Deepak Kumar.

HNLU Rpr 2 November 2022

MODULE – 1/8
CENTRAL CONCEPTIONS IN LAW OF EVIDENCE

MODULE 1:

•Preliminary (Sec 1-4)

•Definition
•Presumption
•Relevancy and admissibility (r.w. relevant
By provisions, e.g. sec 167
Assistant Professor of Law
HNLU Rpr 1 2

• The Law of Evidence may be defined as a system of

rules for ascertaining controverted questions of fact in
judicial inquiries.
• It bears the same relation to a judicial investigation as
INTRODUCTION logic to reasoning.
• The object of every judicial proceeding is the
enforcement of some right or liability which invariably
depends upon certain facts.
• Law of Evidence plays a pivotal and unique role in
effectuating judicial system, and synthesizing
substantive and procedural laws.

3 4
Deepak Kumar. HNLU Rpr 2 November 2022

• Indisputedly, the Indian Evidence Act, 1872 is one rare statute

THE INDIAN EVIDENCE ACT, 1872
which has not been subjected to or slaught of innumerable
amendments. This amply demonstrates its solidity of contents, its • The law of evidence as set out in the Indian
relevance is boundless. Evidence Act, 1872 is a procedural law, not a
• No wonder, the codification of the Indian Evidence Act was so substantive law.
crisp that it has been described as a “masterpiece of • Laws may be divided into substantive laws and
compression”. (William Twining in “Rethinking Evidence”)
procedural laws.
• Sir James Fitzjames Stephen who succeded Sir Henry Mairne as
– The laws by which rights, duties and liabilities are defined
Legal Member of Council in India was the prime mover in
codification of a series of laws in India. In his words “My Evidence are called substantive laws,
Bill would be a very short one, it would consist of one rule, to this – whereas the laws of procedure prescribe the mode by
efect: All rules of evidence are hereby by abolished”. which the application of the substantive law is regulated.

5 6

EXTENT
• In Izhar Ahmad Khan vs. Union of India, 1962 Supp (3) SCR 235,
• It extends to the whole of India except
it was held that the substantive law defines and provides for the State of Jammu and Kashmir
rights, duties and liabilities, it is the function of the procedural
Earlier, the laws passed by Parliament were
law to deal with the application of substantive law to applicable in the state only after the state
particular cases and it goes without saying that the law of government gave its concurrence due to its
evidence is a part of the law of procedure. The whole scheme special status and separate Constitution.
of the Evidence Act is thus intended to serve the objective of However, things have changed after J&K’s
regulating the proof of facts by subjecting the production of special status was lifted and the state was
evidence to the rules prescribed in that behalf. divided into two UTs.
The J&K Reorganisation Act, 2019, had
extended IEA 1872 to the UT of J &K
7 8
Deepak Kumar. HNLU Rpr 2 November 2022

OBJECT APPLICABILITY
to consolidate

to define Evidence Act applies to – Evidence Act does not apply to

All judicial proceedings in or •Court martial,

before any Court. •Affidavits,
to amend, the law of •Arbitration Proceedings,
evidence

9 10

JUDICIAL PROCEEDINGS: A JUDICIAL PROCEEDING IS EVIDENCE ACT IS

ONE IN THE COURSE OF WHICH EVIDENCE IS OR MAY
BE LEGALLY TAKEN ON OATH [SECTION 2(1) OF CPC] lex fori or lex loci
Examples of • The law of evidence is the lex fori which governs the courts.
held not to be judicial Whether certain evidence proves a certain fact or not is to be
Judicial proceedings determined by the law of country where the question arises,
proceedings where the remedy is sought to be enforced, and where the
court sits to enforce it.

An execution proceeding
A contempt proceeding • Where evidence is taken in one country in aid of a suit or
Inquiries under Sections 97, 145, 340 of the proceeding in another country, the law applicable to the
CrPC. A departmental inquiry
Proceeding under Chapter IX of the CrPC. Order passed under Section recording of the evidence, would be the law prevailing in the
An inquiry by a magistrate into the truth of the 452 CrPC and 454 of CPC. country where the proceeding is going on.
allegation contained in a petition. 11 12
Deepak Kumar. HNLU Rpr 2 November 2022

The Act is not exhaustive The Act is a Special Law

• The Act does not contain the whole of the rules of the
Evidence. Besides the Act, the rules of evidence are also
contained in some of the other Acts and Statutes. i.e. • In Ram Naresh vs. Emperor, AIR (1939) All 242 it was held that the
Act deals with the particular subject of evidence including
The Civil Procedure Code, 1908 Order XXVI
admissibility of evidence and is a special law. Hence, no rule about
The Criminal Procedure Code, 1973 Sections 291 & 292 the relevancy of evidence as contained in the Evidence Act, is
The Indian Limitation Act, 1963 Sections 19 & 20 affected by any provision in the Criminal Procedure Code or any
The Transfer of Property Act, 1882 Sections 59 & 123 other enactment unless:—
The Registration Act, 1908 Sections 49 & 50 – (1)It is so specifically stated in the Code; or
The Stamp Act, 1899 Sections 35 – (2)It has been repealed or annulled by another statute.
The Indian succession Act, 1925 Section 63

13 14

“May presume” “Shall Presume”

• The words “may presume” leave it to the court to • In this, no option is left to the court, but if is bound to take the
make or not make presumption, according to the fact as proved until evidence is given to disprove it, and the
party interested in disproving it must produce such evidence if
circumstances of the case. The word used is he can. The phrase ‘shall presume’ is to found in Sections 79,
‘may’ and not ‘shall’. 80, 81, 83, 85, 89 and 105, 113B etc. Whenever there is a
• A court, where it “may presume” a fact, has a provision to the effect “that the court shall presume a fact”
the court cannot exercise its discretion. It is compelled to take
discretion to presume it as proved, or to call for the fact as proved, i.e., it shall have to presume the fact. But in
confirmatory evidence as the circumstances this case the court will be at liberty to allow the opposite party
require. In such a case presumption is not a hard to adduce evidence to disprove the fact so presumed and if
and fast presumption, incapable of rebuttal. the opposite party is successful in disproving it, the court shall
not presume the fact.

15 16
Deepak Kumar. HNLU Rpr 2 November 2022

“Conclusive proof”
• When the law says that a particular kind of evidence
would be conclusive, that fact can be proved either by
that evidence or by some other evidence which the
court permits or requires. When such other evidence is
adduced, it would be open to the court to consider
whether upon that evidence, the fact exists or not. A
birth during a valid marriage is with certain exceptions is
a conclusive proof of legitimacy. The phrase ‘Conclusive
proof’ is to found in Sections 41, 112 and 113 of the Act.

17 18

Relevancy is a sub specie of admissibility.

Whereas admissibility is the genre.

19 20
Deepak Kumar. HNLU Rpr 2 November 2022

RELEVANCY ADMISSIBILITY

The rules are given under section 5 to 55 of the The rules are covered in the latter part of the
Indian Evidence Act, 1872. Evidence Act, that is after section 56.

Relevancy admires what seems to be logical and Whereas admissibility strictly follows the rules of • In State of Maharashtra vs. Praful B. Desai
probable. law. Anything can’t be admitted merely because
it appears to be logical. (Dr), (2003) 4 SCC 601, it was held that
The facts which are relevant may or may not be Whereas the facts which are admissible in the
evidence can be both oral and
admissible in court. It is not necessary that if a fact is court of law are undoubtedly relevant. For a fact documentary and electronic records can
relevant, it will be admitted by the court. to be admitted, it needs to be logically and
legally relevant. be produced as evidence. This means
The rules mentioned in section 5 to 55 declare what is The admissibility declares that which relevant
that evidence, even in criminal matters,
relevant and what not. For example, Section 6 of the
Evidence Act says that facts which are not in issue but
evidence (documents, statements, 21
either oral,
written, or electronic) are admissible in the court of
can also be by way of electronic records.
are so well connected with the facts in issue and form
part of the same transaction are considered to be
law. For example, Section 56 of the Evidence Act says
that the facts of which the court has taken judicial This would include video-conferencing.
relevant facts. knowledge or notice need not be proved.
22

Whether anything recorded with the use of

Insertion of New terms in any mechanical devices can be regarded as
Interpretation Clause a document
• The Information Technology Act, 2000 has inserted the • for the first time, in Rup Chand vs.
following terms in Section 3 of the Indian Evidence Act: Mahabir Parshad, AIR 1956 Punj 173, it
– 1.‘Certifying Authority’,
– 2.‘Electronic signature’, was held that a tape record of a
– 3.‘Electronic Signature Certificate’, former statement of a witness was
– 4.‘Electronic form’,
– 5.‘Electronic record’,
admitted in evidence to shake the
– 6.‘Information’, credit of the witness under Section
–
–
7.‘Secure electronic record’,
8.‘Secure Electronic signature’,
155(3) of the Indian Evidence Act.
– 9.‘Subscriber’.
23 24
Deepak Kumar. HNLU Rpr 2 November 2022

• In Pratap Singh vs. State of Punjab, AIR 1964 SC 72, it was • In R. vs. Maqsud Ali, (1965) 2 AER 464, the Court observed that
observed that the tape-recorded conversation is admissible, a tape record of a conversation was admitted in evidence,
provided, first, the conversation is relevant to the matters in though the only witness who overheard it was not conversant
issue, secondly, there should be identification of the voice, with the language and could not make out what was said. If a
and thirdly, the accuracy of the tape-recorded conversion is statement is relevant, an accurate tape record of the
proved by eliminating the possibility of erasing the tape statement is also relevant and admissible. The time and place
record. A contemporaneous tape record of a relevant and accuracy of the recording must be proved by a
conversation is a relevant fact and is relevant under Section 8 competent witness and the voices must be properly identified.
of the Act. It is also res gestae (part of the same transaction) One of the features of magnetic tape recording is the ability
and, therefore, relevant under Section 6 of the Act. In this to erase and re-use the recording medium. Because of this
case the tape record of the conversation was admitted in facility of erasure and re-use, the evidence must be received
evidence to corroborate the evidence of witnesses who had with caution. The court must be satisfied beyond reasonable
stated that such a conversation has taken place. doubt that the record has not been tampered with

25 26

• and it was argued that the same is hit by Section 162 CrPC as well as article
20(3) of the Constitution of India. The Court emphatically laid down in
unequivocal terms that the process of tape recording offers an accurate
method of storing and later reproducing sounds. The imprint on the magnetic
• The Supreme Court in Yusufalli Esmail Nagree vs. State of tape is direct effect of the relevant sounds. Like a photograph of a relevant
Maharashtra, AIR 1968 SC 147, considered various incident, a contemporaneous tape record of a relevant conversation is a
aspects of the issue relating to admissibility of tape relevant fact and is admissible under Section 7 of the Indian Evidence Act.
recorded conversation. This was a case relating to an The Court after examining the entire issue in the light of various
offence under Section 165-A of Indian Penal Code and pronouncements laid down the following principles:
at the instance of the Investigating Agency, the – (a)The contemporaneous dialogue, which was tape recorded, formed part of res-
gestae and is relevant and admissible under Section 8 of the Indian Evidence Act.
conversation between accused, who wanted to bribe, – (b)The contemporaneous tape record of a relevant conversation is a relevant fact
and complainant was tape recorded. The prosecution and is admissible under Section 7 of the Indian Evidence Act.
wanted to use this tape recorded conversation as – (c)Such a statement was not in fact a statement made to police during investigation
evidence against accused and, therefore, cannot be held to be inadmissible under Section 162 of the Criminal
Procedure Code.
– (d)Such a recorded conversation though procured without the knowledge of the
accused but the same is not elicited by duress, coercion or compulsion nor
extracted in an oppressive manner or by force or against the wishes of the accused.
27 Therefore the protection of the Article 20(3) was not available. 28
– (e)One of the features of magnetic tape recording is the ability to erase and re-use
Deepak Kumar. HNLU Rpr 2 November 2022

• In R.M. Malkani vs. State of Maharashtra, AIR 1973 SC • In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri, (2011) 2 SCC 532 it was
157, the Court laid down the essential conditions which, held:
if fulfilled or satisfied, would make a tape-recorded • “The word ‘evidence’ is used in common parlance in three different
senses: (a) as equivalent to relevant, (b) as equivalent to proof, and
statement admissible otherwise not; and observed that: (c) as equivalent to the material, on the basis of which courts come
• “Tape-recorded conversation is admissible provided first to a conclusion about the existence or non-existence of disputed
the conversation is relevant to the matters in issue; facts. Though, in the definition of the word ‘evidence’ given in
Section 3 of the Evidence Act one finds only oral and documentary
secondly, there is identification of the voice; and, thirdly, evidence, this word is also used in phrases such as best evidence,
the accuracy of the tape-recorded conversation is circumstantial evidence, corroborative evidence, derivative
proved by eliminating the possibility of erasing the tape evidence, direct evidence, documentary evidence, hearsay
record.” evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc.”.

29 30

• In Janki Narayan Bhoir vs. Narayan Namdeo

Kadam, (2003) 2 SCC 91, the Supreme Court laid
down the following main principles of the law of MODULE 2/8
evidence are:
THE RELEVANCY OF FACTS
– 1.Evidence must be confined to the matters in issue;
– 2.Hearsay evidence must not be admitted;
– 3.The best evidence must be given in all cases.

31 32
Deepak Kumar. HNLU Rpr 2 November 2022

Admissibility of illegally
procured evidence
• Pooran Mal vs. Director of Inspection (Investigation), (1974) 1 SCC 345,

MODULE 2: The relevancy of facts

– it was held that if the Evidence Act, 1872 which is a law consolidating, defining and
amending the law of evidence, no provision of which is challenged as violating the
Constitution — permits relevancy as the only test of admissibility of evidence (Section 5 of
the Act) and, secondly, that Act or any other similar law in force does not exclude relevant
evidence on the ground, that it was obtained under an illegal search or seizure, it will be
wrong to invoke the supposed spirit of the Constitution of India for excluding such
evidence. Nor is it open to us to strain the language of the Constitution, because some
• Doctrine of res gestae American Judges of the American Supreme Court have spelt out certain constitutional
protections from the provisions of the American Constitution. So, neither by invoking the
• Conspiracy spirit of the Constitution nor by a strained construction of any of the fundamental rights can
we spell out the exclusion of evidence obtained on an illegal search.
• Plea of alibi So far as India is concerned its law of evidence is modelled on the rules of evidence which
prevailed in English Law, and Courts in India and in England haveconsistently refused to
• Other relevant fact (Section7, 8,9,10, 11,12,13, 14, 15, 16) exclude relevant evidence merely on the ground that it is obtained by illegal search or
seizure.

33 34

Res Gestae (Section 6) Essentials

• Section 6 deals with the relevancy of facts forming part of the same transaction. The section
provides that facts are relevant, even though they are not in issue, if they form part of the same
transaction. This is true for all such facts, whether they occur at the same time and place, or at
• From the analysis of Section 6 it is clear that facts,
different times and places. which though not in issue, are relevant, if—
• Illustrations appended to Section 6
– (a)‘A’ is accused of the murder of ‘B’ by beating him. Whatever was said or done be ‘A’ or ‘B’ or the
by-standers at the beating or so shortly before or after it as to form part of the transaction, is a
relevant fact.
– (b)‘A’ is accused of waging war against the (Government of India) by taking part in an armed
insurrection in which property is destroyed, troops are attacked and goals are broken open. The
occurrence of these facts is relevant, as forming part of the general transaction, though ‘A’ not have
been present at all of them.
– (c)‘A’ sues ‘B’ for a libel contained in a letter forming part of a correspondence. Letters between the Such facts would be relevant
parties relating to the subject out of which the libel arose, and forming part of the correspondence in They are so connected with a
which it is contained, are relevant facts, though they do not contain the libel itself. whether they occurred at the
(d)The question is, whether certain goods ordered from ‘B’ were delivered to ‘A’. The goods were fact in issue as to form the
–
same time and place or at
delivered to several intermediate persons successively. Each delivery is a relevant fact. part of the same transaction;
different times and places.

35 36
Deepak Kumar. HNLU Rpr 2 November 2022

Principle of Law
• The principle of law embodied in Section 6 of the Evidence
Act is usually known as the rule of res gestae recognized in
English law.
• Res Gestae literally means “things done” or “something
• It is an exception to the general rule that hearsay evidence is
deliberately undertaken or done”.
not admissible.
• The rules formulated in Section 6 is expounded and illustrated
• Though hearsay evidence is not admissible, but when it is res
in Sections 7, 8, 9 and 14.
gestae, it can be admissible in a court of law and may be
reliable evidence. • Facts which may be proved as part of Res Gestae, must be
facts other than those in issue but must be connected with it.
• This section is used by the lawyers as a last resort so; there is
not much case law on this section.

37 38

Basis of the Rule

Test of the admissibility
• Every fact, in some way or the other, is a part or other fact. Circumstances
often may often be intimately interwoven. It may be really very difficult to
separate the facts from the attending circumstances. Facts and
circumstances are sometimes so closely related to each other as to form the • The test of the admissibility of evidence as part of res gestae is
component of principal facts.
whether the act, declaration or exclamation is so intimately
• The English Law uses the phrases res gestae in the like cases. Res gestae simply
means — “transaction, things said or done, and the subject-matter.” The res interwoven or connected with the principal facts as to be
gestae may be defined as “those circumstances which are natural, regarded as a part of the transaction itself and also whether it
automatic and undesignated incidents of a particular litigated act.” The negatives any premeditation or purpose to manufacture
incident may consist of saying and doing. They may comprise of things left testimony.
undone as well as the things done.

39 40
Deepak Kumar. HNLU Rpr 2 November 2022

Transaction CASE LAWS

• R vs. Bidingfeild, 1879, 14 Cox CC. 341,
• The term transaction has not been defined in the evidence act.
“Transaction” is a group of facts so connected together as to be
referred to by a single legal man as a crime, contract, a wrong or – a women with her throat cut came suddenly out of a room (when she
any other subjects of inquiry which may be in issue. was in a room at the time) in which she had been injured and shortly
before she died said “o dear aunty, see, what Bidingfeild has done to
• A transaction may be described as any physical acts or series of me”. It was held inadmissible as the transaction in question i.e. the girl
connected physical acts together with the verbs accompanying having her throat cut was over by the time she made the statement, so it
such act or acts. Sir James Stephen defines a “transaction” as; “a was not part of the same transaction.
group of facts so connected together as to be referred to by a single
legal name, as a crime, a contract, a wrong, or any other subject of The decision of Bedingfield was subject to severe criticism and approach of
enquiry which may be in issue.” Bedingfeild is no longer followed in England or any other country.

41 42

• Ratten vs. Queen, (1971) 3, All ER 801, • G Vijayavardhan Rao vs. State of Andhra Pradesh, AIR 1996 SC
– the accused was charged with the murder of his wife. The defence was that
the shot was accidental. The deceased had telephone, “Get me the police 2791
please”. The accused had denied that any telephone calls had been made – Section 6 permits proof of collateral statements which are so connected
from his house on the evening in question and to his rebut this, the prosecution
wanted to call a telephonist from the local exchange to say that at a certain with the facts in issue as to form part of the same transaction. Whether the
time she had taken a call from the accused’s house. The telephonist said in statement made by a witness was a part of the same transaction or not is
evidence that the caller, a woman, accepted to have been Ratten’s wife, to be considered in the light of the circumstances of each case. The
had said, “Get me the police please”, and had been hysterical. The
defendant objected to this evidence being given, saying it was hearsay and principle is that it should be so intimately connected with the fact in issue
not within any of the exceptions. The Privy Council held that it was not hearsay, as to be a spontaneous utterance inspired by the excitement of the
and even if it had been, it would have been admissible under the res occasion or a spontaneous reaction thereof, there being no opportunity
gestae principle.
for deliberately fabricating the statement. The statement which is a part of
res-gestae does not narrate a past event, but it is the event itself speaking
through a person thus excluding the possibility of any design behind it.”

43 44
Deepak Kumar. HNLU Rpr 2 November 2022

Criticism of The Doctrine of Res

Gestae
• In Rattan Singh vs. State of H. P., (1997) 4 SCC 161 it was held that where shortly
before the incidence in which a woman dies of gunshot, she exclaimed that a
man was standing near her with a gun in his hand, the statement was held to be
sufficiently proximate in time to the happening as to be a part of the same
transaction. • The doctrine res gestae has often been criticised. According in
• The Supreme Court in Ram Singh vs. Col. Ram Singh, 1985 Supp SCC 611 held that Professor Stone, “no evidential problem is so shrouded in doubt
the tape-recorded evidence is admissible provided that the originality .and the
authenticity of the tape are free from doubt. The contemporaneous dialogue and confusion. Professor Wigmore says that the rule is not only
tape-recorded may form of res gestae and it is relevant and admissible under useless but also harmful. It is useless because every part of it is
Sections 6, 7 and 8 of the Evidence Act.
• In R.M. Malkani vs. State of Maharashtra, (1973) 1 SCC 473, the Court laid down the covered by some other rule as to relevancy of facts. It is harmful
essential conditions which, if fulfilled or satisfied, would make a tape-recorded because it creates confusion about the limitations of the other
statement admissible otherwise not; and observed:
• “Tape-recorded conversation is admissible provided first the conversation is rules. The precise limits of res gestae are themselves not easy to
relevant to the matters in issue; secondly, there is identification of the voice; and, define, for facts very often differ so greatly.
thirdly, the accuracy of the tape-recorded conversation is proved by eliminating
the possibility of erasing the tape record.

45 46

WHEN FACTS NOT OTHERWISE RELEVANT

BECOMES RELEVANT
(PLEA OF ALIBI)
(Section 11)

47 48
Deepak Kumar. HNLU Rpr 2 November 2022

Illustrations appended to
Section 11
Section 11
(a)The question is whether A committed a crime at Calcutta on
• Facts not otherwise relevant are •
a certain day.
relevant— – The fact that, on that day, A was at Lahore is relevant. The fact
that, near the time when the crime was committed, A was at a
– (1)if they are inconsistent with any fact in distance from the place where it was committed, which would
render it highly improbable, though not impossible, that he
issue or relevant fact; committed it, is relevant.
– (2)if by themselves or in connection with • (b)The question is, whether A committed a crime. The
circumstances are such that the crime must have been
other facts they make the existence or non- committed either by A, B, C or D. Every fact which shows that
existence of any fact in issue or relevant fact the crime could have been committed by no one else and that
it was not committed by either B, C or D, is relevant.
highly probable or improbable.

49 50

• It is the plea of absence of person, charged with an offence, from

the place of occurrence at the time of the commission of the

•
offence is named as plea of alibi.
In criminal law this plea is employed by accused against the Plea of alibi
commission of an alleged offence. When the accused pleads the
alibi in court of law he or she attempts to prove that he or she is
elsewhere else at the time when the offence is committed.
• The word “alibi”, a Latin expression means and implies in common acceptation
• In other words, it simply tells us that the accused wasn’t physically “elsewhere”:
present at the crime scene. It’s basic law that in criminal case, the • it is a defence based on the physical impossibility of participation in a crime by an
burden is on the accused to prove that the he was not present at the accused in placing the latter in a location other than the scene of crime at the
scene and has not participated within the crime (Section 103 of relevant time, shortly put, the presence of the accused elsewhere when an
Indian Evidence Act, 1872). offence was committed. (Munshi Prasad vs. State of Bihar, (2002) 1 SCC 351).
• So as to ascertain the plea of alibi the accused must lead evidence • The Supreme Court in Dudh Nath Pandey vs. State of U.P., ((1986) 2 SCC 166) it was
stated that the plea of alibi postulates the physical impossibility of the presence of
to indicate that he was too far off at the instant of the crime from the the accused at the scene of offence by reason of his presence at another place.
place of occurrence that he couldn’t have committed the offence. The plea can therefore succeed only if it is shown that the accused was so far
Section 11 of Indian Evidence Act, 1872 is expounded with the Plea away at the relevant time that he could not be present at the place where the
of Alibi. crime was committed.

51 52
Deepak Kumar. HNLU Rpr 2 November 2022

• In Subhash Chand vs. State of Rajasthan, (2002) 1 SCC 702, it was

observed that literal meaning of alibi is “elsewhere”. In law this term is
used to express that defence in a criminal prosecution, where the
The plea can succeed only if it is
party-accused, in order to prove that he could not have committed
the crime charged against him, offers evidence that he was in a shown that the accused was so far
different place at that time. The plea taken should be capable of
meaning that having regard to the time and place when and where
he is alleged to have committed the offence, he could not have
away at the relevant time that he
been present. The plea of alibi postulates the physical impossibility of
the presence of the accused at the scene of offence by reason of
his presence at another place. Denial by an accused of an assertion
could not represent at the place
made by his employer that the accused was on leave of absence
from duty on the date of offence does not, by any stretch of
where the crime was committed.
reasoning or logic, amount to pleading alibi.

53 54

plea of alibi isn’t maintainable in all the

Scope: cases, number of them are as.
• Section 11 of the Evidence Act is very wide in its application and it •
doesn’t impose any restriction on facts that may be admitted even • This plea isn’t maintainable in civil wrong. For example in a defamation suit,
these facts are highly inconsistent or improbable with fact in issue or contributory carelessness cases.
relevancy of fact. The facts which ordinarily tend to render the • A plea of alibi isn’t applicable in matrimonial. For example, suit for
existence of fact in issue or relevant fact probable or improbable has
relevancy. But, under this section there are collateral facts which by maintenance suit for divorce.
way of contraction, inconsistent with the fact in issue or relevant fact • In some jurisdictions, a plea of alibi works as an exception to the right of
are also relevant. It is only a rule of evidence recognised in Section 11 silence. For example of Canadian common law.
of the Evidence Act that facts which are inconsistent with the actual • The person creating the plea of alibi must be an accused in that offence.
fact in issue are relevant. The section is described as “residuary • Alibi could be a plea of defense (in respect of innocence of defendant) by
section” copy with relevancy of facts which are logically admissible. that the accused suggests to the court that he was elsewhere at the time of
Illustration – A is accused of B’s murder on a specific date at Kanpur. the commission of the alleged offence.
Thereon day A was at Pune, has relevancy to prove the plea of Alibi. • The plea should prove on the far side any reasonable6 doubt that it was
Now A will prove that it might be impossible for him to commit murder impossible for the defendant to be physically present at the scene of the
at Kanpur as he was in Pune.
offence.
• The plea should be backed by evidence supporting the claim of the
55 56
defendant.
Deepak Kumar. HNLU Rpr 2 November 2022

Jayantibhai Bhenkarbhai vs. State of Gujarat, (2002)

8 SCC 165, 175
• But once the prosecution succeeds in discharging its burden then it is incumbent on the
• it was stated that the word “alibi” is of Latin origin and means “elsewhere”. accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his
• It is a convenient term used for the defence taken by an accused that when the presence at the place and time of occurrence.
occurrence took place he was so far away from the place of occurrence that it is highly • An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution
in proving the guilt of the accused and the evidence adduced by the accused in proving his
improbable that he would have participated in the crime. defence of alibi.
• Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any • If the evidence adduced by the accused is of such a quality and of such a standard that the
other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that court may entertain some reasonable doubt regarding his presence at the place and time of
occurrence, the court would evaluate the prosecution evidence to see if the evidence
facts which are inconsistent with the fact in issue are relevant. adduced on behalf of the prosecution leaves any slot available to fit therein the defence of
• The burden of proving commission of offence by the accused so as to fasten the liability alibi.
• The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence
of guilt on him remains on the prosecution and would not be lessened by the mere fact Act which provides that the burden of proof as to any particular fact lies on that person who
that the accused had adopted the defence of alibi. wishes the court to believe in its existence.
• The plea of alibi taken by the accused needs to be considered only when the burden • The court said that while weighing the prosecution case and the defence case, pitted against
each other, if the balance tilts in favour of the accused, the prosecution would fail and the
which lies on the prosecution has been discharged satisfactorily. If the prosecution has accused would be entitled to the benefit of that reasonable doubt which would emerge in the
failed in discharging its burden of proving the commission of crime by the accused mind of the court
beyond any reasonable doubt, it may not benecessary to go into the question whether
the accused has succeeded in proving the defence of alibi.
57 58

Where there is reasonable ground to believe that two or

more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or
Sec.10 OF EVIDENCE ACT written by any one of such persons in reference to their
common intention, after the time when such intention
Things said or done by conspirator in was first entertained by any one of them, is a relevant
reference to common intention fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of
showing that any such person was a party to it.

59 60
Deepak Kumar. HNLU Rpr 2 November 2022

Illustration
• Reasonable ground exists for believing that A has joined in a
This section is based on the
•
conspiracy to wage war against the 1[Government of India].
The facts that B procured arms in Europe for the purpose of the
“theory of implied agency”. So
conspiracy, C collected money in Calcutta for a like object, D
persuaded persons to join the conspiracy in Bombay, E published the things said or done by one
writings advocating the object in view at Agra, and F transmitted
from Delhi to G at Kabul the money which C had collected at conspirator are admissible
Calcutta, and the contents of a letter written by H giving an account
of the conspiracy, are each relevant, both to prove the existence of against the other if they relate
the conspiracy, and to prove A’s complicity in it, although he may
have been ignorant of all of them, and although the persons by
whom they were done were strangers to him, and although they
to the conspiracy.
may have taken place before he joined the conspiracy or after he
left it. 61 62

• Sec. 10 is enacted to make such acts and statements of a co- • The special feature of this rule is that anything said,
conspirator admissible against whole body of conspirators because written or done by any member of the conspiracy is an
of nature of crime.
• A conspiracy is hatched in secrecy and executed in darkness.
evidence against the other members even if they are
done in their absence and without their knowledge. The
• Naturally therefore not feasible for prosecution to connect each
isolated act or statement of one accused with the acts or statement basis of this rule is agency. Just as partnership is to do
of the others, unless there is a common bond linking all of them something legal, conspiracy is to do something illegal,
together. and just as in a partnership, one partner is deemed to be
• Thus, as soon as court has reasonable grounds to believe that there is the agent of another, so also, one conspirator is
identify of interest or community of purpose i.e. when there is deemed to be the agent of another and anything said,
evidence of concerted action in furtherance of common intention to done, or written by the agent, i.e. one conspirator is
commit a crime, rule of agency lie and every one concerned will be
considered agent of rest of them. deemed to be done by the principal, i.e. by another
conspirator.
63 64
Deepak Kumar. HNLU Rpr 2 November 2022

Meaning of conspiracy INDIAN PENAL CODE SECTION 120A

• The term conspiracy means a secret plan by a group to do
something unlawful and harmful or something which is not unlawful
but by unlawful means.
• the term conspiracy has been defined
as:
According to Stephen, “when two or more persons agree to commit
any crime, they are guilty of conspiracy whether the crime was
committed or not”. When two or more persons agree to do,
It is not necessary in order to constitute a conspiracy that the acts or cause to be done, an illegal act or an
agreed to be done should be acts which if done should be criminal.
A conspiracy consists of unlawful combination of two or more persons act which is not illegal but illegal by
to do that which is contrary to law or to do that which is wrongful
towards other persons. A mere agreement to commit an offence
means, such an agreement amount to
becomes criminal conspiracy. criminal conspiracy.
65 66

Bhagwant swarup v. State of

Maharashtra AIR 1965 SC 682

• The Supreme Court has defined conspiracy as two

or more corrupt persons agreeing together to do,
by concerted action, something unlawful either as Principal and Scope
a mean or as an end. Thus the conspiracy is a kind
of agreement to do an unlawful act, or a lawful act
by lawful means. Being contrary to law the
conspiracy is always hatched in secrecy, and
executed in darkness of the facts.
67 68
Deepak Kumar. HNLU Rpr 2 November 2022

Theory of agency • In Badri Rai v. State[ AIR 1958 SC 953], it has been held
that section 10 of the evidence act has been
• The general principal is that no person can be deliberately in order to make such acts or statements of
made liable for the acts of another except in cases the co-conspirator admissible against the whole body of
conspirators, because of the nature of the crime. A
of abetment in criminal proceeding and contract conspiracy is hatched in secrecy, and executed in
of agency in civil proceeding. But in conspiracy the darkness. Naturally, therefore it is not feasible for the
persons who take part in conspiracy are deemed to prosecution to connect each isolated act or statement
of one accused with the acts or statement of the others,
be the mutual agent or confederates for the unless there is common bound linking all of them
purpose of the executive of the joint purpose. together.

69 70

Admissibility and Applicability:-

• In Emperor v. Shafi Ahmed[(1925) 31 Bom. 515] it has
been held that if two or more persons conspire
together to commit an offence, each is regarded
as the agent of the other, and just the principal is
liable for the acts of agent, so each conspirator is
liable for what is done by his fellow conspirator, in
furtherance of the common intention entertained
by both of them.

71 72
Deepak Kumar. HNLU Rpr 2 November 2022

• The words 'common intention' signify common intention existing at the time
when the thing was said, done, or written by the one of them. Things said,
done or written while the conspiracy was afoot are relevant as evidence of • The word "intention" implies that the act intended is in the
the common intention, once reasonable ground has been shown to believe in future and the section makes relevant statements by a
its existence. conspirator with reference to the future.
• But it would be a very different matter to hold that any narrative, or statement
or confession made to a third party after the common intention or conspiracy • The words " in reference to their common intention" mean in
was no longer operating, and had ceased to exist, is admissible against the reference to what at the time of statement was intended in
other party. There is, then no common intention of the conspirators to which the future.
the statement can have reference.
• Sec. 10 embodies this principle."It must be borne in mind that the thing said,
• Narratives coming from the conspirators as to their past acts
done, or written by one person will be admissible against him and others in a cannot be said to have a reference to their common
conspiracy case only when that thing is said, done or written in reference to intention.
the common intention of the conspiracy. Anything said done or written by a
conspirator will not be admissible against him or others if it is not done in
reference to the common intention of the conspiracy.
73 74

• In R vs. Blake & Tye, (1844) 6 QB 126, this was a case where Blake was an officer,
employed in the customs house, and Tye, an agent of the importers. They made false
• On this aspect of law is the case of Emperor vs. Vaishampayan. (1931) ILR 55 entries in his daybook, to have some goods passed without paying full duty. These entries,
Bom 839. This is also known as the Lamington Road Shooting Conspiracy. On and the counterfoil of his cheque-book showing that money was paid to Blake were
October 9, 1930 a police officer and his wife were wounded by revolver shots tendered in evidence by the prosecution in a trial of the two accused for the offence of
near the police station at Lamington Road in Bombay. These shots were fired conspiracy to pass the goods without paying full duty. It was held that the (i) entries in the
by some persons who were in a motor car which was standing on the daybook were admissible against Blake, for they were necessary to execute their
common object; (ii) but the counterfoil was irrelvant, being a mere statement to show
opposite side of the road. Evidence was sought to be given of a statement of
that the plunder had been shared after the object of the conspiracy had been
an absconding accused to the approver, that the conspirators had shot a achieved.
police-officer, that a pamphlet should be written and distributed to start a
• In Badri Rai vs. State of Bihar, 1959 SCJ 117, this was a case where the two accused met
propaganda in furtherance of the objects of the conspiracy. It was held: on the road a police inspector who was conducting an investigation against one of them
in a criminal case, and asked the inspector to hush up the case for valuable
– "Reading Sec. 10 it appears that naratives coming from the conspirators as to their consideration. A few days later, the other accused met the inspector at the police
past acts cannot be said to have a reference to their common intention. The word station and offered a packet of Rs 500 saying that the accused, against whom
'intention' implies that the act intended is in the future and the section makes investigation was pending, had sent the money for hushing up the case. policeThe two
relevant statements made by a conspirator with reference to the future. I interpret accused were charged with the offence of conspiracy to bribe theofficer. The question
the words 'in reference to their common intention' to mean in reference to what at that arose was whether the statement of one accused at the police station was relevant
the time of statement was intended in the future." But the statement about against the other.
publishing a pamphlet would be relevant, because the statement furthers the object • It was held that
of the conspiracy. It says in effect: "Let us do this to achieve" 75 – (i) the evidence of the conversation on the road showed that there were prima facie grounds for believing that the accused had
76
entered into a conspiracy to commit the offence, and
– (ii) therefore, under Sec. 10, the statement made by one of them, in execution of the conspiracy, would be relevant against the
Deepak Kumar. HNLU Rpr 2 November 2022

• In Re N. Ramaratnam, AIR 1944 Mad 302, the first accused agreed to supply to the • In Ram Narayan Popti case (2003) 3 Supreme Court Cases 641- A
second accused a packet of gelignite, an explosive, for the purpose of blowing up
a bridge. The second accused along with others utilised it for that purpose, but the thing done, said or written by any one of the member of the
attempt proved abortive. The next day the second accused wrote to the first, conspiracy after the conspiracy is over is not relevant under this
describing the unsuccessful attempt and asking for a further supply of the
explosive. In a trial of the two accused and six others for the offence of conspiracy section. This view of Privy Council does not hold good in view of the
to blow up the bridge, the question arose as to whether the letter written by the opinion of the Supreme Court expressed in Ram Narayan Popti case
second accused would be relevant against the first accused. If the wider
interpretation is put on the section, it would be relevant, but it was held, putting which has been followed.
only the restricted interpretation on the section, that it would not be relevant. The
first accused agreed to supply one packet, which he supplied and was utilised. The – After conspiracy gets over, any statement written or oral or any act done
common intention of the conspirators had been carried out, and when a letter was by either of conspirator then that can not be relevant under Sec. 10 as
written the next day, there was no conspiracy to further execute it. here the statement or act should have been made while common
intention was in existence. The words "...in reference to common
intention..." means in reference to an existing common intention or an
intention which has been first entertained by either of them.

77 78

Conclusion
• After going through section 10 of Evidence Act and many case related to this section thoroughly I • The time of the thing said, done or written is also a essential thing to look
came to the conclusion that, there is no discretionary power given to the courts as to the
admissibility of the statements made under section 10 of the Act, but there are some essential after before the admissibility of the statement that on the time when the
ingredients which has to be fulfilled in this regard. Those ingredients are stated in the case of statement is made at that time the conspiracy was on or not, a
bhagwant Swaroop v. State of Maharashtra are: statement cannot be admissible under section 10 if the statement is
made before the time when the conspiracy was first entertained and
– There shall be prima facie evidence affording a reasonable ground for a court to believe that two or more
persons are member of a conspiracy; after the conspiracy is end.
· If the said condition is fulfilled then anything said, done or written by anyone of them in reference to their
common intention will be evidence against the others;
· anything said, done or written by him should have been said, done or written by him after the intention was Hence it is clear that there is no discretionary power given to the court for
formed by any one of them; the admission of the statements made under section 10 of Evidence Act
· it would also be relevant for the said purpose against the another who entered the conspiracy, whether it was but there are some prima facie and circumstantial evidences which must
said, done or written before he entered the conspiracy or after he left; proved before any admission of the statement under this section of the
· And it can be used only against and not in his favour. Act.

79 80
Deepak Kumar. HNLU Rpr 2 November 2022

• The evidence of test identification parade is received under

section 9.
• Identification parades have been in common use for a very
long time for the object of placing suspect in a line-up with
other persons for identification.
• Test identification means processes of identification of a
person, property or animal through test parade.
• test identification is meant for the Purpose of helping the
investigation with an assurance that their progress with the
investigation into the offence is proceeding on right facts,
through it does not constitutes substantial evidence.

81 82

PURPOSE
• The purpose is to find out whether he is the perpetrator of the • The Test Identification Parade is held before judicial
crime.
magistrate.
• This is all the more necessary where the name of the offender
is not mentioned by those who claim to be eye-witnesses of • It helps us to verify as to who was the accused.
the incident, but they claim that although they didn't know
him earlier, they could recall his features in sufficient details • The TIP is conducted for purpose of creating a
and would also be able to identify him if and when they corroborative piece of evcidence for the
happen to see him again. identification which is made in court.
• Therefore the whole object behind the Test Identification
Parade is really to find whether or not the suspect is the real
offender.

83 84
Deepak Kumar. HNLU Rpr 2 November 2022

• S.C. in the case of Delhi Admn. vs. V.C. Shukla, AIR 1980 SC 1382,
held that the identification of the accused by the witness for the first
time in the Court without being tested by a prior test identification-
• The holding of test-indentification parade is not compulsory, in a case
parade was valueless.
where the accused persons were previously known to the witness and
• The S.C. has also held that where one of the witnesses failed to their names also appeared in the FIR but, test-identification parade was
identity the accused at the identification parade, identification by not held. The Supreme Court held that failure to hold test-identification
him of the accused in the Court was useless. (Hare Kishan Singh vs. parade was not fatal to the prosecution case (Pammi vs. State of M P.
State of Bihar, AIR 1988 SC 863) AIR 1998 SC 3031).
• Ordinarily, the person who is supposed to have identified the • Even where the accused demands test identification parade, the
assailants at the test-identification parade must himself give prosecution is not bound to do so and its case will not be weakened by
evidence in regard to the identification. If he does not himself give the mere absence of the parade.
the evidence and leaves it to the officer holding the identification • In the case of Laxmi Raj Setty vs. State of Tamil Nadu, AIR 1988 SC 1274,
parade to do so, the defence would be deprived of an opportunity the Supreme Court held that identification through a photograph can
of cross-examination for the purpose of showing that the witness had take the place of a formal test identification parade.
opportunity of seeing the accused before they were brought for
identification. 85 86

When identification of accused before court is not corroborated

by previous Test Identification parade, then can it be basis of
conviction? EVIDENTIARY VALUE OF TIP
• Ordinarily it should not be the sole-basis of conviction as TIP is admissible only if • In the case of Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284, the Court
identification is done in court. aptly held that the Court identification itself is good identification in the eye of
• It was explained in case of Dana yadav vs. State of Bihar 2002 (7) SCC 295. But, law. It is not always necessary that it must preceded by the test identification
there can be exception to this rule, an identification before court should not parade.
normally be relied upon if the name of accused is neither mentioned in FIR nor • It will always depend upon the facts and circumstances of a given case. one
before police. But, if TIP is not held and witness identifies the accused first time case, may not be necessary to hold the test identification parade while in the
before the court, than the evidence regarding identification in the court other, it may be essential to so.
doesn't become inadmissible and it cannot be discarded on the ground of no • Thus, no straightjacket formula can be stated in this regard.
earlier TIP, when the Court finds the same to be trust worthy. • The Court in the recent case of R.Shaji vs. State of Kerala, AIR 2013 SC 651
• An accused can not claim TIP as a matter of right as conducting of TIP is a while reiterating the principles of Test Identification Parade has upheld that in
prerogative of the investigating agency, which has power to impose TIP upon view the facts and circumstances of the present case where the witnesses
accused and prosecusion can apply to Judicial Magistrate under Section 54A made it clear that they were acquainted with the appellant since he was
CrPC for this. posted in the control room of their city, the holding/non-holding of a Test
• Also by virtue of Section 437(1) proviso 3 CrPC, accused can not be denied bail Identification Parade loses its significance.
merely on the ground that TIP has to be conducted.
87 88
Deepak Kumar. HNLU Rpr 2 November 2022

IDENTIFICATION OF ACCUSED BY PHOTOGRAPH

• TI Parade is weak sort of evidence. Where the only evidence against the
accused person is that of identification by one witness, as rule of prudence
• In D Gopal Krishanan vs. Sadanand Naik, AIR 2004 SC 2965, the Court observed
should not be considered sufficient to justify the conviction (Habib vs. State of
Bihar, AIR 1972 SC 283). that if during investigation witness indicates identifying features of the accused
then that can be confirmed by showing him some similar photograph and it can
• Amit Singh Bhikam Singh vs State of Maharashtra, (2007) 2 SCC 310 The TIP be confirmed by further showing him more photograph of the same person if the
doesn't constitute evidence but can used only for corroboration of statement accused is himself available.
in the court.
• In the instant case, his photograph could not be shown and the album containing
• In Chaman vs. State of U.P., AIR 1992 SC 601, the court held that where the photograph of the accused with name written underneath were shown to eye
moles, scars on the face of the accused covered large extent with pieces of witness who had not described any physical feature or identify characteristics.
paper and similar paper covering was done on faces of other persons
• So, the procedure adopted by investigation officer was not justified. There was
participating in parade, such identification parade was rendered unreliable
by extensive make up on faces. In such a case was not safe to convict the delay of one month in the holding of test identification parade.
accused on the basis of such identification parade.
89 90

• Pramod Mandal vs State of Bihar – • Prakash v. State. of Karnataka, 2014 (5) SCALE 83
– In this case, the Court held that an identification parade is not mandatory nor can it be
– In this case, the court held the following:
claimed by the suspect as a matter of right.
• There is no fixed time of TI parade and there is no rule of number of
identifying witnesses – The purpose of pre-trial identification evidence is to assure the investigation agency that

• It is for court to decide in facts and circumstances of the case and the investigation is going on in the right direction and to provide corroboration of the
evidence on the record whether to accept or reject evidence of the evidence to be given by the witness or victim later in court at the trial.
identification.
– If the suspect is a complete stranger to the witness or victim then the identification parade
• Where defence failed to impute any motive to prosecution for delay
is desireable unless the suspect has been seen by the witness or victim for some length of
nor it alleged any irregularity then only on this basis that there was
delay of one month was not fatal to prosecution case. time.

91 92
Deepak Kumar. HNLU Rpr 2 November 2022

EFFECT OF DELAY ON TIP IDENTITY OF THING

• Delay in holding TIP must be satisfactorily explained. • A case before the Supreme Court (Erabhadrappa vs. State of Karnataka, AIR
• In case of Rajesh Govind Jogesh vs. State of Maharashtra AIR 2000 SC 160, it was held 1983 SC 446) arose out of murder and robbery. The police recovered robbed
that the explanation that no magistrate was available in Bombay for 5 weeks for articles which comprised of valuable sarees and ornaments. A lady of the
supervising the parade was held to be not satisfactory. house was called and she identified the robbed articles in the Court as articles
• Murari Lal Jivaram Sharma vs. State of Maharashtra, AIR 1997 SC 1593 Two Months delay belonging to the deceased.
was held to be sufficiently accounted for where the identification officer kept writing to • The question was about the admissibility of the evidence. Rejecting the
the magistrate but magistrate could not spare time due to pre-occupations. contention of the defence that clothes like sarees and ornaments, chain &
• Daya Singh vs. Sate of Haryana, AIR 2001 SC 1188 Here, the delay in identification was bangles were of such common use that it could not be said that they
ignored where the witnesses identified the accused in parade and also identified him belonged to a particular family;
subsequent in the court 7-8 years later. The Courts also said that circumstances showed • the Supreme Court said it is a matter of common knowledge that ladies have
that they acquired an enduring impression of the identity during the incident. an uncanny sense of identifying their own belongings.
• State of Goa vs. Sanjay Thakran, 2007 (3) SSC 755 Person identifying articles did not have • Moreover, the description of silk sarees in question that they were expensive
sufficient opportunity to see the said article being used by the deceased for a long sarees with distinctive designs was another important index to identification.
duration. Further, these articles are not carrying any distinctive mark on the basis of which
this could be distinguished from similar articles which were easily available and accessible
in the market. So, the court said identification of the said articles belonging to deceased
could not be believed. 93 94

• In another case of Gade Lakshmi Mangraju vs.State of Andhra

Pradesh, AIR 2001 SC 2677, the ornaments of the deceased
lady were identified by her two sons during the test
identification parade. Her daughter also participated in the
identification but, was not cross examined. It was contended
that identification of ornaments as those of the deceased was
a very fragile evidence. The Supreme Court rejected the
contention.
• The Court, however, agreed that a female kin of the
deceased would have been in a better position than a male
kin to identify the jewellery or ornaments worn by a woman.
The Court said that non-examination of the daughter of the
deceased need not be taken as a serious flaw which would
vitally affect the prosecution evidence regarding the
95 96
identification of the ornaments.
Deepak Kumar. HNLU Rpr 2 November 2022

Why is an arrested person's Face is • It's a common sight: the suspect's face covered in black cloth and being led
away. Not many would have stopped to wonder about this practice.
Covered ? •
•
It is to protect the identity of the arrested.
This is to avoid the accused being exposed before the general public even
before his or her identification is done by the witnesses and recorded..
• If the arrested person's identity is revealed and if the photographs are
published in the media, the complainant may be influenced during the
In newspapers and other identification parade later at the jail.
digital news platforms, we • "At the identification parade, the complainant will be asked to identify the
culprit in a group and revealing the culprits identity would hamper the
see faces of an arrested
judgement of the complainant.
persons's face covered in
• The masks are just a way to protect the sanctity of the evidence as
masks or half covered by
identification is one of the corroborative evidence, according to Indian
handkerchiefs or any other Evidence Act
piece of cloth... why is
• But what is interesting is that the police department does not stock these
that? black masks. The only directive is to protect the identity of the arrested but
there are no clear guidelines about using the masks.
97 • Whenever the police want to produce the accused in front of the magistrate 98
and where there are chances of their photos being flashed or published in the

Section 12
• In suits for damages, facts tending to
• Sec. 12 applies to civil cases and enables the Court to take
enable Court to determine amount are into cognizance any fact, which would help it in determining
relevant. –– the amount of damages.
• In civil cases, damages or compensation for the loss suffered is
– In suits in which damages are claimed, the most common relief.
any fact which will enable the Court to • Much depends upon the principles of substantive law under
which an action is brought.
determine the amount of damages which
• In tort law the courts take into account the motive, malice
ought to be awarded is relevant. and intention of the wrongdoer.
99
• Even the reaches and ability of the defendant to compensate 100
play some part.
Deepak Kumar. HNLU Rpr 2 November 2022

SECTION 13
13. Facts relevant when right or custom is in question. ––

• Injured feelings of the plaintiff and the mental pain and Where the question is as to the existence of any right or custom, the following
facts are relevant: ––
suffering caused by the tort are also relevant as they too have
(a) any transaction by which the right or custom in question was created,
some bearing upon the quantum of damages. claimed, modified, recognized, asserted or denied, or which was inconsistent
• In the law of contract, on the other hand, the mode and with its existence;
manner of breach, the intention of the party committing the (b) particular instances in which the right or custom was claimed, recognized
breach, mental pain and suffering caused by the breach are or exercised, or in which its exercise was disputed, asserted or departed from.
all irrelevant to the question of damages.
Illustrations
• But, in recent times, even in case of contract this has become
The question is, whether A has a right to a fishery.
relevant. In civil cases, character of plaintiff if affect quantum A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s
of damages will be also relevant (Sec.55) father, a subsequent grant of the fishery by A’s father, irreconcilable with the
mortgage, particular instances in which A’s father exercised the right, or in
101 which the exercise of the right was stopped by A’s neighbours, are relevant 102
facts

Scope Custom
• A custom means those principles which have received recognition and
Section 13 deals with the facts as to
proof of existence of any right or acceptance as principles of justice and public utility. It is a transcendent law.
custom. When any question as to the Salmond defines “custom is frequently the embodiment of those principles
existence of any right or custom is in which have commended themselves to the national conscience as principle
issue the following facts are relevant: of justice and public utility. A custom is generally taken to mean the particular
rule of a family, a locality or a district which has existed from the time
immemorial or from long usages and has obtained the force of law. The
requirement of long usage in essential and the practice must be shown to
have continued in such circumstances and for such length of time that it has
come to be exercised as of right.
Any transaction by which the right or Particular instance in which the right
custom in question was,— (i) created or custom was: (i) claimed or (ii) • Under section 13 a custom can be used as evidence provided it has the force
(ii) claimed (iii) modified (iv) recognized, or (iii) exercised or in of law. For example in Hindu marriage seven steps before sacred fire is
recognized (v) asserted or (vi) denied which its existence was (iv) disputed essential to give validity. It is both custom and law. Thus it must be valid.
or (vii) which was inconsistent with its (v) asserted, or departed from, is
existence. relevant.
103 104
Deepak Kumar. HNLU Rpr 2 November 2022

Requisite conditions of valid Proof of Custom

custom • Under section 13 the proof of existence and non-existence of custom may be done either: (1) by
transaction or (2) by instances.
• It must be ancient i.e. its existence is beyond human memory—
“Time whereof the memory of man runneth not to the • 1. Transaction:
contrary.” • In this section the term ‘transaction’ is understood as something already done or completed.
• It must be continuous and conform. It means that if possession for “Whatever may be done by one person which affects another’s rights and out of which a cause
some time is disturbed, the claim to enjoy custom is not of action may arise, is transaction.” “A transaction in ordinary sense of the word is some business
abandoned. or dealing which is carried on or transacted between two or more persons. It must be genuine
and bona fide. Under this section ‘transaction’ also includes a contract but it is not confined to a
• It must be peaceable. dealing with property between person inter vivos. A transaction must always be genuine and
• It must be certain, define and constant. bona fide transaction. A benami transaction which is fictitious in nature is not valid transaction.
• It must be compulsory and not optional. • Most important test for determining a benami transaction is the source from which the
• It must not be against morality or public opinion. consideration came. The burden of proof is no doubt upon the person who claims contrary to
the tenor of a deed but it can be proved only by circumstantial evidences. The transaction is
• It must be reasonable. one in which the vendor asserted his competency to transfer property i.e. he had some saleable
• It must not be expressly forbidden by law or statute. interest.
• Thus, according to Section 13(a) a transaction by which the right or custom in question was
created, claimed, modified, recognized, asserted, or denied or which is inconsistent with its
105 existence is relevant to prove the existence of a custom or a right. Under this section a judgment
106
which has become final can be said to be a transition evidencing a right or instance. The sale

• 2. Instance:
• Section 13(2) provides for particular instance which simply means an example,
something which has already been occurred. In other words, the particular
instance refers to instances in which,—(i) the right or custom was claimed,
recognized, exercised or (ii) its existence was disputed, asserted or departed.
It must be the instances prior to the present suit in question. It may be or may
not be inter-parties.
• Example:

Sec. 14 & 15 from bare act

• A plea of res judicata being an instance in the present suit is admissible.
Documents produced in support of inter-parties suits viz., sale deeds,
mortgage deeds, are admissible under this section.
• On the other hand, judgments not inter-parties are also admissible under this
section, although there is conflicting judgments, when right was claimed in
subsequent suit. In a dispute as to succession to the office of a Mohunt,
previous judgment is made admissible. In this case the present Mohunt had
been successful to assert his right as a spiritual collateral of the former Mohunt.
A judgment not inter-parties is admissible in proof of a transaction or a
particular instance in which the relationship was asserted, recognized 107 or 108
denied.
Deepak Kumar. HNLU Rpr 2 November 2022

MODULE-III ADMISSION
• In general, Admission is a voluntary acknowledgment of a fact.

The relevancy of facts • Importance is given to that admission that goes against the interests of the person making
the admission.
– ADMISSION (sec. 17-23, 31) • For example, when A says to B that he stole money from C, A makes an admission of the

– CONFESSIONS (sec. 24-30) fact that A stole money from C. This fact is detrimental to the interests of A. The concept
behind this is that nobody would accept or acknowledge a fact that goes against their
interest unless it is indeed true. Unless A indeed stole money from C, it is not normal for A to

» QUEEN EMPRESS V. ABDULLAH say that he stole money from C.

» PALVENDRA KAUR V. STATE OF PUNJAB • Therefore, an admission becomes an important piece of evidence against a person. On the
other hand, anybody can make assertions in favor of themselves. They can be true or false.
» NISHIKANT JHA V. STATE OF BIHAR
For example, A can keep on saying that a certain house belongs to himself, but that does
not mean it is necessarily true. Therefore, such assertions do not have much evidentiary
109 110
value.

Definition Essential Ingredients

• Section 17 of the Indian Evidence Act, 1872 defines
admission.
• According to Section 17

– “An admission is a statement (oral or documentary or contained

in electronic form) which suggests any inference as to any fact in
issue or relevant fact, and which is made by any of the person
and under the circumstances mentioned in Section 18 to 20 of
the Indian Evidence Act.

111 112
Deepak Kumar. HNLU Rpr 2 November 2022

An admission is a statement
• When a statement is made to a person in his presence and
hearing affecting his position seriously; and the person does
not deny it, he is thereby taken to have admitted the truth of
• An admission is a statement of fact. the statement.
• It may be oral, documentary, electronic form or • Even a mere silence may amount to an admission if, under the
even by conduct. circumstances, it is natural to expect a denial or reply from a
person.
• Active or passive conduct may, in circumstances,
• Just as a denial is not always a negation of liability, failure to
become evidence of an admission. deny it may not necessarily amount to an admission of liability
either.

113 114

Inference as to any fact in issue

Example
or relevant fact
• Illustration (g) to Section 8 furnishes a good example of
admission by conduct. • All admissions are essentially
statements but all statements
STATEMENT
– The question is, whether ‘A’ owes ‘B’ Rs. 10,000. are not admissions.
• The facts that ‘A’ asked ‘C’ to lend him money and that ‘D’
said to ‘C’ in A’s presence and hearing — “I advise you not to
• A statement is, therefore, a
trust ‘A’, for he owes ‘B’ 10,000 rupees.” And that ‘A’ went genus and an admission is a
ADMISSIO
away without making any answer, are relevant facts. species of that genus. N
• Only such of the statement
are admissions as suggest
115 any inference as to any fact 116
in issue or relevant fact.
Deepak Kumar. HNLU Rpr 2 November 2022

EXAMPLE
• An admission may sometimes amount to direct acknowledge of • Following illustrations may be helpful in appreciating the
liability. point:—
• However, the law does not require that every admission must – (a)‘A’ sues ‘B’ for the recovery of an alleged loan given by him to ‘B’. An entry as to
directly and invariably acknowledge a liability. Requirement of the fact of loan is found recorded in B’s account book.
the law would be satisfied, if the statement made by maker – The fact of entry of loan in B’s account book is an admission on the part of ‘B’.
suggests any inference as to his liability.
– (b)‘A’ makes a statement to the effect that “he does owe the money.” That will also
be an admission being a direct acknowledgement of liability.

– (c)‘A’ is charged with causing death of ‘B’ by poisoning him. ‘A’ admits to have
purchased poison.

117 118

CASE LAWS
• In Parmeshwari Bai vs. M. Scindia, AIR (1981) Kar 47 it was held that stray
• An inference is thereby suggested that he is guilty of the statements elicited in cross-examination cannot be taken to be an admission.
murder, unless he proves that he needed the poison for some
innocent purpose. The inference suggested by the statement • In Brij Mohan vs. Amar Nath, AIR (1980) J&K 54 it was held that the mere
must, however, be a clear one. Since an admission, at best, admission by a person that he put his thumb impression or signature upon a
piece of paper without knowing its nature and contents is not admission by
only suggests some inference, it is the duty of the Court to him that he executed the documents.
examine the statement inside out and see whether the
statement is unequivocal and comprehensive. • In M.M. Chetti vs. C. Coomarswary, AIR (1980) Mad 212 it was held that the
mere admission by a person that he put his thumb impression or signature
upon a piece of paper without knowing its nature and contents is not
admission by him that he executed the documents. The Court further held
that statement must go the whole hog, as it were, on the point at issue. If a
party’s admission falls short of the totality of the requisite evidence needed for
legal proof of a fact in issue, such an admission would be only a truncated
119 120
admission.
Deepak Kumar. HNLU Rpr 2 November 2022

Relevancy of Admissions • According to Section 21 of the Act, an admission is relevant and

may be proved against the person who makes them, or his
representative in interest; but they cannot be proved by or on
• An admission must be behalf of the person who makes them or by his representative in
– clear, interest, except in the following cases:
– precise,
– unequivocal,
– categorical, – (a) When it is of such nature that if the person making it were dead,
– not vague or ambiguous.
it would be relevant as between third persons under Section 32.
– (b) When it consists of a statement of the existence of any state of
mind / state of body existed & is accompanied by a conduct
An admission is the best evidence that an opposite party can rely upon,
rendering its falsehood.
though not conclusive, it is nevertheless decisive on the point unless – (c) When it is relevant otherwise than as an admission.
proved erroneous or is validly allowed to be withdrawn.

121 122

Statement by any of the persons and under

the circumstances mentioned in the Act
• From a joint reading of Sections 18, 19 and 20 of the Act, it is clear that
statements made by the following classes of persons may be admissions:
– (i)A party to the proceeding (civil or criminal) or by his agent (Section 18). • Thus, the admissions of an agent are admissible, because the
– (ii)Parties to the suits, suing or sued in a representative character principal is bound by the acts of his agent done in the course
(e.g., trustees, executors, assignee of a bankrupt, etc.) while they hold
that character (Section 18).
of his business and within the scope of his authority. Likewise,
– (iii)Persons having proprietary or pecuniary interest in the subject matter of admissions of facts made by a pleader in Court, on behalf of
the proceeding if the statements are made— his client, are binding on the client. But an admission by a
– (a)in their character of persons so interested, and pleader on a point of law will not bind the client.
– (b)during the continuance of their interest (Section 18).
– (iv)Persons from whom the parties to the suit have derived their interest in
the subject-matter of the suit provided that the statements are made
during the continuance of the interest of the person making the
statement (Section 18) 123 124
Deepak Kumar. HNLU Rpr 2 November 2022

• (v)Persons whose position or liability it is necessary to • (vi)Persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute (Section 20).
prove as against any party to the suit if the
statements— – Illustration:
• The question is, whether a horse sold by ‘A’ to ‘B’ is sound. ‘A’ says to ‘B’ —
– (a)are made during the continuance of such position or liability,
“Go and ask ‘C’: ‘C’ knows all about it.” C’s statement is an admission.
and
• The Illustration to Section 20 is taken from the English case, Williams vs. Innzs, (1
– (b)are such as would be relevant as against such persons (in Camp 364), where Lord Ellen borough remarked: “If a man refers another
relation to such position or liability) in a suit brought by or against upon any particular business to a third person, he is bound by what this third
them. (Section 19). person saysor does concerning it as much as if that had been said or does
concerning it as much as if that had been said or done by himself.”
• Section 20 forms an exception to the rule that admissions by strangers to a suit
• Illustrations are not relevant. Under this section, the admissions of a third person are also
– ‘A’ undertakes to collect rents for ‘B’ ‘B’ sues ‘A’ for collecting receivable in evidence against, and have frequently been held to be in fact
binding upon, the party who has expressly referred another to him for
rent due from ‘C’ to ‘B’. ‘A’ denies that rent was due from ‘C’ to
information in regard to an uncertain or disputed matter.
‘B’.
– A statement by ‘C’ that he owned ‘B’ rent is admission and is a
relevant fact as against ‘A’ if ‘A’ denies that ‘C’ did owe rent to125 126

‘B’.

Evidentiary Value of an Admission:

• Section 21 declares that the admissions are relevant and may • An admission is substantive evidence of the fact admitted and
be proved as against the person who makes them or his that admissions duly proved are admissible evidence
representative in interest. irrespective of whether the party making them appears in the
• Section 31 provides that admissions are not conclusive proof witness box or not and whether that party when appearing as
of matters admitted but they may operate as estoppels. a witness was confronted with those statements in case he
Admissions are only a prima facie proof of the fact admitted. made a statement contrary to his admissions.
An admission not being a conclusive proof of the fact • The effect usually given to admissions proved against persons
admitted, evidence can be given to disprove it. But until who make them is destructive and not constructive. Whether
evidence to the contrary is given an admission can safely be they are true or not does not matter. The effective point is that
presumed to be true. they destroy the force of inconsistent statements made later.

127 128
Deepak Kumar. HNLU Rpr 2 November 2022

• The person against whom an admission is proved is • The Supreme court has held that a contractor’s bill
at liberty to show that it was mistaken or untrue. which is expressly stated to be final settlement of his
When an admission is duly proved, and the person demand for the work done amounts to an
against whom it is proved does not satisfy the Court admission against the contractor, who would be
that it was mistaken or untrue, the Court may bound by it, unless satisfactory proof to the contrary
decide the case in accordance with such is produced. (Central Cold Fields Ltd. vs. Mining
admission. An erroneous admission does not bind Constructions and Multi Contract Pvt. Ltd., (1982) 1
the person making such admission. SCC 414).

129 130

No admission of law
• Admission of a fact by a party dispenses with the necessity of proving that
fact against him. Thus admission operates as waiver of proof. Section 58 of the
Indian Evidence Act, 1872 incorporates this principle.
• Section 58 of the Indian Evidence Act expressly provides: “No fact need to be
proved in any proceeding—
Admission of facts only binds the person making them. The admissions of
– (i)Which the parties thereto or their agents agree to admit at the hearing; or
law are not contemplated by the Chapter of admission. In India,
– (ii)Which before the hearing they (parties) agree to admit by any writing under their admission of fact is a proof against the party making the admission
hands, or but admission on a pure question of law is not binding on the maker.
– iii)Which by any rule of pleading enforce at the time they are deemed to have An admission on a point of law is not an admission of a thing so as to
admitted by their pleadings. make the matter of estoppel. Counsel’s admission on question of
• The proviso to Section 58 provides that the Court may, in its direction, require mixed law and fact are not binding. The lawyer of the plaintiff made
the facts admitted to be proved otherwise than by such admissions. an admission to the effect that the parties were governed by custom
• Section 58 relates to formal admissions (judicial admissions) made at the time under which a mother could have alienated the property of
of the trial, or as part of pleading, or in reference to the litigation. because it was a pure question of law or at least a mixed question of
• Section 58 does not apply to such of the statements of casual nature as are law and fact. The admissions of law by a counsel are not binding on
called extra-judicial admission. Such statements may be made by a person
a court and the court is not precluded from deciding the rights of the
before litigation was contemplated. Such statements are not conclusive. They
can be shown to be wrong.
parties on a true view of the law. Under the English Law admission of
131 law is relevant. 132
Deepak Kumar. HNLU Rpr 2 November 2022

Why are Admissions Received in Evidence? Admission operates as waiver of proof

• There are some sound grounds for receiving admissions in evidence.
The same are as under:— • Admission of a fact by a party dispenses with the
necessity of proving that fact against him. Thus,
admission operates as waiver of proof. Section 58 of
the Indian Evidence Act, 1872 incorporates this
principle.

133 134

Admissions as self-harming statements Admissions as evidence of contradictory statements

• An admission, being a statement against the interest of the • An admission suggests a contradiction between a
maker, the same may be taken to be true, for it is highly party’s statement and his case. This is also one of
improbable that a person will voluntarily make a false
statement against his own interest.
the reasons for the relevancy of admission.
• Section 17, however, does not require that an admission
However, the principle still remains that a party can
should be a statement against one’s own interest. In other prove all his opponent’s statements about the facts
words, a statement, if suggests any inference as to a principal of the case whether they be consistent or
fact may amount to an admission even if the inference is in inconsistent with the case
favour of the declarant.

135 136
Deepak Kumar. HNLU Rpr 2 November 2022

Admissions as evidence of truth

• Whatever statements a party makes about the fact
Forms of Admission
of the case, whether they be for or against his
interest, are taken as relevant as representation or
reflecting the truth as against him. In fact, whatever
a party says in evidence against himself is presumed Informal or casual
to be true. The weight of the statement, however, Formal or judicial
admissions
admission or extra-
judicial or evidentiary
Admissions by conduct
always depends upon the circumstances in which it admissions
was made.

137 138

Formal or judicial admissions • Statements made by a person in his pleadings or in his

evidence in some other case have also been held by the
Supreme Court to be admissions and, therefore, relevant.
• An admission which is made as part of the (Bishwanath Prasad vs. Dwarka Prasad, (1974) 1 SCC 78).
proceedings is called a formal or judicial admission. • In Bharat Singh vs. Bhagirath, AIR 1966 SC 405, it was observed
that the weight to be attached to an admission made by a
• If a judicial admission is expressly made in the party is a matter different from its use as an admissible
proceedings prior to the trial it is called formal or evidence. Thus relevancy of an admission and its weight are
express admission. distinguishable.
• There may be deemed or implied admissions also. • Admissions are substantive evidence by themselves, in view of
Section 17 and 21 of the Act, though they are not conclusive
• They are also regarded as judicial admissions. proof of the matters admitted. The admissions duly proved are
Admissions, if true and clear are the best proof of admissible evidence irrespective of the fact whether the party
the facts admitted. making them appeared in the witness-box or not and whether
139 he was confronted with these statements in case he made 140 a
statement contrary to these admissions.
Deepak Kumar. HNLU Rpr 2 November 2022

Informal or casual or extra-judicial or

Evidentiary Admissions
• Such admissions may be oral or in writing and may occur • In Rumping vs. D.P.P., (1964) AC 814 the mate of a
in the ordinary course of life or business, or even in casual
or informal conversation. Written admissions may occur ship, charged with the murder of a woman, wrote a
in business letters, diaries, account books, pass books or letter to his wife which was tantamount to a
in other records. confession of some grave crime and gave it to the
• The statement may be made to any party, even to
one’s wife and it will not be privileged. The seaman for posting, who instead handed it over to
communications between husband and wife are no the captain and the caption to the police. The
doubt privilegedbut they can be proved by a third party letter was allowed to be proved as an admission.
who overheard them or otherwise got possession of
them.

141 142

Proof of a written or an oral

Admission by Conduct
admission
• Active or passive conduct may in circumstances
• A written admission can be proved by a witness became evidence of an admission when a
who has the writing with him. An oral admission can statement is made to a person in his presence and
be proved either by the party to whom it was made hearing affecting his position seriously and he does
or by someone who heard it being made. Section not deny it, he thereby admits the truth of the
60 requires that oral evidence must in all cases be statement.
direct that is to say, the witness must have personal • A mere silence would amount to an admission only
and direct knowledge of the fact to which the if it is natural to except a denial or reply. Just as a
testifies. denial is not always a negation of liability, failure to
143 deny it is not necessity an admission of liability. 144
Deepak Kumar. HNLU Rpr 2 November 2022

WHEN ORAL ADMISSIONS AS TO CONTENTS OF DOCUMENTS

AND ELECTRONIC RECORDS ARE RELEVANT
(Sections 22 & 22-A)

• Oral admissions as to the contents of a document are not • According to Section 22A the oral admissions as to the
relevant, unless and until the party proposing to prove them
shows that he is entitled to give secondary evidence of the contents of electronic records are not relevant, unless the
contents of such document under the rules hereinafter
genuineness of the electronic record produced is in question.
contained, or unless the genuineness of a document
produced is in question. • Under this section the electronic records are presumed to be
• Section 22 lays down that the contents of the documents can
be proved by the documents itself and not by oral evidence. genuine unless any question arises in this regard.
• The contents of a document capable of being produced • Oral evidence as to contents of electronic records may be
must be proved by the instrument and not by parole
evidence. allowed when the genuineness of such records is in question.

145 146

ADMISSIONS IN CIVIL CASES, WHEN RELEVANT

(Section 23)
Principle
• In civil cases, no admission is relevant, if it is made— • Section 23 lays down that in civil (not criminal) cases, an
– Upon an ex-press condition, or admission is not relevant when it is made
– Under circumstances from which the Court can infer that – (i) upon an express condition that evidence of it is not to be given, or
the parties agreed together. – (ii) under circumstances from which the Court can infer that the parties
agreed together that evidence of it should not be given. It is applicable
only to civil cases and gives effect to the maxim, interest reiplicae ut sit
That evidence of it should not be given. However, it is also finis litium i.e. it is the interest of the state there should be end of litigation.
clarified that there is nothing to exempt any barrister,
pleader, attorney or vakil from giving evidence of any • This section protects communication made ‘without
matter of which he may be compelled to give evidence prejudice.’ Confidential statements between litigants made
under Section 126. (Explanation to Section 23)
without prejudice are excluded on grounds of public policy.

147 148
Deepak Kumar. HNLU Rpr 2 November 2022

• The expression ‘Confession’ has not been defined in the

Evidence Act.
• In simple words, confession is a direct admission or
CONFESSIONS acknowledgment of the guilt by a person who had
committed a crime.
• All the provisions relating to ‘confession’ occur under the
heading of Admission. Thus, a confession is a kind of
Admission.
• Section 24 lays down the general rule that a confession
made under any inducement, threat or promise
becomes irrelevant in a criminal proceedings.

149 150

• The term ‘confession’ comes into play • Under Section 26, no confession made by a person
whilst he is in the custody of police officer, unless it
only in the criminal proceedings. be made in immediate presence of a magistrate
• According to Section 25 of the act no shall be proved against a person.
confession made to a police officer is • The policy underline Sections 25, 26 is to make it a
substantive rule of law that confession wherever
admissible against the accused. made to the police while in custody of police unless
made in the immediate presence of a magistrate
shall be presumed to have been obtained under
151 the circumstances mentioned in Section 24. 152
Deepak Kumar. HNLU Rpr 2 November 2022

• Section 27 is an exception to the rules enacted in Definition & Meaning

Sections 25, 26 of the Act.
• Section 28 lays down the conditions under which • Confession in common acceptation
confession rendered irrelevant by Section 24, may means and implies acknowledgment of
become relevant. guilt.
• Section 29 deals with confession otherwise relevant • The word “confession” appears for the
not to become irrelevant because of promise of first time in Section 24 of Indian Evidence
secrecy, etc. Act.
• Section 30 of the Act empowers the court to take • It has not been defined in the Evidence
into consideration a confession made by one of the Act.
accused against the other when they are being
jointly tried for the same office. 153 154

USAGE/ INTERPRETAION
• As we know that the term confession is not defined anywhere in Indian
• Section 17 defines “admission” as “a statement oral or Evidence Act. But it is thought that an
documentary… which suggests any inference as to any – Admission in case of a criminal matter is Confession.
fact in issue or relevant fact. “Such a statement if made • The same was stated by STEPHEN in his digest that that a confession is an
by a party to a civil proceeding, it would be an admission made at anytime by a person charged with a crime, stating or
“admission” and if it is made by a party charged with a suggesting the inference that he committed the crime.
crime, it would be a “confession.”
• Thus, in terms of the Act, a confession is a statement • However, Privy Council, in case of Pakala Narayan Swami vs Emperor AIR 1939, did
made by a person charged with a crime suggesting any not accept this definition. In this case Lord ATKIN observed that
inference as to any fact in issue or as to relevant facts. – no statement that contains self exculpatory matter can amount to a confession. Further, a
confession must either admit in terms of the offence or at any rate substantially all the facts which
• The inference that the statement should be that he is constitute the offence. An offence of a gravely incriminating fact, is not in itself a confession.
guilty of the crime. – For example, an admission that the accused is the over of and was in recent possession of the
knife or revolver which caused death with no explanation of any other man's possession, is not a
confession even though it strongly suggests that the accused has committed the murder.

155 156
Deepak Kumar. HNLU Rpr 2 November 2022

• The decision by Privy Council in Pakala Narayan Swami case was

approved by SC in the case of Palvinder Kaur vs State of Punjab, AIR
1952.
• In this case, Palvinder was on trial for murder of her husband along that the that a mixed up Thus, a
with another, who all the time remained absconding. In her confession must statement statement that
statement to the court, her husband was hobbyist photographer and either admit the which even contains self-
used to keep handy photo developing material which is quick guilt in terms or though exculpatory
poison. On this occasion, he was ill and she brought him some admit contains some matter which if
medicine and the medicine was kept near the liquid developer and substantially all confessional true would
by mistake swallowed the liquid and died. She got afraid and with the facts which statement will negate the
the help of the absconder, she dumped the body in the well. The constitute the still lead to matter or
statement, thus, partially admitted guilt and partially showed offence; acquittal, is no offence,
innocence. Here, the lower courts sorted out the exculpatory part confession. cannot amount
and convicted her on the inculpatory part. However, SC rejected this to confession.
approach and held that the rule regarding confession and admission
is that they must either be accepted or rejected as whole. 157 158

Shankar vs. State of T.N., (1994) 4 SCC 478). ADMISSION CONFESSION

If a statement is made by a party in civil If a statement made by a party
• The confession is a form of admission consisting of direct acknowledgement of proceeding it will be called as charged with crime, in criminal
guilt in a criminal charge. admission proceeding, it is called as a confession
• It must be in express words by the accused in a criminal case of the truth of
the guilt fact charged or some essential part of it and a statement that
contains a self-exculpatory matter cannot amount to a confession.
The expression ‘Admission’ means The expression ‘Confession’ means “a
• The confession should be a voluntary one, which means not caused by “ voluntary acknowledgement of the statement made by an accused
inducement, threat or promise. Whether a confession is voluntary or not is existence or truth of a particular fact” admitting his guilt. If a person accused
essentially a question of fact. of an offense (accused) makes a
• The judicial confessions are those which are made before a Magistrate or in statement against himself, it is called
court in due course of legal proceedings and when such a confession is confession.
retracted, the courts have held that apart from the statement being voluntary
it should be true and should receive sufficient corroboration in material
An admission is genius Confession is specie hence all
particulars by independent evidence.
confessions are admissions but all
• The rule of prudence namely requiring corroboration does not mean that admissions are not confessions.
each and every circumstance mentioned in the confession with regard to the
participation of the accused in the crime must be separately and 159 160

independently corroborated.
Deepak Kumar. HNLU Rpr 2 November 2022

ADMISSION CONFESSION
The Term Admission is applicable to a
statement, oral or in writing made by a party
Confession is the term for admission of guilt
made in the criminal side.
CLASSES OF
on civil side. CONFESSION
An admission is not conclusive proof of the A confession, if voluntarily and free, may in
matters admitted and is always rebuttable. the discretion of the judge or magistrate, by
itself be accepted as conclusive proof of
matters confessed and is alone sufficient to
warrant a conviction.
Judicial
Confession
An admission may be proved by or behalf of But confession always goes against the
the person making it. person making it.
An admission may be made by an agent in While an agent can never make the Extra-
course of business. confession of an offense against a co-
defendant. judicial
Confession
161 162

SECTION 164 CR. P.C. Recording of confessions and statements

Judicial Confession • (1) Any Metropolitan Magistrate or Judicial
Magistrate may, whether or not he has
jurisdiction in the case, record any confession or
statement made to him in the course of an
signed by the person making the confession; and
the Magistrate shall make a memorandum at the
foot of such record to the following effect:-" I
have explained to (name) that he is not bound
investigation under this Chapter or under any to make a confession and that, if he does so, any
• Judicial confessions are those confessions which are made before the Court or to a
other law for the time being in force, or at any confession he may make may be used as
magistrate in due course of proceeding. A judicial confession is that which is made
time afterwards before the commencement of evidence against him and I believe that this
before the magistrate or in court, in due course of legal proceeding that which is
the inquiry or trial: Provided that no confession confession was voluntarily made. It was taken in
recorded under Section 164 Cr. P.C.
shall be recorded by a police officer on whom my presence and hearing, and was read over to
• Section 164 makes the confession before a Magistrate admissible in evidence. This any power of a Magistrate has been conferred the person making it and admitted by him to be
is known as judicial confession. The manner in which such confession is to be under any law for the time being in force. correct, and it contains a full and true account of
recorded by the Magistrate is provided under Sections 164 and 281 of the Code of • (2) The Magistrate shall, before recording any the statement made by him.(Signed) A. B.
Criminal Procedure. The said provision seeks to protect an accused from making a such confession, explain to the person making it Magistrate".
confession. Judicial confession must be recorded in strict compliance with the that he is not bound to make a confession and• (5) Any statement (other than a confession)
provisions of Section 164 of the Code of Criminal Procedure. While doing so, the that, if he does so, it may be used as evidence made under sub- section (1) shall be recorded in
court should not go by the black letter of law as contained in the aforementioned against him; and the Magistrate shall not record such manner hereinafter provided for the
provision; but must make further probe so as to satisfy itself that the confession is any such confession unless, upon questioning the recording of evidence as is, in the opinion of the
truly voluntary and had not been by reason of any inducement, threat or torture. person making it, he has reason to believe that it Magistrate, best fitted to the circumstances of
is being made voluntarily. the case; and the Magistrate shall have power to
• (3) If at any time before the confession is administer oath to the person whose statement is
recorded, the person appearing before the so recorded.
Magistrate states that he is not willing to make• (6) The Magistrate recording a confession or
the confession, the Magistrate shall not authorise statement under this section shall forward it to the
the detention of such person in police custody. Magistrate by whom the case is to be inquired
163 into or tried. 164
• (4) Any such confession shall be recorded in the
manner provided in section 281 for recording the
Deepak Kumar. HNLU Rpr 2 November 2022

Case Laws Extra-judicial Confession

• Extra-judicial confessions are those which are made by the accused
• In Bhagwan Singh vs. State of M.P., (2003) 3 SCC 21, it was held the first
elsewhere than before a magistrate or in court. It is not necessary that the
precaution that a Judicial Magistrate is required to take is to prevent forcible
statements should have been addressed to any definite individual. It may
extraction of confession by the prosecuting agency.
have taken place in the form of a prayer. It may be a confession to a private
• The Court in Shivappa vs. State of Karnataka, (1995) 2 SCC 76, that the person.
provisions of Section 164 CrPC must be complied with not only in form, but in
• An extra-judicial confession has been defined to mean “a free and voluntary
essence. Before proceeding to record the confessional statement, a
confession of guilt by a person accused of a crime in the course of
searching enquiry must be made from the accused as to the custody from
conversation with persons other than judge or magistrate seized of the charge
which he was produced and the treatment he had been receiving in such
against himself. A man after the commission of a crime may write a letter to
custody in order to ensure that there is no scope for doubt of any sort of
his relation or friend expressing his sorrow over the matter. This may amount to
extraneous influence proceeding from a source interested in the prosecution.
confession.
The Magistrate in particular should ask the accused as to why he wants to
make a statement which surely shall go against his interest in the trial. He • Extra-judicial confession can be accepted and can be the basis of a
should be granted sufficient time for reflection. He should also be assured of conviction if it passes the TEST OF CREDIBILITY. Extra-judicial confession is
protection from any sort of apprehended torture or pressure from the police in generally made before private person who includes even judicial officer in his
case he declines to make a confessional statement. The confession is also not private capacity.
recorded in questions-and-answers form which is the manner indicated in the 165 • It also includes a magistrate not empowered to record confessions under 166
criminal court rules. Section 164 of the Cr.P.C. or a magistrate so empowered but receiving the

Baskaran vs. State of Tamil Nadu, Criminal Appeal No.

State of Punjab vs. Gurdeep Singh, (1999) 7 SCC 714).
121 of 2008, SC
• There is neither any rule of law nor of prudence that evidence furnished by
• An extra-judicial confession can be relied upon only if the same is voluntary extra-judicial confession cannot be relied upon unless corroborated by some
and true and made in a fit state of mind. other credible evidence.
• The value of the evidence as to the confession like any other evidence • If the evidence about extra-judicial confession comes from the mouth of
depends upon the veracity of the witness to whom it has been made. The witness/witnesses who appear to be unbiased, not even remotely inimical to
value of the evidence as to the confession depends on the reliability of the the accused, and in respect of whom nothing is brought out which may tend
witness who gives the evidence. But it is not open to any court to start with the to indicate that he may have a motive for attributing an untruthful statement
presumption that extra-judicial confession is insufficient to convict the to the accused, the words spoken to by the witness are clear, unambiguous
accused even though it is supported by the other circumstantial evidence and unmistakably convey that the accused is the perpetrator of the crime
and corroborated by independent witness which is the position in the instant and nothing is omitted by the witness which may militate against it, then after
case. The Courts cannot be unmindful of the legal position that even if the subjecting the evidence of the witness to a rigorous test on the touchstone of
evidence relating to extra-judicial confession is found credible after being credibility, if it passes the test, the extra-judicial confession can be accepted
tested on the touchstone of credibility and acceptability, it can solely form and can be the basis of a conviction.
the basis of conviction.
• If the evidence of extra-judicial confession is reliable, trustworthy and beyond
167 reproach the same can be relied upon and a conviction can be founded 168
thereon.
Deepak Kumar. HNLU Rpr 2 November 2022

Principles for recording the RELEVANCY OF

CONFESSIONS

Confession
In Dara Singh vs. Republic of India, (2011) 2 SCC 490, the• A judicial confession not given voluntarily is unreliable,
Supreme Court laid down the following principles for more so, when such a confession is retracted, the
recording the Confession: conviction cannot be based on such retracted judicial
confession. Confessions when Not Confessions when
Relevant Relevant
• The provisions of Section 164 CrPC must be complied with• Non-compliance with Section 164 CrPC goes to the root of
not only in form, but in essence. the Magistrate’s jurisdiction to record the confession and
• Before proceeding to record the confessional statement, a renders the confession unworthy of credence.
searching enquiry must be made from the accused as to• During the time of reflection, the accused should be
the custody from which he was produced and the completely out of police influence. The judicial officer, who
treatment he had been receiving in such custody in order is entrusted with the duty of recording confession, must Section 24 - Confession
to ensure that there is no scope for doubt of any sort of apply his judicial mind to ascertain and satisfy his caused by inducement, Section 27 - Confession
extraneous influence proceeding from a source interested conscience that the statement of the accused is not on threat, or promise from a leading to a discovery
in the prosecution. account of any extraneous influence on him. person in authority
• A Magistrate should ask the accused as to why he wants to• At the time of recording the statement of the accused, no
make a statement which surely shall go against his interest police or police official shall be present in the open court.
in the trial. • Confession of a co-accused is a weak type of evidence.
Section 28 - Confessions
• The maker should be granted sufficient time for reflection. • Usually the court requires some corroboration from the made after removal of
• He should be assured of protection from any sort of confessional statement before convicting the accused Section 25, 26, 27 threat
apprehended torture or pressure from the police in case he person on such a statement. Confessions to Police Section 29 - Confession
declines to make a confessional statement. made under promise,
169 deception,etc. 170

• Retraction means withdrawal of statement.

• Retracted confession means taking back of a previous
statement relating to the admission of guilt.
• In retracted confession an accused person admits his guilt
RETRACTED CONFESSIONs before the trial begins, but he repudiates at the trial.
• Section 164 Criminal Procedure Code lays down certain
precautionary rules to be followed by the Magistrate
recording a confession so as to ensure the volun-tariness of the
confession and the accused being placed in a situation free
from threat or influence of the police.

171 172
Deepak Kumar. HNLU Rpr 2 November 2022

• Merely because the confession was retracted later that does not
• A retracted confession is a statement made by an accused person before the trial mean that the confession was not voluntary in nature. (Abdulvahab
begins by which he admits to have committed the offence but which he repudiates at Abdulmajid Shaikh vs. State of Gujarat, (2007) 4 SCC 257).
the trial. After the commission of a serious offence some police officer makes • In a case of retracted confession, the courts while arriving at a
investigation into the matter, examines witnesses and the accused. If in his opinion the
accused is proved to have committed the offence, he submits a report to a magistrate finding of guilt would not ordinarily rely solely thereupon and would
having jurisdiction in the matter. look forward for corroboration of material particulars. Such
• The court takes evidence and examines the accused. If during the investigation, the corroboration must not be referable in nature. Such corroboration
accused on being examined by the police officer is willing to admit the guilt the police must be independent and conclusive in nature. (Aloke Nath Dutta vs.
officer sends the accused to some magistrate for recording his statement.
State of W.B., (2007) 12 SCC 230).
• The magistrate after being satisfied that the accused admits in his statement to have
committed the offence this recorded statement by the magistrate may be proved at the • In a case where confession is made in the presence of a Magistrate
trial. conforming the requirements of Section 164, if it is retracted at a later
• When the trial begins the accused on being asked as to whether he committed the stage should probe deeper into the matter. Despite procedural
crime he may say that he did not commit the crime. The question may again be put to
him as to whether he made statement before the magistrate during the investigation safeguards contained in the said provision the Magistrate should
confessing the guilt. satisfy himself whether the confession was of voluntary nature. (Aloke
• He may deny to have made the statement at all or he may say that he made that Nath Dutta vs. State of W.B., (2007) 12 SCC 230).
statement due to undue influence of the police. In this case the confession made by the
accused to the magistrate before the trial begins is called retracted confession. 173 174

• It is unsafe to base the conviction on a retracted confession unless it is State (NCT of Delhi) vs. Navjot Sandhu,
•
corroborated by trustworthy evidence.
There is no definite law that a retracted confession cannot be the basis of the
AIR 2005 SC 3820
conviction but it has been laid down as a rule of practice and prudence not • The Court observed that a retracted confession may form the legal
to rely on retracted confession unless corroborated. basis of a conviction if the court is satisfied that it was true and was
• Courts have convicted persons on retracted confession when they have been voluntarily made. But it has been held that a court shall not base a
of the opinion that he confession when it was made was voluntary or conviction on such a confession without corroboration. It is not a rule
consistent and true but the real rule of law about the retracted confession is of law, but is only rule of prudence. It cannot even be laid down as
“where the retracted confession is the sole evidence it can be of little value an inflexible rule of practice or prudence that under no
specially when made during the competition for a pardon which sometimes circumstances can such a conviction be made without
occurs where a number of persons are suspected of an offence,”. corroboration, for a court may, in a particular case, be convinced of
• It very often happens that a number of persons are accused of murder or the absolute truth of a confession and prepared to act upon it
dacoity or of any other offence. The person in charge of the investigation without corroboration; but it may be laid down as a general rule of
falling on direct and independent evidence chooses some of the accused to practice that it is unsafe to rely upon a confession, much less on a
admit the guilt on the promise of making him a witness in the case. Instances retracted confession, unless the court is satisfied that the retracted
are not rare when a young man is made to admit some guilt due to pressure confession is true and voluntarily made and has been corroborated
or fear. (Aloke Nath Dutta vs. State of W.B., (2007) 12 SCC 230). in material particulars.

175 176
Deepak Kumar. HNLU Rpr 2 November 2022

Bharat vs. State of U.P., – Retracted confession, however, stands on a slightly different footing. As
the Privy Council once stated, in India it is the rule to find a confession and

(1971 (3) SCC 950) to find it retracted later. A Court may take into account the retracted
confession, but it must look for the reasons for the making of the
confession as well as for its retraction, and must weigh the two to
• the Apex Court has dealt with the evidentiary value of “confession”, and of “retracted
determine whether the retraction affects the voluntary nature of the
confession” and has stated as under: confession or not. If the court is satisfied that it was retracted because of
an after-thought or advice, the retraction may not weigh with the court if
– “Confessions can be acted upon if the court is satisfied that they the general facts proved in the case and the tenor of the confession as
are voluntary and they are true. The voluntary nature of the made and the circumstances of its making and withdrawal warrant its
confession depends upon whether there was any threat, user. All the same, the courts do not act upon the retracted confession
inducement or promise and its truth is judged in the context of without finding assurance from some other sources as to the guilt of the
the entire prosecution case. The confession must fit into the accused. Therefore, it can be stated that a true confession made
proved facts and not run counter to them. When the voluntary voluntarily may be acted upon with slight evidence to corroborate it, but
character of the confession and its truth are accepted it is safe to a retracted confession requires the general assurance that the retraction
was an after-though and that the earlier statement was true.
rely it. Indeed a confession, if it is voluntary and true and not
made under any inducement or threat or promise, is the most – Thus, a retracted confession needs to pass two tests : firstly, the confession
must have been made voluntarily and not under duress, threat or
potent piece of evidence against the maker.
inducement. Secondly, a cogent reason should have been offered by the
177 accused for retracting from his alleged confession. It is a question of fact178
to be decided in each case whether the confession is voluntary or not,

CONFESSION CAUSED BY
To attract the prohibition enacted in Section 24 of the
INDUCEMENT, THREAT OR Evidence Act, these facts must be established:
PROMISE IS IRRELEVANT – (i)that the statement in question is a confession;

(SECTION 24) –
–
(ii)that such confession has been made by an accused person;
(iii)that it has been made to a person in authority;
– (iv)that the confession has been obtained by reason of any inducement,
threat or promise proceeding from a person in authority;
Section 24 of the Evidence Act provides that a confession – (v)such inducement, threat or promise, must have reference to the
charge against the accused person;
made by an accused person is irrelevant in a criminal – (vi)the inducement, threat or promise must in the opinion of the court be
proceeding, if the making of the confession appears to the sufficient to give the accused person grounds, which would appear to
Court to have been caused by any inducement, threat or 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
promise having reference to the charge. proceedings against him.

179 180
Deepak Kumar. HNLU Rpr 2 November 2022

A confession caused by inducement, threat or

promise is irrelevant for the simple reason that
it is not free and voluntary. A confession to be
relevant must be free, voluntary, true and
trustworthy. A confession must proceed from CONFESSION TO POLICE OFFICER
remorse and a desire to make reparation for
the crime and not from the inducement,
(Section 25)
threat or promise. However, where the
prisoner is only told to tell the truth without
exiting any hope or fear in him, his statement
may amount to confession.
181 182

• According to Section 25 of the Act, no confession make to a police

Basis of the rule
officer, shall be proved as against a person accused of any offence.
A confession made to a Police Officer is regarded as involuntarily • If confessions to Police were allowed to be proved, the police may
made and, hence the rule that such confession cannot be proved. torture the accused to force him to confess the crime which he might
not have actually committed. It is always easy for the police to
• If a confession before the police was considered to be valid then the
obtain a confession by using third degree methods. Obtaining
fundamental rights would also be violated. The Constitution of India
confession may be short route for the police to get success. Police
under Article 20(3) protects the accused against self incrimination.
may become careless or less attentive as to real clues. This may lead
Thus, the accused cannot be compelled to accept his guilt.
to disappearance of good evidence. Once a confession is obtained,
• For the purpose of Section 25 it is not necessary that the accused there is over flagging zeal for a full and thorough investigation, with a
person should be in Police custody at the time of making the view to establish the case de-hors the confession.
confession. But the main distinction between Sections 24 and 25 is
• The rational behind the inflexible statutory bar contained in Section
that while Section 24 contemplates confession made in the presence
25 may be summarised thus:—
of any person in authority, Section 25 contemplates a confession – (1)An objective and dispassionate attitude cannot confidently be expected from a Police Officer;
made only to one kind of authority, namely, a Police Officer. – (2)False self-incrimination may lead to injustice and may afford a chance of escape for the real culprit.
183 – (3)There is a need to discourage the police from abusing its authority so as to erode the fundamental right
184
of the citizens;
– (4)Police cannot be permitted to act arbitrarily and use third degree methods for obtaining a false success.
Deepak Kumar. HNLU Rpr 2 November 2022

CONFESSION BY ACCUSED WHILE IN • Under Section 26, no confession made by any person while in the custody of a
police officer, unless made in the immediate presence of a Magistrate, shall
CUSTODY OF POLICE, be proved as against such person. This section can be considered to be an
extension of the principle enshrined in Section 25, and is based on the same

BUT IN THE PRESENCE OF MAGISTRATE

fear that the police may illegally coerce or force an accused to confess, if not
to the police then to someone else. It may be noted that the term ‘custody’
does not mean actual arrest.
(Section 26) • Police custody means police control. It may also be exercised in a home in an
open peace or in a course of a journey and not necessarily in the walls of a
prison.
• The reason is that a person in the custody of the police is presumed to be
under the influence and it provides opportunities for offering inducement or
extorting confessions. The presence of the magistrate secures the free and
voluntary nature of the confessions and the confessing person has the
185 opportunity of making a statement uncontrolled by any fear of the police. 186

DOCTRINE OF HOW MUCH OF INFORMATION RECEIVED

“EXCLUDING THE FRUIT OF A POISONOUS TREE” FROM ACCUSED MAY BE PROVED
• In Selvi vs. State of Karnataka, (2010) 7 SCC 263, it was held that the
statements made in custody are considered to be unreliable unless
they have been subjected to cross-examination or judicial scrutiny. (SECTION 27)
The scheme created by the Code of Criminal Procedure and the
Evidence Act also mandates that confessions made before police
officers are ordinarily not admissible as evidence and it is only the
statements made in the presence of a Judicial Magistrate which can
DOCTRINE OF CONFIRMATION BY
be given weightage. The doctrine of “excluding the fruit of a SUBSEQUENT FACTS
poisonous tree” has been incorporated in Sections 24, 25 and 26 of
the Evidence Act, 1872.

DISCOVERY STATEMENT
187 188
Deepak Kumar. HNLU Rpr 2 November 2022

• Section 27 states that: Provided that when any fact is deposed to as CONSTITUTIONALITY OF SECTION 27
discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much • Indian Evidence Act was written before the Constitution of India and Article
of such information, whether it amounts to a confession or not, as 20(3) of the constitution says that no person shall be compelled to be a
relates distinctly to the fact thereby discovered, may be proved. witness against himself. This article seemingly made Section 27
unconstitutional. SC considered this issue in the case of Nisa Sree vs State of
Orissa AIR 1954, and held that it is not violative of Article 20(3). A confession
• Sec 27 provides another exception when a confession made to the may or may not lead to the discovery of an incriminating fact. If the
police is admissible. discovered fact is non incriminatory, there is no issue and if it is self-
• This is when a confession leads to the discovery of a fact connected incriminatory, it is admissible if the information is given by the accused without
any threat.
with the crime.
• If the self-incriminatory information has been given by an accused person
• The discovery assures that the confession is true and reliable even if it without any threat, that will be admissible in evidence and that will not be hit
was extorted. by the provisions of clause (3) of Art. 20 of the Constitution for the reason that
• In order to ensure the genuineness of recoveries, it has become a there has been no compulsion. It must, therefore, be held that the provisions
practice to effect the recoveries in the presence of witnesses. of S. 27 are not within the prohibition aforesaid, unless compulsion has been
189 used in obtaining the information. (State of Bombay v. Kathi Kalu, A.I.R. 1961 190
S.C. 1808).

State of U.P. v. Deoman Upadhyaya,

(A.I.R. 1960 S.C. 1125),

• The constitutional validity of S. 27 of the Art. was also challenged in

• When the matter went to the High Court, it was contended that the
State of U.P. v. Deoman Upadhyaya, (A.I.R. 1960 S.C. 1125), where it
statements of the accused to the police were inadmissible on the
was argued that the said section was ultra vires the Constitution,
ground that section 27 was ultra vires Article 14 of the Constitution.
inasmuch as it was violative of Article 14 of the Constitution, on the
The High Court accepted this contention and acquitted the
ground that it discriminated between persons in police custody and
accused.
those not in such custody.
• When the matter went in appeal to the Supreme Court, the
• In that case, the respondent was convicted by the trial court on the
judgment of the High Court was reversed, and the Supreme Court,
charge of murder. The finding was that a quarrel had ensued
by a majority, convicted the accused. In the course of the majority
between the respondent and the deceased, that the respondent
judgment, it was observed as follows:
borrowed a gandasa, and that the next morning, he was seen
– “The principle of admitting evidence of statements made by a person giving
hurrying towards a tank and taking a bath. information leading to the discovery of facts which may be used in evidence against
• The Court also recorded a finding that he absconded thereafter, and him is manifestly reasonable. The fact that the principle is restricted to persons in
custody will not by itself be a ground for holding that there is an attempted hostile
that the dead body was found on the same morning. When the discrimination, because the rule of admissibility of evidence is not extended to a
accused was arrested two days later, he offered to produce the possible, but an uncommon or abnormal class of cases.”
191 192
gandasa to the police, took them to the tank, and fetched it from
under the water.
Deepak Kumar. HNLU Rpr 2 November 2022

Requirements under Section 27 Rational behind Section 27

• The conditions necessary for the application of Section 27 are: • The reason behind this partial lifting of the ban against confessions and
statements made to the police is that if a fact is actually discovered in
– 1.The fact must have been discovered in the consequence of the consequence of information given by the accused, it affords some guarantee
information received from the accused; of truth of that part, and that part only, of the information which was the clear,
– 2.The person giving the information must be accused of an immediate and proximate cause of the discovery. No such guarantee or
offence; assurance attaches to the rest of the statement which may be indirectly or
remotely related to the fact discovered. (Mohd. Inayatullah vs. State of
– 3.The person must be in custody of a police officer;
Maharashtra, (1976) 1 SCC 828).
– 4.That portion only of the information which relates distinctly to • The essential ingredient of Section 27 of the Evidence Act is that the
the fact discovered can be proved. The rest is inadmissible; information given by the accused must lead to the discovery of the fact
– 5.Before the statement is proved, somebody must depose that which is the direct outcome of such information. Secondly, only such portion
articles were discovered in consequence of the information of the information given as is distinctly connected with the said discovery is
received from the accused. In the example given above, before admissible against the accused. Thirdly, the discovery of the fact must relate
to the commission of some offence. (Jaffar Hussain Dastgir vs. State of
the statement of the accused could be proved, somebody, such
193 Maharashtra, (1969) 2 SCC 872). 194
a sub-inspector, must depose that in consequence of the given
information given by the accused, some facts were discovered.

• The scope and ambit of Section 27 of the Evidence Act were

illuminatingly stated in Pulukuri Kottaya vs. Emperor, AIR 1947 PC 67 in
the following words, which have become locus classicus :

– “It is deceptive to treat the ‘fact discovered’ within the section as equivalent
to the object produced; the fact discovered embraces the place from which
the object is produced and the knowledge of the accused as to this, and the
information given must relate distinctly to this fact. Information as to past user,
or the past history, of the object produced is not related to its discovery in the

Scope and ambit of Section 27 setting in which it is discovered. Information supplied by a person in custody
that ‘I will produce a knife concealed in the roof of my house’ does not lead to
the discovery of a knife; knives were discovered many years ago. It leads to
(Pulukuri Kottaya vs. Emperor, AIR 1947 PC 67) the discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. But if to the
statement the words be added ‘with which I stabbed A’ these words are
inadmissible since they do not relate to the discovery of the knife in the house
of the informant.”

195 196
Deepak Kumar. HNLU Rpr 2 November 2022

• In Smt. Selvi vs. State of Karnataka, 2010 (4) SCALE 690, the Supreme Court has
ruled that compulsory brain mapping, narco analysis, and lie detection tests
are unconstitutional as they violate individual rights. Information obtained
through such tests was sought to be made relevant under Section 27 of the
Act, but the Supreme Court held that only such information that was obtained
– “Section 27, which is not artistically worded, provides after an accused voluntarily agreed to be tested would be admissible.
an exception to the prohibition imposed by the • In Sukhan vs. Emperor, AIR 1928 Lah 334 (FB), where the accused said: “I
preceding section, and enables certain statements buried the shirt, which was my share of the stolen property, under
made by a person in police custody to be proved. the beri tree.” The fact that the accused buried the shirt or the fact that it was
The condition necessary to bring the section into his share of stolen property is not ‘discovered’ within Section 27 and is not
operation is that the discovery of a fact in admissible.
consequence of information received from a person • In State of Maharashtra vs. Damu, (2000) 6 SCC 269 it was held that the basic
accused of any offence in the custody of a police idea embedded in Section 27 of the Evidence Act is the doctrine of
officer must be deposed to, and thereupon so much confirmation by subsequent events. The doctrine is founded on the principle
of information as relates distinctly to the fact thereby that if any fact is discovered in a search made on the strength of any
discovered may be proved.” information obtained from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The information might be
confessional or non-inculpatory in nature, but if it results in discovery of a fact
it becomes a reliable information. Hence the legislature permitted such
197 198
information to be used as evidence by restricting the admissible portion to the
minimum. It is now well settled that recovery of an object is not discovery of a

The Court in Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, held
the various requirements of the section can be summed up as follows:

• The fact of which evidence is sought to be given must be relevant to the issue. It
must be borne in mind that the provision has nothing to do withthe question of
relevancy. The relevancy of the fact discovered must be established according to CONFESSION OF A CO-ACCUSED
(SECTION 30)
the prescriptions relating to relevancy of other evidence connecting it with the
crime in order to make the fact discovered admissible.
• The fact must have been discovered.
• The discovery must have been in consequence of some information received from
the accused and not by the accused’s own act.
• The person giving the information must be accused of any offence.
• He must be in the custody of a police officer.
• The discovery of a fact in consequence of information received from an accused
in custody must be deposed to.
• Thereupon only that portion of the information which relates distinctly or strictly to
the fact discovered can be proved. The rest is inadmissible.

199 200
Deepak Kumar. HNLU Rpr 2 November 2022

• Section 30 deals with confessions of co-accused persons.

• This provision may be contrasted with Section 133, which deals
with the evidence of an accomplice.
• According to Section 30, when more persons than one are being tried jointly for the
same offence, and a confession made by one of such persons affecting himself • Section 133 provides that an accomplice shall be a
and some other of such persons is proved, the court may take into consideration competent witness against an accused person. The Supreme
such confession as against such other person as well as against the person who
makes such confession. Court in Kalpanath Rai vs. State, 1997 (8) SCC 732, held that
• Essentials of Section 30 the evidence of an accomplice must be corroborated before
• The section will apply if the following conditions are fulfilled: the same can be used to convict an accused person, and this
– (1)that more persons than one are being tried jointly;
– (2)that the joint trial is permissible by law;
view has been followed for interpreting evidence under
– (3)that the joint trial is for the same offence or for its abetment or attempt; Section 30 as well.
– (4)there must be a confession;
– (5)the confession of guilty must implicate the maker substantially to the extent as the other • In Suresh Budharmal Kalani vs. State of Maharashtra, 1998 (7)
accused; and SCC 337, it has been held that the confession of an accused
– (6)the confession must be duly proved.
cannot be used against a co-accused unless the former is also
facing trial.

201 202

Illustrations appended to Evidentiary value of the

Section 30 confession of a co-accused
• A and B are jointly tried for the murder of C. It is proved that A said “B • In Bhuboni Sahu vs. The King, AIR 1949 PC 257, the Privy Council held that a
and I murdered C”. The Court may consider the effect of this confession confession of a co-accused is obviously evidence of a very weak type. It does
as against B. not indeed come within the definition of “evidence” contained in Section 3 of
• A is on trial for the murder of C. There is evidence to show that C was the Evidence Act. It is not required to be given on oath, nor in the presence of
murdered by A and B, and that B said — “A and I murdered C.” This the accused, and it cannot be tested by cross-examination. It is a much
statement may not be taken into consideration by the Court against A, weaker type of evidence than the evidence of an approver, which is not
as B is not being jointly tried. subject to any of those infirmities. The confession of a co-accused is only one
element in the consideration of all the facts proved in the case; it can be put
• The law insists that the accomplice’s evidence be not used without into the scale and weighed with the other evidence.
corroboration. Prudence demands that when such an accomplice • The Judgement of Bhuboni Sahu vs. The King, (1949) IA PC 147 was delivered
implicates another, then, the person, who is so implicated, has a right to by Sir John Beaumont, former Chief Justice of British India. This was
test the evidence given against him by his co-accused; but no such subsequently followed by the Supreme Court of India: Kashmira Singh vs. State
opportunity is available in law to the person, who implicates his co- of Madhya Pradesh, (1952) AIR SC 159 and Haricharan Kurmi vs. State of
accused by making a confession. Bihar, (1964) AIR SC 1184.

203 204
Deepak Kumar. HNLU Rpr 2 November 2022

Expression “the court may take into

consideration such confession”
• The Delhi High Court observed in Peoples Union for Civil Liberty vs. Central Bureau
Investigation, 1997 Cri LJ 3242 (Del):
• “…. a confession of a co-accused is obviously evidence of a very weak type. It
Aloke Nath Dutta vs. State of W.B., (2007) 12 SCC 230
does not indeed come within the definition of ‘evidence’ contained in Section 3 of • The expression “the court may take into consideration such
the Evidence Act. It is not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-examination. It is a much weaker type confession” is significant. It signifies that such confession by the maker
of evidence than the evidence of an approver, which is not subject to any of those as against the co-accusedhimself should be treated as a piece of
infirmities. Section 30, however, provides that the court may take the confession
into consideration and thereby, no doubt, makes it evidence on which the court corroborative evidence. In absence of any substantive evidence, no
may act; but the section does not say that the confession is to amount to proof. judgment of conviction can be recorded only on the basis of
Clearly there must be other evidence. The confession is only one element in the
consideration of all the facts proved in the case; it can be put into the scale and confession of a co-accused, be it extra-judicial confession or a
weighed with the other evidence.” judicial confession and least of all on the basis of retracted
confession.

205 206

MODULE 4 SECTION 32 OF THE ACT

• Dying Declaration sec. (32) • Statements, written or verbal, of relevant facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence, or whose
• Relevancy of certain evidence for proving the truth of facts in attendance cannot be procured without an amount of delay or expense which, under
the circumstances of the case, appears to the Court unreasonable, are themselves
subsequent proceeding (section 33) relevant facts in the following cases—
– (1)When it relates to cause of death — When the statement is made by a person as to the cause of
his death, or as to any of the circumstances of the transaction which resulted in his death, in cases
in which the cause of that person’s death comes into question.
– Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
– (2)Or is made in course of business — When the statement was made by such person in the
ordinary course of business, and in particular when it consists of any entry or memorandum made
by him in books kept in the ordinary course of business, or in the discharge of professional duty; or
of an acknowledgement written or signed by him of the receipt of money, goods securities or
property of any kind; or of a document used in commerce

207 208
Deepak Kumar. HNLU Rpr 2 November 2022

– written or signed by him or of the date of a letter or other document usually dated, written or
Scope, Principle & Necessity of
Section 32
signed by him.
– (3)Or against interest of maker — When the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true it would expose him or would have exposed him to
criminal prosecution or to a suit for damages. • Sections 32 and 33 of the Evidence Act are exceptions to the general
– (4)Or gives opinion as to public right or custom, or matters of general interest — When the rule that hearsay evidence is not admissible.
statement gives the opinion of any such person, as to the existence of any public right or custom
or matter of public or general interest of the existence of which if it existed, he would have been • Hearsay evidence is not entertained by the courts on the ground that
likely to be aware, and when such statement was made before any controversy as to such right, the evidence given by a person who does not have firsthand
custom or matter had arisen.
– (5)Or relates to existence of relationship — When the statement relates to the existence of any
knowledge about the facts of the case.
relationship by blood, marriage or adoption between persons as to whose relationship by blood, • Because, according to Section 60 of this Act oral evidence must
marriage or adoption the person making the statement had special means of knowledge, and
when the statement was made before the question in dispute was raised.
always be direct, that is, the person who has got first-hand
– (6)Or is made in will or deed relating to family affairs — When the statement relates to the knowledge about the facts of the case being entitled only to prove
existence of any relationship by blood, marriage or adoption between persons deceased, and is the facts.
made in any will or deed relating to the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on • Thus, the hearsay evidence, is relevant when:
which such statements are usually made, and when such statement was made before the – (i)there is necessity; and
question in dispute was raised. – (ii)the special circumstances guaranteeing genuineness and trustworthiness.
– (7)Or in document relating to transaction mentioned in Section 13, Clause (a). — When the
statement is contained in any deed, will or other document which relates to any such transaction
as is mentioned in Section 13, Clause (a).
209 210
– (8)Or is made by several persons and express feelings relevant to matter in question — When the
statement was made by a number of persons, and expressed feelings or impressions on their part

Thus the following conditions must be fulfilled before

accepting a declaration as dying declaration or not:
• This section comes into operation when any statement of a
person who is either dead or cannot be found, or incapable The person
to give evidence, or whose attendance is not possible without who made
delay or expenses. the The
proceeding
• When previous evidence given by a witness is intended to be statement
must be one The
proved, the facts must be proved strictly. must be
in which the proceeding
dead
• In civil case the party can waive the proof, but in criminal deponent’s may be civil
cases strict proof must be given that the witness is incapable cause of or criminal
of giving evidence. The statement must death was
relate to the cause of in question.
• In the present days the dying declaration has assumed much his death or any
importance. But, the question as to how much weight can be circumstances of the
attached to a dying declaration is a question of fact. transaction which
resulted in his death.
211 212
Deepak Kumar. HNLU Rpr 2 November 2022

Dying Declaration
• The “dying declaration” essentially means the statement made by a person as to the
cause of his death or as to the circumstances of the transaction resulting into his death.
• The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus • The dying declaration is thus the statement by the
praesumitur mentire, which means ‘a man will not meet his Maker with a lie in his
mouth’.
person as to cause of his death or as to any of the
• The admissibility of the dying declaration is based on the principle that the sense of
circumstances relating to death.
impending death produces in a man’s mind, the same feeling as that of a diligent and • The words “dying declaration” mean a statement
virtuous man under oath. written or verbal of relevant facts made by the
• The dying declaration is admissible upon the consideration that the declaration was
made in extremity, when the maker is at the point of death and when every hope of
person who is dead. Statements made by a
this world is gone, when every motive to file a false suit is silenced in the mind and the person who believes he or she is about to die,
person deposing is induced by the most powerful considerations to speak the truth. concerning the cause or circumstance
• Once the court is satisfied that the declaration was true and voluntary, it undoubtedly surrounding his or her impending death.
can base its conviction on the dying declaration, without requiring any further
corroboration.
• It cannot be laid down as an absolute rule of law that the dying declaration cannot
213 214
form the sole basis of conviction unless it is corroborated by other evidence.

PAKLA NARAYANA SWAMY VS. EMPEROR,

AIR 1939 PC 47

• Facts—The wife of the accused (Pakala Narayan Swami) was • The courts below convicted the accused of murder and
indebted to the deceased (Kurree Nukaraju). On 20.3.1937 the sentenced him to death. The accused appealed to the Privy
deceased received an unsigned letter from the wife of the accused
whereby he was invited to Berhampur to receive the payments of his Council inter alia on the ground that the statement of the
dues. The deceased left for Berhampur the very next day (i.e. on deceased to his wife that he was going to the accused was
21.3.1937). On 23.3.1937 the body (cut into seven pieces) of the wrongly admitted under Section 32(1) and that the statement
deceased was found unclaimed in a trunk in a train at Puri. The of the accused to the police that the deceased arrived at his
widow of the deceased deposed that before leaving for Berhampur,
her husband had shown her a letter and had told her that he was place was admitted in violation of Section 162 of the Criminal
going to Berhampur in response to the letter sent by wife of accused Procedure Law.
whereby he has been asked to receive the payments of his dues. The
accused in his statement to the police had stated that the deceased
had arrived at his place.

215 216
Deepak Kumar. HNLU Rpr 2 November 2022

• Held—The words used in Section 32(1) of the Act does not convey
any limitations to the effect that “the statement” must be made after
the transaction has taken place ; or that the person making it must • Applying the aforesaid principles to the facts of the instant
be, at any rate, near death; or that the “circumstances” can only
case, it was held that statement made by the deceased on
include acts done when and where the death was caused. In fact,
the statement may be made even before the cause of death has
the day, preceding the day on which he was murdered to the
arisen, or before the deceased has any reason to anticipate being effect that he was going to the place where the accused was
killed. The circumstances must be “circumstances of the transaction”. living was a statement as to some of the “circumstances of
Thus, general expressions indicating fear or suspicion whether of a the transaction” which resulted in his death and, therefore, the
particular individual or otherwise, and not be admissible. It was also statement of the deceased was rightly admitted by the Court
observed that “circumstances of the transaction” is a phrase which, below under Section 32(1) of the Act.
undoubtedly, conveys some limitations. The phrase is not as broad as
the analogous use in “circumstantial evidence” which includes
evidence of all relevant facts. The phrase “circumstances of the
transaction’ is narrower than res gestae. Circumstances must be
proximate relations to the actual occurrence. 217 218

• The Court summarized the legal position as under:

KHUSHAL RAO VS. STATE OF BOMBAY,
AIR 1958 SC 22 – (1)that it cannot be laid down as an absolute rule of law that a dying declaration
cannot form the sole basis of conviction unless it is corroborated;
• It was probably the first leading case decided by the Supreme Court on – (2)that each case must be determined on its own facts keeping in view the
admissibility of dying declaration. circumstances in which the dying declaration was made;
• In that case, the accused was convicted by the Court relying on three dying – (3)that it cannot be laid down as a general proposition that a dying declaration is a
declarations recorded by the attending doctor, Sub-Inspector of Police and weaker kind of evidence than other pieces of evidence;
First Class Magistrate. – (4)that a dying declaration stands on the same footing as another piece of
evidence and has to be judged in the light of surrounding circumstances and with
• It was contended before the Supreme Court on behalf of the accused relying
reference to the principles governing the weighing of evidence;
on conflicting views expressed by various High Courts that no conviction can
– (5)that a dying declaration which has been recorded by a competent magistrate in
be recorded solely on the basis of dying declaration. the proper manner, that is to say, in the form of questions and answers, and, as far as
• In this case (Khushal Rao vs. State of Bombay, AIR 1958 SC 22) the Court practicable, in the words of the maker of the declaration, stands on a much higher
specifically dealt with the evidentiary value of dying declarations. footing than a dying declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory and human character; and
– (6)that in order to test the reliability of a dying declaration, the Court has to keep in
view, the circumstances like the opportunity of the dying man for observation, for
example, whether there was sufficient light if the crime was committed at night;
219
whether the capacity of the man to remember the facts stated had not been 220
impaired at the time he was making the statement, by circumstances beyond his
control;
Deepak Kumar. HNLU Rpr 2 November 2022

Object for admissibility of dying

CASE LAWS RELATING TO DYING-DECLARATION
declaration
• Law regarding dying-declaration can be summed up
NECESSITY as under:
The first one is necessity principle. The
dying man himself being the true
witness and sometimes the only witness – 1.There is neither rule of law nor of prudence that dying-declaration cannot be
or at least the principal witness of the acted upon without corroboration; (Munna Raja vs. State of M.P., 1976 (3) SCC 104).
cause or circumstances leading to his
sad demise, his statements though not SERIOUSNESS – 2.If the court is satisfied that the dying declaration is true and voluntary it can base
subject to oath and cross-examination conviction on it, without corroboration; (State of U.P. vs. Ham Sagar Yadav, 1985 (1)
must be paid judicial consideration are SCC 552 and Ramawati Dew vs. State of Bihar, 1980 (1) SCC 211).
regard, it deserves. – 3.The court has to scrutinize the dying declaration carefully and must ensure that the
Solemnity of occasion is declaration is not the result of tottering prompting of imagination and the deceased
another principle on which had opportunity to observe and identify the assailants and was in a fit state to make
the dying declaration has the declaration (K. Ramachandra Reddy vs. Public Prosecutor, 1976 (2) SCC 618).
been made admissible in
evidence.

221 222

• 4.Where dying-declaration is suspicious it should not be acted upon

without corroborative evidence; (Rasheed Begam vs. State of • 8.Merely because it is a brief statement it is not to be discarded. On
M.P., 1974 (4) SCC 264). the contrary, the shortness of the statement itself guarantees truth;
(Surajdeo Oza vs. State of Bihar, AIR 1979 SC 1505).
• 5.Where the deceased was unconscious and could never make any • 9.Normally the court in order to satisfy whether deceased was in a fit
dying-declaration, the evidence with regard to it is to be rejected; mental condition to make the dying-declaration looks up to the
(Kake Singh vs. State of M.P., AIR 1982 SC 1021). medical opinion. But where the eyewitness has said that the
deceased was in a fit and conscious state to make this dying
• 6.A dying-declaration which suffers from infirmity cannot form the declaration, the medical opinion cannot prevail; (Nanuhau Ram vs.
basis of conviction; (Ram Manorath vs. State of U.P., (1981) 2 SCC State of Madhya Pradesh, AIR 1988 SC 912).
654). • 10.Before statements can be admitted under Section 32(1), it must
• 7.Merely because a dying-declaration does not contain the details be proved that the makers of these statements are either dead or for
any other reason are not available as witness. Dying-declaration
as to the occurrence, it is not to be rejected; (State of Maharashtra would not lose its value on the ground that the deceased survived
vs. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617). long after making dying declaration; (Najjam Faraghi vs. State of
W.B., AIR 1998 SC 682).

223 224
Deepak Kumar. HNLU Rpr 2 November 2022

Dying declaration made to a police officer QUESTION

ANSWER
FORM
Where the dying declaration was not
recorded in question-answer form, it
was held that it could not be
discarded for that reason alone. A
statement recorded in the narrative
FORMS
• A dying declaration made to a police officer is admissible in may be more natural because it
may give the version of the incident
evidence, however, the practice of dying declaration being as perceived by the victim.
recorded by an investigating officer has been discouraged and the
GESTURES AND
Court has urged the investigating officers to avail the services of a SIGNS FORM
Magistrate for recording dying declaration if it was possible to do so
and the only exception is when the deceased was in such a Queen-Empress vs. Abdullah, ILR (1885) 7 All 385.
precarious condition that there was no other alternative left except Facts of the case: The throat of a victim (declarant) was cut,
the statement being recorded by the investigating officer or the and she being unable to speak, indicated the name of the
accused by the signs of her hand. The question before the
police officer, later on relied on as dying declaration. court was as to whether her statement was relevant as dying
declaration under Section 32(1) of the evidence Act.
• In Munnu Raja vs. State of M.P., AIR 1976 SC 2199 the Court observed:
Held: Dying declarations can be made by signs. The majority
– “Investigating officers are naturally interested in the success of the investigation and view was that evidence of the victim was relevant as dying
the practice of the investigating officer himself recording a dying declaration during declaration. In this dissenting judgement Mahmood, J. took
the course of an investigation ought not to be encouraged.” the view that in the instant case the statement made by signs
was not relevant as dying declaration. According to him, the
evidence of the victim was relevant under Section 8 of the
Act.
225 226

Relevancy of certain evidence for proving the truth of

Dying declaration to his relatives facts in subsequent proceeding (section 33)
• In Bable vs. State of Chhattisgarh, (2012) 11 SCC 181, it was SCOPE AND PRINCIPLE
held that the dying declaration made by the deceased to his • Sometimes it may happen that a witness did appear before the court
relative cannot be lost sight of by the Court. To the rule of and his depositions were duly recorded in judicial proceeding where
inadmissibility of hearsay evidence, oral dying declaration is the opposite party exercised rights and opportunities to cross-
an exception. The dying declaration in this case is reliable, examine him.
cogent and explains the events that had happened in their
• However, when he died and could not be found at the later stage of
normal course which was not only a mere possibility but leaves
the same proceeding or in any subsequent proceeding between the
no doubt that such events actually happened as established
parties and on the same issues involved therein; the deposition given
by the prosecution. Once there exists reliable, cogent and
by the witness in the previous proceeding is relevant under Section
credible evidence against one of the accused, the mere
33.
acquittal of other accused will not frustrate the case of the
prosecution. • It applies in civil suit as well as in criminal cases.

227 228
Deepak Kumar. HNLU Rpr 2 November 2022

MODULE 5
Judgement of court when relevant
• Sec. (40-44)
• Relevancy of opinion
• Opinion of third person when relevant: Expert Testimony (s. 45-51)
• Character when relevant (s. 52-55)

Such secondary evidence can be

used if that proceeding was
between the same parties or their
representative in interest.

229 230

GENERAL Section 11
• Sections 40-44 deal with the relevancy of judgments of courts of CPC. Res
justice. judicata
• SECTION 40 enacts that the existence of any judgment, order or
RELEVANCY OF JUDGMENTS OF
no court will
decree which by the law, that is, by the provisions of the Civil have the
Procedure Code or Criminal Procedure code (i.e. judgments in power to try

COURTS OF JUSTICE support of a plea of Res Judicata, in civil case or of autre fois
acquit or autre fois convict, in criminal cases, constitutes Res
any fresh suit
or issues
which has
(SECTIONS 40-44)
Judicata, that is, bars a second suit or trial is a relevant fact.
been
• SECTION 41 deals with what is usually called judgments in rem, that already
is, judgments which are conclusive not only against parties to settled in the
them, but against the entire world. The section does not however, former suit
give any definition of the term judgment in rem, but only between
enumerates four classes of judgments. the same
parties.

231 232
Deepak Kumar. HNLU Rpr 2 November 2022

• SECTION 42 deals with the admissibility of judgments relating to

matters of public nature, though not between the parties or
privies, without making any distinction between the words
“public” and ”general”.
• PREVIOUS JUDGMENTS RELEVANT TO
• SECTION 43 says that judgments other than those mentioned
in Sections 40-42 are irrelevant unless the existence of such BAR
judgments is a fact in issue or is relevant under some other
provisions of the Act.
A SECOND SUIT OR TRIAL
• SECTION 44 says that when any judgment, order or decree has (SECTION 40)
been received under Sections 40-42, the adverse party may
show that it was obtained by fraud or was delivered by a
court without jurisdiction. Judgments vitiated by fraud can
therefore be challenged under Section 44 without bringing a
suit to set them aside.
233 234

DOCTRINE
• Section 40 of the Act provides for previous judgments relevant • The basic objective of incorporating this principle is to prevent
to bar a second suit or trial. multiplicity of suits and interminable disputes between the litigants.
Once there has been judgment, order or decree about fact and
• It states that the existence of any judgment, order or decree laws no subsequent proceeding would be started. The doctrine of res
which by law prevents any Courts from taking cognizance of judicata rests upon the maxim nemo debet bis vexari pro una et
a suit or holding a trial is a relevant fact when the question is edem cause (No man ought to be tried twice for the same cause of
action).
whether such Court ought to take cognizance of such suit, or
• Section 40 provides for the admission of the evidence consisting of
to hold such trial. judgements, orders, or decrees for showing that a pending suit or trial
• It applies to both civil and criminal proceedings. is banned either under the civil or criminal procedure code and then
the courts do not proceed with it or take cognizance of it. It is based
on public policy. It provides that it is the interest of the state that the
litigation should be end.

235 236
Deepak Kumar. HNLU Rpr 2 November 2022

• It provides that the court should not try a suit in which there is judgment
tried by the same court between the same parties and on same cause of
action. Res judicata in civil suit provides that facts actually decided in a
previous suit by a competent court cannot be again agitated by the
same parties. A judgment of the previous suit is conclusive proof in the
subsequent suit.
• Under Section 40 of the Act, previous judgments are admissible in support
of a plea of res judicata in civil cases or of autre fois acquit or autre
fois convict in criminal cases. (K.G. Premshanker vs. Inspector of
Police, (2002) 8 SCC 87).
• Res judicata means a suit is already adjudicated upon or a thing upon
which the court has exercised its judicial mind. Section 11 of the Civil
Procedure Code lays down the rule of Res judicata. Section 40 is
intended to refer to judgment inter parties and not to the judgment
mentioned in Section 41.

237 238

Chand Dhawan vs. Jawaharlal

Dhawan, (1993) 3 SCC 406).
• Section 41 deals with what is usually called judgments in • Section 41 of the Evidence Act provides that a final judgment,
rem, that is, judgments which are conclusive not only against order or decree of a competent court in the exercise of
parties to them, but against the entire world. The section does matrimonial jurisdiction, which confers upon or takes away
not however, give any definition of the term judgment in from any person any legal character, or which declares any
person to be entitled to such character, is relevant. And that
rem, but only enumerates four classes of judgments. such judgment, order or decree is conclusive proof as to the
conferral, accrual, or taking away of such legal character
from a point of time as declared by the court. Such judgments
are known as judgments in rem, binding the whole world. But
the judgment of that kind must have done something positive,
onwards. This provision is indicative of the quality of
matrimonial jurisdiction.
239 240
Deepak Kumar. HNLU Rpr 2 November 2022

Section 42
• Section 41 consists of two parts: • RELEVANCY AND EFFECT OF JUDGMENT, ORDER OR DECREES, OTHER THAN
– (i)The first part makes the final judgement order or decree of a THOSE MENTIONED IN SECTION 41
competent cont in the exercise of probate, matrimonial, • Under Section 42, judgments, orders or decrees other than
admiralty or insolvency jurisdiction. those mentioned in Section 41 are relevant if they relate to the
– (ii)The second part makes the judgement conclusive proof in matters of public nature whether between the same parties or
certain matters not.
• Section 41 of the Evidence Act would become • For example, customs, tolls on public highway, tolls on
applicable only when a final judgment is rendered. ferry etc. This section is also an exception to the general rule
that no one should be affected by a judgment to which he is
not a party.

241 242

Section 43
• JUDGMENT ETC., OTHER THAN THOSE MENTIONED IN SECTION 40 TO 42 • The object of enacting Section 43 is of two folds:
WHEN RELEVANT
– (i)to treat every case a class by itself so that the judgment
• Section 43 provides that ifjudgment is not relevant under
Sections 40, 41 or 42 it will not be relevant unless the judgment delivered in one case may not be availed of by parties in
itself is a fact-in-issue or is a relevant under some other another case; and
provisions of the Act. – (ii)to maintain the independence of courts by preventing
• ection 43 expressly contemplates cases in which a judgment the parties from submitting before the court hearing their
itself is fact-in-issue or is relevant fact, being admissible except case the judgments of other courts.
Sections 40, 41 and 42. The illustrations appended to the
section show that judgments have become relevant under
some other provisions of the Act.

243 244
Deepak Kumar. HNLU Rpr 2 November 2022

Section 44 RELEVANCY OF OPINION

• Section 44 says that when any judgment, order or decree has
been received under Sections 40-42, the adverse party may
• Opinion of third person when relevant:
show that it was obtained by fraud or was delivered by a Expert Testimony (s. 45-51)
court without jurisdiction. Judgments vitiated by fraud can
therefore be challenged under Section 44 without bringing a
suit to set them aside.

245 246

• The general principle of the law of evidence is that every • Chapter II of the Indian Evidence Act talks about the relevancy of
witness is a WITNESS OF FACT and NOT OF OPINION. opinion of the third person. It is also termed as an expert’s opinion
• A witness, therefore, should speak of what he knows and not which is broadly provided under Section 45- 51 of the act.
of what he believes. • court cannot draw its opinion on the technical matters as well as
• Witnesses are to state the facts only, i.e., what they themselves complicated matters which require the special knowledge of the
saw or heard or perceived by any other sense. person having acquired expertise on the relative field.
• It is the function of the Judge to form their own conclusion or • The Judge is not expected to be an expert in all the fields-especially
opinion on the facts stated. where the subject matters involves technical knowledge.
• The opinion or beliefs of third persons are, therefore, as a • The conditions for the demand of the expertise include the situation
general rule, regarded as irrelevant. They are inadmissible in where the case cannot be solved without the help of the expert. The
evidence as such. witness who is expressing its opinion is an expert of the particular field.

247 248
Deepak Kumar. HNLU Rpr 2 November 2022

• In these circumstances the court needs the help of an expert who is • In cases where the court is not in a position to form a correct
supposed to have superior knowledge or experience in relation to the judgement, without the help of the persons who have
subject matter.
acquired special skill or experience in a particular subject, the
• An expert is a person who devotes his time and study to a special branch help of experts is required.
of learning.
• The Supreme Court of United State of America defined an expert as a • In these cases, the rule is relaxed, and expert evidence is
person who possesses knowledge and experience not possessed by admitted to enable the Court to come to a proper decision.
mankind in general. • Matters of science, art, trade, hand writing, finger impressions
• The Courts in India in their judgments described an expert as a person and foreign law come under this head. The rule admitting
who has acquired special knowledge, skill or experience in any art, trade expert evidence is founded on necessity.
or profession. Such knowledge need not be imparted by any University.
He might have acquired such knowledge by practice, observation or • Section 45 of the Evidence Act recognises the relevancy and
careful study. utility of expert evidence.

249 250

WHEN THE COURT HAS TO FORM AN OPINION Illustrations to Section 45

• (a)The question is, whether, the death of ‘A’ was caused by poison.
The opinions of experts as to the symptoms produced by the poison
by which ‘A’ is supposed to have died, are relevant.
• (b)The question is, whether ‘A’, at a time of doing a certain act, was
by reason of unsoundness of mind, incapable of knowing the nature
of the act, or that he was doing what was wither wrong or contrary
to law.
– The opinions of experts upon the question whether the symptoms exhibited by ‘A’
commonly show unsoundness of mind, usually of mind, and whether such
unsoundness of mind, usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either wrong or contrary to
law, are relevant.
• (c)The question is whether certain document was written by ‘A’.
Another document is produced which is proved or admitted to have
been written by ‘A’.
251 – The opinions of experts, on the question whether the two documents were written 252
by
the same person or by different persons, are relevant.
Deepak Kumar. HNLU Rpr 2 November 2022

Who is an Expert?
Section 45 specifically
mentions the following as
subjects on which an
expert may testify:

The court is not

• Section 45 permits only the opinion of an expert to be given in (1)Any point of bound to follow the
foreign law; opinion of experts.
evidence. This requires determination of the question as to who is an (i)The subject is
such that Before expert
testimony can be
expert. The only guidance is the section is that he should be a person expert
testimony is admitted, two
(2)Any point or things must be
“specially skilled” on the matter. Thus only definition of an expert matter of
necessary;
and
proved namely—
science;
available in the Act is that he is a person specially skilled in the
subject on which he testifies.
(3)Any
• In Abdul Rahman vs. State of Mysore, (1972) CrLJ 407, the opinion of a question of art;
professional goldsmith as to the purity of the gold in question was (ii)That the
witness is
held to be relevant as the opinion of an expert, though he had no (4)Identity of
question in
reality an
formal qualifications, his only qualification being his experience. handwriting; or expert and that
he is a truthful
witness.

(5)Identity of
finger
impressions.
253 254

Foreign law: Science or Art

• Foreign law means any law which is not in force in India. The • Expert opinion is relevant on all questions on points of science or art.
Courts of the Country may not be in a position to appreciate • The terms “science” or “art” have not to be taken in any technical
the principles of a foreign law, and therefore, whenever a sense, but as including anything that requires specialised knowledge,
court had to decide a question of foreign law, the court can skill, study or experience or is otherwise beyond the comprehension
seek the help of those who are experts on the particular of a layman. From this point of view the word “science” does not
merely mean subjects of science study or “art” subjects of fine arts.
foreign law. A law which is in force in India is not foreign law
“The words science, or ‘art’ include all subjects on which the course
even if it is of foreign origin. of study or experience is necessary to the formation of opinion.
• Foreign law may be proved—
– i.By the evidence of a person specially skilled in it (Section 45), or
– ii.By direct reference to books printed or published under the authority of
the foreign Government (Section 38).

255 256
Deepak Kumar. HNLU Rpr 2 November 2022

In Mahadeo Dewanna vs. Vyakammabai, AIR 1948 Nagpur 287 it

was held that under the following situations, assistance of an Identity of handwriting or finger impressions
expert may be had:—
• The opinion of a handwriting expert about the genuineness of
handwriting is relevant under Section 45, but it is not conclusive proof. The
opinion of an expert is not binding upon the judge. An expert can certify
Where the subject-matter of the inquiry is such that the inexperienced
only probability and not hundred percent certainty. The Supreme Court
persons are unlikely to prove capable of forming a correct judgement
upon it without the assistance of experts; or in State of Maharashtra vs. Sukhdev Singh, AIR 1992 SC 2100 has laid
down the principles of judging opinion of handwriting expert
– (i)The science of identification of handwriting is perfect and frail as compared to the
science of identification of finger prints;
Where the subject-matter so far partakes the character of a science or – (ii)The courts have, as a rule of prudence, looked for corroboration before acting on such
art as to require a course of previous habit or study in order to obtain a evidence;
competent knowledge of its nature. – (iii)The genuineness of the specimen handwriting as that of the suspect must be
established;
– (iv)The court must be satisfied that the expert is competent, reliable and dependable;
– (v)The reasons on which the opinion is based must be convincing;
257 – (vi)The court should be slow in reaching its own conclusion by its comparing the disputed
258
handwriting with the specimen handwriting.

Opinion of finger-print expert Ballistic experts

• Examination of finger impressions is a science. A • The ballistic experts may trace out a bullet or
person having skill and knowledge can compare cartridge to the particular weapon from which it
finger impressions with the help of magnifying glass. was discharged.
The evidence given by a finger-print expert need • The science of ballistics may be helpful to ascertain
not necessarily be corroborated and is admissible. the actual distance from which a shot was fired.
• The report of the ballistic expert is admissible in
evidence without calling him as witness.
• When the weapon has not been seized, the
question of examination of ballistic expert would not
259
arise. 260
Deepak Kumar. HNLU Rpr 2 November 2022

• When the Court has to form an opinion as to the person by whom

any document was written or signed, the opinion any person
acquainted with the handwriting of the person by whom it is
OPINION AS TO HANDWRITING WHEN RELEVANT supposed to be written or signed, by that person, is a relevant fact.
•
(Section 47) Section 47 deals with the opinion of persons who are not experts
but the opinion of such person is made admissible. When the court
has to determine the question as to particular handwriting of any
person, it can admit the opinion of an expert, but at the same time it
may also admit the opinion of a person who is acquainted with the
handwriting of that person.

261 262

Illustration to Section 47
• Explanation to Section 47 provides that a person is • The question is, whether a given letter is in the handwriting of
‘A’, merchant in London.
said to be acquainted with the handwriting of
• ‘B’ is a merchant in Calcutta, who has written letters
another person when— addressed to ‘A’ and received letters purporting to be written
– (1)He has seen that person write, or by him. ‘C’ is B’s clerk, whose duty it was to examine and file
– (2)He has received documents a purporting to be written by that B’s correspondence. ‘D’ is B’s broker to whom ‘B’ habitually
person in answer to documents written by himself or under his submitted the letters purporting to be written by ‘A’ for the
authority and addressed to that person; or purpose of advising him thereon.
– (3)In the ordinary course of business, documents purporting to be • The opinions of ‘B’, ‘C’ and ‘D’ on the question whether the
written by that person have been habitually submitted to him. letter is in the handwriting of ‘A’ are relevant, though neither
‘B’, ‘C’ nor ‘D’ even saw ‘A’ write.

263 264
Deepak Kumar. HNLU Rpr 2 November 2022

MODES OF PROVING HANDWRITING OPINION AS TO ELECTRONIC SIGNATURE

(Sections 45, 47, 60 & 73) Section 47-A
(1)By the opinion of experts as to identity of handwriting, that it was signed or written by him
(Section 45).
• Section 47-A of the Act provides for relevancy of
(2)By the evidence of a person acquainted with such handwriting, either by receiving letters expert opinion on the genuineness of electronic
purporting to be written by the person in answer to documents written by the witness or signature.
under his authority and addressed to that person or when, in the ordinary course of
business, documents purporting to be written by that person have been habitually • When the court has to form an opinion as to the
submitted to him (Section 47). electronic signature of any person, then the opinion
(3)By the opinion of any person acquainted with the signature or writing of the person that it
was signed or written by him (Section 47).
of the certified authority which has issued the
(4)By the evidence of the writer himself (Section 60). electronic signature certificate is a relevant fact.
(5)By the admission of the person signing or writing the documents.
(6)By the evidence of another person who has seen him signing or writing the documents
(Section 60).
265
(7)By the Court comparing the document in question with any others proved to the 266

satisfaction of the Court to be genuine (Section 73).

In Fakhruddin vs. State of M.P., AIR 1967 SC 1326,

The EVIDENTIARY VALUE of Expert Evidence Hidayatullah, J. Observed that:
• “Both under Section 45 and Section 47 the evidence is an opinion, in the former by a
An expert scientific comparison and in the latter on the basis of familiarity resulting from frequent
witness is
not wholly observations and experience.
reliable.
• In either case the Court must satisfy itself by such means as are open that the opinion
may be acted upon. One such means open to the court is to apply its own observation
The to the admitted or proved writings and to compare them with the disputed one, not to
evidence
The Court is of expert is become an handwriting expert but to verify the premises of the expert in the one case
expert’s an and to appraise the value of the opinion in the other case.
expert. advisory/O
PENION in • This comparison depends on an analysis of the characteristics in the admitted or proved
nature. writings and the finding of the same characteristics in large measure in the disputed
writing. In this way the opinion of the deponent whether expert or other is subjected to
The court is scrutiny and although relevant to start with becomes probative. Where an expert’s
not bound opinion is given, the court must see for itself and with the assistance of the expert come
to act
upon it. to its own conclusion whether it can safely be held that the two writings are by the same
person. This is not to say that the Court must play the role of an expert but to say that the
court may accept the fact proved only when it has satisfied itself on its own observation
267 that it is safe to accept the opinion whether of the expert or other witness.” 268
Deepak Kumar. HNLU Rpr 2 November 2022

Murari Lal vs. State of M.P., (1980) 1 SCC 704,

• having due regard to the imperfect nature of the science of
identification of handwriting, the approach, as we indicated
earlier, should be one of caution. Reasons for the opinion must CHARACTER WHEN RELEVENT
be carefully probed and examined. All other relevant
evidence must be considered. In appropriate cases, (SECTIONS 52-55)
corroboration may be sought. In cases where the reasons for
the opinion are convincing and there is no reliable evidence
throwing a doubt, the uncorroborated testimony of a
handwriting expert may be accepted. There cannot be any
inflexible rule on a matter which, in the ultimate analysis, is no
more than a question of testimonial weight.

269 270

• The relevancy of a character of the parties is basically based on

a thread that the business of the court is to try the case and not
the man; and a very bad man may have a very righteous cause.
The reason is that the court is to try the case on the basis of facts
not on the basis of ‘good’ or ‘bad’ character of the parties.
• Sections 52 to 55 provide for relevancy of character of the parties • character is a combination of the peculiar qualities impressed by nature
to the proceeding. Section 52 refers to the relevancy of or by habit of the person, which distinguish him from others”. Character
means the collective qualities or characteristics especially mental and
character of parties to the civil suit and not the character of moral, which distinguish a person or thing. Character is the estimation of
witnesses, whereas Sections 53 and 54 deal with the relevancy of a person by his community.
character in criminal cases, As regards the meaning of the word
‘character’ theexplanation to Section 55 lays down that it
• It is the general principle of law that the evidence of character is not
includes both reputation and disposition. The general rule is that admissible as relevant fact. It is not admissible because it renders the
the Evidence as to the character of a person is irrelevant in a civil conduct imputed as probable or improbable. In civil cases the evidence
case. explanation to Section 55 lays down that it includes both of character to prove conduct imputed is irrelevant. Likewise in criminal
reputation and disposition. cases ‘bad character’ of the accused is not accepted. Nevertheless, the
• The general rule is that the Evidence as to the character of a evidence of character has a role to play in doubtful cases.
person is irrelevant in a civil case.
271 272
Deepak Kumar. HNLU Rpr 2 November 2022

EXCEPTIONS
In CIVIL
In CRIMINAL cases
proceedings
• evidence of • the fact that a
character as person accused
affecting of an offence is
damages is good character, is
admissible; relevant.
273 274

RELEVANCY OF CHARACTER IN CIVIL

CASES [SECTION 52, 55]
• In civil cases character to prove conduct imputed, irrelevant • When character appears from other relevant
[Section 52] evidence [Section 52]: Section 52 last line provides
• Section 52 lays down the general rule that the evidence of a that "except in so far as such character appears
party's character cannot be given for the purpose of showing from facts otherwise relevant." The court is free to
that it renders the conduct imputed to him as probable or form an opinion as to the character of a person on
improbable.→ the basis of relevant facts proved in the case.
• Thus, it provides the character to be irrelevant absolutely in • When character of a person is itself on issue: This
civil case.
relevancy is drawn form Section 5 which state sthat
• In Hollington v. Hewthron & Co. Ltd, it was held that evidence evidence may be given of facts in issue.
cannot be given of a previous conviction for careless driving
arising out of the same accident for which civil action is
brought. 275 276
Deepak Kumar. HNLU Rpr 2 November 2022

CHARACTER AS AFFECTING DAMAGES

Exceptions to the general rule [SECTION 55]
• Section 55 provides that in civil cases, the fact that
•1.When character is in issue. Evidence can be given when a party’s
character is itself a fact in issue. For example, a suit for libel or a divorce the character of any person is such as to affect the
suit.
•2.Character as to affect damages. When the character of any person is
such as to affect the amount of damages which he ought to receive, is
amount of damages which he ought to recieve is
There are exceptions to the
relevant. In mitigating damages the evidence of character is relevant.
•3.When character became issue from other relevant fact. The facts
relevant.
rule that character is which are otherwise relevant, are relevant (Section 11) can be taken
irrelevant unless it is in issue. into account if the court forms an opinion that the character of the
party might have been guilty of conduct imported to him or he might
• Hence, under Section 55 the good or bad
not be worthy of credit,
character of plantiff [not defendant] is relevant in
calculating the amount of damages to be granted
to him.
• Section 55 is an exception to the general rule
277 contained is Section 52 that character is irrelevant278

in civil cases.

Evidence of bad character of the accused is The distinction between reputation and
irrelevant. EXCEPT— disposition is as under:

(c)A previous i. Reputation means iv.General reputation

(b)Where his bad (d)Evidence of
(a)To rebut the conviction is relevant the general credit of ii.Reputation is what iii.A man may be is a sort of common
character is itself a character is a very
evidence of good as evidence of bad the person among other people think reputed to be a adjective to all, while
fact in issue weak type of
character. characteristics the public but about him while good man but in disposition of a man
(Explanation I). evidence.
(Explanation II). disposition means the disposition is what he reality he may have may depend upon
inherent qualities of a is in reality. a bad disposition. many traits, some
person. good and some bad.

279 280
Deepak Kumar. HNLU Rpr 2 November 2022

Explanation to Section 55
• In Sections 52, 53, 54 and 55 the words "character" includes both
reputation and disposition; but (except as provided in Section 54),
evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or
disposition are shown. IN CRIMINAL CASES WHEN CHARACTER IS
• Character defined: Character is 'combinations of peculiar qualities
impressed by nature or by the habit of the person, which distinguish RELEVANT
him, form others ‘ (Sections 53 and 54)
• Reputation: Reputation is what is thought of a person by others and is
constituted public opinion.
• Disposition: Disposition is when a person gives account of another's
character based on his ownpersonal experience and observation.

281 282

Relevancy of character in
criminal cases [Sections 53, 54]
• According to Section 53 of the Act — In criminal cases
evidence of good character of the accused is always
relevant.
• Evidence of bad character of the accused person (of whose
bad character evidence has not been given) is not relevant
Section 53 provides that in
Section 54 provides that in
The general rule is that in under this section, for the purpose of raising a general
criminal proceedings, the criminal proceedings good
fact that the person
criminal proceedings the
character of the accused is inference that the accused is likely to have committed the
fact that the accused has a
accused is of a good
bad character is irrelevant.
relevant while his bad offence. Such evidence is irrelevant and cannot be legally
character is relevant. character is irrelevant.
admitted in evidence whether elicited by the prosecutor or by
the defense.
• In criminal cases bad character of the accused is irrelevant
283 unless evidence was given that he was of bad character. 284
Deepak Kumar. HNLU Rpr 2 November 2022

Evidence of bad character of the

accused is irrelevant. EXCEPT—
• Bad character of accused is relevant in criminal proceedings
• When evidence of good character has been adduced by the
accused, the evidence of bad character can be given by the
(a)To rebut the
(b)Where his bad
(c)A previous
conviction is relevant
(d)Evidence of prosecution [Section 54]
character is itself a character is a very
evidence of good
character.
fact in issue
as evidence of bad
characteristics
weak type of • When the bad character of a person is itself a fact in issue
(Explanation I). evidence.
(Explanation II). [Section 54 explanation 1]
• A PREVIOUS CONVICTION is relevant as evidence of bad
character [Section 54 explanation 2]. There fore, bad
character can be proved by previous conviction.

285 286

Evidence of character of previous sexual intercourse is Circumstantial Evidence

not relevant in certain cases [Section 53A]
If a witness testifies that he saw a
defendant fire a bullet into the body of a
• Section 53A provides that in a prosecution for offence under person who then died, this is direct
testimony of material facts in murder,
Sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376AB, 376B, and the only question is whether the
witness is telling the truth.
376C, 376D, 376DA, 376DB, 376E of Indian Penal Code or or an
attempt to commit any such offence, where the question of • Not drawn from direct observation
consent is in issue, evidence of the character of the victim or • Different pieces of circumstantial evidence may be required,
If, however, the witness is able to testify
only that he heard the shot and that he
of such person's previous sexual experience with any person so that each corroborates the conclusions drawn from the arrived on the scene seconds later to
see the accused standing over the
others.
shall not be relevant on the issue of such consent or the corpse with a smoking pistol in his hand,
the evidence is circumstantial; the
• Circumstantial evidence is especially important when there is accused may have been shooting at
quality of consent. little or no direct evidence. the escaping killer or merely have been
a bystander who picked up the weapon
• Section 53A was inserted by Act 13 of 2013 (w.e.f 3-2-2013). • Circumstantial evidence is used in criminal courts to after the killer had dropped it.
establish guilt or innocence through reasoning.

287 288
Deepak Kumar. HNLU Rpr 2 November 2022

Forensic evidence supplied by an expert witness is usually treated as circumstances not related directly to the crime but they indirectly
circumstantial evidence. For example, a forensic scientist or forensic
engineer may provide results of tests indicating that bullets were fired from a
point at the crime
defendant's gun, or that a car was traveling over the speed limit, but not
necessarily that the defendant fired the gun or was driving the car. • A was observed in the laneway where the B was robbed and
murdered.
• A was then observed burying what turned out to be a quantity of
money, approximately the same as had been stolen.
• these two inferences are pretty coincidental.

289 290

291 292
Deepak Kumar. HNLU Rpr 2 November 2022

MODULE 6 Circumstantial Evidence

• It is one of the stated principles of law that a witness may lie but not the
circumstances.
• Circumstantial Evidence attempts to prove the facts in issue by providing
PROOF other facts and affords an instance as to its existence.
• It is that which relates to a series of other facts than the fact in issue but by
experience have been found so associated with the fact in issue in relation of
cause and effect that it leads to a satisfactory conclusion.
primary and Public and • Direct Evidence of a fact may not always be available.
private Exclusion of oral
Oral(Sec. 59-60), secondary by documentary • Criminals often operate the offence secretly and leave no trail of evidence
documentary(61- evidence documents (s. 74 behind. In such cases, the main event can only be reconstructed before the
and 75) evidence (s. 91
90A) , (Section 59- 65) and 92) court with the help of the surrounding circumstances.
• Circumstances sometimes speak as forcefully as some direct evidence. Facts
may reasonably be inferred from the circumstances.
• Likewise, certain facts can be safely presumed as a matter of probability.
293 Such presumptions may be based on circumstances. 294

EVIDENTIARY VALUE OF CIRCUMSTANTIAL RULES APPLICABLE TO CIRCUMSTANTIAL

EVIDENCE EVIDENCE
• In case of circumstantial evidence, there is always a danger
of conjecture or suspicion taking the place of legal proof.
• However, it cannot be said that the circumstantial evidence is
a weaker type of evidence. The circumstances
All the facts so Circumstances
The circumstances established should be should be such, such
• Thus, where the chain of evidence is so far complete as not to from which the
conclusion of guilt is
should be of a consistent only with as to exclude every
certain and the hypothesis of the hypothesis but the
leave any reasonable ground for a conclusion consistent with to be drawn should
conclusive nature; guilt of the accused; one proposed to be
be fully established;
the innocence of the accused and the chain of evidence and proved.

shows that within all human probability, the act must have
been done by the accused, it can form the sole basis of
conviction.

295 296
Deepak Kumar. HNLU Rpr 2 November 2022

Padala Veera Reddy vs. State of A.P., Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116
AIR (1990) SC 79,

it was laid down that when a case rests upon circumstantial evidence, such a three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of
evidence must satisfy the following tests: a case based on circumstantial evidence. The Court laid down the following five tests to be satisfied in a
case based on circumstantial evidence:

• (1)the circumstances from which an inference of guilt is sought to be drawn,

must be cogently and firmly established; (1)The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
• (2)those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused; (2)The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that
• (3)the circumstances, taken cumulatively, should form a chain so complete the accused is guilty.
that there is no escape from the conclusion that within all human probability
the crime was committed by the accused and none else; and (3)The circumstances should be of a conclusive nature and tendency.

• (4)the circumstantial evidence in order to sustain conviction must be complete

and incapable of explanation of any other hypothesis than that of the guilt of (4)They should exclude every possible hypothesis except the one to be proved,
and
the accused and such evidence should not only be consistent with the guilt of
the accused but should be inconsistent with his innocence.” (5)There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human probability
the act must have been done by the accused.

297 298

ORAL EVIDENCE Importance of Oral Evidence

• Oral Evidence is dealt with under Section 59 and 60 of the
Evidence Act, 1872. While receiving oral evidence great
Care must be exercised. The Court must
• Oral evidence is defined under section 3 (under evidence head) sift the evidence, separate grain from
which explains that “All statements which the court permits or chaff and accept what it finds to be
true and reject the rest. The real test for
requires to be made before it by witnesses, in relation to matters accepting or rejecting the evidence is:
of fact under inquiry, such statements are called as oral
evidence.”
• The word ‘Oral’ itself describes its meaning as something spoken
or expressed by mouth; so anything which is accepted in the
court in relation to the inquiry and expressed by any witnesses
who are called in the trial is termed as oral evidence. How consistent the story is with How it stands the test of cross
How far it fits in with the rest of
the evidence and the
• Oral Evidence also includes the statements made by people in itself. examination; and
circumstances of the case.
signs and writing forms (inclusive of people who cannot speak).

299 300
Deepak Kumar. HNLU Rpr 2 November 2022

SECTION 59 – Proof of facts by Oral Evidence

Bhima Tima Dhotre v. The pioneer
chemical co.
• All the facts and circumstances may be proved by oral • “Documentary evidence becomes meaningless if
evidence by expressing or speaking except the contents of the writer has to be called in every case to give oral
documents and electronic records. evidence of its contents. If that were the position, it
• The contents of documents and electronic records cannot be would mean that, in the ultimate analysis, all
proved by oral evidence. evidence must be oral and that oral evidence
• It is held that if any person has to be called for proving their would virtually be the only kind of evidence
documents then that document becomes oral and recognised by law. This provision would clearly
documentary evidence loses its significance. indicate that to prove the contents of a document
• All facts may be proved by ORAL evid. Except contents of by means of oral evidence would be a violation of
document. that section.”
301 302

SECTION 60 – ORAL EVIDENCE MUST BE

DIRECT DIRECT ORAL EVIDENCE
• This is the cardinal principle of any evidence to be admissible in
the court. If any oral evidence needs to be admissible, all the • Oral Evidence must be direct in all cases.
conditions under Section 60 of the Indian Evidence Act must be Indirect ways or hearsay is not considered a
fulfilled. If anyone of the following conditions is not fulfilled, then
the evidence will fail to be pictured as an Oral Evidence. Oral part of direct oral evidence. The word
evidence and section 60 is a proportional equation. For acting
out one, the other needs to be fulfilled. “Direct” in all matters must mean that it is
• The base principle on which section 60 is placed is that the administered by any person on their own i.e
evidence which is taken into regards must be direct. The word
direct does not include any category of hearsay as its main through their personal knowledge and is not
element is vested in the word “must”. Every statement under oral
evidence must be direct. Now let’s focus on some conditions
passed by any other person (hearsay) which
which need to be fulfilled to make oral evidence admissible; on the other hand will be inadmissible.

303 304
Deepak Kumar. HNLU Rpr 2 November 2022

This involves certain cases in which the

word “direct” is involved
It refers to a fact which It refers to a fact which It refers to a fact which could If it refers to an opinion or to
could be SEEN, it must could be heard, it must be perceived by any other grounds on which that opinion
senses or any other manner, it is held, it must be the
be the evidence of a be the evidence of a must be the evidence of evidence of the person who
witness who says he saw witness who says he person who says he perceived holds that opinion on those
it – heard it – it by that sense or manner – grounds –

It means when a person holds

It refers to evidence which has been It refers to evidence which has been Meaning such evidence that has any opinion on any matter or
given by the person who has actually given by the person who was present been given by the person who incident, only his testimony on the
seen or observed the matter by their own and has actually heard the matter by has perceived it in any other ground of which his opinion is
eyes, This will be actuated as direct themselves, this will come under direct
evidence.For example: if A saw that B is evidence.For example: if A overheard B’s
manner or by any other senses formed will be admissible in the
hitting C. A will be an eyewitness to the conversation that stated; that he is going but it has been perceived by that court.For example A thinks that B
crime scene and his testimony will be to kill C tomorrow under the bridge, A’s person itself. For example: is not a good guy, so his
that of direct evidence. testimony will be that of direct evidence. through sense of smell or taste. testimony of that opinion will be
termed under direct evidence.

305 306

Admissions

• All of us are aware of what hearsay is; hearsay is any

Confessions
information which is received by any person from any other
source. Hearsay means when a person does not have a Statements
of persons
personal knowledge about a particular matter or incident and dead (dying
declarations)
he has been informed about that particular matter by any
EXCEPTION
other person. S TO THE
RULE OF Entries in books of
• As oral evidence includes first-hand knowledge thus, Hearsay HEARSAY account kept in the
course of business
evidence is excluded under the ambit of oral evidence Entries in public registers or
because hearsay is not directly obtained evidence. record

• Hearsay evidence is the indirect evidence which does not Res Gestae

come from the knowledge from the person who has given the
evidence but rather from someone else. It is hearsay evidence Conspiracy

if the witness says that he himself did not hear or see the fact Evidence in the
on which the evidence is being presented but rather he heard former
proceeding
307 308
from someone else. Thus, hearsay evidence is an exception to
Deepak Kumar. HNLU Rpr 2 November 2022

Rationale behind the exclusion of Hearsay BASIS ORAL EVIDENCE DOCUMENTARY EVIDENCE
Evidence
MEANING Oral evidence is the evidence given by Documentary evidence, on the other
witnesses who are called in the court in hand, is the evidence which is submitted
• Hearsay Evidence is second-hand knowledge. But why is it regards to the trial orally. in the court in written form including
excluded from oral evidence? documents, papers etc.
• For oral evidence to be admissible it only accepts the rule of
first-hand knowledge. It only includes what is directly seen,
heard and perceived by a person. There is no room for LEGALLY Oral evidence is mentioned under Documentary evidence is dealt from
second-hand knowledge. A conviction passed on hearsay DEFINED section 59 and 60 of the Indian Evidence section 61 to 66 of the Indian Evidence
may be truly unjustified as there is no reliability as to whether Act. Act.
the person who has passed on the following information is TYPES Oral evidence should be given direct Documentary evidence has direct
credible enough or not. For example: if A has received form. documents and secondary documents.
information through B that he saw C hitting D. This will be
hearsay because A himself has not administered the incident.
For this reason, Hearsay has been excluded from Oral FORMS OF Oral evidence can be given through Documentary evidence must be given in
Evidence. SUBMISSION speaking, signs or gestures writing.

309 310

Oral evidence Documentary evidence CHAPTER 5 – OF DOCUMENTARY EVIDENCE

Documentary evidence means producing a document before
Oral evidence means and includes all statements which are
the court of law and inspection is done by the court in order to
made by a witness in the court.
know the facts. PRIMARY
EVIDENCE.
It is a statement by a witness. It is a statement of documents.
SECTION 61 – The contents of
In oral evidence, the witness tells about the facts by speaking
or with gestures.
In documentary evidence, the facts are told and it is recorded
in writing. Proof of contents of documents may be
documents proved either by
Oral evidence is provided under Section 59 and 60 of Indian Documentary evidence is provided under Section 61 to 66 of
Evidence Act, 1872. the Indian Evidence Act. SECONDARY
Primary evidence is considered as the evidence which is
EVIDENCE.
given in several parts like duplicate copies or as counterpart
Section 59 of the evidence says that it considers all facts as like those which is signed by the parties or photocopy of the
oral evidence except electronic evidence and documentary document whereas, Secondary evidence contains certified
evidence. Section 60 says that oral evidence must be direct. copies, that have been made by the same mechanical
process and also contain counterparts of the document
against the parties. •Section 61 of the Act is mere a declaratory provision.
•When primary evidence is not available secondary evidence may be
For example- any crime has been committed by a Ram and
there is a person available at the movement then whatever he permitted by the court to prove the contents of document.
For example- a photocopy of a document or photograph.
heard, sees, perceive, or forms an opinion all this is considered •There is no other method of proving the contents of document.
as oral evidence.
311 312
Deepak Kumar. HNLU Rpr 2 November 2022

Section 62 – Primary evidence Primary evidence means the DOCUMENT ITSELF

• Primary evidence means the document itself • Primary evidence means the original document itself produced for the inspection
of the court.
produced for the inspection of the Court. • It is the best evidence or that kind of proof which under any possible
– Explanations circumstances, affords the greatest certainty of the fact in question; and it is
• Where a document is executed in several parts, each part is primary evidence illustrated by the case of a written document, the instrument itself regarded as the
of the document; Where a document is executed in counterpart, each primary or best possible evidence of its existence and contents.
counterpart being executed by one or some of the parties only, each • The primary evidence means the document itself produced for the inspection of the
counterpart is primary evidence as against the parties executing it.
court.
• Where a number of documents are all made by one uniform process, as in the
case of printing, lithography, or photography, each is primary evidence of the • ‘A’ executes a sale-deed in favour of ‘B’ for Rs. 10000. ‘B’ files a suit for the
contents of the rest; but, where they are all copies of a common original, they possession of the property on the basis of the sale-deed mentioned above. A denies
are not primary evidence of the contents of the original. to have executed the sale-deed. ‘B’ produces the very sale-deed before the court.
– Illustrations This is the best evidence and so is the primary evidence of the contents of the
A person is shown to have been in possession of a number of placards, all printed at document.
one time from one original. Any one of the placards is primary evidence of the • All evidence falling short of this in its degree is termed SECONDARY.
contents of any other, but no one of them is primary evidence of the contents of the • The primary evidence is that evidence which is produced in the court there
original.
remains nothing better to be produced.
313 314

Documents executed in several parts

The first part of Explanation 1 to Section 62 lays down that where a document is executed in several parts, each part is primary evidence of the document. For example, three persons namely, ‘A’, ‘B’ and ‘C’,
they partitioned their property in three equal shares. Partition deed is to be executed and registered. All of them want to have one document with them. The three deeds each describing the distinct shares of
the partners will be prepared and signed by all and each one of them. All the three deeds will be original. Each of the three deeds will be a primary evidence of the contents of the deed.
Section 63 – Secondary evidence
• Secondary evidence means and includes—
– Certified copies given under the provisions hereinafter
Documents executed in counter parts • Illustrations
contained1; – A photograph of an original is secondary evidence of its
contents, though the two have not been compared, if it is
proved that the thing photographed was the original.
Part 2 of the Explanation 1 to Section 62 lays down that where a document is executed in counterparts and each counterpart is executed by one of the parties to the deed, each counterpart is a primary – Copies made from the original by mechanical processes – A copy compared with a copy of a letter made by a copying
evidence against the party executing it and secondary against the other party. A common instance of a document in parts is a patta and Qabuliat.
machine is secondary evidence of the contents of the letter if it
which in themselves insure the accuracy of the copy, is shown that the copy made by the copying machine was
made from the original.
– A copy transcribed from a copy, but afterwards compared with
and copies compared with such copies; the original, is secondary evidence; but the copy not so
compared is not secondary evidence of the original, although
the copy from which it was transcribed was compared with the
Documents made by one uniform process – Copies made from or compared with the original; original.
– Neither art oral account of a copy compared with the original,
nor an oral account of a photograph or machine copy of the
Explanation 2 to Section 62 lays down that when a number of documents are prepared by one uniform process (such as printing, lithography, or photography) each is primary evidence of the contents of – Counterparts of documents as against the parties who original, is secondary evidence of the original.
other. Thus, where a person is shown to have been in possession of a number of placards printed at one time, any one of the placards is primary evidence of the contents of any other.

did not execute them;

– Oral accounts of the contents of a document given by

Where a number of documents are all copies of a common original some person who has himself seen it.

Explanation 2 to Section 62 lays down that where a number of documents are all copies of a common original, they are not primary evidence of the original. Thus, where a person is shown to have been in
possession of a number of placards printed at one time, any one of the placards is primary evidence of the contents of any other but no one of them is primary evidence of the contents of the original
(Illustration to Section 62).
315 316
Deepak Kumar. HNLU Rpr 2 November 2022

SECONDARY EVIDENCE
• Secondary evidence is evidence that has been
reproduced from an original document or substituted for • Section 64 – Proof of documents by
an original item.
• For example, a photocopy of a document or
primary evidence
photograph would be considered secondary evidence. • Documents must be proved by
• Courts prefer original, or primary, evidence.
• They try to avoid using secondary evidence wherever primary evidence except in the cases
possible.
• This approach is called the best evidence rule.
hereinafter mentioned.
• Nevertheless, a court may allow a party to introduce
secondary evidence in a number of situations.
317 318

• SECTION 65 – CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY CASES IN WHICH SECONDARY EVIDENCE RELATING TO
BE GIVEN DOCUMENTS MAY BE GIVEN(SECTION 65)
• Secondary evidence may be given of the existence, condition, or contents of a
document in the following cases—
– When the original is shown or appears to be in the possession or power—
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to,
the process of the Court, or
of any person legally bound to produce it, • Section 65 of the Act provides for seven cases in which
and when, after the notice mentioned in section 66, such person does not produce it;
– when the existence, condition or contents of the original have been proved to be admitted in writing by the person secondary evidence is admissible.
against whom it is proved or by his representative in interest;
– when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other • It relates to exceptions to the rule laid down in Section 64.
reason not arising from his own default or neglect, produce it in reasonable time;
– when the original is of such a nature as not to be easily movable; • The principle underlying the section is that when original
– when the original is a public document within the meaning of section 74; document is not available or is destructed or is in the custody
– 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 evidence2; of opposite party or under the control of third person who
– when the original consists of numerous accounts or other documents which cannot conveniently be examined in
Court and the fact to be proved is the general result of the whole collection.
does not produce after notice secondary evidence is
In cases (a), c and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined
them, and who is skilled in the examination of such documents.
319 320
Deepak Kumar. HNLU Rpr 2 November 2022

Secondary evidence may be given of the existence, condition or ADMISSIBILITY OF ELECTRONIC RECORDS AS EVIDENCE
contents of a document in the following cases: (SECTIONS 65A & 65B)
3.When the 7.When the
1.When the original
document is in possession
original has been
destroyed or lost,
originals consist of
numerous • The amendments carried to the Evidence Act by introduction
or when the party accounts or other
of—
•(a)A person against whom it is
offering evidence
of its contents
documents which
cannot
of Sections 65-A and 65-B are in relation to the electronic
to be proved, or

record.
cannot, for any 5.When the conveniently be
•(b)Any person out of the reach other reason not original is a examined in Court
of, or not subject to the
process of the court, or arising from his public and the fact to be
own default or document proved is the
•(c)Any person who is legally
bound to produce it, does not
produce it even due notice
neglect, produce
it in reasonable
within the
meaning of
general result of
the whole
• Section 65A is a declaratory in nature while Section 65B of the
Indian Evidence Act relates to admissibility of electronic
has been given. time; Section 74; collections.

records as evidence in a Court of law.

• Sections 67-A and 73-A were introduced as regards proof and
2.When the
existence, condition
or contents of the
4.When the
original is of
such a nature
6.When the original
is a document of
which a certified
verification of digital signatures.
original have been as not to be copy is permitted
proved to be
admitted in writing
easily
movable;
by this Act or by
any other law in
• As regards presumption to be drawn about such records,
by the person
against whom it is
proved or by his
force in India to be
given in evidence; Sections 85-A, 85-B, 85-C, 88-A and 90-A were added.
representative in
interest;

321 322

Principle and Scope ADMISSIBILITY OF ELECTRONIC RECORDS UNDER THE EVIDENCE ACT

• Rapid rise in the field of information and technology in the last • Under Section 65B, any information contained in an electronic record, which is printed on paper,
decade of 20th Century and the increasing reliance placed stored, recorded or copied in optical or magnetic media produced by a computer is deemed to
upon electronic record by the world at large necessitated the be a document (under the Evidence Act), if the conditions mentioned in Section 65B(2) are
satisfied. If the conditions under Section 65B(2) are satisfied, the paper on which the information
laying down of a law relating to admissibility and proof of contained in an electronic record is printed, or the optical or magnetic media produced by the
electronic record. The legislature responded to the crying computer in which such information is stored, recorded or copied, shall be admissible in any
need of the day by inserting into the Evidence Act Sections proceedings, without proof or production of the original, as evidence of any contents of the
65A and 65B, relating to admissibility of computer generated original or of any fact stated therein, of which direct evidence would be admissible..
evidence in the only practical way it could so as to eliminate • Where a statement in evidence is sought to be given by virtue of Section 65B, Section 65B(4)
the challenge to electronic evidence. requires a certificate to be produced that inter alia identifies the electronic record containing the
statement and describes the manner in which it is produced, and gives particulars of the device
• By virtue of the provisions of Section 65A, the contents of involved in the production of the electronic record to show that the electronic record was
electronic records may be proved in evidence by the parties produced by a computer, either by a person occupying a responsible official position in relation
in accordance with the provisions of Section 65B. to the operation of the relevant device, or the management of the relevant activities, whichever
is appropriate.

323 324
Deepak Kumar. HNLU Rpr 2 November 2022

PUBLIC AND PRIVATE DOCUMENTS

PRECAUTIONARY RULES FOR ACCEPTING ELECTRONIC EVIDENCE
(S. 74 AND 75)
In Amitabh Bagchi vs. Ena Bagchi, AIR 2005 Cal 11, it was held that the technology is • PUBLIC DOCUMENTS
definitely a tool. But the following safe guards are to be taken for purpose of recording
evidence through Audio-Video Link: • Section 74 of the Evidence Act defines what are known
as “public documents”.
• As per Section 75 of the Evidence Act, all documents
other than those stated in Section 74 are private
(1)Before action (7)In case of
of the witness
non-party
under Audio- (2)The person (5)The witness (6)Witness (9)Depositions
Video Link starts
the witness will
have to file an
who wishes to
examine the
(4)The witness
will be
action, as far
as practicable,
includes parties
to the
witness, a set of
plaint, written
statement
(8)Court or
Commissioner
must record
of the witness
either in the documents.
witness on the be proceeded question
• Documents are divided into two categories namely:
proceedings.
affidavit or an (3)As soon as examined and/or other any remark as
screen will also without any answer form or
undertaking duly identification during working papers relating is material
verified before a file an affidavit interruption in the narrative
part is hours of Indian to proceeding regarding the
Judge or a
Magistrate or a
or an
undertaking in
complete,
oath will be
Courts. Plea of
any
without
granting
and disclosed
documents
demur of the
witness while
form will have
to sign as early – (i) Public Documents; and
Notary that the the similar unnecessary as possible
person who is
shown as the
manner before
examining the
administered
through the
inconvenience
on account of
adjournments.
However,
should be sent
to the witness
on the screen
and shall note
before a
Magistrate or
– (ii) Private Documents.
witness is the media as per time difference for his the objections
witness with a discretion of Notary Public
same person as the Oaths Act, between India acquaintance raised during
copy of the the Court or and thereafter
who is going to 1969 of India. and other and an recording of
depose on the other side with the it will form part
country will not acknowledge witness either
screen with a regard to Commissioner of the record
be allowed. ment in this manually or
copy of such identification will be of the
regard will be mechanically.
identification before hand. respected. proceedings.
affidavit to the filed before the
other side. Court. 325 326

According to Section 74 the following documents are

public documents:

• Public Document
(i)of the sovereign
authority; • A public document is one, which has been prepared by a
public servant in discharge of his public official duties. All
public documents are required to be kept as records in some
(1)documents forming the
acts or records of the (ii)of official bodies and
special custody. A public document is not required to be
acts— tribunals; and proved by primary evidence.
• There is no dispute that certified copy of a document issued
(iii)of public officers,
by the Election Commission would be a public document.
(2)Public records kept in legislative, judicial and
any State of private executive, of any part of
documents India or of the
Commonwealth, or of a
foreign country;
327 328
Deepak Kumar. HNLU Rpr 2 November 2022

Few examples of public documents are as under

and Govt. notification. – (xviii)Judgement of the

– (i)A judgment, order or a – (x)Electoral roll Court
decree of a court – (xi)Census report – (xix)Permits issued under
– (ii)Order sheet – (xii)A document Motor Vehicle Act
– (iii)Entries made by police prescribed the permission – (xx)Chargesheet
officer given by district – (xxi)Administrative report Following are not Public
– (iv)Insurance Policy magistrate under Section – (xxii)Town Planning report Documents—
29 of the Arms Act. – (xxiii)Village records of
– (v)Letters and
communications between – (xiii)Khasra Khatauni national banks
public officers – (xiv)Entries made by – (xxiv)Birth and death 6.Partition
2.Written 4.Registered
police officer in the 1.Plaint 3.Affidavit 5.Sale deed deed prepared
– (vi)Public Notification register statement copy of will
register in due course of by the Amin
– (vii)Income Tax
performance of his duty
Assessment Order
– (xv)Decrees of court
– (viii)FIR
– (xvi)Confessions
– (ix)Govt. declaration,
Government Gazette Acts – (xvii)Warrant of Arrest

329 330

PRIVATE DOCUMENT
• (Section 75)
• Section 75 provides that all documents which
are not public documents are private Private
documents. document
• Case Laws
• In M.N. Krishna Rao vs. Board of Trustees, 1972
(1) Mys LJ 101, the Court held that a public contracts, lease, mortgage, sale dead.
document is something which forms an act or
the record of act of an official body.
331 332
Deepak Kumar. HNLU Rpr 2 November 2022

EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

(s. 91 and 92) ‘BEST EVIDENCE RULE’
• Chapter VI of Evidence Act deals with exclusion of oral evidence by • The best evidence rule does not demand the greatest amount
documentary evidence. of evidence which can possibly be given of any fact, but its
• Documents once reduced into writing are considered to be the best desire is to prevent the introduction of any evidence than the
evidence. It is on the higher footing than oral evidence. document itself.
• The very object for which writing is used is to propagate the memory of • It is adopted for the prevention of fraud or when better
what is written down, and so to furnish permanent proof of it. In order to evidence is withheld.
give effect to this, the document itself must be produced. • It is fair to presume that the party has some sinister motive for
• Section 91 deals with the exclusion of oral evidence by documentary not producing the best evidence and that if offered his design
evidence. the rule enunciated by Section 91 of Evidence Act can be said would be frustrated.
to be an exclusive in as much as it excludes the admission of oral
evidence for proving the contents of the document except in cases • This Section lays down the best evidence rule but it does not
where secondary evidence is allowed. prohibit any other evidence where writing is capable of being
• It is based on the ‘best evidence rule’.
construed differently and which shows how the parties
understood the document.
333 334

EXCLUSION OF EVIDENCE OF ORAL AGREEMENT

SECTION 91 (SECTION 92)
• it lays down the provision that when evidence related to • Section 92 excludes the evidence of oral agreements and it
contracts, grants and other depositions of the property is applies to cases where the terms of contracts, grants or other
reduced as a document, then no evidence is required to be dispositions of property have been proved by the production
given for proof of those matters except the document itself. In of the relevant documents themselves under Section 91.
the cases where the secondary evidence is admissible then • In other words, it is after the document has been produced to
such secondary evidence is admissible. prove its terms under Section 91 that the provisions of Section
• There are certain kinds of contracts, grants and other 92 come into operation for the purpose of excluding evidence
depositions which can be created orally and they do not of any oral agreement or statement, for the purpose of
require any document. contradicting, varying, adding to or subtracting from its terms.

335 336
Deepak Kumar. HNLU Rpr 2 November 2022

MODULE 7
Kashinath vs. Chandicharan, 5 WR 60 PRODUCTION AND EFFECT OF EVIDENCE
“It is general and most applicable rule that
whenever written instruments are PRODUCTION AND EFFECT
OF EVIDENCE
appointed, either by requirement of law or
by the contracts the parties to be
repositories and memorials of truth, any
Burden of Proof Estoppel
other evidence is excluded from being used (s. 101-111) (s. 115-117)
either as a substitute for such instruments or
to contradict or alter them.”
337 338

BURDEN OF PROOF BURDEN OF PROOF

• The concept of burden of proof is defined under Section 101 of the
(SECTION 101)
Law of Evidence Act, states that when a person is bound to prove the • Burden of proof means the obligation to prove a fact. The fact to be
existence of a fact, the burden to provide evidence for the same lies proved may be a positive assertion, or negative one (i.e. a denial).
upon him. Chapter VII of the Act deals with provisions under burden of Section 101 of the Indian Evidence Act, 1872 provides:
proof. The term “burden of proof” isn’t defined in the Act, however it is • “Whoever desires any Court to give judgement as to any legal right
the rudimentary principle of criminal that, that the presumption of or liability dependent on the existence of facts which he asserts, must
innocence lies with the accused unless proven otherwise. prove than those facts exists.
• BOP is Responsibility to prove a fact.. And who has the same?? • When a person is bound to prove the existence of any fact, it is said
then the burden of proof lies on that person.”
• The phrase “burden of proof is used in three ways— • Illustrations appended to Section 101
– (i)to indicate the duty of bringing forward argument or evidence in support of a
proposition at the beginning or later; – (a)A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed. A must prove that B has committed the crime.
– (ii)to make that of establishing a proposition as against all counter argument or
– (b)A desires a Court to give judgment that he is entitled to certain land in the
evidence; possession of B, by reason of facts which he asserts, and which B denies, to be
– (iii)an indiscriminate use in which it may mean either or both of the others. true. A must prove the existence of those facts.

339 340
Deepak Kumar. HNLU Rpr 2 November 2022

ON WHOM BURDEN OF PROOF LIES

(SECTION 102) INITIAL BURDEN OF PROOF
• The burden of proof in a suit or proceeding lies on that person • In criminal cases, the principle remains constant that the initial
who would fail if no evidence at all were given on either side. burden is on the prosecution to establish that the accused has
committed a crime. If the prosecution fails to establish beyond
• Illustrations appended to Section 102 reasonable doubt that the accused is guilty, the accused is
– (a)A sues B for land of which B is in possession, and which, as A asserts, entitled to an acquittal.
was left to A by the will of C, B’s father. • The facts to be proved in a case may be either affirmative or
• If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A. negative (denials). As a general principle, the burden of proof lies
– (b)A sues B for money due on a bond. The execution of the bond is on a party which asserts the affirmative of an issue. The basis of
admitted, but B says that it was obtained by fraud, which A denies. the principle lies in the fact that it is always easier to prove the
• If no evidence were given on either side, A would succeed, as the bond is not disputed and affirmative than to prove the negative. Thus where the question
the fraud is not proved. Therefore the burden of proof is on B. between the parties is as to whether a contract was made, the
party who affirms that it was made, should prove that fact.

341 342

Burden and Onus Anil Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558
• it was held that a distinction exists between burden of proof and onus of
• Self-evident facts need not be proved. A proposition or fact, which is not proof. The right to begin follows onus probandi. It assumes importance in the
self-evident is to be proved by a person who asserts that. In other words, early stage of a case.
the onus is on the person making an assertion. Onus under certain • The question of onus of proof has greater force, where the question is, which
circumstances may shift from one party to the other and vice-versa. party is to begin.
• There is an essential distinction between the burden of proof and the • Burden of proof is used in three ways:
onus of proof. The burden of proof lies on the person who has to prove a – (i) to indicate the duty of bringing forward evidence in support of a
fact and it never shifts. The onus of proof, on the other hand, may shift.
proposition at the beginning or later;
Such a shifting of onus is a continuous process in the evaluation of
evidence. – (ii) to make that of establishing a proposition as against all counter-
evidence; and
• Burden of proof has following two distinct meanings:—
– 1.The burden of proof as a matter of law and pleadings (facts probandi) i.e. the – (iii) an indiscriminate use in which it may mean either or both of the others.
legal burden (Section 101); and • The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial
– 2.Burden of proof as a matter of adducting evidence (onus probandi) i.e. the onus is always on the plaintiff and if he discharges that onus and makes out a
evidential burden (Section 102).
case which entitles him to a relief, the onus shifts to the defendant to prove
those circumstances, if any, which would disentitle the plaintiff to the same.
343 344
Deepak Kumar. HNLU Rpr 2 November 2022

• Throughout the web of the English Criminal law one golden thread is
Burden of Proof in criminal and civil matters always to be seen, than it is the duty of the prosecution to prove the
prisoner’s guilt, subject to the defence of insanity or any other
• In a criminal trial, the burden of proving everything essential to statutory exception. Thus, it is not the prisoner web has to satisfy the
establish the charge against the accused lies heavily upon the Court that he is innocent.
prosecution, and the burden never shifts. • Once the prosecution has satisfied the Court of the fact that the
• The initial burden lies on the prosecution to prove that the accused committed the crime of which he is charged, the onus is
shifted to the accused to show as to why he should not be punished
accused is guilty of the crime charged. for it.
• In a criminal case, it is the prosecution which asserts the • Thus evidential onus keeps on shifting during the course of
affirmative of an issue and, therefore, it has to prove its case. proceeding. Where an agreement is challenged on the ground of its
being a restraint of trade, the onus is upon the party supporting the
• The Court starts with the presumption that the accused is contract to show that the restraint is reasonably necessary to protect
innocent. his interest. Once this onus is discharged, the onus of showing that the
• The innocence of the accused means nothing more than the restraint is nevertheless injurious to the public is upon the party
attacking the contract.
fact that burden lies on the prosecution to prove the case
beyond reasonable doubt.
345 346

BURDEN OF PROOF AS TO PARTICULAR FACT

(Section 103)
Principle & Scope
• The burden of proof as to any particular fact lies on that • Section 103 provides for proof of some one particular fact.
person who wishes the Court to believe in its existence, unless • It is an exception to the general principle laid down in Section
it is provided by any law that the proof of that fact shall lie on 101 of the Evidence Act.
any particular person. • According to Section 103 whenever a party wishes the court
• Illustration to believe and to act upon the existence of a particular fact,
• A prosecutes B for theft, and wishes the Court to believe that B the party will have to prove the particular fact.
admitted the theft to C. A must prove the admission. B wishes • For example, in criminal case the accused guilt must be
the Court to believe that, at the time in question, he was proved by the prosecution. But, if the accused wishes to prove
elsewhere. He must prove it. a particular fact, namely, at the time of crime he was away,
he must prove it.

347 348
Deepak Kumar. HNLU Rpr 2 November 2022

BURDEN OF PROVING FACT TO BE PROVED TO MAKE

EVIDENCE ADMISSIBLE (SECTION 104) Principle & Scope
• According to this section the admissibility of one fact depends upon
the proof of another fact.
• The burden of proving any fact necessary to be proved in • It is a condition precedent to prove the particular fact.
order to enable any person to give evidence of any other fact • Illustration (a) states that where a person wishes to prove a dying
declaration, he has to prove that the declarant has died.
is on the person who wishes to give such evidence.
• Section 104 of the Evidence Act is to be read with Section 136 of the
• Illustrations appended to Section 104 Act.
– (a)A wishes to prove a dying declaration by B. A must prove B’s death. • Section 136 inter alia provides that if the fact proposed to be proved
– (b)A wishes to prove, by secondary evidence, the contents of a lost is one of which evidence is admissible only upon proof of some other
document. A must prove that the document has been lost.
fact, such last mentioned fact must be proved before evidence is
given of the fact first-mentioned, unless the party undertakes to give
proof of such fact, and the Court is satisfied with such undertaking.
Illustrations (a) & (b) to Section 136 further clarify the principle.

349 350

SECTION 105 OF THE ACT Principle & Scope

• Section 105 of the provides that in a criminal case, whenever an • It is the cardinal rule of our criminal jurisprudence that the burden in
accused seeks to bring her case under any of the general the web of proof of an offence would always lie upon the
prosecution to prove all the facts constituting the ingredients beyond
exceptions under the Indian Penal Code, 1860, or within any reasonable doubt.
special exception or proviso contained in either the IPC or any • If there is any reasonable doubt, the accused is entitled to the
other law, the burden of proving such circumstances lies on the benefit of the reasonable doubt.
accused, and the Court must presume the absence of such • At no stage of the prosecution case, the burden to disprove the fact
circumstances. would rest on the defence.
• Illustrations appended to Section 105 • However, exceptions have been provided in Sections 105 and 106 of
– 1.A, accused of murder, alleges that, by reason of unsoundness of mind, she the Evidence Act, as stated hereinbefore. Section 113-A of the
did not know the nature of the act. A must prove that she is of unsound mind. Evidence Act raises a presumption as to abetment of suicide by a
– 2.A, accused of murder, alleges that, by grave and sudden provocation, she married woman by her husband or his relatives. Similarly, Section 114-
was deprived of the power of self-control. A must prove that there was grave A raises presumption of absence of consent in a rape case. Several
and sudden provocation. statutes also provide evidential burden on the accused.

351 352
Deepak Kumar. HNLU Rpr 2 November 2022

State of Rajasthan vs. Shera Ram, AIR 2012 SC 1 D. Rama Subba Reddy vs. P.V.S. Rama Das, 1970 CriLJ 83

• It is a settled principle of criminal jurisprudence that the • it was held that under Section 105 of the Indian Evidence Act, the burden of
proving that the case of the accused comes within any of the general exceptions
burden of proof lies on the prosecution and it has to prove a in the Indian Penal Code is upon him.
charge beyond reasonable doubt. • It is the fundamental doctrine of criminal law relating to onus of proof that the
prosecution must establish all the ingredients of the offence with which the
• The presumption of innocence and the right to fair trial are accused was charged, by independent evidence for convicting the accused,
twin safeguards available to the accused under our criminal irrespective of the fast whether the accused is able to adduce evidence bringing
his case within any one of the exceptions, or not.
justice system but once the prosecution has proved its case • The nature and the extent of the onus of proof that lies on the prosecution to prove
and the evidence led by the prosecution, in conjunction with the guilt of the accused is absolute and it stands on a different footing from the
kind and nature of proof expected of theaccused person to bring his case within
the chain of events as are stated to have occurred, if, points any one of the exceptions pleaded by him.
irresistibly to the conclusion that the accused is guilty then the • The prosecution has to establish the guilt of the accused beyond all reasonable
court can interfere even with the judgment of acquittal.. doubt, whereas it is enough for the accused to bring his case within any one of the
exceptional if he succeeds in proving a preponderance of probability.

353 354

• The section involves both

– (i) a presumption and
Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563
– (ii) a rule as to the burden of proof following it.
• The Court shall presume the non-existence of circumstances bringing the case within an • it is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and
therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable
exception and the accused person, who relies on its existence, has the burden of proof doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the
cast upon him. accused caused death with the requisite intention described in Section 299 of the Penal Code. The
• The Section has clarified the position by placing all exceptions special or general on the general burden never shifts and it always rests on the prosecution. But, under Section 105 of the
same footing in the sense of the same required to be proved by the accused. Evidence Act the burden of proving the existence of circumstances bringing the case within the
exception lies on the accused; and the Court shall presume the absence of such circumstances. Under
• But this does not mean that the must plead it specially or specifically or lead evidence. Section 105 of the Evidence Act, read with the definition of “shall presume” in Section 4 thereof, the
• If it is apparent from the evidence on record, whether produced by the prosecution or Court shall regard the absence of such circumstances as proved unless, after considering the matters
the defence, that the general exception would apply, then the presumption is removed before it, it believes that the said circumstances existed or their existence was so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition that
and it is open to the Court to consider whether the evidence proves to the satisfaction of
they did exist. To put it in other words, the accused will have to rebut the presumption that such
the Court that the accused comes within the exception. circumstances did not exist, by placing material before the Court sufficient to make it consider the
• Where the evidence adduced fails to satisfy the court of the existence of circumstances existence of the said circumstances so probable that a prudent man would act upon them. The
bringing the case within the exception pleaded, the accused is entitled to acquitted, if accused has to satisfy the standard of a “prudent man”. If the material placed before the Court, such
upon a consideration of the evidence on both sides, the court is left in a state of as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence,
satisfied the test of “prudent man”, the accused will have discharged his burden. The evidence so
reasonable doubt as to whether the accused is or not entitled to the benefit of the
placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may
exception pleaded. raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of
the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the
accused had the requisite intention laid down in Section 299 of the Penal Code.
355 356
Deepak Kumar. HNLU Rpr 2 November 2022

BURDEN OF PROVING FACT ESPECIALLY

WITHIN KNOWLEDGE (SECTION 106) Principle & Scope
• When any fact is especially within the knowledge of any • This section is an exception to the general rule contained in Section 101 that
provides that the burden is on the person who asserts the fact. The principle
person, the burden of proving that fact is upon him.
underlying Section 106 applies only to such matters of defence, which are in
• Illustrations appended to Section 106 the personal knowledge of the defendant, and cannot apply when the fact is
such as to be capable to be known also by a person other than the
– (a)When a person does an act with some intention other
defendant.
than that which the character and circumstances of the • Section 106 of the Evidence Act does not abrogate the well-established rule
act suggest, the burden of proving that intention is upon of criminal law that except in very exceptional classes of cases the burden
him. that lies on the prosecution to prove its case never shifts and Section 106 is not
intended to relieve the prosecution of that burden. On the contrary, it seeks to
– (b)A is charged with travelling on a railway without a ticket. meet certain exceptional cases where it is impossible, or disproportionately
The burden of proving that he had a ticket is on him. difficult, for the prosecution to establish facts which are especially within the
knowledge of the accused and which can be proved by him without difficulty
or inconvenience.
357 358

• BURDEN OF PROVING DEATH OF PERSON KNOWN TO HAVE BEEN ALIVE

WITHIN THIRTY YEARS
– (Section 107)
• Sucha Singh vs. State of Punjab, (2001) 4 SCC 375, • When the question is whether a man is alive or dead, and it is
– it was held that Section 106 of the Evidence Act was held to be shown that he was alive within thirty years, the burden of
applicable to cases where the prosecution had succeeded in proving proving that he is dead is on the person who affirms it.
facts for which a reasonable inference can be drawn as regards
existence of certain other facts unless the accused by virtue of special • BURDEN OF PROVING THAT PERSON IS ALIVE WHO HAS NOT BEEN HEARD OF
knowledge regarding such facts failed to offer any explanation which FOR SEVEN YEARS
might drive the court to draw a different inference. – (Section 108)
• Razik Ram vs. Jaswant Singh Chouhan, (1975) 4 SCC 769, • Provided that when the question is whether a man is alive or
– the court ruled that the principle underlying Section 106, Evidence Act — dead, and it is proved that he has not been heard of for
which is an exception to the general rule governing burden of proof — seven years by those who would naturally have heard of him if
applies only to such matters of defence which are supposed to be he had been alive, the burden of proving that he is alive the
especially within the knowledge of the defendant/respondent. It cannot person who affirms it.
apply when the fact is such as to be capable of being known also by
persons other than the respondent.
359 360
Deepak Kumar. HNLU Rpr 2 November 2022

• Sec 107 IEA Burden of proving death of a person • Sec 108 IEA
to have been alive within thirty years – If seetha went missing for 7 years, nobody has got any
– Explaination - Let us consider an imaginary person information regarding her, if someone comes and tells
called seetha, this person has been seen alive for the before the court of law that they saw her then that specific
past thirty years, A case has been filed that this person is responsible to prove with facts and circumstances
person has gone missing , If some person comes and that she is alive.
says that seetha is dead, then the onus of proving it
lies on this person, he must provide the facts and • The major difference is - 107 deals with proving the
circumstances which led to the death of seetha, then death of a person who was in contact with the
only the judiciary can aprove it, if simply one comes society for the past 30 yrs and 108 deals with
and says that she is dead, the court will not accept it proving that a person is alive who has not been
without providing evidence. heard of for the past 7 year
• To make it simple, if you say something then you
are responsible to prove it. • to sum up who ever tells that a person is alive or
dead must prove it.
361 362

Principle & Scope

• Section 107 deals with the presumption of continuance of life • If the two sections are read together it would be evident that
and Section 108 deals with the presumption of death. it would be erroneous to seek to apply both Sections 107 and
108 to one and the same case and at the same time because
• Both the presumptions under Sections 107 and 108 come into a person cannot at the same time both be alive and dead.
play after a suit is instituted. The Court therefore should not attempt to apply to a given
case both the presumptions relating to the continuance of life
• These sections deal with the procedure to be followed when and the counter presumption relating to death.
in such a suit a question is raised before a Court as to whether • Section 108 relates to burden of proof. It must be remembered
a person is alive or dead. Section 107 enjoins that when a that the presumption of life under Section 107 can get
person’s existence is in question, and if he is shown to have rebutted because of the counter presumption available under
been living at a given time within thirty years and there is Section 108, and if the counter presumption holds the field,
there is no place for the presumption of life under Section 107
nothing to suggest the probability of his death, the because that stands replaced.
continuance of life will be presumed, and the person who
asserts the contrary has the burden to prove it. 363 364
Deepak Kumar. HNLU Rpr 2 November 2022

BURDEN OF PROOF AS TO RELATIONSHIP IN THE CASES OF

Venkata Seshamma vs. Brahmandam PARTNERS, LANDLORD AND TENANT, PRINCIPAL AND AGENT
Venkata Kusala Rao, LS/AP/2007/970 (SECTION 109)
• When the question is whether persons are partners, landlord
• Under Sections 107 and 108 of the Evidence Act, the burden is and tenant, or principal and agent, and it has been shown
on the person, who asserts that the man is dead or alive to that they have been acting as such, the burden of proving
prove that he is dead or alive as required by the sections. that they do not stand, or have ceased to stand, to each
Where there is no proof that the husband has not been heard other in those relationships respectively, is on the person who
of for seven years by those, who would have naturally heard affirms it.
of him if he were alive, it should be held that the woman has • Principle & Scope
not discharged the burden that lay on her to prove that the – Section 109 lays down the principle dealing with the presumption of the continuity of
relationship between persons or a state of things. When persons acted as partners or
husband was dead in order to enable her to attain to the as landlord and tenant or as principal and agent, the burden of proving that such
position of a widow. relationship does not exist, lies on the person who affirms it. According to this section
when a person stands a relationship of partners of a firm or landlord and tenant or
principal and agent it is presumed that such relationship continues unless the
contrary is proved.
365 366

BURDEN OF PROOF AS TO OWNERSHIP (Section 110) Principle & Scope

• Possession is a prima facie proof of ownership. It is an
evidence of complete title. Section 110 has incorporated this
principle. A principle of law which is rooted from time
• When the question is whether any person is owner
immemorial that possession is nine points in law and that it
of anything of which he is shown to be in possession, could be successfully resisted against any person seeking for
the burden of proving that he is not the owner is on recovery except the person who proves a better title. This
the person who affirms that he is not the owner. obtains statutory recognition also in Section 110 of the Indian
Evidence Act. But this principle does not apply when
possession is obtained by fraud or force. Mere wrongful
possession is insufficient to shift the burden of proof.

367 368
Deepak Kumar. HNLU Rpr 2 November 2022

Section 111 in The Indian Evidence Act, 1872

• chief Conservator of Forests vs. Collector, (2003) 3 SCC 472, • 111. Proof of good faith in transactions where one party is in
– it was held that Section 110 embodies the principle that relation of active confidence.—Where there is a question as to
possession of a property furnishes prima facie proof of ownership the good faith of a transaction between parties, one of whom
of the possessor and casts burden of proof on the party who stands to the other in a position of active confidence, the
denies his ownership. The presumption, which is rebuttable, is burden of proving the good faith of the transaction is on the
attracted when the possession is prima facie lawful and when the party who is in a position of active confidence.
contesting party has no title.
• Illustrations(a) The good faith of a sale by a client to an
attorney is in question in a suit brought by the client. The
Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, burden of proving the good faith of the transaction is on the
observed that the possession may prima facie raise a attorney.
presumption of title no one can deny but this presumption can
hardly arise when the facts are known. When the facts disclose • (b) The good faith of a sale by a son just come of age to a
no title in either party, possession alone decides. father is in question in a suit brought by the son. The burden of
proving the good faith of the transaction is on the father.
369 370

ESTOPPEL (S. 115-117) • Estoppel is a principle of law, by which a person is held to be

bound by the representations made by him, or arising out of
his conduct.
• Estoppel is a principle of law by which a person is held bound by • It is not a rule of law or equity, but is a rule of evidence.
the representation, made by him or arising out of his conduct.
• Thus, where a person made a statement intending that some • Estoppel is a rule of civil law, and does not apply in criminal
other person should act upon it, he will be estopped, that is, will proceedings.
be prevented, from denying the truth of his statement once the • The word “Estopped” is related to the verb ‘stop’ which
other person has altered his position on the basis of the comes from the old French term ‘estopper’, meaning stop or
statement.
impede.
• The doctrine of estoppel precludes a person from denying the
truth of some statement previously made by himself. • It is based on the maxim “allegans contraria non est
• No cause of action arises upon estoppel itself. The principle of audientus”. (He is not to be heard who alleges things
estoppel is incorporated in Section 115 of the Indian Evidence contradictory to each other). It also recognised the principle
Act, 1872. that a man shall not be permitted to ‘blow hot and cold’ with
reference to same transaction.
371 372
Deepak Kumar. HNLU Rpr 2 November 2022

doctrine of estoppel in India

• Section 115 of the Evidence Act is founded upon the • In India, the concept of estoppel was prevalent from the
doctrine laid down in Pickard vs. Sears, (1837 6A. & E. origin of its civilization.
475), namely, that where a person by his words or • Indian civilization projects the concept of truth and
conduct wilfully causes another to believe the existence righteousness (Sathyam and Dharmam) as the basic virtue in
of a certain state of things, and induces him to act on all thoughts and acts.
that belief, so as to alter his own previous position, the
former is precluded from averring against the latter a • A person should not be allowed to resile from his words
different state of things as existing at the same time. The Irrespective of another has relied on those words and acted
doctrine embodied in this section is not a rule of equity, accordingly.
but is a rule of evidence formulated and applied by • This is the principle behind the truth and righteousness.
Courts of law • This concept is now statutorily recognized as estoppel by
Evidence Act in Section 115 of the Indian Evidence Act.

373 374

Chhaganlal Keshavlal Mehta vs. Patel Narandas

SECTION 115 Haribhai, (1982) 1 SCC 223
• Section 115 provides that where a person has, by his • it was held that to bring the case within the scope of estoppel as defined in Section
115 of the Evidence Act, the following eight conditions must be satisfied:
declaration, act, or omission, intentionally caused or permitted – (1)there must be a representation by a person or his authorised agent to another in any form — a
another person to believe a thing to be true and to act upon declaration, act or omission;

such belief, neither he nor his representative shall be allowed – (2)the representation must have been of the existence of a fact and not of promises de futuro or intention
which might or might not be enforceable in contract;
in any suit or proceeding between himself and such person or – (3)the representation must have been meant to be relied upon;
his representative, to deny the truth of that thing. – (4)there must have been belief on the part of the other party in its truth;
– (5)there must have been action on the faith of that declaration, act or omission, that is to say, the
• Illustration to Section 115 declaration, act or omission must have actually caused another to act on the faith of it, and to alter his
former position to his prejudice or detriment;
– ‘A’ intentionally and falsely leads ‘B’ to believe that certain land – (6)the misrepresentation or conduct or omission must have been the proximate cause of leading the other
belongs to ‘A’, and thereby induces ‘B’ to buy and pay for it. The party to act to his prejudice;
– (7)the person claiming the benefit of an estoppel must show that he was not aware of the true state of
land afterwards becomes the property of ‘A’, and ‘A’ seeks to set things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel;
aside the sale on the ground that, at the time of the sale, he had – (8)only the person to whom representation was made or for whom it was designed can avail himself of it.
no title. He must not be allowed to prove his want of title.
375 376
Deepak Kumar. HNLU Rpr 2 November 2022

No Estoppel against Statute Doctrine of Promissory Estoppel

• The principle of estoppel cannot be invoked to defeat the plain • The principle of promissory estoppel is based on the doctrine that when one
provisions of a statute. party had by his words or conduct made to the other a promise or assurance
• There is no estoppel against an Act of Legislature. which was intended to have the legal effect between them and to be acted
on accordingly, then, once the other party has taken him at his word and
• Thus, if a minor represents himself to be the age of majority, and acted on it, the one who gave the promise or assurance cannot afterwards
there after enters into an agreement, the agreement is void, and be allowed to revert to their previous legal relations as if no such promise or
the minor is not estopped from pleading that the agreement is assurance had been made by him, but he must accept their legal relations
void ab initio as he was, in truth, a minor at the date of making subject to the qualification which he himself has so introduced.
the contract. Estoppel only applies to a contract inter parties, • The principle of promissory estoppel is an exception to the doctrine of
and it is not competent to parties to a contract to estop consideration as it is understood in the law of contract.
themselves or anybody else in the face of an Act. The rule of • Whenever a person holds out a promise of a favour or confession to another,
estoppel is a rule of evidence. It cannot prevail against a plain who changes his position by relying upon his words, he will not be permitted
and mandatory provision of law. afterwards to say that his promise was without consideration.

377 378

• The principle of promissory estoppel is equally attracted to the Government and its
instrumentalities who are no longer immune from its applicability and the State agencies Motilal Padampat Sugar Mills Co. Ltd. vs. State
•
have to work within the framework of the legal system.
As a matter of fact estoppel can be invoked to hold the Government and its
of Uttar Pradesh, AIR 1979 SC 621
instrumentalities bound by its promises and agreements whether they be of executive or
administrative character.
• Supreme Court held that the Government cannot claim to be
immune to the applicability of the principle of promissory
• If this check is not maintained on the Government and its instrumentalities the result will
estoppel and if the Government makes a promise and the
be disastrous since they will be left scot-free to act arbitrarily in the matter and first of all
enter into negotiations and agreements with the private parties and when once the
promisee acts in reliance upon it and alters its position, there is no
private parties have been induced to change their position acting upon the promise reason why the Government should not be compelled to make
made by the instrumentalities of the State, would be subjected to the great pecuniary good such promise like any other private individual.
loss and disadvantage if the Government or its agencies are not bound by the principle • The crux of the law laid down by the Supreme Court in the
of promissory estoppel from not acting upon the same. aforesaid case is that the court should compel the Government
• The doctrine of promissory estoppel is comparatively of recent origin in the field of public to make good its promise to its subjects on grounds of equity or
law. The present development in this area is that of understanding administrative actions morality, but where the court is satisfied on materials placed
which are now governed by the principle of accountability as regards the decisions before it that due to change in circumstances overriding public
taken by the instrumentalities of State and in order to have binding effect, make their interest demands that the promise should not be enforced
officers, servants and agents bound by their decisions as regards the private parties against the Government, the court will not enforce such promise
whose rights and interests equally deserve to be protected by theCourts of law if they
have suffered or sustained any injury or loss as a result of their dealings with them.
against the Government on grounds of superior equity or morality
379 380
Deepak Kumar. HNLU Rpr 2 November 2022

Pawan Alloys and Casting Pvt. Ltd. vs. U.P. State State of Rajasthan vs. Gopal Oil Mills, (1998)
Electricity Board, (1997) 7 SCC 251 115 STC 25 (SC)
• By a notification the U.P. State Electricity Board in exercise of its powers • the sales tax incentive scheme had adversely affected
under Section 49 of the Electricity Supply Act had promised to new
industrial units seeking to establish industries in different parts of U.P. that existing industrial units in the State because tax liability of new
on charges of electricity consumed by them, they will be given 10 per industries was much less than the tax liability of old ones and
cent rebate for a period of three years from the date of commencement the old units had gradually started closing down while new
of the supply of electricity to them for the first time, but the Board had
prematurely withdrawn the said rebate of 10 per cent by a subsequent units started coming up and the closure of old units and their
notification. replacement by new units resulted in blockage of capital and
• “It is, therefore, obvious that even though it may be found that the funds invested in old units and on these facts the Supreme
Government or any other competent authority had held out any promise Court held that withdrawal of the benefits of the incentive
on the basis of which the promisee might have acted, if public interest
required recall of such a promise and such a public interest outweighed scheme in respect of oil industries was in the public interest
the interest of the promisee then the doctrine of promissory estoppel and the notification dated May 7, 1990 was issued on account
against the Government would lose its rigour and cannot be of any avail of supervening public interest.
to such promisee.”

381 382

Some specific Estoppel MODULE 8: WITNESSES

3.Estoppel of
2.Estoppel of licensee
1.Estoppel of tenant acceptor of a bill of 4.Estoppel of bailee or
(Section 116);
of person in possession
(Section 116);
exchange (Section licensee (Section 117). Competency and compellability of Witnesses(Sec.118-134)
117); and

Examination of witnesses (section 136-140, 143-153 )

No tenant of
immovable property,
(or person claiming
No person who came
upon immovable no bailee or licensee
Impeaching credit of witness (Sec 155)
through such tenant) Section 117 of the
property by the license can deny that his bailor
can, during the Evidence Act provides
of the person in or licensor had, at the
continuance of the
tenancy, be permitted
possession thereof can
that no acceptor of a
bill of exchange can
time when the bailment Leading questions (Section 141,142)
deny that such person or license commenced
to deny that the land- deny that the drawer
had a title to such authority to make such
lord of such tenant had, had authority to draw
at the beginning of the
tendency, a title to
possession at the time
when such license was
such bill or to endorse it
bailment or grant such
license. Hostile witness (Section 154)
given (Section 116).
such immovable
property (Section 116)
Refreshing Memory (Section 159)
383 384
Deepak Kumar. HNLU Rpr 2 November 2022

COMPETENCY OF WITNESSES
(SEC.118) Principle & Scope
• Section 118 of the Evidence Act provides—
• “Who may testify.—All persons shall be competent to testify
unless the court considers that they are prevented from Section 118 provides that all
understanding the questions put to them, or from giving persons are competent to
testify, unless the court they are prevented from
rational answers to those questions, by tender years, extreme understanding the questions
considers that by reason of
old age, disease, whether of body or any other cause of the put to them or from giving
•tender years,
same kind. rationale answers to those
•extreme old age,
– Explanation.—A lunatic is not incompetent to testify, unless he is •disease, whether of mind or body,
questions.
prevented by his lunacy from understanding the questions put to him and •or for any other cause,
giving rational answers to them.”

385 386

• The competency of a person to testify as a witness is a condition CHILD WITNESS

precedent to the administration to him of an oath or affirmation and
is a question distant from that of credibility when he has sworn or • State of U.P. vs. Krishna Master, (2010) 12 SCC 324,
affirmed. – it was held that there is no principle of law known to the Supreme
• In determining the question of competency, the court under Section Court that it is inconceivable that a child of tender age would
118, has not to enter into enquiries as to the witness’s religious belief not be able to recapitulate facts in his memory witnessed by him
or as to his knowledge of the consequences of falsehood in this world long ago. When a child of tender age witnesses gruesome
or the next. murder of his father, mother, brothers, etc. he is not likely to forget
• The court is at liberty to test the capacity of the witness to depose by the incident for his whole life and would certainly recapitulate
putting proper questions. It has to ascertain, in the best way it can, facts in his memory when asked about the same at any point of
whether from the extent of his intellectual capacity and time, notwithstanding the gap of about ten years between the
understanding, he is able to give a rational account of what he has incident and recording of his evidence. The Court further held
seen or heard or done on a particular occasion. If a person of tender that a child of tender age is always receptive to abnormal events
years or of very advanced age can satisfy these requirements, his which take place in his life and would never forget those events
competency as a witness is established. for the rest of his life. The child would be able to recapitulate
correctly and exactly when asked about the same in future
387 388
Deepak Kumar. HNLU Rpr 2 November 2022

• In Himmat Sukhadeo Wahurwagh vs. State of Maharashtra, (2009) 6

SCC 712, the Supreme Court observed that Section 118 of the
Evidence Act does not preclude a child from being a witness and
the only test that is applicable is as to whether the witness
• Narayan Iranna Potkanthi vs. State of Maharashtra, understood the sanctity of an oath and the import of the questions
1994 (3) Recent CR 103 Bombay that were being put to him. It envisages that all persons shall be
– When the court is doubtful about the fact whether or not competent to testify unless the court thinks otherwise.
the child witness understand the sanctity of oath, it was the • In Panchhi vs. State of U.P., (1998) 7 SCC 177, it was observed the
duty of court to ascertain that and to record a certificate Court that the evidence of a child witness cannot be rejected
outright but the evidence must be evaluated carefully and with
to that effect;
greater circumspection because a child is susceptible to be swayed
• Chhagan Dame vs. State of Gujarat, 1994 Cri LJ 66 by what others tell him and thus a child witness is an easy prey to
(SC) tutoring. The court has to assess as to whether the statement of the
victim before the court is the voluntary expression of the victim and
– The evidence of a child is not reliable who is under the that she was not under the influence of others.
influence of tutoring;
389 390

DUMB WITNESS (SECTION 119) Principle

• According to Section 119 of the Act—A witness who is unable • The dumb witness is one who is unable to speak due to
to speak may give his evidence in any other manner in which physical deformity.
he can make it intelligible, as by writing or by signs; but such • Section 119 applies only to those cases when the witness
writing must be written and the signs made in open Court. is deaf and mute or a person who has taken a religious
Evidence so given shall be deemed to be oral evidence. van of silence.
Following are the essential ingredient: • In case of such witness the evidence may be taken by
– (1)A witness who is unable to speak may give his evidence in any means of written questions-answers techniques or by
other manner. recording signs.
– (2)In which he can make it intelligible, as by writing or by signs; • The evidence given shall be deemed to be oral
made in open court. evidence. The reception of the evidence of such person
rests on the ground of expediency.
– (3)Such evidence shall be deemed to be oral Evidence.

391 392
Deepak Kumar. HNLU Rpr 2 November 2022

Scope of Section 119

• In the case of State of Rajasthan vs. Darshan Singh, (2012) 5 SCC 789 • However, such a view has subsequently been changed for the
there was sufficient material on record that prosecution witness was reason that modern science revealed that persons affected with
able to read and write and this fact stood proved in the trial court such calamities are generally found more intelligent, and to be
when she wrote the telephone number of her father. Her statement susceptible to far higher culture than one was once supposed. When
had been recorded with the help of her father as an interpreter, and a deaf and dumb person is examined in the court, the court has to
father, being an interested witness who had assisted during the trial exercise due caution and take care to ascertain before he is
and investigation, and was examined without administering oath, examined that he possesses the requisite amount of intelligence and
made the evidence unreliable. The High Court has rightly given the that he understands the nature of an oath. The witness may be
benefit of doubt and acquitted the respondent. While explaining the administered oath by appropriate means and that also with the
scope of deaf and dumb witnesses the Court held that the object of assistance of an interpreter. The Court said that in case a person can
enacting the provisions of Section 119 of the Evidence Act reveals read and write, it is most desirable to adopt that method being more
that deaf and dumb persons were earlier contemplated in law as satisfactory than any sign language. The law requires that there must
idiots. be a record of signs and not the interpretation of signs.

393 394

Meesala Ramakrishan vs. State of A.P., (1994) 4 SCC 182

Meesala Ramakrishan vs. State of A.P., (1994)
4 SCC 182
• , the Court has considered the evidentiary value of a dying • the Court has considered the evidentiary value of a dying
declaration recorded by means of signs and nods of a person who is declaration recorded by means of signs and nods of a person who is
not in a position to speak for any reason and held that the same
amounts to a verbal statement and, thus, is relevant and admissible. not in a position to speak for any reason and held that the same
The Court further clarified that “verbal” statement does not amount amounts to a verbal statement and, thus, is relevant and admissible.
to “oral” statement. In view of the provisions of Section 119 of the The Court further clarified that “verbal” statement does not amount
Evidence Act, the only requirement is that the witness may give his to “oral” statement. In view of the provisions of Section 119 of the
evidence in any manner in which he can make it intelligible, as by
writing or by signs and such evidence can be deemed to be oral Evidence Act, the only requirement is that the witness may give his
evidence within the meaning of Section 3 of the Evidence Act. Signs evidence in any manner in which he can make it intelligible, as by
and gestures made by nods or head are admissible and such nods writing or by signs and such evidence can be deemed to be oral
and gestures are not only admissible but possess evidentiary value. evidence within the meaning of Section 3 of the Evidence Act. Signs
and gestures made by nods or head are admissible and such nods
and gestures are not only admissible but possess evidentiary value.

395 396
Deepak Kumar. HNLU Rpr 2 November 2022

PARTIES TO CIVIL SUIT, AND THEIR WIVES OR HUSBANDS

(SECTION 120)
• So, a deaf and dumb person is a competent witness. If in • Under Section 120 the husband and wife may give evidence
the opinion of the court, oath can be administered to against each other. In civil proceeding the parties to the suit
him/her, it should be so done. Such a witness, if able to are competent witnesses. Rule is also applicable in criminal
read and write, it is desirable to record his statement proceeding as well. It provides that in all civil proceedings the
giving him questions in writing and seeking answers in parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses. In criminal proceedings
writing. In case the witness is not able to read and write, against any person, the husband or wife of such person,
his statement can be recorded in sign language with the respectively, shall be a competent witness. The essential
aid of interpreter, if found necessary. In case the ingredient is as under:
interpreter is provided, he should be a person of the – (1)In all proceeding the parties to the suit and the husband and
same surrounding but should not have any interest in the on wife of any party to suit shall be competent witness.
case and he should be administered oath. – (2)In criminal proceeding against any person, the husband or
wife such person respectively shall be a competent witness.

397 398

COMPETENCY OF JUDGES AND MAGISTRATES

(SECTION 121)
• Section 121 of the Act provides that a judge or a magistrate is • Illustrations to Section 121
a competent witness. A judge or a magistrate cannot be – (a)A, on his trial before the Court of Sessions, says that a
compelled to answer questions except: (i) upon the special deposition was improperly taken by B, the Magistrate. B
order of the court to which he is subordinate or (ii) as to his cannot be compelled to answer questions as to this,
conduct in court as such judge or magistrate in relation to a except upon the special order of a superior Court.
case tried by him. According to Section 121 of the Act—
– (b)A is accused before the Court of Sessions of having
• “No Judge or Magistrate shall, except upon the special order given false evidence before B, a Magistrate. B cannot be
of some Court to which he is subordinate, be compelled to asked what A said, except upon the special order of the
answer any question as to his own conduct in Court as such superior Court.
Judge or Magistrate, or as to anything which came to his
knowledge in Court as such Judge or Magistrate; but he may – (c)A is accused before the Court of Sessions of attempting
be examined as to other matters which occurred in his to murder a police officer whilst on his trial before B, a
presence whilst he was so acting.” Sessions Judge. B may be examined as to what occurred.

399 400
Deepak Kumar. HNLU Rpr 2 November 2022

SECTIONS 122 TO 129 OF THE ACT:

Principle & Scope PRIVILEGED COMMUNICATIONS
• A Judge is not compelled to answer any question as to his own conduct in • Sections 122 to 129 provide that certain forms of communication are
Court as a Judge or Magistrate or as to anything which came to his protected from disclosure. For instance, Section 122 places a privilege on
knowledge in Court as Judge or Magistrate, but he may be examined as to communication giving in marriage, subject to certain exceptions.
other matters which occurred in his presence while he was so acting. The • Privileged Communication is an exchange of information between two
protection under Section 121 of the Evidence Act therefore is only to the individuals in a confidential relationship. A privileged communication is a
conduct of a Judge. But if something happens in his presence in the Court, he private statement that must be kept in confidence by the recipient for the
may be examined. benefit of the communicator. Even if it is relevant to a case, a privileged
• Section 121 makes it clear that privilege granted to the judge or magistrate communication cannot be used as evidence in court barring certain
cannot be extended to the other kinds of witnesses. So long he or she is acting exceptions. Privileged communications exist because society values the
or has acted as a judge or a magistrate no question is permitted to be asked privacy or purpose of certain relationships. The established privileged
as to his or her conduct or judicial function. But the superior court by virtue of communications are those between wife and husband, clergy and
the section has right to question as to his or her conduct. The Supreme Court communicant, psychotherapist and patient, physician and patient, and
in Union of India vs. Orient Engg & Commercial Co. Ltd., (1978) 1 SCC 10, has attorney and client. The reason for which these relationships are protected is
extended the privilege to arbitrators also. to protect the general sanctity of marriage and religion.
401 402

PRIVILEGE COMMUNICATION IN MATRIMONIAL CASES From reading Section 122 of the Evidence Act,
(SECTION 122) it can be concluded that:—
• According to Section 122 of the Act: No person • (1)The privilege extends to all communications made to person during
marriage, by any person to whom he or she has been married, but not to
who, is or has been, married can be compelled to communications before marriage.
disclose any communication made o him during • (2)The communication need not be confidential. The rule applies to
communications of every nature.
marriage by the person to whom he is or has been • (3)The rule of privilege applies equally, whether or not the witness or his or her
married; spouse is a party to the proceeding. It extends to all cases i.e. to cases
between strangers as well as to suits or proceedings in which the husband or
• Except: wife is a party.
– (a) in suits between married persons (i.e. husband and wife), in • (4)The privilege extends to communications made to a spouse and not to
divorce proceeding or other cases, or those made by a spouse. But the privilege is conferred not on the witness
unless the witness happens to be the spouse who made the communication,
– (b) proceedings in which one of them is prosecuted for any crime
but on the spouse who made the communication; the witness cannot
against the other. In these cases, there is no privilege. therefore waive it at his or her will, nor can the court permit disclosure even if
403 he or she is willing to do it. 404
Deepak Kumar. HNLU Rpr 2 November 2022

EVIDENCE AS TO AFFAIRS OF STATE

(SECTION 123)
• In Fatma vs. Emperor, AIR 1914 Lahore 380, which was a case where a woman • Section 123 provides that no one shall be permitted to give any
was charged with the murder of her stepson and her husband’s evidence in evidence derived from unpublished official records relating to any
so as it relates to the alleged confession by her to him was held to be affairs of State, except with the permission of the officer at the head
inadmissible in view of Section 122 of the Evidence Act.
of the department concerned, who shall give or withhold such
permission as he thinks fit.
• In Ram Bharosey vs. State of U.P., AIR 1954 SC 704, wherein the Supreme Court • Section 123 places a privilege on affairs of state and bars any person
held that the statement of the accused to his wife that he would give her from giving evidence derived from unpublished official record
jewels and that he had gone to the house of the deceased was held relating to any affair of the state except with the permission of the
inadmissible under Section 122 of the Evidence. head of the department concerned.
• The Supreme Court in M.C. Verghese vs. T.J. Ponnan, AIR 1970 SC 1876, • As far as Section 123 is concerned two questions are involved:
wherein the Supreme Court observed that Section 122 of the Evidence Act • (1)Whether the document in respect of which privilege is claimed, is
only prevents disclosure in giving evidence in course of the communication really a document (unpublished) relating to any affairs of State; and
made by one spouse to the other unless the other consents. The prohibition • (2)Whether disclosure of the contents of the documents would be
continues even after the marriage is declared to be nullity. against public interest.

405 406

OFFICIAL COMMUNICATIONS INFORMATION AS TO COMMISSION OF

(SECTION 124) OFFENCES (SECTION 125)
• No public officer shall be compelled to • No Magistrate or police officer shall be
disclose communications made to him in compelled to say whence he got any information
official confidence, when he considers that as to the commission of any offence, and no
the public interest would suffer by the Revenue officer shall be compelled to say
disclosure. whence he got any information as to the
commission of any offence against the public
• Section 124 places a privilege on revenue.
communications made to a public officer in • Explanation.—“Revenue officer” in this section
official confidence if such officer feels that means an officer employed in or about the
public interest would suffer by his disclosure. business of any branch of the public revenue.

407 408
Deepak Kumar. HNLU Rpr 2 November 2022

PROFESSIONAL COMMUNICATIONS ONFIDENTIAL COMMUNICATIONS WITH LEGAL ADVISERS

(SECTION 126) (SECTION 129)
• Section 126 of the Indian Evidence Act is enacted to prevent disclosure by an • No one shall be compelled to disclose to the Court any confidential
advocate of any communication made to him for the purpose of communication which has taken place between him and his legal
employment as such advocate, by or on behalf of his client, or any advice professional adviser, unless he offers himself as a witness, in which case he
given by him to his client in the course of such employment. An advocate is may be compelled to disclose any such communications as may appear to
also not permitted to state the contents or condition of any document with the Court necessary to be known in order to explain any evidence which he
which he has become acquainted in the course and for the purpose of his has given, but no others.
professional employment. The protection against production or disclosure,
• Section 129 of the Evidence Act covers only those legal advisers who give
however, does not extend to any original document which might have come
legal advice as a profession as distinguished from the legal advisers who are
into the possession of the advocate from his client. The advocate is the agent
employed or are in service of the person to whom the legal advice is given.
of the client to hold the document and if the client is compellable to produce
the document, there is no reason either on principle or authority on which the • The rationale underlying Section 129 is that a person should be entirely free to
advocate can refuse to produce the document. The document handed over consult his legal advisers and claim absolute privilege with respect to
to the advocate by the client cannot be said to be privileged under Section confidential communications with him. The word ‘professional’ in Section 129
120 of the Indian EvidenceAct unless the document contains any is used merely to denote a professionally qualified legal advisor, that is to say,
communication made to the advocate by the client in the course and for the a person who is qualified to give legal advice.
purpose of his employment as such advocate. 409 410

WITNESS NOT EXCUSED FROM ANSWERING ON GROUND

THAT ANSWER WILL CRIMINATE ACCOMPLICE
(Section 133)
(SECTION 132)

• Under Section 132, a witness is not to be excused from answering any

question in civil or criminal proceeding, upon the ground that answer to
such question, will criminate, or may tend directly or indirectly to
criminate, such witness or that he will expose, or tend directly or indirectly • An accomplice shall be a competent
to expose, such witness to a penalty or forfeiture of any kind.
• State (Delhi Admn.) vs. Jagjit Singh, AIR 1989 Supreme Court 598, witness against an accused person; and a
– the Supreme Court was to observe that a witness is legally bound to answer any
question which is relevant to the matter in issue even if the answer to such question is conviction is not illegal merely because it
likely to criminate him directly or indirectly. It is further observed that the proviso to
Section 132 expressly provides that such an answer which a witness is compelled to proceeds upon the uncorroborated
give shall not subject him to any arrest or prosecution nor the same can be proved
against him in criminal proceeding except a prosecution for giving false evidence testimony of an accomplice. (Section 133).
for such answer. As observed, the provisions of proviso to Section 132 clearly protect
a witness from being prosecuted on the basis of answer given by him in a criminal
proceeding which tends to criminate him directly or indirectly.

411 412
Deepak Kumar. HNLU Rpr 2 November 2022

Principle & Scope

• Though a conviction is not illegal merely because it proceeds on the • In order to understand the correct meaning and application
uncorroborated testimony of an approver, yet the universal practice
is not to convict upon the testimony of an accomplice unless it is of this term, it is desirable to mention Section 133 of the Indian
corroborated in material particulars. Evidence Act, 1872 along with Illustration (b) to Section 114
• The evidence of an approver does not differ from the evidence of which read as under:—
any other witness save in one particular aspect, namely, that the
evidence of an accomplice is regarded ab initio as open to grave • “133. Accomplice: An accomplice shall be a competent witness against an
suspicion. If the suspicion which attaches to the evidence of an accused person; and a conviction is not illegal merely because it proceeds
accomplice be not removed, that evidence should not be acted upon the uncorroborated testimony of an accomplice.”
upon unless corroborated in some material particulars; but if the • Illustration (b) to Section 114 “(b) The Court may presume that an accomplice
suspicion attaching to the accomplice’s evidence be removed, then is unworthy of credit, unless he is corroborated in material particulars.”
that evidence may be acted upon even though uncorroborated,
and the guilt of the accused may be established upon the evidence
alone.

413 414

Mohd. Husain Umar Kochra vs. K.S.

Dalipsinghji, (1969) 3 SCC 429
• The combined effect of Sections 133 and Illustration (b) • “The combined effect of Sections 133 and 114, Illustration (b) is
to Section 114, may be stated as follows: that though a conviction based upon accomplice evidence is
• According to the former, which is a Rule of law, an legal, the Court will not accept such evidence unless it is
accomplice is competent to give evidence and corroborated in material particulars. The corroboration must
according to the latter, which is a Rule of practice it is connect the accused with the crime. It may be direct or
almost always unsafe to convict upon his testimony
alone. Therefore, though the conviction of an accused circumstantial. It is not necessary that the corroboration should
on the testimony of an accomplice cannot be said to confirm all the circumstances of the crime. It is sufficient if the
beillegal yet the courts will, as a matter of practice, not corroboration is in material particulars. The corroboration must
accept the evidence of such a witness without be from an independent source. One accomplice cannot
corroboration in material particulars. corroborate another.”

415 416
Deepak Kumar. HNLU Rpr 2 November 2022

EVIDENTIARY VALUE OF APPROVER/ACCOMPLICE

NUMBER OF WITNESSES
Ravinder Singh vs. State of Haryana, (1975) 3 SCC 742 (SECTION 134)
• An Approver is a most unworthy friend, if at all, and he, having bargained for his • No particular number of witnesses shall in any case be
immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the required for the proof of any fact.
story he relates involves him in the crime and appears intrinsically to be a natural and
probable catalogue of place. Secondly, once that hurdle is crossed, the story given by • Principle & Scope
an approver so far as the accused on trial is concerned, must implicate him in such a – Section 134 of the Indian Evidence Act enshrines the well
manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case, recognized maxim that “Evidence has to be weighed not
taking into consideration all the factors, circumstances and situation governing a counted.” The matter thus depends upon the circumstances of
particular case, conviction based on the uncorroborated evidence of an approver each case and the quality of evidence even of a single witness
confidently held to be true and reliable by the Court may be permissible. Ordinarily, whose testimony has either to be accepted or rejected. If such a
however, an approver’s statement has to be corroborated in material particulars testimony is found by the court to be entirely reliable there is no
bridging closely the distance between the crime and the criminal. Certain clinching legal impediment to the conviction of the accused person on
features of involvement disclosed by an approver appertaining directly to an accused, if such proof. Even, as the Guilt of an accused person may be
reliable, by the touchstone of other independent credible evidence, would give the proved by the testimony of a single witness, even though a
needed assurance for acceptance of his testimony on which a conviction may be considerable number of witnesses may be forthcoming to testify
based.”events that had taken to the truth of the case of the prosecution.

417 418

• In Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283, it was held
that there is no rule of evidence that no conviction can be based
unless a certain minimum number of witnesses have identified a
Requirement as to number of witnesses
particular accused as a member of the unlawful assembly. It is
axiomatic that evidence is not to be counted but only weighed and • The Law of Evidence does not require any particular number of
it is not the quantity of evidence but the quality that matters. witnesses to be examined in proof of a given fact. However, faced
• The Supreme Court in Gulam Sarbar vs. State of Bihar, (2014) 3 SCC with the testimony of a single witness the court may classify the oral
401, held that in the matter of appreciation of evidence of witnesses, testimony of a single witness, the court may classify the oral testimony
it is not the number of witnesses but quality of their evidence which is into three categories,
important, as there is no requirement under the Law of Evidence that
any particular number of witnesses is to be examinedto (i) wholly reliable
prove/disprove a fact. It is a time-honoured principle that evidence (ii) wholly unreliable
must be weighed and not counted. The test is whether .the evidence (iii) Neither wholly reliable nor wholly unreliable
has a ring of truth, is cogent, credible and trustworthy or otherwise. In the first two categories there may be no difficulty in accepting or
The legal system has laid emphasis on value provided by each
witness, rather than the multiplicity or plurality of witnesses. It is quality discarding the testimony of the single witness. The difficulty arises in
and not quantity, which determines the adequacy of evidence as the third category of cases.
has been provided by Section 134 of the Evidence Act. The court as to be circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or circumstantial,
419 before acting upon of a single witness. 420
Deepak Kumar. HNLU Rpr 2 November 2022

Section 134 of the Act can be concluded that

• (1)As a general rule, a Court can and may act on the testimony of a single
witness, though uncorroborated. One credible witness outweighs the
testimony of a number of other witnesses of indifferent character. EXAMINATION OF WITNESSES
• (2)Unless corroboration is insisted upon by statute, Courts should not insist on
corroboration except in cases where the nature of the testimony of the single
(section 136-140, 143-153 )
witness itself requires as a rule of prudence, that corroboration should be
insisted upon, for example in the case of a child witness whose evidence is
that of an accomplice or of an analogous character.
• (3)Whether corroboration of the testimony of single witness is or is not
necessary, must depend upon facts and circumstances of each case and no
general rule can be laid down is a matter like this and much depends upon
the judicial discretion of the Judge before whom the case comes.

421 422

JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE • The first Para of Section 136 provides that when either party proposes
(SECTION 136) to give evidence of any fact, the Judge may ask that party in what
manner the alleged fact, if proved, would be relevant. First para also
• Section 136 of the Act is based on public policy and it aims at avoiding provides that the Judge shall admit the evidence if the thinks that the
wastage of the court’s time and energy. Public policy requires that a
facts, if proved, would be relevant and not otherwise.
party must not be permitted to indulge in futile exercises.
• Section 5 of the Act provides that evidence may be given in any suit or • Para 2 of Section 136 provides that if the fact proposed to be proved
proceedings of the existence or non-existence of every facts in issue and is one of which evidence is admissible only upon proof if some other
relevant facts and of no others. facts, such last mentioned fact must be proved before evidence is
• It is the duty of the judge to see that an evidence to be brought on the given of the fact first mentioned. However, where the party
record must be relevant under any of the provisions contained in undertakes to give proof of such last mentioned fact (i.e. the fact on
Chapter II (of the Relevancy of the Facts) of the Act. If proper, a Judge in which the admissibility of first fact is dependent upon), and, the court
his discretion may allow the evidence to be placed on the record
provisionally and subject to objection by the other party. If, a judge finds,
is Satisfied with such undertaking, it may allow the evidence of the
that the fact proposed to be proved, is not relevant, he may not permit first mentioned fact to be given and to prove the other fact at a
the party proposing to give evidence of that fact. subsequent stage. The purpose of the provision appears to be to
ensure certain degree of flexibility in the matters of procedure.
423 424
Deepak Kumar. HNLU Rpr 2 November 2022

Illustrations
• (a)It is proposed to prove a statement about a
relevant fact by a person alleged to be dead, EXAMINATION-IN-CHIEF,
which statement is relevant under Section 32.
– The fact that the person is dead must be proved by the
CROSS-EXAMINATION AND
person proposing to prove the statement, before evidence
is given of the statement.
RE-EXAMINATION
• (b)It is proposed to prove, by a copy, the contents (SECTIONS 137-138)
of a document said to be lost.
– The fact that the original is lost must be proved by the
person proposing to produce the copy, before the copy is
produced. 425 426

• Examination of witnesses plays an important role in Examination-in-

Cross-examination. Re-examination.
the presentation of the evidence in a court of law chief.

irrespective of civil or criminal case and admissibility • The examination • The examination • The examination
of a witness by the of a witness by the of a witness,
of evidence is also an important aspect which has party who calls adverse party shall subsequent to the
to be decided by the judges only. Due to which him shall be called be called his cross- cross-examination
his examination-in- examination. by the party who
each case will be looked upon clearly and it will chief. called him, shall
take long time to pass the judgment by the court. be called his re-
examination
(Section 137).

427 428
Deepak Kumar. HNLU Rpr 2 November 2022

RULES RELATING TO EXAMINATION IN CHIEF

Order of examination • The Examination of a witness by a party who calls him shall be called his
examination in chief.
• Examination in chief is the FIRST EXAMINATION after the witness has been
sworn or affirmed.
• It is a province of a party by whom the witness is called to examine him in
chief for the purpose of eliciting from the witness all the material facts within
his knowledge which tend to prove the party’s case.
• In the adversarial system, examination in chief is a tool of extracting truth from
the facts. It is also known as DIRECT EXAMINATION.
• The direct examination and cross-examination must relate to relevant facts
but the cross-examination need not be confined to the facts to which the
witness testified on his examination in chief.
• The re-examination shall be directed to the explanation of matters referred to
in cross- examination; and, if new matter is, by permission of the court,
introduced in re-examination the adverse party may further cross-examine
429 upon that matter (Section 138). 430

Babulal vs. Caltex, (1967) Cal 205

• Section 142 of the Act provides that leading questions
• it was held that when a fact is stated in must not, if objected by the adverse party, he asked in
an examination-in-chief, or in re-examination, except
examination-in-chief and there is no with the permission of the court. The reason is obvious. If
cross-examination on that point, leading questions were permitted in examination-in-
chief, the lawyer questioning the witness concerned
naturally, it leads to the inference that might be able to construct through the mouth of the
witness a story that suits his suits his client.
the other party accepts the truth of the • Section 142 further provides that the court shall permit
leading questions as to matters which are introductory or
statement. undisputed, or which have, in its opinion, been already
sufficiency proved.
431 432
Deepak Kumar. HNLU Rpr 2 November 2022

RULES RELATING TO CROSS-EXAMINATION Kartar Singh vs. State of Punjab, (1994) 3 SCC 569
• Section 137 of the Indian evidence Act provides that the examination of
• cross-examination is an acid-test of the truthfulness of the statement
a witness by the adverse party shall be called his cross-examination.
made by a witness on oath in examination-in-chief, the objects of
• The scope of the cross-examination is wider than that of examination-in- which are:
chief. The right of Cross-Examination is one of the most powerful – (1)to destroy or weaken the evidentiary value of the witness of his adversary;
instrumentalities provided lawyers in the conduct of litigation. The main – (2)to elicit facts in favour of the cross-examining lawyer’s client from the mouth of the
object of Cross-Examination is to find out the truth and detection of witness of the adversary party;
falsehood in human testimony. It is designed either to destroy or weaken – (3)to show that the witness is unworthy of belief by impeaching the credit of the said
the force of evidence which is already given by a witness. witness;

• The cross-examination is a vital feature of all modern systems of evidence • Thus Section 138 provides that cross-examination need not be
and, in the words of Professor WIGMORE, “the greatest legal engine ever confined to the facts to which the witness testified on his
invented for the discovery of truth.” examination-in-chief. In other words, cross-examination may extend
to all the relevant facts, whether or not the same are touched in the
• Cross-examination is the most effective of all means for extracting truth
examination-in-chief.
and exposing falsehood.
433 434

The following questions may be put to a witness in cross-

examination:—
In other words, the objects of cross-
examination are twofold: (iii)any question as
to his previous
written statements
(vi)any question to
shake his credit by
injuring his
for two character,
(i)any relevant purposes, viz., it although the
(i)To prove facts favourable to the other side question which
need not be
may be to test his
memory; and here
(v)any question to
answer to such
questions might
and/or unfavourable to the witness’s side; confined to fact
deposed in the
(ii)any leading
question;
the very object
would be defeated
(iv)any question to
test his veracity;
discover who he is
and what is his
tend directly or
indirectly, to
position in life;
examination-in- if the writing were criminate him, or
chief; placed in his hands might expose or
before the tend, directly or

(ii)To attack the credit of the witness; and it is questions were

asked; or it may be
indirectly, to expose
him to a penalty or

conducted by counsel on the other side. to contradict him; forfeiture.

435 436
Deepak Kumar. HNLU Rpr 2 November 2022

Rammi vs. State of M.P., (1999) 8

Re-Examination SCC 649
• Re-examination means the examination of a witness, subsequent to the cross- • it was held that the very purpose of re-examination is to
examination by the party who called him, shall be called his re-examination. explain matters which have been brought down in cross-
(Section 137). examination. There is an erroneous impression that re-
• The first paragraph of Section 138 provides that witnesses shall be first examination should be confined to clarification of
examined-in-chief, then (if the adverse party so desires) cross-examined, then ambiguities which have been brought down in cross-
(if the party calling him so desires) re-examined. examination. No doubt, ambiguities can be resolved
• The third paragraph of Section 138 provides that the re-examination shall be through re-examination. But that is not the only function
directed to the explanation of the matters referred to in cross-examination; of the re-examiner. If the party who called the witness
and, if new matter is, by permission of the court, introduced in re-examination,
the adverse party may further cross-examine upon that matter.
feels that explanation is required for any matter referred
to in cross-examination he has the liberty to put any
• Section 140 of the Act provides that witness to character may be cross-
examined and re-examined. Leading questions may also be asked in re-
question in re-examination to get the explanation.
examination subject to the provisions of Section 142 of the Act.

437 438

LEADING QUESTIONS • Section 141 talks about leading questions. According to this section any question
suggesting the answer which the person putting it wishes or expects to receive, is called a
leading question.
• While examining, cross-examining, or re-examining a witness, the parties must
• Section 143 envisages that leading questions may be asked in cross-examination.
refrain from asking leading questions. Leading questions have been described
• Section 142, however, provides that leading questions must not, if objected to by the
in Section 141 of the Act as- any question that suggests the answer which the
adverse party be asked in an examination-in-chief, or in a re-examination, except with
person questioning expects to receive. the permission of the Court.
• One party must object if the other party asks a leading question to the witness. • Leading question to be one which indicates to the witnesses the real or supposed fact
• A leading question suggests the witness the answer, for example: which the prosecutor expects and desires to have confirmed by the answer.
– “You saw Harry wearing a black robe, didn’t you?” • Leading question may be used to prepare him to give the answer to the questions about
This question by itself suggests that Harry was wearing a black robe, this question is to be put to him for the purpose of identification or to lead him to the main evidence or
leading the witness to reply with what the questioner wants. fact in dispute.
– “What was Harry wearing?” • The attention of the witness cannot be directed in Chief examination to the subject of
The answer to this question could be the same as the previous one, however, there the enquiry/trial. The Court may permit leading question to draw the attention of the
are no suggestions in the question. It is a simple question and not leading in any way. witness which cannot otherwise be called to the matter under enquiry, trial or
These types of questions are permitted. investigation. The discretion of the court must only be controlled towards that end but a
question which suggest to the witness, the answer the prosecutor expects must not be
• This is because the witness must answer every question by himself as he is the allowed unless the witness, with the permission of the Court, is declared hostile and cross-
one who has witnessed the fact. If there is a suggestion in the question, the examination is directed thereafter in that behalf.
questioner would be feeding responses to the witness. 439 440
Deepak Kumar. HNLU Rpr 2 November 2022

Can leading questions be asked to a

witness?
HOSTILE WITNESS (Section 154)
• Even though asking leading questions is prohibited by Section 141 as it feeds the witness
with responses and must be objected by the opposite party when asked to a witness. • (1) Section 154 of the Indian Evidence Act provides that the court
However, Section 142 says that leading questions can be asked in an examination-in- may, in its direction, permit the person, any question to him (witness),
chief, or in a re-examination if the Court permits.
which might be put in cross-examination by the adverse party.
• The section further states that leading questions can be permitted by the Court in cases
where the facts are introductory or undisputed or those in the opinion of the Court have • (2) Clause (2) of Section 154, which has been added in 2006 (Act 2 of
already been sufficiently proved. 2006), provides that nothing in this section shall disentitle the person
• The same was supported by the High Court of Kerela in the case of Varkey Joseph v. the so permitted under sub-section (1) of Section 154, to rely on any part
State of Kerela.
of the evidence of such witness.
• Section 142 does not mention asking leading questions during cross-examination.
But, Section 143 states that leading questions can be asked even in cross-examination.
• Leading questions cannot be asked in examination-in-chief, cross-examination, or re-
examination only if objected by the other party. Such questions may be asked if the other
party does not object.
• Even when a leading question has been objected, it is at the discretion of the Court
whether to allow it or not and the discretion will not be interfered by the Court of appeal
or revision except in extreme cases. 441 442

• Under the common law a hostile witness is described as one who is not

Meaning desirous of telling the truth at the instance of the party calling him and an
unfavourable witness is one called by a party to prove a particular fact in
issue or relevant to the issue who fails to prove such fact, or proves the
opposite test.
• A witness who makes statements against the interest of the party who
calls him is called as a hostile witness. When a witness turns hostile, • Section 142 requires that leading question cannot be put to the witness in
examination-in-chief or in re-examination except with the permission of the
the party calling him may cross-examine him to demolish his hostile
court.
stand, cross-examination of a hostile witness can be done only with
• The court can permit leading question as to the matters which are
the permission of the court. introductory or undisputed or which have, in its opinion, already been
• The terms “hostile”, “adverse” or “unfavourable” witnesses are alien sufficiently proved.
to the Indian Evidence Act. The terms “hostile witness”, “adverse • Section 154 authorises the court in its discretion to permit the person who calls
witness”, “unfavourable witness”, “unwilling witness” are all terms of a witness to put any question to him which might be put in cross-examination
English law. The rule of not permitting a party calling the witness to by the adverse party.
cross-examine are relaxed under the common law by evolving the • The courts are under a legal obligation to exercise the discretion vesting in
terms “hostile witness and unfavourable witness”. them in a judicious manner by proper application of mind and keeping in
view the attending circumstances. Permission for cross-examination in terms of
Section 154 of the Evidence Act cannot and should not be granted at the
443 mere asking of the party calling the witness. 444
Deepak Kumar. HNLU Rpr 2 November 2022

Evidentiary Value of the Testimony of a IMPEACHING CREDIT OF WITNESS

Hostile Witness (SECTION 155)
• Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777, it was held that the • Section 155 of the Evidence Act states that:
evidence of a prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examine him. The • The credit of a witness may be impeached in the following
evidence of such witnesses cannot be treated as effaced or washed off the ways by the adverse party, or with the consent of the Court,
record altogether but the same can be accepted to the extent that their by the party who calls him:
version is found to be dependable on a careful scrutiny thereof.
– (1) By the evidence of persons who testify that they, from their
• Govindaraju vs. State, (2012) 4 SCC 722, it was observed that it is also not
knowledge of the witness believe him to be unworthy of credit;
always necessary that wherever the witness turned hostile, the prosecution
case must fail. Firstly, the part of the statement of such hostile witnesses that – (2) By proof that the witness has been bribed, or has accepted
supports the case of the prosecution can always be taken into consideration. the offer of a bribe, or has received any other corrupt
Secondly, where the sole witness is an eye-witness who can give a graphic inducement to give his evidence;
account of the events which he had witnessed, with some precision cogently
– (3) By proof of former statements inconsistent with any part of his
and if such a statement is corroborated by other evidence, documentary or
otherwise, then such statement in face of the hostile witness can still be a
evidence which is liable to be contradicted.
ground for holding the accused guilty of the crime that was committed. 445 446

Illustrations appended to Section 155 Principle & Scope

• (a)A sues B for the price of goods sold and delivered to B. • Section 155 of the Evidence Act permits impeaching the credit of
– C says that he delivered the goods to B. Evidence is offered to witness. It can be done by evidence of persons, who from their
show that, on a previous occasion, he said that he had not knowledge believe him to be unworthy of credit or by proof that the
delivered the goods to B. The evidence is admissible. witness has been bribed etc. or by proof of former statements
inconsistent with any part of his evidence.
• (b)A is indicted for the murder of B.
• Section 155 deals with manners by which the credit of a witness may
– C says the B, when dying, declared that A had given B the be impeached. Impeaching the credit of witness means exposing
wound of which he died. Evidence is offered to show that, on a him before the court as what is real character, so that the court does
previous occasion, C said that the wound was not given by A or not trust him. Impeaching the credit of witness may be done either
in his presence. by the opposite party or with the permission of court by the party
– The evidence is admissible. who called him:

447 448
Deepak Kumar. HNLU Rpr 2 November 2022

Unworthy of Credit (Clause 1): Corrupt inducement (Clause 2):

• By producing independent witnesses from their means of • By producing independent witness the credit of witness can
knowledge and experience, they can testify that the be impeached that he has taken bribe, or has accepted the
witness if question is unworthy of credit. In order to offer of a bribe or has received any other corrupt inducement
disclose such witness as untruthful the court should be
undoubtedly sure that independent witnesses are well to give evidence. When any kind of corrupt inducement is
acquainted with the general reputation of the witness. proved the witness is completely discredited.
“In theory such is confined to general reputation for
untruthfulness, and the witness is to state his personal
opinion, but in practice the question is put in this way.”

449 450

Previous inconsistent statements (Clause 3): REFRESHING MEMORY (Sections 159)

• This clause provides that the credit of witness may be • A witness may, while under examination, refresh his memory by referring
impeached by proving his previous statements. When the to any writing made by himself at the time of the transaction concerning
present statement is contradicted by citing previous which he is questioned, or so soon afterwards that the Court considers it
statement it must be satisfactorily proved. The previous likely that the transaction was at that time fresh in his memory.
contradictory statements of a witness can be used to discredit
only his testimony and not that of other witnesses. • The witness may also refer to any such writing made by any other person,
and read by the witness within the time aforesaid, if when he read it he
• Previous statements recorded on tape can be used to
corroborate as well as to contradict the evidence. The knew it to be correct. When witness may use copy of document to
previous inconsistent statement must relate to the matter in refresh memory—Whenever a witness may refresh his memory by
issue. This third sub-clause refers to a former statement which is reference to any document, he may, with the permission of the Court,
inconsistent with the statement made by the witness in refer to a copy of such document: Provided the Court be satisfied that
evidence in the case and it is permissible that the witness be there is sufficient reason for the nonproduction of the original.
contradicted about that statement. • An expert may refresh his memory by reference to professional treatises.
451 452
Deepak Kumar. HNLU Rpr 2 November 2022

Meaning of “Refreshing memory”: • Ordinarily, a witness deposes to facts from recollection of facts.
• But memory fades by efflux of time and therefore it becomes
• “When a witness’s statement is offered as the basis of an evidential necessary sometimes that he should be allowed to assist his
reference to the truth of his statement, it is plain that at least three memory by looking into documents containing an account of
distinct elements are present, or put it another way, these three them if there be any.
processes, in the absence of any one of which we cannot conceive • This is known as refreshing memory.
of testimony. First, the witness must know something; to this element • A reference to the written memoranda has the effect of reviving
may be given the generic term ‘observation.’ Secondly, the witness in the mind of the Witness recollection of facts known to him and
must have a recollection of these impressions, the result of this recorded by him or recorded by someone else, but readout to
observation this must be termed ‘recollection.’ Thirdly, he must him or in his presence, the accuracy of which had then been
communicate this recollection to the tribunal, that is, there must be recognised by him.
communication, or narration or relation.”—WIGMORE.
• Ordinary meaning of refreshing memory means the opportunity is
given to the witness to recollect event.
453 454

State of Andhra Pradesh V. CheemaLapati Ganeshwara Rao AIR

1963 SC 1850: (1963) 2 CRI LJ 671.
• In this case the accused were charged with offenses of conspiracy, criminal breach of Trust,
falsification of accounts, etc. The approver gave evidence and refreshed his memory by
• Section 159 of the Evidence act permits a referring to account books maintained by him and the absence of entries in certain books was
also relied upon against the accused. The supreme court held :
witness while under examination to refresh • "Section 159 expressly enables a witness while under examination to refresh his
memory by referring to any writing made by himself at the time of transaction concerning which
his memory by referring to any writing made he is being questioned or soon afterwards, or to a writing made similarly by another person and

by himself at the time of the transaction read by the witness immediately or or soon after the writing is made. Section 160 provides that
the witness may also testify to the facts mentioned in any such document as is mentioned in
concerning which he is questioned, or so Section 159.... Where a witness has to depose to a large number of transactions and those
transactions are referred to or are mentioned in either in the account books or in other
soon afterwards that the court considers it documents there is nothing wrong in allowing the witness to refer to the book and documents
while answering the question put to him in his examination. He cannot be expected to
likely that the transaction was at that time remember every transaction in all its details and Section 160 specifically permits a witness to
testify to the fact mentioned in the documents referred to in section 159 although he has no
fresh in the memory. recollection of the facts themselves, if she is sure that the facts were correctly recorded in the
document. Therefore, it is not correct to contend that the approver should have been allowed
455 to refer to the account to books only when he was in a difficulty and not generally" 456
Deepak Kumar. HNLU Rpr 2 November 2022

457