Evidence Act

Frequently Asked Questions on Evidence Act

Q. 1 What do you understand by Law of Evidence ? What do you understand by

"Substantive law" and "Adjective Law"? In what class would you place the Law and
Evidence ?
Ans. The word evidence has been taken from latine expression "evidence" which implies to
make clear or evident. So law of evidence deal with modes of Leading evidence as well as
regulating that evidence of which fact can be given in court. According to Section 2 such clause
(i) of Cr.P.C. a judicial proceedings includes any proceedings in course of which evidence is or
may be legally taken on oath. So object of law of evidence to assist the court in judging what
facts are relevant to ascertain the truth and to avoid the confusion and how such relevant facts
will be proved in courts by lawfully leading the evidence.

The Indian Evidence Act is primarily based on English Law of Evidence but the Act is not
exhaustive and does not contain the whole of the rules of evidence. Law of Evidence, according
to Sir James. F. Stephen :-
"The law of evidence is that part of the law of procedure, which with a view to ascertain
individual rights and liabilities in individual cases, it decides :
(1) What facts may and what may not be proved in such cases.
(2) What sort of evidence must be given to a fact which may be proved and
(3) By whom and in what manner the evidence must be given by which any fact is proved."
The Indian Evidence Act is divided into three main parts :-
(a) Relevancy of facts (Section 6 to 55)
(b) Mode of proof of relevant facts (Section 56 to 117)
(c) By whom and in what manner evidence must be produced (Section 118 to 167)
Laws may be divided primarily into `Substantive' and `Procedural' Laws. The Laws by which
lights, duties and Liabilities are defined are called "Substantive law". For example Indian Penal
Code. The laws which prescribes the mode or procedure by which application of substantive
law is regulated are called "procedural law" or "Adjective law"
So Law of Evidence is law of procedure i.e. adjective law Evidence Act does not define or fix
rights or liabilities under the law but only prescribe the mode by which rights or liabilities or
parties is as curtained. It is thus adjective law and helps in proving or implementing the
substantive law.
Law Evidence is "Lex fory" :- Where evidence is taken in one country in aid of suit or
proceedings in another country, the law applicable to the recording of the evidence would be
the law prevailing in the country where the proceeding is going on. Phrase "Lex fory" means the
law of place of the action. The law of evidence is `lex fory'. Whether certain evidence proves a
certain fact or not is to be determined by law of the country where the question arises, where
the remedy is sought to be enforced and court sits to enforce it.

Q. 2 Define the word "Evidence" and distinguish between oral and documentary evidence
and dierct and circumstantial evidence.

Ans. Expression "Evidence" has been defined in Section 30 Indian Evidence Act 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 produced for the inspection of the court such documents are called
documentary evidence."
The word "evidence" means instruments by which relevant facts are brought before court.
Expression "Evidence" Signifies the state of being evident. According to prof. Green Leaf -
"evidence in legal acceptation includes all the means by which any alleged matter of fact, the
truth of which is submitted to investigation, is established or disproved."
Oral Evidence : Oral evidence means statement made by a witness before a court in relation to
matter of fact under inquiry. So oral evidence is such deposition of witness who have witnessed
the facts or who became acquainted with the facts they are deposing and which has to be
recorded by court.
Documentary Evidence : The `documentary evidence' is a document produced for inspection of
the court or the judge. A document is evidence only when it is produced for the inspection of
court
Direct Evidence :- The direct or positive evidence is evidence about the real point of
controversy. Oral evidence must be always direct. The evidence is direct if the court to set upon
it has to rely upon only the witness whereas it is hearsay if it has to rely upon not only the
witness but some other persons also.
Circumstantial Evidence : In simple words `Circumstantial Evidence' mean evidence relating to
series of circumstances which if taken together, assist the court to come to any determination,
in the absence of any eyewitness evidence. Circumstantial evidence is not to be confused with
hearsay or secondary evidence. The circumstantial evidentice is always direct but prove any
relevant circumstance.
Normally facts which could be seen are proved by an eye witness, but sometime in the absence
of any eye witness to give the eye witness version, court rely on series of circumstances which
assist the court to determine the fact in issue. When a witness has not seen the commission of
crime by accused, then court can rely upon surrounding circumstances before or after the
commission of crime which connect the accused with the crime.In Joseph v. State of Kerala
2000 (2) RCR 738 (SC) Supreme Court held In cases based on circumstantial evidence, sometime
witness may lie but circumstance will not It is necessary that all circumstances must cautiously
be scrutinised to see that incriminating circumstances are such as to lead only to an hypothesis
of guilt of accused and reasonably exclude every possibility of his innocence.

Q. 3 State briefly the difference between "fact-in-issue" and "relevant fact".

Ans. Expression "fact-in-issue" has been defined under Section 3 of Indian Evidence Act as :-

"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 dis ability, asserted or denied in any suit or proceedings necessarily follows."
Explanation : Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any court records an issue of fact, facts asserted or denied in the answer to
such issue is a fact in issue.
So "fact in issue" are those facts which are alleged by one party and denied by other in the
proceedings before the Court or main controversy between parties which is to be adjudicated
upon.
Two things are relevant for determining whether a fact is in issue or not.
(i) The fact should be in dispute between the parties.
(ii) The fact should touch the question of right or liability.
A is accused of the murder of B. At this trial the following fact may be in issue, viz. (i) that A
caused B's death; (ii) that A intended to cause B's death; (iii) that A had received grave and
sudden provocation from B; (iv) that A, at the time of doing the act which caused B's death, was
by reason of unsoundness of mind, incapable of knowing its nature.
The Act defines the terms `Fact' and `Relevant' separately, Section 3 defines `Fact' as follows :
"Fact means and includes -
(i) anything, state of things, or relation of things, capable of being perceived by the senses
(Physical fact);
(ii) any mental condition of which any person is conscious Psychological facts);
Relevant facts - Section 3 defines the word relevant as follows:
"One fact is said to be relevant to another whence one is connected with the other in at any of
the ways referred to in the provisions of this Act relhing to the relevancy of facts". The word
`relevant' means that any to facts to which it is applied are so related to each other that
according to the common course of events, one, either taken by itself or in connection with
other facts, proves or renders probable the past, present or existence or non- existence of the
other.
`In short, relevant facts are facts so connected with each other as to prove or disprove the facts
in issue. Relevant facts are not themselves issue, but are foundations of inference regarding
them.
This Act does not give any definition of the word `relevant'. It only lays down that a fact
becomes relevant only when it is connected relevancy of facts. A fact in order to he a relevant
fact must be connected with the facts in issue or with any other relevant fact in any of the ways
referred to in Sections 5 to 55. A fact not so connected is not relevant fact.
 Q. 4 All admissible evidence is relevant but all relevant evidence is not necessarily
admissible comment.

Ans. `Relevancy' and `Admissibility' are two different terms and connotes different
meaning Section 5 of Indian Evidence Act says "in every suit or proceeding evidence may be
given of existence or non- existence of fact in issue or any other fact which is relevant as
declared by Section 6 to 55." So question of relevancy has been dealt with in Section 6 to 55 of
Evidence Act and question of admissibility of relevant facts has been dealt with from Section
56 onwards of Evidence Act.
RELEVANT:- Expression "Relevant" has been defined u/s 3 of Indian Evidence Act as " One fact
is said to be relevant to another when one is connected with other in any of the ways referred to
in provisions of this Act relating to the relevancy of facts"
Term `Relevancy' means a fact which is logically probative. Fact which helps the court in
deciding the controversy or fact in issue. Rule of relevancy implies that certain fact is connected
or is so important to be proved for adjudicating the controversy or fact in issue.
Admissibility is not based on the probability but on law Rule of admissibility implies that how
certain form of evidence relating to relevant fact is to be proved. Admissibility set out Rules in
compliance of which evidence is to be given about all relevant facts in a case. So admissibility
means method of proving.
In a judicial proceeding the courts have to give decision about the existence or non-existence of
a right or liability and to reach at the conclusion court needs materials . What is material (facts)
which may be produced before a court is the first question because if there is no restriction, the
introduction of irrelevant facts will waste the time of court . Therefore first thing to be seen in
any judicial proceeding is to see that only material or `relevant' facts must be introduced. After
having decided the question of `Relevancy of facts' Question arises as to mode of proof of
`Relevant facts' this is also called `Admissibility'. So admissibility means Rules of method of
proof. Therefore `Relevancy' and `Admissibility' are not the same thing.
In Ram Bihari Yadav v. State AIR 1998 SC 1850 It was observed by Apex Court "More often the
expression `Relevancy' and `Admissibility' are used as synonyms but their legal implications are
distinct and different for more often than not, fact which are relevant may not be admissible ,
for example communication made by spouses during marriage or between an Advocate and his
client though relevant are not admissible , so also the facts which are admissible may not be
relevant, for example Question permitted to be put in cross examination to test the veracity or
impeach the credit of witness though are admissible but not relevant."

Q. 5 Explain the term "Proved", "Disproved" and "Not Proved" as given in Indian Evidence
Act.

Ans. Section 3 of Indian Evidence Act has defined the term `Proved', `Disproved' and `Not
Proved' as follows:
Proved : A fact is said to be proved when, after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved : A fact is said to be disproved when, after considering the matters before it, the
Court either believes it does not exist, or considers its non-existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon the supposition that it
does not exist.
Not Proved : A fact is said not to be proved when it is neither proved nor disproved.
The extent to which a particular evidence aids in proving the facts in controversy is called as
probative force. This probative force must be sufficient to induce the court either (a) to believe
in the existence of the fact sought to be proved or (b) to consider its existence so probable that
a prudent man ought to act under the supposition that it exits the test is of probability upon
which a prudent man may base his opinion.
In State of West Bengal v. Section Orilal Jaiswal AIR 1994 SC 1418 it was observed by Supreme
Court "Proof does not mean rigid mathematical demonstration because that is impossible. It
means such evidence as would induce a reasonable man to come to a conclusion."
Supreme Court in Lokeman Shah v. State of W.B., 2001(2) RCR(Crl.) 484 has observed in Para
17 of judgment that "a fact is said to be proved when after considering the matters before it,
court either believes if to exist or consider its existence so probable that a prudent more ought
under the circumstances of particular case, to act upon the suppresition that it exists what is
required is materials on which the court can reasonably act for the reaching the supposition
that certain fact exists, the standard required for reaching the supposition is that of a frudent
man acting on any important matter concerning him.

Q. 6 Explain the expressions `May Presume' shall presume and `Conclusive proof' as used
in Section 4 of Indian Evidence Act 1872.

Ans. Section 4 of Indian Evidence Act has defined the expression `May Presume' shall Presume'
and `Conclusive proof.' Before discussing these expressions, it is necessary to understand the
meaning of word "presumption." PRESUMPTION : Presumption Means things taken for granted.
Normally court while deciding any case rely on those facts which have duly been proved
according to law. But law of Evidence has provided that court can take into consideration
certain facts even without calling for proof of them i.e. court may presume certain thing. So
presumption means an inference either affirmative or negative of the existence of some facts
drawn by court by process of probable reasoning from some matter of facts either judicially
noticed or established by legal evidence.
Recently in M. Narsinga Rao v. State of A.P. AIR 2001 SC 318 Supreme Court observed
"In reaching the conclusion the court can use the process of inference to be drawn from facts
produced or proved. Such inferences are a kin to presumption in law. Law gives absolute
discretion to the court to presume the existence of any fact which it thinks likely to have
happened. In that process the court may have regard to common course of natural event,
human conduct, public or private business vis a vis the facts of the particular case Presumption
is an inference to certain fact drawn from other proved facts While in erring the existence of a
fact from another, the court is only applying is only applying a process of intelligent reasoning
which the mind of a prudent man would do under similar circumstances Presumption is not the
final conclusional to be drawn from other facts But it could as well be final if it remains
undisturbed later". Presumption can be of two kind:-
(i) Presumption of Fact
(ii) Presumption of Law.
PRESUMPTION OF FACT:
As stated above presumption of fact are those inferences which a person naturally draw having
regard to experience and observation of natural course of events. Section 114 of Indian
Evidence Act and its illustrations are example of presumption of fact.
PRESUMPTION OF LAW: Presumption of law are of two kind :-
(a) Rebuttable Presumption of Law
(b) Irrebuttable Presumption of Law
(a) Rebuttable Presumption of Law: In simple words rebuttable presumption of law is one
which can be rebutted by leading evidence to contrary. Rebuttable presumption of law denotes
what term "shall presume" as defined in section 4 of Act implies.
(b) Irrebuttable Presumption of Law: Those presumption of law or legal proposition which are
conclusive in nature and which can not be rebutted or over come by leading evidence to
contrary. Irrebutable presumption of law denotes what term `conclusive proof' implies
in Section 4 of Evidence Act.
Now coming to Section 4 of Evidence Act.
"May Presume": " Whenever it is provided that court may presume a fact, the court may either
regard such fact as proved, unless and until it is disprove or may call for proof of it."
So expression `May Presume' implies that court has discretion to presume a fact or not. Court
may instead of presuming such fact as proved, may call party to lead evidence to prove such
facts and then allow opposite party to lead evidence for disproving such fact For
example Section 90 of Indian Evidence Act provides that when a document purporting to be 30
years old as produced from proper custody, then court may presume that the document was
signed and written by person by whom it purported and dispense with the proof of it or may
call for proof of it.
"Shall Presume": Section 4 further provide that "Whenever there is provided in the Act that
court shall presume a fact, it shall regard such fact as proved unless and until it is disproving."
So whenever there is provision to the effect that the court "shall presume" a fact', the court can
not exercise its discretion. It is compelled to take the fact as proved i.e. it shall have to presume
the fact. But in this case court will be at liberty to allow the opposite party to adduce evidence
to disprove the fact so presumed.
"Conclusive Proof": Section 4 further provide that "When one fact is declared by this act to be
conclusive proof of another, the court shall on proof of one fact regard the other as proved and
shall not allow evidence to be given for the purpose of disproving it". So conclusive proof
implies irrebuttable presumption and whenever, it is provided that a fact is `conclusive proof' of
another fact; court has no discretion at all. It can not call upon a party to prove that fact
because court will presume such fact as proved nor court will allow the opposite party to
adduce evidence to disprove the fact.

Q. 7 Of what facts may evidence be given in any suit or proceedings?

Ans. "Section 5 of Indian Evidence Acts provides Evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in issue and of such other fact as fare
hereinafter declared to be relevant and of no others.
Explanation - This section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force relating to civil
procedure."
So Section 5 declares a general rule of evidence, stating that in any suit or proceedings, parties
can give evidence of existence or non-existence and
(a) fact-in-issue and
(b) such facts as are declared to be relevant under Section 6 to 55 of Act
Section 5 of Act conclude by stating ".......and of no other" which means evidence can be led
only regarding fact in issue and facts declared by law to be relevant under any provision of
Section 6 to 55 and those which are neither fact-in-issue nor relevant fact, can not be proved.
As submitted earlier there is distinction between "Relevancy" and "admissibility".

Q. 8 (a) What is the Rule of Res Gestae ?

(b) A after learning that C had been murdered went to the spot and found that body of C
was being taken to the house of C by four persons who hold him that B had murdered C
and had run away. Does the statement of four persons forms part of Res Gestae.
(c) The question is whether certain goods Ordered from B were delivered to A. The goods
were delivered to several intermediate persons successively. Is each delivery a relevant
fact

Ans. (a) Section 6 of Indian Evidence Act lays down that "Facts Which though not in issue or so
connected with fact in issue as to form part of same transaction are relevant whether they
occurred at the same time and place or at different time and place" Section 6 of Evidence Act
enacts the Rule which English text book treated under the head of "Res Gestae" Section
6 appears to provide proof of statements which are more or less of collateral nature. Not the
principal fact but Subsidiary one which are so connected with the fact in issue as to form part of
same transaction. In Order to a declaration to be admissible as a part of Res Gestae, it must be
spontaneous utterance of mind while under the influence of transaction. The test to determine
whether a fact forms part of same transaction depends upon whether they are so related to
one another in point of purpose or as to cause and effect or as probable as to constitute one
continuous action. Proximity of time is not so essential as continuity of action and purpose.
Supreme Court has recently in Sukhas v. State of U.P. 2000 Cri.L.J. 29 observed "the principle
of law embodied in Section 6 of Evidence Act is usually known as `Res Gestae. 'The essence of
the doctrine is that a fact which though not in issue, is so connected with fact in issue as to form
part of same transaction becomes relevant itself. This Rule is roughly speaking in exception to
the general Rule that hearsay evidence is not admissible, rationale in making certain statements
or facts admissible under Section 6, is on account of the spontaneity and immediacy of such
statement or fact in relation to fact in issue. But it is necessary that such statement or fact must
form part of same transaction."
(b) In Sawal Das v. State of Bihar AIR 1974 SC 778.
It was observed that all spontaneous statements in some way connected with the main
transaction are not admissible, statement is not admissible u/s 6 only because it is uttered in
course of transaction, while no doubt the spontaneity of statement is guarantee of the truth,
the rationale for its admissibility under Section 6 is that it is part of same transaction and not
merely because it is spontaneous.
In the present case A had gone at the spot after the event was over and also, after coming to
know that C has been murdered and when he reached at the spot, deceased was being taken to
his house by four person, by one of them, he was informed that B had murdered C. Fact that
murder of C had taken place and A came to know about that and then reached at spot and after
reaching at the spot he was informed by four persons there that B has committed the crime,
are not so connected with each other as to form same transaction and thus his evidence is not
admissible u/s 6 of Evidence Act. In Mahendera v. State of M.P. 1975 Criminal Law Journal
110 it was held that statement of a person who had come afterwards to the effect that persons
at the spot were saying that accused had killed the deceased would not be admissible as it
would be only hearsay.
(c) Section 6 makes the constituent incidents of a transaction relevant, if a part of the
transaction is a fact in issue. These constituent incidents may be acts, declarations or other
facts accompanying or explaining the transaction. In the present case, each delivery to the
intermediate persons successively is a part of the same transaction, and therefore, relevant
u/s 6 of the Act. See illustration (d) to the Section 6.

Q. 9 Comment on following giving suitable example :-

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

Ans. Section 7 of Indian Evidence Act declares that facts which are occasion, cause or effect of
fact in issue are relevant. Section 7 provides that the facts which are cause or effect of fact in
issue or of relevant fact are relevant. It also lays down that the facts which are occasion or
which afford an opportunity for the occurrence of fact in issue or of relevant fact, are relevant.
Example :-
(i) The question is whether `A' robbed `B'
The fact that shortly before the robbery B went to a fair with money in his possession and that
he showed it or mentioned the fact that he had it or to third person are relevant.
(ii) The question is whether `A' murdered `B'
Marks on the ground, produced by a struggle at or near the place where the murder was
committed are relevant facts. So Evidence can be given of fact, which constitute the occasion of
happening of fact-in-issue u/s 7 and Act, similarly facts which constitute the State of things
under which they happened or which afforded an opportunity for their occurrence or
transaction, are also relevant Section 7 embraces larger area than Section 6 Section 7 provides
for admission of several facts which though do not possibly form part of same transaction, are
yet attached with principal transaction in any of above stated modes.

Q. 10 Whether `Motive' for Commission of crime-is-relevant ? If so, under which provisions

?

Or
Is preparation to commit an offence is relevant and to What extent, is conduct of a party
to proceeding relevant ?

Ans. Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that
(1) a fact shows or constitutes a motive for any fact in issue or relevant fact is relevant ; (2) a
fact which constitutes or shows preparation for any fact in issue or relevant fact, is relevant ; (3)
previous or subsequent conduct of any party or of or in reference to any fact in issue or
relevant fact, are relevant provided such conduct influences or is influenced by any fact in issue
or relevant fact ; (4) previous or subsequent conduct of any person an offence against whom is
the subject of any proceeding or suit is relevant provided such conduct influences or is
influenced by any fact in issue or relevant fact ; (5) statements accompanying and explaining
acts (Explanation 1); (6) statements made in the presence and hearing of a person whose
conduct is relevant provided the statement affects such conduct.
Underlying principle on which Section 8 is based is that the absence or presence of a motive
and evidence of preparation, previous attempt, previous or subsequent conduct of the parties
are relevant as they help in proving or disproving a fact in controversy. It may sometimes be
important to know, whether a man charged with an offence, has any interest or motive to
commit it.
Example :- (i) `A' is tried for murder of B.
The facts that A murdered C that B knew that `A' had murdered C and that B had tried to effort
money from `A' by threatening to make his knowledge public are relevant. (Motive)
(ii) 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 (Preparation)
(iii) The question is whether `A' committed a crime-the fact that `A' absconded after receiving a
letter warning him that inquiry was being made for criminal and the contents of the letter are
relevant. (Conduct).
Motive : A motive is that which moves a man to do a particular act. Motive and intention are
not synonymous. Motive is relevant and may be proved in a case as it is of great importance to
see whether three was motive for committing the crime or not where there is a clear proof of
motive for crime it lends additional support to finding of court that accused was guilty but the
absence of clear proof of it does not necessarily lead to contrary conclusion. In State of
Haryana v. Sher Singh, 1981 Cri : L.J. 714. It was observed that motive by itself is not proof of
guilt of accused but it is relevant since it make prosecution story probable. The prosecution is
not bound to prove motive of any offence in a criminal case, inasmuch as motive is only known
to perpetrator of crime and may not be known to other.
Preparation : Evidence tending to show that the accused made preparation for committing
crime is relevant. Preparation on the part of accused may be to accomplish the crime, to
prevent discovery of crime or it may be to aid the escape of accused or avert the suspicion.
Conduct : The second paragraph of section 8 makes relevant the conduct of any person who is a
party of a suit or proceeding in reference to any fact in issue therein or relevant thereto.
The conduct is the expression in outward behaviour of the quality or condition operating to
produce those effects.
The conduct of any party to proceeding in order to be relevant must be (1) in reference to any
fact in issue or relevant thereto, or (2) to any suit or proceeding.
It must be borne in mind that the conduct of a party alone is admissible. The conduct of a
person who is not a party to the suit or proceeding is not admissible.

Q. 11 The question is whether A murdered B. During investigation of the case one X said in
A's presence "The police are coming to arrest the man who murdered B". A, hearing these
words of X immediately ran away. Is the above statement of X relevant ?

Ans. Section 8 of the Evidence Act provides that the conduct of any person an offence against
whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced
by any fact in issue or relevant fact, and whether it was previous or subsequent
thereto. Explanation 2 to the Section 8 provides that when the conduct of any person is
relevant, any statement made to him or in his presence and hearing, which affects such
conduct, is relevant.
Thus, the conduct of the accused soon after the incident plays an important part in determining
the guilt of the accused, and is a corroborative piece of evidence. The conduct of a person in
absconding after the commission of the offence is evidence to show that he was concerned in
the offence, although it is usually a very small item in the evidence. It may be clarified that
absconding is equally consistent with innocence and guilt. Therefore in the present case the
statement made by X and the conduct of A in running away are relevant u/s 8 of the Act.
Illustration (f) to Section 8 of the Act.
The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the
man who robbed B", and that immediately afterwards A ran away, are relevant.

Q. 12 (A) Whether facts which explain or introduce relevant facts are relevant ?

(B) In what cases is it necessary to hold an identification parade. Discuss the precautions to
be taken and procedure to be adopted for holding it and value of Test Identification
Parade.
(C) A is tried for rioting and is proved to have marched at the head of the mob, the
prosecution wants to prove that mob was shouting.

Ans. (A) Section 9 of Indian Evidence Act provides :-

facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut
an inference suggested by a fact in issue or relevant fact or which establish the identity of
anything or person whose identity is relevant, or fix the time or place at which any fact-in-issue
or relevant fact happened or which show the relation of parties by whom and such fact was
transacted, are relevant in so far as they are necessary for that purpose"
(1) Introductory or Explanatory Facts Such facts which are necessary to explain a fact in issue or
relevant fact are relevant u/s 9 of Act. Explanatory evidence is not relevant in itself. It is neither
one of the "res-gestae" nor probative in any direct line of proof of existence of fact in issue or
relevant fact but evidence is always allowed of facts which are necessary to explain or
introduce main facts. For example, in a suit for libel, evidence can be given of state of parties
relations at the time of alleged libel as this may be necessary to introduce the circumstances
that led to the libel.
(2) Facts which Support or Rebut an Inference
There are certain other classes of the facts which are neither relevant as facts in issue nor as
relevant facts. But they either support the inference suggested by the fact in issue or relevant
fact or they contradict the facts in issue or relevant facts and for he purpose they are relevant.
(3) Facts Which Establish the Identity In judicial proceeding, civil or criminal, the courts have
very often to determine the identity of persons or things.
So when a party's identity with ascertained person is in issue, it may be proved or disproved not
only by direct testimony or opinion but by similarity or dissimilarity of personal characteristics.
In the case of Suresh Chand Bahri v. State of Bihar, AIR 1994 SC 2420, it was held that
identification of accused by witness in the Court is substantial piece of evidence where accused
is not known previously by the witness. Test identification parade must be held at earliest
possible opportunity with necessary safeguard and precaution.
(B) Section 9 of Indian Evidence Act inter alia provides that facts which establish the identity of
anything or a person whose identity is relevant such facts are relevant. So when a party's
identity with ascertained person is in issue, it may be proved or disproved not only by direct
testimony or opinion but by similarity or dissimilarity of personal characteristics, as well as by
residence, occupation and family relationship etc.
Identification Parade. Identification is relevant under Section 9 of the Evidence Act. An
Identification Parades are tests for eliminating false assertion or to guard against honest
mistake of identity by witnesses, the court requires that they should be held under conditions
most conducive to their fair tests for the elicitation of truth.
In Suresh Chand Bahri v. State of Bihar AIR 1994 SC 2420 It was held that identification of
accused by witness in the court is substantial piece of Evidence. Where the accused is not
known previously by the witness, Test Identification Parade must be held at earliest possible
opportunity with necessary safeguards and precaution However when accused had been seen
by the witness for quite of times at different point of times and places, then Test Identification
Parade is not necessary.
In State of H.P. v. Lekh Raj 2000 Cri.L.J. 44 Supreme Court has observed
"The absence of test identification parade may not be fatal if the accused is known or
sufficiently described in the complaint leaving no doubt in the mind of court regarding his
involvement. Identification may also not be necessary in a case where accused are arrested at
the spot...." It was also observed by the court "During the investigation of crime, the police
agency is required to hold identification parade for the purpose of enabling the witness to
identify the person alleged to have committed the offence particularly when such person was
not previously known to witnesses or informant." Precautions and Procedure in Test
Identification Parade :-In Chander Singh v. State of U.P. AIR 1973 SC 1200, it was observed "It
is well settled that the identification by witness in the Parade during investigation only serves to
corroborate the evidence of witnesses in court. But value of such corroborating evidence
depends upon the precautions exercised by the Magistrate while holding the identification
parade. As a matter of prudence the Parade should be held as early as possible after the arrest
of accused, so that there will be no chance for the witnesses to see the accused before Test
Identification Parade. It is also equally necessary that witnesses must have had a chance of
observing the features of accused during the incident. Prudence requires that at the Parade
people with similar height and features should be mixed up with the accused in proportion of
not less than 1 to 9, Magistrate should also take care that there is no occasion for any police
officer to be present at the parade to prompt the witnesses." (C) Section 9 of Evidence Act
provide that facts introductory to explanatory of facts in issue or relevant fact are themselves
relevant.
Thus in case in hand fact that mob was shouting is relevant to prove charge of offence of rioting
against A. Illustration (f) of Section 9 also say so.

Q. 13 Accused is facing trial under Section 376 I.P.C. for having raped one B on August 25.
Shortly after the departure of the accused from her bedroom she had made a statement to
her mother-in-law regarding the circumstances of her rape by the accused. On August 30,
she was found drowned in nearby canal. Her mother-in-law is called to give evidence of
the statement which the deceased B had made to her.
 It is contended that it is admissible under Sections 32(1), 6 and 8 of the Evidence Act. Is it
correct ?

Ans. Section 6 lays down that the facts which are so connected with fact in issue that they form
part of the "same transaction" are relevant facts, therefore it is not every fact either before or
after the occurrence which will become relevant in view of provisions of Section 6, it is only
those facts which by reason of its connection with fact in issue makes it as continuous and same
transaction. The test to determine whether a fact forms part of same transaction depends upon
whether they are so related to one another in point of purpose or as cause and effect or as
probable as to constitute one continuous action. Proximity of time is not so essential as
continuity of action and purpose.
Supreme Court recently in Sukhar v. State of U.P. 2000 Cri.L.J. 29 has observed, "the principle
of law embodied in Section 6 of Evidence Act is usually known as the Rule of Res Gestae. The
essence of the doctrine is that a fact which though not in issue, is so connected with fact in
issue as to form part of same transaction becomes relevant itself. This Rule is roughly speaking
in exception to the general Rule that hearsay evidence is not admissible the rationale in making
certain statement or fact admissible under Section 6 is on account of the spontaneity and
immediacy of such statement or fact in relation to fact in issue. But it is necessary that such
statement or fact must be part of the same transaction."
In case in hand, accused raped `B' and immediately after the departure of accused from her
bedroom, B told this fact to her mother-in-law. So after the commission of crime, victim has
given account of occurrence immediately to mother in law, it form a continuous transaction
and thus is admissible u/s 6 as relevant.
According to Section 8 of the Act, the relevant fact is the conduct; and a statement is relevant
in so far as it explains or accompanies conduct which itself is relevant. If a person against whom
an offence has been committed, shortly after the occurrence, makes a complaint, the relevant
conduct is the act of making the complaint; and the terms of the complaint become relevant,
because they accompany and explain the act of making the complaint. If the aggrieved person
does not make a complaint, but only makes statement, the statement is not relevant
under Section 8 as it does not explain or accompany any conduct. Therefore, statement made
by a ravished woman immediately after she has been ravished is not admissible in evidence.
Section 32(1) of the Evidence Act makes relevant the statement 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. Thus, the statement must relate to the cause of the declarant's death, or to any of the
circumstances of transaction which resulted in his death. In the case in hand, the statement
made by B does not relate to the cause of her death, nor it relates to any of the circumstances
which resulted into her death. Her death occurred due to drowning in the canal, i.e. due to
suicide. Rape may be said to be the object which led to commit suicide. Therefore, the
statement is not admissible under Section 32(1) of the Act.

Q. 14 Discuss the Law of Conspiracy as laid down in Indian Evidence Act.

Ans. Section 10 of Indian Evidence Act deals with the admissibility in a conspiracy case. Section
10 provides :-
"Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or actionable wrong, anything said, done or written by any one
of such persons in reference to their common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the
purpose of showing that any such person was a party to it."
So anything said or done or written by any one of the conspirators in respect of their common
intention is admissible u/s 10 of Act against all the conspirators for the purpose of proving (a)
that the conspiracy existed and (b) for the purpose of proving that a person was party to it.
However, it is important to point out here that everything said or done or written by one of the
conspirators at any time will not be relevant u/s 10 of Act, it is only after the time, when such
intention was first entertained by any one of them is relevant similarly it is not each and
everything said, done or written by a conspirator, even after the intention was entertained by
conspirators, becomes relevant only thing said, done or written in reference to common
intention of the conspirators will be admissible.
In Rakesh Kumar v. State, 2000(1) Recent Criminal Reports 74 (Delhi), it was observed that
Section 10 will come into play when Court is satisfied that there is reasonable ground to believe
that two or more persons have conspired together to commit an offence there should be
prima-facie evidence that person was a party to a conspiracy before his acts can be used
against his co conspirators, Section-10 of Evidence Act which is an exception to the general rule,
while, permitting the Statement made by one conspirator to be admissible as against another
conspirator restricts to the statement made during the period when the agency subsisted -
Once it shown that a person became snapped out of conspiracy, any statement made
subsequent thereto cannot be used as against the other conspirators.

Q. 15 Under what circumstances do the facts which are not otherwise relevant, become
relevant ?

Ans. Section 11 of Indian Evidence Act provides

".........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.
The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D.
Every fact which shows that the crime could have been committed by no one else, and that it
was not committed by either E, C or D is relevant.
The object of a trial is prove or disprove, by evidence, a particular claim or charge, therefore
any fact which either disproves or tends to disprove that claim or charge is relevant. Section 11
attempts to state in popular language the general theory of relevancy and may therefore be
described as the residuary section dealing with relevancy of facts.
No doubt, terms of Section 11 are wide but they must be read subject to the other sections of
the Act.

Q. 16 "Falsus in Uno Falsus in Omnibus" Explain.

Ans. Expression " Falsus In Uno Falsus in Omnibus" means false in one particular, false in all or
false in one thing false in all. This well known maxim has not received general acceptance in
different jurisdiction in India nor has this come to occupy the status of Rule of law. It is merely a
Rule of caution.
In Ranbir v. State of Punjab AIR 1973 SC 1409 it was observed "The maxim" Falsus in Uno
falsus in Omnibus" is not a sound Rule to apply in the condition in our country and therefore it
is the duty of court in cases where a witness has been found to have given unreliable evidence
in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If
remaining evidence is trustworthy and the substratum of the prosecution case remains intact,
then court should uphold the prosecution case to the extent it considers safe and trustworthy.
In Chandru v. State of U.P. 1990(1) Crimes 710 it was held that "It is misconception that a
witness has to be believed in toto or disbelieved in toto which in fact a Rule of English law not
accepted by the courts in India. Doctrine of `Falsus in uno falsus in omnibus' is not applicable in
this country for the simple reason that in good majority of criminal cases there is admixture of
untruth in the statement of witnesse. In such cases the court is bound to indulge in the exercise
of minutely examining the evidence of separating the chaff from the grain; once it accepts the
essential part of prosecution story.

Q. 17 What facts are relevant when the existence of any right or custom is in dispute ?

Ans. Section 13 of Indian Evidence Act lays down as what facts are relevant and may be proved
when the question at issue is whether any right or custom exists. Section 13 says. "Where the
question is as to the existence of any right or custom, the following facts are relevant :-
(a) any transaction by which the right or custom in question was created, claimed modified
recognised, asserted or denied or which was inconsistent with it's existence
(b) Particular instance in which right or custom was claimed, recognised or exercise or in which
it's exercise was disputed, asserted or departed from.
Custom. First of all, term "custom" is particular rule which has existed from time immemorial
and has obtained the force of law in a particular locality. In Rajender Ram v. Devendera Das,
AIR 1973 SC 268 it was observed that "A custom to be valid must have four essentials (a) it
must be immemorial (b) it must be reasonable (c) it must have continued without interruption
since it's immemorial origin and (d) it must be certain in respect of it's nature."
Right. - There has been controversy among the different High Courts about the meaning of the
word `right' as used in Section 13, Evidence Act. According to Calcutta High Court the word
`right' in Section 13 means only public and incorporeal rights, such as, right to ferries, right to
roads, right to fisheries and so on. According to this view the word `right' in Section 13 does not
include private and corporeal right, i.e., ownership of material objects, such as ownership of a
house or a chattel and so on.
Contrary to this view of the Calcutta High Court, the High Courts of Allahabad Bombay and
Madras have held that "rights under Section 13 must be understood as comprehending all
rights recognized by law, and, therefore, including a right of ownership and not being confined
to incorporeal rights only."

Q. 18 (A) How are facts showing the existence of state of mind relevant when the
existence of such state of mind is in issue.

(B) A is accused of murdering a woman X. It is sought to be proved that two year ago he
murdered his wife Y and so had the mens rea to murder X. Is the evidence relevant and
admissible?
(C) A and B his wife are charged with the murder of a baby entrusted to them for Nursing.
The prosecution adduces evidence that several babies entrusted to the two accused were
never heard of thereafter and the dead bodies of several infants entrusted to them on
payment of money for nursing were found' near their residence buried in the yard of
house occupied by them. Is the evidence relevant and admissible ?
(D) Point out whether in following case the fact sought to be proved are relevant. - A is
charged with shooting at B with the intent to kill him. In Order to prove A's intent, the
prosecution wants to prove the fact that A has earlier shot at one `C'.

Ans. (A). Section 14 of Indian Evidence Act says

"Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill will or goodwill 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 says A fact
relevant as showing the existence of a relevant state of mind must show that the state of mind
exist, not generally but in reference to particular matter in question.
Example :- (a) A is charged with shooting of B with the intent to kill him . In Order to show A's
intent the fact of A's having previously shot at B may be proved.
(b) The question is what was the state of A's health at the time when an assurance of his life
was effected , Statement made by A as to the state of his health at or near the time in question
are relevant fact.
Whether a man has or has not particular intention is a matter of fact to be inferred from the
surrounding circumstances and from the acts of the person concerned, therefore Section 14 of
the Act says to prove mental and physical conditions, evidence may be given of all
contemporaneous manifestations of the given condition, whether by conduct, conversation as
part of res gestae. Section 14 of the Act makes all the facts relevant which go to show a state of
mind or body or bodily feeling when the existence of any such state is in issue or relevant.
However Explanation 1 attached to Section 14 makes it clear that the state of mind to be
proved must not be of general tendency or disposition, so Explanation narrows the application
of Section 14 of the Act. So u/s 14 of the Act, only those facts are relevant which show state of
mind or body or bodily feeling of a person with reference to particular matter in question, all
those facts which are of general tendency are not relevant.
Section 15 of Indian Evidence Act says: "When there is a question whether an act was
accidental or intentional or done with particular knowledge or intention, the fact that such
act formed part of a series of similar occurrences in each of which the person doing the act
was `concerned, is relevant". EXAMPLE :- A is accused of fraudulently delivering to B a
counterfeit rupee. -The fact that soon before or soon after the delivery to B, A delivered
counterfeit rupees to C, D, and E are relevant fact as showing that delivery to B was not
accidental.
So Section 15 lays down the Rule as to admissibility of evidence in cases where the question is
whether a particular act was accidental or was done with particular intention.To prove which
act is intentional which accidental, Section 15 provides a method i.e. similar Act. For this
purpose it is necessary that all the acts should form part of series of similar occurrence, the
reason is that one instance may be accidental but repetition of the similar instances will be
intentional and not accidental.
In M.L. Prit Chand v. Emperor AIR 1923 Lahore 382, it was observed that Under Section 15, as
under Section 14 the prosecution can not use the evidence as to commission of other acts of
similar nature to prove the existence of Acts charged with. But when existence of the acts in
issue has been established by other evidence and only question which remains to be decided is
whether they were done accidentally or intentionally then and then only the evidence of other
similar acts is admissible to prove the state of mind.
(B). Evidence admitted under Section s 14 and 15 of the Act is admissible in proof of only a
mental fact, and is not admissible to prove the other ingredients of the right or liability.
In the case in hand, charge of committing the murder of X against A will have to be proved by
the prosecution by producing direct or circumstantial evidence as is relevant and admissible
under the Evidence Act. This charge cannot be proved by producing evidence that the accused
had committed the murder of his wife two years ago. If the previous murder is alleged to be the
motive or reason for committing the murder in question, that evidence would be relevant or
admissible only to that limited extent, but not to prove the factum of the murder in issue.
(C). Section 15 says "Where there is a question whether an act was accidental or intentional,
or done with a particular knowledge or intention, the fact that such act formed part of a
series of similar occurrences in each of which the person doing the act was concerned is
relevant." Section 15 is merely an application of the general Rule contained in Section 14, and
being more particular, is more appropriate to be applied to cases where the evidence given to
show intention or knowledge consists of a series of similar occurrences in each of which the
person doing the act was concerned.
The principle on which evidence of similar acts is admissible is not to show that because the
defendant has committed one crime, he would therefore be likely to commit another; but to
establish the animus of the act, and rebut by anticipation, the defences of ignorance, accident,
mistake or other innocent states of mind. Therefore, in the present case the evidence sought to
be produced by the prosecution is relevant and admissible to rebut the defence that the
murder of the child in question was accidental. However, this evidence is not relevant and
admissible to prove the charge of murder itself.
(D). Section 14 lays down the Rule relating to evidence showing the existence of state of mind
such as intention knowledge, good faith, negligence, rashness, ill will or goodwill towards any
particular person and Section 15 provides as to relevancy of evidence in cases where question
is whether particular act was accidental or was done with particular intention or knowledge.
Explanation 1 attached to Section 14 makes it clear that state of mind, to be proved, must not
be of general tendency. Thus fact that a mean is generally dishonest generally malicious or
criminal in his proceedings does not bear with sufficient directness on his conduct on any
particular occasion or as to particular matter.
In case in hand `A' is charged with shooting at B with intent to kill him and in Order to prove A's
intent prosecution wants to prove the fact that `A' has earlier shot on `C'. Fact that A had earlier
shot at C does not tend to prove A's intention in reference to case of B. Thus this fact is not
relevant.

Q. 19 Define `Admission' Enumerate the persons whose admission constitute evidence

against another person. Distinguish between Admission and Confession.

Ans. Section 17 to 23 of Indian Evidence Act deal with Admission. Section 17 to 20 provide as to

what is admission and by whom an admission can be made. Section 21 provide as to which
party to a proceeding can use admission. Section 22 excludes oral admission as to contents of a
document and Section 23 deals with relevancy in civil cases of admission made upon an
expressed condition that it shall not be given in evidence.
Section 17 has defined
"Admission' as a statement oral or documentary which suggests any inference as to any fact
in issue or relevant fact and which is made by any of the persons and under circumstances
hereinafter mentioned." Section 18 to 20 provide as to by whom and in what circumstances an
admission can be made. By reading together the provisions of Section 18 to 20 it is clear that
Admission made by following persons is relevant:
(i) Statement made by party to proceeding or
(ii) Statement made by agent to party to proceeding whom the court regards under the
circumstances of the case as expressly or impliedly authorised by party to make.
(iii) Parties to suit, suing or being sued in representative capacity if the party making the
statement held that representative capacity while making the statement.
(iv) Person who have proprietary or pecuniary interest in the subject matter of proceeding and
who make the statement in their character of persons so interested if the statements are made
during the continuance of the interest of person making the statement
(v) Persons from whom the parties to the suit have derived their interest in the subject matter
of the suit if the statements are made during the continuance of the interest of the persons
making the statements ( Section 18)
(vi) Person whose position and liability it is necessary to prove as against any party to suit if
such statements would be relevant as against such persons making the statement in relation to
such position or liability in a suit brought by or against them if such statements are made while
the person making them occupies such position or is subject to such liability ( Section 19).
(vii) Persons to whom a party to suit has expressly referred to, for information in reference to
matter in dispute ( Section 20).
In Thiru John v. Returning Officer AIR 1977 SC 1724. It was observed by Supreme Court that
`An admission if clearly and unequivocally made is substantive evidence in view of Section 17 to
21 of Indian Evidence Act though they are not conclusive proof of the matter admitted and
shifts the onus on to the maker on principle that what a party himself admits to be true may
reasonably be presumed to be so until the presumption is rebutted.
Distinction between Admission and Confession Section 17 to 31 of Evidence Act deal with
admission generally and include Section 24 to 30 which deal with confession as distinguished
from admission. So confession are a species of which admission is genesis . In other words all
admission are not confession but all confessions are admission.
The distinction between a confession and admission is not a technical refinement but based
upon the substantive differences of character of evidence deduced from each. A confession is a
direct acknowledgement of guilt on the part of accused and by very force of the definition
excludes an admission which of itself as applied in criminal law is statement by accused direct
or implied of facts pertinent to the issue and tending in connection with proof of other facts to
prove his guilt but of itself is insufficient to authorise a conviction.
In Chanderan v. State of Kerala 1986 Criminal Law Journal 1865 It was observed that
`confession is not defined in Evidence Act. Even an admission is not confession. A confession
must either admit in terms of offence or at any rate substantially all the facts which constitute
the offence and an admission of a gravely incriminating fact is not by itself a confession. If a
statement falls short of such plenary acknowledgement of guilt, it would not be a confession
even though the statement is admission of some incriminating fact which taken along with
other evidence tends to have guilt of the accused. Such statement is only an admission but not
a confession.
Thus the acid test which distinguish a confession from an admission is that where conviction
can be based on statement alone, it is a confession and where some supplementary evidence is
needed to authorise a conviction then it is an admission (Ram Singh v. State 1959 Cri.L.J. 940).
 Q. 20 A is accused of receiving stolen goods known them to be stolen. He offers to prove
that he refused to sell them below their market price. Is this evidence admissible ? Give
reasons for your answer

Or
"Admission cannot be proved by or on behalf of person who make them"- what are the
exceptions to this ?

Ans. Generally an admission made by one person shall be used against such person. Section
21 of Indian Evidence Act incorporate this Rule, however, Section 21 of the Act provides three
exceptional circumstances wherein admission can be used by the person who has made it.
Section 21 lays down
"Admissions are relevant and may be proved as against the person who makes them or his
representative in interest, but they cannot be proved by or on behalf of the person who
makes them or by his representative in interest, except in following cases:
1. An admission may be proved by or on behalf of person making it when it is of such nature
that if the person making it were dead, it would be relevant as between third persons
under Section 32.
2. An admission may be proved by or on behalf of person making it when it consists of a
statement of the existence of any state of mind or body relevant or in issue, made at or about
the time when such state of mind or body existed and is accompanied by conduct rendering it
falsehood improbable.
3. An admission may be proved by or on behalf of the person making it, if it is relevant
otherwise than as an admission. So an admission can be used by or on behalf of accused, when
such admission is also relevant otherwise than as an admission. In the case in hand Accused of
receiving stolen property wishes to prove the fact that he refused to sell such goods below their
market price. Accused may prove these statements because though they are admission but are
explanatory of conduct influenced by fact in issue. See illustration (d) to Section 21 of Evidence
Act.

Q. 21 When are the oral admissions regarding the contents of a document relevant ?

Ans. Section 22 of Indian Evidence Act provides :-

"Oral admissions as to contents of a document are not relevant, unless and until the party
proposing to prove them shows that he is entitled to give secondary evidence of the contents
of such document under the rules hereinafter contained or unless genuineness of document
produced is in question."
So Section 22 of Act contemplates basic principle of law of evidence that when there has been a
document no-body can be permitted to prove oral admission about the contents of that
document. For example X executed a deed of mortgage in favour of y. Y files a suit for
possession of property mortgagee on the basis of that mortgage. During the trial X denied the
execution of mortgage. Now in this case Y can not prove by oral evidence that he had admitted
before some persons admitted that he had mortgaged the property to him. Y can prove the
execution of mortgage and can get possession of property only when he files that deed of
mortgage in court and proves it.
There are two exceptions to rule provided in Section 22
(a) When a person is entitled to give secondary evidence of contents of some documents he will
be entitled to rely on oral admission
(b) Under section 65, secondary evidence of contents of document can he given when original is
lost or whom it is in possession of opposite party.

Q. 22 Whether a document marked "Without prejudice" can be relevant as admission ?

Ans. Section 23 of Indian Evidence Act provides -

"In civil cases no admission is relevant, if it is made either upon express condition that evidence
of it is not to be given or under circumstances from which the court can infer that parties
agreed together that evidence of it should not be given."
So section 23 bars the taking of any admission which was made by party upon expressed
condition that it shall be not proved in court. Section 23 is applicable to civil cases only. Section
is based on well know principle contained in maxim "Interest Publicae up set finis litiums" i.e. it
is in the interest of State that there should be an end to litigation. Some times for settling the
disputes, parties makes compromise out of the court, and make statements admitting the claim
of other party upon express terms that any such admission oral or written shall not be proved
in court, then law also bars the admission of evidence of any such admission made under
expressed condition of not proving in court. If such admission would be allowed to be proved
than no body would take of compromise. So section 23 of the Act is based on public policy.

Q. 23 (A) Distinguish between Judicial and Extra Judicial Confession.

(B) Discuss fully the evidentary value of retracted confession. Illustrate your answer.

Ans. (A). "Confession" has not been defined in Indian Evidence Act. In simple words `confession'
means admission or acknowledgement of guilt by person accused of crime. In Pakala Narayan
Swami v. Emperor AIR 1939 PC 47 Privy Council observed "No statement that contains self
exculpatory matter can amount to a confession if the exculpatory statement is of some fact
which if true would negative the offence alleged to be confessed, Moreover a confession must
either admit in terms the offence or at any rate substantially all the facts which constitute the
offence."
Judicial Confessions : Judicial Confessions are those which are made before a magistrate or in
court in the due course of legal proceeding . When an accused during investigation of crime,
make confession u/s 164 Cr.P.C. or when court frame charge against Accused and Accused
plead guilty to charge, it is called a judicial confession.
Extra Judicial Confession : Extra judicial confessions are those which are made by accused to
any one other than Magistrate or before court. Extra judicial confession though considered to
be a weak piece of evidence yet if found to have made voluntarily, then upon proof of it can be
made basis of conviction of accused. In Piara Singh v. State of Punjab 1977 Cri.L.J. 1941
(SC) Supreme Court observed Evidence about extra judicial confession is a weak kind of
evidence. If it is not probable it must be rejected. However law does not require that evidence
of an extra judicial confession must be corroborated in all case Where the extra judicial
confession is proved by an independent witness who bore no animus against Accused, it may
be basis of conviction. If the extra judicial confession is proved to be voluntary conviction can
be based on such confession.
Extra judicial confession by its vary nature is a weak piece of evidence and lacks authenticity
and reliability whereas judicial confession which is recorded after complying with all relevant
provisions of law is most reliable and can easily be acted upon by court. It is also important to
point out that law does not recognize the evidence of extra judicial confession, as such,
therefore it has been held by Apex Court in many judgements that extra judicial confession
should ordinarily be not accepted unless it inspire confidence and reliability having regard to
facts of each case. Judicial confession on the other hand most reliable and can be made basis of
conviction.
(B). Retracted Confession A retracted confession is a statement made by an accused person
before the trial begins by which he admits to have committed the offence but which he
repudiates at the trial. When a confession is retracted the fact of such retraction has a bearing
on the question whether it is voluntary or true and for deciding whether the retracted
confession was voluntary or not court shall consider all attendant factors which throw a light on
the nature of the confession such as (a) Reason give by accused for giving the confession (b)
Circumstances alleged by accused which throw doubt on voluntary nature of confession such as
inducement, threat or pressure from police. (c) Material discrepancies between testimony of
eyewitness and contents of confession. (d) Peculiar facts and circumstances under which
accused made confession.
Evidentary value of Retracted Confession : It is unsafe to base conviction on a retracted
confession unless it is corroborated by trustworthy evidence.In State of Maharashtra v. P.K.
Pathak AIR 1980 SC 1224 Supreme Court held `It is settled that as a matter of prudence and
caution which has sanctified itself into Rule of law, a retracted confession cannot be made
solely the basis of conviction unless the same is corroborated in material term "
In Sakha Ram v. State of Maharashtra AIR 1994 SC 1594 It was held by Supreme Court that it
will settled that the retracted extra judicial confession though a piece of evidence on which
reliance can be placed but the same has to be corroborated by independent witness and that
apart the court must be satisfied that confession alleged to have been made was true and
voluntary one.

Q. 24 Explain "Relevancy of confession in criminal trial."

Ans :- Relevancy of confession in Criminal Trial : Section 24 to 30 of Indian Evidence Act deal
with relevancy of `Confession' in criminal proceeding. Term `confession' has not been defined in
Indian Evidence Act. Most acceptable definition of term `confession' was given by Privy Council
in Pakala Narain Swamy v. Empr. AIR 1939 P.C. 47 Wherein it was observed:
"No statement that contains a self exculpatory matter can amount to confession, if
exculpatory statement is of some fact which if true would negative the offence alleged to be
confessed.... a confession must either admit in terms the offence or at any rate substantially
all the facts which constitute the offence." Section 24 of Indian Evidence Act says:
"A confession made by an accused person is irrelevant in a criminal proceeding if the making
of the confession appears to the court to have been caused by any inducement, threat or
promise having reference to the charge against the accused person proceeding from a person
in authority and sufficient in the opinion of the court to give the accused person grounds
which would appears to him reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against
him." In Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167 Supreme Court had
observed that to attract prohibition enacted in Section 24 of Evidence Act, following facts must
be established
(1) Statement in question is a confession
(2). Such confession is made by accused person
(3) It has been made to a person in authority
(4) Confession has been obtained by reason of any inducement, threat or promise proceeding
from a person in authority
(5) Inducement, threat or promise, must in the opinion of court be sufficient to give accused
grounds which would appear to him reasonable for supposing that by making of it he would
gain any advantage or avoid any evil of temporal nature in reference to proceedings against
him.
Section 25 of Evidence Act then provide `No confession made to a police officer shall be
proved as against a person accused of any offence and Section 26 of Act says `No confession
made by any person whilst he is in custody of police officer unless it be made in immediate
presence of magistrate shall be proved as against such person. Section 27 of Evidence Act
then provides "Provided that when any fact is deposed as discovered inconsequence of
information received from a person accused of any offence in the custody of police officer, so
much of such information whether it amounts to confession or not as relates distinctly to the
facts thereby discovered, may be proved". In Inayatulla v. State of Maharashtra AIR 1976 SC
483 It was observed by Supreme Court that Section 24, 25 and 26 exclude confession under
certain circumstance. Section 24 lays down that if the confession appears to have been caused
by threat, or promise, or inducement, it cannot be proved. Section 25 lays down that
confession made to the police officer cannot be proved against an accused. Section 26 lays
down that a confession made by any person while in custody of a police officer to any person
other than a Magistrate will not be proved. Section 27 is a proviso, that is, a controlling Section
and furnishes an exception to the Rule of excluding the confession. It lays down that a
confession is admissible if it leads to the discovery of some fact.
In Jaffar Hussain Dastgir v. State of Maharashtra (1969)2 SCC 872, It was observed "The
essential ingredient of Section 27 is that information given by accused must lead to the
discovery of the fact which is direct outcome of such information secondly. Only such portion of
the information given as is distinctly connected with said discovery is admissible against
accused. Thirdly, the discovery of the fact must relate to commission of some offence."
Section 28 of Evidence Act then says "If such a confession as is referred to in Section 24 is
made after the impression caused by any such inducement, threat or promise has, in the
opinion of the Court been fully removed it is relevant. Section 29 of the Act says "If such a
confession is otherwise relevant it does not become irrelevant merely because it was made
under a promise of secrecy or in consequence of deception practiced on the accused person
for the person of obtaining it or when he was drunk or because it was made in answer to
question which he need not to have answered, whatever may have been the form of those
question or because he was not warned that he was not bound to make such confession and
that the evidence of it might be given against him." In Rangappa Hanamppa v. State, AIR
1954 Bom 285 Held Section 29 assumes that there is no bar to the admissibility of the
confession in question arising from any of the earlier provision i.e. from Section 24 to 26 and it
then proceeds to invalidate or negative other positive objections or bars that may be raised
against its admissibility. Reference may be made of State of U.P. v. Singara Singh AIR 1964 SC
358. Section 30 of Indian Evidence Act provide that "when more persons than one are being
tried jointly for the same offence and a confession made by one of such persons affecting
himself and some other of such persons is proved, the court may take into consideration such
confession as against such other person as well as against the person who makes such
confession."

Q. 25 A was tried on the charge of committing theft of three chemical drums from the
premises of the Bombay Port Trust on 18.1.1968. During investigation of the case he made
the following statement to the investigating officer of the case while in custody :

`I will tell the place of deposit of the three chemical drums which I took out from the Haji
Bundee (Bombay Port Trust).'

This statement was given on 29.6.1968. As a result of this statement of `A' the three stolen
drums were recovered from the compound or yard of a `musafirkhana' i.e. a waiting place.
The Drums were not concealed.

Discuss whether the whole or any part of the statement of `A' was admissible in evidence
against `A' at his trial and whether an inference under illustration (a) to Section 114,
Evidence Act, that `A' was the thief or a receiver of stolen property could be raised against
him
Ans. As a general Rule of evidence confession made before police is not relevant. Section 25 of
Evidence Act excludes a confession made to a police officer and Section 26 lays down that if a
person while in custody of a policeman confesses his guilt to any other person not being
magistrate, his statement will not be proved. Then Section 27 of Evidence Act say:
"Provided that when any fact is deposed to as discovered in consequence of information
received from person accused of any offence in custody of a police officer so much of such
information whether it amounts to confession or not as relates distinctly to the fact thereby
discovered may be proved." So what Section 27 says is that when some fact was discovered in
consequence of information given by accused while in police custody so much of that
information as relates to the facts discovered by that information may be proved, whether or
not such information amounts to confession. What Section 27 of Indian Evidence Act makes
relevant is any fact discovered in consequence of information supplied by accused to police
while in custody. Section 27 does not make confession before Police relevant.
Recently Delhi High Court inTahir and others v. State (NCT) of Delhi 2001 (1) Recent Criminal
Reports 31 discuss evidentiary value of statement of accused made u/s 27 of Evidence Act and
laid down following proposition in this regard:
(a) It is only discovery in pursuance of information taken from accused as to any fact which is
relevant u/s 27 of Act. Mere recovery is not relevant.
(b) In Order to render the evidence leading to discovery of any fact admissible, the information
must come from any accused in police custody.
(c) If any fact is discovered, as a search made on the strength of any information obtained from
prisoner, such discovery is guarantee that information supplied by prisoner is true.
(d) The information might be confessional or non- inculpatory in nature but if it result in
discovery of some relevant fact; it becomes reliable information.
(e) It is not necessary that recovery affected from a place, must not be accessible to other
Coming now to case in hand, only that much of the statement of `A' which distinctly relates to
discovery of any fact is relevant u/s 27 of Act. Therefore only first part of his statement i.e. "I
will tell the place of deposit of three chemical drum .." is relevant and then consequential
recovery of drum can be proved in the trial and remaining portion of his statement is irrelevant
being confession made to police. The fact that drums were recovered from waiting place and
were not concealed so these drums were accessible to all. It is also not the case of prosecution
that place from where drums were recovered was under lock and key of accused, any body can
enter into such waiting place, at any time, so recovery effected at the instance of accused
though relevant but does not connect the accused with offence of theft. At the best, accused
may be attributed with the knowledge that drums are lying in the waiting place, but that by
itself in the absence of any other evidence does not connect the accused with the offence of
theft.
Prosecution cannot take benefit of illustration (a) to Section 114 of Evidence Act
because Section 114 of Evidence Act does not absolve the prosecution from its initial duty of
proving ingredients of offence beyond reasonable doubt, on the basis of which courts may
presume. Presumption permitted by illustration (a) to Section 114 of Act does not arise until
the prosecution has fully established that it is only accused to the exclusion of all who has
concealed those drum, at the place of recovery.
In this case, drums, as stated above were recovered from a place which was accessible to all,
drums were not concealed, so it cannot said that accused is the person who has stolen the
drums and kept the drum at waiting place. So in the ultimate analysis of facts of case, benefit of
doubt has to be given to accused.

Q. 26 (A) When can a confession alleged to have been made by an accused who is jointly
tried with another accused be taken into consideration by the court as against the other
accused ? Explain the principle upon which the law is based.

(B) A and B master and servant, respectively, are being jointly tried for the murder of X
and also thereafter for having made away with the dead body to hide and crime ( Section
302 and 201 I.P.C.).
A confession is made by B, the servant to the effect that, without any previous knowledge
of the crime, B was taken to the house of X by A and suddenly asked to throw light from a
torch as a serpent had come out; at that time X came out of the house at the call of A, and
A killed him without any complicity of B. The two together then disposed of the body. Is
this confession relevant against A ? Give reasons for or against.

Ans. (A). As a general Rule of confession may be used against the person who has made it.
However Section 30 of Indian Evidence Act provides as under:
"When more persons than one are being tried jointly for the same offence and a confession
made by one of such person affecting himself and some other of such persons is proved, the
court may take into consideration such confession as against such other person as well as
against the person who makes such confession." So before a confession of one accused may
be taken into consideration against other u/s 30, it has to be shown that (1) the person
confessing and others are being tried jointly (2) They are being tried for the same offence (3)
The confession (to be taken into consideration) is affecting the confessioner and the other.
In State of Maharashtra v. Damu and others 2000(2) Recent Criminal Reports 781
(SC) Supreme Court held that confession made by one accused can be used against co-accused,
even other conditions under Section 30 of Evidence Act are satisfied only for the purpose of
corroboration of other evidence.
Underlying principle of Section 30 of Evidence Act is that where a person admits his guilt to the
fullest extent and expose himself to pains and penalties provided for his guilt, there is a
guarantee of truth of accusation against him and legislature provided then such statement may
also be considered against co-accused who is being tried with him jointly for the same offence.
In Balbir Singh v. State of Punjab, AIR 1957 SC 216 It was held by Supreme Court that
confession of one accused can be used against other if the confession implicates the maker
substantially to the same extent as the other co-accused person against whom, it is sought to
be taken into consideration.
(B). Word `confession' has not been defined in Indian Evidence Act. Most acceptable definition
of term `confession' was given by Privy Council in Pakala Narain Swamy v. Emp. AIR 1939 PC
47 wherein it was observed:
"No statement that contains a self exculpatory matter can amount to confession, if exculpatory
statement is of some fact which if true would negative the offence alleged to be confessed... a
confession must either admit in terms the offence or at any rate substantially all the facts which
constitute the offence." So following are the points which have to be born in mind while
appreciating any confession alleged to be made by an accused:
(i) Statements in which facts admitted give only inferences that accused might have committed
the crime, can not be used as confession.
(ii) Statement which exculpate the maker of it cannot be a confession.
(iii) Confession must either in terms admit the offence or
(iv) substantially admitting all facts which constitute the offence.
Section 30 of Indian Evidence Act lays down that when more persons than one are being tried
jointly for the same offence and a confession made by one of such person affecting himself and
some other of such persons is proved, the court may take into consideration such confession as
against such other person as well as against the person who makes such confession." So for the
application of Section 30 of the Act it is one of the essential requirement that accused making
confession must have inculpate himself to the offence alleged, along with other co-accused.
In 1972 Criminal Law Journal 1433 (Delhi) it was observed that a self exculpatory statement of
accused should not be taken into consideration against co-accused such statement could not be
treated as confession and it could not be used as evidence at all against other accused.
Coming now to case in hand, so called confessional statement made by servant (B) can not be
termed as `confession' because main part of his statement is exculpatory and throw entire
blame upon Master (A) in committing the murder of X. Therefore that part of the statement is
not relevant and thus cannot be used against `A' under Section 30 of the Act. However later
part of the statement of B that he and A together disposed of the body of X, does amount
confession as far as offence punishable u/s 201 I.P.C. is concerned. In this part of statement
accused B equally inculpate himself in crime with A who is being tried jointly for this offence.
Therefore confession of B is relevant only to the extent that A and B together disposed of the
body of `X' i.e. only for offence u/s 201 IPC, it cannot be used for other offence charged i.e. 302
IPC.

Q. 27 (A) What is dying declaration ? Discuss fully its evidentary value. Can an accused
person be convicted on the basis of dying declaration ?

(B) If a person making dying declaration happens to live. Can the declaration be admitted
in evidence ? If so, what will be the value of such statement in law ?
 (C) A deceased made the following dying declarations:

(i) Soon after the incident in the house of a person near the place of occurrence wherein
he did not give a full account of incident or of the transaction which resulted in his death.

(ii) A statement to the police officer which was treated as one F.I.R. of the case and when
same police officer investigated the case later.

(iii) The statement of the deceased recorded by the investigating officer of the case later in
the hospital in the presence of friends and relations of the deceased and a doctor, was
kept by the investigating officer with him at the occasion but without requisitioning the
services of the Magistrate which could be done.

The deceased was in precarious condition soon after the occurrence.

Decide whether all or any of the above dying declaration should be admitted in evidence.
Give reasons.

Ans. (A). Provision relating to Dying Declaration as contained in Section 32(1) of Indian

Evidence Act is one of the exception to general Rule of Evidence Act that "Oral evidence must
be direct." Dying declaration in simple words is a statement of person who is dead Section 32 of
Evidence Act provide eight circumstances in which statement written or verbal of relevant facts
made by person who is dead or who can not be found or who has become incapable of giving
evidence or whose attendance cannot be procured without delay are relevant.
Section 32(1) says "When the statement is made by person as to cause of his death or as to any
of circumstances of transaction which resulted in his death in cases in which cause of that
person's death comes into question. Such statement 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 proceeding in which the cause of his death comes into
question." So dying declaration is a statement of a person who is dead, however, any statement
to be relevant u/s 32(1) of Act must be either disclose the cause of death of declarant or any
circumstances of transaction which resulted in his death. Such statement is not made in court
upon Oath and is also not subjected to test of cross examination yet is made relevant u/s 32(1)
because law attach great sanctity to words of a dying man and presume that person on the
verge of his death will not concoct a story to falsely implicate innocent person but will give full
and true disclosure of facts which lead to his death.
Recently in Uka Ram v. State Of Rajasthan 2001(2) Recent Criminal Reports 416, Supreme
Court has observed --
"When a statement is made by a person as to cause of his death or as to any circumstances of
transaction which resulted into his death, in case in which cause of his death comes in question
is admissible in evidence, such statements in law are compendiously called dying declaration.
Principle on which dying declaration are admissible in evidence, based on legal
maxime : "Nemo Moriturous Praesumitur Mentire" i.e. a man will not meet his maker with lie
on his mouth. It has also to be kept in mind that though a dying declaration is entitled to great
weight yet, it is worth while to note that making of statement is not subject to cross
examination, it is essential for court to insist that dying declaration should be of such nature as
inspire full confidence of court in its correctness".
So according to Section 32(1) of Act following are the essential ingredients: (a) Statement made
by person who is dead must be as to cause of his death or as to circumstances of transaction
which resulted into his death (b) It is not necessary that person making statement must be
under expectation of death. (c) Statement is relevant in any proceeding (whether criminal or
civil) in which cause of death of such person is in question.
(a) As to Cause of his Death : A statement which exactly explain the cause of death of declarant
is relevant u/s 32(i) of Act however, before a statement of person as to cause of his death may
be used as dying declaration it must be proved that his death was the cause of injury he
received in incident for which accused is being prosecuted. In Moti Singh v. State of U.P. AIR
1964 SC 900 Deceased was shot at by the accused. During treatment he made a statement
regarding injurie After treatment, deceased was discharged from Medical and after one month
of incident he died however there was no evidence as to exact cause of his death Supreme
court held that his statement cannot be used as dying declaration.
(b) Circumstances of Transaction which Resulted in Death Expression `Circumstances of
transaction which resulted into death" are wider in scope. It means those series of transactions
or incidences occurred before the death of deceased which ultimately led to his death. In D.B.
Deshmukh v. State AIR 1970 Bombay 438 Deceased long before death made application to
Authorities that she was threatened by her brother-in-law. It was held that it is relevant as
dying declaration.
(c) Evidentary Value of Dying Declaration Dying Declaration being exception to general Rule that
Oral evidence must be direct, is generally taken into evidence with great caution and scrutiny
by court. A dying declaration is statement is not made on oath nor opposite party get the
opportunity to test it by cross examination is therefore, always required to be carefully
scrutinized before acting upon. Generally court always seek corroboration from other
circumstances to base conviction on dying declaration. In K.R. Reddy v. Public Prosecutor AIR
1976 SC 1994 it was observed
"Dying declaration undoubtedly admissible u/s 32(i) and not being statement on oath so that its
truth could not be tested by cross examination, the court has to apply scrutiny and closest
circumspection to statement before acting upon it..... Court has to be on guard against
statement of deceased being result of either tutoring. Court must satisfy that deceased had
clear opportunity to observe and identify his assailants and that he was making the statement
without any influence." In Parkash and other v. State of M.P. AIR 1993 SC 65 : Supreme Court
held that dying declaration can be sole basis of conviction and no corroboration is required if it
is proved that it is recorded with all precautions and maker of the statement made it while he
was in fit state of mind.
Ans. (B). Dying declaration is a statement as provided u/s 32(i) of Indian Evidence Act which
relates to cause of death or circumstances of transaction which resulted into death of maker of
it. So a statement to be relevant u/s 32(i) of Act, must have been made by person who is dead.
Though law does not require that at the time of making statement, he must be under
expectation of death. Therefore, a statement which is recorded as dying declaration of a person
with the assumption that he will die, but declarant survives, then such statement shall not be
dying declaration.
In Maqsoodan v. State of U.P.AIR 1983 SC 126. It was held by Supreme Court that `when a
person who has made a statement, may be under expectation of death, is not dead it is not a
dying declaration.
Recently Supreme court in Ram Prasad v. State of Maharashtra 1999 Cri. L.J. 2889 Held that If
a person making dying declaration survives his statement can not be used as evidence u/s 32 of
Evidence Act though it was recorded as dying declaration. Section 157 of Evidence Act permits
proof of any former statement by a witness before any authority legally competent to
investigate the fact but its use is limited to corroboration of testimony of such witness though
police officer is legally competent to investigate and any statement made to him during such
investigation cannot be used to corroborate the testimony of witness because of clear interdict
contained in Section 162 of Cr.P.C. But statement made to a magistrate is not affected by
prohibition contained in abovesaid section. A magistrate can record the statement of a person
as provided u/s 164 Cr P.C. and such statement would either be elevated to the status
of Section 32 of Evidence Act if the maker of statement subsequently dies or it would remain
within the realm of what it was originally A statement recorded by Magistrate u/s 164 Cr.P.C.
becomes usable to corroborate the witness as provided u/s 157 of Evidence Act. or to
contradict him as provided in Section 145 thereof.
Ans. (C). Before a dying declaration can be admitted in evidence it must be proved that such a
statement is made by a person, since deceased, as to the case of his death or as to any of the
circumstances of the transaction which resulted in his death. The statement must relate to the
injuries which have brought him or her to that condition or the circumstances under which
those injuries came to be inflicted. The statement may be made even before the cause of death
has arisen or before the deceased has any reason to anticipate death. It may also be stated that
no particular form of dying declaration is provided under the law. It may be oral or
documentary.
(i) Coming now to first dying declaration which is made soon after the incident, in the house
near the place of occurrence. There is no requirement of law that it should disclose full and
detail version as to cause of death of declarant or as to circumstances of transaction which
resulted into death of declarant. What is required that statement of deceased as a whole
without alteration or tempering must be proved in court. However court will scrutinize the
circumstances in which such statement is made, and if the court finds that statement is
voluntarily made while declarant is in fit state of mind and able to tell any relevant fact, then
dying declaration can be accept even when it does not contain full account of occurrence.
Reference may be made of Mannu Raja v. State of M.P. AIR 1976 SC 2199. (ii) When a
statement is made by deceased to police officer before his death, as first information report
and latter when deceased died, it can be admissible as dying declaration, even if the police
officer who recorded the same happens subsequently to be investigating officer. In Jaiparkash
and other v. State of Haryana 1999 Criminal Law Journal 837 Supreme Court accepted the
statement of deceased which was made by her as complaint to police and on account of her
death thereafter same was treated as dying declaration. Therefore there is no bar in law why a
statement was lodged to police as F.I.R. can not be treated and accepted as dying declaration
after the death of person who made if it relates to cause of his death.
(iii) Statement of deceased recorded by investigating officer in the hospital in the presence of
friends and relations of deceased and doctor who was kept by investigating officer with him
without requisition the services of Magistrate in this regard, which could be done, is not
considered to be reliable. Dying declaration being exception to general Rule that oral evidence
must be direct and dying declaration is a statement which is not subjected to test of cross-
examination by party against whom it is proved is usually taken by court with great scrutiny and
circumspection. Specifically in a case in which it is recorded by a police officer and also in the
presence of relatives of deceased, it creates some doubt of tutoring or concoction. Therefore as
matter of caution law require that dying declaration should be recorded by Judicial Magistrate
after complying with all requirements of law as to voluntary nature of statement and physical
and mental condition of declarant. However this does not mean that dying declaration
recorded by investigating officer can never be taken into consideration, but practice of
recording dying declaration by police officer ought not be encouraged because there is every
possibility of tutoring, false implication when such statement is recorded by police.
It was observed by Supreme Court in Mannu Raja v. State of M.P. AIR 1976 SC 2199 that
although a dying declaration recorded by police officer during the course of investigation is
admissible u/s 32 of Act it is however better to leave such dying declaration out of
consideration unless and until the prosecution satisfies the court as to why it was not recorded
by magistrate or a doctor.

Q. 28 Under what circumstances are the previous depositions admissible in subsequent

proceedings ?

Ans. The general Rule of law of Evidence is that oral evidence must be direct that is to say a fact
to be proved by oral evidence must be deposed before the court by one who has first hand
knowledge of that fact. This Rule that oral evidence must be direct is incorporated u/s 60 of
Evidence Act. Rule makes hearsay evidence or indirect evidence inadmissible. Basis of this Rule
is legal necessity. When a person appears in court to depose about a fact of which he has direct
or first hand or original knowledge, then (a) his statement can be recorded on oath (b) The
party against whom he is deposing in court will have opportunity to cross examine him to test
his veracity (c) Such witness if found to be deposing false can be subjected to penalty of
deposing false. But if `Hearsay Evidence' being allowed than such witness could not be put on
oath neither opposite party will have opportunity to cross examine his testimony because
whatever he will say will be based on second hand information or hearsay fact Therefore law
insists upon that oral evidence must be direct within the meaning of Section 60 of Act.
Section 33 is another exception to the Rule that oral evidence must be direct. Section 33 of Act
provide:
"Evidence given by a witness in a judicial proceeding or before any person authorised by law to
take it is relevant for the purpose of proving it in subsequent judicial proceedings or in latter
stage of the same judicial proceedings, the truth of fact which it states when the witness is dead
or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party
or his presence cannot be obtained without an amount of delay or expense which under the
circumstances of the case, the court considers unreasonable:
Provided
that the proceeding was between the same parties or their representatives in interest.
that adverse party in the first proceeding had the right and opportunity to cross examine.
that the questions in issue were substantially the same in the first as in the second proceedings
" So previous deposition of witness is relevant u/s 33 for proving the truth of fact stated therein
when
(a) That deposition is made in a judicial proceeding or before a person authorised by law to take
it.
(b) When proceedings is between the same parties or between their representative in interest.
(c) When the opposite party had right and opportunity to cross examine such witness
(d) When issue in question is substantially the same in both proceeding.
(e) When the witness is dead or cannot be found or is incapable of giving evidence or is kept
out of way by adverse party or when whose presence cannot be obtained without delay and
expense.

Q. 29 When are the books of accounts said to be regularly kept in the course of business ?
Are their entries relevant ?

Ans. :- Section 34 of Indian Evidence Act says

" Entries in books of accounts, regularly kept in course of business, are relevant, whenever
they refer to the matter, which the court has to inquire but such statement shall not alone be
sufficient evidence to charge any person with liability" So u/s 34 of Evidence Act Books of
Accounts regularly kept and entries made therein in course of business are relevant, but at the
same time Section 34 states that such entries alone shall not be sufficient to charge a person
with liability.
In Y. Venkanna Chowdry v. Lakshmidevamma, AIR 1994 (Mad.) 140, it was observed any book
of account regularly kept and entries made therein in course of business are relevant but are
not sufficient by themselves to charge any person with liability where the books of account are
maintained by the Managing Partners regarding which other partners made objections
regarding entries and if found to vague and false, it is necessary for managing partner to
adduce evidence to substantiate entries and prove its genuineness.

Q. 30 " Ordinarily the Judgement of Court binds only the parties to it " -- Discuss .

Ans. Section 40 of Indian Evidence Act says

"The existence of any judgement, Order or decree which by Law prevents any court from
taking cognizance of a suit or holding trial is a relevant fact when the question is whether
such court ought to take cognizance of such suit or to hold such trial:" So Section 40 provides
that once there has been a judgement about a fact and Law, such judgement is relevant
whenever there is question before a court as to whether court can take cognizance or hold trial
of suit between same parties regarding same fact in issue which has been decided. So
Judgement, which has the effective Doctrine of Res Judicata, is relevant. Doctrine of Res
Judicata is provided in Section 11 of CPC and evidence of Res Judicata is admissible u/s 40 of
Evidence Act.
Section 41 of Act provides
"A final judgement, Order or Decree of competent court in exercise of probate, matrimonial,
admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal
character or which declares any person to be entitled to any legal character or to be entitled to
any specific thing, not as against any person but absolutely, is relevant, when existence of such
legal character or title on any such person to any such thing is relevant. Such judgement, Order
or Decree is conclusive proof --
-That any legal character, which it confers, occurred at the time when such Judgement, Order or
Decree came into operation.
-That legal character, to which it declares any person is entitled, occurred to that at the time
when such Judgement, Order or Decree declares it to have occurred to that person.
- That legal character which takes away from any person ceased at the time from which such
Judgement, Order or Decree declared that it had ceased.
- That anything to which it declares any person to be entitled was property of that person at the
time from which such Judgement, Order or Decree declares it." So there are two kinds of
judgements, one is " Judgement- in- rem" which decides about the legal character of person or
declares that such person is entitled to such character or anything or property and it is binding
to the world as a whole and parties to proceeding Other is " Judgement-in-personam" which
only bind the parties to proceedings in which it was pronounced. Section 40 of Indian Evidence
Act provides regarding relevancy of " Judgement- in- personam:" and Section 41 provides
regarding relevancy of "Judgement-in-rem"
Section 42 says " Judgement, Order or Decree other than those mentioned in Section 41 are
relevant if they relate to matter of public nature relevant to inquiry but such judgement,
decree or Order are not conclusive proof of that which they state" Section 43 says "
Judgements, Orders or Decrees other than those mentioned in Section 41,42,43 are irrelevant
unless existence of such Judgement, Order or Decree is fact in issue or is relevant under some
other provisions of this Act "

Q. 31 Write a short Note on " Expert Witness".

Ans :- EXPERT WITNESS: As a general Rule the opinion of witness on a question whether of fact
or of law, is irrelevant. A witness has to state the facts, which he has seen, heard or perceived,
and not the conclusions, which he has formed on observing or perceiving them. The function of
drawing inferences for the facts is a judicial function and must be performed by the Court. To
this general Rule, however, there are some important exception When "the subject matter of
inquiry is such that inexperienced persons are unlikely of forming a correct judgment upon it,
the opinions of persons having special knowledge of the subject matter of inquiry become
relevant; for it is very difficult for the court to form a correct opinion on a matter of this kind,
without the assistance of such persons " Section 45 of the Indian Evidence Act provides
"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 impression are relevant facts Such persons are called expert Section " So an expert is
one who has acquired special knowledge, skill or experience in any science, art trade or
profession; practice, observation or careful studies may have acquired such knowledge.
The opinion of an expert is never binding on a court. It is admitted in evidence only to help the
court in arriving at a correct decision. In other words, evidence of expert cannot be taken as
conclusive of fact In considering the value of the evidence of an expert it must be borne in mind
that an expert witness, however impartial he may wish to be unconsciously prejudiced in favor
of the side which calls him. In State of Haryana v. Bhagirath and Others 1999 Criminal Law
Journal 2898 (SC) Supreme Court has held `Opinion given by expert witness need not be the
last word on the subject, such opinion shall be tested by court and if opinion is not of logic or
objectivity, the court is not obliged to go by that opinion.
Section 46 of Indian Evidence Act say " Facts not otherwise relevant, are relevant if they
support or are inconsistent with opinion of experts, when such opinion are
relevant" Then Section 47 says
" When court has to form an opinion as to the person by whom any document was written or
signed, opinion of any person acquainted with the handwriting of the person by whom it is
supposed to be written or signed that it was or was not written or signed by that person is a
relevant fact. Explanation :- A person is said to be acquainted with the hand writing of another
person when he has seen that person write or when he received a document purporting to be
written by that person in answer to document written by himself or under his authority
addressed to that person or when in ordinary course of business, document purported to be
written by that person have been habitually submitted to him." The Section 48 of Act makes
opinion relating to right or custom, relevant , by one who would be likely to know of its
existence. Similarly Section 49 makes opinion as to usage, tenets etc relevant when expressed
by one having special means of knowledge thereon.
Then Section 50 says
"When the court has to form an opinions to relationship of one person to another, opinion
expressed by conducts to the existence of such relationship, of any person who as a member of
family or otherwise has special means of knowledge on the subject is a relevant fact :
Provided that such opinion shall not be sufficient to prove marriage in proceedings under Indian
Divorce Act or in prosecution u/s 494,495,497 and 498 of IPC."

Q. 32 How far is "character" relevant and admissible in evidence in civil suits and criminal
proceedings".
Ans. To what extent is the character, general reputation of a person relevant in civil or criminal
proceedings has been made clear by Secs. 52-55. In respect of the character of a party, two
distinctions must be drawn, namely between the cases when the character is in issue and is not
in issue and when in the cause is civil or criminal.
In 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. Thus, a party cannot give evidence of his good character for the
purpose of showing that it is improbable that he should be guilty of the conduct imputed to
him. The reason is that the court has to try the case on the basis of its facts for the purpose of
determining whether the defendant should be liable or not. The court has not to try the
character of the parties and the evidence of character will not only prolong the proceedings but
will also unnecessary prejudice the mind of the judge one way or other.
There are some exceptions to the general principle laid in Section 52 :
(1) Section 55 says "in civil cases the fact that the character of any person is such as to affect
the amount of damages which he ought to receive, is relevant". The evidence of good or bad
character of the defendant is irrelevant to damages. But the character of the plaintiff is
relevant. In an action for damages, for seduction or rape, evidence of bad character of the
plaintiff is allowed as it is likely to affect the damages that the plaintiff ought to receive.
(2) Evidence can be given of a party's character when his character is itself a fact is issue.
(3) A fact which is otherwise relevant cannot be excluded from evidence only because it
incidentally exposes or throws light upon a party's character (Section 52).
In Criminal cases - Section 53 says that "in criminal cases, the fact that the person accused is of
a good character is relevant". Normally, we presume that a person of good character and
reputation will not generally resort to any criminal act.
According to Section 54, evidence may not be received regarding the badness of party's
character in criminal proceedings, unless evidence has been given that he has a good character,
in which case it becomes relevant.
Criminal cases also admit of certain exceptions. There are certain cases in which evidence of a
prisoner's bad character can be given :
(1) To rebut prior evidence of good character (Section 54).
(2) The character is itself a fact in issue (explanation 1 to Section 54).
(3) A previous conviction is relevant as evidence of bad character in criminal cases (explanation
2 to Section 54).

Q. 33 What do you understand by term "Judicial notice" ? What are those facts of which a
court can take judicial notice?

Ans. Chapter III of Indian Evidence Act deals with facts which need not be proved. Section 56 of
the Act declares - "No fact of which the court will take judicial notice need be proved."
Judicial Notice - Meaning. - Some of fact need not be proved because the court itself will take
judicial notice of them if they are relevant. Certain facts are so notorious in themselves or are
stated in so authentic manner as well-known and accessible publications, that they require no
proof. The court if it does not know them, can inform itself upon them without formally taking
evidence. These facts are said to be judicially notice. For example if it becomes relevant in a
case to know as to who is the President of India, a party need not to adduce any evidence to
that effect.
In Stall of Travancore Tiruppa Brand v. K. Vinay Chanderan and others, AIR 1989 Ker. 302. It
was held that all notifications of a legislature are equivalent to law. The notification in question
is proviso of Section 34 and Court is bound to take judicial notice of this fact u/s 57 of Indian
Evidence Act.
In order to understand the correct meaning of sections 56 and 57 they should be taken
together. Section 56 lays down that when a fact, which is relevant in a case, is of such a nature
that the court must take judicial notice of it, no evidence in proof of it should be given. Section
57 gives a list of facts of which the courts must take judicial notice of. Thus both the sections
taken together mean that when controversy arises with regard to the facts enumerated in
section 57, the parties who assert their existence, need not produce any evidence to prove the
existence of such fact.
However matters enumerated in Section 57 do not form an ex haustative list. The court could
take judicial notice of other facts not to be found in the list.
It was observed in Nitya Nand etc. v. S.G.P.C. Amritsar, 1992(1) RCR 406 (P&H)(DB) that under
Section 57 of the Evidence Act, the Court may presume that any book to which it refers for
information on matters of public or general interest was written and place, by whom or at
which it purports to have been written on published. In questions of public history, the Court
can only dispense with evidence of notorious or undisputed facts. But before any judicial notice
could be taken of any passage in books relating to the alleged tradition something more than
the mere existence of the passages would have to be proved before the passages could be
regarded as evidence of the existence of the tradition. It must be shown that the writer had any
special knowledge of the alleged tradition, or that the tradition is a repetition of that given in
the history.
Then Section 58 of the lays down that if parties to a proceedings or their agents agree to admit
a fact at the hearing or which they agree to admit by writing before the hearing, or which by
any rule of pleading in force they are deemed to have admitted by their pleadings, it need not
be proved by the opposite party.

Q. 34 Write a short note on "Hearsay Evidence" ?

Ans :- Hearsay Evidence : The general Rule of law of Evidence is that oral evidence must be
direct that is to say a fact to be proved by oral evidence must be deposed before the court by
one who has first hand knowledge of that fact. This Rule that oral evidence must be direct is
incorporated under section 60 of Evidence Act. Rule makes hearsay evidence or indirect
evidence inadmissible. Basis of this Rule is legal necessity. When a person appears in court to
depose about a fact of which he has direct or first hand or original knowledge, then
(A) His statement can be recorded on oath.
(B) The party against whom he is deposing in court will have opportunity to cross examine him
to test his veracity.
(C) Such witness if found to be deposing false can be subjected to penalty of deposing false.
But if `Hearsay Evidence' being allowed than such witness could not be put on oath neither
opposite party will have opportunity to cross examine his testimony because whatever he will
say will be based on second hand information or hearsay fact Therefore law insists upon that
oral evidence must be direct within the meaning of Section 60 of Act.
Hearsay evidence has been defined by Taylor thus: `It is all evidence which does not derive its
value solely from the credit given to the witness himself but which rests also in part on the
veracity and competence of some other person. Hearsay thus means that which a witness does
not say of his own knowledge but says that another has said or signified to him'." Hearsay, as a
general Rule, is excluded from legal evidence; but this general Rule is subject to the following
exceptions when hearsay evidence has to be admitted on the grounds of necessity or
expediency:
1. Statements which are part of the res gestae, whether actually constituting a fact in issue, or
accompanying and explaining a fact in issue. [ Section 6, Evidence Act.]
2. Admissions and confessions. [Sections 18 to 24 Evidence Act.]
3. Statements made by persons dead or incapable of attending the Court. Section [32 and 33,
Evidence Act.]
4. Statements in books of accounts, Government Charts, Public record. [Section 34 to 38,
Evidence Act.]
5. Opinion of experts expressed in treaties offered for sale when it is not possible or convenient
to bring them as witness. [Proviso to Section 60 Evidence Act.]

Q. 35 "Oral Evidence in all cases must be direct" explain this Rule  with illustration and
exceptions ?

Ans. Section 59 of Indian Evidence Act says "All facts except the contents of document may be
proved by oral evidence". It means that where a written document exists, then evidence as to
contents of such document can be proved by proving that document, apart from it all facts can
be proved by Oral Evidence.
Oral Evidence is one of the form of `Evidence' as defined under Section 3 of Evidence Act which
means all statements which the court permits or requires to be made before it by witness in
relation to matters of fact in question.
Section 60 of Indian Evidence Act then provide that Whenever Oral evidence is to be led it must
be direct. Evidence Act does not accept `Hearsay' or `Indirect Evidence. Section 60 lays down
that oral evidence must be direct. By direct it is meant that:
(i) If evidence is to be led about a fact which can be heard, witness must be produced who says
that he heard it.
(ii) If evidence is to be led about the fact which can be seen, the witness produced must say he
himself saw it.
(iii) If evidence is to be given about a fact which can be perceived by any other sense or in any
other manner the witness produced must say that he perceived it himself by that sense or in
that manner.
(iv) If evidence is to be given about an opinion or as to the ground on which the opinion is to be
held, the witness produced must say that he holds that opinion and on those ground.
So as a general Rule of Evidence, the oral evidence must be direct. Law does not allow hearsay
or indirect evidence because:
(i) Hearsay evidence being second hand evidence based on information given by other people is
considered to be susceptible piece of evidence will not lead the court to any concrete logical
conclusion.
(ii) Hearsay Evidence can not properly be subjected to test a cross examination, because,
witness giving hearsay evidence having no first hand and direct knowledge of fact relevant, will
escape by replying only i has so heard only.
(iii) Admission of Hearsay evidence will open the doors of fraud.
(iv) Admission of Hearsay or Indirect evidence would encourage tendency to lead weaker proof
of a fact than a strong and more reliable proof.
So court require the proof of any fact, must be given by most reliable and probable evidence,
this can be done by insisting upon only direct oral Evidence. However, Indian Evidence Act has
recognised certain exceptions to general Rule requiring direct oral evidence.
Exception to the Rule of Hearsay Evidence
(i) Statements which are part of Res Gestae, Whether actually constituting a fact in issue or
accompanying and explaining a fact in issue ( Section 6 of Evidence act).
(ii) Admissions and Confessions. [Section 18 to 31]
(iii) Statements of person who is dead or who cannot be found or who cannot attend the court
in circumstances as are provided in Sections 32 and 33 of Evidence Act.
(iv) Statements in books of accounts, government chart and public record. [Section 34 to 38]
(v) Opinion of experts expressed in any treatise commonly offered for sale and the grounds on
which are held, may be proved by indirect evidence. [Proviso to Section 60]

Q. 36 Enumerate the cases in which documents may be proved by secondary evidence.

Ans. Section 61 of Indian Evidence Act gives a general Rule that the contents of document may
be proved either by primary or by secondary evidence. Word `Document' has been defined
in Section 3 of Evidence Act Document means any matter expressed or described upon any
substance by means of letters, figures or marks or by more than one of those means intended
to be used or which may be used for the purpose of recording that matter.
Section 62 says that primary evidence means the document itself produced for the inspection
of the Court. Primary evidence is the best evidence of the existence, condition or contents of a
document and the law requires that it should be given first. Secondary evidence is the evidence
which may be given in the absence of the better evidence which the law requires to be given
first, when a proper Explanation is given of the absence of that better evidence.
Section 63 of the Act enacts:
"Secondary evidence means and includes
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes within themselves insure the
accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original,
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen
it." Section 64 of Act says that document must be proved by primary evidence except in cases
herein after mentioned. Section 65 provide as to when secondary evidence relating to
documents may be given. It says in following situations document may be proved by its
secondary evidence:
(i) When the original is shown or appears to be in the possession or power of person against
whom the document is sought to be proved.
(ii) When the original is in possession or power of person out of reach of or not subject to the
process of the court.
(iii) When the original is in possession or power of any person who is legally bound to produce
it and after giving notice as mentioned in Section 66 of Act such person does not produce it.
(iv) When the existence condition or contents of the original have been proved to be admitted
in writing by the person against whom it is proved or by his representative in interest.
(v) When the original has been destroyed or lost or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect produce it in
reasonable time.
(vi) When original is of such nature as not to be easily moveable.
(vii) When original is a public document within the meaning of Section 74.
(viii) When the original is a document of which a certified copy is permitted by this Act or by
any other law in force in India, to be given in evidence.
(ix) When the original consists of numerous accounts or other documents which can not
conveniently be examined in court and the fact to be proved is the general result of whole
collection.
In Gurdial Kaur v. Registrar Cooperative Society Punjab AIR 2000 P&H 82 Permission to lead
secondary evidence under section 65 in respect of receipts which are allegedly be lost is subject
to proof of loss of original and therefore before granting permission proof of loss must be
taken.

Q. 37 How would you prove execution of document required by law to be attested ?

Or
How would you prove an attested document not required by law to the attested ? What
will happen where the attesting witness denies the execution.
Ans. Section 68 of Indian Evidence Act details with proof of execution of document required by
law to be attested. It provides - "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
it's execution if there be an attesting witness alive and subject to process of court and capable
of giving evidence;
Provided that it shall not be necessary to call an attesting witness in proof the execution of any
document, not being a will which has been registered in accordance with provisions of Indian
Registration Act 1908 unless it's execution by whom it purports to have been executed is
specifically denied."
Attestation. - The Evidence Act does not define the word `attestation'. Section 63 of the Indian
Succession Act has defined the word `attestation' as follows :- "Attested in relation to an
instrument, means and shall be deemed always to have meant, attested by two or more
witnesses each of whom has seen the executant sign or affix his mark to the instrument or has
seen some other person sign the instrument in his presence by the direction of the execution or
has received from the executant a personal acknowledgment of his signature or mark or of the
signature of some other person, and each of whom has signed the instrument in the presence
of the executant; but it shall not be necessary that more than one of such witnesses shall have
been present at the same time; and no particular form of attestation shall be necessary."
So Section 68 of Act states that if document 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 it's
execution, If there be an attesting witness alive. Proviso to section makes an exception in the
case of any document not being a will, which has been registered, unless it's execution by
person by whom it purports to have been executed, is specifically denied.
Then Section 69 of Act says that if no such attesting witness can be found or if the documents
purports to have been executed in united kingdom, it must be proved that the attestation of
one attesting witness at least is in his handwriting, and that signature of the person executing
the document is in handwriting of that person.
Section 70 says "The admission of party to an attested document of it's execution by himself
shall be sufficient proof of it's execution as against him, though it be a document required by
law to be attested."
Document not required by law to be attested - How to proved? - Section 72 lays down the
procedure of proving a document which is not required by law to be attested but has been
attested. If a document is not required by law to be attested but the parties being overzealous
for making the document legal had got it attested it may be proved like a deed which is not
required by law to be attested.
If witness denies execution. - Section 71 provides that if the attesting witness denies or does
not recollect the execution of a document its execution may be proved by any other evidence.
Very often it happens that when a witness is called by a party to a proceeding he colludes with
the opposite party and deposes that he does not remember anything or he denies all
knowledge of the matter and in such cases document may be proved by other independent
evidence.
 Q. 38 Genuineness of a signature on a document was in dispute. Parties produced
evidence on the point but did not examine handwriting expert. The trial judge himself
compared the disputed signature with admitted signature of the alleged executant. He
held that the disputed signature was forgery. In appeal this finding was assailed. Decide
give reasons.

Ans. Section 73 of Indian Evidence Act says,

"In Order to ascertain whether a signature, writing or seal is that of the person by whom it
purports to have been written or made, any signature, writing or seal admitted or proved to the
satisfaction of the court to have been written or made by that person, may be compared with
the one which is to be proved although that signature, writing or seal has not been produced or
proved for any other purpose. The court may direct any person present in court to write any
words or figures for the purpose of enabling the court to compare the words or figures so
written with any words or figures alleged to have been written by such person."
In Murari Lal v. State of U.P., AIR 1980 SC 531, their Lordships of the Supreme Court observed:
"The argument that the Court should not venture to compare writings itself as it would thereby
assume to itself the role of an expert is entirely without force. Section 73.... expressly enables
the Court to compare disputed writings with admitted or proved writings to ascertain whether
a writing is that of the person by whom it purports have been written. There may be cases
where both sides call experts and the voices of science are heard. There may be cases where
neither side calls an expert being not able to afford him. In all such cases, it becomes the plain
duty of the Court to compare the writings and come to its own conclusion. The duty cannot be
avoided by recourse to the statement that the Court is no expert.
In the case in hand, it is not clear from the facts whether the Court while arriving at the
conclusion that the disputed signature was forgery took the assistance of the counsel for the
parties and if it considered the general character also. If it has proceeded accordingly, the
decision of the Court cannot be assailed in appeal merely on the ground that the Court should
not have assumed to itself the role of an expert.

Q. 39 What are public and private documents ? How such documents can be prove ?

Ans. In Evidence Act the documents have been divided into two groups : `Private documents'
and `Public documents'. Public document has been defined under section 74 and then under
section 75 it has been laid down that all documents which are not public documents are private
documents.
Section 74. - Public documents. - The following documents are public documents :
(1) documents forming the acts, are records of the act,
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;
(2) public records kept in any State of private documents.
According to section 74 a document which is the act or record of the acts of a sovereign
authority, official bodies and tribunals, public officer, legislative, judicial and executive is a
public document. Public records or private documents are also public documents. A public
document is one prepared by a public servant in discharge of his public official duties. It must
have been prepared by a public servant in his official duty. The acts mentioned in section 74 are
completed acts as distinct from act of a preparatory or tentative character.
Private Documents - Section 75 of Indian Evidence Act says that all documents other than
public documents are private documents.
Mode of Proof; Section 77 says that contents of public documents can be proved by filing
certified copies of such documents.
Section 78 of Act says that public documents may be proved in following ways :
(1) Acts, orders or notifications of the Central Government in any of its departments, or of the
Crown Representatives of any State Government or any department of any State Government,
by the records of the departments, certified by the heads of those departments respectively, or
by any documents purporting to be printed by order of any such Government or; as the case
may be, of the Crown Representative;
(2) The proceedings of the Legislature,by the journals of those bodies respectively, or by
published Act or abstracts, or by copies purporting to be printed by order of the Government
concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by Privy Council, or by any
department of Her Majesty's Government, by copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen's Printer.
(4) The Act of the Executive or the proceedings of the legislature of a foreign country, by
journals published by their authority, or commonly received in that country as such, or by a
copy certified under the seal of the country or sovereign, or by a recognition thereof in some
Central Act;
(5) The proceedings of a Municipal Body in a State; by a copy of such proceedings, certified by
the legal keeper thereof, or by a printed book purporting to be published by the authority of
such body;
(6) Public documents of any other class in a foreign country, by the original, or by a copy
printed by the legal keeper thereof, with a certified under the seal of Notary Public, or of an
Indian Council or diplomatic agent, that the copy is duly certified by the officer having the legal
custody of original, and upon proof of the character of the document according to the law of
the foreign country.

Q. 40 (A) A contracts in writing with B for delivery of wheat upon certain terms. The
contract mentions the fact that B had paid A the price of other wheat contracted for
 verbally on another occasion. Oral evidence is offered that no payment was made for the
other wheat. Is the evidence admissible ?

(B) A enters into written contract with B to work in certain mines the property of B, upon
certain terms. A was induced to do so by a misrepresentation of B as to their value.
Examine whether A can given an oral evidence in this case.
(C) A gives B receipt of money paid by B. Oral evidence is offered for payment. Is the
evidence admissible ?
(D) A agrees in writing to pay B Rs.10,000 on the Ist of March 1993. Can the fact that at the
same time an oral agreement was made that money should not be paid till the 31st March
be proved ?

Ans. (A) Section 61 of Indian Evidence Act provide that the contents of documents may be
proved either by primary or by secondary evidence. Sections 91 and 92 of Evidence Act provide
as to how far and in what cases oral evidence is excluded by documentary evidence.
Section 91 of Act says
"When the terms of contract or of a grant or of any disposition of property have been reduced
to the form of document and in all cases in which matter is required by law to be reduced to
the form of a document, no evidence shall be given in proof of the terms of such contract,
grant or other disposition of property or of such matter except the document itself or
secondary evidence of its contents in cases in which secondary evidence is admissible under
the provisions herein before contained." Exception 1 : When a public officer is required by law
to be appointed in writing and when it is shown that any particular person has acted as such
officer the writing by which he is appointed need not to be proved.
Exception 2 : Wills admitted to probate in India may be proved by the probate.
So Section 91 is based on what is described as "Best Evidence Rule" The best evidence about
the contents of a document is the document itself and it is the production of document that is
required by Section 91 in proof of its content Section 91 has to be read along with Section 92 of
Evidence Act. Section 91 of Evidence Act exclude the admission of oral evidence for proving the
contents of a document and Section 92 excludes oral evidence to contradict the terms of
contract where the deed is proved Section 92 says as under:
"When the terms of any such contract, grant or other disposition of property or any matter
required by law to be reduced to the form of document, have been proved according to
Section 91, no evidence of any oral agreement or statement shall be admitted as between the
parties to any such instrument or their representative in interest for the purpose of
contradicting varying, adding to or subtracting from its terms". So reading Section 91 and 92
together, the legal position is that when the terms of contract, grant or other disposition of
property has been reduced in form of document or when any matter required by law to be
reduced to the form of document, then contents of any such contract, grant or disposition of
property or any matter cannot be proved by oral evidence and it can be proved by proving
document itself, then Section 92 says once such terms of contract grant or disposition of
property or any matter have been so proved according to Section 91, then no evidence can be
led regarding any oral agreement or statement between same parties for proving any
contradiction, variation etc. in such term However Section 92 of Indian Evidence Act recognize
following exceptional circumstances in which oral evidence is admissible for contradicting or
varying, adding or substracting from its terms:
Proviso (1) Any fact may be proved which would invalidate any document or which would
entitle any person to any decree or Order relating thereto, such as fraud, intimidation, illegality,
want of due execution want of capacity in any contracting party, want of failure of
consideration or mistake in fact or law.
Proviso (2) Existence of any separate oral evidence as to any matter on which a document is
silent and which is not inconsistent with its terms, may be proved.
Proviso (3) Existence of any separate oral agreement constituting a condition precedent to
attaching of any obligation under any such contract, grant or disposition of property may be
proved.
Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any
such contract grant or disposition of property may be proved except in cases in which such
contract, grant or disposition of property is by law required to be in writing or has been
registered according to law for the time being in force for registration of document
Proviso (5) Any usage or custom by which incident not expressly mentioned in any contract are
usually annexed to contract of that description may be proved. Provided that the annexing of
such incident would not be repugnant to or inconsistent with express terms of contract.
Proviso (6) Any fact may be proved which shows in what manner the language of a document is
related to existing fact
That being legal position, coming now to case in hand A made a written contract with B for
delivery of wheat. This written contract between A and B mentioned the fact that B had paid to
A price for wheat, taken under oral agreement at earlier occasion. The fact that under any oral
agreement at other occasion wheat was taken and B had paid price of it to A is in no way
contradicting or varying the terms of written contract, therefore Section 92 is not attracted,
therefore oral evidence can be given (See Illustration (d) of Section 91).
Ans. (B). Section 92 of Evidence Act says when the terms of any such contract grant or other
disposition of property or any matter required by law to be reduced to the form of document
have been proved according to Section 91, no evidence of any oral agreement or statement
shall be admitted as between parties to any such instrument or their representatives in
interest, for the purpose of contradicting, varying, adding to or subtracting from its term.
Proviso (1) say Any fact may be proved which would invalidate any document or which would
entitle any person to any decree or Order relating thereto, such as fraud intimidation, illegality,
want of due execution, want of capacity in any contracting party want or failure of
consideration or mistake in fact or law.
So it is after the document as has been produced to prove its terms u/s 91, that the provisions
of Section 92 comes into operation for the purpose of excluding evidence of any oral
agreement or statement for the purpose of contradicting, varying, adding to or subtracting
from its term.
However proviso (i) makes it clear that oral evidence may be given when any fact would
invalidate any document such as fraud or intimidation etc. Undue influence or
misrepresentation have same affect as fraud on validity of instrument. Therefore in problem in
hand A is entitled to give oral evidence that contract was induced by misrepresentation by B in
view of proviso (i) to Section 92 of Evidence Act (See Illustration (d) of Section 92).
Ans. (C). Section 91 of Evidence Act excludes oral evidence of terms of the contract grant or
disposition of property or of terms of matter required by law to be reduced into writing. Oral
evidence of payment of money for which a receipt has been taken is thus inadmissible if receipt
is not produced or is not admissible owing to any other similar reason. A mere receipt of
payment of money is not a contract, grant or disposition of property. Oral evidence in proof of
payment of money advanced by receipt is therefore admissible. Abdul Rehman v. Kirpa Ram
AIR 1928 Lah. 51.
Ans. (A). Section 92 of Evidence Act says that when the terms of any such contract grant or
other disposition of property or any matter required by law to be reduced to form a document
have been proved according to last Section no evidence of any oral agreement shall be
admitted as between parties to any such instrument or their representatives in interest for the
purpose of contradicting, varying, adding to or subtracting from its term Proviso (3) says that
existence of any separate oral agreement constituting a condition precedent to attaching of any
obligation under any such contract, grant or disposition of property may be proved. In the
problem in A agrees in writing to pay B R 10000 on Ist March 1993. Now the fact that oral
agreement was made that money should not be paid till 31st March can not be proved.
Because Proviso (3) of Section 92 says that oral agreement which create any obligation as
condition precedent to written agreement can be proved. In this case oral agreement that
money should not be paid till 31st March does not create any obligation attached therewith.
Thus no oral evidence to this fact can be given in view of Section 92 of Act.

Q. 41 What do you understand by Latent and Patent ambiguities ?

Ans :- If the language employed in document is ambiguous, the question of admissibility of

extraneous evidence would be regulated by Section 93 to 97 of Evidence Act. Ambiguities are:
1. Patent Ambiguities ( Section 93-94) :- A patent ambiguity is one which appears to be
ambiguious on the face of the document. Section 93 of Act says "When the language used in
document is, on its face ambiguous or defective, evidence may not be given of facts which
would show its meaning or supply its defects"
So when a document is ambiguous on its face, no extrinsic evidence is allowed to explain or
amend the instrument.
2. Latent Ambiguities ( Section 95-97):- Latent ambiguity is that which seems certain and
without ambiguity for any thing that appears on the deed but there is some collateral matters
out of the deed that breaths the ambiguity. Evidence is admissible to remove latent
ambiguity. Section 95 says that when the language used in a document is plain in itself but
unmeaning in reference to existing facts, evidence may be given to show that it was used in
peculiar sense.

Q. 42 (A) What are the Rules of Burden of Proof ? What is the nature of burden of proof on
an accused u/s 105, Evidence Act?

(B) On whom does the burden of proving the following facts lies:

(i) A accused of B's murder, alleges that by grave and sudden provocation given by `B' he
was deprived of the power of self control.

(ii) A who is charged with travelling on a Railway without a ticket says he had a ticket.

Ans. (A). Provision regarding burden of proof are provided in Chapter VII of Indian Evidence
Act. Section 101 of Act provide:
"Whoever desires any court to give judgement as to any legal right or liability dependent upon
the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies
on that person." So burden of proof means in the sense of proving the case and for this
purpose, duty to prove all facts necessary for taking the judgement of court. Section 101 has to
be read along with Section 102 of Evidence Act which provide:
"Burden of proof in any suit or proceeding lies on that person who will fail if no evidence at
all were given on either side." So Section 101 of Act says about the burden of proof in the
sense of proving a case and provide whoever wishes the court to give judgement in his favour
for any legal right or liability dependent on existence of some facts, law lies onus on him to
prove that those facts exist Burden of proof in the sense of proving case as contemplated
in Section 101 is constant one and never shifts. Section 102 of Act does not provide a different
Rule, it simply looks from different angle on same Rule and says about burden of adducing
evidence. Section 102 says burden of adducing evidence rests upon party who would fail if no
evidence at all or no more evidence were adduced either party. So Section 101 of Act provide
regarding Burden of proof in the sense of proving the case i.e. onus probandi and Section
102 provide burden of proof in the sense of adducing evidence.
A files a suit in the court against B on the ground that plot of land which is in B's possession
belongs to him (a) and B is in unlawful possession. Now A wants the court to give judgement
that B is in unlawful possession of suit land and A is lawful owner of this land. Now if A desire
this decision, he is bound to prove all facts as asserted by him. It means he has to prove his case
i.e. he is lawful owner of suit land and that B is in unlawful possession This is burden of proof in
sense of proving case as provided under section 101. If supposingly A does not prove those
facts or does not lead any evidence then naturally for want evidence, he will fail, so he is under
burden to adduce evidence. If supposing A proves his case, then duty to lead evidence shifts to
B to adduce any rebuttal evidence to the claim of A. If B will not lead any evidence then
naturally B will fail.
So burden of adducing evidence keeps on shifting from one to another party. Burden of proof in
the sense of proving case never shift It remains on plaintiff in civil proceeding and on
prosecution in criminal proceeding. Then Section 103 of Evidence Act provides;
"The burden of proof as to any fact lies on that person who wishes the court to believe in its
existence unless it is provided by any law that proof of that fact shall lie on any particular
person."
So Section 103 substantially says similarly what Section 101 of Act provide. Only difference is
that Section 103 is confined to proof of particular fact whereas Section 101 provide for proving
who case or all facts as asserted.
Section 105 of Indian Evidence Act provide : "When a person is accused of any offence, the
burden of proving the existence of circumstances bring the case within any of the general
exceptions in Indian Penal Code or within any special exception or proviso contained in any
other part of same code or in any law defining the offence is upon, the court shall presume
the absence of such circumstances " So general Rule in criminal proceeding is that burden of
proving the offence against the accused lies on prosecution and it has to prove all ingredients of
offence alleged beyond reasonable doubt.Section 105 of Act lays down important qualification
to Rule that every thing essential to establishment of charge against accused lies upon the
prosecution and Section 105 provide that whenever any accused of an offence wishes to take
advantage of any general exception of I.P.C. or other special exception or proviso of I.P.C. or
any other law defining the offence, then burden of proving existence of circumstances bring the
case in such exceptions lies on accused and court shall presume the absence of such
circumstance in Vijayee Singh v. State of U.P. AIR 1990 SC 1459 It was observed that if the
prosecution has discharged its duty to prove the guilt of accused may raise the plea of
exception either by pleading the same specially or by relying on probability. He may adduce
evidence in support of his plea directly or may rely on prosecution case itself.
Ans. (B). (i) General Rule of Burden of Proof have been enshrined in Section 101 and 102 of
Evidence Act. Sec.101 provides that whoever desires any court to give judgement as to any
legal rights or liability dependent on the existence of facts which he asserts, must prove those
facts exist. So Section 101 of Act illustrate the burden of proof in the sense of proving a case
which is also known as `onus probandi'. So in a criminal case, it is prosecution who has to prove
the case against accused beyond reasonable doubt. Section 102 of Act provide the same Rule in
little different sense. It provides that burden of proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on either side.
Section 105 of Evidence Act is important qualification of the general Rule that in criminal trial,
burden of proving every thing essential to establishment of the charge against the accused lies
upon the prosecution. Section 105 says when a person accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of the general exceptions in
the Indian Penal Code or within any special exception or proviso contained in any other part of
the same code or in any law defining the offence is upon him and the court shall presume the
absence of such circumstance
In Vijayee Singh v. State of U.P. AIR 1990 SC 1459, it was observed that if prosecution has
discharged its duty to prove the guilt of accused, the accused may raise the plea of exception
either by pleading specifically or by relying on probability. He may adduce evidence in support
of his plea directly or may rely on case of prosecution itself.
So in view of above discussion in case in hand `A' accused can prove that by grave and sudden
provocation given by B he was deprived of the power of self control so as to bring his case
within definition of culpable homicide not amount to murder.
(ii) Section 106 of Evidence Act provides that when any fact is especially within the knowledge
of any person, the burden of proving that fact is upon him.
Section 106 is an exception to general Rule enshrined in Section 101 and lays down that where
the subject matter of allegation lies peculiarity within the knowledge of one of the party that
party must prove it.
The Supreme Court, in Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, considered
the application of Section 106 in criminal cases and, after laying stress on the word `especially'
appearing in that Section and pointing out that the Section is an exception to Section 101 which
places the burden of proving a criminal charge fairly and squarely on the prosecution, Supreme
Court has observed:
"This lays down the general Rule that in a criminal case the burden of proof is on the
prosecution and Section 106 is certain not intended to relieve it of that duty. On the contrary, it
is designed to meet certain exceptional cases in which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish facts which are "especially" within
the knowledge of the accused and which he could prove without difficulty or inconvenience."
Therefore, in the present case the burden of proving that A had a ticket is on him because this
fact is within his peculiar knowledge. See illustration (b) to Section 106 of the Act.

Q. 43 Whom does lie the burden of proof in criminal cases ? Is the standard of proof in civil
and criminal cases the same ?

Ans. It is the cardinal principal of criminal jurisprudence that accused will be presumed
innocent until his guilt is proved by prosecution beyond reasonable doubt.
In State of Maharashtra v. Wasudeo Ram Chander AIR 1981 SC 1186. It was held in criminal
proceeding, prosecution is under legal obligation to prove each and every ingredient of offence
beyond reasonable doubt unless otherwise so provided by the statute.
Relevant provision relating to burden of proof are provided under section 101 to 114 of
Evidence Act.
Section 101 of Act lays down "Whoever desires any court to give judgement as to any legal
rights or liability dependent. On the existence of fact which he asserts, must prove that those
facts exist Section " When a person who is bound to prove existence of fact it is said burden of
proof lies on that person" Section 102 of Act then provide
" Burden of proof in suit or proceeding lies on that person who would fail if no evidence at all
were given on either side." So Section 101 of Act provide burden of proof in the sense of
proving the case and Section 102 of provide it in the sense of adducing evidence. In criminal
proceeding, initial burden of proof in the sense of proving the case lies on prosecution and it
has to prove the charge against accused beyond reasonable doubt.
However, Section 105 of Evidence Act is important qualification to the Rule that in criminal
proceeding everything essential to establish charge against accused lies upon prosecution
Section 105 of Act provide "When a person is accused of an offence, burden of roving the
existence of circumstances bringing the case within any General Exceptions in I.P.C. or any
special exception or proviso in I.P.C. or in any other law defining the offence, lies on accused
and court will presume the absence of such circumstance" Similarly in Section 113 A and 113
B of Evidence Act Court take presumption upon proving the ingredients of offence under
section 306 or 304B I.P.C. respectively that Husband and Husband's relatives have committed
the offence and Burden of proof lies on accused to rebute this presumption.
In Civil Cases the burden of proof in the sense of proving the case is discharged by more
preponderance of probability and court in civil cases has to strike the balance of probability.
However, in criminal proceeding burden of proof in the sense of establishing the case always
lies on prosecution. Prosecution has to stand on its own legs and has to prove guilt of accused
beyond reasonable doubt.

Q. 44 P was the wife of X. Two months after the death of X she marries Y. Five months
after the marriage a son Z is born to P. Who is legally the father of Z ?

Ans. Section 112 of Indian Evidence Act provides "That fact that any person was born during
the continuance of a valid marriage between his mother and any man or within 280 days
after its dissolution the mother remaining unmarried shall be conclusive proof that he is
legitimate son of that man unless it can be shown that the parties to marriage had no access
to each other at any time when he could have been begotten." Section 112 of Act is based on
the fact that maternity admits of positive proof but paternity is a matter of inference. Section
112 lays down the Rule for proof of paternity of an individual and says if child is born.
(i) During continuance of a valid marriage between mother of child and any man.
or
(ii) Within 280 days after the dissolution of such marriage and mother remaining unmarried.
Then it shall be conclusive presumed that such child is legitimate child of that man. However,
this presumption shall be rebutted if it is shown that the mother of child and that man had no
access to each other at any time when the child would have begotten.
It must be born in mind that expression `Access' or `non-access' simply imply existence or non-
existence of opportunity for marital intercourse. It is not necessary to prove in all cases that
man and woman did not live together and thus parties to marriage could not had sexual
intercourse. Infact `Non-access' shall be shown when it is proved that a man is impotent or
physically incapable to the extent that it exclude any opportunity for prociating a child. If it is
proved that mother of child in question and man can have sexual intercourse then law does not
allow an inquiry to see. Whether the husband or some other man, was more likely to be the
father of child for displacing the presumption of legitimacy of child who either born during
continuance of marriage or within 280 days of dissolution of marriage mother did not remarry.
In the case in hand P was earlier wife of X. X dies and two months after the death of X, P got
married to Y. After 5 months of marriage with Y, P delivered the child Z, in view of provision
of Section 112 of Evidence Act, Z shall be legally legitimate son of Y, because Z born during
continuance of lawful marriage between P and Y and court cannot go into inquiry as to whether
by X or by Y, P was conceived.
Recently supreme Court In Smt. Kamti Devi v. Poshi Ram AIR 2001 SC 2226 , has observed
that Section 112 which raises conclusive presumption about paternity of child born during
subsistence of valid marriage itself provides an outlet to party who wants to escape from
rigorous of that conclusiveness, said outlet is if it can be shown that parties had no access to
each other at the time when the child could have been begotten, the presumption could be
rebutted. In other words, the party who wants to dislodge the conclusiveness has burden to
show a negative not merely that he did not have opportunity to approach his wife but she too
did not have opportunity of approaching him during relevant time.

Q. 45 (a) Define and explain the Law of Estoppel as laid down in Indian Evidence Act.

(b) Define the Expression `Estoppel' and discuss its kinds ?

(c) A has been adopted by B. A sues B as his adoptive mother for property of his deceased
adoptive father B disputes the fact of adoption. It is admitted that she (i) took part in
adoption ceremony. (ii) allowed A to perform the funeral rites of adoptive father. Is B
estopped?
(d) A takes a house on rent from B and lives in the same as tenant. Can A be permitted to
deny the title of B his landlord regarding the said house ? If not why ?

Ans. (a) and (b) Section 115 of Indian Evidence Act lays down law of Estoppel which says that
when one person by making a false representation (either by words or by conduct) has
intentionally caused a person to believe to a thing to be true and to act upon such belief,
neither he nor his representative in interest, in a subsequent proceeding will be allowed to say
that the representation is false.
Rule of estoppel is based on Rule of equity and provide that when a person has made false
representation and upon such representation other person has acted to his disadvantage then
law prohibits the former to turn back and say that representation was false. Section 115 of Act
provides:
"When one person has by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing." So following are the ingredients of Rule of
Estoppel as defined under section 115:
(a) There must be some representation.
(b) The Representation must be made with the intention to be acted upon.
(c) Representation must have been acted upon.
1. Representation : First requirement of Rule of Estoppel is that there must be representation
either by words or by conduct to another. This representation may be untrue or false or of
some existing fact, made to person who is not aware the truth of that fact. Where the party
effected by the representation had come to know before acted upon it, that the representation
was false he cannot avail the Rule of Estoppel. In Mohri Bibi v. Dharam Das Ghosh A minor
entered into contract of Mortgage Later when Minor claimed that he being minor at the time of
contract, so contract is void. Fact that Mortgage was minor was in the knowledge of Mortgage
Court held that Rule of Estoppel is not applicable as Mortgage was aware about his minority.
2 . Intention : It is not necessary that the representation should be false to the knowledge of
person making it provided that (i) it is intended to be acted upon in the manner in which it has
been acted upon or (ii) the person who makes it so conducts himself that a reasonable man
would take the representation to be true.
3. Representation Acted Upon It is also necessary to invoke the benefit of estoppel that
representation must have been acted upon taking it to be true by the party to whom it was
made.
Kinds of Estoppel: There are 3 kinds of Estoppel
(i) Estoppel by Matter of Record
(ii) Estoppel by Deed
(iii) Estopel by Conduct
(i) Estoppel of Record : It arises (i) When a matter or issue of fact between parties has been
finally determined by Tribunal or court of exclusive jurisdiction and same issue has directly
come in question in any subsequent proceeding between same parties Section 11 of C.P.C.
incorporate this Rule as "Res Judicata". Constructive Res Judicata also is `Estoppel by Record
which says when a fact or matter might or ought to be made ground of defence or attack in any
proceeding between parties but actually has not been raised such matter shall deemed to be
directly in issue and parties shall be estopped from raising it in any subsequent proceeding.
(ii) Estoppel by Deed : Estopped by deed is based on the principle that when a person has
entered into a solemn engagement by deed under his hand, he shall not be permitted to deny
any matter which he has so asserted. Where in a deed made between party and verified by
their seals, there is a statement of fact, an estoppel results, no one shall be permitted to deny
what is recited in deed.
(iii) Estoppel by Conduct : When a person by his conduct i.e. by his words or declaration, or act
or omission represent another a thing either with the knowledge of his falsehood or with the
intention that it should be acted upon or has conducted in such manner so as a reasonable man
with ordinary prudence would belief representation to be true and act upon it, then estoppel
arises against party who made representation by his conduct and he is not permitted to say
otherwise than what he has represented by his conduct.
Ans. (c) In the case in hand A has sued B alleged to be his adoptive mother for property of his
deceased adoptive father on the ground that he (a) was adopted by B. However defendant B
has denied the fact that A is her adopted son. So question for determination is whether A is
adopted son of B or not.
For the purpose of proving the adoption A has relied upon following two facts which are
admitted by B :
(i) B took part in adoption ceremony
(ii) B allowed A to perform funeral rites of the deceased adoptive father.
Now question is whether B is estopped by above said two conducts to deny the adoption. It is
necessary to point out here that no doubt a person can be estopped from disputing the fact of
adoption having taken place but for Rule of estoppel to be applied, it is required that all
conditions of Rule of Estoppel must be fulfilled. In Draupadi Behemni v. Sambari Behore AIR
1958 Orissa 242 "Mere person at an adoption or mere acquiescence in an adoption does not
create an estoppel so as to preclude the person present or acquiescing from challenging the
adoption afterwards where there is no representation made as to any matter of fact on the
strength of which the act of adoption can be said to be made.
Ans. (d). Section 116 of Indian Evidence Act provide "No tenant of immoveable property or
person claiming through such tenant shall during the continuance of tenancy be permitted to
deny that the landlord of such tenant had at the beginning of tenancy, a title to such
immoveable property and no person who came upon any immoveable property by licence of
person in possession thereof, shall be permitted to deny that such person had a title to such
possession at time when such licence was given." So where a tenant entered into possession in
consequence of tenancy created by opposite party, he shall not be allowed to question the title
of the opposite party as long as he enjoys the tenancy.
Therefore in view of provisions of Section 116 of Act A is not permitted to deny the title of his
landlord (b) regarding the house in which he is tenant.

Q. 46 A intentionally and falsely induces B to believe that certain land belongs to A and B
buys the land and pays for it. subsequently that land becomes A's property and he seeks
to set aside the sale on the ground that at the time of sale, he had no title to the land. Will
`A' succeed. Give Reasons.

Ans. As Estoppel is a principle whereby a party is precluded from denying the existence of some
fact which he has formerly admitted. In other words Estoppel is a Rule of law by which a person
is held bound by presentation made by him or arises out of his conduct. Section 115 of Indian
Evidence incorporate the `Law of Estoppel and it provides'.
"When one person has by his declaration, act or omission intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief neither he nor his
representative shall be allowed in any suit or proceeding between himself and such person or
his representative to deny the truth of that thing."
In Chaitanya Charan v. Manik Chandra AIR 1972 Calcutta 20 It was observed " Section 115 of
Evidence Act lays down that when one person by making false representation either by his
words or by conduct has intentionally caused another to believe a thing to be true which
actually is not true and to act upon such belief, than neither such person nor his representative
in a subsequent proceeding will be allowed to say that the representation is false."
Rule of Estoppel is based on Rule of equity that it would be inequitable and unjust if a person
who by his representation either oral or by conduct has induced another to believe and to act
upon such representation, than afterwards to repudiate or deny the effect of such
representation at the cost or injure of the person who was induced to believe and to act upon
such representation.
Coming now to case in hand, `A' made a representation to B to the effect that the land belongs
to A. This representation of `A' at that time was false and was made by A to B with the intention
to induce B to purchase that land. B believing the representation of A to be true, purchased
that land, so B acted upon the representation of A and paid purchase consideration to A when
A was not lawful owner of that land. Now subsequently when A has actually becomes owner of
that property, can not deny the earlier sale of land made by him (a) to B. He will be estopped
from saying that at the time of said sale, he was not owner of land and thus sale was not
binding. But facts remains, A had made representation to B that land belongs to A and B
believing that representation to be true has acted upon such representation by playing sale
consideration to A, presuming him to be owner of land. So A has already taken some advantage
at the cost of B, so A will be estopped from denying such advantage. Clause (a) of Section 13 of
Specific Relief Act also incorporate this Rule.

Q. 47 B has taken the house on Rent from `A' and since then he was regularly paying Rent
to A. A then applied for eviction of B from the house on the ground of his personal need. B
contend that since the house is joint property of A and his brothers and his brothers did
not join the proceedings, A's application is liable to be dismissed. It is argued on behalf of
A that B was estopped from challenging the right o `A' to sue. Decide

Ans. Section 116 of Evidence Act inter alia provide that no tenant of immovable property or
person claiming through such tenant shall during the continuance of tenancy, be permitted to
deny that landlord of such tenant had at the time of beginning of tenancy; a title to such
immovable property...."
Basis of the Rule is that when a tenant enters into possession in consequence of tenancy
created by the landlord. He should not be allowed to question the title of landlord as long as he
enjoys the tenancy.
In Subhash Chandra v. Mohd. Sharif and other, AIR 1990 SC 636 Supreme Court observed that
does not permit the tenant during continuance of tenancy to deny the title of landlord at the
beginning of tenancy. Rule is not confined to its application for original landlord. A transferee
from such landlord can also claim the benefit of this.
In the problem in hand, B was inducted as tenant only by A and since then he has been paying
rent to A. Therefore question of title is irrelevant in eviction proceedings and B is estopped
from challenging the right of A to sue.

Q. 48 What do you understand by expression "Competent witness" ? Whether a child

witness is a competent witness ?
Ans. COMPETENT WITNESS : Section 118 of the Indian Evidence Act provide for the test as to
who is a competent witness It reads as under:
"All persons shall be competent to testify unless the Court considers that they are prevented
from understanding the questions put to them or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind. Explanation : A lunatic is not incompetent to testify, unless he is
prevented by his lunary from understanding the questions put to him and giving rational
answers to them."
Thus the only test laid down by the Act of the competency of a witness is his capacity to
understand and rationally answer the questions put to him. From a bare reading of
the Explanation appended to the above Section it is evident that a lunatic, when he is in a lucid
interval, is not incompetent to testify if he can understand and rationally answers the question
put to him.
Then Section 119 of the act provides that "a witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as by writing or by signs,
but such writing must be written and the signs made in open Court. Evidence so given shall be
deemed to be oral evidence." Section 120 of the Act further provides that in all civil
proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be
competent witness In criminal proceedings against any person, the husband or wife of such
person, respectively shall be a competent witness It may be clarified that a witness may be
competent yet his evidence may be inadmissible as for instance, where it relates to hearsay or
to confession made to a police officer. However, the competency of a witness lies in his
capacity to understand and rational answer to the question put to him.
CHILD WITNESS : Indian Evidence Act does not classify witness in respect of age. As provided
under section 118 of Indian Evidence Act every person, who can understand the questions put
to him and can give rational answer thereof is competent witness. So a witness is competent to
testify even if he or she is child witness if child witness understand the question and can give
rational answer to such question. A child of tender age is a competent witness when such child
is intellectually sufficiently developed to understand what he or she had seen and afterwards
informs the court about it. However before the evidence of a child may be recorded the court
must by preliminary examination test his capacity to understand question and give rational
answer
Evidentiary Value of Child Witness In Dattu Rama Rao Sakhare v. State 1997 SCC (Cri)
685 Supreme Court has observed that a child witness if found competent to depose to the facts
and is reliable one, such evidence could be basis of conviction. In other words even in the
absence of oath the evidence of a child witness can be considered u/s118 of Evidence Act
provided that such witness is able to understand the questions and able to give rational
answers thereof. Evidence of a child witness and credibility thereof would depend upon
circumstances of each case. The only precaution which the court should bear in mind while
assessing the evidence of a child witness is that the witness must be reliable one and there is no
likelihood of being tutored.
Similarly in Panchhi and others v. State of U.P. 1998 SCC (Cri) 1561. It was observed that the
evidence of a child witness would not always stand stigmatized. It is not the law that if a
witness is child his evidence shall be rejected even if it is found reliable. The law is that
evidence of a child witness must be evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others tell him and thus child witness is an
easy prey to tutoring.

Q. 49 Sita informed Ram in the year 1988 that she had committed theft of the ornaments
of her neighbour. Thereafter Sita and Ram were married in 1989. In the year 1992
prosecution was started against Sita in respect of theft of ornaments Ram is called to give
evidence in this case. Can Ram disclose the communication made to him by Sita.

Ans. Section 122 of Indian Evidence Act provides "No person who is or has been married shall
be compelled to disclose any communication made to him during marriage by any person to
whom he is or has been married, nor shall he be permitted to disclose any such
communication, unless the person who made it or his representative in interest. Consents,
except in suits between married persons or proceedings in which one married person is
prosecuted for any crime committed against the other."So Section 122 of the Act prevents
disclosure of such statements only as are made during marriage. Therefore no protection exists
with regard to communication made between the parties before marriage. In case in hand Sita
confessed to Ram about theft of ornaments in year 1988 when they were not married, they got
married in year 1989, therefore bar of Section 122 will not apply and Ram can be compelled to
disclose the communication made to him by Sita before their marriage.

Q. 50 What do you understand by Privileged Communication?

Ans. Privileged Communication : Privileged Communication in simple words means the

communication which law does not allow to be proved or bring into notice of all. Section 122 of
Evidence Act says `No person who is or has been married shall be compelled to disclose any
communication made to him during marriage by any person to who he is or has been married
nor shall he be permitted to disclose any such communication unless the person who made it
or his representative in interest consents except in suits between married persons or
proceeding in which one married person is prosecuted for any crime. Committed against the
other." So according to Section 122 any communication during the wedlock by husband to his
wife or by wife to her husband is prevented from being proved in court of law.
Section 123 prevents giving of evidence from unpublished official record relating to affairs of
State except with permission from head of department concerned Section 124 protects from
communication made in official confidence where the public interest would suffer by such
disclosure. Section 125 of Act prohibit disclosure of source of information regarding
commission of any offence by Police, Magistrate or Revenue Officer.
Then Section 126 of Act provide that No barrister or advocate shall be permitted to disclose
communication made by his client or to state contents or conditions of document of which such
advocate has become acquainted in course of or for the purpose of professional employment
or to disclose advice given by him, unless such clients consents to such disclosure. Section 128
then says if any client gives evidence in any suit on his own, it does not deemed to have
consented to disclose as is mentioned in Section 126.
So Section 126 to 129 prohibit disclosure of professional communication between Advocate or
legal adviser and his client. This Rule is founded with the intention to effectuate confidence
between advocate and his client. In the absence of this Rule there is always insecurity in the
mind of any client to give true disclosure to advocate.

Q. 51 Write a short note :

Who is Accomplice ? What is the nature scope and value of his evidence in a criminal trial.

Ans. Section 133 of Indian Evidence Act says

"An accomplice shall be competent witness against an accused and conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice." Word
`Accomplice' has not been defined in Indian Evidence Act. An accomplice means a guilty
associate or partner in crime or who in some way or other is connected with the offence in
question and who makes admission of facts showing that he had a conscious hand in the
offence.
Section 133 of Evidence Act declares that an Accomplice is a competent witness and conviction
can be based on uncorroborated testimony of an accomplice.
Evidentiary Value of Evidence of an Accomplice Section 133 lays down that an accomplice is a
competent witness and conviction based on sole testimony of an accomplice is not illegal.
However illustration (b) to Section 114 of Evidence Act lays down that an accomplice is
unworthy of credit unless he is corroborated in material particulaRs.
In Suresh Chandra Bahri v. State of Bihar AIR 1995 SC 2420 Supreme Court observed "Test for
appreciation of evidence of approver (Accomplice), corroboration in material particulars and
qua each accused is essential Section 133 lays down that conviction can be based on
uncorroborated testimony of an accomplice is not illegal but Rule of guidance indicated in
Illustration (b) of Section 114 of Evidence Act has resulted in settled practice to require
corroboration of evidence of an accomplice and which has now virtually assumpted the force of
law."
Recently in Naryan Chetan Ram Choudhary v. State of Maharashtra 2000 (4) Recent Criminal
Reports 75 (SC) Supreme Court has laid down following propositions of law in this regard:
(a) Combined effect of Section 133 and illustration (b) to Section 114 of Evidence Act was that
an accomplice is competent to give evidence but it would be unsafe to convict the accused on
his testimony alone Though such conviction on testimony of an accomplice can not be said to
be illegal.
(b) There should be corroboration in material particulars of approver's statement.
(c) Conviction on uncorroborated testimony of an accomplice is not illegal but corroboration
may be dispensed with only if peculiar circumstances of case make it safe to dispense with it.

Q. 52 Write short notes on :

(i) Stock Witness (ii) Decoy Witness (iii) Issue Estoppel.

Ans. (i) Stock Witness : A `stock witness' is a person who is at the back and call of the police. He
is a regular peddler of perjury `on police service'. He obliges police with his tailored testimony
because sometimes his livelihood is dependent upon the mercy and indulgence of the police, or
he wants to gain favour or some reward in lieu thereof.
In Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911, the Supreme Court found that the
police had introduced a stockwitness to prove the recovery of the weapon of offence in a
murder case. The question of placing any reliance on the testimony of such a witness does not
arise. Once it is proved on the record that a certain witness examined by the prosecution is a
stockwitness of the police, the Court would be justified in discarding his testimony.
In Hazara Singh and others v. State of Punjab (1971) 3 SCR 647, it was observed that mere fact
that one of the prosecution witness is a stock witness of police in itself is not enough to falsify
the entire prosecution case. In such a case it is the duty of the court to brush aside the
testimony of the stock witness and to see if the remaining prosecution evidence is enough to
sustain conviction of accused.
(ii) Decoy Witness : With the increase of offences relating to excise, gambling, soliciting, illicit
traffic in narcotic drugs and psychotropic substances and the like, due to the impossibility of
procuring evidence in any other way, and with the paramount necessity of putting down
offences of this kind, the Law Enforcement Agencies are compelled to employ witnesses,
commonly known as decoys, spies, detectives, agents provocateur They associate with
criminals solely for the purpose of discovering and making known their crime
Such a witness cannot be considered as an accomplice. Every participation in a crime does not
make a person an accomplice and it depends upon the nature of the offence and the extent of
the complicity of the witness in it. There is one class of witness who go by the various names of
informants, spies, detectives, decoys, agents provocateurs and trap witnesses who by general
consensus of decisions now do not fall under the category of accomplice Section Bhuboni Sahu
v. The King, AIR 1949 P.C. 257, Mahadev v. King, AIR 1936 P.C. 242, and In re B.K. Rajgopal,
AIR 1944 Madras 117 (F.B.). (iii) Issue Estoppel : The Rule of issue estoppel which prevents
relitigation of the issue which has been determined in a criminal trial between the state and the
accused is applicable to criminal trials in India. If in respect of an offence arising out of a
transaction, a trial has taken and the accused has been acquitted and an another trial in respect
of that transaction or of related transaction which require the court to arrive at a conclusion
inconsistent with the conclusion reached at the earlier trial is prohibited by the ocular of "Issue
Estoppel".
As in Raunaq v. State of U.P. 1987 Criminal Law Journal 445, the first criminal trial for offence
under Section 399/402 I.P.C. and Section 25 of Arms Act ended in acquittal of accused by High
Court on appeal which disbelieved the witnesses of recovery of gun. Subsequently the person
involved in the same transaction and from whom the gun was recovered was charged
under Section 411 of I.P.C. It was held that on principles of `issue estoppel' the findings in the
earlier case had to be followed and accused be acquitted.
In Piara Singh v. State of Punjab, AIR 1969 SC 961 Supreme Court observed "The principle of
`issue estoppel' cannot be invoked in a case where the parties are different and decision upon
any issue as between state and any person in the same litigation cannot operate as binding
upon the state with regard to another person. For `Issue Estoppel' to arise these issues must
have been distinctly raised and inevitably decided the same issue in earlier proceedings
between the same parties.
So the Rule of `issue estoppel' can be taken advantage of in a situation when the finding in
favour of accused is arrived at on appraisal of facts and circumstances on an identical issue in a
former case. Whatever be the outcome in the prior case if the identical issue in both the cases,
the finding given in prior case bars the adjudication of same issue in a latter case.

Q. 53 Discuss the object of Examination-in-Chief, Cross- examination and Re-examination

of a witness.

Ans. Section 138 of Indian Evidence Act provides:

Examination in Chief : Examination of a witness by the party who calls him, shall be called
examination in chief. Cross Examination : The examination of a witness by the adverse party
shall be called his cross-examination. Re examination : The examination of a witness subsequent
to cross examination, by the party who called him, shall be called re-examination. Examination
in Chief : After the witness has been sworn the oath as required under Section 5 of Indian oath
Act, the party who calls, the witness will examine him first. It is known as examination in chief.
The object of examination in chief is to obtain testimony in support of version favourable to
party calling him. In examination in chief the witness should be asked about relevant facts
showing any special means of knowledge, opportunities of observations etc. A witness can give
evidence of fact only and no evidence of law. During the examination in chief, as provided
in Section 142 of the Act, leading questions must not, if objected by adverse party, be asked
except with the permission of the Court.
Cross Examination : Cross examination of a witness is the right of an averse party. Testimony of
a witness is not complete unless it is subjected to test of cross examination by adverse party.
After the examination in chief of a witness unless the court allows the party who has called the
witness to cross examine such witness under Section 154 of the Act, the adverse party will
cross examine the witness Scope of cross examination is wider than examination-in-chief
because examination-in-chief is confined only to relevant facts but cross examination need not
to be confined to the facts to which the witness testified on his examination-in-chief. Since the
purpose of cross examination to elicit the truth or to test the veracity of the witness, so during
cross examination, adverse party can ask any question which will (i) impeach the credibility of
the witness (ii) touch the matters which were left in examination-in-chief (iii) give favourable
answers to party cross examining the witness (iv) give contradiction of what has been stated by
other witness
Re-examination : The party who called the witness if he like and feel necessary, may request
the court to grant permission to re-examination of witness But the re-examination shall be
directed to the Explanation of the matter referred to in cross examination. The proper purpose
of re-examination is by asking questions as may be proper to draw forth an Explanation or
meaning of expression used by witness in cross examination, if they are doubtful.

Q. 54 Explain "Leading question"

Ans. Leading Question : Section 141 of Evidence Act provides that "any question suggesting

the answer which the person putting it or wishes or expects to receive is called `leading
question'.
So a question is said to be leading one when it indicates to the witness the real and supposed
fact which the examiner expects or desires to be confirmed by the answer. For example, is it
right that you have seen the occurrence ? You must have seen Ram being murdered by Shyam ?
are example of leading question. Rule of evidence as to leading question is provided in Section
142 which says that leading question must not be asked in examination- in-chief or in re-
examination except with the permission of the court, however as provided in Section 143 of
Evidence Act, leading question can be asked in cross examination.
In Verkey Josph v. State 1993 Criminal Law Journal 2010 (SC) Supreme Court observed that the
question which suggests to a witness, the answer which the prosecution expects, must not be
allowed unless the witness is declared hostile, with the permission of court. A prosecutor will
not be allowed to frame his questions in such a manner that the witness by answering merely
`yes' or `no' will give the evidence which the prosecutor wishes to elicit. The witness must
account for, himself what he had seen."

Q. 55 When a witness is cross examined, what other questions can be asked in addition to
question relating to incident

Ans. After the examination-in-chief of a witness such is witness is subjected to cross

examination by adverse party. It is the right of adverse party in any proceeding to cross
examine the witness produce to depose against such party. When a party has called a witness
to testify in his favour, then adverse party has been given legal instrument to check the
truthfulness and veracity of such witness by cross examining him. Scope of cross examination is
wider than examination-in-chief because examination-in-chief also relates only to relevant facts
but cross examination need not to be confined to facts only testified by witness in examination-
in-chief.
Following questions may be asked to a witness in his cross examination by adverse party:
(i) Any relevant question which need not to be confined to fact deposed to in examination-in-
chief ( Section 138).
(ii) Any leading question ( Section 142 and 143).
(iii) Any question relating to contents of a document by asking for production of such
document, if has not been produced earlier.
(iv) Any question relating to relevant previously written statement of such witness With a view
to contradict the witness by such previous statement by drawing his attention to such
statement, before such writing can be proved ( Section 145).
(v) Any question to test his veracity.
(vi) Any question to discover who he is and what is his position in life ( Section 146).
(vii) Any question to shake his credit by injuring his characters although the answer to such
question might tend directly or indirectly to criminate him or might expose him to penalty or
forfeiture( Section 146).
In Raj Bahadur Lal v. State of U.P. AIR 1972 All. 308 Allahabad High Court observed that as
per Section 136 of Evidence Act the court has discretionary power to exclude irrelevant
question. The court may also disallow the question which are against the public policy or any
law. Unless a judge is alert and vigilant, cross examination, may sometimes turn into an engine
of torture of witness A judge must always be in control of the proceedings in court and court
should disallow the hypothetical question to ordinary witness

Q. 56 How would court decide that a particular question is proper or improper ?

Ans. Clause (3) of Section 146 of Evidence Act permits to ask questions in cross examination of
a witness to shake his credit by injuring his character, although the answer to such question
might tend directly or indirectly to criminate him or expose him to penalty or forfeiture.
However it is equally important to keep in mind that assault on character of a witness must be
directed only for the purpose of shaking his credit, Sub Section does not permit all sort of
question, court will always be vigilant to see whether a question of cross examiner is proper or
not and for this, court will be guided by provisions Section 148 of Indian Evidence Act which
says:
"If any such question relates to matter not relevant to suit or proceedings except in so far as it
affects the credit of witness by injuring his character, the court shall decide whether or not
the witness shall be compelled to answer it and may if it thinks fit warn the witness that he is
not obliged to answer it. In exercising its discretion, the court shall have regard to following
considerations:
(1) Such questions are proper if they are of such nature that truth of imputation conveyed by
them would seriously affect the opinion of the court as to credibility of the witness on the
matter to which he testifie Section
(2) Such questions are improper if the imputation which they convey relates to matters so
remote in time or of such character that the truth of the imputation would not affect or would
affect in a slight degree the opinion of the court as to the credibility of witness on the matters
to which he testifies.
(3) Such questions are improper if there is a great disproportion between importance of
imputation made against the witness's character and the importance of his evidence.
(4) The Court may if it sees fit, draw from the witness's refusal to answer the inference that the
answer if given would be unfavourable.
So under section 148 Court is confined with delicate and responsible work of allowing or
disallowing the question which is otherwise not relevant in proceeding but is asked with the
view of injuring the character of witness Section 149 of the Act further provide that court will
not allow any question to be asked to injure the character of the witness unless the person
asking it has reasonable ground for thinking that the imputation which it conveys is well
founded.
Section 151 of Evidence Act also provide that court may forbid any question or inquiries which
it regards as indecent or scandalous although such questions or inquiries may have some
bearing on the question before the court unless they relate to facts in issue or to matters
necessary to be known in Order to determine whether or not the facts in issue existed.
Similar Section 152 says court shall not allow any question which appears to it to be intended to
insult or annoy or is offensive in form.

Q. 57 A woman prosecutes a man for picking her pocket. Can this question that she had
given birth to an illegitimate child 10 years before he asked.

Ans. It is allowed under clause (3) to Section 146 of Evidence Act to ask any question in cross
examination of a witness to shake his credit by injuring his character although the answer to
such question might tend directly or indirectly to criminate him or expose him to penalty or
forfeiture. However any question in cross examination intended to injure the character of
witness must be proper and court may disallow any improper question. Court shall be guided
by provisions of Section 148 of the Act which says that any question which relates to matter not
relevant to suit or proceeding except in so far as it affects the credit of witness by injuring his
character, court shall decide whether or not the witness shall be compelled to answer it.... In
exercising its discretion the court shall have regard to following considerations:
(1) ... ...
(2) Such questions are improper if the imputation which they convey relates to matter so
remote in time or of such a character that the truth of the imputation would not affect or
would affect in a slight degree the opinion of the court as to the credibility of witness on the
matter to which he testifies.
(3) Such questions are improper if there is a great disproportion between importance of the
imputation made against the witness's character and importance of his evidence.
(4) ... ...
When a woman is testifying as to fact of picking of her pocket by accused, question as to giving
birth of an illegitimate child 10 years before, is remote in time, moreover such question is
disproportionate to the matter in issue and thus imputation would not affect the opinion of
court as to her credibility on the matter to which she is testifying. Such question therefore
cannot be allowed to be put to witness.
 Q. 58 `A' appeared as a witness for the prosecution. During cross examination it was
suggested that he had earlier admitted before accused that he had not seen the
occurrence and that he was pressurised by police to appear as witness On his denial he
was confronted with tape recorded conversation. `A' denied that it was his voice.
Thereafter the accused moved the application before the court that witness should be
called upon to get his voice tape- recorded so that comparison could be done between his
sample voice and his alleged tape recorded voice.

Can the witness be issued any such directions if so under what provisions of Indian
Evidence Act.

Ans. Section 145 of Evidence Act enable that witness may be contradicted with reference to his
previous written statement.Section 145 provide one of the method of impeaching the credit of
witness.
Section 155 provide for impeaching credit of witness Credit of witness may be impeached in the
following ways by adverse party or with the consent of the court by party who calls him:
(i) by evidence of person who testify that they from their knowledge of the witness, believes
him to be unworthy of credit.
(ii) by proof that the witness has been bribed or has accepted offer of bribe or has received any
other corrupt inducement to give his evidence.
(iii) By proof of former statement inconsistent with any part of his evidence which is liable to be
contradicted.
(iv) When a man is prosecuted for rape or attempted to ravish, it may be shown that the
prosecutrix was of generally immoral character.
So Section 155 deals generally with impeaching credit of witness and enumerate different
methods of contradicting the method, one of the method of impeaching the credit of witness is
to give proof of any former statement of witness which is inconsistent with evidence of witness
That being legal position, coming to case in hand, simple question for consideration is that
whether a witness can be asked to give specimen of his voice, so as to get it compared from
earlier recorded tape recorded statement which is different what is stated by that witness in
evidence.
Punjab Court considered this question in Rup Chand v. Mahabir Parsad AIR 1956 Punj 173 and
held that no Rule of evidence prevents other party who is endeavouring to shake credit of
witness by proof of former in consistent statement from proving that while he was engaged in
conversation with witness tape recorder was in operation.
Similarly Supreme Court in N. Sri Rama Reddy and others v. V.V. Giri AIR 1971 SC 1162 has held
`Tape itself is primary and direct evidence admissible as to what has been said and A previous
statement made by witness and recorded on tape can be used not only to corroborate the
evidence given by witness in court but also to contradict the evidence given before the court as
well as to test the veracity of witness and to impeach his impartiality.
Thus it is clear that previous statement of witness duly recorded on tape can be used to
contradict the witness from his previous statement so as to impeach the credibility of witness
In present case prosecution witness `A' had a conversation with accused admitting certain facts
whose conversation was tape recorded. Now it stands cleared that witness can be contradicted
from his previous tape recorded statement under section 155 (3) of Evidence Act. In the
present case when such tape recorded statement is put to witness, he denied of his own voice
and defence counsel, asked for specimen. Voice of witness, for comparison Now question for
consideration is whether a witness can be asked to give specimen of his voice. There is no
provision of law at all for calling upon the prosecution witness to get sample voice tape
recorded. There is nothing in Indian Evidence Act which even remotely suggests that such a
power can be exercised by court. Although Section 73 of Evidence Act provides for comparison
of disputed handwriting or finger impression.
This question was raised in Vinod Kumar and others v. State 1981 Cri.L.J. 927 and Delhi High
Court held that it can not give any direction to Metropolitan Magistrate concerned what
Magistrate has no authority according to law to do.'
In view of the law discussed and case law on this point, it can be held that court can not call
upon the witness to give sample of his voice for comparison.

Q. 59 Discuss the expression "Hostile Witness"

Ans. Hostile Witness : Term `Hostile Witness' has not been defined or used in Indian Evidence
Act. In simple words `Hostile Witness' means a witness who does not support the case of party
by whom he is called. Normally a witness speaks or depose in favour of party who calls him for
examination. When a witness is examined by party who calls him is called `Examination-in-
Chief' and then examination of witness by adverse party is called cross examination of witness
by adverse party is called cross examination (Section 137). A party who calls a witness for
examination can not ask leading question in examination-in-chief however adverse party can
ask leading question in cross examination (Sections 142 and 143). The Rule which excludes
leading question being put is founded on assumption that a witness must be taken to have a
bias in favour of party by whom he is called when the circumstances show that this is not the
case and he is hostile to party producing him the judge may in his discretion allow the Rule to
be relaxed and grant permission to party producing the witness to put such questions as may
be put in cross examination. So when a witness does not support the case of party by whom
witness is called then such witness is termed `Hostile Witness'.Section 154 of Indian Evidence
Act provide :
"The court may in its discretion permit the person who calls a witness to put any question to
him which might be put in cross examination of adverse party."
So when witness becomes hostile to party producing it, then court can u/s 154 of Act allow that
party cross examine his own witness and ask leading question, before the cross examination by
adverse party.
In Yogender Kumar and other v. State of U.P. 1999 Cri.L.J. 4685 It was held that mere fact that
a witness were declared Hostile by prosecution does not efface their evidence from record all
together. Evidence of prosecution witness who had partly resided from their previous
statement can be used to the extent they support the prosecution for corroborating the other
witness

Q. 60 Examine the power of Court under section 165 of Indian Evidence Act, 1872.

Ans. Section 165 Judge's power to put questions or order production. The Judge may, in order
to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form,
at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may
order the production of any document or thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and
duly provided :
Provided also that this section shall not authorize any Judge to compel any witness to answer
any question or to produce any document which such witness would be entitled to refuse to
answer or produce under Section 121 to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall the Judge ask any question which it
would be improper for any other person to ask under Section 148 or 149; nor shall be dispense
with primary evidence of any document, except in the cases here-in-before excepted.
Under Section 165, the court is invested with a wide discretion to put any question.
Power of the Judge - A judge is empowered.
(i) to ask any question in any form, at any time, to any witness, or to the parties about any fact
relevant or irrelevant, and
(ii) to order the production of any document or thing.
(iii) Neither the parties nor their agents can make any objection when the Court has exercised
his powers as stated above.
(iv) No party shall be entitled for right of cross- examination of a witness upon the answers
given by the witness on the question put by the judge, without the permission of the Court.
Thus, a judge has unlimited powers by the way putting the question to make the matter clear.
In other words, a court may examine or recall or re-examine any witness in the interest of
justice.

Q. 61 The improper admission or rejection of Evidence shall not be a ground of itself for a
new trial or reversal of any decision in any case if it shall appear to the court before which
such objection is raised that independently to evidence objected to and admitted there
were sufficient evidence to justify the decision or that if the rejected evidence had been
received, it ought not to have carried the decision" - Explain.
Ans. Section 167 of Indian Evidence Act says -
"The improper admission or rejection of evidence shall not be ground of itself for a new trial or
reversal of any decision in any case, if it shall appear to the court before which such objection is
raised that, independently of evidence objected to and admitted, there was sufficient evidence
to justify the decision, or that if the rejected evidence had been, received, it ought not to have
varied the decision."
Section 167 of Act applies both to civil as well as criminal cases section provide that the
improper admission or rejection of any evidence is not "ipso facto" a ground for new trial,
where there is ample evidence to justify the decision irrespective of admission or rejection of
the evidence.