303 Law of Evidence

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PREFACE
LL.B. Study Notes
303 Law of Evidence
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This is PREFACE. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

Refer : Bare acts are a good source, in any subject of law :
Study notes of 102 Criminal Law Paper I
Study notes of 103 Criminal Law Paper II
Study notes of 301 Civil Procedure Code (CPC)
Study notes of 302 Criminal Procedure Code (CrPC)
http://lawtimesjournal.in/evidence-important-questions/
https://www.lawfinderlive.com/bts4/EVIDENCE.htm
http://www.srdlawnotes.com/search/label/Law%20of%20Evidence
http://www.delhilawacademy.com/sample-indian-evidence-act/
https://blog.ipleaders.in/indian-evidence-act-nutshell/
CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 http://duralex.bhatt.net.in/

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CONTENTS
303 Law of Evidence
Topic Page
Module-1 Introduction, Definitions and Relevancy of Facts. 3
Module-2 Types of evidence. 58
Module-3 Dying Declaration, Stages of Examination of Witnesses. 80
Module-4 Burden of Proof and Estoppel. 103
Objectives of the course :

The law of evidence, is an indispensable part of both substantive and procedural laws. It
imparts credibility to the adjudicatory process by indicating the degree of veracity to be
attributed to 'facts' before the forum. This paper enables the student to appreciate the
concepts and principles underlying the law of evidence and identify the recognized forms
of evidence and its sources. The subject seeks to impart to the student the skills of
examination and appreciation of oral and documentary evidence in order to find out the
both. The art of examination and cross-examination and cross-examination and the
shifting nature of burden of proof are crucial topics. The concepts brought in by
amendments to the law of evidence are significant parts of study in this course.

Module-1 :
1) Introduction, Definitions and Relevancy of Facts :
1.1) Main features of the Evidence Act and its applicability
1.2) Definitions: Proved', 'Disproved and Not Proved', 'May Presume and
'Shall Presume, Conclusive Proof
1.3) Relevancy of Facts, Facts in Issue, Distinction between them
1.3.1) Facts necessary to explain/introduce relevant facts
1.3.2) When Facts not otherwise relevant become relevant
1.4) Admission : definition,
1.4.1) Admission by different persons,
1.4.2) Oral admission, relevant provisions
1.5) Confession: Definition, Distinction between Admission and Confession
1.5.1) Confession made before different persons/authorities and its
relevancy and evidential importance, relevant provisions
1.6) Distinction between Oral and Documentary Evidence
1.7) Statement by persons who cannot be called as witnesses
1.8) Statements made under special circumstances
1.9) Judgments of courts of justice, when relevant
1.10) Opinion of third persons: Its relevancy:
1.10.1) Opinion of Experts
1.10.2) Opinion as to handwriting experts
1.10.3) Opinion as to digital signature other relevant provisions as to expert
opinion
1.10.4) Relevancy of opinion as to character
This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4
MODULE-1 QUESTIONS :
Introduction to the Indian Evidence Act 1872 (IEA 1872) .

Discuss : Presumption of fact : May presume -vs- Shall presume -vs- Conclusive proof
Key underlying principles, rul es and features of the Evidence Act 1872.
"The Evidence Act is common in civil and criminal proceedings". Criticize this
statement and state if any exceptions to it. (Nov-2011)

Explain : (i) Proved', (ii) 'Disproved and Not Proved'.

Discuss when the facts are proved under the Indian Evidence Act. (Nov-2011)
Explain : Explain facts in issue and relevant facts. (Nov-2011)
Write short note : Distinguish between Facts in issue' and 'Relevant facts'. (Oct-
2013)
Discuss : Facts necessary to explain/introduce relevant facts.
Discuss : When Facts not otherwise relevant become relevant.
Explain the doctrine of Res Gestae.
Explain in detail : Provisions of admission and confession. (Nov-2012, Dec-2015)
Explain : Admission by different persons.
Explain : Oral admission.
Explain : Confession made before different persons/authorities and its
relevancy and evidential importance.
Explain the Difference between Admission and Confession, (Oct-2013)
Discuss : Difference between Admissions and Estoppel.
Explain : An admission and confession. (Nov-2011)
Explain in detail the provisions of Admission" with decided case laws. (Nov-2014)
Explain in detail the provisions of "Confession" with decided case laws. (Nov-2014)
Discuss : All admissible evidence is relevant, but all relevant evidence is not necessarily
admissible.
Explain : (i) Statement by persons who cannot be called as witnesses, (ii)
Statements made under special circumstances.
Discuss : Judgments of courts of justice, when relevant.
Discuss in detail when the opinions of the third persons are relevant with case laws.
(Nov-2012, Dec-2015)
Discuss : Opinion of Experts.
Write short note : How the handwriting can be proved ? (Nov-2011)
Discuss : Expert opinion as to digital signature.
Discuss how far a character is relevant in criminal cases. (Nov-2011)
Explain : Competency to give evidence in Court. (Nov-2011)
MODULE-1 ANSWERS :
Introduction to the Indian Evidence Act 1872 (IEA 1872).

Discuss : Presumption of fact : May presume -vs- Shall presume -vs- Conclusive proof
ANSWER :
Refer :
https://shuklagirjesh.wordpress.com/2013/07/31/summary-of-indian-evidence-
act-1872-part-ist/
https://kanwarn.wordpress.com/2008/12/20/introduction-to-indian-evidence-act/
http://www.lawnotes.in/Indian_Evidence_Act,_1872
http://www.legalservicesindia.com/article/article/basic-principles-&-rules-of-law-of-
evidence-1173-1.html
Outline :
Intro to Law of Evidence :
Need, Objectives and Importance of Law of Evidence :
Meaning of term Evidence :
What is Proof? How does it differ from Evidence?
Presumption of fact : May presume -vs- Shall presume -vs- Conclusive proof :
Admissibility/ Admission of Evidence :
Types of Evidence :
Primary Secondary :
Real documentary & oral :
Direct Circumstantial/ presumptive :
Direct/ Original Hearsay :
Documentary Personal/ Oral :
Scientific :
Digital :
Indian Evidence Act 1872 :
Scope of Indian Evidence Act 1872 (IEA 1872) :
Scheme of IEA 1872 :
Intro to Law of Evidence :
The purpose of every judicial investigation is,
enforcement of a right or liability that depends on certain facts.
The court has to hear all there is to a case and then arrive at a just conclusion.
The Law of Evidence is a subject which cannot be understood without
understanding these important principles and rules which forms the basis of the
Law of Evidence.

For a good Lawyering skills and hands on the subject these principles and rules
are a must. Only then can you jump on to the next level to understand and
study The Law of Evidence,
Without rules for ascertaining the truth, it will take ages to resolve any case and it
would be too much discretion at the hands of adjudicators.
The law of evidence can be called the system of rules whereby the questions of fact
in a particular case can be ascertained.
It is basically a procedural law but it also has shades of substantive law.
Law related to evidence and proof is nothing but
rules that must be observed in particular situations before certain forums.
If the other party in a legal proceeding admits guilt, he may be convicted.
However, in case the other party deny the charges (or allegations in the plaint)
and the existence of certain facts may be called into question,
then parties & their witnesses have to give evidence in the court of law so that
the court may decide whether the facts exist or not.
There two fundamental principles of trial in the all judicial system,
1. parties to the case must be given full opportunity to prove their case,
2. every dispute must come to an end.
These two rules which are juxtaposed to each other must be balanced and this is
done by the blending of procedural law and rules of evidence.
Need, Objectives and Importance of Law of Evidence :
Law of evidence is the foundation of the administration of justice.
Law of Evidence is an important branch of adjective law.
It helps the Judges to separate wheat from chaff amongst the mass of facts that
are brought before him.
Facts have to be proved prior to application of relevant laws.
The rules relating to law of evidence in the administration of justice are of great
importance, because no substantive law can be enforced without the help of rules
of the law of evidence.
It is evidence that,
leads to authentication of facts
and in the process, helps in rationalising an opinion of the judicial authorities.
Further, the law of evidence helps prevent long drawn inquiries and prevents
admission of excess evidence than needed.
Object of the law of evidence is,
to prevent laxity in the admissibility of evidence,
and to introduce a more correct and uniform rule of practice.

Law of evidence helps Courts to ascertain the truth, and to avoid confusion.
In most cases the existence or non existence of facts has to be shown and
therefore, the law of evidence plays a very important role.
Example : X has entered into a contract with Y to sell his house for an amount.
In case of a breach of contract by either X or Y,
a Court of Law cannot decide the rights and liabilities
unless the existence of such a contract is proved.
Meaning of term Evidence :
<Read from Module-2>
The term evidence owes its origin to the Latin terms evident or evidere that
mean to show clearly, to discover, to ascertain or to prove.
Definition : Sec-3 of IEA 1872 :
Evidence means and includes
(1) Oral evidence : All statements which the Court permits or requires to be
made before it by witnesses,
in relation to matters of fact under inquiry,
(2) Documentary evidence : All documents including electronic records
produced for the inspection of the Court,
According to Phispon,
evidence means, the testimony,
whether oral, documentary, or a real,
which may be legally received in order to prove or disprove some fact in dispute.
According to Taylor,
evidence is shown for the purpose to prove or disprove any fact,
the truth of which is submitted to judicial investigation.
According to Advanced Learner Dictionary
Evidence means
anything that gives reason for believing something
that makes clear or prove something.
Evidence refers to anything that is necessary to prove a certain fact.
Evidence is a means of proof.
What is Proof? How does it differ from Evidence?
Proof :
In a criminal case, the party alleging the crime must prove the claim beyond all
reasonable doubt.

In a civil case, the proof should be in the nature of ''preponderance of

probabilities''
Evidence :
To prove their assertions at a trial, parties to a civil/ criminal case, must satisfy
the Court of their claims by producing evidence.
Parties may do so by producing certain documents/ objects or oral testimony
as an evidence.
The Law of Evidence governs this aspect of court proceedings.
Proof is a broad term comprehending everything that may be produced at a trial,
whereas evidence is a narrow term that describes certain types of proof that can
be admitted at trial.
Proof is anything that can make a person believe that an assertion is true or false.
Law of evidence dictates, which of those things may be considered by a court.
Presumption of fact : May presume -vs- Shall presume -vs- Conclusive proof :
Note :
This is short note on Sec-4 May Presume.
For detailed discussion on Presumptions, read Module-4.
Courts require different levels of proof, depending on the merits of the case.
It is obligatory on the Court to raise the presumption in every case.
1. Sec-4 : May presume :
Whenever it is provided by this Act that the Court may presume a fact,
it may
either regard such fact as proved, unless and until it is disproved
or may call for proof of it.
eg, Courts may presume that,
any message that was sent from a telegraph office,
was the same message that reached whoever the message was intended
for.
2. Sec-4 : Shall presume :
Whenever it is provided by this Act that the Court shall presume a fact,
it shall
regard such fact as proved, unless and until it is disproved.
eg, if certified copies of official documents have been produced in support of the
partys submission,
the court shall presume the authenticity of these documents.
3. Sec-4 : Conclusive proof :

Where one fact is declared by this Act to be conclusive proof of another,

the Court shall,
on proof of the one fact, regard the other as proved,
and shall not allow evidence to be given for the purpose of disproving it.
eg, birth of a child during a couples marriage,
shall be conclusive proof of the legitimacy of the child
unless it can be shown that the couple did not have access to each other at
the time that the child was conceived.
Summary :
If the word ''May'' is used in a statute, ordinarily, it is used in a permissive
sense.
If the word ''Shall'' is used in a statute, prima facie, it is mandatory;
If phrase Conclusive proof is used, the Court shall not permit such conclusively
declared proof to be dis-proved.
Sometimes, ''May'' is equivalent to the word ''Shall''.
The intention of Legislature is to be ascertained to understand meanings of
''May'' and ''Shall''.
Admissibility/ Admission of Evidence :
This lays down the boundaries of what may be admitted as evidence.
The Courts consider the evidence gathered by the parties and decides which of
them would be eligible for consideration.
When any person makes an admission of a statement in Court, he is stating that
it is a fact to be noted for the record, and that it has some relevance to the case
in issue.
Types of Evidence :
Primary Secondary :
Primary :
Primary evidence means the document itself produced for the inspection the
Court. (Section 62)
Evidence which carries on its face no indication that the better remains behind,
is primary.
eg, when two parties enter into a contract,
each copy of the contract is primary evidence.
eg, in a continuing contract, that is periodically renewed,
each renewed contract is evidence of the contract itself.
Secondary :

Secondary evidence means inferior or substitutionary evidence,

which itself indicates the existence of more original sources of information
(Section 63).
Secondary evidence are copies of those documents, books of account, etc.
eg, a photocopy of an original document is secondary proof of the document.
eg, an oral account of a document by a person who has herself seen it is
secondary proof of the document.
Real documentary & oral :
Real :
Real material Evidence is
the evidence of fact brought to the knowledge of the court by inspection of
physical object
and not by information derived from witness or documents.
eg - stolen property, weapons, etc.
Documentary & oral :
Documentary evidence is production of a document or an oral account of real
physical object.
eg - photograph (or oral description) of stolen property, weapons, etc.
Direct Circumstantial/ presumptive :
Direct :
When Evidence is given of the very fact-in-issue, ie of the matter in
controversy, it is called direct evidence,
Circumstantial/ presumptive :
Circumstantial Evidence is
that which tends to establish the fact-in-issue
by proving another fact, which does not itself conclusively established the
fact-in-issue.
When evidence is given of circumstances, or relevant facts, from which an
inference may be drawn about the fact-in-issue, then it is called circumstantial
evidence.
(Sec-60) Direct/ Original Hearsay :
Direct/ Original :
It is evidence of fact actually perceived by a witness with one of his own
senses.
eg a witness reports himself to have seen or heard through the medium of his
own senses

Example - A says that he saw B murdered C with sword.

Hearsay :
It is also known as second hand or unoriginal evidence,
Hearsay is an evidence wherein, a witness is merely reporting, not what he
himself perceived with one of his own senses,
but what he has learnt in respect of the fact through the medium of the
third person.
Eg A says,
It is a statement made by a witness of what he has been said and declared out
of court by a person and not before the Court.
Documentary Personal/ Oral :
Documentary :
Documentary evidence include printed/ written papers, electronic records, etc
produced for the inspection of the Court.
Personal / Oral :
Personal/ oral evidence include, statements which the Court permits or
requires to be made before it by the witnesses, in relation to facts-in-issue.
Scientific :

Digital :

Indian Evidence Act 1872 :
Indian Evidence Act 1872,
consolidates, defines and amends the laws of evidence.
seeks to enact a uniform rules to be followed so as to prevent indiscipline in
admitting evidence.
It is a special law and hence, will not be affected by any other enactment
containing provisions on matter of evidence unless and until it is expressly stated in
such enactment or it has been repealed or annulled by another statute.
The Indian Evidence Act, 1872 is largely based on the English Law of Evidence.
The Act does not claim to be exhaustive. It is not uncommon for Courts to peek
into English Evidence Law in case of doubt.
It is a complete Act, despite being a sister Act of Criminal Procedure Code, 1973
and Civil Procedure Code, 1908.
The Act is Lex Fori (the law of the country in which an action is brought).
Parties cannot contract to exclude the provisions of the Evidence Act.

And Courts also cannot exclude evidence made relevant under the Evidence Act.
Evidences excluded by the Evidence Act will be inadmissible,
even if they are essential to ascertain the truth.
Objects of IEA 1872 :
The object of Indian Evidence Act 1872 is to prevent uncertainty in the
admissibility of the evidence and to introduce more correct and uniform rules of
practice.
The object of the Act is to get the truth out of the several disputed facts or
points in issue.
Scope of Indian Evidence Act 1872 (IEA 1872) :
Indian Evidence Act (IEA) makes provisions about rules regarding evidence.
It applies to all judicial proceedings in or before any court including court
martial.
However, if the court martial is done under- Army Act, the Naval Discipline
Act, the Indian Navy (Discipline) Act, 1934, the Air Force Act, then it will have
no application over these laws.
IEA 1872 does not apply on affidavits presented to any Court or Officer,
IEA 1872 does not apply to any proceedings before an arbitrator.
Scheme of IEA 1872 :
Whole IEA 1872 can be divided into three broad categories,
1. what to prove (5 to 55),
2. who shall prove, burden of proof (101-114A),
3. how to prove (rest of IEA).
Chapters and sections :
Chapter I : Preliminary : Sec-1-4
Chapter II : Relevancy Of Facts : Sec-5-55
Chapter III : Facts Which Need Not Be Proved : Sec-56-58
Chapter IV : Oral Evidence : Sec-59-60
Chapter V : Documentary Evidence : (Sec-61-90)
CHAPTER VI : Exclusion of Oral by documentary evidence : Sec-91-100
Chapter VII : Burden of proof : Sec-101-114 :
Chapter VIII : Estoppal : Sec-115-117 :
Chapter-IX : Witnesses : Sec-118-134 :
Chapter-X : Examination of witnesses : Sec-135-166 :
Chapter XI : Improper Admission And Rejection Of Evidence : Sec-167


GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Key underlying principles, rules and features of the Evidence Act 1872.
"The Evidence Act is common in civil and criminal proceedings". Criticize this
statement and state if any exceptions to it. (Nov-2011)
ANSWER :
Refer :
http://www.legalservicesindia.com/article/article/basic-principles-&-rules-of-law-of-
evidence-1173-1.html
http://lawnn.com/important-features-indian-evidence-act/
http://www.srdlawnotes.com/2016/12/evidence-and-concept-of-
circumstantial.html
http://www.lawnotes.in/Indian_Evidence_Act,_1872
Outline :
Principles, rules and features of IEA 1872 :
Sec-101 : Burden of proof :
Sec-3 : Fact :
Sec-4 : May Presume, Shall Presume, Conclusive proof :
Sec-5 : What may be tendered as an evidence ?
Best Evidence must be given in all the cases :
No person is bound to incriminate himself :
Hearsay Evidence must not be admitted :
NOT applicable for domestic tribunals :
Alibi :
Admission :
Confession :
Dying declaration :
Evidence Act is common in civil and criminal proceedings :
Principles, rules and features of IEA 1872 :
Sec-101 : Burden of proof :
Sec-101 of Evidence Act incorporate the first principle of any litigation that,
the burden of proving facts alleged / asserted, would always lie upon the
person who comes to the Court,

claiming certain rights or attributing certain liabilities upon the opposite

party;
and until such burden is discharged, the opposite party is not obliged to lead
evidence to prove his defense.
Proof should be placed by the party on whom the burden of proof rests, unless
he is estopped.
eg Burden of proving
that any transaction has been effected by fraud, misrepresentation,
intimidation, coercion or undue influence, etc,
lies upon the person alleging.
Sec-3 : Fact :
Anything capable of being perceived by sense is fact.
Fact may be,
physical, psychological,
positive and negative.
A fact which has a certain degree of ''probative force'' is known as ''Relevant
fact''.
Relevancy means, connection of events as cause and effect.
Sec-4 : May Presume, Shall Presume, Conclusive proof :
<Read Presumption of fact : May presume -vs- Shall presume -vs- Conclusive
proof at the beginning of this doc>
Definition : Sec-5 :
In any suit or proceeding,
evidence may be given
(i) of the existence or non-existence of every fact in issue, and
(ii) of such other facts as are declared to be relevant, (Sec-6 to 55)
and of no others.
A person is not allowed to bring forward any evidence to prove or disprove such
a fact which is
neither a fact in issue
nor a fact that is relevant to the facts in issue through relationships defined in
Section 6 to 55
eg - 'A' claims repayment of a debt on the basis of promissory note executed by
B. 'B' denies executing such a promissory note.
'A' has a letter in which 'B' admitted that he had written/ executed a

promissory note.
Here, letter is not sufficient / relevant because,
letter is not the fact-in-issue,
fact-in-issue is whether 'B' had executed a promissory note.
Best Evidence must be given in all cases :
It is well established that the best of evidence must be given in all cases.
Primary evidence is better than secondary :
Sec-62 : Primary evidence means,
the document itself produced for the inspection the Court.
Evidence which carries on its face no indication that the better remains behind,
is primary.
Direct evidence is better than indirect : (Sec-60)
Direct evidence is, evidence of fact-in-issue (the matter in controversy),
as actually perceived by a witness with one of his own senses.
This principle is used in connection with documentary evidence to prefer
primary evidence to secondary evidence
and in connection with oral evidence to exclude secondary evidence.
Direct and circumstantial evidence is given importance over Hearsay Evidence.
No person is bound to incriminate himself :
Some categories of witnesses are given protection and privilege.
Hearsay Evidence must not be admitted :
Sec-60 : For oral evidence to be admissible, it must be direct.
In other words, hearsay evidence is no evidence.
Hearsay evidence signifies the evidence heard and said.
It is also known as second hand unoriginal evidence.
IF a witness is merely reporting, NOT what he himself saw or heard BUT what he
has learnt in respect of the fact through the medium of the third person,
then it is a hearsay evidence.
Hearsay evidence given by a witness may be oral or documentary.
NOT applicable for domestic tribunals :
Indian Evidence Act 1872 is not followed by,
Industrial Tribunal, Administrative Tribunal etc.
and, non-judicial proceedings (such as Departmental inquiries, proceedings
under defense discipline acts, affidavits presented to a Court, etc)
The reason being, they follow rules of natural justice.

Alibi :
Alibi means a claim or piece of evidence that one was elsewhere when an act,
typically a criminal one, is alleged to have taken place.
To claim Alibi his presence should be elsewhere.
Alibi should be established by cogent (strong) evidence.
Burden of proof of Alibi is on accused.
Admission :
Self harming statement in civil case can be called as ''admission''.
Admission is substantive piece of evidence.
Admission may be either in oral form, or documentary form, or signs or gestures
form, or informal.
All Confessions are admissions.
All admissions are not confessions.
(sec.17) Admissions are either formal or informal.
(sec.21) Admissions not generally evidence for the maker.
(sec.23) Generally admissions made with conditions are in-admissible.
Admissions are not conclusive proof of the facts admitted.
Admissions can be explained or shown to be wrong,
But they do raise an estoppal and shift the burden of proof to the person
making them.
Admissions can be proved by hearsay evidence.
Admission must be certain, and clear.
Admission must be taken as a whole. Partial admission cannot be accepted.
Confession :
Self harming statement in criminal case can be called as ''confession''.
Confession must be clear, cogent (strong), whole.
All Confessions are admissions.
All admissions are not confessions.
(Sec-24 IEA) Confession must be perfectly voluntary, in criminal cases.
Prosecution to show voluntariness of confession.
Confession caused by threat, inducement, or promise is inadmissible.
(Sec-25 IEA) Confession of accused before police officer is inadmissible. (AIR
1994 SC 610, 1996(2) SCC 409)
(Sec 164 CrPC) Confessions made in presence of Magistrate is admissible.
Dying declaration :

''Leterm Mortem'' means ''Words said before Death''.

There is no particular form for dying declaration.
A person who is about to die would not lie.
Trust sits on the lips of a person who is about to die.
Dying declaration should be complete in nature.
The person who is making dying declaration need not be under expectation of
death.
Evidence Act is common in civil and criminal proceedings :
<work on this>
Some sections of IEA 1872 are applicable only to Civil, some only to Criminal
and some to both.
Difference between Civil and Criminal cases :
In civil case, the degree of proof required not as strict as in criminal case,
In criminal proceeding the accused must be proved guilty beyond all
reasonable doubts.
In civil case, burden of proof is on the party claiming to prove the substance of
the issue to the satisfaction of the court.
In criminal case, the Act has put more burden of proof on the prosecution
to provide the guilt of the accused.
In Civil cases BOTH parties succeed/ fail on their own strength.
In criminal case
the prosecution cannot take advantage of the weakness of the defence.
In civil case, character of party is irrelevant, unless such evidence itself is fact
in issue.
In criminal case, good character is relevant but evidence of bad character is
irrelevant.
In civil cases, the proof should be in the nature of ''preponderance of
probabilities''
in Criminal case
the prosecution must show the guilt of accused beyond all reasonable
doubt.
there should be clear proof of commission of offence (corpus delict).
suspicion however strong can never take the place of proof.
benefit of doubt is available to accused
accused is always presumed to be innocent.
In civil case admissions alone is relevant but not confessions.

In criminal case admissions as well as confessions are relevant.

In civil cases, a defendant can be compelled to be a witness.
In criminal cases, accused can not be compelled to be a witness.
Explain : (i) Proved', (ii) 'Disproved and Not Proved'.

Discuss when the facts are proved under the Indian Evidence Act. (Nov-2011)
ANSWER :
Refer :
Sec-3 of IEA 1872 defines terms as follows :
Proved :
A fact is said to be proved when,
after considering the matters before it,
the Court either believes it to exist,
or considers its existence so probable that a prudent man ought, to act
upon the supposition that it exists.
Disproved :
A fact is said to be disproved when,
after considering the matters before it,
the Court either believes it does not exist,
or considers its non-existence so probable that a prudent man ought, to act
upon the supposition that it does not exist.
Not Proved :
A fact is said not to be proved when it is neither proved nor disproved.
Probative force :
The extent to which a particular evidence aids in proving the facts in controversy is
called as probative force.
This probative force must be sufficient to induce the court either
(a) to believe in the existence of the fact sought to be proved or
(b) to consider its existence so probable that a prudent man ought to act under
the supposition that it exits the test is of probability upon which a prudent man
may base his opinion.
In State of West Bengal v. Section Orilal Jaiswal AIR 1994 SC 1418 it was observed
by Supreme Court

Proof does not mean rigid mathematical demonstration because that is

impossible.
It means such evidence as would induce a reasonable man to come to a
conclusion.
Supreme Court in Lokeman Shah v. State of W.B., 2001(2) RCR(Crl.) 484 has
observed in Para 17 of judgment that
A fact is said to be proved when after considering the matters before it,
court either believes it to exist or
consider its existence so probable that a prudent man ought to act upon the
supposition that it exists.
What is required is materials on which the court can reasonably act for reaching
the supposition that certain fact exists, or does not exist.
Explain : Explain facts in issue and relevant facts. (Nov-2011)

Write short note : Distinguish between Facts in issue' and 'Relevant facts'. (Oct-
2013)
Discuss : Facts necessary to explain/introduce relevant facts.
Discuss : When Facts not otherwise relevant become relevant.
ANSWER :
Refer :
act-1872-part-ist/
http://www.srdlawnotes.com/2016/12/distinction-between-facts-in-issue-and.html
Outline :
Sec-3 : What is meant by a fact ? :
Sec-3 : Facts in Issue :
Two requirements for fact to be a fact-in-issue,
Sec-3 : Relevant Facts :
Distinction Between Facts in Issue and relevant Facts :
Sec-9 : Facts necessary to explain or introduce relevant facts
Sec-11 : When facts not otherwise relevant become relevant :
Intro :

To ensure that a judicial process does not linger on for too long, courts cannot
waste their time on things that are not important for the case.
While there can be many things for which evidence can be given
but evidence that does not bear on the case at hand, has no use for the court.
and of no others.
Thus, a person is not allowed to bring forward any evidence to prove or disprove
such a fact which is
Section 6 to 55
Sec-3 : What is meant by a fact ? :
The most important tool that the Court can use to reconstruct a case and deliver
justice is a fact.
Sec-3 : The term fact means and includes -
(1) Any thing, state of things, or relation of things,
capable of being perceived by the senses (vision, touch, taste, hear, & smell)
(2) Any mental condition of which any person is conscious.
Thus,
a mental condition, of which any person is conscious, could also be a Fact.
a persons opinion or his reputation may also be considered as a fact.
eg Ashok and Hasan were roommates for 4 years during college. If Ashok
opined that Hasan was very disciplined and pious, it would be an opinion
considered as fact.
Examples :
In case of murder using a knife,
Knife which is used for murder is a fact (things)
The blood of the victim on the spot or over the knife is facts (relation with the
things ie knife)
Presence of victim and accused at the spot immediately before occurrence is
also fact (state of things)

In case of murder through poisoning, (state of things & relation of things)

pre-poisoning state condition of body of the victim is fact
and after poisoning condition of body of the victim is fact.
Likewise :
That a man heard or saw something, is a fact.
The jar kept on the table, is a fact.
That a person,
holds a certain opinion,
has a certain intention,
acts in good faith,
acts fraudulently,
uses a word in a particular sense,
is or was at a specified time conscious of a particular sensation,
are ALL facts.
That person has so and so name, is a fact.
That a man or women has certain reputation, is a fact.
Sec-3 : Facts in Issue :
A fact in issue is also known by its latin term factum probandum, which means
ultimate fact to be proven, or the proposition to be established.
Sec-3 : Facts in issue :
A fact in issue is a fact that directly or indirectly
in connection with other facts,
determines the existence, non-existence, nature, or extent of any right or
liability
that is asserted or denied in any suit or proceeding.
In other words, facts in contention in a case are facts in issue.
A fact in issue is such that
by itself (or in connection to other facts) it is crucial to the question of a right or
liability.
Facts in issue means
those facts which can established right, duty, liabilities or obligations.
A fact in issue forms the core of the case.
Fact in issue is the essence of the dispute at hand.
and it consists of all the facts, due to which or connected to which, there is
disagreement between the parties.

It includes any fact from which (either by itself or in connection with another fact),
there may be a disagreement about the existence, nature and extent of any right
or liability.
eg Mukesh was brought before a Court on the charge of murder of Dinesh.
Mukesh pleaded that he committed it upon grave provocation because he had
caught Dinesh committing adultery with his wife.
The Court held that determining whether adultery was committed was a fact in
issue.
Two requirements for fact to be a fact-in-issue,
the fact must be in dispute between the parties
and the fact must touch the question of right or liability.
In criminal matters, the allegations in the charge sheet constitute the facts in
issue,
eg A is accused to have murdered B. Here, following COULD BE facts in issue
A caused Bs death.
A had intention to kill B.
A was insane.
A received grave and sudden provocation from B.
B committed adultery with As wife
suchlike,
All the above are facts in issue
because they are in contention and they determine the liability of A.
Truth (or falsehood) of Facts in Issue increases or decreases the probability
that A murdered B.
Party which asserts facts-in-issue will have to establish/ prove the same.
Moreover, the prosecution also has to prove that all of the exceptions do not
apply to A.
In civil matters,
The expression facts in issue means and includes
any fact from which (either by itself or in connection with other facts)
the existence (or non-existence, or nature, or extent)
of any right (or liability, or disability),
asserted (or denied) in any suit or proceeding,
necessarily follows.
Example : In a dispute relating to possession of house,
ownership would be a fact in issue because,

once the ownership is decided,

who should have possession can easily be decided just by application of law.
Sec-3 : Relevant Facts :
Sec-3 : The term fact means and includes -
(1) Any thing, state of things, or relation of things,
capable of being perceived by the senses (vision, touch, taste, hear, & smell)
(2) Any mental condition of which any person is conscious.
With such a broad definition of a fact as above,
even the fact that, the sun shines in the sky, or earth is round, may be
submitted to the court in furtherance of admissible evidence.
And therefore, there is a requirement that the facts which are asserted, must be
be relevant to the case.
A relevant fact is also known by its latin term factum probans, which means a
fact that proves.
Sec-3 : Relevant :
One fact is said to be relevant to another
when the one is connected with the other
in any of the ways referred to in the provisions of this Act relating to the
relevancy of facts.
A fact is relevant if belief in that fact helps the conclusion of the existence or non-
existence of another.
If facts-in-issue are the facts to be proved or disproved in a trial,
then relevant facts are the facts that help prove or disprove facts-in-issue.
One of the most important rule is that,
the evidence adduced should be
confined only to the matters which are in dispute,
or which form the subject of investigation .
The word relevant means,
(i) admissible, and (ii) connected with the case.
The word relevancy means ---
the property of a thing that makes it connected to the matter at hand.
A thing is relevant to other ---
when it has a relation to the other thing that tells something appropriate about
the other thing.
The word relevant means --- any two facts to which it is applied are in such a way
related to each other that,

one fact (either taken by itself or in connection with the other facts),
proves (or renders),
probability of the past (or present or future)
existence (or non-existence) of the other fact.
Sections 6 to 55 :
Every facts connected with facts in issue is not relevant,
unless the said fact is connected with facts in issue
in the same way as described in sections 6-55 of IEA 1872.
Sec-6-55 contain provisions that define the relationships that make a fact legally
relevant to another.
These relationship (Sec-6-55) makes,
one fact more probable or improbable because of the other fact.
Read Sec-6-55 from bare act. For brief discussion visit
http://lawtimesjournal.in/evidence-important-questions/ and search for What
facts are relevant under Indian Evidence Act?
Some important categories of relevant facts :
Facts forming part of same transactions
Facts which are the cause or effect of facts in issue
Motive, preparation and previous or subsequent conduct
Facts necessary to explain or introduce relevant facts
Things said or done by conspirator in reference to common design
When facts not otherwise relevant become relevant
Certain Statements like admission, confession or dying declarations
Earlier judgment pertaining to the said cause of action
Opinion of expert of facts disputed
Character of parties.
Illustration :
Fact A is that a person was given certain medication and he died.
Fact B is that the person was suffering from TB.
Here, fact B is relevant to fact A because it throws light on the possible causes
of his death.
Fact B makes it probable that he might have died because of TB instead of the
given medication.
If a persons house has been robbed,
then the fact that his maid has an extra key is a relevant fact.

If a Majid has been murdered, the fact that he received a death threat is a
relevant fact.
Case-law :
In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale has said,
A relevant evidence is evidence that makes the matter which requires proof
more or less probable.
Distinction Between Facts in Issue and relevant Facts :
No Fact in Issue Relevant Fact

1 A fact in issue is a fact that One fact is said to be relevant to
directly or indirectly --- in another, --- when the one is connected
connection with other facts, --- with the other --- in any of the ways
determines the existence, non- referred to in the provisions of this Act
existence, nature, or extent of any relating to the relevancy of facts. (Sec-6
right or liability --- that is to Sec-55)
asserted or denied in any suit or
proceeding.
2 It is a necessary ingredient of a It is not a necessary ingredient of a right

right or liability. or liability.
3 It is called principal fact or It is called evidentiary fact or factum
factum probandium. probandi
4 Fact in issue are affirmed by one Relevant facts are the foundation of
party and denied by other party. inference.
Sec-9 : Facts necessary to explain or introduce relevant facts

(i) facts necessary to explain or introduce,
a fact in issue or relevant fact, or
(ii) facts which support or rebut an inference suggested by,
a fact in issue or relevant fact, or
(iii) facts which establish the identity of any thing or person whose identity is
relevant, or
(iv) facts which fix the time or place at which any fact in issue or relevant fact
happened, or
(v) facts which show the relation of parties by whom any such fact was
transacted,
are relevant in so far as they are necessary for that purpose
Illustration :

(a) The question is, whether a given document is the will of A

Here, the state of As property and of his family at the date of the alleged will
are NOT elevant facts necessary to explain the fact in issue ie whether a given
document is the will of A.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the
matter alleged to be libelous is true. Here,
positions and relations of the parties at the time when the libel was published
may be relevant facts as introductory to the facts in issue.
fact that there was a dispute between A & B may also be a relevant fact
necessary to explain the fact in issue (libel).
However, particulars of a dispute between A and B about a matter
unconnected with the alleged libel are irrelevant,
(c) A is accused of a crime.
Here, the fact that, soon after the commission of the crime, A absconded from
his house, is relevant under Section 8 as conduct subsequent to and affected
by facts in issue.
Also the fact that, at the time when A left home A had sudden and urgent
business at the place to which he went, is relevant, as tending to explain the
fact that he left home suddenly.
However, the details of the business on which he left are not relevant, except
in so far as they are necessary to show that the business was sudden and
urgent.
(d) A sues B for inducing C to break a contract of service made by him with A. C
while leaving As service says to A - I am leaving you because B has made me a
better offer. Here,
Cs conduct is a fact in issue.
And, Cs statement is a relevant fact necessary to explain the fact in issue.
(e) A accused of theft,
is seen to give the stolen property to B,
who is seen to give it to As wife.
B, while delivering to As wife, says A says you are to hide this.
Here, Bs statement is relevant as explanatory of a fact which is part of the
transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob.
Here, the cries of the mob are relevant as explanatory of the nature of the
transaction.
Sec-11 : When facts not otherwise relevant become relevant :

Facts not otherwise relevant are relevant,
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts
they make the existence or non-existence of any fact in issue or relevant
fact highly probable or improbable.
An alibi is a very common example of an irrelevant fact becoming relevant .
Illustration :
(1) Question is whether A committed a crime at Calcutta on a certain day
Here, the fact that, on that day, A was at Lahore is relevant fact which is not
relevant otherwise.
(2) Question is, whether A committed a crime. The circumstances are such that
the crime must have been committed either by A, B, C or D,
Here, all such facts are relevant which show
that the crime could have been committed by no one else than A, B, C, or D
and that it was not committed by either B, C or D.
Fact whether B, C, D committed the crime is not relevant to the fact-in-issue
Explain the doctrine of Res Gestae.

ANSWER :
Refer :
https://www.lawctopus.com/academike/doctrine-of-res-gestae/
act-1872-part-ist/
<Related topic : Hearsay evidence in Module-2>
<Related topic : What is Dying Declaration in Module-3>
Outline :
Sec-6-11 : What is doctrine of res gestae?
Sec-6 : Relevancy of facts forming part of same transaction : Which facts are
relevant ?
What is a transaction ?

Sec-7 to Sec-11 : Part of the same transaction :

Usefulness of Res Gestae :
Broadening of the doctrine of Res Gestae :
Sec-6-11 : What is doctrine of res gestae?
Res gestae has no exact English translation.
A literal translation of Res gestae is,
something deliberately undertaken or done
Res gestae has been defined as
the facts of the transaction explanatory of an act or showing a motive for acting .
acts and words which are so closely connected with a main fact as will constitute
a part of it, and without a knowledge of which the main fact might not be
properly understood,
In a nutshell, Res Gestae means facts forming part of a transaction.
Res Gestae is the surrounding circumstances of the event to be proved.
This includes things done and things said in the course of a transaction.
Acts and declarations accompanying a transaction are treated as Res Gestae and
are admissible in evidence.
As per Sec-5, a Court is interested only in such evidence that has bearing on a fact
in issue or a relevant fact.
This is important in limiting the scope of the trial to facts that are indeed
important for the case so that justice can be done swiftly.
However, no injustice shall be done while narrowing the scope of things that can
be brought before the court, which is the doctrine of Res Gestae.
Things that are reasonably connected to the facts in issue are usually very
important for a case and such facts must be allowed to be brought before the
court.
Doctrine of Res Gestae is one of the many exceptions to the Sec-60 rule of
hearsay. Read Hearsay evidence is not admissible in Law elsewhere in this doc.
In India doctrine of Res Gestae is in Sec-6-11 of IEA 1872 :
(section 6) Facts forming part of same transaction
(Section 7) Facts which are occasion, cause or effect of facts in issue
(Section 8) Facts suggesting Motive, preparation and previous or subsequent
conduct
(section 9) Facts necessary to explain or introduce relevant facts
(Section 10) Things said or done by conspirator in reference to common design
(Section 11) When Facts not otherwise relevant become relevant because these
facts make other facts in issue or any relevant fact either highly probable or

highly improbable
and of no others.
Thus, a person is not allowed to bring forward any evidence to prove or disprove
such a fact which is
Section 6 to 55
Sec-6 :Relevancy of facts forming part of same transaction :Which facts are relevant?
Although Section 6 does not use the words Res Gestae, the concept behind this
section is often referred to by this term.
Sec-6 : Relevancy of facts forming part of same transaction :
Relevant facts are the facts which, though not facts in issue,
are so connected with a fact in issue as to form part of the same transaction,
whether they occurred at the same time & place or at different times & place
Note that, here the ONLY consideration is fact forming part of the same
transaction as the fact-in-issue.
ie ALL the facts which form part of the same transaction as the fact-in-issue, are
relevant facts.
A fact in issue does not happen in isolation.
It always has a factual story behind it.
It lies in a pool of other facts that gives birth to it.
Sec-6 makes all such facts relevant.
What is a transaction ?
A transaction is a group of facts
so connected together as to be referred to by a single name,
as a crime, a contract, a wrong, or any other subject of inquiry
which may be a fact in issue.
Sec-7 to Sec-11 : Part of the same transaction :
To be eligible under this section the fact must have occurred in the same
transaction in which the fact in issue occurred.

Part of the same transaction is a wide term that includes :

(Sec-7) Facts which are occasion, cause or effect of facts in issue
(Sec-8) Facts suggesting motive, preparation & previous or subsequent conduct
(Sec-9) Facts necessary to explain or introduce relevant facts
(Sec-10) Things said or done by conspirator in reference to common design
(Sec-11) Things that lead to facts in issue,
Illustrations : The following illustrations explain the kind of facts that are
contemplated under Sec-6 :
(a) A is accused of the murder of B by beating him.
Here, whatever was said or done by A or B or the by-standers at the beating,
or shortly before or after is to from part of the transaction, and as such 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.
Here, occurrence of these facts is relevant, as forming part of the general
transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence.
Here, letters between the parties relating to the subject out of which the libel
arose, are relevant facts, though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A.
The goods were delivered to several intermediate persons successively.
Here, each delivery is a relevant fact.
The principle that is highlighted by the above illustrations is that,
evidence can be given of every fact which forms part of the same transaction, as
the fact-in-issue.
Usefulness of Res Gestae :
One of the reason why the term Res Gestae has been avoided from Section 6 may
be because this doctrine has been productive of confusion.
There is no clearcut rule that can demarcate a transaction. There can be numerous
facts that surround the facts in issue. They can all be somehow linked with the
same transaction.
Usually evidence is brought under res gestae when it cannot be brought under any
other section of Indian evidence act.
The intention of law makers was to avoid injustice, where cases are dismissed due
to lack of evidence. If any statement is not admissible under sec. 6 it can be
admissible u/s 157 as corroborative evidence.

It is entirely left to the experience and intuition of the Judges to determine whether
a particular fact can be included in Res Gestae or not.
Res Gestae is also not a precise instrument to measure relevancy. It is only a guide
that can help decide whether a fact is sufficiently relevant to a fact in issue. The
final decision rests with the Judge, who should decide depending on the
peculiarities of the case.
Like India present day rulings in England and America also tend to indicate that,
the utterance must be spontaneous or natural, and though not precisely
contemporaneous must be substantially so. There can be no fixed limit of time
an each case must depend upon its own circumstances.
Broadening of the doctrine of Res Gestae :
Courts have slowly broadened the scope of this section to cases like rape, domestic
violence, child witness etc.
Domestic violence and assault cases necessarily involve a startling event; they
often include the issue of excited utterances.
In these cases it is only victims who can identify the alleged culprit. So such
testimony of the victims must be admitted.
Women may not react just after the crime of rape or sexual violence because
they are under the influence of such gruesome event that they do not respond
immediately.
It is possible that they respond after a day or two but such statement spoken
can still be admitted under res gestae.
Hence, in rape and domestic violence cases, if it can be proved that victim was
still under the stress of shock then such statement can be admitted.
Likewise, in cases of children also this rule is relaxed.
The rationale for expanding the exception for children emphasizes how children
cope with stress because their statements are often made well after events
occur at the first safe opportunity to speak.
Conclusion :
Courts have always minded that the doctrine of Res Gestae should never be
expanded to an unlimited extends.
That is why Indian courts have always considered the test of continuity of the
transaction.
Any statement which was made after a long time gap and which was not a reaction
to the event is not admissible under sec.6 of IEA 1872.
But courts have also permitted certain statement which was spoken after a long
time gap from the occurrence of the transaction,
because there was sufficient proof that the victim was still under the stress of

excitement and so whatever was said was as a reaction to the event.

The strength of sec. 6 lies in its vagueness. The word transaction used in this
section is not distinct. It varies from case to case.
Each case in criminal law should be judged according to its own merit.
When it is proved that the evidence forms part of the same transaction it is
admissible under sec. 6,
but whether it is reliable or not depends on the discretion of the Judge.
Explain in detail : Provisions of admission and confession. (Nov-2012, Dec-2015)

Explain : Admission by different persons.
Explain : Oral admission.
Explain : Confession made before different persons/authorities and its
relevancy and evidential importance.
Explain the Difference between Admission and Confession, (Oct-2013)
Discuss : Difference between Admissions and Estoppel.
Explain : An admission and confession. (Nov-2011)
Explain in detail the provisions of Admission" with decided case laws. (Nov-2014)
Explain in detail the provisions of "Confession" with decided case laws. (Nov-2014)
ANSWER :
Refer :
http://www.srdlawnotes.com/2017/04/admission-and-who-can-make-
admissions.html
act-1872-part-ist/
Outline :
Admission : [Sec-17-31]
Sec-17 : Meaning of Admission :
Elements :
Nature of Admission :
Admission by different persons :
Oral Admission :
Sec-18-20 : Who can make Admission :
Effects of Admission :

Sec-31 : Admission not conclusive proof :

Sec-58 : Judicial Admissions need not be proved :
Sec-21 : General Rule of Admission :
Sec-21 : Three Exceptions to rules of admission :
Exception 1 : Sec-21(1) read with Sec-6 :
Confession : [Sec-24-30 of IEA 1872 and Sec-162-164 of CrPC 1973]
Sec-17 : Meaning of Confession :
Confession is admission of criminal offence :
Kinds of Confession : Confession before different persons/ authorities and its
relevancy :
1) Judicial confession : Sec-164 of CrPC :
2) Extra-Judicial Confession : Sec-162 of CrPC & Sec-24, 25, 26 of IEA 1872 :
Sec-27 : Exception to Rules of Extra-Judicial Confession :
3) Retracted Confession : Relevant in case of general corroboration from
independent evidence
4) Confession by co-accused : Relevant in joint trial
Sec-27-29 : Confessions when Relevant :
Difference between Admission and Confession :
Intro :
Section 17 to 31 of the Indian Evidence Act deals with the provision of Admissions
and Confessions.
Admission :
Admission plays a very important role in Judicial Proceedings.
Admission must be clear, precise not vague or ambiguous.
If one party to the proceeding, proves that the other party has admitted his case,
the work of court becomes easier.
Statements made by parties during judicial proceeding may be classified under two
heads -
i) Self-serving Statements -
self-serving statements are those,
which serve, promote or advance the interest of the person making it.
They are not allowed to be proved.
They enable to create evidence for themselves.

ii) Self-harming Admissions -

Self-harming statements are those
which harm or prejudice or injure the interest of the person making it.
They are allowed to be proved.
These self-harming statements all technically known as Admissions".
An admission is the best evidence against the party making the same,
unless it is untrue and made under the circumstances, which does not make it
binding on him.
Sec-17 : Meaning of Admission :
Admission is a Statement of Fact which waives or dispense with the production
of evidence by conceding that a fact asserted by the opponent is true.
Admission could be oral or written.
Admission could be explicit, implicit.
Admission is the best substantive evidence that an opposite party can rely upon.
Sec-17 : Admission defined:
An admission is a statement, oral or documentary or contained in
electronic form,
which suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons,
and under certain circumstances.
Elements : To constitute admission following elements must be present.
A) A statement oral or written or electronic
B) It is a Statement to suggest any inference as to any fact in issue or relevant
fact.
C) Admission will be relevant only if it is made by any of the person specified in
the said Act
D) Admission is relevant only in the circumstances mentioned in the Act.
Example : Sam undertakes to collect rents for John. Sam was asked to collect rent
from Tom. But Sam did not collect, saying that no rent was due from Tom to Sam.
John sues Sam for not collecting the rent.
If Tom makes statement that he owed John rent, it is an admission.
Nature of Admission :
Admission is the best substantive evidence that an opposite party can rely upon.
The admission is admissible because of the following reasons :
a) Admission as a waiver of proof;
b) Admission as statement against interest of the one who makes statement;

c) Admission as evidence of contradictory statement;

d) Admission as evidence of truth.
Sec-18-20 : Who can make Admission :
An admission is relevant if it is made by,
i) A party to the proceeding (Civil or Criminal);
ii) An agent authorized by such party;
iii) In a Representation suit, the person who is representing others
iv) A person who has a proprietary interest in the subject matter of the suit,
and admission is made during the continuance of such interest
v) A persons from whom the parties to the suit have derived their interest in
the subject matter of the suit during the continuance of such interest,
vi) A person whose position is necessary to prove in a suit [if such statements
would be relevant in a suit] brought by or against himself,
vii) A person to whom a party to the suit has expressly referred for information
in reference to a matter in dispute.
Effects of Admission :
Admissions dealt with in the Indian Evidence Act in Sec-17 to 23 and 31.
Sec-31, Sec-115 : Admission not conclusive proof :
Sec-31 : Admissions are not conclusive proof of the matters admitted
but they may operate as Estoppel under the provision of this Act.
Under Sec-115, the party admitting the fact will not allowed to go against
the fact admitted.
It is only prima facie proof, but proving contrary is also allowed.
Since, an admission is NOT conclusive proof of the fact admitted,
evidence can be given to disprove it.
However, until evidence to the contrary is given and admission can safely be
presumed to be proved.
Judicial Admissions :
Provision in Sec-31 is further supplemented by Section 58 (Judicial
Admissions).
Admissions dealt with in the Indian Evidence Act in Section 17 to 23 and 31
are different from Judicial Admissions.
Judicial admissions need not be proved :
Sec-58 : Facts admitted need not to be proved :
No fact need to be proved in any proceeding in
which the parties thereto or their agent agreed to admit at the hearing

or which, before the hearing, they agree to admit by any writing

under their hands,
or which by any rule of pleading enforce at the time they are
deemed to have admitted by their pleading.
Provided that the Court may, in its discretion, require the facts admitted
to be proved otherwise than by such admissions.
Judicial admissions are formal admissions made by a party during the
proceeding of the case.
Judicial admissions are binding on the party that makes them.
They constitute a waiver of proof, though the court at its discretion may
require further proof.
Admission by a party is substantive evidence of the facts admitted by him.
Admissions duly proved are admissible evidence,
irrespective of whether the party making the admission appeared in the
Witness box or not.
The evidentiary value of admission only by government is merely relevant and
not conclusive,
unless the Party to whom they are made has acted upon and thus altered his
detriment.
Sec-21 : General Rule of Admission : Proof of admission (A) against persons
making them, and (B) by or on their behalf :
(A) Admissions are relevant and may be proved as against the person who
makes them, or his representative-in-interest;
(B) but they cannot be proved by or on behalf of the person who makes them,
Illustration : Sec-32 :
The question between A and B is, whether a certain deed is or is not forged.
A says that it is genuine, B says that it is forged.
Here, A may prove a statement by B that the deed is genuine,
and B may prove a statement by A that the deed is forged;
But A cannot prove a statement by himself that the deed is genuine,
nor can B prove a statement by himself that the deed is forged.
Three Exceptions to rules of admission :
All that IEA 1872 requires is that
the statement should suggest some inference as to a fact in issue or relevant
to the issue, even if the inference is in the interest of the maker of the
statement.
It is important to note that

IEA does not require that an admission be of only such statements that are
against the interests of the maker.
Self-serving prior statements are also admissions.
However,
a person can not make self-serving admission to escape his liabilities
such self serving admissions are governed by the provisions of Section 21, and
such a person can NOT always escape from his liability.
For example, A can say to B that he did not steal money from C
which is a self serving statement and is a valid admission.
BUT, it can not be proved by or on behalf of the person who makes them.
Sec-21 : Exceptions to general rule of Admission :
Admissions can be proved by or on behalf of the person who makes them in
following circumstances :
(1) An admission may be proved by or on behalf of the person making it,
when it is of such a nature that, if the person making it were dead, it
would be relevant as between third persons under Section 32.
when it consists of a statement
of the existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind or body existed,
and is accompanied by conduct rendering its falsehood improbable.
when it is relevant otherwise than as an admission.
Thus, Sec-21 provides for 3 exceptions which are discussed after illustrations.
Exception 1 : Sec-21(1) read with Sec-6 : Dying declaration :
A statement/ admission which would be relevant as dying declaration or as
that of a deceased person,
can also be proved by the maker himself if he is still alive.
irrespective of whether it operates in favor of or against the person making
the statement.
Illustrations : Sec-21 : Exception-1 :
[I] A is accused of a crime committed by him at Calcutta. He claims being
at Lahore at relevant time.
A produces a letter written by himself and dated at Lahore on that day,
and bearing the Lahore post-mark of that day.
Here, the statement in the date of the letter is admissible,

because, if A were dead, it would be admissible under Section 32(2).

[II] Immediately after a road accident, if the victim has made a statement
to the rescuer about the cause of the accident,
he can prove that statement even after surviving the accident,
because it is part of the same transaction.
[III] A, the Captain of a ship, is tried for casting her away. And evidence is
given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business
showing observations alleged to have been taken by him from day to day,
and indicating that the ship was not taken out of her proper course.
Here, A may prove these statements, because they would be admissible
between third parties, if he were dead, under section 32, clause (2)
Since, the contents of the log book maintained by the captain would
have been relevant evidence if the captain were dead under Section 32,
the captain is allowed to prove the contents of the log book even in the
case involving him and the shipowners.
Statements as to bodily feeling or mind
A person is allowed to prove his statement about his state of mind or body,
IF such state of mind or body is a fact in issue or is relevant fact
AND if the statement was made at the time when such state of mind or
body existed
AND further if the statement is accompanied with his conduct that makes
the falsehood of the statements improbable.
If the question is whether a person has been guilty of cruelty towards his
wife,
he may prove his statements made shortly before or after the alleged
cruelty, which explain his love and affection for and his feeling towards
his wife.
The last exception allows a person to prove his own statement
when it is otherwise relevant
under any of the provisions relating to relevancy.
There are many cases in which a statement is relevant
not because it is an admission
but because it establishes the existence or non-existence of a relevant

fact or a fact in issue.

In all such cases a party can prove his own statements.
Here, the statement accompanies or explains acts other than statements or if
it influences the conduct of a person whose conduct is relevant.
A says to B, You have not paid my money back, and B walks away in
silence,
Here, A may prove his own statement because it has influenced the
conduct of B, a person whose conduct is relevant.
A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them below their value.
Here, A may prove these statements, though they are admissions,
because they are explanatory of conduct influenced by facts in issue.
ie, though, the statement of A that show that he refused to sell them
below their value, is a self serving admissions,
it is acceptable because,
it reflects As state of mind and is associated with a conduct of
refusing to sell that makes their falsehood improbably.
Admission by different persons :

Oral Admission :
Sec-22 : When oral admissions as to contents of documents are relevant :
Oral admissions as to the contents of a document are not relevant,
unless and until the party proposing to prove them shows that he is entitled to
give secondary evidence of the contents of such document under the rules
hereinafter contained,
or unless the genuineness of a document produced is in question.
Sec-22A : When oral admission as to contents of electronic records are relevant
:
Oral admissions as to the contents of electronic records are not relevant,
unless the genuineness of the electronic record produced is in question.
Confession : [Sec-24-30 of IEA 1872 and Sec-162-164 of CrPC 1973]
Meaning of Confession :
The expression confession means a statement made by an accused admitting his
guilt.
Confession is an admission as to the commission of a criminal offence.

If a person accused of a criminal offence makes a statement against himself,

it is called confession or confessional statement.
According to Sir James Stephen
"Confession is an admission made at any time by a person charged with a
crime stating or suggesting the inference that he committed the crime".
Definition :
Confession is specie of genus term Admission.
ie "All Confessions are admissions, but all Admissions are not confessions."
The term confession is NOT defined in the Indian Evidence Act 1872, however
the definition of admission (Sec-17) of IEA 1872 is applicable to confession also.
Sec-17 : Admission defined:
An admission is a statement, oral or documentary or contained in
electronic form,
which suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons,
and under certain circumstances.
Confession is admission of criminal offence :
Admission of guilt by a person charged with criminal offence, in a criminal
proceeding, it is called a confession.
Thus, the confession is a statement made by the person charged with a crime
suggesting an inference as to any fact in issue or as to relevant fact.
Such an inference should suggest that he is guilty of a crime.
Confession, in short, is an admission by the accused charged with an offence in
the criminal proceeding.
Example :
If X is charged with the murder of Y.
Here, if X admits that he has killed B, it is a confession.
Kinds of Confession : Confession before different persons/ authorities and
its relevancy :
There are four kinds of Confession :
1) Judicial confession
2) Extra-Judicial Confession
3) Retracted Confession
4) Confession by co-accused
1) Judicial confession : Sec-164 of CrPC :
A Judicial Confession is that

which is made before Magistrate,

during course of investigation, but before commencements of inquiry, or trial.
Sec-164 CrPC : Recording of confessions and statements.-
(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
investigation under this Chapter or under any other law
or at any time afterwards before the commencement of the inquiry or trial:
Provided that such a confession or statement may also be recorded by
audio-video electronic means in the presence of the advocate of the person
accused of an offence:
Judicial Confession is relevant and is used as an evidence against the maker,
provided it is recorded in accordance with provisions of Section 164 of CrPC.
Sec-164(2) provides that, the magistrate who records a confession u/s 164 must
warn the accused who is about to confess,
that he is not bound to make a confession
and that, if he does so, it may be used as evidence against him,
and the Magistrate shall not record any such confession unless it is being made
voluntarily.
2) Extra-Judicial Confession : Sec-24, 25, 26 of IEA 1872 :
Summary :
Sec-162 CrPC : Statements to police not to be signed: NO evidence value :
Sec-24 : Confession made by an accused is irrelevant in a criminal proceeding,
IF the making of the confession appears to the Court,
to have been caused by any inducement, threat or promise, having
Sec-25 : No confession made to a police officer shall be proved as against the
accused.
Sec-26 : No confession made by any person whilst he is in police custody shall
be proved as against such person,
unless it be made in the immediate presence of a Magistrate.
When any fact is deposed to as discovered
in consequences of information received from an accused in police
custody,
THEN, so much of such information, whether if amounts to a confessions
or not,

as relates distinctly to the fact thereby discovered, may be proved.

Sec-162 CrPC : Statements to police not to be signed: NO evidence value :
Sec-162 of CrPC makes provisions to keep out evidence which may have been
induced by some form of police duress.
Sec-162(1) :
No statement, made by any person to a police officer in the course of an
investigation,
shall, if reduced into writing, be signed by the person making it;
nor shall any such statement, or any record thereof
be used for any purposes
at any inquiry or trial
in respect of any offence under investigation at the time when such
statement was made.
Sec-24 :
A confession made by an accused person is irrelevant in a criminal
proceeding,
IF the making of the confession appears to the Court,
to have been caused by any inducement, threat or promise , having
reference to the charge against the accused person,
proceeding from a person in authority
and sufficient to give the accused person grounds,
for supposing that by making it he would gain any advantage or
avoid any evil in reference to the proceeding against him.
Sec-25 :
No confession made to a police officer shall be proved as against a person
accused of any offence.
These provisions of Sec-24 & 25 are based upon Grounds of public policy.
Terms of section 25 are imperative. It is an absolute provision that
any confession made to a police officer
under any circumstances
is not admissible in evidence against the accused.
There are NO exceptions.
It covers the confession made when he was free and not in police custody, as
also a confession made before investigation has begun.
The expressions "accused of any offense" even covers,
a person accused of an offense at the trial

whether or not he was accused of the offense when he made the confession
Sec-26 :
No confession made by any person whilst he is in the custody of a police
officer shall be proved as against such person,
unless it be made in the immediate presence of a Magistrate.
Explanation :
Here the term "Magistrate" does not include the head of a village
discharging magisterial functions, unless he is exercising the power of a
Magistrate under the Code of Criminal Procedure, 1882.
Compared to wordings of Sec-25, Sec-26 is not an absolute provision, because
there is an exception that
IN CASE confession is made to a police officer in the immediate presence of
a Magistrate (who is functioning under CrPC),
THEN such a confession is proved.
Discovery of incriminating fact as a consequence of extra-judicial confession.
Sec-27 : Provided that
when any fact is deposed to as
discovered in consequences of information received from a person accused
of any offence, in the custody of a police officer,
THEN, so much of such information, whether if amounts to a confessions or
not, as relates distinctly to the fact thereby discovered, may be proved.
Case laws :
Heramba Brahma vs State of Assam AIR 1982 SC 1595,
Held - that the extra judicial confession not trustworthy and cannot be used
for corroboration of any other Evidence.
Chittar vs State of Rajasthan 1994 Cr.L.J 249 SC,
Held that where confessional statement is inconsistent with medical
evidence, conviction of the accused solely based on extra judicial confession
is not a proper.
Sita Ram vs. State AIR 1966 SC 1906 :
The accused was convicted of murder by trial court. One of the items of
evidence being a confessional letter written by the accused and left near the
dead body with the intention of being seen by police officer.
The Supreme Court, by majority, held:
It is not a confession made to a Police Officer coming within the ban of
Section 25 of the Evidence Act.

The Police Officer was not nearby when the letter was written, or knew
that it was being written.
In such circumstances the letter would not be a confession to a Police
Officer even though it was addressed to the police officer."
3) Retracted Confession :
The Accused person who confessed earlier and later denied such confession does
not destroy the evidentiary value of the confession as originally recorded.
The S.C. has held that
a Retracted confession may form the basis of a conviction,
IF it receives some general corroboration from other independent evidence.
if the court finds that the confession originally recorded was voluntary, it
should be acted upon.
4) Confession by co-accused : [Sec-30]
Sec-30 : Proved confession by one of the accused in a joint trial :
When more persons than one are being tried jointly for the same offence,
and a confession made by one of such persons affecting himself and some
other of such persons is proved,
then, the Court may take into consideration such confession as against such
other person as well as against the person who makes such confession.
Explanation : Offence as used in Sec-30, includes the abatement of, or
attempt to commit, the offence.
Illustrations :
(a) A and B are jointly tried for the murder of C.
Here, IF it is proved that A said B and I murdered C, then court may
consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is an evidence to show that C
was murdered by A and B. There is NO joint trial. B said, A & I murdered C.
Here, Bs statement may NOT be taken into consideration by the Court
against A because B is not being jointly tried.
Confessions when Relevant : The following three types of confession are
relevant and admissible
1. Sec-27 Confession leading to a discovery
Discovery of incriminating fact as a consequence of extra-judicial confession
2. Sec-28 Confessions made after removal of threat
If the confession is obtained after the impression caused by threat,
inducement, or promise is removed in the opinion of the court, then the
confession is admissible.

3. Sec-29 Confession made under promise, deception,etc.

If a confession is otherwise relevant, it does not become irrelevant merely
because it was made
(a) under a promise of secrecy or
(b) in consequences of a deception practiced on the accused person for the
purpose of obtaining it or
(c) while the accused was drunk or
(d) while answering the questions he need not have answered or
(e) when the accused was not warned that he was not bound to make such
confession and that evidence of it might be given against him.
---> The five circumstances mentioned in Sec-29 are not exhaustive.
Note on Sec-29 : The basis of Sec-29 is that any breach of confidence or of good
faith or practice of any artifice does not invalidate a confession.
However, a confession obtained by mere trickery does not carry much weight.
For example, in one case,
an accused was told that somebody saw him doing the crime
and because of such telling, the accused made a confession.
The court held the confession as inadmissible.
In Rex vs Shaw,
A was accused of a murder
B, a fellow prisoner, asked him about how he did he do the murder.
A said, Will you be upon your oath not to mention what I tell you?, to
which B promised on his oath that he will not tell anybody.
A then made a statement.
It was held that it was not such an inducement that would render the
confession inadmissible.
Conclusion :
The words of Section 162 of CrPC are wide enough to include a confession made
to a police officer in the course of Investigation.
A statement or confession made in the course of an investigation may be
recorded by Magistrate under Section 164 of the Code of Criminal Procedure
subject to the safeguards imposed by the section.
Except as provided by Section 27 of the Evidence Act, a confession by an
accused to a police officer is absolutely protected under Section 25 of IEA 1872,
and if it is made in course of investigation it is also protected by Sec-162 of
CrPC,
and a confession to any other person made by him while in the custody of

police officer is protected by Section 26 unless it is made in the immediate

presence of a Magistrate.
Difference between Admission and Confession :
Admission Confession
1) If a statement is made by a party If a statement made by a party charged
in civil proceeding it will be called with crime, in criminal proceeding, it is
as admission called as a confession
2) The expression Admission means The expression Confession means a
voluntary acknowledgement of the statement made by an accused admitting
existence or truth of a particular his guilt. If a person accused of an
fact offense makes a statement against
himself, it is called confession.
3) An admission is genus Confession is specie. Hence all
confessions are admissions but all
admissions are not confessions.
4) An admission is not conclusive A confession, if voluntarily and free, may
proof of the matters admitted and in the discretion of the judge or
is always rebuttable. magistrate, by itself be accepted as
conclusive proof of matters confessed.
Confession alone is sufficient to warrant
a conviction.
5) An admission may go against the Confession always goes against the
party making it. It may be proved person making it.
by or behalf of the person making
it.
6) An admission may be made by an An agent can never make the confession
agent in course of business. of an offense against a co-defendant.
7) Admission by one of the several Confession made by co accused in a
defendants in suit is not evidence joint trial can be taken into
against other defendants. consideration against the co-accused.
Difference between Admissions and Estoppel :
Admissions Estoppel
1) The rules regarding admissions is The rule regarding Estoppel is laid
laid down under Sec-17-23 & 31 of down under section 115 of Evidence Act
the Indian Evidence Act
2) An admission is a statement, oral or An Estoppel is a rule of evidence which

Admissions Estoppel
documentary which suggests an prohibit a person from contradicting his
inference as to any fact in issue or former representation or conduct,
relevant fact, and which is made by which provides no one shall be allowed
any of the parties to a civil suit to speak or behave contrary to that his
under certain circumstances. earlier statement.
3) Admissions are not conclusive Estoppel is conclusive

evidence. It can be rebutted against
their makers and those claiming
under them by positive proof.
4) In some circumstances the Estoppel operates only against person
admission of third person binds the making representation and his legal
parties to the suit. Sec-90 & 20 of representative.
Indian Evidence Act.
5) Admission is a weak kind of Estoppel is regarded as a decisive
evidence evidence of high quality
6) Admission does not necessarily Estoppel induced detriment in the
induce detriment. position of maker.
Discuss : All admissible evidence is relevant, but all relevant evidence is not necessarily
admissible.
ANSWER :
Refer :
`Relevancy' and Àdmissibility' are two different terms and connotes different
meaning.
Question of relevancy has been dealt with in Section 6 to 55 of Evidence Act
question of admissibility of relevant facts has been dealt with from Section 56
onwards of Evidence Act.
What evidence may be tendered ?
Sec-5 :

and of no others.
Sec-3 :
One fact is said to be relevant to another
when the one is connected with the other
in any of the ways referred to in the provisions of this Act relating to the
relevancy of facts.
Term `Relevancy' means a fact which is logically probative.
Fact which helps the court in deciding the controversy or fact in issue.
Rule of relevancy implies that certain fact is connected or is so important to be
proved for adjudicating the controversy or fact in issue.
In a judicial proceeding the courts have to give decision about the existence or
non-existence of a right or liability and to reach at the conclusion court needs
materials.
What is material (facts) which may be produced before a court is the first question
because if there is no restriction, the introduction of irrelevant facts will waste
the time of court.
Therefore first thing to be seen in any judicial proceeding is to see that only
material or `relevant' facts must be introduced.
What evidence is admissible ?
Admissibility is not based on the probability but on law Rule of admissibility.
How certain form of evidence relating to relevant fact is to be proved.
After having decided the question of `Relevancy of facts',
question arises as to mode of proof of `Relevant facts' this is also called
Àdmissibility'.
Admissibility set out Rules in compliance of which evidence is to be given about all
relevant facts in a case.
Thus, admissibility means rules of method of proving.
Therefore `Relevancy' and Àdmissibility' are not the same thing.
In Ram Bihari Yadav v. State AIR 1998 SC 1850 It was observed by Apex Court
More often the expression `Relevancy' and Àdmissibility' are used as synonyms
but their legal implications are distinct and different
for more often than not, fact which are relevant may not be admissible ,
Illustration :
Communication made by spouses during marriage or between an Advocate and
his client though relevant are not admissible,
Question permitted to be put in cross examination

to test the veracity or impeach the credit of witness,

though are admissible but not relevant.
Thus, one can say that,
All admissible evidence is relevant,
but all relevant evidence is not necessarily admissible
Explain : (i) Statement by persons who cannot be called as witnesses, (ii)

Statements made under special circumstances.
ANSWER :
Refer :

Intro : Hearsay evidence :
According to the Sec-60, oral evidence to be admissible, it must be direct.
In other words, hearsay evidence is no evidence is a general rule,
because, the hearsay witness may not be able to say correctly and completely
the truth of his statement.
Two reasons make hearsay an inadmissible evidence , (i) unfairness, and (ii)
possible inaccuracy.
(i) unfairness : This is because, allowing a witness to repeat hearsay, is unfair
to the accused/ defendant and does not provide him with an opportunity to
question the speaker of the original statement,
(ii) possible inaccuracy : It is possible that the witness may have
misunderstood or misinterpreted the statement. If such an evidence is admitted
than it will vitiate the proceedings.
For above reasons, counsel of either side can object to admissibility of such a
witnesss testimony as hearsay, and is not admissible in evidence
Sec-32 and Sec-33 of the IEA are exceptions,
to the general rule that hearsay is not admissible.
Exception-1 : Sec-32 : Cases in which statements of relevant fact, by person who is
dead or cannot be found, etc., is relevant :
Summary of Sec-32 : Cases in which, statement of relevant fact by person who is
dead or cannot be found, etc, is relevant :
Statements,
verbal or written

made by a person
who is dead or cannot be found,
or who has become incapable of giving evidence
or whose attendance cannot be procured without unreasonable delay or
expense,
are themselves relevant facts in the following cases :
1) When it relates to cause of death
2) When it is made in course of business; or
3) Against the interest of maker; or
4) Gives opinion as to public right or custom or matters of general interest;
or
5) Relates to existence of relationship; or
6) When it is made in will or deed relating to the family affairs; or
7) In document relating to transaction mentioned in section 13(a) {--
custom}
8) When it is made by several persons and expresses feeling relevant to
matter in question
Illustrations :
(a) The question is,
whether A was murdered by B ;
or whether A was ravished (rape) by B --- [A died of injuries received in a
transaction in the course of which she was ravished];
or whether A was killed by B under such circumstances that a suit would lie
against B by As widow.
In ALL above questions
statements made by A as to the cause of his/her death,
referring respectively to the murder, the rape or the actionable wrong,
are relevant facts.
(b) The question is, as to the date of As birth.
Here, an entry in the diary of a deceased surgeon, regularly kept in the
course of business, stating that, on a given day, he attended As mother and
delivered her of a son, is a relevant fact.
(c) The question is, whether A, who is dead, was the father of B.
Here, a statement by A that B was his son, is a relevant fact.
(d) The question is, what was the date of the birth of A.
Here, a letter from As deceased father to a friend, announcing the birth of A

on a given day, is a relevant fact.

Exception-2 : Sec-33 : Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated : Special circumstances :
Evidence given by a witness,
is relevant for the purpose of proving,
the truth of the facts which it states,
when the witness is <special circumstances>
dead
or cannot be found,
or is incapable of giving evidence,
or is kept out of the way by the adverse party,
or if his presence cannot be obtained without unreasonable delay or expense,
Provided :
....
In Nirmal Singh vs State Of Haryana, AIR 2000 SC 1416, SC held that,
Statement of witness recorded under Sec. 299 Cr.P.C. before arrest of
absconding accused,
can be utilised in trial after arrest
only if the witness died or is not available or any other conditions specified in
Sec. 299 Cr.P.C.
Discuss : Judgments of courts of justice, when relevant.

ANSWER :
Refer :

Discuss in detail when the opinions of the third persons are relevant with case laws.
(Nov-2012, Dec-2015)
Discuss : Opinion of Experts.
Write short note : How the handwriting can be proved ? (Nov-2011)

Discuss : Expert opinion as to digital signature.

ANSWER :
Refer :
IEA 1872 provisions :
Opinions of the third persons : Sec-45-47A :
Opinion of Experts : Sec-45 :
How the handwriting can be proved ? Sec-47 :
Expert opinion as to digital signature : Sec-47A :
Relevance of an opinion of witness :
As a general Rule,
the opinion of witness on any question (whether of fact or of law), is irrelevant.
A witness has to state the facts, which he has seen, heard or perceived,
and not the conclusions, which he has formed on observing or perceiving them.
The function of drawing inferences from the facts is a judicial function and must be
performed by the Court.
Exceptions :
To above general Rule, there are some important exceptions.
Sometimes, it is very difficult for the court to form a correct opinion on a matter
which requires specialized knowledge.
Under such circumstances Courts take assistance from person who is an expert.
When the subject matter of inquiry is such that,
inexperienced persons are unlikely of forming a correct judgment upon it,
the opinions of persons having special knowledge of the subject matter of inquiry
become relevant;
Sec-45 : Opinions of experts :
When the court has to form an opinion upon a point of foreign law, or of science, or
art, or as to identity of handwriting or finger impressions,
the opinions upon that point, of persons specially skilled in such foreign law,
science or art, or in questions
as to identity of handwriting or finger impression
are relevant facts.
Such persons are called expert Section.
Thus, an expert is one,
who has acquired special knowledge, skill or experience in any science, art trade or
profession;

Practice, observation or careful studies may have acquired such knowledge.

The opinion of an expert is never binding on a court.
It is admitted in evidence only to help the court in arriving at a correct decision.
In other words, evidence of expert cannot be taken as conclusive of fact
In considering the value of the evidence of an expert it must be borne in mind that an
expert witness, however impartial he may wish to be,
unconsciously prejudiced in favor of the side which calls him.
In State of Haryana v. Bhagirath and Others 1999 Criminal Law Journal 2898 (SC)
Supreme Court has held
Opinion given by expert witness need not be the last word on the subject,
such opinion shall be tested by court and if opinion is not of logic or objectivity, the
court is not obliged to go by that opinion.
Sec-46 : Facts bearing upon opinions of experts :
Facts not otherwise relevant, are relevant
if they support opinion of experts, when such opinion are relevant.
Sec-47 : Opinion as to handwriting, when relevant :
When court has to form an opinion as to the person by whom any document was
written or signed,
opinion of any person acquainted with the handwriting of the person by whom it
is supposed to be written or signed
that it was or was not written or signed by that person
is a relevant fact.
Explanation :-
A person is said to be acquainted with the hand writing of another person
when he has seen that person write
or when he received a document purporting to be written by that person in
answer to document written by himself or under his authority.
or when in ordinary course of business, document purported to be written by
that person have been habitually submitted to him.
Sec-48 : Opinion as to existence of right or custom, when relevant :
When the Court has to form an opinion as to the existence of any general custom
or right,
the opinions, as to its existence,
of persons who would be likely to know of its existence,
are relevant.
Sec-49 : Opinion as to usage, tenets, etc., when relevant :

Sec-49 makes opinion as to usage, tenets etc relevant

when expressed by one having special means of knowledge thereon.
Sec-50 : Opinion on relationship, when relevant :
When the court has to form an opinions to relationship of one person to another,
opinion expressed by conducts to the existence of such relationship, of any
person who as a member of family or otherwise has special means of knowledge
on the subject is a relevant fact :
Provided that such opinion shall not be sufficient to prove marriage in proceedings
under Indian Divorce Act or in prosecution u/s 494,495,497 and 498 of IPC."
Discuss how far a character is relevant in criminal cases. (Nov-2011)

ANSWER :
Refer :
Intro :
A character of a person is a very vague and subjective aspect.
It is at best imprecise and at worst dangerous to draw an inference about the
liability of a person from his character.
Therefore, the general rule is that character of a person is not relevant for
establishing guilt.
However, there are certain exceptional situations where character of a person is
important for the case.
Sec-52, 53, 54, and 55 contain provisions regarding the relevancy of character
There are different rules about relevancy of character in civil and criminal cases.
Relevancy in Civil Cases : Sec-52 & Sec-55 of IEA 1872 :
Sec-52 : General principle on relevance of characted in civil suit :
Sec-52 :
In civil cases, the fact that the character of any person concerned is such as to
render probable or improbable any conduct imputed to him, is irrelevant,
except in so far as such character appears from facts otherwise relevant.
Thus, Section 52 lays down a general principle for civil suits that,
the evidence of a partys character cannot be given to show that the conduct
attributed to the party is probable or improbable.
UNLESS character appears otherwise relevant to the fact-in-issue.

Second part of Section 52 provides that if a fact is otherwise relevant to the case
then the conclusion about a partys character may be drawn from such fact.
An otherwise relevant fact cannot be excluded from evidence merely because
it incidentally throws light upon a partys character.
Example :
A journalist is described as an exploiter and he sues for damages for
defamation.
Here, since the fact-in-issue itself if character of the plaintiff,
the defendant is permitted to give evidence to prove the exploitation
which the plaintiff has been practicing.
Illustration :
a defendant cannot show his good character as evidence,
to prove that he would not have said defamatory things about the plaintiff
similarly a plaintiff cannot show previous bad character of defendant as
evidence,
to prove that the defendant must have said defamatory things about the
plaintiff.
Case of Hollington vs Hewthorn & Co ltd, 1943 :
Previous criminal conviction cannot be given to show the bad character of a
person in a civil suit.
In this case, an action was brought against the defendant for damages caused
by the defendants negligent driving of a motor car.
The defendant had also been prosecuted for the same accident and
convicted.
The plaintiff sought to give evidence of this conviction in proof of the fact
that he was guilty of careless driving.
However, the evidence was not accepted as admission on the ground that
conviction by a criminal court is at best an opinion of that court that the
defendant was guilty,
and such opinion is not admissible in civil law proceedings.
Case of Attorney General vs Bowman, 1771 :
In this case a man was tried for carrying false weights and offering to corrupt
an officer. He called a witness to testify that he was a man of good character
and conduct.
This was not admitted by the court.
Sec-55 : Character as affecting damages :
Sec-55 [Character as affecting damages] of IEA 1872

allows the character of the plaintiff to be considered as relevant for

determining the amount of damages that he ought to receive.
Case of Scott vs Sampson, 1882 :
In this case a journalist was suing the defendant for libel. The defendant tried
to show the character of the plaintiff but the trial judge refused to admit it.
Upon appeal for retrial, J Cave, held that the evidence should have been
allowed to be admitted. He remarked that if the plaintiff claims an injury to his
reputation, the jury should know whether he is a man of reputation or not
before awarding any damages.
If evidence about the character of the plaintiff is not allowed then there will be
no difference between an honorable person and a cheat. A virtuous woman will
be kept at the same level with a prostitute.
To enable a jury to estimate the quantum of injury sustained, the knowledge
of partys character is relevant.
Relevancy in Criminal Cases : Sec-53 & Sec-54 of IEA 1872 :
Sec-53 : Good character is a relevant fact :
In criminal proceedings,
the fact that the person accused is of a good character, is relevant.
Sec-54 : Previous bad character not relevant, except in reply :
In criminal proceedings
the fact that the accused person has a bad character is irrelevant,
unless evidence has been given that he has a good character, in which case it
becomes relevant.
Explanation 1: This section does not apply to cases in which the bad character
of any person is itself a fact in issue.
Explanation 2: A previous conviction is relevant as evidence of bad character.
Section 53 lays down the general principle that in criminal proceedings the fact that
the person accused is of a good character is relevant
Section 54 lays down that the fact that the accused is of a bad character is
irrelevant in criminal proceedings.
As per Section 53, every accused is at a liberty to show that he is a person of good
character.
The fact that a man has unblemished reputation leads to a presumption that he
is incapable of committing the crime for which he is being tried.
As per Section 54, the prosecution cannot, in its original case, submit evidence
to show bad character of the accused.
However, a if a person gives evidence of his good character

THEN the opposite party is allowed to give evidence of his bad character as a
reply.
Exceptions
When character itself is in issue, evidence of bad character may be given.
When a fact is otherwise relevant, it can be submitted even if incidentally
reveals the character of the accused.
Illustration :
In a divorce case on the ground of cruelty,
the cruel character of the defendant is a fact in issue and evidence can be
given in support of that previous bad character.
The prosecution is allowed to cite a previous conviction as evidence of bad
character of the accused.
Regarding previous conviction, Lord Denning has observed in the case of
Goody vs Oldham Press Ltd, 1967, that
Previous convictions are a class in itself.
They are the raw material upon which bad reputation is built up.
They have taken place in an open court and are of public knowledge.
They are very different from previous misconducts that are not tried in a
court and which therefore might lead to dispute on relevancy.
Explain : Competency to give evidence in Court. (Nov-2011)

ANSWER :
Refer :


Module-2 :
2) Types of evidence :
2.1) Judicial Notice
2.2) Oral Evidence : General Provisions
2.3) Documentary Evidence : General Provisions
2.3.1) Primary and Secondary Evidence and its related provisions
2.3.2) Special provisions as to evidence relating to electronic record and its
Admissibility, proof as to digital Signature & its Verification
2.3.3) Public documents and private documents
2.4) Presumptions as to documents including Gazettes in electronic forms
2.5) Statement by persons who cannot be called as witnesses <discussed in
Module-1>
2.6) Presumption in case of Dowry Death and cases involving violation of
women's rights <discussed in Module-4>
Write short note : Judicial notice (Nov-2011, Oct-2013) <discussed in Module-4>

Define "Evidence" and explain the distinction between oral and documentary evidence
with decided cases. (Nov-2012)
Discuss : General Provisions related to oral and documentary evidence.
Explain the difference between Oral and Documentary evidence, (Oct-2013)
Define the term "Evidence" and explain in detail the meaning of oral as well as
documentary evidence with case law. (Dec-2015)
"Evidence means and includes oral evidence, documentary evidence and conclusive
proof." Explain. (Nov-2011)
Define the terms "Primary" as well as "Secondary" evidences and state their
evidential values with case laws. (Dec-2015)
Discuss : (i) Special provisions relating to electronic record and its
Admissibility, (ii) digital Signature & its Verification.
Explain : Public document. (Nov-2011)
Explain : Private document.
Write short note : Public Document (Oct-2013)

Discuss : (i) Presumptions as to documents, (ii) Gazettes in electronic forms.

Discuss : competency of a witness.
Can a wife be a competent witness against her husband?
Explain : Dumb witness. (Nov-2011)
Write short note : Dumb Witness (Oct-2013)
Explain in detail : Evidential values of the child witness. (Nov-2012, Dec-2015)
Explain in detail the evidential value of the child witness with decided case laws.
(Nov-2014)
Explain : Competency of Accused as a witness.
Explain in detail the evidential value of an Accomplice with decided case laws.
(Nov-2014)
Write short note : Accomplice (Nov-2011, Nov-2012, Oct-2013)
Discuss : Presumption in case of Dowry Death and cases involving violation of
women's rights. <Discussed in Module-4>
Write short note : 30 years old document (Nov-2011)
"Hearsay evidence is not admissible in Law." Explain this statement with an exception.
(Nov-2011)
Hearsay evidence is not admissible in evidence." Discuss this statement in detail and
State its exception with decided cases. (Nov-2012)
"Hearsay evidence is not admissible" Discuss this statement in detail and state its
exception with decided cases. (Nov-2014)
Can firm and partner's statement before excise officer under Section-14 of the Excise
Act, 1944 is admissible in evidence ? Discuss on the basis of provision of Indian
Evidence Act. (Nov-2011)
Write short note : Circumstantial evidence (Oct-2013)
Explain in detail : Circumstantial Evidence (Dec-2015)
Explain with case laws the provisions of privileged communications in Indian
Explain in detail the provisions of Privileged Communications with decided cases.
(Nov-2014)
Explain in detail : Kinds of privilege communications (Dec-2015)
MODULE-2 ANSWERS :

Define "Evidence" and explain the distinction between oral and documentary evidence
with decided cases. (Nov-2012)
Discuss : General Provisions related to oral and documentary evidence.
Explain the difference between Oral and Documentary evidence, (Oct-2013)
Define the terms "Primary" as well as "Secondary" evidences and state their
evidential values with case laws. (Dec-2015)
Discuss : (i) Special provisions relating to electronic record and its
Admissibility, (ii) digital Signature & its Verification.
Define the term "Evidence" and explain in detail the meaning of oral as well as
documentary evidence with case law. (Dec-2015)
"Evidence means and includes oral evidence, documentary evidence and conclusive
proof." Explain. (Nov-2011)
ANSWER :
http://www.srdlawnotes.com/2017/02/when-secondary-evidence-is-
admissible.html
http://www.srdlawnotes.com/2017/02/meaning-and-kinds-of-documentary.html
Intro :
Definition : Sec-61 : Proof of contents of documents :
The contents of documents may be proved either by primary or by secondary
evidence.
What is evidence ?
<Search Meaning of term Evidence in this doc>
Oral Evidence :

Documentary Evidence :
Documentary evidence means all Documents produced for the inspection of the
Court.
Sec-3 : Documentary Evidence :
The expression Document means any matter
expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that
matter.
Illustrations :
A writing is a document;
Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;
A caricature is a document.
Kinds of Documentary evidence :
There are two kinds of Documentary Evidence,
Primary Evidence and
Secondary Evidence.
Primary Evidence :
Definition : Sec-62 : Primary evidence :
Primary evidence means the document itself produced for the inspection of the
Court.
Explanation :
Where a document is executed in several parts,
each part is primary evidence of the document.
Where a document is executed in counterpart,
each counterpart being executed by one or some of the parties only,
each counterpart is primary evidence as against the parties executing it.
Explanation 2:
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 contents of the rest ;
but, where they are all copies of a common original, they are not primary
evidence of the contents of the original.
Illustration :
A person is shown to have been in possession of a number of placards, all
printed at one time from one original.
Here, 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.
Primary evidence is that which is the law requires to be given first.
Secondary Evidence :
Secondary Document is the document which is not original document.
Secondary Evidence is an alternative source of evidence other than original
documents.
Secondary Evidence is that such can be given in the absence of the Primary
Evidence.


Sec-63 : Secondary evidence :

Secondary evidence means and includes,
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with such
copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute
them ;
(5) oral accounts of the contents of a document given by some person who
has himself seen it.
Illustrations :
(a) 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.
(b) A copy compared with a copy of a letter made by a copying machine is
secondary evidence of the contents of the letter,
*IF* it is shown that the copy made by the copying machine was made
from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original,
is secondary evidence;
(d) Neither an oral account of a copy compared with the original, nor an oral
account of a photocopy of the original, is secondary evidence of the original.
ie only an oral account of ORIGINAL could be secondary evidence u/s 63(5)
Secondary Evidence is admissible in the absences of the Primary Evidence.
The value of Secondary evidence is not as that of primary Evidence.
Giving Secondary Evidence is exception to the general rule. And notice is required
to be given before giving secondary evidence.
When Secondary Evidence is Admissible ?
Sec-65 : Cases in which secondary evidence relating to documents may be
given :
Secondary evidence may be given of the existence, condition, or contents of a
document in the following cases
(a) 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 or not subject to the process of the Court,
or of any person legally bound to produce it, and when, after the notice

such person does not produce it ;

(b) when the existence, condition or contents of the original have been
proved to be admitted in writing by the person against whom it is proved;
(c) when the original has been destroyed or lost,
or when the party offering evidence of its contents cannot produce it in
reasonable time ;
(d) when the original is of such a nature as not to be easily movable ;
(e) when the original is a public document within the meaning of Sec-74;
(f) when the original is a document of which a certified copy is permitted to
be given in evidence ;
(g) when the originals consist 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.
In above cases (a), (c) and (d), any secondary evidence of the contents of the
document is admissible.
In above case (b), the written admission is admissible.
In above cases (e) or (f), a certified copy of the document, but no other kind
of secondary evidence, is admissible.
In above 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.
Difference between Primary Evidence and Secondary Evidence :
Primary Evidence Secondary Evidence
1) Primary Evidence is original Secondary Evidence is the document which

document which is presented to is not original document but those
the court for its inspection. documents which are mentioned in Sec-63.
2) Primary Evidence itself is Secondary Evidence is admissible in the

admissible. It is the main source absence of the Primary Evidence. It is an
of Evidence. alternative source of Evidence.
3) Sec-62 of the Evidence Act Sec-63 of the Indian Evidence Act defines
defines Primary Evidence Secondary Evidence
4) Primary Evidence is the best Secondary Evidence is not best evidence

Evidence but is evidence of secondary nature and is
admitted in exceptional circumstances
mentioned in Sec-65.
5) Giving Primary Evidence is Giving Secondary Evidence is exception to

Primary Evidence Secondary Evidence
general rule. the general rule.
6) No notice required before giving Notice is required to be given before giving

Primary Evidence. Secondary Evidence.
7) The value of Primary Evidence is The value of Secondary Evidence is not that
highest. of Primary Evidence
General provisions regarding oral and documentary evidence :

Difference between oral and documentary evidence :

Special provisions on electronic record and its Admissibility :

Digital Signature & its Verification :


GO TO CONTENTS.
Explain : Public document. (Nov-2011)

Explain : Private document.
Write short note : Public Document (Oct-2013)
ANSWER :
Refer :

Public document :

Private document :

Discuss : (i) Presumptions as to documents, (ii) Gazettes in electronic forms.

ANSWER :
Refer :

Presumptions as to documents :

(ii) Gazettes in electronic forms :

Discuss : competency of a witness.

Can a wife be a competent witness against her husband?
Explain : Dumb witness. (Nov-2011)
Write short note : Dumb Witness (Oct-2013)
Explain in detail : Evidential values of the child witness. (Nov-2012, Dec-2015)
Explain in detail the evidential value of the child witness with decided case laws.
(Nov-2014)
Explain : Competency of Accused as a witness.
Explain in detail the evidential value of an Accomplice with decided case laws.
(Nov-2014)
Write short note : Accomplice (Nov-2011, Nov-2012, Oct-2013)
ANSWER :
Refer :
Outline :
Importance of witnesses :
Sec-118 : Who may testify : Competency of a witness :
Sec-119 : Competency of a Dumb witness :
Sec-120, 122 : Can a wife be a competent witness against her husband?
Competency of a Child witness :
Sec-315 of CrPC : Competency of Accused as a witness :
Sec-133, 114(b) : Competency of an Accomplice as a witness :
Who is an Accomplice ?
Guidelines for corroborative evidence to statements of an accomplice :
Difference between evidence given by an accomplice and a co-accused :

Importance of witnesses :
The modern judicial system is based on evidence.
The knowledge of how an event happened is arrived at by the court through
witnesses.
As BENTHAM said, Witnesses are the eyes and ears of justice.
The court gives its finding based on the evidence given by witnesses.
It is important, therefore, to understand who can and cannot be a competent
witness.
Sec-118 : Who may testify : Competency of a witness :
Sec-118 : Who may testify
All persons shall be competent to testify,
unless the Court considers that
they are prevented, from understanding the question put to them,
or from giving rational answers to those questions,
because of
tender years,
extreme old age,
disease, whether of body or mind,
or any other cause of the same kind.
Explanation
A lunatic (mentally ill) is competent to testify,
unless he is prevented by his Lunacy from understanding the questions put
to him and giving rational answers to them.
Nobody is barred from being a witness as long as
he is able to understand the questions that are put to him
as well as is able to give rational replies to those questions.
There may be several reasons because of which a person may not be able to
comprehend the questions and/ or is unable to reply coherently.
Sec-118 does not attempt to define all such reasons but just gives few examples
of such reasons such as
young age (in case of a child),
mental illness,
extreme old age.
It is up to the court to determine whether a person is able to understand the
questions or give rational answers.
Competency is the rule, while incompetency is an exception.

Sec-119 : Competency of a Dumb witness :

Sec-119 : Dumb witnesses
A witness who is unable to speak may give his evidence in any other manner in
which he can make it intelligible, as
by writing or by signs;
but such writing must be written and the signs made in open Court.
Evidence so given shall be deemed to be oral evidence.
Sec-120, 122 : Can a wife be a competent witness against her husband?
Sec-120 :
In all civil proceedings,
the parties to the suit,
and the husband or wife of any party to the suit,
shall be competent witnesses.
In criminal proceedings against any person,
the husband or wife of such person, respectively,
shall be a competent witness.
Thus it is pretty clear that
the spouse of a person can be a competent witness against that person .
Sec-122 : Communications during marriage :
No person who is or has been married
shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been
married;
nor shall he be permitted to disclose any such communication, unless the
person who made it consents,
except in suits between married persons, or proceedings in which one married
person is prosecuted for any crime committed against the other.
Thus, provisions of Sec-120 are subject to Section 122,
which makes the communication between a husband and wife privileged.
In the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that
Husband and wife are both competent witness against each other in civil and
criminal cases.
They are competent witness to prove that there has been no conjugation
between them during marriage.
Competency of a Child witness :
A young child,

if he is able to understand the questions

and is able to reply rationally,
is a competent witness even if he is of a tender age.
In the case of Jai Singh vs State, 1973, Cr LJ,
a seven year old girl who was the victim of attempted rape was produced as a
witness
and her testimony was held valid.
Childs inability to understand oath :
Historically, it was been held in several early cases that
a child under the age of seven years can be a competent witness if,
the child is found to understand the nature and consequences of an oath.
However, since 19th century, understanding oath is not considered critical.
In Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye
witness of a murder was made a witness. She appeared to be intelligent and was
able to answer questions frankly and without any hesitation.
However, she was not able to understand the meaning of oath.
Still her unsworn evidence was admissible in the given circumstances.
In Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, the accused was
charged with the offence of rape of a girl of 8 years of age.
It was held that omission of oath only affects the credibility of the witness and
not competency of the witness.
The question of competency is determined by section 118,
and the only ground that is given for incompetency is,
inability to comprehend the questions
or inability to give rational answers.
The supreme court however has emphasised the need for carefully evaluating
the testimony of a child. Adequate corroboration of his testimony must be looked
from other evidence.
Sec-315 CrPC : Competency of Accused as a witness :
Sec-315 of CrPC :
An accused is a competent witness.
He can given evidence on his behalf.
However, IF he does not,
THEN no comment can be made against the accused or adverse inference be
drawn against him.
Sec-133 : Competency of an Accomplice as a witness :

The word 'accomplice' has not been defined by the IEA 1872.
An accomplice is a person who has taken part, whether big or small, in the
commission of an offence.
Accomplice includes principles as well as abettors.
Who is not an Accomplice ?
person under threat commits the crime,
person who merely witnesses the crime,
detectives,
paid informers,
and trap witnesses.
Often, a small offender is pardoned so as to produce him as a witness against the
bigger offender.
However, evidence by an accomplice is NOT very reliable because
1) he is likely to swear falsely in order to shift blame,
2) as a participator in a crime, he is a criminal and is likely immoral,
and so may disregard the sanctity of oath, and
3) since he gives evidence in promise of a pardon, he will obviously be favorable
to prosecution.
Even so, an accomplice is allowed to give evidence.
Provisions in IEA 1872 :
Following are the provisions in IEA 1872 regarding an accomplice being a
witness,
Sec-133 :
Accomplice is a competent witness against the accused and,
a conviction based on his evidence is not illegal
merely because his evidence has not been corroborated.
Sec-114(b) : The Court may presume,
that an accomplice is unworthy of credit,
unless he is corroborated in material particulars
The idea is that since such a witness is not very reliable, his statements should
be or verified by some independent witness.
This is interpreted as a rule of caution to avoid mindless usage of evidence of
accomplice for producing a conviction.
Guidelines for corroborative evidence to statements of an accomplice :
Since every case is different, it is not possible to precisely specify a formula for

determining whether corroborative evidence is required or not.

In the case of R vs Baskerville 1916, guidelines were framed for requirement
of a corroborative evidence to statements of an accomplice.
1. It is not necessary that there should be an independent confirmation of
every detail of the crime related by the accomplice.
It is sufficient if there is a independent confirmation as to a material
circumstance of the crime.
2. There must be independent confirmation of at least some particulars which
show that the accused committed the crime.
3. The corroboration must be an independent testimony.
i.e one accomplice cannot corroborate other.
4. The corroboration need not be by direct evidence.
It may be through circumstantial evidence.
Above guidelines were confirmed by the Supreme Court in Rameshwar vs State
of Rajasthan, 1952.
Difference between evidence given by an accomplice and a co-accused :
The word 'accomplice' has not been defined by the IEA 1872.
An accomplice is a person who has taken part, whether big or small, in the
commission of an offence.
Accomplice includes principles as well as abettors.
Who is Co-accused ?
Co-accused is one of two or more people accused of the same offence.
The confession of a co-accused (Sec-30) is not treated in the same way as the
testimony of an accomplice because
While, the testimony of an accomplice is taken on oath and is subjected to cross
examination and so is of a higher probative value.
the confession of a co-accused can hardly be called substantive evidence
because it is not evidence within the definition of Sec-3.
While, sometimes (rare) the testimony of an accomplice alone may be sufficient
for conviction.
Testimony of a co-accused must be taken into consideration along with other
evidence in the case and it cannot alone form the basis of a conviction.
Write short note : 30 years old document (Nov-2011)

ANSWER :
Refer :

"Hearsay evidence is not admissible in Law." Explain this statement with an exception.
(Nov-2011)
Hearsay evidence is not admissible in evidence." Discuss this statement in detail and
State its exception with decided cases. (Nov-2012)
"Hearsay evidence is not admissible" Discuss this statement in detail and state its
exception with decided cases. (Nov-2014)
ANSWER :
Refer :
http://www.srdlawnotes.com/2016/12/hearsay-evidence.html
https://www.lawctopus.com/academike/doctrine-of-res-gestae/
act-1872-part-ist/
<Related topic : Res Gestae in Module-1>
<Related topic : What is Dying Declaration in Module-3>
Outline :
Meaning.
Sec-60 : Hearsay Rule : Oral evidence must be direct :
WHY hearsay evidence is not admissible ?
Exceptions : What is NOT hearsay ?
1) Res gestae (statements from part of some transaction: Section 6)
2) Admission and Confessions (Sec-17 - Sec-23 and Sec-24 - Sec-30)
3) Statement by a person who cannot be called as a witness, eg Dying
Declaration, Section 32(1)
4) Evidence given in the former proceedings (Section 33)
5) Statements in public documents (Section 35)
6) Opinions of Experts (Section 45- Section 51); and
7) Entries in books of Accounts (Section 34)
Meaning :

Hearsay evidence signifies the evidence heard and said.

It is also known as second hand unoriginal evidence,
because a witness is merely reporting not what he himself saw or heard
but what he has learnt in respect of the fact through medium of a 3 rd person.
It is a statement made by a witness of what has been said and declared out of
Court by a person and not before the Court.
Evidence given by a witness may be oral or documentary.
Under the hearsay rule (Section 60 Oral evidence must be direct), a court
normally refuses to admit as evidence statements that a witness says he or she
heard another person say.
Sec-60 : Hearsay Rule : Oral evidence must be direct :
Oral evidence must, in all cases whatever, be direct;
that is to say
if it refers to a fact which could be seen,
it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard,
it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other
manner,
it must be the evidence of a witness who says he perceived it by that sense or
in that manner;
if it refers to an opinion or to the grounds on which that opinion is held,
it must be the evidence of the person who holds that opinion on those
grounds:
Provided that
the opinions of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinions are held,
may be proved by the production of such treatises
Provided also that,
if oral evidence refers to the existence or condition of any material thing other
than a document,
the Court may, if it thinks fit, require the production of such material thing
for its inspection.
Illustration -
'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard D
saying that 'D' saw 'A' with B's Cycle.

Such evidence given by 'C' is not admissible on the ground that testimony of C is
hearsay evidence.
WHY hearsay evidence is not admissible ?
According to the Section 60 of the Indian Evidence Act, 1872 oral evidence to be
admissible, it must be direct.
In other words, hearsay evidence is no evidence is a general rule,
because, the hearsay witness may not be able to say correctly and completely
the truth of his statement.
Examples of hearsay evidence :
1) A statement made by a person, not called as witness;
2) A statement contained or recorded in any book, document or record which is
not admissible.
Two reasons make hearsay an inadmissible evidence, (i) unfairness, and (ii)
possible inaccuracy.
(i) unfairness :
Allowing a witness to repeat hearsay, is unfair to the accused/ defendant and
does not provide him with an opportunity to question the speaker of the
original statement,
(ii) possible inaccuracy :
It is possible that the witness may have misunderstood or misinterpreted the
statement. If such an evidence is admitted than it will vitiate the proceedings.
For above reasons, counsel of either side can object to admissibility of such a
witnesss testimony as hearsay.
Exceptions : What is NOT hearsay?
The Indian Evidence Act provides for certain exceptions to the general rule,
hearsay evidence is no evidence.
In other words, hearsay evidence is admissible in the following cases :
1) Res gestae (statements from part of some transaction: Sec-6)
2) Admission and Confessions (Sec-17 - Sec-23 and Sec-24 - Sec-30)
3) Statement by a person who cannot be called as a witness,
eg Dying Declaration, Sec-32(1)
4) Evidence given in special circumstances (Sec-33)
(eg dead, cannot be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party)
5) Statements in public documents (Sec-35)
6) Opinions of Experts (Sec-45- Sec-51); and
7) Entries in books of Accounts (Sec-34)

Note :
ALL of above are discussed elsewhere in this doc.
Can firm and partner's statement before excise officer under Section-14 of the Excise
Act, 1944 is admissible in evidence ? Discuss on the basis of provision of Indian
ANSWER :
Refer :

Write short note : Circumstantial evidence (Oct-2013)

Explain in detail : Circumstantial Evidence (Dec-2015)
ANSWER :
Refer :
http://www.srdlawnotes.com/2016/12/evidence-and-concept-of-
circumstantial.html
http://www.legalserviceindia.com/article/l136-Circumstantial-Evidence.html
Meaning of Direct evidence :
When Evidence is given of the very fact in issue, ie of the matter in controversy, it
is called direct evidence,
Direct evidence is the evidence is that,
which, if believed, goes expressly to the very point in question
and proves it without aid from inference or deductive reasoning,
eg eye witness to a murder is direct evidence.
Meaning of Circumstantial/ presumptive evidence :
The idea of circumstantial evidence is dealt with in the IEA 1872 elaborately.
Circumstantial evidence is a type of evidence that could be a supplement to the
Direct evidence.
Circumstantial Evidence is that,
which tends to establish the fact-in-issue by proving another fact

which does not itself conclusively established that fact.

When evidence is given of circumstances, or relevant facts, from which an
inference may be drawn about the fact in issue,
then it is called circumstantial evidence.
Circumstantial evidence means the evidence of circumstances,
and is sometimes referred to as presumptive evidence.
Circumstantial evidence is the basket of unrelated facts that, when considered
together, can be used to infer a conclusion about something unknown.
Need for circumstantial evidence :
Sometimes, a case has to be decided on the strength of circumstances surrounding
the case,
because it is not possible to find exact proof of events that took place in the
past.
IF direct evidence is not available, then circumstantial evidence can be resorted to.
Nature of circumstantial evidence :
Circumstantial evidence can be information and testimony presented by a party in
a civil or criminal action that permit conclusions that indirectly establish the
existence or nonexistence of a fact or event that the party seeks to prove.
Circumstantial evidence is not considered to be proof that something happened
but it is often useful as a guide for further investigation.
Circumstantial evidence is unrelated facts that, when considered together, can be
used to infer a conclusion about something unknown.
It indirectly establish the existence or nonexistence of a fact or event that a party
seeks to prove.
Distinction between direct and circumstantial evidence has little practical effect in
the presentation or admissibility of evidence in trials.
Illustration :
Suppose, A is charged with the murder of B.
IF, at the trial, witness C gives evidence that he saw A stab B,
Here, evidence given by C is usually referred to as direct evidence
because C makes a statement about the very question which the Court has to
decide, namely, whether A stabbed B.
IF, at the trial, witness C makes the statement that he saw A running away from
the place where B's corpse was found, with a blood-stained knife in his hand,
Here, evidence given by C is usually referred to as circumstantial evidence
because C makes a statement about the circumstance, a relevant fact, which,
if believed, may convince the court of the guilt of A,

If someone was charged with theft of money and was then seen on a shopping
spree purchasing expensive items,
then the shopping spree might be regarded as circumstantial evidence of the
individuals guilt.
Ram and Shyam were always at loggerheads and constantly fighting. One day,
Shyam was found murdered, with a knife in his hand which contained a few
bloodstains.
Here, the fact that Ram had some gashes on his arms would be circumstantial
evidence.
Case-law :
In India the two leading case of Priyadarshani Matoo and Jessica Lal were heavily
based on circumstantial evidence.
Kalua Vs. State Of U.P. AIR 1958 SC 180 :
In this case Kalua was charged with the murder of the deceased by shooting him
with a pistol.
The Circumstantial evidence proved were :
A) Few days before the killing of the deceased, the accused had held out a
threat against him .
B) A cartridge was found near the cot of the deceased.
C) A pistol was recovered from his house .
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the
dead body was fired from pistol produced by accused.
It was held that,
there could be no room for thinking in the circumstances established in this
case, that anyone else than the accused might have shot the deceased.
He was convicted.
Conclusion :
A popular misconception is that circumstantial evidence is less valid or less
important than direct evidence.
This is only partly true :
Direct evidence is generally considered more powerful,
But successful criminal prosecutions often rely largely on circumstantial evidence
Also, often civil proceedings are based on circumstantial or indirect evidence.
In practice, circumstantial evidence often has an advantage over direct evidence in
that it is more difficult to suppress or fabricate.

Explain with case laws the provisions of privileged communications in Indian

Explain in detail the provisions of Privileged Communications with decided cases.
(Nov-2014)
Explain in detail : Kinds of privilege communications (Dec-2015)
ANSWER :
Refer :
Intro :
Sections 122 to 129 contain provisions for protection of privileged communications.
Privileged Communication in simple words means
the communication which law does not allow to be proved or bring into notice of
all.
Sec-122 : Communications during marriage :
No person who is or has been married
shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married;
nor shall he be permitted to disclose any such communication, unless the
person who made it consents,
except in suits between married persons, or proceedings in which one married
person is prosecuted for any crime committed against the other.
Thus, provisions of Sec-120 are subject to Section 122,
which makes the communication between a husband and wife privileged,
and as such can not be proved in a court of law.
In the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that
Husband and wife are both competent witness against each other in civil and
criminal cases.
They are competent witness to prove that there has been no conjugation
between them during marriage.
Sec-123 : Evidence as to affairs of State :
No one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of State,
except with the permission of the officer at the head of the department
concerned,
who shall give or withhold such permission as he thinks fit.

Thus, Sec-123 prevents giving of evidence from unpublished official record relating
to affairs of State except with permission from head of department concerned.
Sec-124 : Official communications :
No public officer shall be compelled to disclose communications made to him in
official confidence,
when he considers that the public interests would suffer by the disclosure.
Thus Sec-124 protects from communication made in official confidence where the
public interest would suffer by such disclosure.
Sec-125 : Information as to commission of offences :
No Magistrate or Police Officer shall be compelled to say whence (from where) he
got any information as to the commission of any offence,
and no Revenue- Officer shall be compelled to say whence (from where) he got any
information as to the commission of any offence against the public revenue.
Explanation -
"Revenue-officer" in this section means
any officer employed in or about the business of any branch of the public
revenue.
Thus, Sec-125 prohibits disclosure of source of information regarding commission
of any offence by Police, Magistrate or Revenue Officer.
Disclosure of professional communication between a lawyer and his client :
Section 126 to 129 prohibit disclosure of professional communication between
Advocate or legal adviser and his client.
This Rule is founded with the intention to effectuate confidence between advocate
and his client.
In the absence of this Rule there is always insecurity in the mind of any client to
give true disclosure to advocate.
Sec-126 : Professional communication :
No barrister or advocate
shall be permitted to disclose communication made by his client
or to state contents or conditions of document of which such advocate has
become acquainted in course of or for the purpose of professional employment
or to disclose advice given by him,
unless such clients consents to such disclosure.
Sec-128 : Privilege not waived by volunteering evidence :
If any client gives evidence in any suit on his own,
it does not deemed to have consented to disclose as is mentioned in Sec-126.


Module-3 :
3) Dying Declaration, Stages of Examination of Witnesses :
3.1) Dying Declaration: Definition, Principle for relying upon Dying Declaration
3.1.1) Evidential Value of Dying Declaration
3.1.2) Essentials for recording Dying Declaration
3.1.3) Judicial Approach for appreciation of the contents of Dying
Declaration
3.2) Stages of Examination of Witnesses:
3.2.1) Examination in Chief
3.2.2) Cross Examination :
Essentials
Art of Cross Examination
3.2.3) Re-examination
3.3) General Principles of examination and cross examination
3.4) Lawful questions in cross-examination
3.5) Leading questions
3.6) Hostile witness, Impeaching of the standing or credit of witness
Explain in detail the provisions of "Dying declaration" and its evidential value with
decided cases. (Nov-2012, Nov-2014)
Discuss : Essentials for recording Dying Declaration.
Discuss : Judicial Approach to contents of Dying Declaration.
Write an essay on - "Dying Declaration". (Oct-2013)
Explain in detail the meaning of "Dying Declaration" and state its evidential value with
case laws. (Dec-2015)
State in detail the stages of examination of witnesses with decided cases. (Nov-
2012, Dec-2015)
Explain examination-in-chief, cross-examination and re-examination. Discuss
their scope and limitations. (Nov-2011)
Discuss : General Principles of examination and cross examination.
Explain the stages of Examination of Witness. (Oct-2013)

Explain the stages of Examination of Witnesses with case laws. (Nov-2014)

What is a leading question ? When may it be asked ? When it may not be asked ?
(Nov-2011).
Write short note : Leading questions (Oct-2013)
1. What type of question can be asked by both sides ?
2. What question can NOT be asked during examination-in-chief ?
Explain in detail regarding "Leading Questions" with case laws. (Dec-2015)
Discuss : Essentials & art of Cross Examination.
Discuss : Impeaching of the standing or credit of witness.
Explain : Refreshing memory of witness. (Nov-2011)
Who is a hostile witness ? When can a party cross examine his own witness ? (Nov-
2011)
Discuss : Cross-examination of witness by the party who called him.
Write short note : Hostile Witness (Oct-2013)
MODULE-3 ANSWERS :
Explain in detail the provisions of "Dying declaration" and its evidential value with
decided cases. (Nov-2012, Nov-2014)
Discuss : Essentials for recording Dying Declaration.
Discuss : Judicial Approach to contents of Dying Declaration.
Write an essay on - "Dying Declaration". (Oct-2013)
Explain in detail the meaning of "Dying Declaration" and state its evidential value with
case laws. (Dec-2015)
ANSWER :
Refer :
http://www.srdlawnotes.com/2016/12/what-is-dying-declaration.html
act-1872-part-ist/
Related topics :
1. Res Gestae in Module-1
2. Statement by persons who cannot be called as witnesses in Module-1
3. Hearsay evidence in Module-2.

Outline :
What is Dying Declaration ?
Reasons For admissibility of dying declaration :
Importance of Dying Declaration :
Infirmities/ Disadvantages of Dying Declaration :
Summary of Sec-32 and Sec-33 of IEA 1872 :
Essentials of a Dying Declaration :
Evidential value of Dying Declaration :
Judicial Approach to contents of Dying Declaration :
What is Dying Declaration ?
It is said, no body knows better as to cause of his death other than he himself.
Dying declaration in fact is a surviving declaration. Declarant died and statement
survives. It is declaration of a dead person.
Public policy allows that such statement may be admissible as proved, subject to
certain strict rules.
A dying declaration is a declaration written or verbal 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.
For example,
if a man declares to a doctor, just before his death that,
he was pushed from the top floor of a building to his demise,
it is a dying declaration.
The general rule of evidence is that,
hearsay evidence is no evidence and is not admissible in evidence.
However, Section 32 and 33 of the Evidence Act are among the Exceptions. eg
Dying Declaration is an exception to this general rule.
Dying Declaration is an exception to the general rules as to relevancy of fact which
provides that the statement made by witness in connection of fact or fact in issue
are relevant.
However, under Section 32 a statement made under certain circumstances
become relevant, even though person is not called as a witness before the court.
Illustration :
Sam has been attacked by Anna.
Here, if Sam, shortly before death makes a declaration holding Anna,
responsible for his injuries, it is called "Dying Declaration'.
A killed B. Before his death, B made certain statement to doctor as to cause of

his death i.e. who caused those injuries.

Now, as matter of general rule, his statement should not be proved for the
reason that a dead man cannot be brought to the court to testify something on
oath.
Dying declaration is primary evidence.
Rational for exception in case of dying declaration :
Generally, no statement given by any person can be used as evidence, until he
comes to the court and testified on oath as to veracity of his statement.
However, in those cases where calling that person to court would be futile
because either he exist no more or lives at some place from where he could
not be brought to the court,
and he makes certain statement which is so relevant to the case,
THEN as a matter of public policy the same must be allowed to be proved.
Dying declaration is admissible for the following two reasons :
1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends
of justice.
2) Declaration made by a person under exception of death is presumed to be
true.
Importance of Dying Declaration :
The legal maxim nemo moriturus proesumitur mentiri translates to a man will
not meet his maker with a lie in his mouth.
There is heavy conscience at the time of death of a person,
therefore law presume that there is a possibility of true statement as to the
cause of his death.
Dying Declaration also has moral and religious aspect behind it because a person
who is on the bed of death, about to die generally speaks true, so as to attain
spiritual benefits in other world.
An injured person making Dying Declaration will not implicate in a wrong person
who is not at all responsible for such injuries.
It is more logical and realistic concept because person who is on the bed of Death
will not implicate the name of wrong person for the cause of his death,
and he will not allow his enemy to go unpunished who is responsible for his
death.
Infirmities/ Disadvantages of Dying Declaration :
Personality, circumstances and the character of the person making Dying
Declaration :
1. There also is a relative element to death, which changes from person to

person.
Statement a person who is about to die is likely to tell the truth and truth only
is only a half truth as in case of harden criminals.
It is the personality, circumstances and the character of the person making
Dying Declaration that decides the relevancy of Dying Declaration.
2. Victim, while giving dying declaration,
may blame someone due to short term rage/ fury/ madness against that person.
3. Victim, overtaken by his own irrational apprehensions,
may blame someone who may, in reality be an innocent.
4. There is no oath administered :
When a person is called as witness in the Court he has to make a statement on
oath.
5. There is no cross-examination of such person making Dying Declaration :
The need of cross-examination is to judge the credibility of the witness.
It is the right of defendant to question the witnesses to extract the truth.
However, in case of Dying Declaration the defendants have no opportunity of
cross-examination of the witness who is dead.
6. Witness is not present before the Court :
Behavior, manner of answering the question of witness before the Court is a vital
aspect in law because it gives opportunity to the judges to judge the character,
personality of the witness
This element is absent in dying declaration and hence it is not accepted as a rule
Summary of Sec-32 and Sec-33 of IEA 1872 :
<For details read Statement by persons who cannot be called as witnesses from
Module-1>
Sec-32 : Statements,
written or verbal,
made by a person,
who is dead,
or who cannot be found,
or who has become incapable of giving evidence,
or whose attendance cannot be procured without unreasonable delay or
expense,
are themselves relevant facts in the following cases :
(1) When it relates to cause of death :
When the statement is made by a person as to the cause of his death,

or as to the circumstances of the transaction which resulted in his death,

Such statements are relevant.
Sec-33 :
Following are the classes of person who cannot be called as witness under
section 32
and their statements allowed to be proved in their absence.
1) person who is dead:
2) or, person who cannot be found
3) or, who has become incapable of giving evidence: or
4) or, is kept out of the way by the adverse party,
4) or, whose attendance cannot be produced without unreasonable delay or
expense?
Illustration :
(a) The question is,
whether A was murdered by B ;
or whether A was ravished (rape) by B --- [A died of injuries received in a
transaction in the course of which she was ravished];
or whether A was killed by B under such circumstances that a suit would lie
against B by As widow.
In ALL above questions
statements made by A as to the cause of his/her death,
referring respectively to the murder, the rape or the actionable wrong,
are relevant facts.
Essentials of a Dying Declaration :
Evidence as to Dying Declaration should be as exact and full as possible because
there is no cross-examination of such person making Dying Declaration.
Hence, Court insists that dying declaration should be of such a nature as to
inspire the full confidence of the Court in its correctness.
Essentials of Dying Declaration are,
1) It must be a statement, written or verbal
2) The person making statement must have died.
3) The statement relate to the cause of his death or the circumstances of the
transaction which related in his death and not the cause of the death of someone
else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the

statement.
Evidential value of Dying Declaration :
The evidentiary value of dying declaration will vary according to the circumstances
of a particular case in which it is made.
Dying Declaration is evidence but sometimes it is a weak piece of evidence.
It has to be corroborated by other evidence for example other facts and
evidence supporting Dying Declaration.
It gives guidance to the Court, the Court has to accept the Dying Declaration as a
suspicious statement.
It is duty of the judge to consider the valuation of Dying Declaration.
Such valuation of Dying Declaration depends upon following ,
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/ Statement is made.
4) Who recorded the statement?
5) Whether the statement is recorded in the same language and in a same word
of the declarant.
Judicial Approach to contents of Dying Declaration :

Conclusion :
Even though Dying Declaration is said to be of weak piece of evidence it is
relevant, because it is a good available evidence as to the cause of his death after
his death.
It cannot be laid down as an absolute rule of law that dying declaration cannot
form the sole basis of conviction unless it is corroborated.
Before such statements are admitted in evidence, it must be proved that who made
the statement is dead and gone and therefore cannot appear before the court
Unless this fact is proved, the statement is not admissible.
When the statement is admitted under u/s 32 & 33, it is a substantive evidence
and has to be considered along with other evidence.

GO TO CONTENTS.
State in detail the stages of examination of witnesses with decided cases. (Nov-

2012, Dec-2015)
Explain examination-in-chief, cross-examination and re-examination. Discuss
their scope and limitations. (Nov-2011)
Discuss : General Principles of examination and cross examination.Explain the
stages of Examination of Witness. (Oct-2013)
Explain the stages of Examination of Witnesses with case laws. (Nov-2014)
ANSWER :
Refer :
https://kanwarn.wordpress.com/2012/03/16/indian-evidence-act-examination-of-
witnesses-part-1-of-3/
Outline : Chapter X [Sec-135 to Sec-166]
Procedure for witness examination : [Sec-135, 136]
Sec-135 talks about Order of production and examination of witnesses.
Sec-136 says that it is up to the Judge to decide as to admissibility of evidence
Sec-137 defines three stages of examination of a witness as follows
Sec-138 specifies the order of examinations
Sec-139 Cross-examination of person called to produce a document
Stages of examination of witnesses :
1. Examination-in-chief :
2. Cross-examination : [Sec-146]
Scope of Cross Examination
3. Re-examination :
Intro :
Witnesses are examined by the parties or their advocates by the way of asking
questions,
with a view to elicit responses that build up a factual story.
To be able to derive meaningful conclusions from the statements of the witnesses,
it is necessary to follow a standard pattern in presenting them and questioning
them before the court.
It will also be impractical and time consuming to call witnesses multiple times at
random. Besides causing severe inconveniences to the witnesses, it will also not be
helpful in arriving at a decision.
Thus, standard procedure for examining a witness must followed so that a trial can
proceed swiftly.
Chapter X [Sec-135 to Sec-166] deals with the examination of evidence.

Further the chapter also deals with how the evidence is presented and witnesses
lay their testimony in the court as well as the powers of the judges in such matters.
Care be taken that, each question put up to the witness, by any party,
should call for a fact and not for opinions or conclusions on law.
Procedure for witness examination : [Sec-135-136]
Sec-135 talks about Order of production and examination of witnesses.
It reads that,
the order in which witness are produced and examined shall be regulated by
the law and practice
and in the absence of any such law, by the discretion of the Court.
By and large, the order in which the witnesses are to be presented for
examination is to be decided by the party leading the evidence, and the court is
reluctant to interfere with the order.
However, the court has the discretion to do so as long as it is fairly exercised.
Sec-136 says that it is up to the Judge to decide as to admissibility of evidence.
The Section reads as follows.
When either party proposes to give evidence of any fact,
the Judge may ask the party proposing to give the evidence
in what manner the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he thinks that the fact, if proved,
would be relevant,
If the fact proposed to be proved is one of which evidence is admissible only
upon proof of some other 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.
If the relevancy of one alleged fact depends upon another alleged fact being first
proved, the Judge may, in his discretion,
either permit evidence of the first fact to be given before the second fact is
proved,
or require evidence to be given of the second fact before evidence is given of
the first fact.
Illustrations :
X is accused of receiving stolen property knowing it to have been stolen. It is
to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property.

The Court may, in its discretion, either require the property to be identified
before the denial of the possession is proved, or permit the denial of the
possession to be proved before the property is identified.
Keeping Sec-5 of the Act, a Judge may ask the party proposing to give evidence
of any fact, in what manner the alleged fact will be relevent if proved.
A party seeking to put a document in evidence must show the section or
provisions under which the document is admissible
Sec-137 defines three stages of examination of a witness as follows
1. Examination-in-chief
The examination of a witness, by the party who calls him, shall be called his
examination-in-chief.
2. Cross-examination
The examination of a witness by the adverse party shall be called his cross-
examination.
3. Re-examination
The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.
Sec-138 specifies the order of examinations
Witnesses shall be first examined-in-chief
then (if the adverse party so desires) cross-examined,
then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts
but the cross-examination need not to be confined to the facts which the
witness testified on his examination-in-chief.
Direction of re-examination
The re-examination shall be directed to the explanation of matters referred to
in cross-examination,
and if new matter by permission of the Court, introduced in re-examination,
the adverse party may further cross-examine upon that matter.
Sec-138 says that witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross examined, then (if the party calling him so desires) re-
examined.
Sec-139 : Cross-examination of person called to produce a document :
Sec-139 says that
A person summoned to produce a document
does not become a witness by the mere fact that he produces it
and cannot be cross examined unless and until he is called as a witness.

In Bijoy Bharati Vs Fakrul Hussain 1976 3 SCC 642 it was held that,
a person who is called to the court JUST to produce a document can not be
cross-examined.
What if the party, on whose behalf witness is called, offers cross-examination
WITHOUT examination-in-chief ?
If the prosecution does not examine its witness and offers him to be cross-
examined,
it is tantamount to abandoning ones own witness and therefore, a witness
cannot be thrown open to cross examination unless he is first examined-in-chief.
Stages of examination of witnesses :
1. Examination-in-chief :
The first stage is where a witness is examined by the party who has called it.
Examination in Chief is the first examination after the witness has been sworn or
affirmed.
It is the prerogative of the party by whom the witness has been called
to examine him in chief
so as to get all the material facts within his knowledge to prove such a partys
case.
The object of the examination in Chief is
to make the witness depose to what he has been called by the party calling
him to prove.
In this stage, the goal of the party is
to make the witness make statements that prove the facts alleged by the
party.
The party asks questions, the responses to which are expected to support the
factual story submitted by the party.
Examination-in-chief must be confined to the relevant fact
and no leading questions can be asked except with the permission of the court
2. Cross-examination :
The second stage is where the witness is cross examined by the opposite party.
Cross- Examination is a powerful tool in defence.
As per Sec-146, the objective of the questions asked in cross examination is
a) to test the veracity of the witness,
b) to discover who the person is and what is his condition in life and
c) to shake his credit by injuring his character. [Sec-146]
Cross- examination can at times take form of intensive questioning with the

expected answers hinted to in such questions itself.

In this stage the goal of the party which is cross-examining the witness is
to poke holes in the story of the witness with a view to discredit the evidence
that the witness has given.
However, when it is intended to suggest to the court that the witness is not
speaking the truth on a particular point, it is necessary to direct his attention to
it by questions in this stage.
The witness must then be given an opportunity
to explain the apparent contradictions while he is in the witness box.
In Ganesh Jadhav Vs State of Assam 1995 1 CR LJ 111, it was held that,
if the defense fails to challenge the relevant facts that have been stated by the
prosecution witness in the examination-in-chief,
the court may take it as acceptance of the truth of such facts as was
decided
In the case of Ravinder Kumar Sarma vs State of Assam, 1999, the appallant
sued two police officers for damages for malicious prosecution. The appallant put
questions in that regard to one of them who denied the allegation that he
demanded a bribe. However, he did not put the allegation on the other police
officer.
It was held that the appellant had not properly substantiated the allegation.
Scope of Cross Examination
As mentioned in Section 138 the cross-examination must relate to relevant
facts.
However, the cross-examination need not be confined to the facts which the
witness testified on his examination-in-chief.
Thus, the scope of cross examination is quite wide.
3. Re-examination :
This is the final stage of witness examination.
IF, in the cross examination stage, inconvenient answers are given by the
witness,
then the court may, at its discretion, allow the witness to be re examined by
the party who called the witness.
Re-examination cannot be claimed as a matter of right,
and its purpose is,
to explain the new points or matter that may have been raised in the cross-
examination
to nullify adverse impact of cross-examination, and

to reestablish the credibility of examination-in-chief.

The Re Examination is not confined to the matters discussed in Examination in
Chief.
New matter may be elicited with the permission of the court and in such a
case, the opposite party can again Cross examine the witness on new matters.
In Tej Prakash vs State of Haryana, 1996, it was held that
tendering a witness for cross examination without examination in chief is not
warranted by law and it would amount to failure to examine the witness at the
trial.
Sec-138 provides a valuable right to cross examine a witness and Sec-146
further gives the right to ask additional questions to shake the credibility of the
witness.
In case of Rajendra vs Darshana Devi, 2001, it was held that,
if a party has not taken advantage of these provisions, he cannot be allowed to
complain about the credibility of the witness.
What is a leading question ? When may it be asked ? When it may not be asked ?
(Nov-2011)
Write short note : Leading questions (Oct-2013)
Explain in detail regarding "Leading Questions" with case laws. (Dec-2015)
ANSWER :
Refer :
https://kanwarn.wordpress.com/2012/03/16/indian-evidence-act-examination-of-
witnesses-part-1-of-3/
<Read Essentials & art of Cross Examination in this doc>
Questions about relevant facts can be asked to the witness.
The witness should be left to tell the story in his own words.
Witness should be given ample scope to answer the question from the
knowledge that he posses about the case.
As per Sec-144, a witness can be asked to give oral evidence of statements made
by other persons about the contents of documents if such statements are in

themselves relevant facts.

eg the question is, whether X assaulted Y.
M deposes that he heard X say to N that Y wrote a letter accusing me of theft,
and I will be revenged on him.
This statement is relevant, as showing Xs motive for the assault, and evidence
may be given of it, even though no other evidence is given about such a letter.
Note : Sec-144 is applicable to witness examination by both sides.
The purpose of witness examination is that, the witness can tell the relevant facts
in his own words and put them across himself.
Leading questions :
Sec-141 : Meaning
Any question suggesting the answer which the person putting it wishes or
expects to receive is called a leading question.
Sec-142 : When they must not be asked :
Leading questions must not, if objected to by the adverse party,
be asked in an examination-in-chief, or in a re-examination, except with the
permission of the Court.
Sec-143 : When they may be asked :
Leading questions may be asked in cross- examination.
A leading question is where a person does not have this freedom.
It is said that leading questions put the answer in the mouths of the witnesses.
Examples of leading question :
Do you live at XYZ place, City M ?,
Did you not work with Mr X for five years ?
Is your name so and so ?
Did you not see the accused leave the premise at 8 PM ?
A question, do you not live at such and such address?, amply gives hint to the
witness and he will immediately say yes.
Instead, the question should be, where do you live? and he then should be
allowed to answer in his own words.
From above examples, it is clear that leading questions are those questions,
where the question itself contains the answer and the examiner is merely trying
to confirm (yes/no) those answers with the witness.
WHY restrict leading questions in examination-in-chief, or in a re-examination ?
The purpose of Examination in Chief of a witness is to enable the witness to tell

the court the relevant facts of the case.

Hence, questions should be put to him about relevant facts
and he should be given ample scope to answer the question from the
knowledge that he posses about the case.
The witness should be left to tell the story in his own words .
However, as seen in above examples, instead of eliciting information from a
witness, information is being given to the witness.
This does not help the court arrive at the truth.
If this type of questioning is allowed in Examination in Chief,
the examiner would be able to construct a story through the mouth of the
witness that suits his client.
This affects the rights of the accused to a fair trial as enshrined in Article 21 of
the constitution and is therefore not allowed.
Normally, the opposite party raises an objection when a leading question in
asked in Examination in Chief or Re Examination.
If the examining party then desires, it can request the court for its permission
to ask the question.
Court permits the question if it pertains to matters which are introductory,
matters on which there is no dispute, or matters which are already proven.
Summary :
Questions about relevant facts can be asked to the witness. However, he should be
given ample scope to answer the question from the knowledge that he posses
about the case. The witness should be left to tell the story in his own words.
Leading question should not be asked except in the following situations
1. In Examination in Chief and Re examination if
the opposite party does not object or
the court permits the question overruling the objection of the opposite party
2. In Cross examination.
Discuss : Essentials & art of Cross Examination.

Discuss : Impeaching of the standing or credit of witness.
Explain : Refreshing memory of witness. (Nov-2011)
ANSWER :
Refer :


<short note>Impeaching standing or credit of witness :
After the examination-in-chief of a witness such is witness is subjected to cross
examination by adverse party.
It is the right of adverse party in any proceeding to cross examine the witness
produce to depose against such party.
When a party has called a witness to testify in his favour,
then adverse party has been given legal instrument to check the truthfulness
and veracity of such witness by cross examining him.
Scope of cross examination is wider than examination-in-chief
cross examination need not to be confined to facts only testified by witness in
examination-in-chief.
Following questions may be asked to a witness in his cross examination :
(i) (Section 138)
Any relevant question, including those which do not confine to fact deposed to
in examination-in-chief.
(ii) (Section 142 and 143)
Any leading question.
(iii) Any question relating to contents of a document by asking for production of
such document, if has not been produced earlier.
(iv) (Section 145)
Any question relating to relevant previously written statement of such witness,
with a view to contradict the witness by such previous statement by drawing
his attention to such statement,
before such writing can be proved.
(v) (Section 146)
Any question to test his veracity.
Any question to discover who he is and what is his position in life .
Any question to shake his credit by injuring his characters although the
answer to such question might tend directly or indirectly to incriminate him or
might expose him to penalty or forfeiture.
How is standing or credit of witness impeached ?
It would be unfair to convict anybody on the testimony of a liar.
Hence, it is imperative upon the adverse party to make sure that the witness is
credible by asking questions that may impeach the credit of the witness.

Sec-153 :
When a witness is questioned to shake his credit by injuring his character,
then no evidence shall be given to contradict him.
However, if witness tenders false answers, THEN such evidence which
contradicts him may be given and witness may afterwards be charged with
giving false evidence
Illustration :
Question : Are you a thief?
Allow witness to answer without producing any documentary evidence of
witness being a thief.
IF witness says he is not a thief,
THEN product documentary evidence to prove that,
witness is a thief,
witness gives false answers,
and hence, testimony given by the witness can not be relied upon.
Sec-155 provides,
the ways through which the credit of a witness may be impeached.
In Raj Bahadur Lal v. State of U.P. AIR 1972 All. 308, Allahabad HC observed that
As per Section 136 of Evidence Act, the court has discretionary power to exclude
irrelevant question.
The court may also disallow the question which are against the public policy or
any law.
Unless a judge is alert and vigilant, cross examination, may sometimes turn into
an engine of torture of witness.
A judge must always be in control of the proceedings in court and court should
disallow the hypothetical question to ordinary witness.
In State of UP vs Nahar Singh, AIR 1998, SC held that,
if you intend to impeach a witness,
you are bound, while he is in witness box, to give him an opportunity to
explain, even as a rule of profession ethics and fair play.
<Long note>
Impeaching standing or credit of witness :
Impeaching credit of a witness is a very important tactic in the hands of a lawyer.
Impeaching credit of a witness means to show the real character of the witness so
that the court may not trust him.
Credibility of a witness is very important for the court in deciding the truth of the

testimony.
Provisions in IEA 1872 regarding impeaching standing or credit of witness :
Under the IEA 1872, Sec-145 and Sec-146 provide for mechanism to test credibility
of the witness.
Sec-145 allows the cross-examination of a witness with respect to,
previous statements made by him in writing or reduced into writing
and relevant to matters in question,
without such writing being shown to him, or being proved;
but, if it is intended to contradict him by the writing,
his attention must, before the writing can be proved, be called to those parts
of its which are to be used for the purpose of contradicting him.
The general rule is that the contents of a writing cannot be used
unless the writing is it self produced.
Sec-145 is an exception to this rule.
The purpose is two-fold,
one that the credit of the witness can be impeached,
as well as that the statement cannot be used as a positive evidence of the
facts contained in writing.
Sec-145 mandates that if any contradiction in the evidence of a witness in his
previous statement is intended to be used,
the attention of the witness must be called to that particular part of his previous
statement and has to proved in an appropriate manner.
Sec-146 :
A witness during cross-examination, may, in addition to the questions herein
before referred to, be asked any questions which tend :
1) to test his veracity.
2) to discover who he is and what is his position in life, or
3) to shake his credit, by injuring his character, although the answer to
such questions might tend directly or indirectly to incriminate him or might
expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Need for Impeaching standing or credit of witness :
As per Section 146, it is lawful to ask questions during cross examination to test
veracity or witness or to discover who he is and what his position is in life, and to
shake his credit by injuring his character.
Thus, it is clear that the credit of a witness can be impeached by the adverse party
in his cross examination.
When it appears that the witness is not speaking the truth, it is necessary to draw

his attention to the same by piercing questions in cross examination.

To be fair, it cannot be concluded that a witness is unworthy of credit, without
giving him an opportunity to explain while he is still in the witness box.
In State of UP vs Nahar Singh, AIR 1998, it was held by SC that,
if you indent to impeach a witness, you are bound, while he is in witness box,
to give him an opportunity to explain, even as a rule of profession ethics and
fair play.
A similar provision is given by Section 145 as well, which allows
cross examining the witness about his previous writing,
without such writing is shown to him or is proved.
More over, when a witness turns hostile or unfavorable, u/s 154, the same right (ie
impeaching standing or credit of witness) becomes available to the party who has
called the witness.
Sec-154, says that the Court may, in its discretion, permit the person who calls
a witness to put any questions to him which might be put in cross-examination
by the adverse party.
The How to impeach standing or credit of witness ?
If a witness denies the suggestions put in cross examination, evidence to contradict
him can be called.
This flows from the general rule given in Section 5, which allows evidence of
relevant facts to be given.
However, when such evidence is not relevant otherwise and is only useful in
shaking the credit of the witness,
then the provisions of Section 153 and 155 are applicable.
Sec-153 provides that when a witness is questioned to shake his credit by injuring
his character,
then no evidence shall be given to contradict him.
However, if witness tenders false answers, THEN such evidence which
contradicts him may be given and witness may afterwards be charged with
giving false evidence
Illustrations :
(a) A witness is asked whether he was not dismissed from a situation for
dishonesty.
He denies it.
At this stage, evidence is offered to show that he was dismissed for
dishonesty.
The evidence is not admissible.

(b) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it.
At this stage, evidence is offered to show that A was on that day at
Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects
his credit, but as contradicting the alleged fact that B was seen on the day
in question in Lahore.
Note :
In each of these cases the witness might, if his denial was false, be charged
with giving false evidence.
Sec-153 provides an important protection to the witness against character
assasination.
If a witness has answered a question whose purpose is only to discredit him,
then, whatever may be his answer,
no evidence can be shown to disprove or contradict him.
However,
this applies only to answers that are not relevant to the facts of the case.
this does not apply to answers to questions that are relevant to the case.
The two exceptions contained in the section are meant to prevent misuse of
this provision. Thus,
a person is not allowed to lie about his prior conviction,
and he is not allowed to be partial.
Thus, as explained in illustration (b), if a witness denies a suggestion that he is
biased, evidence may be given that proves otherwise.
Sec-155 : The credit of a witness may be impeached in the following ways by the
adverse party, or, with the consent of the Court, by the party who calls him :-
(1) by the evidence of persons who testify that they, from their knowledge of the
witness believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a
bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence
which is liable to be contradicted;
(4) When a man is prosecuted for rape or an attempt to ravish, it may be shown
that the prosecutrix was of generally immoral character.
Explanation
A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief,

but he may be asked his reasons in cross-examination,

and the answers which he gives cannot be contradicted, though, if they are
false, he may afterwards be charged with giving false evidence.
Illustration :
A is indicated for the murder of B.
C says that B, when dying, declared that A had given B the wound of which
he died.
Evidence is offered to show that, on a previous occasion, C said that the
wound was not given by A or in his presence.
The evidence admissible.
Refreshing memory of witness :

Who is a hostile witness ? When can a party cross examine his own witness ? (Nov-
2011)
Discuss : Cross-examination of witness by the party who called him.
Write short note : Hostile Witness (Oct-2013)
ANSWER :
Refer :
Meaning of hostile witness :
IEA 1872, does not mention terms Hostile Witness or Unfavorable witness.
In general, a witness is considered to be a hostile witness,
when he has feelings which are against the party which has invited him for his
testimony,
or when he adopts an adverse stance towards the party which has invited him.
A similar but categorically different kind of witness also exists which is called as
Unfavorable Witness.
An unfavorable witness is not hostile towards the calling party,
but his testimony fails to give evidence in support of the calling party
or gives evidence that proves the opposite of what the calling party intends to
prove.
A mere inconvenient answer given by a witness is not sufficient to declare him

hostile.
The court must be satisfied that he has really turned hostile to the party calling
him as a witness.
Cross-examination of witness by the party who called him :
In both above cases, it becomes important for the calling party to put such
questions to the witness that would discredit his testimony.
Such questions are normally asked by the adverse party in cross examination,
but when a witness turns hostile or unfavorable, the witness can be cross
examined by the party who had called the witness.
Sec-154 : Question by party to his own witness
(1) The Court may, in its discretion, permit the person who calls a witness to put
any questions to him which might be put in cross-examination by the adverse
party.
(2) Nothing in this section shall dis-entitle the person so permitted under sub-
section (1), to rely on any part of the evidence of such witness.
Unlike the law in England, in India,
the grant of permission to cross examine ones witness by a party is not
conditional on the witness being declared hostile or unfavorable.
Granting such permission is entirely upon the discretion of the court.
The discretion is unqualified and is used whenever the court gets a feeling from the
temper, attitude, demeanor, or past statements of the witness, that he is being
untruthful or has become un-creditable.
Credibility of testimony given by a hostile witness :
It is not correct that,
once a witness is declared hostile, his entire testimony should be excluded
because the only purpose of cross examination is to discredit the witness.
The purpose of cross examination is not merely to discredit the witness,
but is also to elicit true facts about the case that would build the case of the
cross examiner.
When a party confronts his own witness, with the permission of court,
he does so with the hope that the witness might revert back to his story that
supports the calling party.
Moreover, Sec-154 does not technically tantamount to cross examination,
because, strictly speaking, cross examination can only be done by the adverse
party.
Therefore, any party the calling party or the adverse party may rely on any part
of the statement of such a hostile/ unfavourable witness, as provided u/s 154(2).

In the case of Sat Pal vs Delhi Administration, 1976, it was held that,
in a criminal prosecution, when a witness is cross examined and contradicted with
the leave of the court by the party calling him,
his evidence cannot, as a matter of law, be treated as completely wiped off the
record altogether.
It is for the court to consider in each case whether as a result of such cross
examination and contradiction, the witness stands thoroughly discredited or still
can be believed in regard to a part of his testimony.
Procedure to declare a witness as hostile :
The court will exercise its discretion only when it is satisfied that,
the witness has turned hostile to the party who calls him as a witness.
In criminal cases,
the court may be so satisfied by examining the statement given by the witness
and recorded by the police during investigation under Section 162 of CrPC and
comparing with the evidence given.
before the Court exercises its discretion to declare a witness as hostile.
In civil cases,
if an advocate has prepared a proof of the evidence of the witness in his
chambers,
this could be produced in court and compared with the testimony of the
witness,
before the Court exercises its discretion to declare a witness as hostile .
Questions that can be asked to a hostile witness :
The extent of the questions that can be asked to a hostile witness,
is same as that of the extent of the questions that can be put in cross
examination by an adverse party.
THUS, when a witness turns hostile or unfavorable,
the right of Impeaching standing or credit of witness (Sec-146) that is
prerogative of adverse party,
also becomes available to the party who has called the witness.
<for details search Impeaching standing or credit of witness in this doc>

Module-4 :
4) Burden of Proof and Estoppel :
4.1) Burden of Proof: Meaning
4.1.1) The general conception of onus probandi
4.1.2) General and special exceptions to onus probandi
4.2) The Justification of presumption and of the doctrine of judicial notice
4.3) Justification as to presumptions as to certain offences
4.3.1) Presumption as to abatement of suicide by a married woman (Sec.
113-A) and dowry death (Section 113-B)
4.3.2) Presumption as to absence of consent in certain prosecution for rape
(Sec. 114-A)
4.4) The Scope of the doctrine of judicial notice (Section 114)
4.5) Estoppel: Meaning, importance
4.5.1) Distinction : Estoppal, res judicata, Waiver and presumption
4.5.2) Kinds of Estoppel:
Estoppel by deed
Estoppel by conduct
Equitable and Promissory Estoppel
Tenancy Estoppel
4.6) Questions of corroboration (Section 156-157)
Explain in detail the meaning of "Proof" and explain term "Burden of Proof" in detail
with case laws, (Dec-2015)
Discuss : (i) onus probandi (Burden of Proof), (ii) General and special exceptions
to onus probandi.
Explain in detail the provisions of "Burden of Proof" with decided cases. (Nov-2012)
Explain - "The Burden of Proof". (Oct-2013)
Explain in detail the provisions of "Burden of Proof" with case laws (Nov-2014)
Discuss in detail : Presumptions.
Explain : 'May Presume, 'Shall Presume and Conclusive Proof.

Discuss : Classification of Presumptions.

Discuss : distinction between Presumption of Fact and Presumption of Law.
Explain in detail : May presume and shall presume. (Nov-2012)
Discuss : Presumption as to abatement of suicide by a married woman (Sec.
113-A) and dowry death (Section 113-B).
Discuss : Presumption as to absence of consent in certain prosecution for
rape (Sec. 114-A).
Discuss : Facts which need not be proved.
Discuss : Scope of the doctrine of judicial notice (Section 114).
Explain in detail the provisions of "Estoppel" and its kinds with decided cases. (Nov-
2012, Nov-2014)
Distinguish : (1) Estoppal, (2) res judicata, (3) Waiver, (4) presumption.
Discuss kinds of Estoppel : (A) Estoppel by record, (B) Estoppel by deed, (C)
Estoppel by conduct, (D) Equitable and Promissory Estoppel, (E) Tenancy
Estoppel.
Explain the principle of Estoppel and its kinds. (Oct-2013)
Explain in detail the principle of Estoppel and its kinds. (Dec-2015)
Discuss : Questions of corroboration (Section 156-157).
MODULE-4 ANSWERS :
Explain in detail the meaning of "Proof" and explain term "Burden of Proof" in detail
with case laws, (Dec-2015)
Discuss : (i) onus probandi (Burden of Proof), (ii) General and special exceptions
to onus probandi.
Explain in detail the provisions of "Burden of Proof" with decided cases. (Nov-2012)
Explain - "The Burden of Proof". (Oct-2013)
Explain in detail the provisions of "Burden of Proof" with case laws (Nov-2014)
ANSWER :
Refer :
http://www.srdlawnotes.com/2016/04/burden-of-proof.html
http://commonlaw-sandeep.blogspot.in/2016/03/leading-evidence-during-
trial.html
Outline : Sec-101 to Sec-117

Meaning of 'Burden of Proof' :

General Principles of Burden of Proof : [Sec-101 to Sec-103]
Short note on exceptions to burden of proof.
Exception-1 : Rules of Convenience : [Sec-104 to Sec-111]
Exception-2 : Presumptions : [Sec-4 May Presume, Sec-79 to Sec-90A], [Sec-111A
to Sec-114A]
Exception-3 : Estoppel : [Sec-115 to Sec-117]
Intro :
Chapter VII, Sec-101 to Sec-1174 of Indian Evidence Act 1872 deals with the
provisions of "burden of Proof".
The word 'burden of proof' has not been defined in Evidence Act.
The question is which out of two parties has to prove a fact. The answer to this
question decides the question as to burden of proof .
It is a fundamental principle of criminal jurisprudence that
guilt of accused is to be proved by the prosecution,
and an accused should be presumed to be innocent.
According to Sec-101,
"When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person".
Burden of proof has 2 distinct meanings,
one the legal burden ie burden of establishing the case,
and second evidential burden for example burden of leading evidence.
Meaning of 'Burden of Proof' :
In short The burden of proof means the obligation to prove a fact.
Every party has to establish fact which go in his favour or against his opponent and
this is the burden of proof.
GENERAL Principles of Burden of Proof :
Summary : Sec-101 to Sec-103 are known as General Rules of Burden of Proof.
Sec-101 : the burden of proving facts alleged / asserted, would always lie upon
the person who comes to the Court,
claiming certain rights or attributing certain liabilities upon the opposite party;
subject to exceptions & presumptions that shift burden of proof
Until such burden is discharged, the opposite party is not obliged to lead
Sec-102 : The burden of proof in a suit or proceeding lies on that person,
who would fail if no evidence at all were given on either side.

Sec-103 : The burden of proof as to any particular fact

lies on that person who wishes the Court to believe in its existence,
eg, where any of the party alleges fraud, misrepresentation, mistake, coercion,
admission, confession etc,
the burden lies upon him to prove such fraud etc.
Concept :
Theoretically the basis for Burder of Proof is divided into two parts -
A) Concept of onus probandi
B) Factum probans
Thus together how to prove facts and who shall prove or who shall prove and to
what extend ?
Burden of proof is constant. Onus shifts.
ie what is to be proved is fixed. But, who shall prove that is to be decided.
This liabilities to prove the fact is known as onus (burden),
which may, depending upon specific ingredients of facts,
shift from shoulder of one party to the shoulder of another party.
The rule of burden of proof in civil and criminal cases is of different nature.
In civil proceedings, the party who alleges certain things must prove his
case,
but proving beyond doubt is not necessary.
In criminal cases, also the party who alleges certain things must prove his
case,
however the guilt of the accused is to be proved beyond reasonable doubts
otherwise the accused gets benefits of doubt.
Sec-101, Sec-102 and Sec-103 of the IEA 1872, provides three general rules as
burden of proof.
Sec-101 of Evidence Act incorporate the first principle of any litigation that,
the burden of proving facts alleged / asserted, would always lie upon the
person who comes to the Court,
claiming certain rights or attributing certain liabilities upon the opposite
party;
and until such burden is discharged, the opposite party is not obliged to lead
ie whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence to facts which he asserts,

must prove that those facts exist.

subject to exceptions & presumptions (listed below) that shift burden of proof
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Illustration
(a) A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the
possession of B, by reason of facts which he asserts, and which B denies to be
true.
A must prove the existence of those facts.
Supreme Court in Jarnail Sen vs State of Punjab A I R 1996 SC 755 held that
in Criminal Case, the burden of proving of the guilt of the accused beyond all
reasonable doubt always lies upon prosecution,
and therefore if it is fails to adduce the satisfactory evidence to discharge the
burden, it cannot fall back upon evidence adduced by the accused person in
support of their defence to rest its solely thereupon.
Definition : Sec-102 : On whom burden of proof lies :
The burden of proof in a suit or proceeding lies on that person,
who would fail if no evidence at all were given on either side .
Thus, Sec-102 tries to locate the party on whom the burden of proof lies.
Illustration :
(a) A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, Bs father.
If no evidence were given on either side, B would be entitled to retain his
possession.
Therefore, the burden of proof is on A to prove the will.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by
fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not
disputed and the fraud is not proved.
Therefore the burden of proof is on B to prove fraud.
Definition : Sec-103 : Burden of proof as to particular fact
The burden of proof as to any particular fact
lies on that person who wishes the Court to believe in its existence,

unless it is provided by any law that the proof of that fact shall lie on any
particular person.
Illustration :
A prosecutes B for theft. A wishes the Court to believe that B admitted the
theft to C. B claims alibi that he was elsewhere at that time.
Here, A must prove the admission.
IF A proves admission,
Then, B must prove he was elsewhere, so as to win acquittal.
Otherwise, B is guilty of theft.
Exceptions to General Rules of Burden of Proof :
ALL presumptions are exceptions to the rules of burden of proof,
converse may not be true.
Estoppel is also an exception to the burden of proof.
Following are the 5 exceptions to general rule :
1) (Sec-105) Where the accused takes plea that his case falls within the
exceptions,
like of plea of alibi, plea of self defense, plea of intoxication, plea of minor,
the burden falls upon him to prove such plea,
and the law will presume the absence of such alibi, self defense etc. .
eg A, accused of murder, alleges that, by reason of unsoundness of mind, he
did not know the nature of the act.
The burden of proof is on A.
2) (Sec-106) Where a Fact to be proved is especially or substantially within the
knowledge of the opposite party,
and in the backdrop of the circumstances, the opposite party would be the only
person who would be in the position to throw light on the said factual situation,
the burden of proof of that fact may shift upon that person;
eg A is charged with traveling on a railway without a ticket.
The burden of proving that he had a ticket is on him.
3) (Sec-107, 108) When, in respect of a fact, a rebuttal presumption of law
exists in favour of a party,
then burden to prove the said fact lies upon the opposite party to prove /
disprove / rebut the presumption of law,
so as to cause burden of proof to be shifted again upon the original party
eg Sec-108 : When the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years,

the burden of proving that he is dead is on the person who affirms it.
4) (Sec-114) Having regard to
the natural course of events, ordinary and prudent human conduct and
behaviour (indicated u/s 114 of Evidence Act),
the burden of proof may shift upon the opposite party;
eg A man who is in possession of stolen goods soon after the theft,
is either the thief,
or has received the goods knowing them to be stolen,
unless he can accounts for his possession.
5) Admission/ confession : Estoppel : [Sec-115 to Sec-117]
A fact which has been admitted by a party and which is against the interest of
that party, is held against the party.
Estoppels are also exception to General Rules of Burden of Proof.
eg, A was recorded as saying that he committed theft at the said premises.
If A wants to deny this admission the burden of proof rests on A to prove so
Conclusion :
The general rule with regard to burden of proving the fact is that,
he who asserts must Prove,
subject to exceptions and presumptions that shift burden of proof.
The rule is in accordance with the principle that the burden of proof is upon the
party for substantially asserts the affirmative of the issue but not on the party for
denies.
The reason behind this rule is that who drags another to the court must bear the
burden of proving the fact which he asserts.
Further it is very difficult to establish a negative when compared to an affirmative
the expression.

GO TO CONTENTS.
Discuss in detail : Presumptions.

Explain : 'May Presume, 'Shall Presume and Conclusive Proof.
Discuss : Classification of Presumptions.
Discuss : distinction between Presumption of Fact and Presumption of Law.
Explain in detail : May presume and shall presume. (Nov-2012)

Discuss : Presumption as to abatement of suicide by a married woman (Sec.

113-A) and dowry death (Section 113-B).
Discuss : Presumption as to absence of consent in certain prosecution for
rape (Sec. 114-A).
ANSWER :
Refer :
http://www.srdlawnotes.com/2016/04/burden-of-proof.html
http://www.srdlawnotes.com/2016/12/distiinction-between-presumption-
of_15.html
http://www.srdlawnotes.com/2017/03/classification-of-presumptions-under.html
http://commonlaw-sandeep.blogspot.in/2016/03/leading-evidence-during-
trial.html
https://www.lawteacher.net/free-law-essays/contract-law/presumptions-as-to-
indian-evidence-act-documents-contract-law-essay.php
http://www.shareyouressays.com/knowledge/difference-between-presumptions-of-
law-and-presumptions-of-fact/119209
http://hanumant.com/LOE-Unit11-Presumptions.html
Outline :
Intro : Burden of proof :
Concept of Presumptions in IEA 1872 :
Presumptions may be true or untrue :
Presumption shifts burden of proof : They are exception to burden of proof :
Differentiate Presumption and Proof :
Classification of Presumptions :
1) Presumptions of Fact or Natural Presumption : (generally rebuttable)
2) Presumptions of law or Artificial Presumption :
A. Rebuttable :
B. Irrebutable or Conclusive presumptions of law :
3) Mixed Presumptions (Presumption of Fact and law both) :
Distinction Between Presumption of Fact and Presumption of Law :
Summary of Presumptions in IEA 1872 :
Sec-4 : Presumption of fact : May presume -vs- Shall presume -vs- Conclusive
proof :
Sec-104 : Burden of proving fact to be proved to make evidence admissible :
Sec-105 : Burden of proving that case comes within exceptions :
Sec-106 : Burden of proving fact specially within knowledge

Sec-107 : Burden of proving death of person known to have been alive within 35
years :
Sec-108 : Burden of proving that person is alive who has not been heard of for 7
years :
Sec-109 : Burden of proof as to relationship in the case of partners, landlord and
tenant, principal and agent :
Sec-110 : Burden of proof as to ownership :
Sec-111A : {maintain peace, law & order in disturbed area}
Sec-112 : {Birth during marriage, conclusive proof of legitimacy}
Sec-113 : {Proof of cession of territory}
Sec-113A : {Presumption : abatement of suicide by a married women}
Sec-113B : {Presumption as to dowry death}
Sec-114 : {Court may presume existence of certain facts}
Sec-114A : {Presumption : absence of consent in some cases of rape}
Sec-115, 116, 117 : Estoppel.
Intro : Burden of proof :
<read elsewhere in this doc>
Concept of Presumptions in IEA 1872 :
A presumption is,
an acceptance of a proposition as true or existent,
based upon its strong probability evident from the circumstances.
Term Presumption can be defined as,
"an idea that is taken to be true on the basis of probability" or " a belief.
eg, if a man has not been heard from for 7 years by his closest relatives,
the court may believe in that the man is dead. This is a presumption.
Presumptions may be true or untrue :
eg X finds Y's Bike in front of a restaurant,
Here, X may presume that Y is in the Restaurant.
When X entered into the restaurant,
he found Y, then Xs presumption is correct/ true.
he found Z (Y's brother), then X's presumption is incorrect.
In IEA 1872, some presumptions (as to fact or law) are made.
Some of them are rebuttable, some are irrebutable.
Presumption is a rule which is used by judges and courts to draw inference from a
particular fact or evidence unless such an inference is said to be disproved.

When the court presumes the existence of a fact because of its strong probability
but without a direct or conclusive proof,
it is called as presumption.
A presumption is a rule where,
if one fact which is known as the primary fact is proved by a party,
then another fact which is known as the presumed fact is taken as proved
unless there is no contrary evidence of the same.
Presumption shifts burden of proof : They are exception to burden of proof :
Presumption is an inference drawn from facts which are known and proved.
Presumptions shift onus probandi (Burden of Proof).
When a fact is presumed, the party in whose favor the fact is, is relieved of the
initial burden of proof.
eg, as per Negotiable Instruments Acts, every holder of an instrument is
presumed to be a holder for consideration.
If a person A holds a cheque signed by another person B,
it is presumed that A has given consideration for the cheque,
A does not have to provide any proof of that consideration.
Thus, presumptions are exception to the general rule that,
the party which alleges the existence of certain facts has the initial burden of
proof.
ie, ALL presumptions are exceptions to the rules of burden of proof,
converse may not be true.
Note : Estoppels are also exception to the burden of proof.
Differentiate Presumption and Proof :
Proof may be effected by (1) evidence, (2) admissions, or (3) judicial notice.
1. Presumptions are the means, and proof is the end, of judicial inquiry.
2. Presumption is merely an inference.
Proof is that which leads to the conclusion as to the truth or falsity of alleged
facts which are the subject of inquiry.
3. Some presumptions are rebuttable and operates in favour of a party, until the
opponent disproves it by an evidence to the contrary.
Proof is not rebuttable,
Classification : In IEA 1872, presumptions can be broadly Classified as follows :
<Note : Different sources give different classifications. Work on this.>
1) Presumption of Fact or Natural Presumption (generally rebuttable)
{Sec-86-88, Sec-90}

2) Presumption of law or Artificial Presumption

A. Rebuttable.
{Sec-104-111, Sec-111A, Sec-112, Sec-113, Sec-113A, Sec-113B, Sec-114A}
B. Irrebuttable or Conclusive.
{Sec-115, 116, 117}
3) Mixed presumptions of fact & law.
{Sec-4, Sec-114}
1) Presumption of Fact or Natural Presumption (generally rebuttable) :
Presumptions of fact are those inferences which are naturally and logically derived
on the basis of experience and observations
in the course of nature
or the constitution of the human mind
or springs out of human actions.
These are also called as material or natural presumptions.
These presumptions are in general rebuttable presumptions.
Sections 86 - 88, 90 lay down the provisions relating to Presumption of Fact or
Natural Presumptions as stated below :
Section 86 : Presumption as to certified copies of foreign judicial records
Section 87 : Presumption as to Books, Maps and Charts
Section 88 : Presumption as to Telegraphic Messages
Section 90 : Presumption as to documents thirty years old
2) Presumption of law or Artificial Presumption :
Presumptions of law or artificial presumptions are inferences or propositions
established by law.
Meaning of Presumptions of Law :
Presumption of law are consequences that are annexed by law to particular
facts. They are legal fiction.
The law requires a certain inference to be made,
whenever such facts appear
which the law assumes as the basis of the inference for another fact.
When there is a presumption of law, no discretion is vested in the Court at all.
Presumptions of law are, in reality rules of law and part of the law itself.
They may not be same as the inferences that we may ordinarily draw,
but the law prescribes that such inference may be drawn.
Presumptions of law are of two kinds :

A. Rebuttable, and
B. Irrebutable.
A. Rebuttable :
Rebuttable Presumptions of law are those presumptions of law which hold
good until they are disproved by evidence to the contrary.
This kinds of presumptions are rules,
which may be rebutted by evidence to the contrary
but are conclusive in absence of such evidence.
Following are the examples of this presumptions :
Sec-104-111, Sec-111A, Sec-112, Sec-113, Sec-113A, Sec-113B, Sec-114A
lay down the provisions relating to rebuttable Presumption of Law.
Section 102 : On whom burden of proof lies.
Section 107 : Burden of proving death of person known to have been alive
within thirty years.
Section 108 : Burden of proving that person is alive who has not been heard of
for seven years.
Section 113A : Presumption as to abatement of suicide by a married women
Section 113B : Presumption as to dowry death
Illustration :
A man is presumed innocent until he is proved guilty is a presumption of
law
burden shifts to the prosecution to prove him guilty.
Presumption of law that a person who has not been heard from for seven
years is dead.
this presumption is rebuttable by showing evidence.
A child is born in a legal wedlock shall be presume legitimate.
Burden shifts to the one who questions his legitimacy to disprove it.
B. Irrebutable or Conclusive presumptions of law :
These Presumptions are those legal rules
which are not outcome of any evidence that the fact is otherwise,
but are legal principles.
Presumptions of Law are those presumptions of law which are held to be
conclusive in nature.
ie they cannot be overturned by any sort of contrary evidence however
strong it is.
Illustration : it is a presumption of law (Sec-82 IPC) that,

A child below 7 years of age is not capable of committing a crime.

this presumption cannot be rebutted.
Law presumes the age of the child as a conclusive proof of his innocence
Following are the examples of this presumptions :
Sec-82 of IPC, Sec-115 to Sec-117 (Estoppel) of IEA 1872 lay down the
provisions relating to rebuttable Presumption of Law.
Section 115. Estoppel
Section 116. Estoppel of tenant and of license of person in possession
Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee
<Read from Explain in detail the provisions of Estoppel" in this doc>
3) Mixed presumptions of fact & law : Presumption of Fact and law both :
Mixed presumptions of law and Fact are mainly confined to the English law of real
property.
Section 4 of the IEA 1872 controls these sections and gives a direction to courts as
to how proceed under those sections of the evidence act.
Mixed presumptions (ie presumptions of law and fact both) are indicated in some
sections of IEA 1872 with, phrases like
may presume . . . certain fact
shall presume . . . certain fact,
and certain fact . . .is conclusive proof of . . .certain another fact.
Sec-114 is also an example of Mixed type Presumption of Law :
Distinction Between Presumption of Fact and Presumption of Law :
Presumption of Fact Presumption of Law

May Presume (Module-1) (Module-2 & 4)
1 Presumption of fact is based on logic, Presumption of law is based on
human. provisions of law.
2 The position of Presumption of fact is The position of Presumption of law is
uncertain. certain and uniform.
3 Presumption of fact is always Some Presumption of law are
rebuttable and goes away when rebuttable. They are conclusive unless
explained or rebutted by rebutted as provided under rule.
establishment of positive proof.
4 Presumption of facts is discretionary Presumption of law is mandatory. The
presumption. The court can ignore court cannot ignore presumption law.
presumption of fact however strong Court is bound to draw presumption of
it is. The Court can exercise its law.
discretion while drawing

Presumption of Fact Presumption of Law

May Presume (Module-1) (Module-2 & 4)
presumptions of fact.
5 The presumptions of fact are derived The presumptions of law are derived on
on basis of law of nature, prevalent established judicial norms and they
customs and human experience. have become part of legal rules.
Summary of Presumptions in IEA 1872 :

Sec-4 : May Presume :
Sec-104 : Burden of proving fact to be proved, to make evidence admissible :
years :
years :
Sec-113A : {Presumption as to abatement of suicide by a married women}
Sec-114A : {Presumption as to absence of consent in some cases of rape}
{Sec-115, 116, 117} ---> Estoppel
Sec-4 May Presume :
<Read Presumption of fact : May presume -vs- Shall presume -vs- Conclusive
proof from Module-1>
Sec-104 : Burden of proving fact to be proved, to make evidence admissible :
where the admissibility depends upon the proof of burden of another fact,
the party who wants to prove it will have to prove the fact on which admissibility
depends.
Illustration :
A wishes to prove a dying declaration by B.

A must prove Bs death.

A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
If the accused claims that each case comes within any of the recognized exception
the burden of proving that lies on him.
Illustrations :
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he
did not know the nature of the act.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was
deprived of the power of self-control.
Sec-105 of IEA specifies an exception to this general rules of onus probandi.
When an accused claims the benefit of the General Exception clauses of IPC,
the burden of proving that he is entitled to such benefit is upon him.
eg, if an accused claims the benefit of insanity in a murder trial, it is up to the
accused to prove that he was insane at the time of committing the crime.
In the case of K M Nanavati vs State of Maharashtra, AIR 1962,
Nanavati was accused of murdering Prem Ahuja, his wifes paramour, while
Nanavati claimed innocence on account of grave and sudden provocation.
The defences claim : When Nanavati met Prem at the latters bedroom, Prem
had just come out of the bath dressed only in a towel; an angry Nanavati swore
at Prem and proceeded to ask him if he intends to marry Sylvia and look after
his children. Prem replied, Will I marry every woman I sleep with?, which
further enraged (grave and sudden provocation) Nanavati. Seeing Prem go
for the gun, enclosed in a brown packet, Nanavati too went for it and in the
ensuing scuffle, Prems hand caused the gun to go off and instantly kill himself.
Here, SC held :
There is a presumption of innocence in favor of the accused as a general rule
and it is the duty of the prosecution to prove the guilt of the accused beyond
any doubt.
But when an accused relies upon the general exception or proviso contained in
any other part of the Penal Code, Section 105 of the Evidence Act throws a
burden on him to prove that there existed a grave and sudden provocation.
In absence of such proof, Nanavati was convicted of murder.

When any fact is specially within the knowledge of any person,

the burden of proving that fact is upon him.
Illustrations :
A is charged with traveling on a railway without a ticket.
The burden of proving that he had ticket is on him
years :
When the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years,
then the burden of proving that he is dead is on the person who affirms it.
years :
When the question is whether a man is alive or dead,
and it is proved that he has not been heard of for seven years by those who
would naturally have heard of him if he had been alive,
then the burden of proving that he is alive is shifted to the person who affirms it.
When the question is whether persons are partners, landlord and tenant, or
principal and agent,
and it has been shown that they have been acting as such,
the burden of proving that they do not stand, or have ceased to stand to each
other in those relationships respectively, is on the person who affirms it.
When the question is, whether any person is owner of anything of which he is
shown to be in possession,
the burden of proving that he is not the owner is on the person who affirms that
he is not the owner.
(1) Where a person is accused of having committed any offense specified in sub-
section (2), in-
(a) any area declared to be disturbed area under any enactment, making
provision for the suppression of disorder and restoration and maintenance of
public order; or
(b) any area in which there has been, over 1+ month, extensive disturbance of
the public peace,
and it is shown that such person had been at a place in such area at a time

when firearms or explosives were used to attack or resist the forces charged
with the maintenance of public order,
it shall be presumed, unless the contrary is shown, that such person had
committed such offense.
(2) The offenses referred to in sub-section (1) are the following, namely -
(a) an offense under section 121, section 121-A, section 122 or Section 123 of
the IPC; {waging war, collecting arms to wage war, concealing waging war}
(b) criminal conspiracy or attempt to commit, or abatement of, an offence under
section 122 or section 123 of the IPC. {collecting arms to wage war}
The fact that any person was born during the continuance of a valid marriage
between his mother and any man,
or within two hundred and eighty days after its dissolution, the mother
remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access to each
other at any time when he could have been begotten
Case : Smt. Dukhtar vs Mohd.Farooq Air 1987 SC.1049.
A notification in the official Gazette that,
any portion of British territory has
before the commencement of Part III of the Government of India, Act, 1935
been ceded to any Native State, Prince or Ruler
shall be conclusive proof that a valid cession of such territory took place at the
date mentioned in such notification.
Sec-113A : {Presumption : abatement of suicide by a married women}
When the question is whether the commission of suicide by a women had been
abetted by her husband or any relative of her husband
and it is shown that
she had committed suicide within a period of seven years from the date of her
marriage
and that her husband or such relative of her husband has subjected her to
cruelty,
the court may presume that such suicide had been abetted by her husband or by
such relative of her husband.
Explanation :
For the purposes of this section, cruelty shall have the same meaning as in

section 498-A of the IPC 1860.

When the question is whether a person has committed the dowry death of a
women,
and it is shown that
soon before her death such woman had been subjected by such person
to cruelty or harassment
for, or in connection with, any demand for dowry;
the court shall presume that such person had caused the dowry death.
Explanation :
For the purposes of this section, dowry death shall have the same meaning as
in section 304B of the IPC 1860.
The Court may presume the existence of any fact which it thinks likely to have
happened,
regard being had to
the common course of natural events,
human conduct
and public and private business,
in their relation to the facts of the particular case.
Thus,
Having regard to the natural course of events, ordinary and prudent human
conduct and behaviour, indicated u/s 114 of Evidence Act,
the burden of proof may shift upon the opposite party
Illustration :
The Court may presume -
(a) That a man who is in possession of stolen goods after the theft,
is either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in
material particular;
(c) That evidence which could be and is not produced would, if produced be
unfavorable to the person who withholds it;
(d) That if a man refuses to answer a question which he is not compelled to
answer by law, the answer, if given, would be unfavorable to him;
But the Court shall also have regard to such facts as the following, in considering

whether such maxims do or do not apply to the particular case before it -

Sec-114A : {Presumption : absence of consent in some cases of rape}
In a prosecution for rape under Sec-376(2) of the IPC 1860, ( eg rape by Police)
where sexual intercourse by the accused is proved,
and the question is whether it was without the consent of the woman alleged to
have been raped
and such woman states in her evidence before the court that she did not
consent,
the court shall presume that she did not consent.
Explanation
In this section, "sexual intercourse" shall mean any of the acts mentioned in
Sec-375 of the IPC 1860.
Sec-115, 116, 117 :
These are Estoppel.
<Search this doc for Explain in detail the provisions of Estoppel>
Discuss : Facts which need not be proved.

Discuss : Scope of the doctrine of judicial notice.
ANSWER :
Refer :
Outline : Following facts need not be proved :
1. Facts judicially noticeable need not be proved : [Sec-56 & Sec-57]
2. Facts admitted need not be proved : [Sec-58]
3. Court may presume existence of certain facts : [Sec-114]
Intro :
Generally, if a fact is alleged by any party to a suit or criminal case,
that party has to provide proof of the truthfulness of that fact to the court.
However, Indian Evidence Act allows the court to accept certain kinds of facts
without any necessity to be proven by any party.
These kinds of facts are specified in Section 56, 57, 58, and 114.
1. Facts judicially noticeable need not be proved :
IEA 1872 Provisions :

No fact of which the Court will take judicial notice need be proved.
This means that if the court is bound to take notice of a particular fact, the
parties do not have the burden of proving that fact.
It is part of the judicial function to know that fact.
For example, the court is bound to know the various laws and customs of the
country. A party does not need to provide any proof when stating such facts.
Sec-57 :
Facts for which a court will take judicial notice are specified in Section 57.
The Court shall take judicial notice of the following facts :
Laws in force in India,
Public Acts of Parliament,
Local, and person acts declared by it to be judicially noticed,
Articles of War for Indian armed forces,
the rule of the road, land, or sea, that vehicles in India must keep to the left
of a road etc,
the territories under the dominion of Govt. of India.
In all these case, the court may resort appropriate books or documents of
reference for its aid.
Moreover,
the list of facts for which court shall take judicial notice is not exhaustive .
Sec-57 of IEA 1872 merely provides that the court must take judicial notices
of the facts enumerated in that section.
There is NO prohibition on court from takings judicial notice of any other
facts
To understand these points, we need to look at the meaning of judicial
notice
Meaning of Taking Judicial Notice :
Taking Judicial Notice means recognition of something as existing or as being
true without having any proof.
Judicial notice is based upon reasons of convenience and expediency.
Certain things are so commonly known that any ordinary person is aware of it
and it is a waste of time to seek any proof for such things.
eg it is a commonly known fact that,
certain parts of MP, Bihar, and AP are naxalite affected
or that J&K is a terror stricken area.

A court does not need to spend time in looking for its proof.
Thus, judicial notice is the cognizance taken by the court itself of certain matter
which are so notorious or clearly established that the evidence of their existence
is unnecessary.
In the case of Managing Committee of Raja Sidheshwar High School vs State of
Bihar, AIR 1993,
the court took judicial notice of the fact that,
education in the state was virtually crumbled.
In another case, court took judicial notice of the fact that,
several blind persons have acquired great academic distinction.
If the court is called upon by a person to take judicial notice of a fact,
it may refuse to do so unless and until such person produces any such book or
document as it may consider necessary to enable it to do so.
The basic requirement for taking judicial notice is that the fact has to be of a
class that is so general as to give rise to the presumption that all people are
aware of it
Note that,
a judge cannot bring his personal knowledge into judicial notice if that
knowledge is not public knowledge.
Just because a judge knows something does not make it a thing of common
knowledge.
J Chandrachud observed that,
a court does not operate in ivory tower. It can take cognizance of facts that
are happening all around it. Shutting judicial eye to the existence of such facts
and matters is in a sense an insult to common sense and would reduce the
judicial process to a meaningless and wasteful trial.
No court therefore need to insist upon a formal proof of notorious facts such as
date of polls, passing away of an eminent person, or events that have rocked
the nation.
2. Facts admitted need not be proved :
No fact need to be proved in any proceeding which the parties thereto agree to
admit at the hearing,
or which, before the hearing, they agree to admit by any writing under their
hands,
or which by any rule, in force at the time, are deemed to have been
admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.
This basically means that
if a fact has been admitted by a party, the other party need not provide proof of
that fact.
For example,
1. admissions made in written statements, that have not been controverted by
the other side or things said before and accepted to be said in the trial need not
be proved.
2. Averments made in a petition, that have not been controverted by the
respondent, carry the weight of a fact admitted.
However, an admission may not necessarily constitute conclusive evidence of the
fact admitted.
This section allows the court, discretionary power, to ask for some other proof
of the admitted fact.
3. Court may presume existence of certain facts :
The court may presume the existence of any fact which it thinks likely to have
happened,
regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case.
eg a person may be presumed to be dead if his whereabouts are not known for
seven years. Such facts need not be proven.
<For details, search Discuss in detail : Presumptions in this doc>
Explain in detail the provisions of Estoppel and its kinds with decided cases. (Nov-2012,
Nov-2014)
Distinguish : (1) Estoppal, (2) res judicata, (3) Waiver, (4) presumption.
Discuss kinds of Estoppel : (A) Estoppel by record, (B) Estoppel by deed, (C)
Estoppel by conduct, (D) Equitable and Promissory Estoppel, (E) Tenancy
Estoppel.
Explain the principle of Estoppel and its kinds. (Oct-2013)
Explain in detail the principle of Estoppel and its kinds. (Dec-2015)
ANSWER :
Refer :

http://www.srdlawnotes.com/2016/04/the-doctrine-of-estoppel-under-indian.html
http://www.srdlawnotes.com/2016/12/meaning-and-kinds-of-estoppel.html
https://www.studynama.com/community/threads/867-Law-of-Evidence-lecture-
notes-pdf-ebook-download-for-LLB-students
(i) Estoppel :
The expression 'Estoppel' is derived from the French word 'Estoup' which means,
'shut the mouth".
When a person by declaration (act or omission) makes/ induces another to believe
a thing,
he cannot deny its truth subsequently. And the other person cannot be estopped
from proceeding upon such declaration.
Estoppel is rule of evidence, by which a person is not allowed to plead the contrary
of a fact or state of things, which he formally asserted as existing.
The doctrine of Estoppel is based on the principal of equity.
Sec-115 to Sec-117 of Indian evidence Act 1872 deals with the provision doctrine
Estoppel.
It would be most inequitable and unjust if one person is allowed to speak contrary
to his earlier statement, because it may cause loss and injury to the person who
has acted on such earlier statement.
Object :
To Prevent commission of fraud against another.
Meaning of Estoppel :
Estopped means stopped,
A person is not allowed or permitted to speak contrary to his earlier statement
Definition of Estoppel :
Sec-115 of the IEA 1872 defined Estoppel as follows :
When one person has,
by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be
true and to act upon such belief,
he shall not be allowed, in any proceeding between himself & such person,
to deny the truth of that thing.
Illustration :
A intentionally and falsely leads B to believe that certain land belongs to A,
and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside
the sale on the ground that, at the time of the sale, he had no title.

Here, A must not be allowed to prove his want of title, due to Estoppel.
Essential ingredients for application of Doctrine of Estoppel : For application the
doctrine following conditions have to be satisfied -
1) There must be a representation made by one person to another person.
2) The representation must have been made as to fact and not as to law.
3) The representation must be as to an existing fact.
4) The representation must be intended to cause a belief in another.
5) The person to whom the representation is made must have acted upon that
belief and must have suffered a loss.
In Ambika Prasad Mohanty vs Orissa Engineering College & ors AIR1989 Orissa 173
The plea was against cancellation of admission of student admitted in private
Engineering College after the selection.
The cancellation was on the ground that he not had secured minimum marks in
qualifying examination as prescribed in college prospectus.
However, the university regulation does not prescribe any minimum marks for
eligibility for admission to the engineering college.
College was estopped from canceling the admission.
Exceptions to doctrine of Estoppel :
page-182 of studynama
(1A) Estoppel by Record :
Estoppel by record arises in case where a judgment has been given by a
competent court,
and the effect of it is that the matters decided cannot be reopened by a person
who is a party to the judgment or his representative.
In India,we do not use this rule. But rely upon the principle of Res Judicata to
get the same effect.
(1B) Estoppel by deed :
Estoppel by deed does not obtain in India.
English law attaches a particular importance to deeds, with the result that if a
person makes a statement in a deed he cannot say the opposite of it later.
It means when a person enters into an agreement, and his statement is
furnished therein, he shall not be permitted to deny his statement.
(1C) Estoppel by conduct :
When a person, by acts or words or deeds induces another person to believe
the existence of a things and make him to act upon it,
he is estopped from denying the existence of such facts.
(1D) Equitable and Promissory Estoppel :


(1E) Tenancy Estoppel :
Sec-116 : Estoppel of tenant and of license of person in possession :
No tenant of immovable property or person claiming through such tenant
shall be permitted to deny that the landlord of such tenant had (at the
beginning of the tenancy) a title to such immovable property;
and not person who came upon any immovable property by the license of the
person in possession thereof,
shall be permitted to deny that such person has a title to such possession at
the time when such license was given.
THUS, Sec-116 prevents and disables the tenant,
from denying the title of the landlord at the beginning.
In other words, no tenant in possession shall be permitted to challenge or
question the title of landlord at the time of commencement of Tenancy.
Similarly, no person who came upon any immovable property by the licence of
the person in possession thereof,
shall be permitted to deny that such person had a title at the time when the
licence was given.
In other words, no licencee shall be permitted to question or challenge the
grant or licence at the time of granting the licence.
In Rajesh Wadhwa vs Dr.(Mrs) Sushma Goyal AIR 1989 Delhi 144.
The lease deed was executed by land lady's father on behalf of landlady.
Eviction petition by father under power of attorney of landlady.
The tenant was estopped from taking plea that the land lady's father was not
duly constituted attorney to file the eviction petition.
Sec-117 Estoppel of acceptor of bill of exchange, bailee or licensee :
No acceptor of a bill of exchange,
shall be permitted to deny that the drawer had authority of draw such bill or
to endorse it;
nor shall any bailee or licensee be permitted to deny that his bailor or
licensor had, at the time when the bailment or license commenced,
authority to make such bailment or grant such license.
Explanation (1)
The acceptor of a bill of exchange may deny that the bill was really drawn
by the person by whom it purports to have been drawn.
Explanation (2)
If a bailee delivers the goods bailed to a person other than the bailor, he

may prove that such person had a right to them as against the bailor
Conclusion-
The principle of estoppel is a rule which prevents a person from taking up
inconsistent position from what he has pleaded or asserted earlier.
The principle is based on equity and good conscience the object of this principle
is to prevent for and to manifest good faith amongst the parties.
However, only parties and no stranger can take advantage of it.
Estoppel is only a rule of law. It does not give rise to a cause of action.
(ii) Res Judicata :
<Read from study notes for 301 Civil Procedure Code (CPC) & Limitation Act>
(iii) Waiver :

(iv) Presumption :
<Search Discuss in detail : Presumptions in this doc>
Discuss : Questions of corroboration (Section 156-157).

ANSWER :
Refer :

*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.
Suggested Readings :
Sarkar and manohar, Sarkar and Evidence, Wadha & Co. Nagpur
Sir John Wood Roffe & Syed S. Amir Alis Law of Evidence Vol. 1-4
Indian Evidence Act, (Amendment up to date)

Ratan Lal & Dhiraj Lal Law of Evidence, LexisNexis Butterworths Wadhwa, Nagpur
Pole in Murphy, Evidence) Universal Delhi.
Albert S. Osborn, The Problem of Proof, Universal Publication, Delhi.
Avtar Singh, Principles of the Law of Evidence, Central Law Agency, New Delhi
Batuk Lal, The Law of Evidence, Central Law Agency

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This is PREFACE. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Module-1 Introduction, Definitions and Relevancy of Facts. 3

Module-2 Types of evidence. 58

Module-3 Dying Declaration, Stages of Examination of Witnesses. 80

Module-4 Burden of Proof and Estoppel. 103

Objectives of the course :

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Introduction to the Indian Evidence Act 1872 (IEA 1872) .

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Explain : (i) Proved', (ii) 'Disproved and Not Proved'.

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Introduction to the Indian Evidence Act 1872 (IEA 1872).

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In a civil case, the proof should be in the nature of ''preponderance of

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Where one fact is declared by this Act to be conclusive proof of another,

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Secondary evidence means inferior or substitutionary evidence,

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Example - A says that he saw B murdered C with sword.

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claiming certain rights or attributing certain liabilities upon the opposite

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''Leterm Mortem'' means ''Words said before Death''.

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In criminal case admissions as well as confessions are relevant.

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Explain : (i) Proved', (ii) 'Disproved and Not Proved'.

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Proof does not mean rigid mathematical demonstration because that is

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Explain : Explain facts in issue and relevant facts. (Nov-2011)

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In case of murder through poisoning, (state of things & relation of things)

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once the ownership is decided,

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No Fact in Issue Relevant Fact

2 It is a necessary ingredient of a It is not a necessary ingredient of a right

Sec-9 : Facts necessary to explain or introduce relevant facts

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(a) The question is, whether a given document is the will of A

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Explain the doctrine of Res Gestae.

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Sec-7 to Sec-11 : Part of the same transaction :

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