of an expert witness. This recognizes that experts possess
specialized knowledge, and leading questions may be necessary to elicit precise
and relevant information.
here are a few examples of leading questions:

In a Criminal Trial:

 Non-leading question: “Can you describe what you observed at the scene?”
 Leading question: “Isn’t it true that you saw the defendant at the crime scene
around midnight?”
In a Civil Dispute:

 Non-leading question: “Please explain the events that led to the contract being
terminated.”
 Leading question: “Did the breach of contract by the other party force you to
terminate the agreement?”

2) Explain the order of examination of witnesses?

Examination of Witnesses[sections135-137]

Examination of witnesses refers to the process of adducing oral evidence in the

Court.

Order of Examination

1. Examination-in-chief

2. Cross-examination and

3. Re-examination.

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.

Examination in Chief

Examination in chief is the first stage wherein the questions are asked to the witness
by the advocate representing the party on whose side the witness is giving evidence.
The purpose of examination in chief is to disclose the case of the party and to prove
it, and also to disprove the case of the opposite side. Evidence given through affidavit
is equivalent to the examination in chief of the deponent.

Cross Examination

After the examination in chief the next stage is to cross examination wherein the
witness will be asked question by the advocate of the opposite party. The purpose of
cross examination is to disclose the case of the opposite party conducting cross

examination, to prove the case of that opposite party and more important is to
disprove the case of the party on whose side the witness is giving evidence.

Cross examination is the best guarantee of truth. The advocate conducting the cross
examination can skillfully reveals the falsity or error in the evidence given by the
witness in his examination in chief. Therefore, cross examination is the most valuable
right of the opposite party. If the evidence is given through affidavit, the deponent
has to be appear for cross examination if demanded by the opposite party, except in
the cases in which his identity is sought to be concealed. Where the opposite party is
a notorious person such as a criminal or terrorist, or a powerful person such as a
politician, the identity of the witness is to be concealed. This is necessary not only for
the protection of the witness and his family members against risk to their lives and
properties, but is also necessary in the public interest. If the witnesses are not
protected, no one w i l l be forthcoming to give evidence against notorious or
powerful persons, and as a result they will find themselves free to commit offences.
Re Examination

Re examination is directed to the explanation of matter referred to in cross

examination and mainly it is be confined to the resolving of ambiguity between
examination in chief and cross examination. If such matter is to be introduced in re-
examination, permission of the court is necessary. If such matter is introduced with
the permission of the court, the opposite party will get a right of cross- examination
on those points.

3) Explain the protection given to privileged communications?

Professional Communication [sec. 126-129]

Sec. 126 of Indian Evidence Act deals with the professional communications. Here
Professional Communication means, the communication made by the client to his
advocate or the advocate to the client for the purpose of or in the course of
employment of his advocate. Accordingly no facts disclosed by the client to his
advocate and no advice given by the advocate to the client during the pendency of
employment of the advocate may be permitted to be disclosed without the client’s
express consent. A person is said to be a client of an advocate if he approaches the
advocate with a case, whether or not the advocate is employed by him.

Sec. 126 has been enacted to enable free communication of facts between the
advocate and his client. The purpose of this section is not to enable the people to
take legal advice to commit crimes or illegal activities in a full proof manner.

Illustration

A, a client, says to B, an attorney, “I have committed forgery and I wish you to defend
me.”

As the defence of a man known to be guilty, is not a criminal purpose, this

communication is protected from disclosure.

Therefore, the first proviso to Sec. 126 excludes the communications made in
furtherance of any illegal purpose from the purview of the protection given under
sec. 126. Hence, where the client says to his attorney that he has committed forgery
and that he wishes the attorney to defend his case the communication is not being in
furtherance of any criminal purpose the communication is protected, under sec. 126.

Defence of a person known to be guilty is not a criminal purpose. On the other hand,
if the client asks the advocate as to how to commit forgery in such a way that the
client can escape punishment, the client is seeking advice to commit a crime and
therefore, this communication is hit by the first proviso to sec. 126 and therefore, is
not a privileged communication.

Illustrations

A, a client, says to B, an attorney, “I wish to obtain possession of property by the use

of a forged deed on which I request you to sue.”

This communication, being made in furtherance of a criminal purpose, is not

protected from disclosure.

A, being charged with embezzlement, retains B, an attorney, to defend him. In the

course of the proceedings, B observes that an entry has been made in A’s account
book, charging A with the sum said to have been embezzled, which entry was not in
the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a
fraud has been committed since the commencement of the proceedings, it is not
protected from disclosure.

By virtue of sec. 127, the provisions of s. 126 shall apply to interpreters, and the
clerks or servants of barristers, pleaders, attorneys and vakils.

Sec. 128 further clarifies that it cannot be presumed that privilege is waived by
volunteering evidence.

Sec. 129 provides that if any party to a suit gives evidence therein at his own instance
or otherwise, he shall not be deemed to have consented thereby to such disclosure
as is mentioned in sec. 126.

4) Cross examination of hostile witnesses

 Who Is a Hostile Witness?
A witness becomes hostile when he makes a statement against the
interests of the party who called him. When the party’s own
witness denies giving a statement in his favour before the
court, then it is said that the witness has become hostile.

There can be many reasons for becoming a hostile witness. It may

be the reason that the other party is threatening the witness. Or
he is in fear that if he gives a statement against the accused, his
life will be in danger or any other reason, implanting a sense of
threat in the mind of the witness.

Can a Party Cross-Examine Its Own

Witness?
Section 154 of the Indian Evidence Act talks about the hostile
witness. This section enables the court to permit the party to
cross-examine his own witness, who has become hostile.

The general rule is that a party can cross-examine opposite-party

witnesses, but it is an exception to this rule. If the witness
becomes hostile, then the party may cross-examine its own
witness with the permission of the court.

It’s the discretionary power of the court to permit the party to

cross-examine its own witness. If the court is satisfied with the fact
that, in the interest of justice and fair hearing, the party must be
allowed to cross-examine, then only the court permits it.

What Can Be Asked in Cross

Examination of Hostile Witness?
1. Leading questions under section 143 of the Evidence Act to
testify his truthfulness.
2. Questions related to previous statements given in writing
under section 145 of the Evidence Act. This section permits
contradiction as to former statements in writing.
3. Questions that tend to test the veracity of the witness and
his status in life under section 146 of the Evidence Act.

Satpal vs Delhi Administration (1975)

In this case, the Indian Supreme Court said that merely because the prosecution

has chosen to treat his witness as a hostile witness, it cannot make the

evidence of such a witness totally null.

Atmaram and Ors vs State of MP (2012)

The Supreme Court, in this case, very clearly stated that inconsistency in the

statement of the prosecution’s witness case cannot make the whole

statement invalid. If the judge feels that the character of the witness has not

been completely shaken or that his credit is still worthy of trust, then with due

care and caution, such statement or evidence may be accepted by the court.

5) what do you understand by the term ‘ competent witness’ and

whether child is a competent witness?
The term ‘witness’ is not defined in the Indian Evidence Act, 1872 (IEA). A witness is a

person who is called upon to give evidence in the Court of law. Bentham describes the

witnesses as the eyes and ears of justice. Thus, a witness is one who is cognizant of

something by direct experience.

Competency of Witnesses
 The expression competency of witness refers to capacity or ability or qualification to
give evidence in the Court of Law.
 This Act declares all persons to be competent witness except those wanting in
intellectual capacity.
 Competency is the rule and incompetency the exception.
 A witness is said to be competent when there is nothing in law to prevent him from
appearing in the court and giving witness.
 Sections 118 to 120 as well as Section 133 deal with the competency of the persons
who can appear as witnesses.

Test of Competency
 The sole test of the competency of a witness as laid down by this Act is his capacity
to understand and rationally answer the questions put to him that is whether
witness has sufficient intelligence to depose whether he can appreciate the duty of
speaking truth.
 If from the extent of intellectual capacity and understanding a person is able to give a
rational account of what he has seen or done on a particular occasion, his competency
as a witness is established.


Section 118 of IEA

 This Section deals with the persons who are competent to testify.
 It states all persons shall be competent to testify unless the Court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.
 Explanation to this Section states that a lunatic is not incompetent to testify, unless
he is prevented by his lunacy from understanding the questions put to him and giving
rational answers to them.

Types of Witnesses and their Competency

 Dumb Witnesses:
 o As per Section 119 of IEA, a witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as by
writing or by signs; but such writing must be written, and the signs made in
open Court.
o The evidence so given shall be deemed to be oral evidence.
 Child Witnesses:
o Children can be admitted as evidence, but the standard of scrutiny is to be
maintained while ascertaining how much importance must be placed on each
testimony.
o When the child goes into a witness box it is the general practice for the judge
to ask a few questions to see that the child is intelligible enough to give
rational answers to those questions and has the rough idea between truth and
falsehood.
o In Surya Narayana v. State of Karnataka (2001), the Supreme Courtheld
that a child of tender age be allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto.

Section 120 of IEA

 According to Section 120 of IEA, in all civil proceedings the parties to the suit, and
the husband or wife of any party to the suit, shall be competent witnesses. Further, in
criminal proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness.
 In the case of Shyam Singh v. Shaiwalini Ghosh (1947), Calcutta High Court held
that the husband and wife are both competent witnesses against each other in civil
and criminal cases. They are competent witnesses to prove that there has been no
conjugation between them during the marriage.

6) Powers of judges under sec 165 of evidence act – SN

INTRODUCTION
Courts are tasked with delivering complete and effective justice. To achieve this, Section 165
of the Indian Evidence Act confers broad powers upon judges. These powers enable judges
to ask any questions they deem necessary and order the production of documents to establish
proper proof of relevant facts. These questions may or may not be directly related to relevant
facts or the issues in question. The underlying principle is that judges should not merely rely
on what is presented to them but should independently ascertain the true state of affairs.
LIMITATIONS ON THE JUDGE’S POWER
  Privileges and Refusal – The power vested in judges is subject to limitations outlined
in the proviso appended to Section 165. It specifies that witnesses cannot be
compelled to answer questions or produce documents to which they would be entitled
to refuse under Sections 121 to 131 of the Indian Evidence Act. This means that the
privileges of witnesses, such as the privilege against self-incrimination, remain intact.
 Impropriety – Judges are also bound by restrictions regarding the types of questions
they can ask. They cannot pose questions that would be considered improper under
Sections 148 and 149 of the Indian Evidence Act.

RELEVANCE AND PROPER PROOF

It’s crucial to note that while judges have the authority to ask questions and request
documents, their judgments must ultimately be based on relevant facts that are duly proved in
accordance with the Indian Evidence Act. This ensures that the legal process adheres to the
principles of fairness and justice.
In summary, Section 165 of the Indian Evidence Act empowers judges to actively
participate in court proceedings by posing questions and requesting documents to uncover the
truth and deliver comprehensive justice. However, this power is not absolute and is subject to
certain limitations to safeguard witness privileges and prevent impropriety in questioning.