LAW OF EVIDENCE

The law of evidence is procedural and doesn’t affect the substantive right of parties. It is the law
of the forum (or court) or the lex fori. This is purely a matter of convenience. The rules of law of
evidence for civil and criminal cases are in general the same. But there are certain sections of the
act which apply exclusively to civil cases, and some to criminal cases.

The corpus juris or body of laws is generally divided into two types of laws- Substantive laws
and Adjective laws. Simply put, substantive laws are those laws which define certain rights and
liabilities and adjective laws are those which facilitate the realization of those rights and
liabilities. Adjective laws are further divided into procedural laws and the law of Evidence. Law
of Evidence has been recognized as a distinct category because it consists of elements of both
substantive as well as procedural law.

THE LAW OF EVIDENCE: AN INTRODUCTION

In simple terms, ‘Evidence’ can be said to be something that either proves or disproves the
existence of a particular fact. According to the Hindu Law of Evidence, proof may be divine or
human.

Introduction

The corpus juris or body of laws is generally divided into two types of laws- Substantive laws
and Adjective laws. Simply put, substantive laws are those laws which define certain rights and
liabilities and adjective laws are those which facilitate the realization of those rights and
liabilities.

Adjective laws are further divided into procedural laws and law of Evidence. Law of Evidence
has been recognized as a distinct category because it consists of elements of both substantive as
well as procedural law.

Meaning and Definition

In simple terms, ‘Evidence’ can be said to be something that either proves or disproves the
existence of a particular fact. Legal argumentation generally involves the assertion of existence
of certain facts by either or both the parties to the dispute and subsequently proving or disproving
of the same. Thus, it is imperative for the legal system of any State to determine as to what
constitutes evidence and whatnot.

Several scholars and jurists have attempted to define the term ‘Evidence’. Taylor’s definition
recognizes evidence as a ‘legal means’, apart from simple arguments, which has the potential to
determine the truth of a disputed fact. Bentham’s definition has restricted evidence as something
that produces a mere ‘persuasion’, which may or may not be affirmative, regarding the existence
of a fact. Thus, Bentham has clearly ignored the fact that evidence may even be of a conclusive
nature.
However, his definition highlighted one important element of the law of evidence- that an
undisputed fact or facts may serve as evidence to prove or disprove some other disputed fact.
The Black’s Law Dictionary defines ‘Evidence’ as “any species of proof, or probative matter,
legally presented at the trial of an issue, by the act of the parties and through the medium of
witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief
in the minds of the court or jury as to their contention.”

A modern and exhaustive definition of the term can be found in the Indian Evidence Act, 1872.
Section 3 of the Indian Evidence Act, 1872 defines Evidence as – “––“Evidence” means and
includes ––(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.”

HISTORY

During Ancient India (Hindu Law of Evidence)

According to the Hindu Law of Evidence, proof may be divine or human. While the former
refers to trial by ordeals, the latter consisted of witness testimonies, documentary evidence,
circumstantial evidence, etc. The importance of the various kinds of evidence depends upon the
cause of action as well as the overall subject-matter of the litigation.

A trial by ordeal may be of five types:

 By balance
 By Fire
 By water
 By poison
 By consecrated water

As far as a normal trial is concerned, the rules of evidence may be summarized briefly as
follows-

1. Witnesses- Oral evidence is supposed to be direct subject to the exception that a witness
may communicate what he heard an actual witness say who was either going abroad or
was on his deathbed. The competency of witnesses is determined on the basis of their
honesty and ability to resist temptation. Based on these parameters certain classes of
people such as those practising religion or are of noble birth, etc. are listed as competent
witnesses in the dharma sastras. No specific provision regarding the requirement for a
specific number of witnesses in any case. The king was a privileged witness who could
not be compelled to testify in any case. He had the option to waive the privilege and
testify if he finds it necessary to do so in a case.
2. Confessions- According to Kautilya, accused persons may be tortured in order to extract
the truth from them. However, a conviction which is based on such admission or
confession is highly unjust.
 3. Circumstantial Evidence- The Hindus strongly believed in the importance of
circumstantial evidence. However, recognizing the chances of errors, they insisted upon a
thorough investigation of surrounding circumstances as well.

Rules of Evidence under Muslim Rulers

The non-muslims (including Hindus) were allowed to follow the tenets of their own religion
matters of personal law. However, in criminal matters, Islamic Law was applicable to everyone
irrespective of their religious identity. Trial by ordeal was not supported by strict Islamic Law
practitioners.

The Hanafi Law understood the evidence as:

 Towatur– Fully corroborating evidence

 Ehad– Testimony of a single individual
 Iqrar– admission or confessions

These may be deduced from the testimony of the various witnesses, documents as well as
circumstantial evidence which was known as Karinah. Reliance could be placed on
circumstantial evidence only if it was conclusive in nature.

British India

During the initial years of the British Raj, the mofussil courts did not follow any particular law
on evidence due to the absence of any codified law. However, the presidency courts were
following the English rules of the Law of Evidence. The prevailing situation of chaos led to the
birth of the Indian Evidence Act, 1872 which came into force on 1st September 1872.

The legislative intent of the Act has been highlighted in its preamble which reads, “Whereas it is
expedient to consolidate, define and amend the law of Evidence, it is hereby enacted as follows”.

IMPORTANT DEFINITIONS UNDER INDIAN EVIDENCE ACT, 1872

Section 3 of the Indian Evidence Act, 1872, defines certain important terms which must be
understood in order to facilitate a better interpretation of the provisions of the Act. Let us look at
some of these important definitions.

“Court”

The term “Court” is inclusive of the following:

1. All Judges
2. All Magistrates
3. All persons legally authorized to take evidence, except arbitrators
It must be noted that a Magistrate committing a case to the Sessions Court falls within the ambit
of the aforesaid definition of Court[1] whereas a Magistrate holding preliminary inquiry under
section 164 of the Code of Criminal Procedure cannot be said to be ‘Court’.[2]

“Fact”

The term “Fact” under the Evidence Act refers to the following:

1. External Facts- Anything or state of thing or relation of things which is capable of being
perceived by the five senses.
2. Internal Facts- Any mental condition regarding which a person is conscious of.

The section further consists of the following illustrations:

 The arrangement of certain objects in a certain order is a fact

 A man hearing or seeing something is a fact
 A man uttering certain words is a fact
 A man holding a certain opinion, having certain intention, acting in good faith or in a
fraudulent manner, or using a particular word in a particular sense, or being or having
been conscious of a particular sensation at a given time is a fact
 A man having a certain reputation is a fact

Events which have neither occurred in the past nor in the present but are likely to occur in the
future does not fall within the ambit of the definition of “Fact” under the Indian Evidence Act,
1872.[3]

“Relevant”

Section 3 of the Indian Evidence Act, 1872, defines relevancy as “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 the Act relating to relevancy of facts.” The said provisions are contained in sections
5 to 55 of the Evidence Act. A fact may either be logically relevant or legally relevant.

Where a fact bears such casual relation to the other that it renders probable its existence or non-
existence, it is said to be a logically relevant fact. For instance, where it is to be determined
whether A has placed the murder weapon in the field or not, the fact that B saw A walking
towards the field with the murder weapon is relevant.

The Evidence Act recognizes some of the kinds of casual relations. Thus, those kinds of casual
relations which are recognized by law are known as a legally relevant fact. Therefore, while all
legally relevant facts are logically relevant, all logically relevant facts may not be legally
relevant.

For instance, an accused gives the following statement- “I have kept in the field the knife with
which I killed A.” While the statement may be logically relevant to establish the guilt of the
accused, its legal relevancy extends to only so far as it confirms the fact that the accused had
kept the knife in the field. This is so because section 27 of the Evidence Act clearly lays down
that only that part of the information may be proved which clearly relates to the fact thereby
discovered.[4]

“Facts in Issue”

The expression “Facts in issue” refers to facts out of which a legal right, liability or disability
arises and such legal right, liability, or disability is involved in the inquiry and upon which the
Court has to give the decision.

The question as to what facts may be “facts in issue” must be determined by substantive law or
the branch of procedural law which deals with pleadings.[5] Generally, in criminal cases, the
charge constitutes the facts in issue whereas in civil cases the facts in issue are determined by the
process of framing of issues.

“Evidence”

Section 3 of the Indian Evidence Act, 1872 defines Evidence as –

“Evidence” means and includes ––(1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence; (2) all documents including electronic records produced for the inspection
of the Court; such documents are called documentary evidence.”

Evidence can be said to be any matter of fact which produces a persuasion in the mind regarding
the existence and non-existence of some other matter of fact. Evidence may be oral, which refers
to the testimony of witnesses, or documentary, which refers to the documents and electronic
records tendered before the Court. The guilt of an accused may be proved using circumstantial
evidence also.[6]

Circumstantial evidence refers to the indirect method of proving the guilt of an accused by
drawing inferences from certain facts which are closely related to the facts in issue. However, the
standard of proof required for circumstantial evidence is quite high and courts are usually
cautious while basing convictions upon circumstantial evidence.

[1] Atchayya v. Gangayya, (1891) 15 Mad 138 FB.

[2] Queen-Empress v. Bharma, (1886) 11 Bom 702 FB.
[3] Dueful Laboratory v. State, 1998 Cr LJ 4534 (Raj).
[4] Monir, M., Principles and Digest of Law of Evidence, 35 (1975); See Pulukuri Kotayya v.
Emperor, AIR 1947 PC 47.
[5] Stephen’s Introduction to the Evidence Act, pp. 12, 13.
[6] Vilas Pandurang Patil v. the State of Maharashtra, AIR 2004 SC 3562.

LAW RELATING TO PRESUMPTION

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.[1] Section 4 of the Indian Evidence Act, 1872, enunciates the law of
presumption. It defines three phrases- “May presume”, “Shall presume” and “Conclusive proof”.

May Presume

Per section 4 of the Evidence Act, wherever it is mentioned that the Court may presume a fact, it
may:

 Regard the fact as proved until and unless it is disproved; or

 Call for the proof of the fact

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.[2]

Shall Presume

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.[3]

Conclusive Proof

Section 4 of the Evidence Act defines “Conclusive proof” as follows, “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.

In the case of Gitika Bagechi v. Subhabrota Bagechi,[4] the husband and the wife were in a
relationship for eight years before getting married. After marriage, they lived together in a room
for months in complete privacy. The court regarded this fact as conclusive proof of the fact that
the marriage had been consummated.

In Umashanker v. the State of Chhattisgarh,[5] an eighteen-year-old student was alleged of

passing counterfeit currency note of ₹100 to a shopkeeper. Upon investigation, he was found to
be in possession of 13 more such counterfeit currency notes. The court refused to regard the fact
as conclusive proof of the fact that the accused was having the knowledge or had reason to
believe that the notes were counterfeit.

Conclusion

The law relating to the presumption under the Evidence Act provides for rebuttable as well as
conclusive presumptions. Presumption of fact may sometimes be essential for establishing the
guilt or innocence of an accused and to facilitate effective delivery of justice in a case.

In certain cases, any kind of presumptions may fatally hinder the overall progression of the case.
Thus, in cases where presumptions are required to be made but such presumption may be
rebuttable, the court “shall presume”.

On the other hand, in cases where the court has to decide as to whether it must make a
presumption or call for confirmatory evidence, it “may presume”. Further, where non-rebuttable
conclusive presumptions are required to be made in a case to save the court’s time, the court
designates a fact as “conclusive proof” of another fact.

[1] Babukhan v. the State of Rajasthan, AIR 1997 SC 2960.

[2] Emperor v. Shrinivas, (1905) 7 Bom LR 969.
[3] Heinz India (P) Ltd. v. the State of U.P., (2012) 5 SCC 443.
[4] AIR 1966 Cal 246.
[5] AIR 2001 SC 3074.

DISTINCTION BETWEEN RELEVANCY AND ADMISSIBILITY

Relevancy is the ultimate touchstone for determination of the admissibility of evidence.[1] It is

due to this fundamental rule of the Law of Evidence that the terms ‘relevancy’ and
‘admissibility’ are often used interchangeably. It must be noted that both the concepts are quite
distinct from each other.[2]

For instance, a confession made by an accused to his wife may be relevant but is inadmissible
since it falls within the purview of ‘Privileged Communications’ under the Indian Evidence Act,
1872.

It may be stated that all that is admissible is relevant but all that is relevant may not be
admissible. Let us further evaluate the difference between relevancy and admissibility.

Section 3 of the Indian Evidence Act, 1872, defines relevancy as “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 ways
referred to in the provisions of the Act relating to relevancy of facts.” The said provisions are
contained in sections 5 to 55 of the Evidence Act.

A fact may either be logically relevant or legally relevant. Where a fact bears such casual
relation to the other that it renders probable its existence or non-existence, it is said to be a
logically relevant fact. For instance, where it is to be determined whether A has placed the
murder weapon in the field or not, the fact that B saw A walking towards the field with the
murder weapon is relevant.

The Evidence Act recognizes some of the kinds of casual relations. Thus, those kinds of casual
relations which are recognized by law are known as a legally relevant fact. Therefore, while all
legally relevant facts are logically relevant, all logically relevant facts may not be legally
relevant. For instance, an accused gives the following statement- “I have kept in the field the
knife with which I killed A.”

While the statement may be logically relevant to establish the guilt of the accused, its legal
relevancy extends to only so far as it confirms the fact that the accused had kept the knife in the
field. This is so because section 27 of the Evidence Act clearly lays down that only that part of
the information may be proved which clearly relates to the fact thereby discovered.[3]

Admissibility refers to the question as to whether the court must consider a relevant fact in
deciding upon the issue or not. A fact is admissible only if it does not infringe any of the rules of
exclusivity provided by law. Thus, logically relevant facts are relevant but may not be admissible
whereas legally relevant facts are relevant as well as admissible.

Relevancy is a question pertaining to the tendering of evidence before a court of law and is for
the lawyers to decide. On the other hand, admissibility is for the judge to decide since it pertains
to the weight that must be attached to a piece of evidence tendered before the court.[4]

The various points of distinction may be briefly summarized as follows:

Relevancy Admissibility
Governed by logic and probability Strictly governed by legal rules

All relevant facts may not be admissible All admissible facts are relevant

Rules of Evidence described from sections 5 to Rules of relevancy described after section 56 in
55 in the Evidence Act the Evidence Act

Rules of relevancy declare whether a piece of Rules of admissibility declare whether a relevant
evidence is relevant or not piece of evidence is admissible as such or not

[1] Wilson v. R, [1970] HCA 17: (1970) 123 CLR 334.

[2] Sahoo v. the State of U.P., AIR 1966 SC 40.
[3] Monir, M., Principles and Digest of Law of Evidence, 35 (1975); See Pulukuri Kotayya v.
Emperor, AIR 1947 PC 47.
[4] Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor, [2015] 2 MLJ 293.

DOCTRINE OF RES GESTAE – HISTORY, SCOPE, USAGE AND CRITICISMS

‘Res Gestae’ is a Latin term which can roughly be translated to ‘things done’.[1] The concept of
res gestae has emerged from the belief that certain acts or statements, which may otherwise be
irrelevant and inadmissible, may be admitted as evidence due to the very situation in which they
were committed or uttered.

The doctrine of res gestae is generally used to admit a potentially inadmissible piece of evidence
in order to provide context to an event. Thus, one of the important requirements for the
applicability of the doctrine is that the said act or statement must not exist in complete ‘factual
isolation’.[2] Statements forming a part of res gestae are often admitted as evidence even though
they may be hearsay. Thus, res gestae is also recognized as an exception to the general rule of
hearsay evidence.

The rationale behind this is that human nature is such that sometimes the words uttered and
actions have done are so interwoven with each other that it becomes difficult to view the action
in total isolation and doing so might lead to a miscarriage of justice. Therefore, such statements
were declared to be a part of res gestae and an exception to the rule of hearsay evidence. Let us
look at the historical development of the principle or doctrine of res gestae in common law.

HISTORY

The doctrine of res gestae can be traced back to as far as 1693 when in the case of Thompson v.
Trevanion[3] the court admitted a declaration accompanying an act as evidence giving the
justification that it provides an explanation regarding the commission of the act. Although it was
later discussed upon and used in a number of subsequent cases,[4] its development began only in
1805 after the case of Aveson v. Lord Kinnaird.[5]

The scope and applicability of the concept gained the attention of scholars and jurists after the
infamous case of R. v. Bedingfield[6] wherein Cockburn C.J. ruled that a res gestae statement
cannot be made after the transaction. In this particular case, the accused had slit the throat of the
deceased who ran outside and told a witness to look at what the accused had done.

The Court ruled that since the statement was made after the throat had been slit, it cannot be said
to be a res gestae statement. This decision was later overruled in the case of Ratten v.
R.[7] wherein it was stated that a res gestae statement may even be made immediately after the
transaction. The scope of the doctrine of res gestae in common law was further widened by this
decision.

UNDER INDIAN LAW

The concept made its way to the Indian Evidence Law in the form of section 6 of the Indian
Evidence Act, 1872, which reads as, “Relevancy of facts forming part of the same transaction. ––
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times
and places.”
The provision is contained in Chapter-II of the Act which deals with the ‘Relevancy of
Facts’. It begins with section 5 which states that evidence may be given to prove the existence or
non-existence of a fact in issue, that is, a fact which has been submitted to the judicial
investigation, or any other fact which has been declared relevant by the statute.

Following this is section 6 which provides that even though a fact may not be ‘in issue’ but is
connected to such a fact so deeply that it forms a part of the same event or ‘transaction’, it is a
relevant fact and evidence may be submitted to prove or disprove it u/s 5 of the Act. The facts
may have occurred at the same time and place or at different times and places.

The provision inter alia covers the following:-

 Statements made by either of the parties or by any by-stander during or shortly before or
after the event
 Facts containing the effects of the act committed by the accused, regardless of the fact
that he might not have caused all of them himself.
 Facts which provide context to an event even though they may not constitute the event
itself.

Test for Applicability

The foremost requirement for the applicability of the section is that the fact must be a part of the
‘same transaction’. The following requirements must be fulfilled in order to conclude that the
facts are a part of the same transaction:-

 They must be in close proximity of time, so much so that there remains no possibility of
concussion or fabrication.
 They must have occurred at the same place or at different places which are in close
proximity to each other.
 There must be certain continuity in action.
 There must be a ‘community of purpose’.

The courts have used the aforementioned test to determine the applicability of section 6 in a case.
Gestures made by the victim while dying may also qualify as res gestae.[8] As far as statements
are concerned, the Supreme Court has ruled in the case of Krishna Kumar Malik v. State of
Haryana[9] that the doctrine of res gestae is an exception to the rule of hearsay evidence. It
further observed that for a statement to be admissible under section 6 of the Evidence Act, it
must be made contemporaneously with the act or immediately thereafter.[10]

Where there was a significant time lapse between the occurrence of the event and recording of
statement of injured victims by the magistrate, it was held that the statements will not qualify as
res gestate statements u/s 6 of the Evidence Act.[11] In another case,[12] the witnesses arrived at
the place of occurrence immediately after the completion of the event and heard a full account of
what had happened. Their testimony was considered valid u/s 6 of the Evidence Act. It is
essential to note here that only a statement of fact can form part of res gestae and not a statement
of opinion.
Widening Scope

Initially, the doctrine of res gestae was mainly applied to cases involving murder. However, over
time the courts have started applying the doctrine in cases of rape, domestic violence, etc. which
are generally based on circumstantial evidence.

The requirement of the proximity of time is given relaxation in cases of rape and domestic
violence due to the general attitude of the Indian society on the issue which discourages women
from immediately coming out to seek legal redressal or help. Thus, a statement made by the
victim in cases of rape and domestic violence even after the lapse of time may fall under the
purview of section 6 of the Indian Evidence Act, 1872, provided that it has been established that
the victim was still under some kind of shock or trauma due to the incident. The same rule of
relaxation may also apply to cases involving child witnesses.

An interesting decision of the Patna High Court in the case of Shyam Nandan Singh v. State of
Bihar[13] is worth discussing in the light of the widening scope of the doctrine of res gestae. In
this particular case, the deceased and her mother went to a field where they were stopped by the
accused from harvesting crops and they slit the throat of the deceased who had raised an alarm.
The deceased’s mother narrated the events to the people who had gathered due to the alarm and
went to lodge an FIR in nearby police station along with them. Subsequently, the mother passed
away before she could be examined.

The issue before the court was pertaining to the admissibility of the FIR as res gestae since it was
lodged by the mother who had seen the incidents first hand. The council on behalf of the accused
argued that FIR can only be used as a corroborative piece of evidence and not as substantial
evidence.

The court, after careful consideration, ruled that the FIR is a relevant fact under the provisions of
section 6 of the Indian Evidence Act, 1872. However, it further stated that, since the person who
has lodged the FIR in the instant case has passed away before she could be examined, the FIR is
required to be used as substantive evidence. This cannot be done since the general rule is that
FIR is supposed to be used only as a corroborative piece of evidence. Therefore, the court
allowed the appeal and acquitted the accused.

The rule of res gestae is generally extended to acts done or statements made. By bringing an FIR
within its purview, the court has made room for expansion of the scope of section 6 of the Indian
Evidence Act, 1872.

CRITICISM

The concept of res gestae has been subjected to criticism since its very inception. The concept
has been remarked to be conveniently obscure leaving an ample amount of room for loopholes
and multiple interpretations.
Wigmore has even criticized the very nomenclature stating that the rule is overlapping with one
or the other well-established principle of the law of evidence. He has stated that the phrase ‘Res
Gestae’ is ambiguous and, therefore, harmful for use.

CONCLUSION

The rule of res gestae is often used as the last resort. The legislative rationale behind the
inclusion of the rule in the Indian Evidence Act, 1872, was to make sure that no criminal walks
away freely due to lack of evidence against him. The rule of res gestae has been subjected to
criticism for its nomenclature as well as its obscurity. However, when looked at from a different
angle, the vagueness and obscurity enable the courts to judge each case on its own merits.

The exact contents and requirements of res gestae are still subjected to interpretation on a case-
to-case basis.

Moreover, as we have already seen, the scope and horizons of the doctrine are expanding
through various judicial decisions over time. This particular trend, in a way, justifies the
legislative rationale behind the provision and may even be helpful for the overall realization of
the constitutional goal of ‘justice for all’ which has been subtly highlighted in the preamble.

[1] Black’s Law Dictionary. 8th Ed. p. 1335.

[2]LawTeacher, The Doctrine of Res Gestae (November 2013) Available
from https://www.lawteacher.net/free-law-essays/common-law/the-doctrine-of-res-gestae-law-
essays.php?vref=1
[3] 1693 Skin 402.
[4] Ambrose v. Clendon Rep. Temp. Hardw. 267; Home Tooke’s trial 25 Howells State trials,
444 (1794); Hoare v. Allen H.T. 1801 N.P. 3 Esp. 276.
[5] (1805) 6 East 188.
[6] [1879]14 Cox C.C. 341
[7] [1972] AC 378.
[8] Queen v. Abdullah (1885) ILR 7 All 385.
[9] 4 (2011) 7 SCC 130.
[10] Id.
[11] Gentela Vijayvardhan Rao and Anr. v. State of Andhra Pradesh (1996) 6 SCC 241.
[12] Bishna v. State of West Bengal AIR 2006 SC 302.
[13] 1991 Cri LJ 3350.

MOTIVE, PREPARATION AND CONDUCT

Let us discuss the concepts of motive, preparation and conduct in further detail in light of the
provisions of section 8 of the Evidence Act.
Introduction

Per section 8 of the Indian Evidence Act, 1872, the motive with which a person commits a
certain act or the preparation which he makes towards the commission of the act is a relevant
fact. The question of motive and preparation is important in cases which purely rely on
circumstantial evidence.

The rule of res gestae testimony is that it may be allowed when the said testimony goes right to
the root of the matter directly connected with the commission of the crime. This particular
principle has been embodied in section 8 of the Evidence Act.

Motive

Motive refers to the internal motivation that tempts a man to do a particular act. As a general
rule, there can be no action without a motive. The voluntary actions of sane persons are always
guided by a motive. The conduct of the person is regarded as the proof for the motive. It must be
noted that motive, by itself, is not an incriminating circumstance[1] and cannot be used in place
of proof.[2] Motive assumes an important role in cases relying solely on circumstantial evidence
because, in such cases, motive itself is seen as a circumstance.[3]

In Chunnil Lal v. the State of U.P.,[4] the accused, who expected of inheriting his childless
Uncle’s property, was frustrated when the Uncle got married and had a child. The uncle was
murdered and the accused was found to be struggling to get the property transferred in his name.
These facts were held to be relevant since they established a motive on part of the accused to
murder the deceased.

Preparation

Preparation refers to the act of arranging for the means and methods required for the commission
of the crime. Thus, where the A is being tried for the murder of B by poison, the fact that A had
procured a similar poison prior to the murder is relevant. However, no inference of guilt shall
arise when it has been established that the preparation so made was innocent or was for another
act which may be legal or illegal.

Conduct

A fact may be proved by scanning the conduct of a party and the surrounding circumstances.
Statements which are either explaining the conduct or are accompanying it are also considered to
be a part of the conduct itself.

In M. Malkani v. the State of Maharashtra,[5] recorded telephone conversation about the

settling of the bribe-money was held to be evidence of conduct. Absconding of an accused is
relevant conduct under the Evidence Act. However, it must be noted that the act of absconding is
indicative of the guilt of the accused only to a certain extent since even innocent persons tend to
abscond due to the instinct of self-preservation.[6]
In Sunil v. State of Rajasthan,[7] the presence of the accused near the village before and after
the crime took place was held to be evidence of conduct under section 8 of the Evidence Act.

Conclusion

Motive preparation and conduct are essential to prove mens rea or a guilty mind. The section is
accorded high amount of importance in case of circumstantial evidence. It is due to this reason
that the section is often regarded as one of the most provisions in the Evidence Act.

[1] Tara Devi v. the State of U.P., AIR 1991 SC 342.

[2] State of Punjab v. Sucha Singh, AIR 2003 SC 1471.
[3] Varun Chaudhary v. the State of Rajasthan, AIR 2011 SC 72.
[4] AIR 2010 SC 2467.
[5] AIR 1973 SC 157.
[6] Thimma v. the State of Mysore, AIR 1971 SC 1871; Rahman v. the State of U.P., AIR 1972
SC 110; Ramanathan v. Tamil Nadu, AIR 1978 SC 1204.
[7] 2001 Cr LJ 3063 (Raj).

‘CONSPIRACY’ UNDER THE INDIAN EVIDENCE ACT, 1872

When two or more persons enter into an agreement to do an unlawful act or to do a lawful act in
an unlawful manner, there is said to be a conspiracy between them.

A conspiracy is entirely a secret affair. It is due to this reason that the Indian Evidence Act, 1872,
makes provisions for the admissibility of certain kinds of evidence against an alleged
conspirator. Let us have a look at the relevant provision, the legal principle behind the provision
and its scope and application.

Provision

Section 10 of the Indian Evidence Act, 1872, provides for the relevancy of statements made or
acts done by conspirators in reference to a common design. The section provides that if there is
sufficient ground to believe that two or more persons have conspired to commit an offence or an
actionable wrong then anything that is done, written or said by any one of them in pursuance of
the common intention, the same is a relevant fact-

1. Against the alleged conspirators

2. In order to prove the existence of a conspiracy

An illustration to the provision reads as follows, “Reasonable ground exists for believing that A
has joined in a conspiracy to wage war against the Government of India. The facts that B
procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a
like object, D persuaded persons to join the conspiracy in Bombay, E published writings
advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money
which C had collected at Calcutta, and the contents of a letter written by H giving an account of
the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s
complicity in it, although he may have been ignorant of all of them, and although the persons by
whom they were done were strangers to him, and although they may have taken place before he
joined the conspiracy or after he left it.”

Principle

The legal principle behind the provision is that by hatching a conspiracy to do something, the
conspirators have assumed a certain individuality whereby any statement made or act done,
regarding the conspiracy, generally or towards any of the other conspirators forms a part of res
gestae and, hence, becomes admissible.

A conspiracy is entirely a secret affair. Therefore, the prosecution cannot be expected to establish
the link between statements or acts of each of the accused with allowing the tendering of a
common bond establishing the link.[1]

Scope & Application

The operation of the section is contingent upon the existence of sufficient grounds to believe that
the accused have conspired together to commit an offence or an actionable wrong. The
expression “reasonable grounds to believe” refers to the existence of prima facie evidence
regarding the existence of any conspiracy between the accused. In the case of Kehar Singh v.
State (Delhi Admn.),[2] the fact that the accused were present at the gathering a short time
before the shooting took place and talked to each other in isolation and avoided questions
pertaining to their conversation was admitted as a prima facie evidence establishing the existence
of a conspiracy.[3]

Where entries in a diary were neither self-explanatory nor showed the existence of any
conspiracy even to the prima facie extent, the Court refused to invoke provisions of section 10 of
the Evidence Act.[4]

The section pertains to anything that is written, said or done by any of the conspirators in
“reference” to the common intention. Thus, it is not necessary for the statement or acts to be in
pursuance of or in precedence of the common intention.[5] The mere fact that the statement or
act is related to the common intention is enough to attract the provisions of section 10 of the
Indian Evidence Act, 1872.

It must be noted that the said statement or act has to be after the conspiracy has been hatched.
That is to say after the conspirators first entertained the idea of conspiring to commit the offence
or actionable wrong. Further, any statement made or act done after the common intention had
ceased to exist does not fall within the ambit of the provision.[6]

The fact is relevant in so far as:

1. It is used against the alleged conspirators

2. It is used to prove the existence of a conspiracy
 3. It is used to prove the association of a person with the conspiracy

A confession made by a conspirator in the presence of a Magistrate is admissible only under

section 30 of the Evidence Act and not under section 10.[7]

[1] Badri Rai, AIR 1958 SC 953.

[2] AIR 1988 SC 1883.
[3] Contra Sardar Sardul Singh v. State of Maharashtra, AIR 1965 SC 681.
[4] Advani L.K. v. CBI, 1997 Cr LJ 2559 (Del).
[5] Emperor v. Bhola Nath, (1939) All 736.
[6] Mirza Akbar v. Emperor, AIR 1940 PC 760.
[7] Emperor v. Abani Bhushan Chuckerbutty, (1910) 38 Cal 169 (SB).

FACTS SHOWING THE STATE OF MIND

Certain offences are culpable on the basis of the state of mind of the accused. In order to prove
such offences, certain facts which show the existence of a particular state of mind are relevant
and admissible as evidence. Section 14 of the Indian Evidence Act, 1872, embodies this
particular rule.

It reads as follows, “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.

Explanation 1. –– 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.

Explanation 2. –– 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.” Let us discuss its scope and
provisions in further detail.

Scope

This section is applicable in cases where the offence alleged to have been committed by the
accused is culpable on the basis of the state of mind or feeling of the accused. This includes
offences such as slander, false imprisonment, etc. in which malice is the primary requirement for
culpability. However, the applicability of the section must not be extended to those cases which
are supposed to be decided upon actual facts and not any state of mind or bodily feeling.

For instance, in order to prove that a man has committed an offence such as that of theft on one
occasion, the fact that he committed similar offences on other occasions is not relevant.[1]
In Sardul Singh Caveeshar v. the State of Bombay,[2] the Supreme Court held that the acts,
writings and statements of an individual co-conspirator may be used by the prosecution under
this section to rebut a probable defence that the participation of the co-conspirator was innocent.

Thus, the section may also be invoked when the state of mind has not become a fact in issue or
relevant fact but there is a high probability of it being such a fact in the course of the proceedings
of the case.

The specific state of mind

Per Explanation 1 to the section, the evidence must be pertaining to the specific state of mind
that pertains to the case at hand and not that of general reputation. Thus, anything that has a
distinct and immediate connection to the case at hand is admissible.[3]

In R v. B, [4] the accused was convicted of assaulting his grandsons on the basis of pornographic
magazines found in his possession and his sexual proclivities. The subsequent appeal filed by
him was allowed and the Court observed that the evidence of pornographic magazines and the
subsequent cross-examination of the accused showed a mere tendency and had no probative
value due to which it should not have been admitted as evidence in the first place.

Previous Convictions

Per Explanation 2 to the section, in a case where the previous commission of an offence is
relevant, the fact that the accused was previously convicted for the said offence would be
relevant under the section. However, the question of previous convictions being used in
subsequent cases is often debated under various provisions of the Evidence Act.

For instance, in Emperor v. Alloomiya Husan,[5] the accused was arrested and convicted under
the Bombay Prevention of Gambling Act for keeping a common gaming house. The conviction
by the Magistrate was based upon the fact that the accused was previously convicted on multiple
occasions under the Gambling Act. Upon appeal, the decision was upheld and the fact pertaining
to previous convictions was held to be relevant and admissible under section 14 of the Evidence
Act.

The legality of the decision is often doubted by many who argue that the previous conviction is
simply evidence showing bad character and is therefore inadmissible under section 54 of the
Evidence Act. Thus, the relevancy of previous convictions under section 14 might conflict, on
certain occasions, with the rules of exclusion of evidence showing bad character under section
54.

Conclusion

The proof of the existence of a particular state of mind is of extreme importance in certain cases.
The overall scope of the section extends beyond questions of previous convictions. However, the
section is mostly called for interpretation in cases where it is tendered that the previous
conviction of the accused is relevant in deciding upon the case at hand.
This might be because the other aspects of the section are already covered by the rest of the
provisions of the Evidence Act.

[1] Empress v. M.J. Vyapoory Moodeliar, (1881) 6 Cal 655, 659, 660; Gandhi v. The King,
(1941) Ran 566.
[2] (1958) SCR 161.
[3] Emperor v. Debendra Prasad, (1909) 36 Cal 573.
[4] R v. B (RA) [1997] 2 Cr App R 88.
[5] (1903) 28 Bom 129: 5 Bom LR 805.
 RELEVANCY OF FACTS

Introduction

Not everything holds value in the court of law, only certain events, physical or abstract that are
brought to court’s notice, through legal means, hold relevancy. Every event is a fact in itself and
is made up of a number of facts. The law of Evidence was developed to chalk out the rule and
principles to prove “facts.”

The legal meaning of fact, as under the Indian Evidence Act:

(1) anything, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.

The second chapter in the law of evidence, ‘relevancy of facts’ can be considered as a tool to
identify facts, appropriate to the case, from a plethora of them. These facts are called ‘Facts in
Issue’ and help in steering the case towards a justifiable judgement. Only through evidence can
they be proved and evidence has been defined as:

(1)all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence

(2)all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.

Section 5

This serves as a section to exclude irrelevant facts. For example, if ‘A’ were to beat ‘B,’ with a
club and an intention to cause his death, the following would form the facts in issue:

 A’s beating B with the club

 A’s causing B’s death by such beating
 A’s intention to cause B’s death

The concerned facts in issue are to be only dealt with, during the trials and the rest are not
relevant to the court. If a suitor were to bring any new unrelated issue, it would neither be
accepted nor be heard in the later stage of the case.

Res Gestae

This Latin term means, ‘things done.’ It is adapted from the English doctrine
of res gestae, though the term is not used directly in Section 6 of the act, it is applied in Indian
law. As Peter Murphy puts it, “To state a fact or event in isolation without reference to its
antecedents in time, place or surrounding circumstances, may render the fact, difficult or even
impossible to comprehend.” Hence, supporting facts are used to prove or give meaning to the
facts in issue and these form the part of res gestae. It is an exception to hearsay evidence
(Hearsay evidence is what one has heard and not seen).

Relevant facts could include both acts and omissions, and they could be isolated or contiguous
but they should form a part of the transaction in question. In Milne v. Leisler (7 H.&N. 796: 126
RR 704), the fact that the contractor wrote a letter to his broker to make enquiries was held to be
a part of res gestae; in deciding whether a contract was made as an agent or in a personal
capacity.

Uncertainty regarding instant statements and a false narrative of a detached prior event was
cleared in the case of Ratten v. Reginam (3 All ER 801), where Lord Wilberforce said that it
should be up to the Judge to satisfy himself that whether the statement was made in spontaneity
and instantly or is a constructed narrative and hence, shall be excluded.

The Environment of Facts

Everything surrounding the question can also be relevant to the case. These aspects, as defined
under Section 7, include:

 Occasion – In R v. Richardson (Wills pp 225-29), the deceased girl was alone in her
cottage and it was considered to be an occasion for murder.
 Cause – In Indian Airlines v. Madhuri Chowdhry (AIR 1965 CAL 252), the report by
an Enquiry Commission relating to an air crash was held to be relevant as the cause of the
accident.
 Effects – This may include footprints or fingerprints on the crime scene or other such
evidence which is left or stays after the concerned incident.
 Opportunity – In R v. Donellan (1955 1 QB 388), the accused knew that the deceased
take a certain medicine which is administered by his mother, at certain intervals. The
accused used this as an opportunity and replaced the bottle of medicine with that of
poison.
 State of things – It helps by declaring the relationship between the accused and the
victim.

Motive, Preparation and Conduct

Section 8 deals with:

Motive

Facts which show a motive for any facts in issue or relevant facts are relevant. The only
condition is that the motive considered should be of the man who commits the crime. In R v.
Palmer (1856, Cockel’s cases and statutes on evidence, p. 59), the accused borrowed large
sums of money from his deceased friend to pay his dues. The deceased died because of
poisoning in a hotel, after coming back from a race they both attended.
Since the accused had a strong motive to kill him, he was held liable. If a certain motive can be
assigned, its adequacy is not questioned, only its existence is enough to prove concerned facts.
In Murarilal Sharma v. State of Maharashtra (AIR 1997 SC 1593) it was held that where a
fact can strongly link accused to the fact in issue, motive plays a secondary role. And while,
when considering circumstantial evidence, evidence of motive plays the fundamental role.

Preparation

Preparation in itself is no crime, but when accompanied with an offence committed thereof, it
becomes relevant. Illustration (c) to section 8 provides: “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.” Here, procuring of poison is no crime but when the poison is administered to
murder B, it becomes relevant.

Conduct

Guilty mind begets guilty conduct. Conduct is taken as evidence because it is always guided,
before or after, by what one has done. The conduct should be such which is affected by the facts
or affects the facts. It doesn’t include statements until these statements are associated with
conduct.

Considering the leading case of Queen-Empress v. Abdullah (1885 7 All 385 FB), the facts of
which are: Abdullah had murdered a prostitute, aged between 15 and 20 years. He had slit her
throat with a razor but the girl helped identify him by her conduct which was her hand gestures
agreeing to questions asked. The defendant pleaded that this amounted to a statement but the
learned judge held it to be subsequent conduct and prosecuted Abdullah for her murder.

Subsequent conduct includes activities done after the incident whereas previous conduct includes
actions before the crime/incident. In Vikramjit Singh v. State of Punjab (2006 12 SCC 306), it
was held that if there is a nexus between conduct and crime, it doesn’t matter whether the
conduct was subsequent or preceding, it will be relevant.

Section 9

Facts will help in supporting, rebutting, explaining or introducing relevant facts are also relevant
under this chapter, for example, if a person is absconding soon after being accused of a crime, it
is relevant as conduct subsequent and affected by facts in issue.

In Sainudeen v. State of Kerala (1992 Cr LJ 1644 Kerala), identification of the accused

through his voice was relevant under this section.

This section also covers test identification parades (TI parades). Its utility was explained by the
Supreme Court in Ramanathan v State of TN (AIR 1978 SC 1201) stating that the common
and old practice of lining-up suspects for identification by eye-witnesses or by the victim
becomes essential where the identity of the perpetrator is unknown.
Evidence to Prove Conspiracy

This part covers the following sections:

Section 10

This section states that whenever there is reasonable ground to believe that two or more persons
have conspired and a co-conspirator says, does or writes something, the evidence is relevant on a
condition that the act must have a reference to their common intention. It is important to have a
reasonable ground because conspiring against the government or nation is itself a crime.

Section 11

It gives relevancy to those facts which are irrelevant as such but become relevant because they
are inconsistent with relevant facts and their existence in themselves or in connection with other
facts make some fact in issue or a relevant fact highly probable or improbable.

In Dudh Nath Pandey v. State of UP (1981 2 SCC 166), the Supreme Court said that the plea
of alibi must be proved with absolute certainty, so as to make the presence of accused at the
crime scene, impossible.

In Baij Lal v. Ram Pratap (AIR 1982 Delhi 149), a seller divided his land in two and sold it in
two different transactions to two different persons. The court held that the first sale deed will be
considered and it was highly probable that the rest of the land was intended to be sold to the
second buyer.

Section 12

As civil cases are not dealt with as seriously as the criminal cases, this section gives relevancy to
any fact which will enable the court to determine the amount of damages to be awarded.

Section 13

This section was laid out to consider facts when a custom or a right is in question. Facts and
evidence regarding the origin, modification, assertion, claiming or denial of custom and those
instances where the custom or right was practised, recognized, claimed or denied are admissible.

Section 14

Section 14 is of importance as it accepts mental or bodily feelings as relevant. Mens rea or

intention forms an important ingredient of crime and hence, plays a vital role in determining the
extent of liability of an accused. It leaves the finding out of mental or bodily feeling at the
discretion of the court since it is impossible to find out what a man is thinking. It could be found
out by other related facts and could help in proving intention, negligence or innocence.
In Emperor v. Wahiddin Hamiddin (1929 32 Bombay LR 324), the Bombay high court held
that tendency to commit thefts could not prove an intention to commit dacoity or conspiring to
commit dacoity. Previous convictions are excluded as evidence under Section 54 of the act but if
the same offence is repeated, again and again, it may lay the ground for clearing the intention of
the accused, as was held in Emperor v. Allcomiya Husan (1903 ILR 28 Bombay 129).

Evidence of Similar Facts

The general principle is to exclude the evidence of similar facts or past prosecution (as stated
above), this principle is applied as an exception, only in those cases where there is a striking
similarity between the fact on which the case is based and the fact of which the evidence is
offered.

Section 15

Through this section, the court establishes whether an act is incidental or accidental. This is done
by checking whether such event was a part of similar occurrences and in each, the person
concerned was executing the act.

This was rightly explained in the case of R v. Smith (1915 11 Cr App 233): If you find an
accident which benefits a person and you find that the person has been sufficiently fortunate to
have the accident happened to him a number of times, benefitting him each time, you draw a
very strong, frequently an irresistible inference, that the occurrence of so many accidents
benefitting him is such a coincidence that it cannot have happened unless it was designed.

Section 16

“When there is a question whether a particular act was done, the existence of any course of
business, according to which it naturally would have been done, is a relevant fact.” This attaches
evidentiary value to a normal course of business as people adhere to their routine of business and
officials to the routine of the office.

Conclusion

The provisions of the act are exhaustive in themselves but the act is not exhaustive in itself. The
relevancy of facts is an important chapter which deals with the substance of the trials as, without
facts, nothing can be proved to have happened.

The act was developed during the rule of the Britishers and hence leaves a huge room for
improvements which might have not yet been discovered. The evident changing nature of law
should be continuously applied in updating this act to ensure fair judgements.
 ADMISSION AND CONFESSION

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.

INTRODUCTION

Admission, as defined under section 17 of The Indian Evidence Act, 1872:

“An admission is a statement, oral or documentary or contained in electronic form, which

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

The definition states that evidence can either be oral, documentary or be contained in electronic
form (inserted by Information Technology Act, 2000). Its relevancy is depended on whether if, it
satisfies the conditions mentioned in sections 18 to 23 of The Indian Evidence Act, 1872.
Surprisingly, in common parlance, ‘confession’ is used to refer to adverse statements made by a
competent party but it comes under the purview of admission. Admission is a broader term and
includes confessional statements. Confession is nowhere defined in the act but the conditions for
its relevancy are given in sections 24 to 30.

ADMISSIONS

As already defined above, admissions are statements that attach a liability, as inferred from the
facts in issue or relevant facts, to the party who made such statements; the statement, denouncing
any right, should be conclusive and clear, there should not be any doubt or ambiguity. This was
held by the Supreme Court in Chikham Koteswara Rao v C Subbarao (AIR 1981 SC
1542). They are only prima facie proof and not conclusive proof.

Admissions can be either formal or informal. The former also called judicial admission is made
during the proceedings, while the latter is made during the normal course of life. Judicial
admissions are admissible under Section 58 of the act and are substantive. They are a waiver of
proof, that is, no further proof is needed to prove them unless the court asks the same. The
Supreme Court in Nagindas Ramdas v Dalpatram Ichharam (1974 1 SCC 242) explained the
effect of it, stating that if admissions are true and clear, they are the best proof of the facts
admitted. Through informal or casual admission, the act brings in every written or oral statement
regarding the facts of the case (by the party), under admission.

A person’s conduct may also be taken as an admission. In an Australian case, Mayo v Mayo
(1949 P 172), a woman registered the birth of her child but did not enter the name of the father
or his profession. The court said that either she did not know who the father was or she was
admitting that the child is illegitimate. In either case, there is an admission of adultery and an
admissible evidence of adultery.
Before any admission becomes relevant, it should meet certain conditions, which are explained
further down below.

Section 18, 19 & 20

These sections lay down the list of persons whose admission will be relevant. Section 18 lays
down the rules for parties to the suit and sections19 & 20 lay down rules regarding relevancy for
third parties. They are:

1. PARTIES TO THE SUIT: All statements made by parties to the suit that makes an
inference as to a relevant fact or fact in issue is relevant. In case of defendants, a
defendant’s admission does not bind his co-defendants as, then, the plaintiff would defeat
the case of all defendants through the mouth of one. In case of the plaintiff, since they all
share some common interest, the admission of one plaintiff is bound on co-plaintiffs
(Kashmira Singh v State of MP AIR 1952 SC 159).
2. AGENTS OF PARTIES: As the law of agency dictates, anything done by an agent, in
the normal course of business, is deemed to have been done by the principal himself (qui
facit per alium, facit per se). Hence, if an agent is impliedly or expressly been asked to
make an adverse statement, the same shall be relevant. A lawyer does not come under
this section.
3. STATEMENTS IN REPRESENTATIVE CHARACTER: A person who sues or is
sued in a representative character. These refer to people such as trustees, administrators,
executors, etc. Nothing said in their personal capacity is taken as admission but if said in
the representative capacity, it counts as an admission.
4. STATEMENT OF THIRD PARTIES: These include:

 Persons having proprietary or pecuniary interest in subject matter, provided, their

statements are in the character of their interest.
 A predecessor-in-title, that is, from whom the parties have derived their interest in the
subject-matter of the suit. This is applicable only if the parties to the suit continue holding
their title. The previous owner of the title to the property can make admissions regarding
the property and not the parties or the new owner.

Section 21

This section is regarding the proof of admissions. It states that, since an admission is an evidence
against the party who has made it; it cannot be proved by the party but has to be proved against
the party. It is better explained by Crompton J in R v Petcherini (1855 7 Cox CC 70): If a man
makes a declaration accompanying an act it is evidence, but declarations made two or three days,
or a week, previous to the transaction in question cannot be evidence, otherwise it would be easy
for a man to lay grounds for escaping the consequences of this wrongful acts by making such
declarations.

It can, though, be proved in favour of the party, if, the party who made the statement, originally,
died. This comes under Section-32 of the Indian Evidence Act and the statement is proved by the
representatives of the original party. When the statement relates to a bodily feeling or state of
mind, the person making the admission can prove it, too. The state of mind in question should be
proved with an appropriate conduct, since, a person in pain would act differently than a person
faking it. Certain other relevant statements can also be proved by the party making it, such as,
when the statement is itself a fact in issue or if it is a part of res gestae.

Section 22 & 22A

Section 22, along with section 65 and section 22A (inserted by the Information Technology Act,
2000) provides that oral admissions as to the content of documents or electronic records are
irrelevant unless the question is about the document or record being forged or genuine.

Section 23

In civil cases, when a statement or an admission is made ‘without prejudice,’ it is not relevant. It
means that both the parties have agreed to that admission and no evidence is to be provided
regarding the same. This section is meant to reach a compromise between parties and avoid
litigation. It protects every admission made where ‘without prejudice’ is expressly or impliedly
stated and they cannot be disclosed in the court, except by the consent of both the parties to the
suit. In Paddock v Forrester (1842 3 Scott NR 715: 133 ER 1404) a letter was written by one
party ‘without prejudice.’ The reply to the letter was not so marked but it was held to be
inadmissible by the court. Only those admissions which come under the purview of Section 126
are to be compulsorily disclosed by the lawyer.

CONFESSIONS

A confession is nowhere defined under the act and it occurs under the heading ‘admission.’ The
definition of ‘admission’ under Section 17, hence, becomes applicable for Confessions. In terms
of the act, a relevant statement made in a civil case is an admission and an admission made in a
criminal case is a confession.

In Palvinder Kaur v State of Punjab (1953 SCR 94) the Supreme Court upheld the decision of
the Privy council in Pakala Narayan Swami v Emperor (AIR 1939 PC 47) and cited two
points: confession must either admit the guilt in terms or admit substantially all the facts and
secondly, a mixed up statement, containing confessional statements which will lead to acquittal
is no confession. The court cannot remove the exculpatory part out of a statement and deliver a
decision on the basis of the inculpatory part of the statement.

A confession, like admission, can be judicial or extra-judicial. In Sahoo v State of UP (AIR

1966 SC 40), the accused was talking to himself and made the confession of killing his own
daughter which was overheard by the witness. This was held to be confession relevant in
evidence.

Section 24

This section makes those confessions irrelevant which are:

  A result of inducement, threat or promise;
 Inducement, etc be made from a person in authority;
 It should relate to a charge in question; and
 It should hold out some worldly benefit or advantage.

The law considers confessions, which are not made freely, as false. A government official is
considered to be a person in authority as they are deemed to be capable of influencing the course
of prosecution (R v Middleton, 1974 QB 191 CA). The benefit promised should be reasonable
and make the accused believe that he would gain an advantage from it and an evil which the
accused is threatened with should be of a temporal nature.

Confession to Police

Section 25 to 30 talks about confessions to police.

1. SECTION 25: It provides that no confession made to a police officer shall be provable
or relevant. This is to protect the accused who might be tortured to extract out a false
confession. If a person is confessing in front of someone else, it will not be irrelevant just
because of the presence of a policeman around. This section only applies to confessional
statements, orally or in FIR; other admissions can be taken as evidence to prove facts or
facts in issue.
2. SECTION 26: This section is similar to the preceding one and states that no confession
of a person, in police custody, is provable. It applies the same context that a false
confession could be extracted out through fear or torture. It not only applies to
confessions to a policeman but to any other person. Police custody does not only mean
within the four walls of a police station, but it could also mean police control in a home, a
car or a public place. The only exception to this rule is that if the confession is made by
the person in presence of a Magistrate, it will be admissible.
3. SECTION 27: If a statement leads to a discovery of a fact related to the crime, it
becomes admissible, even if it was extorted out of the accused. This acts as an exception
to Section 26. To certify the genuineness of the recoveries, they should be made in
presence of witnesses. In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), the accused, on
arrest, indicated where he had kept the stolen goods and the same were found within six
days. The court held that his liability can be inferred from the statement and was held
liable for murder and robbery. A statement made cannot be used against other co-
accused, as was held in Satish Chandra Seal v Emperor (AIR 1943 Cal 137).
4. SECTION 28: If the inducement, threat or promise, as defined in section 24 is removed,
a confession afterwards, becomes relevant. Here, the confession is free and voluntary.
5. SECTION 29: Unlike admissions, where a ‘without prejudice’ statement is inadmissible,
a confession that is made by a promise of secrecy is admissible. The law is only
concerned with the confession being free and voluntary, hence, even if deception or fraud
is being employed or the person is inebriated or if he is made to answer questions, he was
not supposed to, the confession made through all these methods is admissible. In R v
Maqsud Ali (1966 1 QB 688), two accused were left alone in a room where they thought
they were all alone but secret tape recorders had been implanted in the room. The
confessions thus, recorded were held to be relevant.
 6. SECTION 30: This section comes into play when more than one person is jointly
accused of the same offence. Here, if one of the co-accused makes a confession regarding
himself and some other such persons, the court will take that confession into account
against the accused and his co-accused. In Kashmira Singh v State of MP (AIR 1952
SC159), a person named Gurbachan, along with 3 others was accused of the murder of a
child. Through his confession, the prosecution was able to give shape to the story and he,
with Kashmira Singh was held liable and sentenced to death. Kashmira was acquitted by
the Supreme Court on an appeal as uncorroborated confession was not deemed enough to
deprive a person of the right to life.

DIFFERENCE BETWEEN ADMISSION & CONFESSION

In the end, it shall be important to discuss some differences between admission and confession as
they are not essentially the same. 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.

Confessions, usually, refer to admissions made in a criminal case whereas an admission is a

relevant statement made in a civil case. As was held in cases Pakala Narayan Swami v
Emperor and Palvinder Kaur v State of Punjab (cited above), that a confession must go
further and admit the guilt in terms or substantially the facts from which guilt follows, and not
merely acknowledge a fact suggesting an inference as to a fact in issue or a relevant fact.

An admission can either be in favour or against the interest of the party making it (Section 21 &
32), whereas a confession is always against the interest of the party making it.

An admission can be made anywhere, even in police custody, or in front of a person in authority
or whether it was a result of inducement, whereas the conditions for relevancy of confessions are
different and would not be applicable in such cases.

A confession is binding on the co-accused, whereas this is not the case in admissions. An
admission can be made by a third party, too but confession proceeds from a person who has
committed the crime. Lastly, admission is not a conclusive proof but a confession is taken to be a
satisfactory proof of guilt of the accused.
DYING DECLARATION

By Mayank Shekhar | September 17, 2016

0 Comment

Section 32- Cases in which statements of relevant fact by person who is dead or cannot be
found etc. is relevant– Statement written or verbal, or relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which, under the
circumstance of the case appears to the Court unreasonable, are themselves relevant facts in the
following cases:

 When it relates to cause of death. — When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

Illustration
(a) The question is whether A was murdered by B; orA dies of injuries received n a transaction in
the course of which she was ravished. The question is, whether she was ravished by B; or The
question is, whether A was killed by B under such circumstances that a suit wold lie against B by
A’s widow. Statements made by A as to cause of his or her death, referring respectively to the
murder, the rape and the actionable wrong under consideration are relevant facts.

Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsay
evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no
evidence in eye of law and it should be discarded as general rule because the evidence in all
cases must be direct.

Requirements of Section 32
The section is one of those3 provisions that provide exceptions to the principle of excluding
hearsay evidence. The principle of the section is that a person who has the first-hand knowledge
of the facts of a case, but who, for reasons stated in the section, such as death or disability, is not
able to appear before the court, then his knowledge should be transmitted to the court through
some other persons.

Dying Declaration or statements relating to cause of death

Such a statement can be proved when it is made by a person as to the cause of his death, or as to
any of the circumstances of the transaction which resulted in his death. The statement will be
relevant in every case or proceeding in which the cause of that person’s death comes into
question. The clause further goes on to say that such statements are relevant whether the person
who made them was or was not, at the time when they were made, under expectation of death
and whatever may be the nature of the proceeding in which the cause of death comes into
question.
The clause incorporates the principle of English law relating to what are popularly known as
dying declarations but marks a remarkable departure from them.

Dying declaration in English Law

A ‘dying declaration’ means the statement of a person who has died explaining the
circumstances of his death. According to English law the statement is relevant only when the
charge is that of murder of manslaughter.

The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock
: explained the general principle :

The general principle on which this species of evidence is admitted is, that they are declarations
made in extremity, when the party is at the point of death, and when every hope of this world is
gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth.

While the principle stated in this case relating to the basis on which dying declarations are given
credit has been approved, the subsequent cases quite clearly emphasise that declarations made
without appreciation of impending death would not be admitted.

The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in
the following words : The principle on which a dying declaration is admitted in evidence is
indicated in Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his
maker with a lie in his mouth. Explaining the word “immediate” which was inserted by his
Lordship said : “Immediate death must be construed in the sense of death impending, not on that
instant, but within a very, very short distance indeed. In other words, the test is whether all hope
of life has been abandoned so that the person making the statement thinks that death must
follow”. Applying this principle to the facts, his Lordship held that the words “I shall go” should
not be taken alone ant the effect of the whole sentence was that she was under the hopeless
expectation of death.
An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude a
declaration on the ground of incompleteness. The statement was recorded by a doctor. It was
clear in all respects. To wind up the statement the doctor asked the injured if he had anything
else to say. He lapsed into unconsciousness without answering this question. The court held that
the statement was not incomplete. It was rightly admitted.

Dying declaration under clause (1) of s. 32

Anticipation of death not necessary

One of the most important departures from English law that the Evidence Act marks is that here
it is not necessary that the declarant should be under any expectation of death. If the declarant
has in fact died and the statement explains the circumstances surrounding his death, the
statement will be relevant even if no cause of death had arisen at the time of the making of the
statement.

The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of the
Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder and
sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased,
secondly, the statement of the deceased of his wife that he was going to the accused, thirdly, the
steel trunk was purchased by a Dhobie (washerman) for and on behalf of the accused. Some
other details about the arrival of the deceased at the accused’s house, discovery of blood-stained
clothes and transportation of the trunk of the station were also proved. The accused appealed to
the Privy Council on the grounds that the statement of the deceased to his wife that he was going
to the accused was wrongly admitted under S.32(1).

The court said, A variety of questions has been mooted in the Indian Courts as to the effect of
this section. It has been suggested that the statement making it must be at any rate near death,
that the “circumstances”can only include acts done when and where the death was caused….
Statements made by the deceased that he was proceeding to the spot where he was in fact killed,
or as to his reasons for so proceeding, or that he was going to meet a particular person or that he
had been invited by such person to meet him, would each to them be circumstances of the
transaction, and would be so whether the person was unknown, or was not the person accused.
Such a Statement might indeed be exculpatory of the person accused.

The Supreme Court has emphasised the need for effort by courts, as far as possible, to include a
statement within the scope of the S.32(1). Hence, statements as to any of the circumstances of
the transaction which resulted in the death would be included.

Statement of accused under S.162 Cr.P.C

But the statement of the accused to the police that the deceased arrived at his place was held to
be not relevant by virtue of Sec.162 of Cr.P.C. This section provides that a statement made by
any person to a police officer in the course of an investigation cannot be used against him in any
inquiry or trial.
Proximity of time between statement and death

There has to be proximate relationship between the statement and the circumstances of death. In
Rattan Singh v. H.P. the statement of a woman made before the occurrence in which she did that
the accused was standing near her with a gun in his hand and this fact being one of the
circumstances of the transaction was held to be admissible as a dying declaration being
proximate in point of time and space to the happening. Acceptance of Pakala ruling by Supeme
Court

The principles thus laid down relating to the relevancy of a dying declaration were accepted by
the Supreme Court in Kaushal Rao v. State of Bombay. There were two rival factions of
workers in a millarea in Nagpur. Rival factions even attacked each other with violence. In one
such violent attack one Baboo Lal was attacked each other with violence. In one such violent
attack one Baboo Lal was inflicted a number of wounds in a street at about 9 p.m. He was taken
to a hospital by his father and others reaching there at 9.25. On the way he told the party that he
was attacked by four persons with swords and spears two of whom he identified as Kaushal and
Tukaram. The doctor in attendance immediately questioned him and recorded his statement in
which he repeated the above two names. A sub-Inspector also questioned him and noted his
statement to the same effect. By 11.35 p.m. A magistrate also appeared and after the doctor had
certified that the injured was in a fit condition to make the statement, the magistrate recorded the
statement which was again to the same effect. He died the next morning.

On the basis of these declarations recorded in quick succession by independent and responsible
public servants and as corroborated by the fact that both the named persons were absconding
before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life
imprisonment. The High Court acquitted Tukaram altogether because of the confusion caused by
the fact that in the dying declaration he was described as a teli, whereas Tukaram present before
the court was a kohli and in the same locality there lived four persons bearing the same name
some of whom were telis. But the conviction of Kaushal was maintained and on appeal, the
Supreme Court also affirmed the conviction, did not consider it to be absolute rule of law that a
dying declaration must be corroborated by other evidence before it can be acted upon. The
learned judge had to face the following observation of the Supreme Court itself.

It is settled law that it is not safe to convict an accused person on the evidence furnished by a
dying declaration without further corroboration because such a statement is not made on oath and
is not subjected to cross examination and because the maker of it might be mentally and
physically in a sate of confusion.

Need for Corroboration

The learned judge referred to the circumstances which may detract from the value of a dying
declaration, such as the fact that it was not made at the earliest opportunity, or that the statement
was put into the mouth of the witness by interested parties or was the result of leading questions,
and added that subject to these qualifications “there is no absolute rule of law, or even a rule of
prudence, that a dying declaration unless corroborated by other independent evidence, is not fit
to be acted upon and made the basis of a conviction.
In P.V. Radhakrishna v. State of Karnataka, emphasing this point further still the Supreme
Court observed that a dying declaration can be used as a sole basis of conviction. A person on
death bed is in a position so solemn and serene that it is equal to the obligation under oath. For
this reason the requirement of oath and cross-examination are dispensed with. The
victim(declarant)being the only eye-witness, the exclusion of his declaration may defeat the ends
of justice. The court has to be on its guard and see for itself that the declaration is voluntary and
seems to reflect the truth.

Where there are more than one dying declaration

In Kishan Lal v. State of Rajasthan the oral dying declaration was made her(deceased) to her
father, uncle and grandfather. Names of the accused mentioned therein. However she could not
mention the name of accused in second dying declaration made before magistrate 5 days after on
the ground that she could not recognise any accused because of fire darkness coming to her eyes.
Second dying declaration not only giving to conflicting version but there was interse discrepancy
in deposition of witness given in support of dying declaration; it was held by Supreme Court that
the conviction based on such conflicting and discrepant dying declaration was liable to be set
aside.
Some General Propositions : Factors in reliability

The Court laid down the following general propositions :

1. There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated.
2. Each case must go by its own facts.
3. A dying declaration is not a weaker kind of evidence than any other piece of evidence.
4. A dying declaration which has been properly recorded by a competent magistrate, that
is to say, in for of questions and answers, and, as far as practicable in words of the maker
of declaration of reliable. In State of Karnataka v. Shariff, where the dying declaration
was not recorded in question-answer from, it was held that it could not be discarded for
that reason alone. A statement recorded in he narrative may be more natural because it
may give the version of the incident as perceived by the victim.
4. To test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity of the dying man of observation, for example, whether
there was sufficient light if the crime was committed at night; whether the capacity of the
declarant was not impaired at the time of the statement, that the statement has been
consistent throughout; that the statement has been made at the earliest opportunity and
was not the result of tutoring by interested parties.

The statement of the deceased in this case satisfied all these conditions and therefore, the
Supreme Court held that it was rightly acted upon by the High court in convicting the appellant.

Where for some unexplained reason the person who noted down (scribe) the statement was not
produced, the declaration was not accepted as an evidence.

Statement made to or implicating relatives

The Supreme Court laid down in a case that a dying declaration made to the relatives of the
deceased, when properly proved can also be trusted.

F.I.R. As dying declarations and statements recorded by police

Where an injured person lodged the F.I.R. And then died, it was held to be relevant as a dying
declaration. A declaration noted down by an Assistant Sub-Inspector even before any F.I.R. Was
lodged was held by the Supreme Court to be acceptable. In the circumstances of the case, the
court was not able to find any fault in the A.S.I. In not getting the statement recorded by a
magistrate. There was also no reason to doubt the correctness and authenticity of the dying
declaration. There is a clear provision in S. 162(2) of the Cr.P.C. Saving the validity of such
statements. Thus technically, a dying declaration recorded by police alone is relevant both under
Sec. 32(1) and by virtue of the saving of such statement under Sec. 162(2) of the Cr.P.C. but
even so the Supreme Court had laid down that it is better to leave such a statement out of
consideration unless the prosecution satisfies the court as to why it was not recorded by a
magistrate or a doctor.

In State of Karnataka v. Shariff, the Supreme Court observed that a dying declaration recorded
by police cannot be discarded on the ground alone. There is no requirement of law that a dying
declaration must necessarily made to a magistrate.

JUDGMENT OF COURTS OF JUSTICE WHEN RELEVANT UNDER LAW OF

EVIDENCE

Section 40 to 44 of the Indian Evidence Act, 1872 lays down provision relating to judgments of
the Court of Justice, when relevant. Sections 40 to 43 deal with the subject of relevancy of
judgments. Judgments are admissible as res judicata under section 40 and as relating to matters
of public nature under section 42. Judgments other than those mention in sections 40, 41 and 42
may be relevant under section 43 if their existence is a fact in issue or is relevant under some
other provision. Section 44 lays down not only a rule of law relating to evidence, but also a rule
of procedure. All the abovementioned sections have been discussed below.

PREVIOUS JUDGMENTS RELEVANT TO BAR A SECOND SUIT OR TRIAL (SECTION-

40):

A judgment which has the effect of res judicata is relevant in every case in which it has the
effect. Section 40 incorporates this principle. The principle is that where a cause of action has
been agitated before court of law between certain parties and the case has been decided, then
new action can be brought on the same cause of action and between the same parties, and if the
plaintiff proposes to trouble the defendant again with the same cause of action, the earlier
judgment is complete bar. Thus the earlier judgment will be relevant because it will have the
effect of preventing the court from taking cognizance of the case.

In P.G. Eshwarappa v. M. Rudrappa [(1996) 6 S.C.C. 96], it was held that the principles of
estoppel or res judicata do not apply when they would contravene some statutory direction or
prohibition. This is something which cannot be overridden or defeated by a previous judgment
between the parties.

RELEVANCIES OF CERTAIN JUDGMENTS IN PROBATE etc. JURISDICTION

(SECTION- 41):

According to B. Meenakshi Sundaram v. Kuttimalu (I.L.R. 1958 Ker. 9), a judgment in rem
has been defined to be a judgment of a court of competent jurisdiction determining the status of a
person or thing, or the disposition of a thing (as distinct from a particular interest in it) of a party
of the litigation. It is a kind of declaration about the status of a person e.g., that he is an
insolvent, and is effective against everybody whether he was a party to the proceeding or not.
That is why it will be relevant in every case or proceeding in which the solvency of person is in
question.

According to the section, a judgment in rem dealing with the status or legal character of a person
can be pronounced only by the courts exercising the following kinds of jurisdiction:

 PROBATE JURISDICTION
 MATRIMONIAL JURISDICTION
 ADMIRALTY JURISDICTION
 INSOLVENCY JURISDICTION

It is essential for a judgment under section 41 to be regarded as a judgment in rem that it should
either confer upon or take away from any person any legal character or it should declare the
person to be entitled to any such character, or to be entitled to any specific person, but
absolutely. The judgment is a conclusive proof of the fact that the legal character which it
confers accrued to the person concerned from the date on which the judgment came into
operation. Where the judgment declares a person to be entitled to legal character, it is conclusive
of the fact that the legal character accrued to the person at the time when the judgment came into
operation.

RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS OR DECREES OTHER THAN

THOSE MENTIONED IN SECTION 41 (SECTION- 42):

A judgment upon a matter of public nature, for example, a determination that a particular street is
a public highway, is relevant in every case proceeding in which that aspect of the property is
again question.

Judgments on such matters are relevant to every case or proceeding in which the matter is again
in question, but shall not be conclusive of the matter. It means that whatever any such judgment
is cited, the party affected by it may lead evidence to the contrary and show that not all the
information was presented before the court when the judgment was pronounced. For example, a
person is prosecuted for trespass upon a land and the complaint is dismissed, the court holding
that public has a right of way over the same land. Subsequently, the landlord prosecutes another
person for trespass over the same land. The earlier judgment will definitely be relevant, but will
not be conclusive of the fact that the right of way exists. This will enable the landlord to produce
further evidence in support of his case.

JUDGMENTS, etc. OTHER THAN THOSE MENTIONED IN SECTION 40 TO 42, WHEN

RELEVANT (SECTION- 43):

Evidence can be given of a judgment when the existence of the judgment is itself a fact in issue
or is fact otherwise relevant to the case. If, for example, a person is murdered in consequence of
a judgment, the judgment being a cause or motive of the murder will be a relevant fact under
section 7 and 8. Section 43 deals with this matter.

The illustration appended to the section amply show that the existence of a judgment may
become relevant under any of the provisions relating to relevancy running from section 6 to 55.
A judgment may, for example, be relevant as showing a state of mind; it may be useful for
overthrowing the defence of accident or may, in circumstances, constitute an evidence of
character. Where, for example, a person is prosecuted for receiving stolen property with
knowledge that it was stolen. A previous judgment convicting him of the same offence will be
useful for showing that he had the knowledge of the property in question being stolen. A
judgment may become the cause of or constitute the motive for a fact in issue and, therefore,
may be relevant for that reason.

In Rumi Dhar v. State of W.B.,(AIR 2009 S.C. 2195), a settlement in a civil proceeding for
recovery of a loan was held to be not of matter relevance in a subsequent criminal proceeding
involving the same matter.

FRAUD OR COLLUSION IN OBTAINING JUDGMENT, OR INCOMPETENCY OF

COURT MAY BE PROVED (SECTION- 44):

The existence of a judgment over a matter which is again in question is a satisfactory piece of
evidence, though, of course, nothing is said about its evidentiary value in the Evidence Act. The
only thing that the Act provides is that whenever a judgment is relevant by reason of any of the
exceptions, its value may be demolished by showing that it was delivered by a court of
incompetent jurisdiction or that it was obtained by fraud or collusion. This amounts to an indirect
assertion that unless the value of a judgment is so demolished, it is valuable as a piece of
evidence.

The value of a judgment can be attacked on three different grounds, namely, that,-

 The judgment was delivered by a court of incompetent jurisdiction, or

 It was obtained by collusion, or
 It was obtained by fraud.

EXPERT EVIDENCE AND RELEVANCY OF CHARACTER

Expert evidence and relevancy of character are dealt under section 45 to section 55 of Indian
Evidence Act.
 Expert Opinion

The courts have been accustomed to act on the opinion of experts from the early time. The
reason is obvious. There are many matters which require professional or specialised knowledge
which the court may not possess and me, therefore, rely on those who possess it. In Folokes v.
Chadd, [(1782) 3 Dough KB 157], Bank was erected for the purpose of preventing the sea
overflowing certain meadows and the question arose weather is contributed to the choking and
decay of a harbour. A celebrated engineer was allowed to express his opinion on the matter. Lord
Mansfield, C.J., proceeded as follows :

Mr. Smeaton (the engineer) is called. It is objected that Mr Smeaton is going to speak not as to
facts but as to opinion and that opinion, however, is deducted from facts which are not disputed
so the situation of banks, the course of Tides, and of winds and the shifting of sons and his
opinion deduced from all these factors that mathematically speaking, the bank may contribute to
the Mischief but not sensibly Mr Smeaton understands the construction of harbours, the causes
of the destruction and how remedied. In matters of science, no other witness can be called. Chief
Justice quoted “I cannot believe that where the question is whether a defect arises from a natural
or an artificial cause the opponents of men of Science and not received. Handwriting is proved
every day by opinion and for false evidence on such question a man may be inducted for
perjury.”

WHO IS AN EXPERT?

The section permits only the opinion of an expert to be cited in evidence. This requires
determination of the question as to who is an expert. The only guidance in the section is that he
should be a person, especially skilled on the matter. Does the only definition of an expert
available in the act is that he is a person especially skilled in the subject on which he testifies?
But the section does not refer to any particular attainment standard of study or experience which
would qualify a person to give evidence as an expert. Generally, the witness is considered as an
expert if he is skilled in any particular art, trade or profession and possessed of particular
knowledge concerning the same. It is the duty of the judge to decide whether the skill of any
person in the matter on which evidence of his opinion is offered is sufficient to entitle him to be
an expert.

In Forest Range Officer v. P. Mohammad Ali, [1994 AIR 120], it was held that expert opinion
is only the opinion evidence. It does not help the court in interpretation. The main opinion of an
expert cannot overwrite the positive evidence of the attesting witness. Expert opinion is not
necessarily binding on the court.

Section 45 – Opinions of Experts : When the court has to form an opinion upon a point of
foreign law or of science or art or has to identify of handwriting of finger Impressions, the
opinions upon that point of persons specially skilled in such foreign Law, Science or art or in
questions as to identify of handwriting or finger impression are relevant facts. Such persons are
called Experts.
Subjects on which experts can testify

The subjects on which an expert is competent to testify are mentioned in the section itself and
they are foreign law, matters of science, questions of art, identify of handwriting or of finger
Impressions.

Foreign Law

Foreign law means any law which is not in force in India the courts of the country may not be in
a position to appreciate the principles of a foreign law and therefore whenever a Court has to
decide a question of foreign law the court can seek the help of those who are experts on the
particular foreign law. In England, it can be proved by leading expert evidence.

Science or Art

Expert opinion is relevant to all questions on points of science or art. Science or art includes all
subjects on which a course of special study or experience is necessary to the formation of an
opinion. Field has quoted “These words are to be broadly construed, the term science not being
limited to higher Sciences and the term art not being limited to fine arts but having its original
sense of handicraft trade profession and skill in work which with the advance of culture has been
carried beyond the sphere of the common purpose of life into that of artistic and scientific
action.” To determine whether a particular matter is of a scientific nature or not the test to be
applied is whether the subject matter of enquiry is such that experienced persons are unlikely to
prove capable of forming a correct judgement without the assistance of experts.

Handwriting and Finger Impressions

Under section 45 of the Indian Evidence Act, an expert can depose to the identity of handwriting
between the questioned document and the document admitted or proved. A disputed handwriting
may be proved either by calling an expert or by examining a person acquainted with the
handwriting of the person by whom the questions document is alleged to have been written or a
comparison of the two under section 73. When the court has to decide upon the identity of the
handwriting of a certain person or The Identity of a certain person’s finger impression the court
may receive the evidence of a person who has acquired an expertise on the matter. About from
persons possessing professional qualification on the subject the court may receive the evidence
of a person who is otherwise acquainted with the subject. In R v. Silverlock, 1894 2 QB 766, the
court observed that a solicitor might be treated as an expert in handwriting even if he had
acquired his knowledge as an amateur. as to the reliability of such evidence the Supreme Court
has laid down and quite a few cases that the evidence of an expert as to handwriting is only in the
nature of an opinion and can rarely take the place of substantive evidence. It should be
corroborated either by clear direct evidence or by circumstantial evidence.

In the case of State of Maharashtra v. Sukhdeo Singh, 1992 AIR 2100, the Apex Court opined
that before a Court can act on the opinion evidence of a handwriting expert two things must be
proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted
handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and
dependable witness whose evidence inspires confidence.

The opinion of thumb impression expert is entitled to greater weightage than that of a
handwriting expert.

In R v Oakley, (1979) Crim LR 657 CA, a police officer who had attended a course, passed an
exam as an accident investigator and attended more than 400 accidents was entitled to give
expert evidence as to the cause of an accident.

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors.,(1999) 7 SCC 280, explained
the substance of expert opinion by stating that Section 45 of the Evidence Act which makes
opinion of experts admissible lays down, that, when the court has to form an opinion upon a
point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions,
the opinions upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in
order to bring the evidence of a witness as that of an expert, it has to be shown that he has made
a special study of the subject or acquired a special experience therein or in other words that he is
skilled and has adequate knowledge of the subject.

Value of Expert Opinion

The weight that ought to be attached to the opinion of an expert is a different matter from its
relevancy. the act only provides about the relevancy of expert opinion but gives no guidance as
to its value and store the value of Expert Opinion has to be viewed in the light of many adverse
factors. Firstly there is the danger of error or deliberate falsehood. these privileged persons might
be half blind, incompetent or even corrupt. Secondly is evidence after your opinion and human
judgement is fallible. Human knowledge is limited and imperfect. No man ever mastered all the
knowledge on any of the Sciences. Thirdly it must be borne in mind that an expert witness
however impartial he may wish to be is likely to be unconsciously predicted in favour of the side
which calls him. it is on the basis of these factors that it has been removed of an expert that the
witnesses now in worst repute are called expert witnesses that is witnesses retained and page to
support by their evidence a certain view on a scientific or technical question.

RELEVANCY OF CHARACTER

Civil Cases

Section 52 Lays down the broad general principle that the evidence of a party’s character cannot
be given for the purpose of showing that it renders the conduct imputed to him as probable or
improbable. does the general principle is that a party cannot give evidence office good character
for the purpose of showing that it is improbable that he should be guilty of the conduct imputed
to him.

Section 52 – In civil cases character to prove conduct imputed, irrelevant: in civil cases the fact
that the character of any person concerned as such as to rental probable improbable any conduct
imputed to him is irrelevant except in so far as such character appears from facts otherwise
relevant.

EXCEPTIONS

While this is a general principle, the exception will have to be admitted.

1. Character as affecting damages

The court is entitled to take note of the character of the plaintiff if it affects the amount of
compensation which should be awarded to him.

2. Where character is in issue

the ban imposed by section 54 upon the relevancy of the bad character of the accused is not
applicable where his character is itself a fact in issue

IN CRIMINAL CASES

Section 53 – In criminal cases previous good character relevant: in criminal proceedings the fact
that the person accused is of a good character is relevant.

Section 53 makes a categorical declaration that in criminal cases the fact that the person accused
is a good character is relevant. Thus every accused person is at liberty to give evidence of the
fact that he is a man of good character.

the history of the admission of evidence of good character As given in Stephen’s history of the
criminal law of England shows that such evidence does not stand on precisely the same plane as
that concerning the relevant facts going to prove or disprove the issue.

MEANING OF CHARACTER

The explanation to Section 55 gives the meaning of the expression character for the purposes of
all the sections related to the relevancy of character and the type of facts which can be used to
prove dad character.

Section 55 – character as affecting damages: in civil cases the facts that the character of any
person is such as to affect the amount of time it is which you ought to receive is relevant.

To prove good or bad character evidence can be given both of reputation and disposition. it can
be given of previous convictions and proof of bad character and it cannot be given of particular
facts but only of general reputation and general disposition. Evidence of a person’s good or bad
character can be given only by those who know him and have had dealings with him for his
character where others who know him and are in a position to judge his worth.
Evidence cannot be given of particular acts by which reputation and disposition were shown and
circumstances would give rise to indeterminable issues which would have but a very remote
bearing on the question in dispute.

The way and the only way the law allows of your getting and the disposition and tendency office
mind is by evidence as to his general character founded upon the knowledge of those who know
anything about him and his general conduct.

FACTS WHICH NEED NOT BE PROVED – PROVISIONS AND CASE LAWS

Section 56 to 58 of the Indian Evidence Act, 1872 lays down provision relating to facts which
need not be proved. Here are the facts which should not be proved in any court of law.

1. FACTS JUDICIALLY NOTICEABLE NEED NOT BE PROVED (SECTION- 56):

Section 56 declares that “no fact of which the court will take judicial notice need be proved”.
Thus, if the court is bound to take notice of a particular fact the parties are spared of the burden
of proving that fact. For example, the court is bound to know the law of the land.

In Managing Committee of Raja Sidheshwar High School v. State of Bihar (AIR 1996 Pat.
19.), it was held that the court can take judicial notice of the fact that the system of education in
the State has virtually crumbled and serious allegations are made frequently about the manner in
which the system is being worked.

2.FACTS OF WHICH COURT MUST TAKE JUDICIAL NOTICE (SECTION- 57):

Introduction: The Provision is supplemented by two declarations at the end of the section. One
of them says that in all these matters, and also on matters of public history, literature, science or
art, the court may consult the appropriate books or documents of reference. The second
declaration is that if a party calls upon the court to take judicial notice of any fact, it may refuse
to do so unless and until such person produces any such book or document as the court may
consider necessary to enable it to take judicial notice. It means that the party who desires the
court to take judicial notice of a fact has to produce before the court the reference material.
Where, for example, a party request the court to take judicial notice of the proceedings of the
legislatures, he should produce before the court the journal of those bodies, or their published
acts or abstracts, or copies purported to be printed by order of the government concerned. In
other words, the source material in which the judicially noticeable fact is recorded will have to
be produced before the court.

The only guiding principle, apart from statute, as to judicial notice which emerges from the
various recorded cases, appears to be that wherever a fact is so generally known that every
ordinary person may be reasonably presumed to be aware of it, the court notices it either
simpliciter if it is at once satisfied of the fact without more, or after such information or
investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
The basic essential is that the fact is to be of a class that is so generally known to give rise to the
presumption that all persons are aware of it. This excludes from the operation of judicial notice
what is not ‘general’ but ‘particular’ facts.

Constitutional, Political and Administrative Matters: Judicial notice of a fact means that the
court is supposed to have knowledge of the fact and the judge may rely upon his personal
knowledge for deciding the case though it is not evidence in the real sense. Thus, where a judge
recognized the signature of the minister for defence saying that he knew the Minister and had
seen his signature as such Minister on many papers which came to him.

Law, Regulations and General Customs: The Courts may also take notice of regulations, bye-
laws and other forms of sub-legislation. “Regulation made under the Act became part of the law
and a tribunal takes judicial notice of the law, being at liberty to refresh memory by referring to
the text of the regulations which, if there is any doubt about it, can be established by reference to
a copy printed by the government printer. In Union of India v. Nihar Kanta Sen (AIR 1987 SC
1713), the Supreme Court has pointed out that the court should have taken judicial notice of the
fact that a notification had been issued concerning the land of an intermediary.

The courts also take judicial notice of general customs. In Jiwan Singh v. Des Raj (AIR 1982
Punj. [N.O.C] 306), it was held that when a general usage has been judicially ascertained and
established, it becomes a part of the law merchant which courts of justice are bound to know and
recognize.

Matters of common knowledge: The courts also take judicial notice of matters of common
knowledge. For example, the courts take judicial notice of the meaning of ordinary terms being a
matter of common knowledge, and evidence is not admissible to expound their meaning, through
the court, in addition to suing its own knowledge, may refer to standard authors and authoritative
dictionaries in order to obtain assistance in interpretation [Camedan Marquis v. Inland
Revenue Commissioners, (1914) 1 K.B. 641].

Judicial notice of the value of service of the housewife: A housewife died in a motor vehicle
accident. The court said that judicial notice could be taken if services rendered by a housewife to
her family. Rs. 1,500/- was taken to be the value of such services. The question of deducting 1/3
of the amount did not arise. Award of compensation of Rs. 2,95,000 was held to be proper
(United Indian Insurance Co. Ltd. v. Virambhai Ranchodbhai Patel, AIR 2007 Guj. 119.).

Judicial notice, the fact of marriage in Army record: The fact of the marriage of an Army
officer which was duly entered by the Army in its record was allowed to be tendered in evidence
to prove the factum of marriage (Ajay Singh v. Tikka Brijendra Singh, AIR 2007 H.P. 52).

3.FACTS ADMITTED NEED NOT BE PROVED (SECTION- 58):

Another set of facts which need not be proved are facts which have been admitted. “Facts
admitted need not be proved”. Section 58 lays down this principle. Averments made in a petition
which have not been controverted by the respondent carry the effect of a fact admitted.
In Thimmappa Rai v. Ramanna Rai, [(2007) 14 S.C.C. 63: (2007) CHN 144], an admission
made by a party to a suit in an earlier proceeding is admissible against him in a subsequent suit
also. Once a party to a suit makes an admission, it can be taken in an aid for determination of
issues having regard to the provision of Section 58.

There are two systems of holding a trial, one is the inquisitorial system in which the judge also
acts as an investigator of facts; he can neither advice any party nor ask for the production of any
evidence. He gives his judgment on the basis of the contentions argues before him, that is to say,
according to the issues between the parties. Facts which have been admitted on both sides are not
an issue and, therefore, no proof needs to be offered of them.

The effect of admissions has already been noted before. It is that an admission does not
constitute conclusive evidence of the fact admitted, though it may operate as an estoppel.
Therefore, section 58 also provides that the court may in its discretion require some other proof
of an admitted fact. But the discretion is that of the court. The section does not bar the court from
acting on the admission itself and without requiring any further proof.

ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT, 1872

The article broadly discusses the clauses in relation to Electronic Evidence under the Indian
Evidence Act, 1872. Today, virtually every crime has in it some or the other kind of electronic
component. The Section 65A and 65B of Indian Evidence Act have defined the Electronic
Evidence and were added to the Indian Evidence Act in the year 2000 with the advent of the
Information and Technology Act. The article contains the interpretation of the existing laws and
numerous case laws have been discussed which depicts the evolution of the perception of the
admissibility of electronic evidence.

Introduction

Electronic evidence has lately become the most important evidence. Information Technology has
caused a paradigm shift in the way individuals and organizations communicate, create, collect,
share and store data and information. With the help of mobile phones, people are daily
documenting their lives which results in an expansive collection of records that may become
‘evidence’ in the forthcoming cases. Electronic documents include photographs, video, audio,
comments, emails, and different other social media records. This has enhanced the way things
proceed in the court and with this, the traditional way of eyewitness testimony is highly
corroborated with this digital/ electronic evidence.

The Section 65A and 65B have been added to the Indian Evidence Act, 1872 by the Information
Technology Act, 2000. The Government of India enacted its Information Technology Act 2000
with the objectives stating officially as: “to provide legal recognition for transactions carried
out by means of electronic data interchange and other means of electronic communication,
commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-
based methods of communication and storage of information, to facilitate electronic filing of
documents with the Government agencies and further to amend the Indian Penal Code, the
Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of
India Act, 1934 and for matters connected therewith or incidental thereto.” The main aim of the
said legislation was to provide legal recognition to electronic documents, electronic signatures,
other offences and contraventions and dispensation of justice for cyber crimes.

Justice P.N Bhagwati held in the case of National Textile Workers’ Union v P.R.
Ramakrishnan (1983) 1 SCC 228, held that “law cannot stand still and it must change with the
changing social concepts and values. If the law fails to respond to the needs of changing society,
then it will stifle the growth of the society and choke its progress or if the society is vigorous
enough, it will cast away the law which stands in the way of its growth.” Therefore, the changing
circumstances today where virtually every crime has an electronic component has had a
considerable effect in the law of the land and to respond to the current needs the laws have been
amended to cater or facilitate its larger goals i.e dispensation of justice.

The trend of changing laws relating to evidence can be seen, for example in the case, State v S.J.
Choudhary (1996) 4 SCC 567, It was held that the Evidence Act was an ongoing Act and the
word “handwriting” in Section 45 of that Act was construed to include “typewriting” and on the
same principle, courts have interpreted, over a period of time, various terms and phrases. For
example, “telegraph” to include “telephone”; “banker’s books” to include “microfilm”; “to take
note” to include “use of tape recorder”; “documents” to include “computer databases”.

Types of Evidence Under Indian Evidence Act, 1872

The law of evidence has long been guided by the rule of “best evidence” which is considered to
have two basic paradigms – avoidance of hearsay and production of primary evidence.
Considering this statement, it is clear that evidence has been classified under two heads i.e
Primary Evidence (Section 62 of Indian Evidence Act) and Secondary Evidence (Section 63 of
Indian Evidence Act).

Primary evidence means the original document being itself produced for inspection by the court.
A document has been defined as any matter which has expressed or described upon any
substance by means of letters, marks or figures for the purpose of recording that matter. Thus, a
certificate of age, an inscription on a stone plaque, a caricature or photograph, a map, are all
documents of various forms. If a copy is made of such a document, it will not be primary
evidence since it is not the original. Copies of the original document are considered secondary
evidence. Secondary evidence is acceptable in court only under certain conditions, such as when
the original is in the possession of the adversary or when the original is destroyed or lost, or
when the original is of such a nature that it cannot be easily moved.

Section 65A & 65B

Section 65A lays down that the contents of electronic records may be proved in accordance with
the provisions of Section 65B. Section 65B (Admissibility of electronic records) states that any
information contained in electronic records which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a computer shall be also deemed to be a
document if the conditions mentioned in this section are satisfied in relation to the information
and computer in question and shall be admissible in any proceedings, without any further proof
or production of the original.

The conditions further laid down under Section 65 B are as follows:

 The information produced by the computer during the period over which the computer
was used over a regular period of time to store or process information or for any other
activity carried out regularly over that period of time by the person having lawful control
over the use of the device.
 The said information was regularly fed into the computer in the ordinary course.
 The computer must operate properly during that period of time when the information was
being stored and if not working properly then the same must not have any effect on the
electronic record thus stored.
 The information contained in the electronic record thus reproduced must be of the nature
of such kind that it was fed into the computer in the ordinary course of nature.

Therefore in simple words, Section 65B provides that electronic records shall be considered
documents, thereby making it primary evidence, if it satisfies the conditions mentioned above. It
further provides that all computer output shall be considered as being produced by the computer
itself, whether it was produced directly or indirectly, whether with human intervention or
without. This provision does away with the concept of computer evidence being hearsay. As a
computer output is a deemed document for the purpose of proof. Further, Section 65B (3)
maintains that where, over any period of time, the information was processed or fed into the
computer on interlinked computers or one computer after the other in succession all the
computers so used shall be treated as one single computer.

A “computer” has been defined in the clause (i) of Section 2(1) of the IT Act and it states that,
“computer means any electronic, magnetic, optical or other high-speed data processing device or
system which performs logical, arithmetic and memory functions by manipulations of electronic,
magnetic or optical impulses, and includes all input, output, processing, storage, computer
software or communication facilities which are connected or related to the computer in a
computer system or computer network.” In the case, Syed Asifuddin v. The State of Andhra
Pradesh 2006 (1) ALD Cri 96, 2005 CriLJ 4314 decided on 29th July, 2005 by the AP High
Court wherein it was stated that when seen the definition of a “computer” in the light of clause
(i) of Section 2(1) of IT Act, it is clear that a cell phone is a computer which is programmed to
do among others the function of receiving digital audio signals, convert it into analog audio
signal and also send analog audio signals in a digital form externally by wireless technology.

The Changing Scenario About Video-Conferencing

In Basavraj R. Patil Vs. State of Karnataka (2000) 8 SCC 740, the question was whether an
accused needs to be physically present in the court to answer the question put to him by court
whilst recording his statement under Section 313, Cr.P.C. It was held that the section has to be
considered in the light of revolutionary changes in the technology of communication and
transmission and the marked improvement in facilities for legal aid in the country. It was not
necessary that in all the cases it is necessary for the accused to be present in the court physician
to answer the questions put forth by the court. In the said judgment itself, the court observed that
video-conferencing is an advancement in science and technology which permits one to see, hear
and talk with someone far away, with the same facility and ease as if he is present before you i.e.
in your presence. This court said is not virtual reality but actual reality. The decision of the court
was that, under Section 3 of the Indian Evidence Act, evidence can be both oral and documentary
and electronic records can be produced as evidence. This means that the evidence, even in
criminal matters, can also be by way of electronic records. This would include video
conferencing.

One of the firsts of its kind, in the landmark judgment (State of Maharashtra Vs. Praful B. Desai
(2003) 4 SCC 601) where the court answered the question as to whether in a criminal trial,
evidence can be recorded via ‘video conferencing’. The Supreme Court cited the infamous
judgment of the US Supreme Court (Maryland v Santra Aun Craig [497 US 836 (1990)])
where it was held that the recording of evidence by video-conferencing was not a violation of the
confrontation clause. It was held that video-conferencing could be resorted to for the purpose of
taking evidence of a witness. In this case, one party was seeking directions of the court to take
evidence of a witness residing in the USA. The SC stated that such recording of evidence
satisfies Section 273 of the Code of Civil Procedure that evidence is recorded in the presence of
the accused. In explaining the benefits of video-conferencing the court observed that “In fact, the
Accused may be able to see the witness better than he may have been able to if he was sitting in
the dock in a crowded Courtroom. They can observe his/her demeanour. In fact, the facility to
playback would enable better observation of demeanour. They can hear and rehear the deposition
of the witness.”

Section 65B(4) [Admissibility of Electronic Evidence]

Section 65B (4) talks about a certificate identifying the electronic records containing the
statement and describing the manner in which it was produced by a computer and satisfying the
conditions mentioned above and signed by a person occupying a responsible official position in
relation to the operation of the relevant device or management of its relevant activities, shall be
the evidence, of any matter stated in the certificate, it shall be sufficient for the matter to be
stated to the best of the knowledge and belief of the person stating.

In State v. Navjyot Sandhu (2005) 11 SCC 600, the Supreme Court held that merely because a
certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case,
does not mean that secondary evidence cannot be given even if the law permits such evidence to
be given in the circumstances mentioned in the relevant provisions, namely Section 63 and 65 i.e
no bar in adducing secondary evidence of an electronic record under the said section (63 & 65).
This was overruled by the judgment in Anvar P.V. v. P.K. Basheer and Others (2014) 10 SCC
473, delivered by a Three-Judge Bench, it was observed that an electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements under Section 65B
are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the
certificate in terms of Section 65B obtained at the time of taking the document, without which,
the secondary evidence pertaining to that electronic record, is inadmissible.
In a very recent judgment, the Supreme Court of India clarified its position relating to this law
i.e Shafi Mohammad Vs. The State of Himachal Pradesh SLP (Crl.) No. 2302 of 2017, has
rationalized the law relating to the admissibility of the electronic evidence particularly in the
view of the provision of Sec 65B of the Indian Evidence Act. Section 54-A of the Cr.P.C.
provides for videography of the identification process and the proviso to Section 164(1) Cr.P.C.
provide for audio-video recording of confession or statement under the said provision. It was
held that Section 65B (4) of the Indian Evidence Act, is a procedural provision intended to
supplement the law and if the electronic evidence is “authentic and relevant” the same can
certainly be admitted, subject to the satisfaction of the court and it may depend on situation such
as “whether the person producing such evidence is in a position to furnish certificate” under
Section 65B (4). In simple word, if a person is not in a position to produce such certificate signed
by a person occupying a responsible position in relation to the operation of the relevant device or
management of the relevant activities, in such situation Section 65B (4) should not be applied as,
it will be a denial of justice. The requirement of a certificate is not always mandatory.

The Supreme Court also clarified the legal position on the subject on the admissibility of the
electronic evidence, holding that a party who is not in possession of device from which the
document is produced, such party cannot be required to produce a certificate under Section 65B
(4) of the Indian Evidence Act.

Transcription of Recorded Conversation

In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke MANU/ SC/ 0040/ 2015,
relying upon the judgement of Anvar P.V. supra, while considering the admissibility of
transcription of recorded conversation in a case where the recording has been translated, the
Supreme Court held that as the voice recorder had itself not subjected to analysis, there is no
point in placing reliance on the translated version. Without a source, there is no authenticity for
the translation and it was held that ‘source’ and ‘authenticity’ are the two key factors for
electronic evidence.

The Future of Electronic Evidence

The courts have by and large maintained that for the evidence to be admissible, it must be
authenticated. The foundations for digital evidence are based on established principles of
authentication and admissibility that originated with the use of “paper” evidence. The five
separate foundations are, relevance, authenticity, hearsay, best evidence, the probative value
must outweigh any prejudicial effect. The nature of digital evidence has been changing over time
as digital information now can be created easily and without any verifiable record of who did so
and also has the scope of changes without detection. There has also been reliance on
corroboration of this electronic evidence through a combination of witness testimony or
documentary physical evidence to determine the accuracy of the same. The budding area of
development under the Indian Criminal Law system is the area of digital forensics which has
been successful in supplementing the electronic evidence with recovery and investigation of
material found in digital devices.
In India, all electronic records are now considered to be documents, thus making them primary
evidence. The admissibility of the secondary electronic evidence has to be adjudged within the
parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent
judgment of the Apex Court and various other High Courts as discussed above. These changes in
the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic
evidence, albeit certain precautions still being necessary. However, technology has itself
provided answers to problems raised by it, and computer forensics ensure that manipulations in
electronic evidence show up clearly in the record. However, there are a few gaps still unresolved
but this area of law (Electronic Evidence) is yet to see more changes with upcoming events and
technological changes.

DOCUMENTARY EVIDENCE AND PRESUMPTIONS AS TO DOCUMENTS

As per section 3 of the Indian Evidence Act, ‘all documents produced for the inspection of the
court; such documents are called documentary evidence.’ These also include electronic records
and Chapter V of the Indian Evidence act deals with documentary evidence and presumptions
regarding them.

DOCUMENTARY EVIDENCE

Section 61

This section states that if a document is produced before a court, it may either be produced by
primary evidence or by secondary evidence.

Section 62

This section defines primary evidence whereas; section 63 deals with secondary evidence.
Primary evidence means that the original document is itself presented before the court. If the
document is executed in several parts, each part is primary evidence of the document and where
a document is executed in counterparts, each counterpart is primary evidence against the party
signing it. In the case of lithography or photography, or where a number of documents are made
from one uniform process, each serves as primary evidence as to the contents of the document.

Section 63

Secondary evidence includes:

 Certified copies of the original document.

 Copies made by mechanical processes.
 Copies made from or compared with the original.
 Counterpart of a document is secondary evidence against the party who did not sign it.
 Oral account of the contents of the document by a person who has himself seen it.

The list is not exhaustive and all the secondary evidence stand equal in ranking, i.e., it is not
required that the evidence of succeeding category can only be given when the preceding category
is not available; the rule is that if the original is not available, its certified copies can be
produced.

How are Documents to be proved?

SECTION 64 provides that documents must be proved by primary evidence except in the cases
hereinafter mentioned, i.e., the cases provided in section 65.

SECTION 65 provides when secondary evidence can be given [clauses (a) to (g)]:

 When the original is shown or appears to be in the possession of someone against whom
it is to be produced or who is out of reach or not subject to the court or is not legally
bound to produce it or if he is, does not produce it to the court even after being sent a
notice.
 When the existence, conditions or content of the document have been proved to be
admitted in writing by the party against whom it will be produced or by his
representative.
 When the original is destroyed or loss or for some reason, other than party’s own neglect,
it cannot be produced before the court in reasonable time.
 If the documents are bulky and cannot be moved.
 When the original is a public document.
 When the original’s certified copies can be given as evidence, as provided under evidence
law or any other law of the country.
 When the original consists of a lot of accounts or documents which cannot be
conveniently examined by the court and the fact to be provided is a general result of the
whole collection.

After meeting the necessary circumstances, if secondary evidence has been admitted by the court
without any objection by the other party, the other party cannot object over it at a later stage.
In Ranvir Singh v UoI (AIR 2005 SC 3467), Xerox copies of sale deeds were marked as the
exhibit without any objection, the Supreme Court did not permit any objections to it, at a later
stage.

SECTION 65A says that the contents of electronic records may be proved in accordance with
the provisions of SECTION 65B:

 The computer output containing the information is produced by the computer which was
used to process or store the information in the regular course of action by a person having
lawful control over the use of a computer.
 The information is of the kind which was regularly fed into the computer in the ordinary
course of activities
 The computer must have been operating properly when the record in question was fed to
it.
 The information in the record was derived or reproduced from the information fed into
the computer in the ordinary course of activities.
Here, a computer output is anything that is printed on a paper, stored, recorded or copied to a
computer. If the information was processed or fed to a number of inter-linked computers or to
successive computers or a combination of both, they shall be treated as a single
computer [Section 65B (3)]. The record has to be produced with a certificate explaining the
contents and the manner in which it was produced and should be signed by a person occupying a
position in relation to the management of the device [Section 65B (4)].

Section 66

As per section 65 (a), if a person does not produce the required document, even on notice,
secondary evidence regarding the document becomes admissible. There are, however, certain
cases where secondary evidence can be given without notice:

 When the document is itself a notice.

 When the nature of the case is such that the party in possession is required to produce it.
 When it is clear that the party has obtained the original document with fraud or force.
 When the adverse party or his agent has the original in court.
 When the adverse party has admitted that the original is lost.
 When the person in possession is out of reach or not subject to the court.

In Doed Thomson v Hodgson (1860, 9 LJQB 327), the learned judge held that when demanded,
the opposite party fails to produce the original and secondary evidence has been submitted, the
opposite party cannot submit the original as evidence, later.

Proof of Signature

SECTION 67 says that if it is alleged that a document is signed or written, wholly or partly, by a
person, the same has to be proved by the party alleging it.

SECTION 67A states that if it is alleged, that a subscriber’s electronic signature is affixed to an
electronic record, the same shall be proved by the party alleging it.

Section 68

If a document is required by law to be attested, it shall not be used as evidence until one attesting
witness, at least, has been called for the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court and capable of giving evidence. Provided, it
shall not be necessary to call a witness in proof of execution of a document, not being a will,
which has been registered as per the Indian registration act, unless, the executor specifically
denies it.

SECTION 69 provides that if none of the witnesses is available or if the document was executed
in the United Kingdom, it must be proved that the executor’s and one of the attesting witnesses’
sign is in their own handwriting. In Babu Singh v Ram Sahai (AIR 2008 SC 3485), only the
counsel of the party stated that the witness had been won over by the other side and no other
proof as to whether the party took steps to compel the witness for attendance was shown. The
Supreme Court did not consider it to obtain the benefit of relaxation of Section69.

Section 70

It says that when an executant himself admits the execution of the document, there is no need to
call for an attesting witness.

Section 71

If the attesting witness denies or does not remember execution of the document, the document
can be proven by other methods.

Section 72

It states that an attested document which was not required by law to be attested shall be proved
as it was not attested.

Section 73

In order to ascertain whether a sign, writing or seal was made by a person, the court may
compare it with a sign, writing or seal proved to be made by that person. The court may also
direct any person present in the court to write any words or figures for the purpose of this section
and this section also applies to fingerprints.

Section 73A

To prove a digital signature, the court may direct the person, by whom it purports to be made, or
the controller or the certifying authority to produce the digital signature certificate. It may also
direct any other person to apply the public key listed in the certificate and verify the digital
signature.

PUBLIC DOCUMENTS AND THEIR PROOF

Section 74

This section defines public documents as documents forming the acts or record of the acts:

 Of the sovereign authority;

 Of official bodies and tribunal;
 Of public officers, legislative, judicial and executive, of India or of a commonwealth or
of a foreign country.
 By clause (2), public records kept in any State of private documents, such as,
memorandum of article of a company with the Registrar of companies.
Section 75

This section defines private documents as those which are not public documents.

Section 76

This section defines certified copies of a public document. When, on being asked by a competent
person who has paid the legal fees, a public officer, in custody of the required public document,
provides the person with a certified copy of it, such copies so certified will be called certified
copies. If the law requires the officer to use his seal, the copy will have to be sealed.

Section 77

This section states that the certified copies may be produced as proof of the contents of the
public document or a part of them of which they purport to be copies.

Section 78

This section provides for proof of other public documents. For acts, order or notifications by
central or state government, it should be certified by the respective head of the department. For
legislature proceedings, proof by their journal or by published acts or abstracts. For the
municipalities, the copy should be certified by the legal keeper. In the case of public documents
of foreign countries, by the original or it should either be signed by a legal keeper, or an Indian
diplomatic agent or an officer having legal custody of the original document.

PRESUMPTIONS AS TO DOCUMENT

Section 79

This section states that the court shall presume a document to be genuine if it is a certificate or a
certified copy. Also, any document, which is by law, declared to be admissible as evidence and
has been certified by an officer of the central or the state government or of Jammu and Kashmir
and is authorized by the centre. Provided, that the document is executed in the form as prescribed
by the law.

Section 80

This section states that when a person has appeared before a court and has recorded a testimony
or confession and his statement being relevant in another case, a certified copy is produced; the
court shall presume it to be genuine.
Section 81

Under this section, official gazettes, newspapers or journals and copies of the acts of parliament
are presumed to be genuine. In State of Rajasthan v UoI (1977, 3 SCC 592), the Supreme
Court held that news reports do not constitute admissible evidence of their truth.

Section 81A

The court presumes the genuineness of any electronic record purporting to be the official gazette
or any other record directed by law to be kept by any person, in a prescribed form and which is
produced from proper custody.

Section 82

When any document is admissible by any court of England or Ireland for any particular purpose
without proving the sign or stamp or seal authenticating it, the same is admissible for the same
purpose, in India and is deemed to be genuine.

Section 83

The Court presumes that map or plans purporting to be made by the Central or any State
Government, are accurate; but maps or plans made for the purposes of any cause must be proved
to be accurate.

Section 84

The court presumes every book published or printed under the authority of the government of
any country to be genuine which lay down the laws of that country or the reports of the decisions
of the court of such country.

Section 85

A power of attorney, executed and authorized by a Notary, or any court, Judge Magistrate,
Indian Consul or Vice Consul, or representative of the Central Government is presumed to be
genuine.

Section 85A

The court shall presume that every electronic agreement concluded by affixing electronic
signatures of the parties shall be genuine.

Section 85B

The court presumes electronic records to be genuine and electronic signatures to be made by the
subscriber with the intention of approving electronic record until the contrary is provided.
Section 85C

The court presumes that the information listed in an electronic signature certificate is correct,
except for the subscriber information, if the certificate was accepted by the subscriber.

Section 86

In this section, the court is given a judicial discretion to presume that certified copies of foreign
judicial records are genuine.

Section 87

The court may presume that the information provided through books, or maps or charts to prove
some fact in issue is genuine and is written or made by the author so named and published by the
publication so mentioned.

Section 88

This section is a presumption as to the telegraphic message. The court may presume that the
message sent to the post office was the message forwarded through telegram and it was received
by the person who was purported to receive it.

Section 88A

The court may presume that an electronic message forwarded by the originator through an
electronic mail server to the addressee corresponds with the message as fed into his computer for
transmission. In both, section 88 & 88A, the court cannot make a presumption as to the person
by whom such message was delivered.

Section 89

It is a compulsory presumption on behalf of the court that a document called for and not
produced after a notice for production, was attested, stamped and executed in the manner
required by the law.

Section 90

The court may presume a document, which is thirty years old and is produced from custody
which appears to be proper to be genuine. The date on the evidence is the prima facie evidence
of its age and the parties are not required to prove the age of the evidence (Anderson v Weston,
1840 9 LJCP 194).
MISCELLANEOUS PRESUMPTIONS

It is presumed that if a document is altered, it was made before its execution, whereas in case of
a will, it is altered after its execution.

SECTION 90A provides that a court shall presume any electronic record, which is five years old
and is produced from proper custody to be genuine.

BURDEN OF PROOF AND PRESUMPTIONS UNDER LAW OF EVIDENCE

In a legal proceeding, the question as to which out of the two parties has to prove a fact is
answered with the question, on which party does the burden of proof lie. The court does not
demand proof of self-evident facts and also holds a presumption of continuity of things until
something contrary is provided. Chapter VII of part III of the Evidence law deals with, on which
party does the burden of proof lie and presumptions.

BURDEN OF PROOF

Section 101

From the point of view of the burden of proof, facts can be placed in two categories: those which
affirm a fact and those which deny it. According to section 101 of the Indian Evidence Act 1872,
the party who asserts the affirmative of an issue, to make the court give a judgment on the basis
of those facts, carries the burden of proof to prove them; it is easier to prove the affirmative than
the negative. The affirmative in issue should not be in form or grammar but in substance.

The following was observed by the Supreme Court in State of Maharashtra v Vasudeo
Ramchandra Kaidalwar (1981 3 SCC 199): The expression ‘burden of proof’ has two
meanings, legal burden and evidential burden. In a criminal trial, the accused is considered to be
innocent until proven guilty and the prosecution carries the burden to prove his guilt. This burden
to prove everything essential against the accused is the legal burden and it never shifts.
Although, sometimes, the law may require the accused to prove some fact in issue but it is not as
onerous as what the prosecution carries.

Section 102

This section tries to locate the party on which the burden of proof lies. It says that the burden
shall lie on the party which shall fail if no evidence were given from either side. Hence, this
section focuses on the evidential burden or the ‘onus of proof,’ while section 101 deals with the
legal burden or the burden of proof relating to law or procedure.

The illustration (b) to the section makes it clearer: ‘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 the above illustration, there was no legal burden to prove that the bond was genuine but it is
obtained by fraud, an evidential burden (or onus), was on B, who asserted it.

Section 103

This section states that the burden of proof, regarding any particular fact, shall lie on that person
who wants the court to believe in its existence, unless, the law requires some particular person to
prove that fact. This section broadly lays down that whoever asserts something in a court, has to
prove it. Illustration: ‘A’ prosecutes ‘B’ for theft, and wishes the court to believe that B admitted
the theft to ‘C.’ A must prove the admission. B wishes the court to believe that, at the time in
question, he was elsewhere. He must prove it.

Section 104

This section states that when the admissibility of one fact depends on another fact, the party who
wants to admit such fact must prove the other fact on which admissibility depends. Illustration
(a) to this section makes it clear: ‘A’ wishes to prove a dying declaration by ‘B.’ A must prove
B’s death.

Section 105

This section only applies to criminal cases. The preceding sections applied to civil, as well as
criminal cases. If an accused has been established to be guilty of an offence and he takes the
defence of any of the general exceptions mentioned in the Indian Penal Code, 1860 or any other
defence provided in any act within which the offence committed comes under, he has to prove it.

In the leading case of K M Nanavati v State of Maharashtra (AIR 1962 SC 605), a naval
officer was held guilty for murdering his wife’s paramour. The accused could not prove that he
fired the shots accidentally or in self-defence.

In Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Supreme Court held that it is the duty
of the prosecution to establish, beyond reasonable doubt that the accused committed the offence.
If the accused pleads insanity, it is his duty to prove so and his burden of proof is not as high as
that of the prosecution. If the evidence provided by the accused does not create an absolute
doubt, but even a reasonable one, regarding the ingredients of an offence, he could be acquitted.

Section 106

It states if any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him. For example, when a person is charged with travelling without a ticket, the
burden lies on him to prove it as the fact that he bought a ticket is only known to him. The
principle behind this section is an application of the maxim, res ipsa loquitur.
SURVIVORSHIP & DEATH

Section 107

This section lays down a presumption that a man would be considered alive, up to 30 years, after
he was last seen or heard of. This shall be presumed if the question in issue is whether a man is
alive or dead and the burden of proving that the man is dead is on the person affirming it.

Section 108

This section states that if a person who has disappeared and has been unheard of for seven years
by those who would naturally have heard of him, if he were alive, that person would be
presumed to be dead. This presumption arises when a question of him being alive or dead arises
in the court. Hence, if the court adopts the presumption, the party who claims that the person is
alive has to prove it. It is a simple presumption of death and not the time of death.

In Chard v Chard (1956 P239: 1955 3 WLR 954), a man got married in 1909. He last heard of
his wife in 1917 and remarried in 1933, and subsequently filed a petition for a declaration that
the marriage of 1933 was a nullity. The court held that the presumption of her death was not
proven as any evidence of the condition of her health or those, who would have naturally heard
of her, were not given and therefore, the marriage of 1933 was a nullity.

Section 109

When a question arises as to whether certain persons are partners, landlord and tenant or
principal and agent and it has been shown that they have been acting as such; the court presumes
them to be so related. If a person denies the relationship or affirms that the same has been ceased,
the burden of proof to prove that they were never related or have ceased to relate lies on him.
Hence, the court presumes the existing status quo or in the continuity of things.

Section 110

This section simply states that if the question is whether a person is the owner of anything of
which he is shown to be in possession, the burden of proving that he is not the owner is on the
person affirming that he is not the owner.

Section 111

This section states that if a person enjoys the active confidence of the other, he must act in good
faith to the other and the burden lies upon him to prove that he did act in good faith. Illustration
(b) to the section makes it clearer: The good faith of a sale by a son just come of age to a father is
in question in a suit brought by the son. The burden of proving the good faith of the transaction is
on the father.
Section 111 A

This section makes the court presume that a person is liable for disturbing public order and peace
of an area declared to be a disturbed area if he has been guilty of certain offences in the past.
These offences include the offences themselves or criminal conspiracy or attempt to commit or
their abatement. They include sections 121, 121A, 122 and 123 of the Indian penal code.

Section 112

This section deals with the legitimacy of a child. The essentials of this section:

 The child should have been born during the continuance of a valid marriage or within 280
days of a dissolved valid marriage, the mother remaining unmarried.
 The parties to the marriage should have had access to each other.

A marriage presumed from living together for a long period of time is a valid marriage for the
purpose of legitimacy under this section. The Supreme Court in Chilkuri Venkateshwarlu v
Venkatanarayan (1954 SCR 424), held that the decision in Karapaya Servai v Mayandi (AIR
1934 PC 49) was correct. In the latter case, the privy council held that the word ‘access’ only
connoted an existence of an opportunity for marital intercourse.

In Tesku Dutta v State (AIR 2004 SC 205), the Delhi HC held that no party could be subjected
to a scientific test (such as DNA) without his consent, just because the other party asked for it.
This would infringe the right to privacy of that other party. Only in deserving cases can such a
direction be given.

Section 113

It says that a government notification as to cession of territory to any other state is a conclusive
proof of that act. The said cession should have taken place before the commencement of
Government of India Act, 1935.

PRESUMPTION

Presumptions are of compulsory nature as they are of reasonable nature and help in giving
direction to the case and avoiding unnecessary matters. They are of two types, as per section 4:
rebuttable and irrebuttable. Rebuttable presumptions can be overthrown by evidence while
irrebuttable ones are conclusive.

Section 113 A

This section is a presumption as to abetment of suicide by a married woman. To attract the

presumption, the following conditions have to be met:

 The question before the court should be whether the commission of suicide by a married
woman was the result of abetment by her husband or relatives.
  The suicide must have been committed within 7 years from the date of marriage.
 Evidence as to show that her husband or his relatives subjected her to cruelty. Cruelty
shall have the same meaning as under section 498A of the IPC.

If the three conditions are met, the court presumes that the husband or his relatives abetted her
suicide and then the burden to prove that suicide was her own personal choice lies on the
husband or his relatives.

Section 113 B

Section 304B of the IPC defines dowry death and this section deals with the presumption as to
dowry death. If the ingredients of section 304B of the IPC are met, the onus gets transferred to
the accused to rebut the presumption. The term ‘soon before’ used in section 113B of the
evidence law means that there should be a proximate link between acts of cruelty or harassment
and death. There can be no laid down a formula to establish such a link and the court should
consider facts of each case separately (Kunhiabdulla v State of Kerala, AIR 2004 SC 1731).

Section 114

This section states that the court may presume the existence of certain facts, regard to the
common course of natural events, human conduct, public and private business as they stand
related to those facts of the case. As inferred from the illustrations, these may include:

 Unexplained possession of the recently stolen property has been held to create a
presumption of guilt. In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), a case of murder
and robbery, a gold ring along with handkerchief and currency notes were recovered, at
the suggestion of the accused and they all bore his fingerprints. The court held that it was
not merely a proof of robbery but a presumptive evidence of the charge of murder as
well.
 An accomplice is deemed to be unworthy of credit unless he is corroborated in material
particulars. This presumption is not mandatory and it rests on the discretion of the court.
 Every negotiable instrument is presumed to be made or drawn for consideration purposes.
 It shall assume continuity of things unless the contrary is provided. For example, if a
property is shown to be ancestral, it shall be presumed to be so until the contrary is
provided (Chito Mahtoo v Lila Mahto, AIR 1991 Pat 186).
 Judicial decisions and official acts (executive and legislature) shall be presumed to be
valid and correct until the contrary is shown. If there are factual errors in a statement as
under a judgment, the same can be rectified by an application. If a person alleges any
defects to rebut a presumption of correctness of an official work, the burden would be on
him to prove such defects.
 A presumption that common course of business has been followed in particular cases.
In J Mc Gaffin v LIC of India (AIR 1978 Cal 123), the court refused to raise a
presumption that a letter to a tenant asking him to quit was delivered. The certificate of
posting was lodged but there was no evidence to show that it was received.
 When evidence is withheld by a party, it is presumed to be against him.
  If a man refuses to answer a question, which he cannot be compelled to give, the court
presumes that the answer, if given, would be unfavourable to him.
 If the documents creating an obligation are with the obliger, the court may presume that
the obligation has been discharged. For example, if a promissory note is in the hands of
the person who made it, the presumption is that it must have been paid off.

Section 114 A

This section relates to the consent of the woman (victim) in a prosecution for rape under section
376 of the IPC. If the sexual intercourse is proved and the woman states in her evidence, before
the court and during questioning that it was done without her consent, the same shall be
presumed by the court.

CONCLUSION

The addition of section 114 A was a necessity, especially after the Mathura rape case (Tukaram
v State of Maharashtra, 1979 2 SCC 143). Presumptions help in giving direction to the case
and also ensure quick justice, while the burden and onus of proof help in avoiding fake
allegations.

ESTOPPEL – MEANING, TYPES AND EXCEPTIONS WITH CASE LAWS

The principle of estoppel is an important concept of the law of evidence. It is related to conduct.
It does not allow behaving in one way at a time and in another way at other time. There is no
place of contradicting a thing said in the law of evidence. It is also called Doctrine of Estoppel.

Doctrine of Estoppel: Introduction

Estoppel literally means- ‘to stop’. According to it, when any person says one thing at one time
and another thing at another time, then he is prevented from doing so. This is an estoppel.

Section 115 of Indian Evidence Act, 1872 defines estoppel. According to it-

“When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true by his act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.”

It can be said in simple words that- Where any person intentionally causes another person to
believe a thing to be true by his act, omission or declaration and such other person acts upon
such belief, then that person shall not be allowed to deny the truthiness of that thing, later in a
suit or proceeding. It means that a person cannot deny thing after having stated it to be true. In
the case of B. Manjunath v. C.G.Srinivas (AIR 2005 Karnataka 136), it has been stated by
the Karnataka High Court that by way of the principle of estoppel, the plaintiff may be stopped
to go back on his representation. This is the doctrine of Estoppel.
It could be explained by an illustration. A person accepts his liability to make payment under an
arbitration award. Such a person cannot later challenge the award. (Mr. Govingji Javet and Co.
v. Sri Saraswati Mills Ltd., AIR 1982 Bombay 76.) Section 115 gives a good example. ‘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.

In respect of estoppels, the case of ‘Shammim Beg v. Najmunnissa Begum (AIR 2007 N.O.C.
2085 Mumbai) is quotable. In this case, a document was executed between the husband and wife
an intention that the wife has begotten before the marriage with the husband. The husband had
accepted the fact of knowing the child. The wife gave birth to a child on the day of marriage. The
husband could not challenge the legitimacy of this child. He is bounded by his previous
statements.

It becomes clear from this example that the doctrine of estoppels is based on having just in
equity and fairness in action. Also, in the case of Jindal Thermal Power Co. Ltd. v.
Karnataka Transmission Corporation Ltd., (AIR 2005 N.O.C. 55 Karnataka) it has been
said that doctrine of estoppels appertains to equity and fairness in action.

In this context, the case of ‘Pickard v. Spears’ (1837 A and E. 469) is a good example. In this
case, the principle of doctrine of estoppels is propounded as- where any person intentionally
causes another person to believe by his words or conduct that a particular thing as the existence
and thereby encourages that person to act upon that belief in such a way that his original
situation is changed, then the first person shall be stopped from stating that the existence of the
actual situation was of different type.

Essential Elements:

From the above definition of estoppels, the following essential elements of it reflect-

1. A person misrepresents by his act, omission or declaration,

2. Such misrepresentation is regarding the existence of any fact;
3. Such misrepresentation is intentionally caused to make a person believe a thing;
4. The other person believes such misrepresentation to be true;
5. The other person does some act believing such misrepresentation;
6. Such act causes injury to the other person; and
7. Such a person is unaware of the actual situation.

Types of Estoppel:

1. Estoppel, by record- It is created by the decision of any competent court. When any
court decides finally over a subject then it becomes conclusive and the parties, their
representative, executor, administrator, etc. become bound to that decision. They can
neither bring another suit on the same subject nor can make the same subject disputed.
They are stopped from doing so. It is alike res judicata.
 2. Estoppel by deed- When any person becomes bound to another person on the basis of a
record regarding few facts, the neither that person nor any person claiming through him
shall be allowed to deny it.
3. Estoppel by conduct- It is such estoppel which arises due to act, conduct or
misrepresentation by any party. When any person causes another person to believe by his
word or conductor encourages them to believe and the other person acts upon that belief
and causes a change in their situation, then the first person is stopped from denying
truthiness of his statements made earlier. Actually, this is an estoppel of general nature.
4. Equitable Estoppel- Such estoppels which have not been provided by any statute is
called equitable estoppel. The best examples of equitable estoppels are there in Section
41 and 43 of Transfer of Property Act, 1882.
5. Promissory Estoppel- It has originated as an exception to consideration in the field of
contract law. When ant person promises another to lend him certain relief or profit and
the other changes his position on the basis of such promise, then the person making
promise shall be stopped from stating that his promise was without any consideration.

Exceptions:

1. It does not apply to those matters where both parties have the knowledge of truthiness.
2. It does not apply against statutes. It cannot contradict the provision of statues. It cannot
also remove the condition of statues.
3. It does not apply to regulations.
4. It does not apply to ultra virus orders and decisions.
5. It does not apply to questions of law.
6. It does not apply to sovereign acts of the government.

THE CONCEPT OF ESTOPPEL WITH REFERENCE TO EVIDENCE

Origin and definition

The legal meaning of the term estoppel is it’s a legal principle that prevents or stops someone
from asserting a fact that is contradictory to an already established truth. In layman’s language
when a court determines that a party has done or is attempting to do something that should be
prevented or stopped. It issues an order of estoppel.

Indian Evidence Act – Section 115

Section 115 Of the Indian Evidence Act states that when one person has, by his declaration, act
or omission, intentionally caused or permitted another person to believe a thing to be true and act
upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that thing.

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.
Here, 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.

 [Sarat Chunder Dey v. Gopal Chunder Laha(1892)]

Estoppels is based on the principle that it would be most inequitable and unjust that if one person
by representation made, or by conduct amounting to a representation, had induced another to act
as he would not otherwise have done, the person who made the representation should not be
allowed to deny or repudiate the effect of his former statement, to the loss and injury of the
person who acted on it.

 B.Coleman & Co. v. P.P Das Gupta[AIR 1970 SC 426]

The burden of proving the ingredients of this section lies on the party claiming estoppel. The
representation which is the basis for the rule must be clear and unambiguous and not indefinite,
upon which the party relying on it is said to have, in good faith and in the belief of it, acted.

Estoppels is based on the maxim Allegan Contraria Non-Est Audiendus (a person alleging
contradictory facts should not be heard) and is that species of presumption Juris et de jure where
the fact presumed to be taken true, not as against all the world, but against a particular party.

Estoppel exists on the existence of some duty, and that is peculiarly so in the case of omission. In
order to succeed on a plea of estoppel it must be shown that there was a neglect of some duty
owing to the person led into a particular belief or to the general public of whom that person is
one and not merely neglect of what would be prudent in respect to the party prejudice, or even of
some duty owing to the third person. With whom those seeking to setup estoppels are not privy.
There is a breach of duty if the party stopped has not used due precaution to avert the
risk.[Mercantile Bank of India Limited v. Central bank of India Ltd(1937) 40 Bom. LR
713]

Estoppel applies not only in favour of the person induced to change his position but for a
transferee from such person, and it binds not only the person whose representation or action has
created it but all persons claiming under or through him by gratuitous title.[Sebina v. State of
Kerala, 1994 Cr.LJ 1291(Ker.)]

A person transferred his import licensee. The transferee imported the goods. The original license
had committed irregularities in obtaining the license, it was held that the transferee could not be
made to suffer on this basis.[Chemi Colour Agency v. Chief Controller of Imports, AIR 1985
Cal.358.]

Estoppel is a rule of civil action. It has no application to criminal proceedings, though in such
proceedings it would be prejudicial to set up a different story. While a limited application can
take place in criminal matters also. Sukhdev Singh v. Union of India, [1989 Cr.LJ 1340 Delhi]
Indian Evidence Act – Section 116

The section deals with estoppels of-

1. a tenant
2. a licensee of the person in possession

while it is not exhaustive in nature and it mainly postulate that there is a tenancy in continuation
and that it had its beginning at a given date from a given landlord, and provides that neither a
tenant nor anyone claiming through the tenant shall be heard to deny that the particular landlord
had at that date a title to the property. And there is no exception even for the case where the lease
itself discloses the defect of title.

In the ordinary case of lease intended as a present demise, the section applies against the lessee,
any assignee of the term and a licensee.

 Kumar Raj Krishna Prasad Lal v. Baraboni Coal Concern Ltd.(1937) 64 IA 33:

After the act the Privy Council in the following case it has been declared that the section does not
deal with all kinds of estoppel which might arise between the landlords and the tenant.

 Adyanath Ghatak v. Krishna Pd. Singh AIR 1949 PC 124

Under this case the attornment was under the threat of eviction by the title paramount and a new
journal relationship of landlord and tenant was created. The estoppels thereafter arise against the
attorned landlord.[Tej Bhan Madan v. II Addl. D.J. AIR 1988 SC 1413]

The rule of estoppels embodied in this section is not applicable to the case of a tenant who
purchases subsequently the share of a co-sharer in the leased property and files a suit for the
partition on the basis of such purpose.

This section stops a defendant from challenging the title of the predecessors in interest of the
plaintiff from whom he takes the land. Apart from the section, the doctrine of estoppel applies
even to a case where the tenant attorns to the landlord. The estoppels estoppel to deny the title of
the lessor continuous to apply to the lessee until he has given possession to the lessor on the
determination of the tenancy. If there has been eviction by title paramount the lessee is not
estopped from denying the title of the lessor. [Gajadhar Lodha v. Khas Mahatadih Colliery
CO.(1959) Pat.806]

This is perfectly intelligible doctrine, as the estoppels arise not by reason of some fact agreed or
assumed to be true, but as the legal effect of carrying the contract into execution, of the tenant
taking possession of the property from the hand of the lessor.

 Ziauddin v. Bansi Lal 1996 AIHC 1425 (Delhi)

An unauthorized occupant of the property, subsequently converting his possession into that of a
tenant by executing a rent note, would be stopped from challenging the title of the landlord and
his right to recover rent of arrears of rent.

Whether tenant should be in possession of the property to stop him from denying his landlord’s
title-

The privy council has laid down that a tenant is estopped from denying his landlord’s title
whether he was or not already in possession of the property at the time when he took his
lease.[Krishna Prasad Lal Singha Deo v. Baraboni 1034(1938) Cal.1]

 Mujibar Rahman v. Isub Surati(1928)56 Cal.15

The estoppel operates in the case of a tenant who remains in possession even after the
termination of the tenancy of the notice to quit.

 Jamila Khatoon v. Ajoydhya Pathak (1996) AIHC 2928 (Gau.)

A tenant who has been let in possession cannot deny his landlord’s title, however defective it
may be, so long as he has not openly restored possession by surrender. Without openly and
actually going out of the occupation, the tenant cannot deny the landlord’s title.

 Narayanaswami v. Roya Poulle Amala 1994 Mad.

When a tenant denied the title of his landlady claiming himself to be absolute owner of the
premises in his occupation but could produce no evidence for his claim, it was held that the
denial was mala fide and the tenant was liable to be evicted on that ground.

The basics of this section are covered in form of-

1. Immovable property-

Lakshman v. Ramji (1920) 23 Bom. LR 939

A fishery is considered the immovable property for the purpose of this section.

2. During the continuance of tenancy-

Bala v. Abai (1909) 11 Bom. LR 939

A tenant is only precluded during the continuance of the tenancy from denying that the landlord
had at the beginning of the tenancy a title to the property subject of the tenancy. The section is no
bar to a tenant showing that his landlord had no title at a date previous to the commencement of
the tenancy. The words of this section leave it open to the tenant to show that his landlord’s title
has subsequently expired.
  Jogendra Lal Sarkar v. Mahesh Chandra Sadhu (1928) 55 Cal. 1013

If the term of the lease has expired when a suit is brought, the tenant can dispute the title of the
landlord. Though the tenancy may be continuing, it is quite open to the tenant to plead and show
that his liability to pay the rent wholly or partially or for a time ceased: such a plea is really one
of confession and avoidance and has been held available of the tenant.

 Kishan Gopal Agarwalla v. Ramdulari Sah AIR 1996 Gau.39

A tenant is estopped from challenging the title of the co-owner landlord.

3. At the beginning of the tenancy-

This section only provides that a tenant cannot be permitted to deny that the landlord at the
beginning of the tenancy had a title to the property. The section does not disentitle a tenant to
dispute the derivative title of one who claims, since the beginning of the tenancy, to have become
entitled to the reversion.

4. No person who came upon any immovable property by the license of the person in
possession-

 Ramuthi Madalaichamy v. Thangarathina Nadar AIR 1991 Mad. 229

Where it is proved that the occupation by a person of immovable property is by permission of

another, the occupier is estopped from denying the other’s title.

5. Benami title-

The Madras High Court has held that where a lease is executed by a tenant in favour of a
benamidar, the real owner and not the benamidar is regarded as the landlord whose title the
tenant is stopped from denying under this section.

While a benamidar has no right to sue unless he can show a legal right to sue under the general
law. The Calcutta High Court is of the opinion that the tenant is estopped from raising the
question that his lessor is a benamidar of someone to whom he has paid rent.

Indian Evidence Act – Section 117

This section deals with further instances of estoppel by agreement. Section 116 and 117 are
however not exhaustive of the doctrine of estoppel by agreement.

Under this section, an acceptor of a bill of exchange cannot deny that the drawer had authority to
draw such bill or to endorse it.

But they may deny that the bill was really drawn by the person by whom it purports to have been
drawn. (explanation 1)
A bailee or a licensee cannot deny that his bailor or licensor had, at the commencement of the
bailment or license, authority to make the bailment or grant the license. But, a bailee if he
delivers the goods bailed to a third person, may prove that such person had a right to them as
against the bailor. (explanation 2)

Bill of exchange-

Estoppels in the case of negotiable instruments are instances of estoppels by agreement or

contract; this could be understood by referring to sub-section 41 and 42 of negotiable instruments
act.

Forged endorsement-

No person can claim a title to a negotiable instrument through a forged endorsement and such
endorsement is a nullity and must be taken as if no such endorsement was on the
instrument. [Banku Behari Sikdar v. Secretary of State for India (1908) 36 Cal. 239]

EXAMINATION OF WITNESS

Chapter X of part III of the Indian Evidence Act, 1872 deals with the examination of a
witness. Section 135 lays down the order to be followed in production and examination of
witnesses which is left to be regulated by the code of civil procedure and criminal procedure. If
there is no provision for a particular point in case, then, the court can exercise its own discretion
in deciding the order of production of witnesses.

ADMISSIBILITY OF EVIDENCE

As per Section-5 of the Indian Evidence Act, 1872, only those pieces of evidence, regarding the
facts and facts in issue have to be submitted that are relevant. Section 136 has reiterated this
point. It states that a judge may ask the party, who has proposed to give evidence, as to how will
such a fact, for which the evidence has been provided, be relevant to the case. Hence, the judge
can question the relevancy of the fact for which the evidence is being provided and the evidence
shall only be submitted if the judge thinks the fact will be relevant to the suit.

If the fact (A) proposed to be proved, whose evidence will be admissible on proof of some other
fact (B), the latter (B) should be proven first. The court, may, however, exercise its discretion
and let the party prove the former (A) first, on the condition that the party will prove the latter
fact (B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact, the latter shall be
proven first but again, the judge may exercise his discretion and let the party prove the first fact.
It has been held in Collector of Gorakhpur v Palakdhari Singh (1889 ILR 12 All 1) that any
doubt about the admissibility of a piece of evidence shall be in favour of admissibility.
EXAMINATION ORDER

Testimonies of witnesses are recorded as answers to the questions asked to them. These
questions are relevant to the facts in issue, and such questioning is called an examination of the
witness. The evidence not only includes answers to questions but may also include statements
made or that is required to be made, by the court and is relevant to the issue.

Section 137

It states that a witness should be first examined by the party who has called him and this is called
examination-in-chief. And when an adverse party examines the witness, it is called cross-
examination. The cross-examination may explore all the relevant facts and not necessarily, the
facts that were asked to the witness during the examination in chief. There might be no need for
a cross-examination if the testimony is prima facie unacceptable (Ghulam Rasool Khan v Wali
Khan, AIR 1978 J&K 54). If the party who called the witness, questions him, again after cross-
examination, it is called re-examination.

Section 138

It provides for the order of examination; a witness will be first examined in chief, and then if the
adverse party deems fit, cross-examined and if the party calling him so desires, be re-examined.
A witness has to be first examined in chief to be cross-examined, else, it is not permissible and
not possible (Sharadamma v Renchamma, AIR 2007 Kant. 17). An order of re-examination
can be made by the court on an application by the party as it is not limited to courts’ own
motion (SSS Durai Pandian v SA Samuthira Pandian, AIR 1998 Mad. 323). The matter of
re-examination should be limited to examination in chief and cross-examination and if any new
matter is introduced by permission of the court, the witness can be subjected to cross-
examination, again, upon that matter.

Section 139 says that a person called upon to produce a document does not become a witness per
se. Hence, he cannot be cross-examined, unless, examined in chief by the party who called him.

Section 140 provides that witness to a party’s character maybe cross-examined if already
examined in chief. The evidence of character is meant to assist the court in estimating the value
of the evidence brought before the court through the mouth of the witness.

LEADING QUESTIONS

Section 141

“Any question suggesting the answer which the person putting it wishes or expects to receive is
called a leading question.”

A witness should tell the story relating to the relevant facts or facts in issue in his own words. If
there is an inbuilt answer in the question, or if it is suggestive of an answer, a lawyer could
construct a story out of the mouth of the witness which suits his client. If such a question is asked
in the examination in chief or in re-examination, the adverse party may object to it. This has been
provided in Section 142 and it also states an exception that such leading question may be asked
on permission from the court, i.e., the objection is overruled.

Section 143 states that leading questions may be asked in cross-examination.

IN WRITING

Section 144

“Any witness may be asked, whilst under examination, whether any contract, grant or other
disposition of property, as to which he is giving evidence, was not contained in a document, and
if he says that it was, or if he is about to make any statement as to the contents of any document,
which, in the opinion of the Court, ought to be produced, the adverse party may object to such
evidence being given until such document is produced, or until facts have been proved which
entitle the party who called the witness to give secondary evidence of it.” Accompanied by the
illustration, the section is self-explanatory:

The question is whether A assaulted B. C deposes that he heard A say to D, “B wrote a letter
accusing me of theft, and I will be revenged on him.” This statement is relevant, as showing A’s
motive for the assault, and evidence may be given of it, though no other evidence is given about
the letter.

Section 145

It provides that a witness may be cross-examined as to previous statements made by him in

writing and if he is to be cross-examined over oral statements, which were reduced to writing, his
notice shall be brought to such parts of writing before the writing is to be proved. A witness can
only be contradicted over previous statements made by him, not subsequent (Mishri Lal v State
of MP, 2005 10 SCC 701).

LAWFUL QUESTIONS

Except for the questions already permitted through different sections of the act, the following
questions can also be put up in cross-examination, under Section 146:

 To test a witness’ veracity or truthfulness

 To know who he is and what his position is in life
 To shake his credit by injuring his character

These questions can be asked even if, directly or indirectly, the witness is criminated or is
exposed to penalty or forfeiture. The witness may also be compelled to answer these questions as
per the conditions of the following sections. By section 28 of the Criminal Law amendment,
2013, if a case relating to sections 376 to 376E or for an attempt to commit any such offence
(under the Indian Penal Code, 1860), the victim’s moral character or previous sexual experience
cannot be questioned in cross examination.
COMPELLED TO ANSWER

Section 132 provides for compelling of a witness to give answers to the question that are relevant
to the matter in issue. This cannot be excused on the ground that such answer would give rise to
witness’ liability, criminal or civil. If the witness is forced to give an answer, the same shall not
be used as evidence against him in any case, provided, the evidence so provided was not
false. Section 147 provides that if any such lawful question is relevant to the suit or proceeding,
the provisions of section 132 will apply.

Section 148 provides protection against aggressive cross-examination. If a person’s character is

in question, to shake his credit, the court may, while exercising its discretion, warn the witness
that he is not obliged to answer. Provided the court considers the questions that were asked were
irrelevant to prove his credibility or far too remote in time or those which would not affect at all
or slightly affect the witness’ credibility as to the matter to which he is giving evidence.

REASONABLE GROUND

Section 149 provides that if there is no reasonable ground to convey an imputation under section
148, the questions are not to be asked. This section also safeguards a witness against damaging
of character. Illustration (c) to this section makes it clear: A witness, of whom nothing whatever
is known, is asked at random whether he is a dacoit. There are here no reasonable grounds for the
question.

Section 150 lays duty of a counsel in questioning a witness’ character. If a barrister, pleader,
vakil or attorney questions a witness’ character without a reasonable ground, the same shall be
reported to the High Court or any authority to which he is subject.

QUESTIONS FORBIDDEN

Section 151 confers the court with the power to forbid questions that are indecent and
scandalous. These questions might be related to the matter in hand and may only be allowed if
they relate to the fact in issue or are necessary in determining whether some fact in issue existed.

Section 152 empowers the court to forbid questions that are meant to insult or to annoy. Even if
the question might be proper, the court can reject it if it is needlessly offensive.

SECTION 153

It provides for protection of a witness’ character. If a witness has answered a question as to his
credit, no evidence shall be admissible to contradict his answer. This section has two exceptions,
first, if he lies about his former conviction and second, to impeach his impartiality; evidence may
be provided to contradict both these claims. Though no evidence is admissible to contradict a
witness’ claim as to his credit, if the witness has lied, he can be separately charged for producing
false evidence.
SECTION 154

It allows for the party, who has called upon a witness, to put up any questions to the witness as
could be asked to him during cross-examination. This section brings under its purview, the
concept of a hostile witness. It has been defined by the Supreme Court in Sat Paul v Delhi
Administration (AIR 1976 SC 303), as one who is not desirous of telling the truth at the
instance of the party calling him. The previous testimony of a hostile witness is not washed off,
the court can use it as evidence and if the prosecution does not confront the witness, regarding
the contradiction, it shall be the duty of the court to do so for ascertaining truth (State of
Rajasthan v Bhera, 1997 Cr LJ 1237).

SECTION 155

The credit of a witness can be impeached in the following ways. It is usually impeached by the
adverse party but if the witness becomes hostile, his credit can be impeached by the party who
called him:

 By producing witnesses who testify from their personal knowledge of the witness that
such person is unworthy of credit. The produced witnesses must have personal
knowledge of the witness they are testifying against.
 By showing that the witness was bribed or has taken an offer to receive a bribe or has
some other corrupt inducement.
 By citing earlier statements of the witness which contradicts him, only to the extent
which section 153 permits.

CORROBORATION OF EVIDENCE

Section 156 provides that a witness may be questioned about circumstances, apart from the main
event, with the intention to corroborate evidence provided by him and the court shall permit it if
it deems that these questions will help corroborate his testimony in reference to the relevant
facts.

Section 157 states that a former statement of a witness can be used to corroborate testimony of
the witness in relation to a common subject matter. In Rameshwar v State of Rajasthan (1952
SCR 377), the Supreme Court allowed the statement of a young girl who was raped, to be
corroborated with the girl’s own statement to her mother four hours after the incident.

Section 158 says that statements relevant under section 32 or 33 (like, a dying declaration), that
have been proved, all matters which confirm or contradict the statement, can be proved.
Evidence can also be given to impeach the credit of the person who made such statement, to the
extent as if that person had appeared as a witness.

REFRESHING MEMORY

A witness is allowed to refer to a writing made by him either at the time of happening of an event
concerning which he is questioned or sometime later, which the court considers it likely that the
event was fresh in his memory. The witness can also refer to someone else’s writing about the
event which was made within a time period which court considers reasonable on the ground
stated above. If the witness is an expert, he may consult professional books. These provisions
have been provided under Section 159.

Section 160 A witness may testify to facts mentioned in such document as is mentioned under
section 159. It does not matter whether the witness has any specific recollection of the facts
recorded, as long as he is sure that he correctly recorded them.

Section 161 gives a right to the adverse party to cross examine the witness and also to produce to
him any such writing, as given under section 159 & 160.

PRODUCTION OF DOCUMENTS

When a witness has been called upon to produce a document, he is bound to produce it. Any
objection to it shall be dealt with by the court and to determine its admissibility, the court shall
inspect it, except when it refers to matters of state (Section 162).

Section 163 requires the party (A), who has given notice to the other party (B) to provide certain
documents, to produce such documents after initial inspection in the court, as evidence if the
party (B) asks so.

Section 164: If, under the previous section, party B denies to provide A with the required
documents, the same cannot be produced in court by B without A’s permission.

SECTION 165

This section provides for the power of court to question. A judge can, in order to obtain proof of
relevant facts, ask any question he pleases, be it relevant or irrelevant to the case. It may be
asked any time and may take any form and be directed at a witness or a party. The judge can
though, not compel the witness to answer and the judgement should be based upon the facts
which have been declared relevant under the IEA.

CONCLUSION

While safeguarding the social life of a witness, the act serves justice to the fullest extent. By
omitting and adding certain provisions, the act is indeed keeping up with the modern times