LLB.

Evidence Act Assignment

Q1. DISCUSS "BIRTH MARRIAGE, CONCLUSIVE PROOF OF LEGITIMACY?

Section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) relates
to the legitimacy of a child born during wedlock. The law presumes that if a child is “born
during the continuance of a valid marriage between his mother and any man, or within
two hundred and eighty (280) days after its dissolution, the mother remaining
unmarried…”, it is conclusive proof of its legitimacy unless it can be proven that the parties
to the marriage did not have any access to one another. The legislative spirit behind this
section seeks to establish that any child born during a valid marriage must be legitimate.
The law does not presume dishonourable or immoral actions unless conclusive proof can
be produced for the same. Therefore, section 112 is based on the presumption of public
morality and public Policy.

Loopholes in Section 112 of the Evidence Act

The establishment of paternity under both, civil and criminal law, is extremely important.
The law presumes the legitimacy of a child born during a valid marriage as conclusive. The
only exception under the law is non-access between the parties. This “non-access” refers
to the non-existence of opportunities for sexual intercourse. This creates a legal lacuna
with respect to cases where paternity may be disputed even when the parties had “access”
to each other, for example, in cases of adultery. In such a case, due to the standard of
“conclusive proof”, a party with a legitimate case trying to dispute paternity will find
themselves without remedy due to the inability to produce evidence. The exception to this
law, i.e. “non-access” is not wide enough to cover all possible situations under the ambit
of this law. Thus, the law is a draconian law based on morality with no relevance in the
modern era.

“CONCLUSIVE PROOF”

Section 4 of the Act, lays down three degrees of presumption – ‘May presume’, ‘Shall
presume’, and ‘Conclusive proof’. It must be noted that section 112 of the Act uses
‘conclusive proof’ and thus section 4 and section 112 must be read together. Therefore, if
the two requirements of section 112 are proven, it shall be considered as conclusive proof
of legitimacy, which means that further evidence to disprove said fact may not be given.
The legitimacy of such a child cannot be rebutted unless non-access can be proved. This
creates problems for the party disputing the paternity of the child.

The section is based on the presumption of morality and may, in certain circumstances,
hold the party disputing paternity unjustly accountable. Since the question of legitimacy
is an extremely important one in cases of custody, maintenance etc., it is impractical for
the section to provide such a limited exception.

EXCEPTION OF “NON-ACCESS”

Section 112 of the Act provides a very limited exception to the presumption of
legitimacy. A valid marriage may not be conclusive proof if it can be shown that the
parties to the marriage had no access to each other during time of conception. This has
to be proved beyond reasonable doubt and not just mere balance of probabilities.

As previously stated, the section is based on a presumption of moral behavior. However,

one cannot completely disregard the possibility of such behavior, in which case the party
disputing the paternity is being held unjustly accountable. The purpose of law is to provide

Aneel U Pg. 1 02/2024

LLB. Evidence Act Assignment

justice in a fair and efficient manner. When moral principles become the basis for a law, it
defeats this basic purpose.

This can be illustrated with the help of an example. When two people are getting a divorce,
one of the parties may be unjustly compelled to pay child support even though there is no
biological relation between the party and the child. Thus, the scope of this exception is too
restrictive and limited for the proper implementation of law.

SEPARATION OF LAW AND MORALITY

Justice A.M. Khanwilkar recently said that “Social morality cannot violate the rights of even
one single individual”.

Morality has no place in Law. Law may reflect the moral principles of the time, but it cannot
be solely based on them. Law is a mechanism which governs society through rules and
sanctions. These rules facilitate the peaceful existence of society by maintaining law and
order. Morality on the other hand, is a subjective concept about ‘good’ and ‘bad’ which
differs from person to person. Some may argue that law is the protection of the ‘good’ and
punishment of the ‘bad’. But this is a very narrow understanding. The Law does indeed
protect the good and punish the bad, but not always. For the simple reason that one
cannot define this ‘good’ or ‘bad’. What may be good for some may be bad for others.
Taking the contemporary example of homosexuality, many oppose it as immoral but even
so, sexual orientation is an individual right and morality cannot be allowed to outweigh
any person’s rights. Similarly, Section 112 of the Act violates the right of the party
disputing paternity to a fair trial by not allowing them to present evidence for the same.
And since moral considerations cannot be put above the rights of people or fairness in the
justice system, it stands to reason that the section must be amended.

DNA TESTING TO ASCERTAIN PATERNITY

DNA Tests are conclusive evidence admissible under the Indian Legal System. The
introduction of DNA technology, however, has faced extensive criticism and has been said
to violate Article 21 (Right to Privacy) and Article 20(3) (Right Against Self-Incrimination)
of the Indian Constitution.

Right to Privacy – Article 21

In Govind Singh v. State of Madhya Pradesh, the Supreme Court held that a fundamental
right must be subject to restriction on the basis of compelling public interest. Thus, Right
to Life and Liberty, which includes Privacy, is not absolute. And it is on this basis that the
constitutionality of the laws affecting Right to Life and Personal Liberty are upheld by the
Supreme Court which includes medical examination.

Right Against Self-Incrimination – Article 20(3)

To be entitled to the protection of Article 20(3), it was held by the Supreme Court that
“Self-Incrimination means conveying information based upon personal knowledge of the
person giving the information and cannot include merely the mechanical process of
producing documents in court which do not contain any statement of the accused based
on his personal knowledge”. Since medical tests which involve giving blood do not involve
any exchange of ‘personal’ knowledge and are a mechanical process, they do not violate
Article 20(3).

Aneel U Pg. 2 02/2024

LLB. Evidence Act Assignment

The Indian Evidence Act was passed in the year of 1872 and since then, section 112 has
neither been amended nor revised. At the time, there was little knowledge of forensic
techniques and the concept of DNA had not yet been discovered. Further, legislators could
not foresee the existence of such scientific techniques as DNA Testing. Thus, at the time,
section 112 was a valid section which protected a woman’s chastity and ensured that
legitimate children may not be labelled as ‘bastards’. However, science and morality both
have changed by leaps and bounds since then and in today’s day and age, section 112 is
no longer valid. The section must be revised to allow DNA testing when a prima facie case
can be made to dispute paternity.

PRESENT LEGAL SCENARIO

Before the law is criticized for not allowing DNA tests under section 112 of the Act when
there exists a valid marriage, a question must be answered. Can the Court direct one of
the parties to submit himself for the DNA test? The answer to this question can be traced
through a series of judicial decisions.

Gautam Kundu v. State of West Bengal

The Supreme Court held in this case that (a) Courts cannot order a blood test as a matter
of course, (b) There should exist a prima facie case in that the husband must establish
‘non-access’ in order to dispel the presumption arising under section 112 before a test can
be ordered, and (c) The Court should carefully analyze with respect to what might be the
outcome of requesting the blood test; whether it will have the impact of marking a child
as a bastard and the mother as an unchaste woman.

Sharda v. Dharmpa

A three Judge bench of the Supreme Court held that (a) A matrimonial court has the
authority to direct a person to submit to medical tests, (b) Such an order of the Court will
not violate a person’s Right to Personal Liberty under Article 21 of the Indian Constitution,
and (c) The Court must exercise this authority only if the applicant has a strong prima
facie case and there is sufficient material before the Court. The Court also stated that if
despite the order of the Court, the respondent does not submit himself to medical
examination, the court will be entitled to draw an adverse inference against him.

Thus, presently, the Court has the power to demand a person to undergo medical tests.
However, under section 112 of the Act, the Court can only give such orders if non-access
is proved. From the language of the judgement in the case of Gautam Kundu, we can see
the moral driving force behind this section which is no longer applicable in the modern era.

CONCLUSION

In conclusion, there exists a lacuna in the law which leaves many people looking for
remedy without any. Till now, in cases where there is access between the parties and yet
one of the parties wants to dispute paternity, DNA testing is not allowed because of the
limited scope of exceptions to this law and the standard of conclusive proof. Even though
the law may have been protective of women and children in a time when society was not
kind to either, with the advances in social morality and science, it no longer holds valid.
In stark contrast, the law is now more constrictive and unjust than protective. It needs to
be revised to provide relief via medical testing in cases where there is “access” as well as
a legitimate dispute over paternity.

Aneel U Pg. 3 02/2024

LLB. Evidence Act Assignment

Q2. WHAT IS "PLEA OF ALIBI", DISCUSS IN DETAIL?

The term “alibi” originates from the Latin word meaning “elsewhere” or “somewhere else.”
In the Evidence Act, the defence of a plea of alibi is employed by an accused individual to
refute their alleged involvement in a crime.

The accused claims that they were present at a different location when the crime was
committed, and therefore could not have been present at the crime scene.

Essentials of the Alib in Evidence Act

To establish the defence of plea of alibi, certain requirements must be met, including:
 A crime must have been committed that is punishable by law.
 The accused must be charged with committing the crime.
 The accused must prove that they were not present at the crime scene when the
crime was committed.
 The accused must demonstrate that they were at a different location which would
have made it impossible for them to be present at the crime scene.
 The defence of plea of alibi must be raised as early as possible in the legal
proceedings.

Who Can Use the Plea of Alibi?

The accused typically takes the plea of alibi in a criminal case. The accused must assert that
they were physically present somewhere else at the time of the alleged offence.

When to Raise the Plea of Alibi in Evidence Act?

To be effective, the plea of alibi should be raised as early as possible in the legal
proceedings. It is recommended to raise the defence at the initial stages of the case, such as
during the framing of charges or at the preliminary hearing.

Failure to Establish the Plea of Alibi

If the accused fails to establish the plea of alibi, it does not automatically imply that they
were present at the scene of the crime. The prosecution still needs to provide positive
evidence to prove the accused’s presence at the crime scene. Simply failing to establish the
plea of alibi cannot be considered evidence of guilt.

Sections of Evidence Act Relevant to Plea of Alibi

The plea of alibi is recognized under Section 11 and Section 103 of the Indian Evidence Act,
1872.

Section 11: When Facts Not Otherwise Relevant Become Relevant

Section 11 of the Indian Evidence Act, 1872 provides for the rule of evidence regarding the
relevance of facts that are not otherwise relevant. According to this section, such facts
become relevant if they are inconsistent with any fact or relevant fact or if they make the
existence or non-existence of any fact in an issue or relevant fact highly probable or
improbable.

Section 103: Burden of Proof as to Particular Fact

Aneel U Pg. 4 02/2024

LLB. Evidence Act Assignment

Section 103 of the Indian Evidence Act, 1872 deals with the burden of proof as to any
particular fact. According to this section, the burden of proof lies on the person who wishes
the court to believe in the existence of that fact unless a law specifies otherwise.

Example: If the question is whether A committed a crime at Calcutta on a certain day, the
fact that A was in New Delhi on that day is relevant. The burden of proving this fact lies on
the person who asserts it.

Examples of Plea of Alibi in Evidence Act

A defence of a plea of alibi can be used in various criminal cases. For instance, if a man
named Bill is accused of selling drugs to a minor two blocks from a school, he can present
evidence that he was at work at a construction site at the time of the sale.

He can call witnesses, including his boss, co-workers, or the property owner, to testify that
he was at the site and did not leave around the time of the crime. Video footage or
photographs taken at the time of the crime can also be used to support the defence. In
some cases, records of the card swipes can help prove the defendant’s presence at a
particular location.

Case Laws on Plea of Alibi

Munshi Prasad v State of Bihar 2001 (SC)

The Supreme Court held in this case that the accused’s presence at a reasonable distance
from the place of occurrence is necessary to prove a defence of plea of alibi, and the
distance should be at least 500 meters.

Mukesh v. State of N.C.T. of Delhi, AIR 2017 SC 2161

In this case, the accused claimed that he was attending a musical program with his family at
a park at the time of the incident. However, the court rejected the plea of alibi, considering
the contradictory evidence, such as the dying declaration of the victim, DNA analysis, and
fingerprint analysis. The evidence from the authorities of the park also revealed that no
permission was granted for any musical program on the date of the incident.

Lakhan Singh @ Pappu v. The State of NCT of Delhi

In this case, the court emphasized that a defence of plea of alibi should be raised at the
earliest opportunity and not belatedly at the stage of defence evidence. The accused failed
to provide any reason or explanation for not raising the defence earlier.

Conclusion
The plea of alibi is a crucial defence in criminal cases, which can help an accused person
establish their innocence. It is recognized under Section 11 of the Indian Evidence Act, 1872,
and can be raised at the earliest stage of the case. The burden of proof lies on the accused
to establish their presence elsewhere at the time of the commission of the alleged offence,
and the prosecution must prove the accused’s guilt beyond a reasonable doubt.

Aneel U Pg. 5 02/2024

LLB. Evidence Act Assignment

Q3. WHAT IS PRESUMPTION OF FACT?

Presumption generally means a process of ascertaining few facts on the basis of possibility or
it is the consequence of some acts in general which strengthen the possibility and when such
possibility has great substantiate value then generally facts can be ascertained. A
presumption in law means inferences which are concluded by the court with respect to the
existence of certain facts. The inferences can either be affirmative or negative drawn from
circumstance by using a process of best probable reasoning of such circumstances. The basic
rule of presumption is when one fact of the case or circumstances are considered as primary
facts and if they are proving the other facts related to it, then the facts can be presumed as if
they are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the
concept that ‘the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human conduct,
and (c) public and private business, in their relation to the facts of the particular case’.

The traditional approach of common law system has classified presumption only under two
categories that are a presumption of law and presumption of facts but to avoid any ambiguity
in deciding any case the Indian legal system has adopted the third classification that is mixed
presumptions which includes both the aspects of facts as well as law.

Presumption of Facts-

Presumptions of facts are those inferences that are naturally and reasonably concluded on
the basis of observations and circumstances in the course of basic human conduct. These are
also known as material or natural presumptions. Natural Presumptions are basically instances
of circumstantial evidence as it is believed that it is very good to act in the course of reasoning
where much inferences can be easily concluded from other evidence otherwise it will keep
much ambiguity on the legal system because it will be much more difficult because of the
legal system to prove every fact to capture the offenders or law conflicted member of the
society. Natural Presumptions are generally rebuttable in nature.

There are few provisions that are directly expressing about Natural Presumptions such as
Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where Section
113A & 113 B are one of the most important provisions of presumptions under this Act,
whereas Section 86 talk about certified copies of foreign judicial records, Section 87 expresses
presumption of Books, Maps and Charts, Section 88 deals with presumption related to
Telegraphic Messages, Section 90 deals with documents aged thirty years old, whereas
Section 113 A deals with hardcore crime that is Presumption as to abatement of suicide by a
married women and Section 113 B deals with the presumption as to dowry death. Under the
Presumptions of Facts, the concept of ‘shall presume’ is utilized. And by the concept, the court
will presume that a fact ascertained before them are proven facts until and unless they are
proven disproved by the accused. The concept of ‘shall presume’ expresses that the courts
are bound to maintain and recognise some facts as proven by making a mandatory
presumption and the court has to consider them as completely proven until such presumption
are challenged and disapproved. When these presumptions are disproved by the challenging
party then the court has no discretion on maintaining such presumptions.

Aneel U Pg. 6 02/2024

LLB. Evidence Act Assignment

In, Baijnath & Others v. State of Madhya Pradesh [3], Supreme Court expounded that, “One
of the essential ingredients of dowry death under Section 304B of the Penal Code is that the
women must have subjected to cruelty either by the husband or his relatives for the purpose
of dowry soon before her death and bring it as an essential ingredient of Section 304B of IPC
the prosecution has to prove the connection of the victim’s death with the act of cruelty by
the husband or by his relative for the purpose of demanding dowry and the connection must
be proved beyond reasonable doubt then only the court will put the case into the window of
Section 113B of Indian Evidence Act.

May Presume- Section 114 of the Indian Evidence Act deals with the concept ‘presumption of
certain facts by the court’. The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the particular case.

Illustrations-
 Every negotiable instrument is presumed that it is drawn for the purpose of good
consideration.
 There shall be continuity of things unless proven contrary like if a property is
considered to be an ancestral property, it shall be presumed that it is so until it is
proven contrary to the presumption (Chito Mahtoo v Lila Mahto).
 If a person refuses to answer a question, which is not compelled by the law to answer,
the court may presume that if he answers the question then the answer would be
unfavourable to him.
 That if a man possesses some stolen goods soon after the theft then it is believed that
he is either the thief or has received the goods knowing the nature of the goods unless
he can account for his possession.

Conclusion
In Tukaram v State of Maharashtra [10], This case was decided on considering the facts of
Mathura Rape Case and while adjudicating the case the Court justified the need and
necessities of such presumptions. The Court also explained that Presumptions has a wider
scope as they don’t only help the victim in the fast trial but it also helps in giving direction to
the case. Therefore such presumption can effectively help the judiciary in providing quick and
complete justice to the society. According to Stephen presumption is mandatory, not
permissive presumption and especially permissive is dealt in Section 90 of the evidence act.
Permissive presumption means it is on the court discretion whether to believe or not to
believe.

Aneel U Pg. 7 02/2024

LLB. Evidence Act Assignment

Q4. WHAT IS BURDEN OF PROOF, EXPLAIN THE LAW RELATED. ON WHOM

DOES BURDEN OF PROOF LIE? EXPLAIN IN THE CONTEXT OF SS 101 TO 111.

The term ‘Burden of Proof’ under Indian Evidence Act refers to the responsibility of
substantiating statements with evidence. The Indian Evidence Act of 1872, specifically
detailed in Chapter VII, enshrines this crucial concept.

The burden of proof encompasses the principles of Onus Probandi and Factum Probans. Onus
Probandi dictates that the party making an affirmative claim must prove it. This burden rests
on the side seeking to support their case with a specific fact they claim to know. Factum
Probans is the actual evidence or proof presented to substantiate a claim in a legal
proceeding.

Broad Classification of Burden of Proof

In Indian law, the fundamental principle is that the burden of proof rests on the individual
making a claim or asserting a fact, unless a legal exception has been established. This concept
of the burden of proof encompasses three distinct meanings:

 Persuasive Burden: This refers to the legal and procedural obligation of demonstrating
and substantiating a case. It pertains to the responsibility placed on a party to establish
the elements of their argument within the framework of the law and pleadings.
 Evidential Burden: In this context, it involves the duty of presenting concrete evidence
to support specific factual claims. Those making assertions must produce evidence to
substantiate the facts they are claiming.
 Admissibility of Evidence: The burden of proof also extends to the admissibility of
evidence in court. It means that the party introducing evidence must ensure it meets
the criteria for admissibility as per legal standards and rules of evidence.
 Burden of Proof in Civil and Criminal Cases
When someone initiates a civil proceeding, it comprises two key elements: the case’s facts
and the legal basis. In such cases, the burden of proof rests with the plaintiff, the one who
files the civil suit.

If the plaintiff fails to present convincing evidence to establish the existence or truth of the
facts, even if the defendant doesn’t offer a defense, the defendant will prevail. Consequently,
defendants often focus on weakening the plaintiff’s case rather than providing a positive
defense.

In criminal proceedings, a fundamental principle is the presumption of innocence until proven

guilty. Consequently, the primary responsibility for proving an accused person’s guilt rests
with the prosecution.

However, if the accused raises a defense or claims an exception, the burden of proof shifts to
them to substantiate their assertion. The prosecution is obligated to demonstrate the case
beyond a reasonable doubt. It places a substantial burden on them and provides an advantage
to the defendant.

Aneel U Pg. 8 02/2024

LLB. Evidence Act Assignment

Burden of Proof under Indian Evidence Act

 Section 101 of the Indian Evidence Act establishes the “burden of proof.” It requires
that anyone asserting a legal right or liability based on specific facts must prove those
facts, thereby assigning the burden of proof to the person making the claim.
 Section 102 of the Indian Evidence Act places the burden of proof on the person who
would lose in a suit or proceeding if no evidence were presented on either side.
 Section 103 of the Indian Evidence Act emphasizes that the burden of proof regarding
a specific fact rests on the person wishing the court to believe in its existence unless
otherwise specified by law.
 Section 104 of the Indian Evidence Act states that the burden of proving any fact
necessary to make other evidence admissible lies on the person wishing to present
that evidence.
 Section 105 of the Indian Evidence Act places the burden of proving that the accused’s
case falls within exceptions on the accused. It is with a presumption of absence of such
circumstances by the court.
 Section 106 ….. 111

Landmark Cases on Burden of Proof

In the case of V. Kalyanaswamy vs. L. Bakthavatsalam, the Supreme Court clarified that when
dealing with a will, the burden to prove its validity and dispel any suspicions lies with the
person presenting the will. However, if the will is claimed to be a result of coercion, undue
influence, or fraud, it is the responsibility of the party opposing the will to prove these
allegations.

In the case of M.S. Reddy vs. State Inspector of Police, A.C.B., Nellore, it was established that
the initial burden of proof lies with the prosecution. Requiring the defendant to shoulder this
burden is unjust. It is essential for the prosecution to construct its case using its own evidence.
If defendants were allowed to present their evidence before the prosecution, it could give the
prosecution an opportunity to gain an advantage, potentially using tactics to weaken the case.

In simpler terms, if you bring electronic evidence into a legal case, you must prove that it is
real and trustworthy. This burden of proof falls on the party that introduced the electronic
document.

In Mahboob Sab vs. Union of India, a person fell from a moving train and a lawsuit ensued.
The court determined that the burden of proof rested on the party making a specific claim. In
this instance, the defendants needed to prove that the person didn’t have a valid ticket as
they had asserted.

Conclusion
The Indian Evidence Act of 1872 delineates the concept of the burden of proof. It varies
between civil and criminal cases based on their respective requirements. Generally, the
person seeking relief or judgment from the court carries the burden of proof, unless the law
dictates otherwise. The foundational principle is the presumption of innocence until proven
guilty. It places the onus on the plaintiff to establish the accused’s guilt.

Aneel U Pg. 9 02/2024

LLB. Evidence Act Assignment

Q5. DEFINE ESTOPPEL EXPLAIN ESTOPPEL UNDER INDIAN EVIDENCE ACT 1872.

The doctrine of estoppel, which is covered by Sections 115 to 117 of the Indian Evidence Act
of 1872, forbids people from providing deceiving witnesses by preventing them from making
contradictory claims in court. This philosophy seeks to prevent fraud from being committed
by one individual against another. According to this principle, a person is responsible for
whatever false statements they make, whether verbally or physically.

The definition of estoppel is included in Section 115 of the Indian Evidence Act, of 1872. It
states that once someone persuades someone else to act on something they believe to be
true by their actions or lack of action, they cannot later in the suit or proceedings deny the
truth of that belief. To put it simply, estoppel prohibits someone from denying, contradicting,
or claiming that a prior statement they made in court was untrue.

Illustrations:
A prosperous businessman named Ishita wants to buy a car. Her close friend Raman is the
owner of an expensive classic car. When Ishita calls Raman to help her buy a car, he gives her
the chance to purchase his car, which he has been getting ready to sell for some time. Ishita
makes a car buy. At some point, Raman will own the car. Raman contends that when he sold
the car to Ishita, he was not the legal owner. The judge decided that Raman would have to
prove he was not entitled and that he would be responsible.

If Rishi works for company XYZ but subsequently claims in court that he is not an employee,
he will not be able to collect his salary and benefits from that company.

Nature
Estoppel is more a part of substantive law than adjective law. However, it has been
demonstrated that estoppels do not have the same standing as substantive law rules that are
included in certain presumptions. Additionally, because estoppels do not involve claims, they
typically do not give rise to a cause of action at common law. Nonetheless, it's been stated
that they might support requests for equitable relief and could even serve as a defence if they
prohibit a plaintiff from establishing certain crucial facts. Estoppels resemble substantive law
in several ways.

Essential elements:
 A person deceives others through his actions, omissions, or declarations.
 This type of deception concerns the truthfulness of any fact.
 It is purposefully done to lead someone to believe something.
 It is believed to be true by another person.
 It is carried out by another person with the belief that it is true.
 It results in injury to another person.
 It is done by a person who is unaware of the truth.

Exceptions:
 When both parties are fully informed about everything related to their subject matter,
this doctrine is not applicable.

Aneel U Pg. 10 02/2024

LLB. Evidence Act Assignment

 Statutes and regulations are immune from estoppel. It ought not to be in opposition
to the laws and rules.
 It wouldn't apply in situations where one party acted or made a decision beyond the
scope of his authority.
 It cannot be used against the government or sovereign acts.

Case Laws:
Estoppel is defined as a legal doctrine that forbids an individual from contradicting statements
they have made in court. In Pickard v. Sears[1], the court determined that estoppel occurs
when:
 One party represents another by his words or deeds.
 The other party cannot retract what he has spoken if, having believed what he has
said, he acts upon it or changes his mind.
According to the ruling in the Pratima Chowdhury v. Kalpana Mukherjee[2] case, the position
should be changed to the point where it would be illegal to revert it.

Section 116
According to the section, the tenant of the immovable property or anybody making a claim
through such tenancy may argue that the landlord initially held title to the immovable
property at the beginning of the tenancy.

The Section further states that an individual who obtained access to the immovable property
through a license cannot dispute the fact that the owner of the property, or the person from
whom the license was obtained, held title to the property at the time the license was
obtained.

Scope
It focuses on the estoppels that exist between
the tenant and his landlord.
Licensor and licensee.

Title of the landlord cannot be denied

When a tenant and landlord establish a relationship, the tenant may object to any actions
taken by the landlord during that time that conflict with the terms of the lease. This includes
receiving ownership of the property and moving into the premises. Tenants never assert that
the landlord is not the legal owner of the property.

Title at the beginning

The tenant cannot challenge the landlord's title at the beginning of the tenancy.
Tenants may, nevertheless, exercise a few rights, including:
 He would not be prohibited from claiming that the property would be transferred or
the title would be assigned to him rather than a third party upon the landlord's
passing.
 He could show that prior to the day the lease was signed, the landlord did not own
any title to the property.

Case Laws:

Aneel U Pg. 11 02/2024

LLB. Evidence Act Assignment

In the case of Moti Lal v. Yar Md[3], the judge held that even after the landlord filed a
complaint for default payment and ejectment, the tenant could not claim that the landlord
no longer had any interest in the property. The landlord's title cannot be contested until after
they have left ownership.
Suraj Bali Ram v. Dhani Ram[4] states that the landlord's title cannot be disputed until the
tenant has left the property.

Section 117:
According to this clause, the person who is supposed to draw the bills cannot be denied from
drawing or endorsing them by the person accepting the bills of exchange. Furthermore,
neither the bailor nor the licensor may dispute that they had the right to grant a license or
issue a bailment at the moment the bailment and licensing started.

The person taking receipt of the bills of exchange has the right to contest that the person who
appeared to have drawn them actually did so. He can establish a third party's ownership rights
over the commodities bailed against the bailor in the event that the bailor delivers the
products to the wrong person instead of the bailee.

Scope:
This provision clearly states that the person accepting the bills of exchange cannot deny that
the person drawing them has the right to draw them or to endorse them, but they may
dispute that the person drawing the bills did not actually draw them.

It cannot be disputed by the bailee or the licensor that the bailor or the licensor had the right
to carry out the original terms of the bailment or grant. However, if the bailee can
demonstrate that the third party, rather than the bailor, was entitled to the goods, they can
use that evidence against the bailee.

CONCLUSION
One crucial idea that shields people from deception and fraud is the doctrine of estoppel. An
innocent individual falls victim to deceptive statements conveyed to them by others on
multiple occasions. There are situations when the plaintiff experiences significant losses. This
theory prevents these circumstances and holds the offender accountable for his improper
behaviour.

This legal principle forces individuals who attempt to deceive others and persuade them to
act by placing their trust in them, as long as they refrain from acting on these false
representations and avoid suffering losses as a result, as they risk facing consequences.

Aneel U Pg. 12 02/2024

LLB. Evidence Act Assignment

Q6. ORAL EVIDENCE MUST BE DIRECT. EXPLAIN THIS STATEMENT, ESTABLISH

THE RELEVANCY OF HEARSAY UNDER THE ACT?

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence
is defined under section 3 (under evidence head) which explains that “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 as oral evidence.” The word ‘Oral’ itself describes
its meaning as something spoken or expressed by mouth; so anything which is accepted in
the court in relation to the inquiry and expressed by any witnesses who are called in the trial
is termed as oral evidence. Oral Evidence also includes the statements made by people in
signs and writing forms (inclusive of people who cannot speak).

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been growing in regards
to usage; as earlier it was not considered to be as precise and blunt as documentary but its
need and importance has been constantly subjected to rapid growth. Oral evidence is also
equally important as it stimulates a person and extracts what a person has seen or what he
wants to say in regards to the trial. Oral evidence is comparatively easier to refer. The
importance has been explained by the Bombay High Court in one of the cases that if the oral
evidence is proved beyond reasonable doubt it can also be enough for passing conviction.

Section 59 – Proof of facts by Oral Evidence

All the facts and circumstances may be proved by oral evidence by expressing or speaking
except the contents of documents and electronic records. The contents of documents and
electronic records cannot be proved by oral evidence. It is held that if any person has to be
called for proving their documents then that document becomes oral and documentary
evidence loses its significance.

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence
needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must
be fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to
be pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For
acting out one, the other needs to be fulfilled.

Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of
direct oral evidence. The word “Direct” in all matters must mean that it is administered by
any person on their own i.e through their personal knowledge and is not passed by any other
person (hearsay) which on the other hand will be inadmissible.

This involves certain cases in which the word “direct” is involved :-

1. It refers to a fact which could be seen, it must be the evidence of a witness who says
he saw it –
It refers to evidence which has been given by the person who has actually seen or
observed the matter by their own eyes, This will be actuated as direct evidence.

Aneel U Pg. 13 02/2024

LLB. Evidence Act Assignment

2. It refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it –
It refers to evidence which has been given by the person who was present and has
actually heard the matter by themselves, this will come under direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner,
it must be the evidence of person who says he perceived it by that sense or manner –
Meaning such evidence that has been given by the person who has perceived it in any
other manner or by any other senses but it has been perceived by that person itself.

4. If it refers to an opinion or to grounds on which that opinion is held, it must be the

evidence of the person who holds that opinion on those grounds –
It means when a person holds any opinion on any matter or incident, only his
testimony on the ground of which his opinion is formed will be admissible in the court.

Meaning of Hearsay Evidence

All of us are aware of what hearsay is; hearsay is any information which is received by any
person from any other source. Hearsay means when a person does not have a personal
knowledge about a particular matter or incident and he has been informed about that
particular matter by any other person.

As oral evidence includes first-hand knowledge thus, Hearsay evidence is excluded under the
ambit of oral evidence because hearsay is not directly obtained evidence.

Rationale behind the exclusion of Hearsay Evidence

From the above head now we know that Hearsay Evidence is second-hand knowledge. But
why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand knowledge. It only
includes what is directly seen, heard and perceived by a person. There is no room for second-
hand knowledge. A conviction passed on hearsay may be truly unjustified as there is no
reliability as to whether the person who has passed on the following information is credible
enough or not. For example: if A has received information through B that he saw C hitting D.
This will be hearsay because A himself has not administered the incident. For this reason,
Hearsay has been excluded from Oral Evidence.

Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their testimony is
accepted and not treated as hearsay. In certain cases, such statements may be admissible.
Opinions of experts which are embedded in things which are maintained for sale like books
of authors can be accepted as oral evidence when the author of the book is dead, cannot be
found, cannot come to the court for some reason or the court thinks that calling such person
may be a delay of proceeding, so any such statements shall be admissible.

Child Complainant’s Evidence by video-recording and television link

Aneel U Pg. 14 02/2024

LLB. Evidence Act Assignment

Oral Evidence also includes the child’s complainant evidence by video recording and television
link, so if there is any evidence which is presented through video recording they are
admissible under oral evidence as long as they are not tampered with.

Witnessing offence on visual display of video-recording

If there is a video which displays an offence being committed it may be admissible if it ensures
that it is not tampered by any means. This may also be included under oral evidence.

Section 33 as an Exception to Section 60

Section 33 of Indian Evidence Act, 1872 basically gives us a structure of exception to section
60, it has certain exceptions against rule of hearsay which we will see below:

1. Res-gestae( derived from a Latin word meaning something deliberately undertaken or

done)– For example, if A sees B passing by him on a bike and after that he sees that B
has been injured but A has not administered the accident on his own, when A goes to
B; B says that C has hit him by truck, such statement though hearsay may be
admissible.

2. Admission or confession- For example, A coming out of the court tells B his guilt of
committing murder of C, though hearsay but statement shall be accepted as evidence.

3. By any reason the person cannot come to the court if he is dead, cannot be found, is
incapable of coming to court; every such information which has been passed to the
other person and that person giving the testimony in the court shall be held
admissible.

Case Laws on Oral Evidence

State v. Rajal Anand
It was held under this case that section 60 of the Indian Evidence Act only includes the word
“direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence
does not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae
has been observed as an exception to the rule of hearsay which explained that any person
who has experienced any series of relevant facts, his testimony after the incident even if he
has not seen the crime being committed will be accepted.

Bhima Tima Dhotre v. The Pioneer Chemical Co.

In this case, it was held that any fact can be proved by oral evidence instead of the content of
documents or electronic records. It is seen that if the person who has presented the
documentary record is called to prove the records, documentary evidence loses all its
significance and it will become oral evidence which will be meaningless.

Conclusion
On concluding the article, oral evidence, with its increasing approach can be appropriate for
passing judgement if proved beyond a reasonable doubt. Earlier it was seen to be weak
evidence but its need has been growing in modern times. In my opinion incidents and facts
can be better understood through oral ways as the person who has administered the incident
itself can explain it in a more clear way rather than documentary form of evidence.

Aneel U Pg. 15 02/2024

LLB. Evidence Act Assignment

Q7. DEFINE EVIDENCE, WHAT ARE THE DIFFERENT KINDS OF EVIDENCE?

Evidence is an important aspect of any case in a court of law because every allegation or
demand in court has to be supported by some evidence otherwise it will be considered
baseless. The word ‘Evidence’ has derived from the Latin expression ‘Evidens Evidere’ which
means the state of evidence being plain, apparent, or notorious.

Concept of evidence law

If one analyses the word ‘evidence’, it will simply mean the state of being evident. But this
meaning is applied to things that intend to provide evidence or give proof about something.

However, in Indian law, evidence has been given a more definite meaning and is used only in
its first sense. Thus going by the act, it can be concluded to say that the word ‘evidence’ means
only those instruments through which suitable and appropriate facts are brought before the
Court and by the help of which the Court is convinced of these facts. Therefore, even matters
other than the statements of witnesses and documents provided for the inspection of the
Court like any confession or statement of any accused person in the course of a trial.

Also, it should be noted that statements given by parties when examined otherwise than as
witnesses, the demeanour of the witnesses, consequences of the local investigation or
inspection, and material objects other than documents such as weapons, tools, stolen
property, etc, will not be considered evidence according to the definition of evidence given
under Indian law.

Nonetheless, these matters are legitimately taken into consideration by the Court. The
definition of ‘evidence’ should be read together with the definition of ‘proved’ and the
merged result of these two definitions are considered for ascertaining a fact to be evident to
the case. However, these are not the only things courts take into consideration when forming
their conclusions. A statement that is being recorded under Section 164 of the Act, is not
considered evidence within the purview of the Act. So even a confession given by an accused
will not be considered evidence in the ordinary sense of the term. Even the entire evidence
produced or stated by hostile witnesses are not excluded completely by the Court.

The court of law has wide powers when it comes to recognizing the powers of the appellant
in a case. Court has full authority to review the whole evidence. It is within the powers of the
court through the entire evidence and relevant circumstances to reach its conclusion about
the conviction or innocence of the accused person.

Definition of evidence in the Indian Evidence Act

According to Section 3 of the Evidence Act 1872, evidence means and includes:
 All such statements which the court allows or needs to be presented before it by the
witnesses in connection to matters of fact under inquiry. These statements are termed
as oral evidence.
 All such documents including any electronics record, presented before the court for
inspection. These documents are termed as documentary evidence.

Types of Evidence

Aneel U Pg. 16 02/2024

LLB. Evidence Act Assignment

According to the definition given in the Indian Evidence Act, evidence can be divided into two
categories:
1. Oral Evidence;
2. Documentary Evidence.

It should be noted that evidence can be both oral and documentary and also, electronic
records can be presented in the court as evidence, which means that even in criminal cases,
evidence can be presented by way of electronic records. This shall include video-
conferencing.

Oral and documentary evidence can be divided into two categories:

1. Direct or primary;
2. Indirect or hearsay or secondary.

There is also a category of real or material evidence, which is supplied by material objects for
inspection of the Court such as a stolen good or the weapon of offense.

Oral Evidence
Oral evidence renders to the evidence that is mainly words spoken by mouth. It is adequate
to be proved without the support of any documentary evidence, provided it has credibility.

Primary oral evidence is the evidence that has been personally heard or seen or gathered by
the senses of a witness. It is called direct evidence as defined by Section 60 of the Indian
Evidence Act.

Indirect or hearsay evidence is generally not admissible in a court of law as the person
reporting the facts is not the actual witness of the facts in issues. However, there are some
exceptions made in the case of hearsay evidence where it is admissible in a court of law.
Section 32 and Section 33 of the Indian Evidence Act, states the exceptional cases of hearsay
evidence.

Documentary Evidence
Documentary evidence is the evidence that mentions any issue described or expressed upon
any material by way of letters, figures or marks or by more than one of the ways which can
be used for recording the issue. Such evidence is presented in the form of a document to
prove a disputed fact in court.

Primary documentary evidence includes the evidence that shows the original documents as
mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary
evidence is the evidence that includes copies of documents that can be presented in the court
under certain circumstances or as mentioned in Section 63 and Section 65 of the Indian
Evidence Act.

Direct or primary evidence

Direct Evidence is acknowledged as the most important evidence required for deciding the
matter in issue. Direct evidence directly proves a fact or disapproves of the fact by its virtue.
In the case of direct evidence, a particular fact is accepted directly without giving any reason

Aneel U Pg. 17 02/2024

LLB. Evidence Act Assignment

to relate to the fact. One does not even need to point out the illustration provided as the
evidence given by the witness in the court of law is the direct evidence which is sufficient
enough to prove the matter as against the testimony to a fact proposing guilt.

Also, at times the rule of best evidence plays an important part in upholding direct evidence
in a court of law. The rule of the best evidence is a rule of law that only includes the primary
evidence in itself. It states that if evidence such as a document or a recording is presented in
the court then only the original ones will be admissible unless there is a reason for not using
the original one in the court.

Indirect evidence
Indirect evidence is that evidence which proves the facts in question by giving other facts that
are indirect evidence and afterwards, proving their relevance to the issue. The deduction that
can be drawn is from such evidence by connecting a series of other facts to the facts in
question. These indirect facts must have been related to the facts in question and have a
cause and effect connection.

Direct evidence is used in two senses:

As against hearsay evidence

According to this opposition, direct evidence is the evidence given by a fact that is sensed by
a witness with his senses or an opinion held by the witness whereas hearsay evidence is the
evidence that what some other person has told the witness to have seen or heard by the
other person. This differentiation can be noticed in Section 60 of the Indian Evidence Act,
where the word ‘direct’ is used in contradistinction with the term ‘hearsay’ evidence.

As against circumstantial evidence

Direct evidence is that evidence which goes expressly to the very issue in question and which,
if believed will prove the fact in question without needing any help from any reasoning for
example evidence such as the testimony of an eye-witness to murder, whereas circumstantial
evidence will not prove the issue in question but it ascertains the point only by inference or
reasoning.

For example, the evidence of the fact that a person had a motive to murder another individual
and at the time of the murder the person was seen with a dagger, going towards the place of
the murdered individual and shortly afterwards, was seen returning from that very place in
blood-stained clothes, would be called as indirect or circumstantial evidence.

Conclusion
Evidence is simply everything that is utilized to acknowledge or explain the truth of
submission and every kind of evidence is considered extremely important to determine the
outcome of a case.

Whether it is a civil or a criminal case, evidence plays a significant role as the proof of facts
will not be effective without having any evidence. Moreover, the different types of evidence
are notable concerning their relevance and admissibility standards. In simple words, it would
be impossible to determine the results of a case without having any evidence in the case.

Aneel U Pg. 18 02/2024

LLB. Evidence Act Assignment

Q8. WHEN IS OPINION OF EXAMINER OF ELECTRONIC EVIDENCE TAKEN?

All of us know what importance does the Indian Evidence Act, 1872 hold under a trial, which
also has a pre-occupied impact on the minds of lawyers or any other legal person. This Act
gives a prominent existence to all the facts and pieces of evidence affiliated with the crime
scene which is considered to be amongst the main components governed by the said Act.
Coming to another crucial part of this Act, which is the “Opinion of Experts”. Evidence Act
helps to bring in a frame the opinion of experts which may be pertinent for a case to rely on
and also sticks some kind of evidentiary value to be favoured from such opinions. Further
opinions can be pellucidly divided into the experts like- Handwriting expert, Foreign Law,
Science and Art and Electronic evidence. Such opinions are governed by the Indian Evidence
Act from Section 45 to 51 (inclusive of Section 45A and 47A). In this article, we will deal with
all such aspects of the “Opinion of examiner of the Electronic evidence.”

Who is an “Expert”?
There is no actual definition provided for the experts under the Evidence Act but, it explains
that an expert is any person who is skilled in a particular subject and has extraordinary
knowledge about the same subject matter. The court seeks the opinion of such experts on
the matters which are important to be referred by them.

The definition of expert and their function were laid down in the case of State of Himachal
Pradesh v. Jai Lal and Ors, 1999, it was held by the Supreme Court, that:
 An expert is a person who lays his or her opinion on a particular subject in which they
have special knowledge or observation; or any extended study or experience.
 The expert cannot be characterized as a witness, but a person of some advisory trait
to polish the extracted information.
The real function of the expert is identified through the case of Titli v. Jones, 1933, in which it
was held by the Court that the expert has to put together all evidence and facts; and analyse
them to derive a required conclusion which will serve as an advisory character.

Expert opinion
As discussed above, the expert is any person who has specialised knowledge or experience in
any particular subject matter. When such an expert is called by the Court to give their opinion
on certain subject matters in which they specialise; the opinion for the same is considered as
“Expert Opinion”.

The opinion of the examiner of electronic evidence

Section 45A of the Evidence Act as mentioned above talks about the opinion of the examiner
of electronic evidence. Before getting into the content of Section 45A let us first understand,
what is the meaning of examiner of electronic evidence.

Examiner of the electronic evidence

An electronic form of evidence means any piece of evidence which is crucial for the case and
is transmitted or is contained in any digital form like a digital cell, videos or audios. A person
who has the required knowledge or has specialised experience in the subject of technology
and who evaluates the same is considered to be the examiner of electronic evidence.

Aneel U Pg. 19 02/2024

LLB. Evidence Act Assignment

Requirements and importance of the expert opinion

The requirements for such experts depends upon three main points for being admissible in
the court which is as follows:
 The expert must be within the renewed field of practice;
 The expertise must be based on reliable disciplines;
 The expert must be qualified in terms of experience.

Evidentiary value of the examiner as an expert

 Though the expert acts as an advisory character for the court, still the court is not
bound by his opinion or the opinion does not act as a concrete wall for the case. The
qualities of the opinion still remain to be on the verge of choice, whether to be
adopted or not.
 The judgement of a case should not only be based upon the opinion of the experts as
their opinion is based on a sense of technicality only, and a case needs to be judged
from all grounds whether crucial or not.
 The court cannot declare the accused to be guilty merely because the expert felt so;
until and unless the accused is not proven guilty totally by considering all the facts and
evidence of the case.
Therefore, we can conclude that the evidentiary value of the expert is not like other
witnesses. They play an advisory role and their opinion is not bound to the Court.

Corroboration of expert opinion

It was held in the case of Murari v. State of Madhya Pradesh, 1979, that nothing by the expert
shall be denied on the account that it was not corroborated. If the expert claims something,
the court needs to corroborate it to a certain degree. Taking the opinion in full regards is the
court’s own decision but a certain amount of it must be corroborated to increase the
understanding of the technical part of the case.

Case laws
Ramesh Chandra Agrawal v. Regency Hospital Ltd & Ors, 2009
It was held by the Court in this case that to make the expert opinion admissible, it is necessary
to hear out the expert. The reason why it is crucial to hear the expert out because it is
pertinent and a requirement of the case to have extended technical knowledge and
specialised experience to judge some aspects of the case.

Conclusion
Though the opinion of the expert plays an important role but still not so crucial that the whole
judgement will depend on their opinion only. The opinion of an expert is a subjective point of
view that will be helpful for the Court as it is not jacked with favouritism for any particular
party but relies upon all the technicality of the subject matter. We came to know about
another important pillar of expert opinion i.e. if the electronic evidence is not admissible in
the court it will not resort to the examiner for the opinion. Evidence Act thus has made it
easier for us to understand the major aspects of a trial and also is a vast statute which provides
various clauses to make a case decided fairly.

Aneel U Pg. 20 02/2024

LLB. Evidence Act Assignment

Q9. EXPLAIN IN DETAIL THE PROVISION S. 32 OF THE IEA, 1872 REGARDING

STATEMENT OF A PERSON WHO IS DEAD OR CANNOT BE FOUND ETC ?

Dying Declaration is admissible in evidence being 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.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances of the case,
appears to the Court unreasonable, are themselves relevant facts in the following cases.
1. When it relates to cause of death: When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted
in his death, in cases in which the cause of that person�s death comes into question.
Such statements are relevant whether the person who made them was or was not, at
the time when they were made, under expectation of death, and whatever may be
the nature of the proceeding in which the cause of his death comes into question.

2. Statement is made in course of business: When the statement was made by such
person in the ordinary course of business, and in particular when it consists of any
entry or memorandum made by him in books kept in the ordinary course of business,
or in the discharge of professional duty; or of an acknowledgement written or signed
by him of the receipt of money, goods securities or property of any kind; or of a
document used in commerce written or signed by him or of the date of a letter or
other document usually dated, written or signed by him.

3. Statement against interest of maker: When the statement is against the pecuniary or
proprietary interest of the person making it, or when, if true it would expose him or
would have exposed him to criminal prosecution or to a suit for damages.

4. Statement gives opinion as to public right or custom, or matters of general interest:

When the statement gives the opinion of any such person, as to the existence of any
public right or custom or matter of public or general interest of the existence of which
if it existed, he would have been likely to be aware, and when such statement was
made before any controversy as to such right, custom or matter had arisen.

5. Statement relates to existence of relationship: When the statement relates to the

existence of any relationship by blood, marriage or adoption between persons as to
whose relationship by blood, marriage or adoption the person making the statement
had special means of knowledge, and when the statement was made before the
question in dispute was raised.

6. Statement is made in will or deed relating to family affairs: When the statement
relates to the existence of any relationship by blood, marriage or adoption between
persons deceased, and is made in any will or deed relating to the affairs of the family
to which any such deceased person belonged, or in any family pedigree, or upon any

Aneel U Pg. 21 02/2024

LLB. Evidence Act Assignment

tombstone, family portrait or other thing on which such statements are usually made,
and when such statement was made before the question in dispute was raised.

7. Statement in document relating to transaction mentioned in section 13, Clause (a):

When the statement is contained in any deed, will or other document which relates
to any such transaction as is mentioned in Section 13, Clause (a).

8. Statement is made by several persons and expresses feelings relevant to matter in

question: When the statement was made by a number of persons, and expressed
feelings or impressions on their part relevant to the matter in question.

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 vs Woodcock,
explained the general principle:

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 Supreme Court.

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 state of confusion.

Where there is more than one 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:

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.
5. 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

Aneel U Pg. 22 02/2024

LLB. Evidence Act Assignment

capacity of the declaring was not impaired at the time of the statement, that the
statement has been made at the earliest opportunity and was not the result of
tutoring by interested parties.

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.

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

Conclusion
Dying declaration no doubt is an important piece of evidence to guide the courts in the
onerous task of finding the truth. Though it suffers from a serious blemish still carries much
weight. It constitutes radical departure from the established principles of evidence as the
statement and its veracity cannot be cross examined and virtually admissibility of hearsay
evidence. Courts have never been allergic to allow conviction solely on the basis of testimony
of a witness who cannot be available before the court to testify the substance of the
statement which forms the basis of its judgment.

Basic to the whole process is the avowed sanctity of a man who utters last word before leaving
the world and honestly averring the involvement of a person who inflicted injuries on him
leading his ultimate death. Such a statement has got statutory permission but the courts have
cautioned before endorsing such permission. Real danger which tempted courts to formulate
rigid parameters of caution is the misuse of such statements by either parties to the
proceeding.

Obviously prosecution will try to find force in it enabling him to punish the offender and the
defense in shattering the prosecution story by weakening the force therein to establish
doubts for getting exonerated from the criminal liability for which he is facing trial. Between
these two extremes much depends upon the adjudicating officer to give due and reasonable
weight to such evidence. In due course of time Indian courts have evolved the principle of
caution and what is Marshalled is clarity rule.

If the statement is clear, unambiguous, pointed and match or support the prosecution story
beyond and unerringly courts will lean heavily in favour of using the statement. Thus, courts
emphatically suggested for due caution and if the statement stands to meet the parameters
there is enough scope to rely upon it. Evidence of a fact is to be adduced and the balance of
its admissibility has to be accepted by the presiding adjudicator.

Aneel U Pg. 23 02/2024

LLB. Evidence Act Assignment

Q 10. EXPLAIN WHAT IS EXAMINATION IN CHIEF, CROSS EXAMINATION AND

RE-EXAMINATION. WHEN ARE EACH HELD AND FOR WHAT PURPOSE?

Examination of witnesses is an important principle in which witness take a stand of his or her
words. For the protection of the integrity of the evidence. It is a very important part of a
criminal and civil trial. It is not important only for law students, it is also important for
practising lawyers to know the art and law related to examination of witness.

Examination in Chief
Examination in chief is defined under Section 137 of the Indian Evidence Act, when the party
calls a witness in the examination of witnesses that is called examination in chief. Examination
in chief is the first examination of witnesses after the oath. It is the state in which party called
a witness for examining him in chief for the purpose of eliciting from the witness all the
material facts within his knowledge which tend to prove the party’s case. It is also known as
Direct Examination.

The objective of Examination in Chief

1. It overcomes the burden of proof legally sufficient.
2. Remembered and understand.
3. Persuasive.
4. Hold the cross-examination.
5. Contradictory and anticipatory and of evidence that the opposition will present.

There is more objective of examination in chief are as follows:

A. Major objectives
1. All the evidence must be admissible.
2. The witness needs to present as intended and capable of being believed.
3. Each and everything related to the fact of evidence of the offence must be proven
beyond a reasonable doubt through the witnesses oral evidence and exhibits.
B. Minor objectives
1. Present a complete and logical, rational theory of the offence.
2. Witnesses present in the best possible light.
3. Mention all the facts in the evidence and attempt to explain the relation between
propositions that cannot both be true at the same time.
4. Limiting the exposure of witnesses through the shut down of potential cross-
examination.

Examination in chief questions

There would be general questions asked in the examination in chief which is related to the
facts of the evidence no leading questions are asked in the examination in chief. Leading
questions are asked only in cross examination and re examination, first of all, prosecutor ask
the question in the examination in chief in the criminal trial.

Cross Examination
After finishing the examination in chief, cross-examination will start. In the cross-examination
defendant lawyer asks the cross-question which was asked by the prosecutor. Defendant
lawyer may ask the questions which are related to the facts and the defendant can also ask

Aneel U Pg. 24 02/2024

LLB. Evidence Act Assignment

the leading question in the cross-examination which were not allowed in the examination in
chief. Cross examination is very important in the examination of witnesses, due to the cross-
examination many facts get clear because in the cross-examination defendant analyse all the
statements of the witnesses then asks cross question related to the statement which was
given by the witnesses in the examination in chief. The Defendant can also ask the question
which was not related to the examination in chief but related to the facts of evidence.

Cross Examination in civil cases in India

All the witnesses in civil cases which are produced or examined by the court on the wish of
parties must be presented before the court within 15 days from the date on which issues are
framed or within such other period as the court may fix. Then parties have to file a list of
witnesses in the suit. After that court can ask the witnesses for examination by sending
summons or parties may call the witnesses by themselves. If the court issued a summons for
asking the witnesses for the examination then the expenses which arise due to the calling of
witnesses by issuing summons has to be deposited by the parties. The money deposited by
the parties in this condition is known as “Diet Money”. The date on which the parties wish to
produce and examine the witnesses in the court that is hearing. Now the hearing will decide
the court on the date of hearing. First thing is done by the plaintiff”s examination in chief in
which he asked the question which was seen by the witness. After that defendant ask cross-
questions which were asked by the plaintiff in the examination in chief. And after the cross-
examination is over at this stage the court will fix a date for final hearing.

Cross Examination in criminal cases in India

There are different stages of cross-examination in criminal cases in the criminal trial in a
warrant case instituted on the police report After the charges are framed, and the accused
pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt
of the accused. The prosecution is required to support their evidence with statements from
its witnesses. This process is called “examination in chief”. The magistrate has the power to
issue summons to any person as a witness or orders him to produce any document. After the
examination in chief, the adverse party asked the cross-questions to witnesses that is called
cross examination.

Re examination
The party who attend the witness for the cross-examination shall be called re-examination. If
the party not subjecting to cross-examination as per the court order then it is not safe to trust
on examination in chief.

Conclusion
Examination of witnesses is very important for any case whether it belongs to the civil or
criminal nature and both the procedural law explain the examination of witnesses. Section
135 to 166 of Indian Evidence Act explain the examination of witnesses in which act cover all
the things, like who can first examine the witnesses during the examination of witnesses and
what are the relevant facts that are accepted during the examination of witnesses and what
are the questions asked by an advocate during the cross-examination of witnesses and what
questions are not asked during the cross-examination and also tells the power of judges
during the examination of witnesses and at last give the provision related to the power of the
jury and assessors to asked the question during the examination of witnesses.

Aneel U Pg. 25 02/2024

LLB. Evidence Act Assignment

ANSWER IN TWO SENTENCES

1. WHAT IS "CONCLUSIVE PROOF"?

"Conclusive proof refers to presumption which cannot be overcome or changed by any

additional evidence or argument. According to Section 4 of the Indian Evidence Act, 1872
“Conclusive proof” – Where 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.

2. WHO IS "HOSTILE WITNESS"?

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

3. EXPLAIN "FACT IN ISSUE" AND "FACT IN LAW" ?

The expression “fact-in-issue” means and includes-any fact from which either by itself or in
connection with other facts, the existence, non- existence, nature or extent of any right,
liability or disability, asserted or denied in any suit or proceeding necessarily follows.

"Fact in law" means and includes - (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.

4. WHO IS AN "ACCOPLICE"?

As per Section 133 in The Indian Evidence Act, 1872, An accomplice shall be a competent
witness against an accused person; and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice.

5. WHAT IS AN AMBIGUOUS DOCUMENT?

Ambiguity refers to something doubtful, uncertain, or something having multiple meanings.

Extraneous means of external origin; separate from the object to which it is attached;
irrelevant or unrelated to the subject being dealt with.

6. WHAT IS "PROFESSIONAL COMMUNICATION"?

As per Section 126 of Indian Evidence Act, Professional communication states that, No
barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s
express consent, to disclose any communication made to him in the course and for the
purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his
client, or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to disclose
any advice given by him to his client in the course and for the purpose of such employment

Aneel U Pg. 26 02/2024

LLB. Evidence Act Assignment

7. WHAT IS "ADMISSION"?

According to Sections 17 of IEA, admission under Evidence Act refers to the voluntary
acknowledgment of the existence or truth of a specific fact. It encompasses statements,
whether oral, written, or contained in electronic form that imply an inference about a fact in
issue or a relevant fact.

8. WHAT IS "CONFESSION"?

The term ‘confession’ is nowhere defined or expressed in the Indian Evidence Act. Section 17
expressly provides that any statement whether oral or in the form of documentary which put
forward for the consideration of any conclusion to the fact in issue or to the relevant facts.
The statements may infer any reasoning for concluding or suggesting that he is guilty of a
crime.

9. WHO MAY TESTIFY?

As per Section 118 of Indian Evidence Act, All persons shall be competent to testify unless the
Court considers that they are prevented from understanding the questions put to them, or
from giving rational answers to those questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the same kind.

10. WHAT IS "REFRESHING MEMORY"?

As per Section 159 of Indian Evidence Act, A witness may, while under examination, refresh
his memory by referring to any writing made by himself at the time of the transaction
concerning which he is questioned, or so soon afterwards that the Court considers it likely
that the transaction was at that time fresh in his memory.

11. WHAT ARE "LEADING QUESTIONS"?

Section 141 of the Indian Evidence Act, 1872 deals with leading questions. A leading question
is one which suggests the answer or puts words in the mouth of a witness. It is a question that
prompts or encourages a witness to give a particular answer.

12. CHARACTER WHEN RELEVANT?

Section 53 of The Indian Evidence Act provides that in criminal cases, the good character of
the accused person is relevant. The reason behind this is the basic human psychology that a
person of good character will not generally resort to a criminal act.

13. WHAT IS "MAY PRESUME"?

May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian

Aneel U Pg. 27 02/2024

LLB. Evidence Act Assignment

Evidence Act provides that a fact or a group of facts may be regarded as proved, until and
unless they are disapproved.

14. WHEN DO FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT?

As per Section 11 of Indian Evidence Act, Facts not otherwise relevant are relevant --
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.

15. WHAT IS RES GESTAE?

The Latin term “Res Gestae” translates to “things done” or “the transaction.” In the context
of legal evidence, Res Gestae refers to statements made by a person as part of the immediate
reaction to a shocking or startling event. These statements are considered trustworthy and
admissible as they are presumed to be spontaneous and free from fabrication

Aneel U Pg. 28 02/2024