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CONTENTS

UNIT - I
- Nature and Scope
- Definition
IMPORTANT QUESTIONS

UNIT - II
- The Relevancy of Facts
- Facts Which Need not be Proved
IMPORTANT QUESTIONS

UNIT - III
- Oral Evidence
- Documentary Evidence
- Te Exclusion of Oral by Documentary Evidence
IMPORTANT QUESTIONS

UNIT - IV
- The Burden of Proof
- Presumptions
- Estoppels
IMPORTANT QUESTIONS

UNIT - V
- Witnesses
- Examination of Witness
- Improper Admission and Rejection of Evidence
IMPORTANT QUESTIONS
Suggested Readings
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UNIT – I
NATURE AND SCOPE

The Evidence Act is divided into three parts comprising eleven chapters:-

1. Part I consists of two chapters (I and II) dealing with definitions and relevancy of facts.

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2. Part-II comprises chapters II to V which provide for proof of facts by oral or documentary evidence.

3. Part III embodies Chapters VI to XI which contains rules for the production of evidence in Court, the
effect of presumptions and the duties of the Court in dealing with the evidence produced before it.

a.

b.
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There are two cardinal principles of the law of evidence. What is relevant may be proved; but everything that
is relevant may not be admissible as evidence. This admissibility of evidence is tested on the basis of the
'truth value' of the relevant facts. For example, certain facts, though relevant, are excluded under Evidence
Act, viz. -

Hearsay evidence, that is, the assertion regarding the existence of any fact by any person who is not
called as a witness, is generally excluded.

Evidence of the opinion of others regarding tt1e existence or non-existence of a fact is generally

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excluded, though in some exceptional cases, it may be admitted.

c. The fact that any person's character is such as to tender certain conduct imputed to him probable or
importable is also excluded.

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Thus, it should be noted that the law does not admit every fact which is logically relevant.

The fundamental principle of the law of evidence, namely that evidence must be confined to the matters in
issue, is qualified by the following two fundamental principle:-

i)

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ii)
Hearsay evidence is not to be admitted.
In all cases, the best evidence must be given.

The Act makes an attempt to define positively and enumerate the relevant facts. The concept of relevancy
is laid down in Section 11 of the Act; facts which are inconsistent with facts in issue or relevant facts, or those
which render highly probable or improbable the facts in issue, are themselves relevant. This is the gist of the
relevancy of facts. A fact is relevant only when it has a tendency of making the existence or non-.existence
of the facts in issue highly probable in the opinion of the Court.

In English law, the law of evidence generally states what facts cannot be adduced as evidence, the
inference being that the rest of them can be adduced as evidence. The Evidence Act, on the other hand,
makes an attempt to state positively what facts are relevant,

In brief, the questions which the law of evidence attempts to answer are the following:
1. What kind of facts may be proved in order to establish the existence or non-existence of a fact in

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issue?
2. What kind of proof is to given of those facts?
3. Who is to give that proof?
4. How is that proof to be given?

1. What kind of facts may be proved? : Sanctions 6 to 16 of the Evidence Act state that facts which
are logically connected with the facts in issue, and which make the existence or the non existence of the
facts in issue probable or improbable, can be proved. For example, in a trial for murder, the fact that the
accused had a motive for committing the murder makes the inference of the murder possible. Similarly,
the fact that he purchases some poison just before the murder, when the death is suspected to have
been caused by such poison, makes his having committed the murder probable. Further, the fact that

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after the victim drank the contents of the glass, the accused cleaned the glass might make the inference
of his having committed the murder possible, as by this subsequent conduct, the accused might have
attempted to destroy the evidence. In the same way, the fact that the accused had opportunities to offer
a drink to the victim just before the victim died may make the inference of the accused having committed
the murder possible as it afforded an opportunity for committing the offence.

2.
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Thus, the gist of the contents of Sections 6 to 16 is that whenever a fact, either by itself, or in connection
with other facts, makes the legal inference of the existence or the non-existence of the facts in issue,
such facts, become relevant, and may be proved. But this rule of relevancy is determined by the second

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question that the law of evidence has to answer.

What kind of proof is to be given of those facts?: The general principle is that the best evidence
must be given in all cases. But this maxim (as most "maxims are) is a half truth. What is meant by best
evidence is the evidence of facts which have the maximum truth value. In a sense, this question is
answered mostly in a negative way by the Evidence Act. Hearsay evidence cannot be given. The

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contents of a document cannot normally be proved by oral evidence, when the law requires a
transaction to be contained in a document. This rule is contained in the statement that primary evidence
must be given, unless secondary evidence is permitted to be given.

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3. Who is to give that proof?: The third question deals with the burden of proof. There are certain
facts which need to be proved because the court takes notice of them. There are certain facts which
must be proved by one of the parties to the dispute.

The party who has responsibility of proving a certain fact is said to have the burden (or onus) of proof on

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him.

The law of evidence generally lays down that who wants the court to believe certain things must, prove
them. But this general rule is modified by the law of presumptions. In certain cases, the law says that the
court may believe in the truth of a thing, unless it is disproved. In such cases, the law prescribes that the-
court must believe in the existence of certain things, unless they are disproved. There are cases where
the Evidence Act lays down that a court shall presume a particular thing. There are certain
circumstances when the law will say that the court must believe in the existence of a thing, and should
not allow any evidence to disprove such a thing. Thus, one thing may be declared to be conclusive proof
of another. In some other cases, the law might also prevent a party from leading evidence contrary to his
prior statement or conduct, by applying the doctrine of estoppel.

4. How is that proof to be given?: In this part of the law of evidence, questions relating to the
competency of the witness, as also the method of examining them and testing their veracity, are
discussed. Here, the rule is that all persons who are capable of understanding the nature of the
questions put to them, and who can answer those questions, can be witnesses. This general rule is,
however, qualified by what is known as the rule of privileged communications. In some circumstances,

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the law prescribes that one person shall not give evidence of certain communication which he received
under particular circumstances. For example, a wife or a husband cannot give evidence of the
communication which he or she received from the other party to the marriage during the period of the
marriage.

DEFINITION
Facts: “Facts” means and includes: "

1) Any thing, state of things or relation of things, capable of being perceived by senses;
2) Any mental condition of which any person is conscious.
Illustrations

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a) That there are certain things arranged in a certain order in a certain place, is a fact.
b) and c) That a man heard or saw or said something, is a fact.
d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses

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a particular word in a particular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
e) That a man has a certain reputation is a fact.

The fact may be physical [illustrations (a), (b) and (c) or psychological [illustration (d) and (e)]. It has been

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said that "a state of man's mind is as much a fact as the state of his digestion". The state of a person's health
is a fad. The psychological facts can only be proved by circumstantial evidence.

The facts may be positive or negative. The existence of a certain state of things is a positive fact. the non-
existence of it is a negative fact.

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Facts in Issue: "Facts in issue" means and includes - (1) any act from which either by itself or in connection
with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or
denied in any suit or proceeding, necessarily follows, (2) any fact asserted or denied in answer to an issue
of fact recorded under the Civil Procedure Code.

A fact in issue is called the 'principal' fact or factum probandum. It is the fact which is sought to be proved.
Facts, which are in dispute, are facts in issue. Evidence becomes necessary only in reference to such facts.
Further, these are the facts which constitute the right or liability. The following illustration makes clear the

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point:
"A is accused of the murder of B. At his trial, the following facts may be in issue - that A caused B's death, that
A intended to cause B's death; that A had received gave and sudden provocation from B; that A at the time of
doing that act which caused B's death, was, by reason of unsoundness of mind incapable of knowing its
nature.

Thus, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a
defendant may prove to defeat the suit, becomes a fact in issue. Facts in issue will depend upon the
provisions of the substantive law applicable to the offence. If, for example, the action is for the tort of
negligence, such of the ingredients of liability for negligence, which are in dispute, shall be the facts in issue.
Thus, facts in issue depend upon the ingredients of the offence and the state of the parties' pleadings.

In criminal matters, the allegations in the charge sheet constitute the facts in issue. In civil matter, the
process of ascertaining facts in issue is known as 'framing' issues. The 'issue of fact' under CPC is equal to
the 'fact in issue' under CPC is equal to the 'fact in issue' of the Evidence Act.

Relevant facts: "One fact is said to be relevant to another when the one is connected with the other in any

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of the ways referred to in the provision of this Act relating to the relevancy of facts". viz.

I. Facts logically connected with facts in issue (Sections 5-16),


II. Admissions and confessions (Sections 17-31),
III. Statements by non-witnesses (Section 32-33)
IV. Statements under special circumstances (Section 34-37)
V. Judgment in other cases (Section 340-44),
VI. Opinions of third persons (Section 45-51) and,
VII. Evidence as to character (Section 52-55)

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It is to be noted that the section does not define the term "relevant". Rather, it simply indicates when one fact
becomes relevant to another. Normally, facts relevant to an issue are those facts which are necessary for
proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those
which have a certain degree of probative force. Relevant facts are not themselves in issue, but are
foundations of inferences regarding them.

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For example, "when A is accused of the murder of B", the 'relevant facts' are - A had a motive and
opportunity to kill B, he had made preparations by buying a knife, etc. or after the murder he was seen
funning with blood-stained knife in hand.

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Relevancy implies relationship i.e. any two facts to which it is applied are so related to each other that
according to the common course of events one taken by itself or in connection with other facts proves or
renders probable the existence or non-existence of the other. Thus, circumstantial evidence is evidence
that relates to facts, other than those in issue, which by human experience, have been found to be so
associated with the fact in issue that the latter may be reasonably inferred therefrom. The word 'relevant'

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has been held to be 'admissible' (Lakshmi vs. Heider, 3 CWN 268).

Different Kinds of Evidence: According to Stephen, the word “evidence” is used in three senses:

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a. words uttered and things exhibited in Court,
b. facts proved by those words or things, which are regarded as ground words of inference as
to other facts not so proved, and
c. relevancy of a particular fact to matter under inquiry.

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Bentham defines evidence as ":any matter of fact, the effect, tendency or design of which when presented
to the mind, is to produce in the mind a persuasion concerning ~he existence of some other matter of fact - a
persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may
be distinguished as the principal fact and the former as the evidentiary fact."

Taylor uses the word "evidence" to mean all the legal means exclusive of mere argument which tend to
prove or disprove any fact the truth of which is submitted to judicial investigation.

The fundamental rules of English Law of evidence are -


i) Evidence mustbe confin'ed tathe' matters in issue
ii) Hearsay evidence is notto be admitted.
iii) In all cases, the best evidence must be given.
Indian Law: Two fundamental rules on which the law of evidence is based are:

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i) no facts other than those having rational probative value should be admitted in evidence,
and
ii) all facts having rational probative value are admissible in evidence, unless excluded by a
positive rule of paramount importance.

The above two ideas are expressed. in Section 5 of the Act, which says:

"OF the relevancy of facts (section 5):' Evidence may be given of facts in issue and relevant facts":
Evidence maybe'91yen in any suit of proceedings of the existence or non-existence of every fact in issue
and of such other facts as are hereinafter declared to be relevant, and of no others.

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Explanation: This section shall not enable any person to given evidence of a fact which he is disentitled to
prove by any provision of the law for the time being in force relating to civil procedure.

What is Evidence: It is defined in Section3 as:

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

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

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Different kinds of Evidence: In the broader way, there are many kinds of evidence - Best evidence,
Circumstantial evidence, Corroborative evidence and Substantive evidence, Direct evidence, Indirect
evidence, Hearsay evidence, Oral evidence and Documentary evidence, Primary evidence and Secondary
evidence, Original evidence, Real evidence and Personal evidence, Presumptive evidence, Derivative
evidence, Testimonial evidence and Conclusive evidence.

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All these types of evidences are dealt with by the Act-either explicitly or by implication, though in the
definition of the word we find only and documentary evidence.

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1) Best Evidence: The best evidence or the original evidence means the primary evidence.
Relevant Case: Murarka Properties vs. Beharilal (1978) 1 SCC 109

2) Circumstantial Evidence: Circumstantial evidence means the evidence of circumstances and is


sometimes referred to as presumptive evidence. Suppose A is charged with the murder of B. At the trial

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a witness C, on behalf of the prosecution, gives evidence that he saw A stab B. Or, C may make 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. In the fist case the evidence given by C is usually referred to as direct evidence and in
the second, as circumstantial evidence. because, C makes a statement about a circumstance, a
relevant fact which if believed, may convince the court of the guilt of A. Therefore, we might say that
when evidence is given of the very fact in issue, that is, of the matter in controversy, it is called direct
evidence and 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.

Tests: It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy
three tests:

a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established;

b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the
accused;

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c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused and
none else.

3) Corroborative Evidence and Substantive Evidence: Corroborative evidence must be taken


along with substantive evidence, when evidence is given of the fact in issue or of a relevant fact that is
called substantive evidence. There are, however, several statements oral and documentary, which are
not substantive evidence. They are not admissible by themselves, but become. admissible to
corroborate, or support, substantive evidence already given. Evidence to corroborate substantive
evidence is permitted under Sections 156 and 157.

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Section 156 says: "Questions tending to corroborate evidence of relevant fact, admissible', when a
witness whom it is intended to corroborate gives evidence of any relevance, he may be questioned as to
any other circumstances which he observed at or near the time or place at which such relevant fact
occurred. If the Court is of opinion that such circumstances, if proved, would corroborate testimony of
the witness as to the relevant fact which he testifies".

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Section 157 says: "Former statements of witness may be proved to corroborate later testimony as to
same fact', - In order to corroborate the testimony of a witness, any former statement made by such
witness relating to the same fact at or about the time when the fact took place, or before any authority
legally competent to investigate the fact, may be proved".

4)

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Direct Evidence: The word 'direct' evidence is used in two senses (a) as opposed to Hearsay
evidence (b) as opposed to circumstantial evidence. In the first sense direct evidence is the evidence of
a fact actually perceived by a witness with his own senses or an opinion held by him. And in the second
sense direct evidence is that which goes expressly to the very point in question and proves it, if

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believed, without aid from inference or deductive reasoning, e.g. eye-witness to a murder is direct
evidence.

In jurisprudence, however, direct evidence is commonly used in a secondary sense, viz. as limited to
cases where the principal fact, or factum probandum, is attested directly by witnesses things or

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documents.

5) Indirect Evidence: Known in forensic procedure by the name of circumstantial evidence, is either
conclusive or presumptive: Conclusive, where the connection between the principal and evidentiary

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facts-the factus probandum and the factum probans - is a necessary consequence of the laws of Nature
presumptive, where it only rests on a greater or less degree of probability.

Suppose A is charged with the muder of B by stabbing him. C, D, E, F, G and H are witnesses called by
the prosecution; C says he saw A stab B. D says he heard B cry out that A was stabbing him. E says that
he saw A running away with a blood-stained knife and blood-stained .clothes. F says that he saw A
washing his blood-stained clothes. G is a doctor who says that the knife found in ~s possession might
have caused the wounds found on Band H says that he heard from C, that C saw A stabbing B. If we use
the phrases direct evidence and circumstantial evidence, the evidence given by C is direct evidence
and that given by the others, circumstantial evidence, because C gives evidence of the very matter in
controversy, whereas D to H give evidence of circumstances which, if believed, would assist the court in
drawing an inference about the matter in controversy. But, if we use direct evidence as used in Section
60, then the evidence of C to G is direct evidence and that of H is indirect evidence, because each of
them, C to G, is giving evidence about a fact which was perceived by him by the particular sense by
which it was capable of being perceived; whereas, H alone is talking about A stabbing B - a fact capable
of being seen, but without seeing it. He has heard about it. The evidence sought to be given by H is also
called hearsay evidence and in general, is not admissible in a court of law.

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6) Hearsay Evidence: Stephen says, "the word 'hearsay' is used in various senses, Sometimes, it
means wherever a person is heard to say; sometimes it means whatever a person declares on
information given by some one else; sometimes it is treated as nearly synonymous with 'irrelevant' ."

It is the fundamental rule of the English law of Evidence that hearsay is not admissible. The reasons why
hearsay evidence is not received as relevant evidence are:

a) the person giving such evidence does not feel any responsibility. If he cornered, he has a line of
escape by saying" I do not know, but so and so told me",

b) truth is diluted and diminished with each repetition: and

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c) if permitted, gives ample scope for playing fraud by saying "someone told me that…..”. It would be
attaching importance to a false rumour flying from one foul lip to another.

Hearsay evidence when admissible:

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R.V. Raoji, 6 Born. L.R. 34: Where the object of the legislature is simply to provide preventive measures,
evidence of repute though hearsay, is admissible.

Ganauri V.R., 16 C 210: Certain communications though hearsay, were held admissible in cross
examination in so far as they relate to the question of the credibility of the witness.

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Muni Lal Gupta vs. State 1988 Cr. L.J. 627, 630: The witness was aroused on hearing the cries of two
other prosecution witnesses that the accused had killed the children. His evidence of what he heard is
admissible.

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7) Oral Evidence and Documentary Evidence: Definition is given in Section 3(1). If it is a case of oral
evidence, the Act requires that only that person who has actually perceived something by that sense by
which it is capable of perception should make the statement about it and no one else.

If it is documentary evidence, the Act requires that ordinarily the original should be produced, because a

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copy may contain omission or mistakes of a deliberate or accidental nature. These ideas are expressed
in Sections 60 and 64.

Documentary evidence is defined in the Act as: All documents produced for the inspection of the court.

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The purpose of producing documents, is to rely upon the truth of the statement contained therein. This
involves, when a document is produced in court, the examination of three questions; (1) is the
document genuine, (ii) what are its contents and (Hi) are the statements in the document true?

*** By real evidence is meant evidence of which any object belonging to the class of things, is the
source, person also being included in respect of such properties as belong to them in common with
things. This sort of evidence may be either immediate, where the thing comes under the cognizance of
our senses: or reported, where its evidence is related to us by others. Personal evidence is that which is
afforded by a human agent, either by way of discourse or by voluntary signs.”

Suppose a letter is produced. as having been written by A and it contains a statement that B murdered
C. The three questions are: (i) is the letter written by A? (ii) what does letter contain? and (iii) is the
statement that B murdered C true?

8) Primary and Secondary Evidence: We can easily understc.md it by way of above given example.
In the above example, the first and third questions can be answered by calling A as a witness. But the
second can normally be answered only by providing the letter. When the original letter is produced, it is

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said that primary .evidence of the contents is given. When a copy is permitted and such copy is
produced to prove the contents of a document, secondary evidence is said to be given of the contents.
The. definition of primary and secondary evidence is given in Sections 62 and 63 as under:

Primary Evidence: Primary evidence means the document itself produced for the inspection of the
Court.

Explanation 1: When 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

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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 playcards, all printed at one
time from one original. Anyone of the playcards is primary evidence of the contents of any other, but no
one of them is primary evidence of the contents of the original.

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Secondary Evidence: Secondary evidence means and includes :

a) Certified copies given under the provisions hereinafter contained;

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b) Copies made from the original by mechanical processes which in themselves insure the-
accuracy of the copy, and copies compared with such copies.
c) Copies made from or compared with the original;
d) Counterparts of documents as against the parties who did not execute them;

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e) Oral accounts of the contents of a document given by some person who has himself seen it.
The genuineness of a document or the truth of its contents are proved either by primary or by secondary
evidence. (Section 61)

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9) Original Evidence: The original is that which a witness reports himself to have seen or heard
through the. medium of his own senses.

10) Real and Personal Evidence: It refers to any matter which the court perceives itself e.g. that a man
standing before a judge has got a scar on his face, objects like murder weapon, blood- stained clothes,

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photographs etc.

11) Conclusive Evidence: Where the connection between the principal and evidentiary fact is a
necessary conclusion.

IMPORTANT QUESTIONS

Q.1. Define 'Proved', 'Court; ;-'D59ument', 'May Presume', 'Shall Presume' & 'Conclusive Proof'.

Q.2. Does the India", Evidence Act apply to the State of Jammu and Kashmir?

Q.3. Define 'India' as under Evidence Act.

Q.4. What is meant by 'Substantive Law' and 'Adjective Law'? What kind of law is, law of
evidence?

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Discuss the aims and objects of the Indian Evidence Act?

Q.5. Define and illustrate 'fact'?

Q.6. Define 'Evidence'. Discuss briefly the structure and contents of the Indian. Evidence Act.

Q. 7. What are the kinds of Evidence?

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UNIT - II

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THE RELEVANCY OF FACTS

CHAPTER II (I) - [SECTIONS 5 TO 16]

Evidence may be given of facts in issue and relevant facts: Section 5


Evidence may be given

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a) of the existence and non-existence of every fact in issue, and
b) of such other facts as are declared to be relevant, and of no other

No evidence can be given of a fact which a person is disentitled to prove under the Civil Procedure Code
(CPC), 1908.

Illustration

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a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue:
A's beating B with the club;
A's causing B's death by such beating;

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As intention to cause B's death

- The object of this section is to restrict the investigation made by court within the bounds prescribed
by general convenience.

- No evidence of facts can be given unless it be either a fact in issue or one declared relevant under
the following sections. Thus evidence of all collateral facts, which are incapable of affording any
reasonable presumption as to .the principal matters in dispute, is excluded to save public time.

- This section excludes everything not covered by the purview of some other succeeding section.

Admissibility of Evidence: The court is to decide the admissibility of evidence (Section 136, infra). The
moment a witness commences giving evidence which is inadmissible, he should be stopped by the court.

Inadmissibility of Evidence

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Gyan Chand v. State of Raj., 1993 Cr.L.J., Raj.

The accused was found to be in possession of unauthorized opium. Search, seizure and further
investigations were done by the same authority and the same being violative of the principles of criminal
jurisprudence, it was held that the documents of the search and seizure were inadmissible in evidence.

- The explanation prohibits a part from claiming any relief upon facts or documents not stated by him
in his pleading.

Relevancy of facts forming part of same transaction: Section 6

The facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times and places.

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This section receives evidence of all acts and statements connected with a happening in such wise as to
form an integral part of the happening. It is based upon the doctrine of res gestae.

Res-gestae means the things done or words spoken in the course of same transaction: A transaction is a

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group of facts so connected together as to be referred to by a single legal name as a crime, a contract, a
wrong or any other subject of inquiry which may be issue.

Sawaldas v. State of Bihar, 1974 SC: A husband, his father and mother were prosecuted for the murder of
his wife. She cried for help as soon as she was pushed into the room. Her children who were playing outside

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in verandah exclaimed at the same time that heir mother was being killed. The exclamations of the children
were received through the evidence of the persons who heard them. It was admissible evidence because it
was res gestae

Gentela v. Stete of AP, AIR 1996 SC: The stateme!1ts of persons who were: injured by burns by the act of

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the accused in setting fire to the bus in which they were travelling, though recorded by a Magistrate. Under
expectations of death, were held to be not relevant, there being a gap of time between recording the
statements and incidents.

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Facts which are the occasion, cause or effect of facts in issue: section 7

Facts which are the occasion, cause or effect, immediate or otherwise of relevant facts, or facts in issue, or
which constitute the state of things under which they happened, or which afforded an opportunity for their

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occurrence or transaction, are relevant.

Evidence relating to collateral facts is admissible when such facts will, if established, establish a
reasonable presumption as to the matter in dispute and when which evidence is reasonably conclusive.

- This section provides for admission of several classes of facts which are connected with the
transaction under inquiry in particular modes, viz. (i) as being the occasion or cause of facts, (ii) as
being its effect; (iii) as giving opportunity for its occurrence; and (iv) as constituting the state of
things under which it happened.
- When the question is, whether a person has committed a crime, the fact that he had committed a
similar crime before, is irrelevant.

Motive, Preparation and previous or subsequent conduct: Section 8

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact;
the conduct of any party. or any agent to any party to any suit or proceeding, in reference to such suit or
proceeding or in reference to any fact in issue therein or relevant thereto, and whether it was previous or

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subsequent thereto.

Explanation I : The word "conduct" in this section does not include statements, unless those statements
accompany and explain acts other than statements, but this explanation is not to affect the relevancy of
statements under any other section of this Act.

Explanation I : When the conduct of any person is relevant, any statement made to him or in his presence
and hearing which affects his conduct is relevant.

Under this section the motive which includes a party to do an act, or the preparation which he makes in its
commission, will be taken into account. Evidence of motive becomes important when a case depends upon
circumstantial evidence only.

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- This section embodies the rule that the testimony of res gestae is allowable when it goes to the root
of the matter concerning the commission of crime.

Motive: Motive is that which moves a man to do a particular act. Motive in the correct sense is the emotion
supposed to have led to the act. It is often proved by the conduct of the accused.

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Tara Devi vs. State of UP, AIR 1991 SC: Previous threats, previous altercations, or previous litigations
between parties are admitted to show motive. The merel existence of motive is by itself not an incriminating
circumstance.

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S.C. Bahri vs. State of Bihar, AIR 1994 SC: Sometimes motive plays an important role and becomes a
compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which
evidence may be adduced. But the absence of proof of motive does not render the evidence bearing on the
guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of
the crime only who knows as to what circumstances prompted him to a certain course of action leading to

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the commission of the crime.

S. Cr. Mohite vs. State of Maharastrar, AIR 1993 SC: Existence of previous and subsequent similar
conduct is relevant to an issue of intention or other state of mind although it cannot be used to prove the
commission of the crime. Evidence of motive becomes important when there is only circumstantial

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evidence.

Bhagirath vs. State of Haryana, AIR 1996, SC: It was held by the Supreme Court that inadequacy of
motive is immaterial where testimony of eye-witness is on the record

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Jarnail Singh vs. State of Haryana, 1993 AIR SC: It was held that where oral or circumstantial evidence
adduced had established the charge against the accused, absence of motive would be of no consequence.

Sarojini vs. State of MP, 1993, Cr. L.J. (SC): It was held that pre-marital demand of dowry and its non-
compliance are relevant facts to establish motive.

Preparation: Preparation consists in devising or arranging the means or measures necessary for
commission of a crime. Preparation on the part of the accused to accomplish the crime charged, or to
prevent its discovery, or to aid his escape, or to avert suspicion from himself are relevant on the question of
his guilt.

Conduct: The conduct of any part of his agent in reference to a suit or proceeding will be scanned under
this section. A fact can be proved by conduct of a party and by surrounding circumstances, the production of
articles by an accused person is relevant as evidence of conduct. Statements accompanying or explaining
conduct are also relevant as part of conduct itself.

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Facts Necessary to explain or introduce relevant facts: Section 9 Facts

a. Necessary to explain or introduce a fact in issue or relevant, or


b. Which support or rebut an inference suggested by such as fact, or
c. Which establish the identity of anything or person where identity is relevant, or
d. Which fix the time or place at which any fact in issue or relevant fact happened, or
e. Which shares the relations of parties by whom any such fact was transacted.

It is under this section that test identification parades are conducted and in the matter of their evidentiary
value, they have generated much literature in terms of Supreme Court decisions. All factors which can bring
about identification are allowed, e.g. identification by voice, gait, footprints, finger-impressions,

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photographs etc.

- This section makes admissible facts which are necessary to explain or introduce relevant facts,
such as place, name, date, identity of parties, circumstances and relations of the parties.

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Gokaraju Venakatanarasa Raju vs. State of AP, 1993, (SC): It was held by Supreme Court that close
relatives of the deceased can identify the decomposed body recovered even after three weeks of the
incident.

Identification Parade: One of the methods of establishing the identify of the accused is "test identification

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parade". Its evidence is received under this section. The idea of the parade is to test the veracity of the
witness on the question of his capability to identify among several persons made to stand in a queue, an
unknown person whom the witness had seen at the time of the occurrence.

Ashok Narshari Nath vs. State of Maharashtra, 1980 Cr. L.J. (SC): The witness identified two out of

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several accused, namely one who assaulted him and one who inflicted fatal injuries on his complainant. It
was held by Supreme Court that Test identification (TI) was good evidence, delay of 44 hours was not so
material as to convince the court that the memory of the witness must have become blurred.

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Samappa V. Madar vs. Mysore, AIR 1979 SC: The Supreme Court held that prosecution has to show that
the accused was carried for remand ba parda. In absence of it the identification parade will lose its
importance.

Weight of Identify Evidence: The Supreme Court in its decision in Kanta Prasad vs. Delhi Administration,
1958 SCR, observed that, "the weight to be attached to such identification would be a matter for the court
necessitating such as course.

Things said or done by conspirator in reference to common design section 10

Anything said done or written, by a conspirator in reference to the common intention of all the conspirators
is a relevant facts.

Illustration: Reasonable ground exists for believing that A has joined in a conspiracy to wage war against
the Government of India.

The fact that B procured arms in Europe for the purpose of the conspiracy C collected money in Calcutta for
a like purpose, D persuaded persons to join the conspiracy in Bombay. E published writings advocating the
object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at
Calcutta, al1d the contents of a letter written by H giving an account of the conspiracy are each relevant,

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both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been
ignorant of all of them, and at although the persons by whom they were done were stranger to him, and
although they may have taken place before he joined the conspiracy or after he left it.

This section refers to things said or done by conspirators in reference to the common design. The operation
of this section is strictly conditioned upon there being reasonable ground to believe that two or more
persons have conspired together to commit an offence [Barinder Kumar Ghose vs. Emperor (1909) Cal.

- Conspiracy consists in a combination or agreement between two or more person to do an unlawful


act or to do a lawful act by unlawful means.

- Under Section 34 of the Indian Penal Code, when a criminal act is done by several persons, in
furtherance of the common intention of all, each of such persons is liable for that act in the same

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manner as if it were done by him alone. This section makes admissible in evidence things said or
done by a conspirator in reference to the common design. It appliers to crime as well as torts, i.e. to
joint offenders as well as joint tort reasons. It has no bearing on the question as to how for a
conspiracy to commit an offence or actionable wrong is an offence under the Indian Penal Code. It is
based upon the principle that, when several persons conspire to commit a crime or a tort, each

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makes the rest his agent to carry the plan into execution.

Agreement but not direct meeting necessary: Jenkins CJ in Barinder Kumar Ghose vs. Emperor (1909)
Calcutta observed - 'Though to establish the charge of conspiracy there must be agreement, there need not

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be proof of direct meeting or combination, nor need the parties be brought into each other's presence, the
agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry
out the unlawful design. So again it is not necessary that all should have joined in the scheme from the first;
those who came in at a later stage are equally guilty, provided the agreement be proved.

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Kehar Singh vs. Delhi Administration, AIR '988 SC: The fact that the accused and the person who shot
dead the deceased were together at a social gathering sometime before the shooting and isolating
themselves at the house top were seen talking and avoided questions as to what they were talking about
was held by the Supreme Court to be sufficient to create a reason to believe that they might be conspiring
about something. The accused was accordingly sentenced to death along with those who actually caused

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death though he was nowhere there at the place of shooting.

When facts not otherwise Relevant become relevant: Section 11

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a. If they are inconsistent with any fact in issue or relevant fact:
b. 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.
In order that a collateral fact may be admissible as relevant under this section these are two requirements.

a. That the collateral fact must itself be established by reasonably conclusive evidence.
b. That it must, when established afford a reasonable presumption or inference as to the matter in
dispute.

Gauri Shankar Sharma vs. State of UP, AIR 1990 SC: The Supreme Court cautioned against this that the
failure of the accused to establish his presence elsewhere should not be taken to mean intevitably his
presence at the spot of the crime or that he was the man behind the murder.

In suits for damages, facts tending to enable court to determine amount are relevant: Sec. 12

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In suit in which damages are claimed, any fact which will enable the court to determine the amount of
damages which ought to be awarded is relevant.

"Damages" are the pecuniary satisfaction which the plaintiff may obtain by success in an action. They are
limited to the loss which the plaintiff has actually sustained.

The rule in Hadley vs. Barendale (1854) 9 Ex 341 : Alderson B. laid down the rule -

- Where two parties have made a contract which one of them has broken, the damages which the
other party ought to receive in respect of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally, i.e. according to the usual course of things, from
which such breach of contract itself, or such as may reasonably be supposed to have been in the
contemplation of both parties, at the time they made the contract, as the probable result of the

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breach of it. On the basis of this principle the defendants were not held liable for the loss of profits.

- Section 73 of the Indian Contract Act lays down the rule governing damages in action on contract.
Section 55 of the Evidence Act lays down the conditions under which evidence of character may be
given in civil cases with a view to the award of damages.

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Facts relevant when right or custom is in question: Section 13

1. Where the question is as to the existence of any right or custom-

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a. Any transaction by which the right or custom in question was created, claimed, modified,
recognised, asserted or denied, or which was inconsistent with its existence,

b. Particular instance in which the right or custom was

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i) Claimed, recognised or exercised, or
ii) Disputed, asserted, or denied from are relevant facts.

The cases this section is intended to meet are those in which the right or custom in question is regarded as

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capable of surviving repeated instances of its assertion and denial.

Right: The term "right" comprehends every right known to the law. It includes both corporeal and
incorporeal rights including "a right of ownership"

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The Collector of Gorakhpur vs. Palakdhari Singh (1889) (All) FB a This section is not confined to public
rights only but it covers private rights also.

Custom: A custom is a rule which in a particular family or in a particular district has from long usage
obtained the force of law. The English r.ule that "a custom, in order that it may be legal and binding must
have been used so long that the memory of man runneth not to the contrary" does not apply to conditions in
India. A custom observed in a particular district derives its force from the fact that it has, from long usage,
obtained in that district the force of law.

A custom to be recognised by a court must fulfill following eight requirements:-


1. Ancient
2. Continuous and uniform
3. Reasonable
4. Certain

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5. Compulsory and not optional


6. Peaceful observation
7. Not immoral
8. Conformity with law.

A custom may be general, public or private.

In order to prove a custom:

a. The evidence should be such as to prove the uniformity and continuity or the usage and the
conviction of those following it that they were acting in accordance with law.

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b. Evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of courts or even
of panchayats upholding such acts, the statements of experienced and competent persons of their
belief that such acts were legal and valid will all be admissible but actual examples of the usage
asserted must be shown.

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Transaction: A transaction, in the ordinary sense of the word, is some business or dealing which is carried
on or transacted between two or more persons.

N. Subhakaran v. V.K. Rajmany, 1996 (Ker.): In a case of sale of property which was under attachment,
the District Court gave finding that the decree in respect of other portion of the property was vitiated by
fraud. In a suit for permanent injunction in respect of the other portion, it was held that the earlier finding
might not operate as res-judicate but it was admissible under Section 13 as the transaction was to same
and Section 43 was no bar.

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- Judgments which support a plea of res-judicata under Section 11, Civil Procedure Code, or that or
autrefais acquit under Section 300, Cr.P.C., 1973 judgments in rem, and judgments which refer to
matters of public nature, are expressly made relevant by the Act. But other judgments are irrelevant,
unless their existence is either a fact in issue or, relevant fact under some other sections of the Act.
That there are cases where the existence of a judgment might become a fact in issue or a relevant

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fact under same other section of the Act. is perfectly clear from the illustration to Section 43.

Facts showing the existence of any state of mind, or of body or bodily feeling: Section 14

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Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence,
rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or
bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue
or relevant.

Explanation 1: A fact relevant as showing the existence of a relevant state of mind must show that the state
of mind exists, not generally, ut in reference to the particular matter in question.

Explanation 2: But where, upon the trial of a person accused of an offence, the previous commission by
the accused of an offence is relevant within the meaning of this section, the previous conviction of such
person shall also be a relevant fact.

1. Under Section 14, the fact showing the existence of any state of –

a. Mind (e.g. intention, knowledge, good faith, negligence, rashness, ill-will, good will) or

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b. Body
c. Bodily feelings when such state of mind or body is relevant are relevant facts and evidence can be
given in legal proceedings.
- Intention, knowledge and similar other states of mind, are matters of cogent inquiry in criminal
cases; in some civil cases they are very material, e.g., some civil cases they are very material, e.g.,
in cases of malicious prosecution, fraud, negligence etc.

Phipson has stated, "The principle on which evidence of similar facts is admissible is not to show that
because the defendant has committed one crime, he would be likely to commit another, but to establish the
onimus of the act and to rebut, by anticipation, the obvious defenses of ignorance, accident, mistake or
other innocent state of mind."

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The conduct of each individual co-conspirator including his acts, writing and statements irrespective of the
time to which it relates can be relied on by the prosecution to show the criminality of the intention of the
individual accused with reference to his proved participation in the alleged conspiracy to rebut a probable
defence that the participation, though proved, was innocent. Such evidence is admissible under this
section [Sardul Singh Coveeshar vs. State of Bombay, (1958) SCR 161].

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Specific state of mind, not general (Explanation 1): Under this Explanation evidence of general
reputation is excluded. The evidence relating to the state of mind of a person must show that the state of
mind exists not generally but in reference to the particular matter in question. Evidence of general

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disposition, habit or tendencies is inadmissible, Anything having a distinct and immediate reference to the
particular matter in questions is admissible.

Previous conviction (Explanation 2): This Explanation distinctly states that, where the previous
commission of an offence is relevant, the previous conviction of such person should also be a relevant fact.
Previous conviction becomes relevant when the existence of any state of mind, or body, or bodily feeling, in

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issue, are relevant [Emperor v. Allo Miya Husan, (1903) Bom LR]

- The previous conviction is nothing more than evidence of bad character which is excluded by
Section 54 of Evidence Act. This Section does not extend to cases where the question of guilt or

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innocence depends upon actual facts and not upon the state of a man's mind or feeling.

Facts bearing on question whether an act was accidental or intentional: Section 15

When there is a question whether an act was accidental or intentional, [or done with a particular knowledge

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or intention] the fact that such act formed part of a series of similar occurrences, in each of which the person
doing the act was concerned, is relevant.

a. The question is whether an act was (i) accidental or (ii) intentional.


b. The fact that is formed part of a series of similar occurrences.
c. Is relevant to show that the act was not, accidental but it was intentional,

Principle: Where it is uncertain, whether an act was done with a guilty knowledge or intention or whether it
was innocent or accidental, proof that it formed one of a series of similar acts raises the presumption that
the act in question and the others, together forming a series, were done upon system, and were therefore
not innocent or accidental.

Needle Industries (India) Ltd. v. Needle Industries Newly (India) Ltd. AIR 1981 SC : It was not shown
that the director of a company was instrumental in the late posting of the notice of a shareholders meeting,
this section was not attracted. There was no question of the delay being intentional or accidental.

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Comparison of Section 14 and 15: Section 14 provides that facts showing the existence of any state of
mind, such as intention or knowledge, are relevant when the existence of any such state of mind is in issue
or relevant; and Section 15 provides specially for allowing evidence of similar occurrences, in each of which
the person doing the act was concerned, whenever there is a question whether an act is done with a
particular knowledge or intention.

Existence of course of business when relevant: Section 16

When there is a question whether a particular act was done, the existence of any course of business,
according to which it naturally would have been done, is a relevant fact.

a. When there is a question whether a particular act is done or not.

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b. The existence of any course of business, according to which it naturally would have been done
a. It will be presumed that the act was done.
b. The Burden of proof that the act is not done is upon the party who alleges it.

Under this section, when the ordinary course of a particular business is proved, the court is asked to

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presume that, on the particular occasion in question, there was no departure from the ordinary and general
rule.

Omnia proesumuntur rite esse acta: It means all acts are presumed to be rightly done Section 16 of the

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Evidence Act is based upon the above mentioned maxim. This maxim is based on the fact that the conduct
or men in official and commercial matters is to a great extent, uniform. In such cases, there is a strong
presumption that the general regularity will not, in any particular instance, be departed from. This is a
rebuttable presumption.

Computer Hearsay: A great deal of information is now-a-days stored in and dispensed by compute. The

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effect of hearsay rule of the admissibility of such information was considered in R.v. Ewing (1983) All ER. It
was held that the print-out was relevant because it is a document which was or formed part of a record
relating to any trade or business.

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Admission defined: Section 17: An admission is a statement, oral or documentary, which suggests any
inference as to any fact in issue, or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.

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i) An admission is a statement (i) oral or (ii) documentary
ii) Which suggests any inference as to any (i) fact in issue or (ii) relevant fact
iii) Which is made by a person authorised by the Indian Evidence Act.
iv) And under the circumstances as described by the Indian Evidence Act.

Chapter II (II) Admissions (Section 17-31)

Admission Defined : Section 17: An admission is a statement, oral or documentary, which suggests any
inference as to any fact is issue, or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.
a. An admission is a statement (i) oral or (ii) documentary
b. Which suggests any inference as to any (i) fact is issue or (ii) relevant fact
c. Which is made by a person authorized by the Indian Evidence Act.

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d. And under the circumstances as described by the Indian Evidence Act.

An "admission" is a statement of fact waives vaives or dispenses with the production of evidence by
concending that the fact asserted by the opponent is true:-

Banarsi Das vs. Kanshi Ram, AIR 1963 SC: An admission in so far as facts are concerned would bind the
maker of the admission but not in so far as it relates to a question of law.

- In English Law, the term "admission" is used in civil cases; whereas the term "confession" is used in
criminal cases as acknowledgement of guilt. This distinction is not made and maintained in the
Evidence Act. and Sections 17 to 22 are applicable to civil as well as criminal cases. Statements by
the accused are admissions under Sections 17 and 18, and prima facie evidence against its maker,
but not in his favour,

1.

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Difference between Confession and Admission : A confession differs from an admission

Concession

A confession is a statement made by an accused


accused person which is sought to be proved
against him in criminal proceedings to establish
the commission of an offence by him
Admission

While an admission usually related to a civil


transaction and compromises all statements
amounting to admissions as defined in
section 18.

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2. A confession if deliberately and voluntarily Whereas an admission is not a conclusive
made may be accepted as conclusive it itself proof of matter admitted, but may operate as
of the matters confessed. an estoppels. (section 31)

3. A conession always goes against the person An admission may be used on behalf of the

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making it. person making it under the exceptions
provided in section 21.

4. The confession of one of two or more accused But an admission by one of several

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jointly tried for the same offence can be taken defendants in a suit is no evidence against
into consideration against the co-accused another defendant.
(section 30)

5. The confession is dealt in Section 24 to 20 The admission is dealt in Sections 17 to 23

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of the Indian Evidence Act. the Evidence Act but sections 17 to 22 are
applicable to civil as well as criminal cases.

6. Statement is a genus and confession is the Statement is a genus and admission is the
sub-species. species.

1. Admission in criminal proceedings: Every admission made by an accused person is not, in the
view of law, a confession nor can it be held that admission means only statement made by parties to civil
proceedings, and does not include statements made by the parties in criminal proceedings. Every
statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact
made by an accused person is an admission under Section 17 and 18, and under Section 19 an
admission may be proved as against the person who makes it unless under some provisions of the
Evidence Act or other law, it is rendered inadmissible. Under Sections 24-26, statements made by
accused persons are inadmissible, subject to the provisions of Sections 27-29, when such statements
are confessions.

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2. Oral or documentary: Admissions may be oral or documentary.

3. Voluntary: Admission will lose its substantive effect if it is not voluntary. Admission by party to
proceeding or his agent: Section 18

Admission by party to proceeding or his agent: Section 18

Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards,
under the circumstances of the case, as expressly or impliedly authorised by him to make them, are
admissions.

By suitor in representative character: Statements made by parties to suits or sued in a representative


character, are not admissions, unless' they were made while the party making them held that character.

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Statements made by -

a. Party interested in subject-matter: Persons who have any proprietary or pecunicary interest in
the subject-matter of the proceeding, and who make the statement in their character of persons so

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interested.

b. Person from whom interest derived: Persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the
interest of the persons making the statements.

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1. Ingredients: Section 18 lays down five classes of persons who can make an admission-

a. Party to the proceeding

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b. Agent authorized by such party.
c. Party suing or sued in a representative character making admissions while holding such character.

d. Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding
during the continuance of such interest.

2.

3.
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e. Person from who the parties to the suit have derived their interest in the subject-matter of the suit
during the continuance of such interest.

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All the persons who have no interest in the suits cannot make substantive admission. Admission
made by a layman has no importance at all. Section 18 lays down the rule that these persons can make
admissions. This section should be read with Section 19 and 20 which are also part of this rule.

Party to the proceedings: What is admitted by a party to be true must be presumed to be true
unless the contrary is shown.

4. Agent: The admissions of an agent are admissible because the principal is bound by the acts of his
agent done in the course of business and within the scope of his authority.

Raj Kumar vs. Official Receiver, MIs Chiranji Lal Ram Chand, AIR 1996 SC : Admission by one of the co-
owners that the other co-owner had one-third share in the joint properties, can be relied upon.

- Partners are agents of one another so far as the business of partnership is concerned. So, an
admission of a partner can be relied upon.

- The admissions of a guardian ad litem, or next friend, do not bind the minor. The guardian of an

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infant has no power to bind him by admissions.

Annapagauda vs. Sangadyapa (1901) Born LR: The Bombay High Court is of the view that a
guardian appointed under the Guardian and Wards Act can sign an acknowledgement of liability in
respect of, or pay in part the principal of a debt, so as to extend the period limited against his ward,
provided the guardian's act was for the benefit of the ward's property.

5. Party suing or sued in a representative character: This means trustees, executors,


administrators, managers in the character of an executor or administrator; or the assignee of a
bankrupt. It is important that such persons must make "the statement in their character of persons so
interested."

6. Person who has any proprietary or pecuniary interest: An admission by a party is not possible

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after parting with his interest in the property. An admission made by one of several parties in fraud of the
others' joint interests will not bil1d the other. [Srichand Gupta vs. Gulzar Singh, AIR 1999 SCl

7. Persons from whom the parties to the suit have derived their interest in the subject matter of
the suit: Statements made either by the parties interested or by parsons whom the parties to the suit

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have derived their interest are admissions only if they are made during the continuous interest of the
persons making 0the statement.

This clause indicates that there ought to be a privity, i.e. mutual or successive relationship to the same
right of property. Privies are of three kinds:

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a. Privies in blood, as an heir, an ancestor and coparceners.
b. Privies in law, as executor and testator, administrator and a person dying intestate.
c. Privies in estate or interest, as vendor and purchaser, lessor and lessee, mortgagor and
mortgages, donor and donee.

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Amissions by persons whose position must be proved as against party To suit: Section 19

Statements made by persons whose position or liability, it is necessary to prove as against any party to suit,

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are admissions, if such statements would be relevant as against such persons in relation to position or
liability in a suit brought by or against them, and if they are made whilst the person making them occupies
such position or is subject to such liability.

The object of this Section is not to lay down that certain statements are relevant or admissible but merely to

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add to the category of persons by whom a statement may be made before it can be considered to be an
admission within the terms of the Act.

Principle: This Section forms an exception to the rule that statements made by strangers to a proceeding
are not admissible as against the parties.

Scope: The statements referred to in this Section become admissible provided they satisfy the
requirements of Section 17 as regards their nature and Section 21 or any of the following sections as
regards their liability.

Admission by persons expressly referred to by party to suit: Section 20

Statements made by person to whom a party to the suit has expressly referred for information in reference
to a matter in dispute are admissions.

Illustration
The questions is, whether a horse sold by A to B is sound.

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A says to B - "Go and ask C. C knows all about it". C's statement is an admission.

a. Out of two parties to a suit, one party


b. Refers to third person for information
c. In reference to a matter in dispute
d. The third person makes a statement in respect of property or matter in dispute
e. The statement of third person is relevant and an admission.

This section forms another exception to the rule that admissions by strangers to a suit are not relevant.

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Taylor states: The admissions of a third person are receivable in evidence against, and have frequently
been held to be in fact binding upon, the party who has expressly referred another to him for information in
regard to an uncertain and disputed matter.

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Information

Hirachand Kothari vs. Rajasthan, AIR 1985 SC: Explaining the term 'information" the Supreme Court has
said: "The word 'information' occurring in Section 20 is not to be understood - in the sense that the parties
desired to know something which none of them had any knowledge of where there is a dispute as regards a

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certain question and the court is in need of information regarding the truth on that point; any statement that
the reference may make is nevertheless information within the meaning of Section 20".

- The Supreme Court regarded the report of an assessor "information" within the meaning of the
Section. The court said that it would also include reference to arbitrator.

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Proof of admissions against persons making them and by or on their behalf: Section 21

Admission are relevant and may be proved as against the person who makes them or his representative in
interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in

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interest, except in the following cases:

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.

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2. 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

3. An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than
as an admission.

a. An admission is relevant and may be proved as against (i) the person who makes it or (ii) his
representative in interest.

b. It cannot be proved by or on behalf of the person who makes it or by his representatives

c. Except in three cases -

i. When it is of such a nature that, if the person making it were dead, it would be relevant as
between third person under section 32;

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ii. When it consists of a statement of the existence of any state of mind or body made at or
about the time when such state of mind or body existed and is accompanied by conduct
rendering its falsehood improbable;

iii. If it is relevant otherwise than as an admission.

The section lays down as a general rule that admissions are relevant and relevant and may be proved
against the person who makes them or his representative in interest. Admissions duly proved are
admissible evidence irrespective of whether the party making them appeared in the witness-box or not and
whether that party when appearing as witness was confronted with those statements in case he made a
statement contrary to those admissions. [Bharat Singh vs. Bhagirathi, AIR 1966 SCl

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Scope: There is nothing in Sections 18 to 21 to suggest that they apply to civil cases only; they apply to
admissions in criminal cases also.

- The principle laid down in this section must be taken subject to sections 24, 25 and 26 of this Act and
Sections 164 and 201 to the Cr. P.C.

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Basanti vs. State of HP, 1987 Cr. L.J. (SC): The statement outside the court by the wife of the deceased
that she and other named person had committed the murder was held to be not provable under this section.

N. Rajan vs. State, 1994 Cr. L.J. (Ker.): The accused made a statement to the prosecution witness that

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bite mark on his chest was caused by the deceased when she was strangulated and there was nothing on
record to disbelieve the testimony of the prosecution witness, it was held that the evidence of he
prosecution witness would be admissible under Section 21.

When oral admissions as to the contents of documents are relevant· Section 22

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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.

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The contents of a document which is capable of being produced must be proved by the instrument itself not
by oral evidence.

But oral evidence in respect of contents of a document can be given when a party is entitled to give

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secondary evidence of the contents of such document under section 65 and 66.

Such admission are also admissible when the genuineness of the document produced is in question.

Admission in civil cases when relevant: Section: 23

In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not
to be given, or under circumstances from which the Court can inter that the parties agreed together that
evidence of it should not be given.

Explanation: Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from
giving evidence of any matter of which he may be compelled to give evidence under Section 126.

This section gives effect to the maxim "interest rei publicae ut sit finis litium (it is for the interest of the state
that there should be an end of litigation).

- This section protects communications made "without prejudice"; confidential overtures of

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pacification and any other offers or proposition between litigating parties, expressly or impliedly
made without prejudice are excluded on grounds of public policy.

Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding:


Section 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, in
the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for
supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him.

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The substantive law of confession is contained in Sections 24 to 30 of the Evidence Act and the adjective
(procedural) law, in Sections 164, 281 and 463 of the Criminal Procedure Code. 1973. It is presumed that a
person will not make an untrue statement against his own interest.

Principle: According to the Section 24 confession by an accused is irrelevant if it is caused by (1)

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inducements; (2) threat; or (3) Promise. The inducement, threat or promise should have (a) reference to the
charge against the accused, (b) proceeded from a person in authority, and (c) sufficiently given the accused
person reasonable grounds for supposing that by making the confession he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against him,

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What is a confession?: The "Confession" has not been defined anywhere in the Act. A "confession" is an
admission made at any time by a person charged with a crime, stating or suggesting the inference that he
committed that crime.

Shahoo vs. State of UP, AIR 1966 SC: The Supreme Court held that before a confession can be accepted

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in evidence, it must be established by cogent evidence what were the exact words used by the accused.
Even if so much is established, prudence and justice demand that such evidence cannot be made the sole
ground of conviction. It may be used as a corroborative piece of evidence.

When a confession is relevant : A confession is relevant-

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1. If is made after the impression caused by any such inducement, threat or promise has been fully
removed (Section 28),

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2. If it is not made to a police officer (Section 25);
3. If it is made in the presence of ~ Magistrate when the accused is in the custody of a police officer

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(Section 26)
Before recording a confession: "Giving warning that it will be used against the person making it is
fundamental basic principle of criminal jurisprudence."

To be accepted as a whole or rejected as a whole: It is the well accepted rule regarding the use of
confessions and admissions that they must be accepted as whole or rejected as a whole and that the court
is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently
incredible, [Palvinder Kaur vs. State of Punjab (1953) SCR]

Confession to police officer not to be proved : Section 25

No confession made to a police-officer shall be proved as against a person accused of any offence.

Principle : A confession made to a police officer is inadmissible in evidence except so far as is provided by

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Section 27. The principle upon which the rejection of confession made by an accused to a police officer or
while in the custody of such officer (Section 26) is founded is that a confession thus made or obtained is
untrustworthy.

- Section 162 of Cr.P.C. enacts that no statement made by any person to a police-officer in the course
of investigation shall, if taken down in writing, be signed by the person, making it nor shall such
writing be used as evidence.

Object: The object of Sections 25 and 26 is to prevent the practice of torture by the police for the purpose of
extracting confessions from accused persons.

Scope: This Section covers a confession made by the accused when he was free and not in police custody,
as also a confession made before any investigation has begun.

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A. Nagesia vs. Bihar State, AIR 1966 SC: No part of an FIR lodged by the accused with the police could be
admitted into evidence if it was in the nature of a confessional statement. The statement can be admitted to
identify the accused as the maker of the report.

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Sita Ram vs. State of UP, AIR 1966 SC: A confession contained in a letter written and signed by the
accused and addressed to a police-officer was held to be admissible as the letter was not written in the
presence of the police officer.

Police Officer: This term should not be read in a strict technical sense but according to its more

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comprehensive and popular meaning.

Confession by Accused while in custody of police not to be proved against him: Section 26
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such person.

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Explanation: In this section "Magistrate" does not include the head of a village discharging magisterial
functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate
exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1881).

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a. The accused is in police custody

b. A confession is made by him (i) to the police officer (Section 25) or (ii) to any person who is not a
Magistrate.

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c. Is not admissible in the proceeding and cannot be proved against the accused.

d. Exception : It is admissible, if it is made in the immediate presence of the Magistrate

Principle: The confession made while the accused is in police custody is not admissible in law because it is
against the rule of natural law. The presence of the Magistrate secures the free and voluntary nature of the
confession and the confession made to a police-officer would, however, be admissible in evidence under
Section 26 if it is made in the presence of a Magistrate and it is recorded by him in the manner prescribed by
Section 164, Criminal Procedure Code, 1973.

Custody: The mere temporary absence of a policeman from the room in which confession is recorded
does not terminate his custody of the accused, if he has taken effective steps to prevent his escape whether
by locking the door of the room or by waiting outside.

Harbans Singh vs. State (1968): The words "in custody" which are to be found in this and other sections of
the Act only denotes surveillance or restriction on the movements of the persons concerned, which may be

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complete as, for instance, in the case of an arrested man, or may be partial.

Extra-Judicial Confession: These are made by the accused person elsewhere than before a Magistrate
or in court. The words used by the accused in confessing are very much important and, therefore, the same
words should be necessary to give to the court an impression of what the true confession was.

How much of information received from accused may be proved: Section 27

Provided that, when any fact is deposed to as discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

a. A person accused of any offence.

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b. He is in the custody of police.
c. Some information relating to the offence is given by the accused.
d. Some facts are discovered in consequence of the information.

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e. Only so much of information relates distinctly to the fact discovered, can be proved.

This section is founded on the principle that if the confession of the accused is supported by the discovery of
a fact it may be presumed to be true and not to have been extracted.

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Object: The object of this section is to admit evidence which is relevant to the matter under inquiry namely
the guilt of the accused a'1d not to admit evidence which is not relevant to that matter. The discovery of a
material object is of no relevancy to the question whether the accused is guilty of the offence charged
against him unless it is connected with the offence.

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A. Nageshla vs. Bihar, AIR 1966 SC: The Supreme Court has held that this section controls Sections 24,
25 and 26. A confession to which this section applies is admissible in evidence even though it was obtained
under circumstances which make it inadmissible under section 24.

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- This section is brought into operation when a person in police custody produces from some place of
concealment some object, such as dead body, weapons or ornaments, said to be connected with
the crime, of which the informant is accused. The proviso to Section 26, added by this section
should not be held to nulify the substance of the section. ,

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Facts discovered: The "fact discovered" in this section is equivalent to the object produced. The fact
discovered embraces the place form which the object is produced and the knowledge of the accused as to
this, and the information given must relate distinctly to this fact. Information as to the past user, or the past
history of the object produced is not related to its discovery in the setting in which it is discovered.

Ratanlal and Dhirajlal has stated, "Information supplied by a person in custody that "I will produce a knife
concealed in the roof of my house", does not lead to any discovery of a knife. It leads to the discovery of the
fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the
words be added "with which I stabbed A", these words are inadmissible since they do not relate to the
discovery of the knife in the house of the informant."

The scope and effect of Section 25, 26 and 27 :

a. No confession made to a police-officer by an accused person whether in custody or not cannot be


proved against the accused unless it is made in the immediate presence of a Magistrate.

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b. So much of the information received from a person accused of an offence in custody of a police
officer as relates distinctly to the fact thereby discovered is admissible in evidence under section 27 and
can be proved against him: but any statement made to a police-officer which connects the fact
discovered with the offence charged is inadmissible.

c. It has been held by the Kerala High Court in Abdul Samad vs. State, AIR (1959) that where a fact is
discovered as a consequence of information furnished by several accused, only the information which
is first given by one of the accused is admissible if it leads to the discovery.
But the Patna High Court has given an adverse decision on this point, [Motilal vs. State, AIR 1959 Pat]

The statement of the accused while in police custody regarding the concealment of any article or the
accused's knowledge of its whereabouts and the discovery in consequence of the said statement is
admissible in evidence.

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The discussed spoke nothing but only showed the way to the place from where a few personal articles of the
deceased were recovered, Section 8 was held to apply and not this section.

Bhagat Bahadur vs. State, 1996 Cr. L.J. Delhi: The incriminating articles were aleged to have been

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recovered from the house of the accused at his instance 10 to 12 days after his statement whereas those
articles were not recovered in the two searches made previously, the discoveries did not inspire
confidence.

Confession made after the removal of impression caused by inducement, threat or promise,

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relevant: Sector 28

If such a confession as is referred to in Section 24 is made after the impression made by any such
inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant.

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a. A confession is made by an accused person.
b. After the removal of inducement, threat or promise as described under Section 24.
c. The confession is relevant and admissible in Evidence.

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1) In determining whether an inducement has ceased to operate, the nature of such inducement, the
time and circumstances under which it was made, the situation of the person making it, will be taken
into consideration by the court.

2) The proper place of this section should have been after Section 24 as it forms an exception to the

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provisions of that section.

Shobha Paran vs. State of M.P., AIR 1959 MP: The Madhya Pradesh High Court has held that where once
the existence of the assault, beating or improper inducement has been established, there is presumption of
its continuance and the prosecution has to prove that the impression caused by the original inducement,
beating, assault or threat was fully removed, when the prisoner made the confession.

Confession otherwise relevant not to become irrelevant because of promise of secrecy etc.:
Section 29

If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under
a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of
obtaining it, or when he was drunk, or because it was made in answer to question which he need not have
answered, whatever may have been the form of those questions, or because he was not warned that he
was not bound to make such confession, and that evidence of it might be given against him.

In Re vs. Spilsbury, (1835) 11C and P, it was held that statements made by a person in sleep are not

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receivable in evidence. But a statement made by an accused when he is drunk is receivable in evidence. If a
police-officer gives an accused liquor in the hope of his saying something and he makes any statement, that
statement is not rendered inadmissible in evidence.

Section 164 Cr.P.C. and Section 24, 25, 26 and 29 of Evidence Act.: Section 164 Cr.P.C. provides the
formalities to be undergone by Magistrates in recording confessions. It says among other things that the
Magistrate shall explain to the person making the confession that he is not bound to make it. But this section
says that a confession does not become irrelevant because the accused was not warned· that he was not
bound to make it.

If such confession is otherwise relevant: These words indicate that before the provisions of this section
can be invoked, it must appear that the confession in question is admissible under the preceding sections of
the Act. If for any of the reasons mentioned in Sections 24, 26 and 28, the confession is inadmissible, then

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there is no question of applying the provisions of Section 29 at all. Section 29, therefore, assumes that there
is no bar to the admissibility of the confession in question arising from any of the said earlier provisions and
it then proceeds to invalidate or negative other possible objections or bars that may be raised against its
admissibility.

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In English Law, such evidence is admissible by police by way of unauthorised interception of telephone
conversations is admissible. Section 9 of 1985 Act (English) does not operate to the contrary.

Consideration of proved confession affecting person making and other jointly under trial for same
offence: Section 30

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When more persons than one are being tried jointly for the same offence, and a confession made by one of
such persons affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the person who makes such
confession.

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Explanation: "Offence", as used in this section, includes the abetment of, or attempt to commit the offence.

Under this section, a confession by one person may be taken into consideration against another-

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a. If both of them are tried jointly;
b. If they are tried for the same offence
c. If the confession is legally proved;

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d. The explanation to section 30 makes it clear that "offence", as used in this section, includes the
abetment of, or attempt to commit, the offence.
This section says that where an accused person unresevedly confesses his own guilt, and at the same
time, implicates another person who is jointly tried with him for the same offence, his confession may be
taken into consideration against such other person as well as against himself, because the admission of his
own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath
and so affords some guarantee that the whole statement is a true one.

- But this is a very weak guarantee. For a confession may be true so far as its maker is concerned, but
may be false and concocted thro~gh malice so far as it affects others.

Weak Evidence: The privy Council held in Bhubani Sahu V5. The King, (1949) 76 1A 147 that a
confession of a co-accused is obviously evidence of a very weak type. It does not come within the definition
of "evidence" contained in Section 3. It is not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the
evidence of an approver which is not subject to any of those infirmities.

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Kashmira Singh V5. State of M.P., (1952) SCR 526: The Supreme Court has also held that the confession
of an accused person against a co-accused is not evidence in the ordinary sense of the term. It does not
come within the meaning of evidence contained in Section 3 of the Evidence Act because

a. It is not required to be given on oath.


b. It is not required to be given in the presence of the co-accused against whom imputations are made.
c. It cannot be tested by cross-examination.
d. It may be false and concocted through malice as far as it affects others.

Joint Trial: To apply this section, there should be a joint trial of the accused. The joint trial should be legal. If
from any cause the accused who make the confession cannot be legally tried with the accused against

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whom the confession is to be used, the court should not attach any value to the confession.

Illustration (b) to Section 30 makes it clear - A is on his trial for the murder of C. There is evidence to show
that C was murdered by A and B, and that B said - "A and I murdered C".

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The statement may not be taken into consideration by the court against A, as B is not being jointly tried.

For the same offence: This expression means an offence coming under the same legal definition, i.e.
under the same section of the law.

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Confession made by one of such persons affecting himself and some other of such persons.

Balbir Singh vs. State of Punjab, AIR 1957 SC: The Supreme Court has held that a confession must
implicate the maker substantially to the same extent as the other accused person against whom it is sought

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to be taken into consideration.

Empress of India vs. Ganraj (1879) All: The test is that the confessions made by an accused which
implicate his fellow and exculpate himself, are not regarded as evidence.

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- There is nothing in the section which restricts the confession to one recorded before a Magistrate.

Legally proved: It means proved either in the course of the prosecution case or proved in some
proceeding previous to the trial. A statement made by a co-accused in the course of a trial in reply to
questions under Section 313, Criminal Procedure Code, 1973 implicating an accused person, is admissible

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as evidence against the person accused of any offence. [Emperor vs. Cooper, (1930) Born LR]

Retracted confession: A retracted confession means a confession which is firstly made by the accused
but after some time he denies it or vice versa. It is a weaker type of evidence so perfect corroboration is
needed, before it can be acted upon.

Admission is not conclusive proof, but may estop: Section 31

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the
provisions hereinafter contained.

Admissions are not conclusive proof of the matters admitted,


But they may operate as estoppels.
This section declares that admissions are not conclusive proof of the matters admitted, but that they may
operate as estoppels. Admission is defined in section 17 and estopel in Section 115.

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- Unless admission are contractual or unless they constitute an estoppel they are conclusive, but are
open to rebuttal or explanation.

- A mere admission is conclusive only where it has been acted on by the other party, by creating a
substantive right; it does oblige the stopped party to make good his representation; in other words, it
is conclusive.

Two other kinds of admissions may also be effective:

I. Admissions contained in the pleadings in a case which would circumscribe the issues and avoid the
necessity for proof, and

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II. Admissions made by the parties to a suit on earlier occasions either in prior proceedings in a
court of law, or in statements made out of court. What a party himself admits to be true may
reasonably be presumed to be so.

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Narayan vs. Goptal, AIR 1960 SC 100: The section says that an admission is not conclusive proof; it does
not say that an admission is not sufficient proof without corroboration. It deals with the effect as to
conclusiveness of an admission. The express admissions of a party to the suit or admissions implied from
his conduct are ·strong evidence against him.

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Estoppel and Admission

Estoppel
1. Estoppel binds only parties and privies thereto

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2. Estoppel being rule of evidence, an action cannot be founded on it.
3. It applies only in civil law.
Admission

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1. It is not with admission. Even a stranger can take advantage of admissions.
2. An action can be founded on an admission
3. Generally, it also applies in civil law.

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Awadh Kishore Das vs. Ram Gopal, AIR 1979 SC 861: Admission made by a party in a previous suit
binds the successors in interest and legal representatives in subsequent suit.

- The provisions of this section are not restricted to admissions made at any particular time or place,
but are wide enough to include admissions made in pleadings.

CHAPTER II (III) Statements by persons who cannot be called as witnesses [Section 32-33]

Cases in which statement of relevant fact by person who is dead or cannot be found (etc.), is
relevant: Section 32

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or
who has become incapable of giving evidence, or whose attendance cannot be procured without an
amount of delay or expense which, under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases:

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1. When it relates to cause of death: When the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the-·transaction which resulted in his death in cases in which
the cause of the person's death comes into question.

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

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

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document usually dated, written or signed by him.

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

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

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has arisen.

5. Or relates to existence of relationship: When the statement relates to the existence of any
relationship (by blood, marriage or adoption) between persons as to whose relationship (by blood,
marriage or adoption) the person making the statement had special means of knowledge, and when the

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statement was made before the question in dispute was raised.

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

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

7. Or in document relating to transaction mentioned in Section 13, clause (a): When the

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

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

A statement of relevant facts made by a person


a. who is dead;
b. who cannot be found;
c. who has become incapable of giving evidence.
d. whose attendance cannot be procured without unreasonable delay or expense.

is relevant under the following circumstances:

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a. When it relates to the cause of his death.

b. When it made in the cause of business; such as an entry in books, or acknowledgement of the
receipt of any property, or date of a document.

c. When it is against the pecuniary or proprietary interest of the person making it or when it would have
exposed him to a criminal prosecution.

d. When it gives opinion as to a public right or custom or matters of general interest and it was made
before any controversy as to such right or custom had arisen.

e. When it relates to the existence of any relationship between persons as to whose relationship the
maker had special means of knowledge and was made before the question in dispute arose.

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f. When it relates to the existence of any relationship between persons deceased and is made in any
will or deed or family pedigree, or upon any tombstone or family-portrait, and was made. before the
question in dispute arose.

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g. When it is contained in any deed, will or other document. This cause, however, does not allow
introduction of parole evidence.

h. When it is made by a number of persons and expresses feelings relevant to the matter in
question.

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Section 60 of the Indian Evidence Act, 1872 says that oral evidence must be direct. But Section 32 and 33
are exceptions to the general rule as laid down in Section 60. Hearsay evidence is excused on the ground
that it is always desirable in the interest of justice to get the person, whose statement is relied upon, into
court for his examination in the regular way i.e. cross-examination and re-examination.

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The exceptions to the hearsay evidence have been directed due to necessity. The excluding the hearsay
evidence is relaxed so far as the statements contained in Sections 32 and 33 are concerned because a
dead person cannot come into the court to give his testimony.

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Cause of death (Clause 1): When the statement is made by a person as (i) to the cause of his death or as
(ii) to any circumstances of the transaction which resulted in his death, in cases in which the cause of that
person's death comes into question.

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

Illustrations

1. The question is, whether A was murdered by B. A dies of injuries received in a transaction in the
course of which she was ravished by B;

2. The question is, whether A was killed by B under such circumstances that a suit would lie against B
by A's widow.

Statements made by A as to the cause of his death referring to the actionable wrong are relevant facts.

Dying· Declaration: The statements referred to in cause 1 are called 'dying declaration'. It has been
discussed as below:

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1) Meaning: Words "dying declaration" mean a statement written or verbal of relevant facts made by a
person who is dead. It is dealt under clause (1) of Section 32 of the Indian Evidence Act, 1872.
Generally, it relates to the cause of death of the declarant. "Dying declaration" can be proved by the
person who records it. A dying declaration is not complete: unless full names and addresses of the
persons involved are given in it.

Sant Gopal vs. State of U.P., 1995 Cr. L.J. (All.): Evidence of dying declaration is admissible not
only against the person actually causing the death but also against other persons participating in
causing death.
2) Language of Dying Declaration: Dying declaration recorded in the language of the declarant
acquires added strength and reliability. As far as possible, it should be recorded in the exact words
and language of the declarant.

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Deepak Baliram Bajaj vs. State of Maharashtra, 1993 Cr. L.J. (SC): In the above mentioned case
of death of a lady due to 100% burn injuries, the dying declaration was recorded in hospital by a
constable. Questions were asked in Sind hi by Special Executive Magistrate and were replied in
Sindhi and then translated to the constable in Hindi who in turn recorded them in Marathi. The
declaration was explained in Hindi and not in Sindhi to the declarant. The Supreme Court held that

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the conviction based solely on such a dying declaration could not be sustained.

3) Who can record a Dying Declaration?: A dying declaration can be recorded by a person, even by
a police-officer. But if it is recorded by a judicial Magistrate, it will have more strength and reliability.

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State of U.P. vs. Shishupal Singh, AIR 1994 SC: The dying declaration was recorded by the
Magistrate which was neither signed by the deceased, nor contained date and time of its recording
and the prosecution failed to give any explanation that the deceased was not in a position to sign it. It
was held that such dying declaration which was impregnate with so many suspicious
circumstances, created doubt about its genuineness and it was not safe to base conviction on it.

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Malik Ram Bhai vs. State of Orissa, 1993 Cr. L.J. (SC): The dying declaration was recorded by
the doctor in question and answer form in the presence of other witness and it was corroborated
with the testimony of other eye-witnesses. It was held that it was sufficient to convict the accused.

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- Dying declaration recorded by police does not stand self-condemned but creates suspicion. In
emergency, it can be recorded without calling a Magistrate or doctor.

4) Form of dying declaration: It may be in the form of questions and answer or description generally,

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but not always, necessarily.

5) Fitness of declarant: Certificate from the doctor and endorsement from him that the victim was not
only conscious but also in a fit condition to make a statement is a must. In the absence of such a
certificate, the declaration may be rendered heavily suspect.

Amar Singh vs. State of M.P. 1996 Cr. L.J. (MP): It was held by M.P. High Court that without proof of
mental or physical fitness, the dying declaration was not reliable.

Hans Raj vs. State of Rajasthan, 1995 Cr.L. J. (Rajasthan) : The fact that the deceased had hundred
per cent burn injuries of second degree and third degree, was not held to be sufficient to presume
that the victim was not physically and mentally fit to give statements.

6) Proof of dying declaration: A dying declaration may be written or oral. It may be proved by the
evidence of a witness who had it made. When a dying declaration is recorded by a Magistrate, it
must be' proved by calling the Magistrate as a witness.

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7) State of Assamvs. M. Ahmed, AIR 1983 SC: A dying declaration is not a proof of the truth of its
contents but only of the fact stated. If it is truthful, it can be the sole basis of conviction. When it is not
properly proved it cannot be used to corroborate other evidence.

8) Admissibility of statements: There are certain pre-requisites to the admissibility of a statement


under this section. The court has to be convinced that the witness whose statement is offered is
dead, or cannot be found, or has become incapable of giving evidence or unreasonable delay or
expense is involved in producing him.

9) Non-examination of scribe: It is necessary that the scribe must be produced in the court. The
accused should also be given a chance to cross-examine him.

10) More than one dying declaration: When there are more than one dying declarations of the same

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person, they have to be read as one and the same statement for proper appreciation of the value
and, if they differ from each other on material aspects the effort should be made to see if they could
be reconciled. If no assumption could explain the difference, the statements might become
unworthy of credit but if one is possible the position may be different.

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11) If the declarant chances to live: If the dying declarant does not die, his declaration cannot be used
under Section 32 (1) as dying declaration.

Appabhai vs. State of Gujrat, AIR, 1988 SC: If a person making a dying declaration chances to
live, his statement is inadmissible as a dying declaration under Section 32(1), but it might be relied

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upon under the provisions of section 157 to corroborate his testimony when examined.

The following are the consequences if the declarant does not die:

a. A dying declaration under Section 32(1) is admissible only when the detail of the declarant is

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proved.
b. If the declarant survives, his declaration is inadmissible under section 32(1)
c. He should be examined in court and the adverse party must be given a chance to cross

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examine him.
d. His testimony should be used for corroboration under section 157.
e. It can be contradicted under Section 145 by the adverse party. It will be used as the previous

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statement of the declarant.
f. It may be relevant under any other sections of the Indian Evidence Act. 1872.

12) Circumstances of the transaction: This phrase conveys some limitations. It is not as broad as the
analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is
narrower than res gestae. Circumstances must have some proximate relation to the actual
occurrence and must be a transaction which resulted in the death of the declarant.
The condition of the admissibility of the evidence is that the cause of the declarant's death comes
into question. It is not necessary that the statement must be made after the transaction has taken
place or that the person making it must be near death or that the "circumstances" can only include
the acts done when and where the death was caused. [Pakala Narayana Swami vs. The King
Emperor], (1939) 1A

13) Corroboration not necessary: There is no absolute rule of law, or even a rule of prudence which
has ripened into a rule of law, that a dying declaration unless corroborated by other independent
evidence, is not fit to be acted upon. It can be made the sole basis of conviction.

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14) Proximity between time of statement and that of death: Fazal Ali J. obseNed in Sharad vs.
State of Maharashtra, AIR 1984 SC that (i) A declaration will be relevant whether death is homicide
or suicide, provided it relates to the cause of death or exhibits circumstances leading to death. (ii)
The test of proximity cannot be literally pursued and practically reduced to a cut and dried formula of
universal application. Distance of time would depend on or vary with the circumstances of each
case.

15) Difference between English and Indian Law: Under the English law, it is essential to the
admissibility of dying declaration that the declarant must have entertained a settled hopeless
expectation of death, but he need not have been expecting immediate death.

Indian law does not put any such restrictions. It is not required under Indian law that the maker

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should be under expectation of imminent death, nor it is restricted to case of homicide only. Before a
dying declaration may be admitted, it must be proved that its maker is dead, if the maker survives, it
may be used to corroborate or contradict his statement in the court.

16) Admissibility of dying declaration: The Supreme Court has laid down in several judgments the

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principles governing dying declaration which can be summed up as under.

a. There is neither rule of law nor of prudence that the dying declaration cannot be acted upon without
corroboration.

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b. If the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it,
without corroboration.

c. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is
not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and

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identify the assailants and was in a fit state to make the declaration.

d. Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

e. Where the deceased was unconscious and could never make any dying declaration the evidence

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with regard to it is to be rejected.

f. A dying declaration which suffers from infirmity cannot form the basis of conviction.

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g. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be
rejected.

h. Equally, merely because it is a brief statement it is not to be discarded, on the contrary, the
shortness of the statement itself guarantees truth.

Statements in course of business (Clause 2): When it is made in the course of business, such as, entry
in books, or acknowledgement or the receipt of any property, or date of a document, it is relevant. This
clause contemplates a statement by a person whose duty it was to make such a statement or whose
business was such that statements of the kind were to be expected in the ordinary course of things.

Clause (2) provides that a written statement of a relevant fact made by a person who is dead is itself a
relevant fact, when the statement was made by such person in the ordinary course of business. The
expression "course of business" occurs in more than one place in the Act [vide Section 16,24,47, 114]

The phrase 'in the ordinary course of business" is apparently used to indicate the current routine of
business which was usually followed by the person whose declaration it is sought to introduce.

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Statement against the interest of maker (Clause 3): A statement of a deceased person in order to be
admissible under this clause must be a statement of a relevant fact and must be against the proprietary or
pecuniary interest of the person making it.

Opinion as to Public Rights or Custom (Clause 4): The admissibility of declarations of deceased
persons in cases of public right or custom or matters of public or general interest is allowed, as these rights
or customs are generally of ancient and obscure origin and may be acted upon only at distant intervals of
time; direct proof of their existence is not, therefore, demanded.

Statement as to existence of relationship (Clause 5): Statements relating to the existence of any .
relationship between persons alive or dead as to whose relationship the declarant has special means of
knowledge are admissible if they are made before the question in dispute was raised.

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Difference between clauses (5) and (6) [Clause 6]: Clause (5) refers to statements relating to the
existence of any relationship between persons alive or dead and the statement is to be made by a person
who had special means of knowledge, that is, it imposes the restriction that the person making the
statement should have special means of knowledge.

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Clause (6) refers to the existence of relationship between deceased persons only, and it imposes no such
restriction as under clause (5). It is enough if the statement is made in a will or deed relating to the affairs of
the family or in any family pedigree, etc., no matter by whom it was made.

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Clause (6) also refers to pedigree, but differs from clause (5) in this - that in clause (5) the evidence is the
declaration of the person deceased or otherwise unpredictable, in clause (6) the evidence is that of things,
such as genealogical trees, tamb stones, etc. The statements in clause (5) may be either written or verbal;
the statement in clause (6) must always be written as evidence therein is that of things.
Statements as to customary rights (Clause 7): A statement contained in any deed, will, or other

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document which relates to a transaction by which a right, or custom in question was created, modified,
rercognized, asserted, or denied, is admissible under this clause. A statement in any relevant document,
however recent, and though not more than thirty years old, is admissible.

Dwarka Nath vs. Lalchand, AIR 1955 SC: The word "verbal" used in beginning of this section naturally

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does not apply to this clause as well. This clause does not allow introduction of parole evidence.

General Remarks (Clause 8) : When a number of persons assemble together to give vent to one common
statement, which statement expresses the feelings or impressions made in their minds at the e of making it,

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that statement may be repeated by the witneses, and is evidence.

Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein
stated: Section 33

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it,
relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same
judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which, under the circumstances of the case, the Court
considers unreasonable:

That the proceeding was between the same parties or their representatives in interest:

Provided-

a. That the adverse party in the first proceeding had the right and opportunity to cross-examine:

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b. That the questions in issue were substantially the same in the first as in the second proceeding.
Explanation: A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section.

c. Evidence given by a witness (i) in a judicial proceeding, or (ii) before any person authorized by law to
take it, is relevant in a subsequent judicial proceeding or a later stage of the same proceeding –

I. When the witness is dead,


II. When he cannot be found,
III. When he is kept out of the way by the adverse party or
IV. When his presence cannot be obtained without an amount of delay or expense which the

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court considers unreasonable.
But such evidence will be admissible only –

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a. If the proceeding was between the same parties, or their representatives in interest.
b. If the adverse party in the first proceeding had the right arid opportunity to cross-examine, and
c. If the questions in issue were substantially the same in the first as in the second proceeding
Evidence of depositions in former trials is admissible as it forms an exception to the hearsay rule.

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Depositions are in general admissible only after proof that the persons who made them cannot be produced
before the court to give evidence.

Criminal trial or inquiry, deemed proceeding (Explanation): The explanation is intended to do away
with the objection that, in criminal cases, the state is the prosecutor. The effect of the explanation is that the
deposition taken in criminal proceedings may be used in civil suit, and vice versa. [Emperor vs.

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Mohammed Yusuf, (1932) Born LR]

Other case laws (Section 33)

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CHAPTER II (IV) Statement made under special circumstances [section 34-39]

1. Entries in Books of account when relevant: Section 34: "Entries in books of account, including
those maintained in an electronic from, regularly kept in the course of business are relevant,
whenever they refer to a matter into which the Court has to enquire; but such statements are not

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alone sufficient evidence to charge any person with liability".

2. Relevancy of entries in public/electronic record: Section 35: "An entry in any public or other
official book/register/record, or an electronic record, stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official duty (or by any other person in performance
of a duty especially enjoined by the law of the country in which such book, record etc. is kept), is
itself a relevant fact."

Section 35 is based upon the principle that public records maintained in the performance of official
duties must carry a prima facie evidentiary value of their correctness. Thus, a municipal record of a
person's date of birth or death is relevant to prove the date of birth or death of person concerned.
There is, however, no presumption that such entries reflect only the truth .. Though school register is
relevant for showing date of birth, yet in the absence of the material on the basis of which the entry
was made, it would not be of much evidentiary value (Birad Mal Singhvi vs. Anand Purohit AIR
1988 se 1976). A statement of age in the pleadings of a party has been regarded as an evidence of
his age.

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3. Relevancy of statement in maps, charts etc.: Section 36: According to Section 36, statements in
maps, plans or charts which are meant for public sale or which are prepared with the authority of the
State do carry prima facie evidentiary value of the truth of their contents and therefore, can be
offered in evidence whenever the facts stated in them are in issue or are otherwise relevant.

4. Relevancy of statements in acts of parliament of England or India: Section 37: "Statements of


any facts of a public nature (as to the existence of which the Court has to form an opinion) made in a
recital contained in any Act of Parliament of the U.K. or in any Central or Provincial Act or a State Act
or in a Government Notification in the Official Gazette are relevant facts."

5. The Gazetted statements are the best evidence of facts stated in the Gazette and are entitled to due
considereation but should not be considered as conclusive in respect of matters requiring judicial
adjudication [Bal vs. Hiralal Gupta (1990) 2 see 22].

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6. Relevancy of statements as to law in law books of a foreign country: Section 38 : When the
court has to form an opinion as to law of any country, any statement of the law of that country
contained in a book printed or published under the authority of the Government of such country and
any report of a ruling of the courts of such country, is relevant.

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7. What evidence to be given when statements forms part of a conversation, document, etc.:
Section 39: According to Section 39, where a long statement/conversation/document/ electronic
record/book/series of letters or papers, is relevant to any proceeding the court may in its discretion
require the production of only so much of the statement/conversation/document, etc. as is

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necessary for a full understanding of the statement in the particular case.

The section has been substituted by the Information Technology Act, 2000 so as to include electronic
records' also.

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Chapter II (V) Judgment of Courts of Justice, When Relevant (Section 40-44)

Previous Judgement relevant to bar a second suit or trial : Section 40

The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of

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a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance
of such suit or to hold such trial.

a. the existence of any (a) judgment, (b) order of (c) decree

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b. which by law prevents any Court from (a) taking cognizance of a suit or (b) holding a trial

c. is a relevant fact

d. when the question is (a) whether such court ought to take cognizance of such suit or (b) to
hold such trial.

The existence of a judgment, decree or order is a relevant fact if by law it has the effect of preventing any
Court from taking cognizance of a suit, o~ holding a trial (the doctrine of res-judicata).

Sections 40 to 43 deal with the sUbject of relevancy of judgments : Judgments or adjudications are
admissible or re-judicata under this Section and as relating to matters of public nature under Section 42.
Judgments other than those mentioned in section 40, 41 and 42 may be relevant under Section 43, if their
existence is a fact in issue or is relevant under some other provision.

Principle: Under this Section the existence of a judgment, decree, or order, is a relevant fact, if by law, it has
the effect of preventing any court from taking cognizance of a suit, or holding a trial. It is intended to include

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all cases in which a general law relating to res-judicata inter partes applies.

- The main object of the doctrine of res-judicata is to prevent multiplicity of suits and interminable
disputes between litigants. Res-judicata means, by its very words, a thing upon which the Court has
exercised its judicial mind. Section 11 of CPC lays down the law as to res-judicata.

Res-Judicata: The doctrine of res-judicata in its wider sense, which includes a bar on the subsequent
litigation not only of all issues resolved in the earlier proceedings but also of every point which properly
belongs to the subject - matter of the litigations, applies only when the course of action or issue is or remains
between the same parties or their predecessors in title and does not extend to those not themselves party to
the earlier proceedings [Vide - Section 11 Civil Procedure code, 1908]

- The principle of this Section applies to Criminal Courts as well. The plea of autrefois convict or

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autrefois acquit, that is, or a previous lawful conviction or lawful acquittal, has always been held to
be a good plea. [Vide: Section 403, Cr. P.C.}

A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away from any person any legal character, or which

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declares any person to be entitled to any such character, or to be entitled to any specific thing, not as
against any specified person but absolutely, is relevant when the existence of any such legal character, or
the title or any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof-

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that any legal character, which it confers accrued at the time when such judgment, order or decree
came into operation;
that any legal character, to which it declares any such person to be entitled~ accrues to that person
at the time when such judgment, [order or decree] declares it to have accrued to that person.

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- that any legal character which it takes away from any such person ceased at the time from which
such judgment, order or decree declared that it had ceased or should cease;
- and that anything to which it declares any person to be so entitled, was the property of that person at
the time from which such judgment, order or decree declares that it had been or should be his

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property.

A final judgment of a Court exercising (1) probate, (2) matrimonial, (3) admiralty (4) insolvency jurisdiction
which - (i) confers upon or takes away from any person any legal character, or (ii) declares any person to be

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entitled to (a) any such character, or (b) any specific thing absolutely, is relevant.

Such judgments are known as judgments in rem.


Such judgment is conclusive proof:

i. That any legal character, which it confers, accrued at the time when such judgment came into
operation.
ii. That any legal character to which it declares any person to be entitled accrued at the time
mentioned in the judgment.

iii. That any legal character which it takes away from any person ceased at the time mentioned in the
judgment.

iv. That any thing to which it declares a person to be entitled was the person's property at the time at
which the judgment declares it is to be his.

This section consists of two parts. The first part makes the final judgment, order or decree of a competent

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Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction relevant; the second part
makes the judgment conclusive proof in certain matters.

The Section deals with what are usually called judgment in rem. Le. judgments which are conclusive not
only against the parties to them but also against the whole world. "A judgment in rem has been defined to be
an adjudication pronounced, as its name indeed denotes, upon the status of some particular subject matter,
by a tribunal having competent authority for that purpose.

When a judgment in rem can be impeached: A judgment in rem can only be impeached on the following
grounds:

a. that the Court has no jurisdiction; or

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b. that the judgment was obtained by fraud or collusion: or
c. that it was not given on the merits; or that it was not final, e.g. interlocutory.
- Judgment in rem is conclusive against all the world as to that status, whereas judgment in
personam is only conclusive between the parties and privies.

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- Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41:
Section 42

Judgments, orders or decrees other than those mentioned in Section 41 are relevant if they are related to

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matters of a public nature relevant to the enquiry; but su.ch judgments, order or decrees are not conclusive
proof of that which they state.

This section declares judgments relating to matters of a public nature relevant, whether between the same
parties are not. It also forms an exception to the general rule that no one shall be affected or prejudiced by
judgments to which he is not a party or privy. The exception just stated is allowed in favour of verdicts,

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judgments, and other adjudications upon subjects of a public nature, such as customs, prescriptions, tolls,
boundaries between parishes, countries or manors, right of ferry, liabilities to repair roads, or seawalls and
like.

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- The effect of the adjudication, when admitted, will so far vary that, if the parties be the same in both
suits, they will be bound by the previous judgment but, if the litigants in the second suit be strangers
to the parties in the first, the judgment though admissible, will not be conclusive.

Comparison of section 40, 41 and 42: Section 40 admits as evidence all jUdgments inter parte which

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would operate as res-juducata in a second suit.

Section 41 admits judgments in rem as evidence in all subsequent suits where the existence of the right is in
issue, whether between the same parties or not.

Section 42 admits all judgments not as res-judicata, but as evidence, although they may not be between the
same parties, provided they relate to matters of public nature relevant to the enquiry.

Judgments, etc., other than those mentioned in sections 40 to 42, when relevant: Section 43

Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless
the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other
provisions of this Act.

Judgments, the existence of which is a fact in issue or is relevant under some other provision of the
Evidence Act, are relevant under Section 43. A judgment is generally speaking admissible to show its date
and its legal consequences. So, as regards the truth of the matter decided a judgment is not admissible

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evidence against one who is a stranger to the suit.

Relevant under some other provision of this Act: There are other provisions in the act, in which
judgments are relevant, though not inter parte [Vide Sections 8,11,13,14 and Section 54]

City Improvement Trust v. H Narayanaiah AIR 1976 SC: The Supreme Court has laid down that in the
matter of valuation of land under acquisition, a judgment about valuation of land fairly adjoining to the land
in question is relevant. The party against whom such evidence is admitted must be informed so as to invite
his comments.

Fraud or collusion in obtaining judgments, or in competency of court, may be proved: Sec-44

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under

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Section 40, 41 or 42 and which has been proved by the adverse party was delivered by a Court not
competent to deliver it, or was obtained by fraud or collusion.

a. There are at least two parties to a suit or proceeding.

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b. One party shows judgments, order or decree which is relevant under Section 40, 41 or 42.
c. The party proves that judgment, order or decree in the Court of law.
d. The adverse party can show and prove
a. that the judgment was given by a Court which was incompetent, or

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b. that the judgment was obtained by fraud or collusion.
The Section lays down not only a rule of law relating to evidence, but also a rule of procedure. There are
many sections of this Act. such as Sections 66-73, 1-30, 135, 136 and 150, which relate more or less to
matters of procedure.

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Fraud: The term "fraud" is defined in section 17 of the Indian Contract Act. There must be actual or positive
fraud, that is, there must be an intention to cheat or deceive another person to his injury.

This Section allows a party to prove a fraud or collusion in order to avoid a judgment or order. Section 44 is
not applicable in cases of gross negligence. The fraud contemplated in this section must be a fraud

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practised on the Court itself. 'Fraud' is an extremely collateral act which vitiates the most solemn
proceeding of Courts of Justice.

Collusion: "Collusion" means an agreement or compact between two or more persons to do some act in
order to prejudice a third person, or for some improper purpose. It may be of two kinds:

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a. when the facts put forward as the foundation of the sentence of the Court do not exist.
b. when they exist, but have been corruptly preconcerted for the express purpose of obtaining the
sentence.

Chapter II (VI) Opinion of third persons when relevant [Section 45-51)

Opinion of Expert: Section 45

When the Court has to form an opinion upon a point of foreign law or of science or art or as identity or
handwriting [or in questions as to identity of handwriting] [or finger impressions] are relevant facts.

This section is an exception to the rule as regards the exclusion of opinion evidence opinions of experts are
relevant upon a point of (a) foreign law, (b) science, (c) art,' (d) identity of hand writing (e) finger
impressions.

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Principle: It is a general rule that the opinion of witness possessing peculiar skill is admissible whenever
the subject-matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a
correct judgement upon it without the assistance of an expert.

Who is Expert?: An 'expert' witness is one who has devoted time and study to a special branch of learning
and thus is specially skilled on those points on which he is asked to state his opinion. His evidence on such
points is admissible to enable the tribunal to come to a competent witness; he need not have acquired his
knowledge professionally. It is sufficient, so far as the admissibility of the evidence goes, if he has acquired
special experience therein. It is the duty of the Judge to decide whether the skill of any person in the matter
on which evidence of his opinion is offered, is sufficient to enable him to be considered as an expert [Vide:
Miglani v. Miglani, AIR 1979 SC ]

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Foreign Law: Foreign Law is law which is not in India. Expert evidence cannot be admitted where a
particular law is a law of land.

Aziz Bano v. Mohammed Ibrahim Hussain (1925) All: It was held in the above mentioned case that, the
Shia law on marriage is the law of the land and is in force in India. It cannot by no means be called foreign

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law nor is such law a science or art within the meaning of that Section (Section 45). It is the duty of the courts
themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses
howsoever learned they may be. It would be dangerous to delegate their duty to witnesses. produced by
either party.

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Foreign law is a question of fact with which courts in India are not supposed to be conversant. Opinions of
experts on foreign law are, therefore, allowed to be admitted.

Handwriting: It is necessary for the admission of evidence of a handwriting expert that the writing with
which the comparison is made should be admitted and proved beyond doubt to be that of the person

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alleged, and that the comparison should be made in open court in the presence of such person.

Corroboration not necessary: The Supreme Court has laid down that although the approach has to be
one of caution, there is no rule of law that the evidence of an expert should not be acted upon unless
substantially corroborated. [Vide: Murarilalv. State of M.P., AIR 1980 SC]

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Facts bearing upon opinion of experts: Section 46

Facts not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts,

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when such opinions are relevant.

Facts, not otherwise relevant, are relevant if they


i)
ii)
support the opinion of expert, or
if they are inconsistent with the opinion of experts.

The opinion of an expert is open to corroboration or rebuttal. All the evidence which supports or rebuts the
opinion of expert is admissible and relevant.

Ram Karan Mal v. State,. 1990 Cr. L.J.: Where the ocular evidence was that a number of assailants
surrounded the person and continuously subjected him to injuries and the medical report showed some
knife injuries, it was held that the eye-witness account stood nullified.

Opinion as to handwriting when relevant: section 47

When the Court has to form an opinion as to the person by whom any document was written or signed the

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opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or
sianed that it was or was not written or signed by that person, is a relevant fact.

Explanation: A person is said to be adquainted with the handwriting of another person when he has seen
that person write, or when he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person or when, in the ordinary
course of business, documents purporting to be written by that person have been habitually submitted to
him.

The court has to form an opinion as to the person by whom any document was written, or signed A person is
said to be acquainted with the handwriting of another person by whom a document is written or signed is
relevant.

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1. The court has to form an opinion as to the person by whom any document was written, or signed
A person is said to be acquainted with the handwriting of another person by whom a document is written
or signed is relevant.

a. he has to seen that person write

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b. he has received documents purporting to be written by that person in answer to documents written
by himself or under his authority and addressed to that person, or
c. in the ordinary course of business documents purporting to be written by that person have been

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habitually submitted to him.

When the Court has to form an opinion as to the handwriting of any person, the opinion of a person
acquainted with the handwriting of such person is admissible in evidence.

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How to Prove Handwriting: Section 47 indicates one of the methods of proving handwriting. The
handwriting of a person may be proved in the following ways:

i) by the evidence of the writer himself,

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ii) by the evidence of a person who has seen the person, whose writing is in question. write
iii) by the evidence of a person acquainted with such handwriting either by receiving letters purporting
to be written by the person in answer to documents written by the witness or under his authority and
addressed to that person or when in the ordinary course of business documents purporting to be

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written by that person have been habitually submitted to him.

Opinion as to existence of right or custom, when relevant: Section 48

When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to
the existence of such custom or right, of persons who would be likely to know of its existence, are relevant.

Explanation: the expression "general custom or right" includes customs or rights common to any
considerable class of persons.

Illustration:

The right of the villagers of a particular village to use the water of a particular well is a general right within . e
meaning of this section.

Opinions of persons who are in a position to know of the existence of a custom or usage in their locality are
admissible.

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Comparison of Section 13, 32(4) and 48: Section 48 should be read with Section 60 which requires at the
person who holds the opinion should be called as a witness. Section 13 applies to all rights and customs,
public or private, and refers to specified facts which may be given in evidence. Under clause ) of Section 32,
opinion as to public right or custom of a person, who is dead, or who had become capable of giving
evidence, or whose attendance cannot be procured without unreasonable delay or expense, is admissible.
The statements made by deceased persons after the controversy had arisen, a d therefore inadmissible
under Section 32(4), are not admissible under Section 48 and Section 49. They cannot be admitted under
Clause (7) of Section 32.

Opinion as to usages, tenets, etc. when relevant: Section 49


When the Court has to form an opinion as to:

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a. the usages and tenets of any body of men or family, the constitution as government of any religious
or charitable foundation,

b. the meaning of words or terms used in particular districts or by particular classes of people.

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c. the opinions of persons having special means of knowledge thereon, are relevant facts.

Opinions of persons having special means of knowledge regarding

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i) usages and tenets of a body of men or family,
ii) the constitution and government of any religious or charitable foundation;
iii) the meaning of words or 'terms used in particular districts or by particular classes of people are
relevant under Section 49.

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This section should be read with Section 51. Section 51 says that whenever the opinion of the living person
is relevant, the grounds on which such opinion is based are also relevant.

Usage: These will include usages of trade and agriculture, mercantile usage and any usage common to a
body of men or family. Usages of a family will include, for instance, the custom of primogeniture, or any

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peculiar course of descent. Primogenitures means of fact and condition of being firstborn child, the custom
of primogeniture means the right of succession belonging to firstborn child.

Tenets : This will include any opinion, principle, dogma or doctrine which is held or maintained by a body of
men. It will apply to religion, politics, science, etc.

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Opinion of relationship, when relevant: section 50

When the Court has to form an opinion as to the relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such relationship, or any person who, as a member of the
family or otherwise, has special means of knowledge of the subject, is relevant fact.

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian
Divorce Act, 1869 (4 to 1869) or in prosecutions under section 494, 495, 497 or 498 or the Indian Penal
Code (45 to 1860).

i) The Court has to form an opinion as to the relationship of one person to another.
ii) Opinion of a family member or of other person expressed by his conduct, is a relevant fact
iii) The declarant must have special means of knowledge on the subject.
iv) Proviso makes it clear that the opinion so expressed shall not be sufficient in the following

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cases.

a. To prove a marriage in proceedings under the Indian Divorce Act.


b. In prosecution under section 494 IPC-marrying again during lifetime of husband or wife.

c. in prosecution under Section 495 IPC - same offence as under Section 494 IPC with
concealment of former marriage from person with whom subsequent marriage is
contracted.

d. in prosecution under Section 498 IPC - enticing or taking away or detaining with criminal
intent a married woman.

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In prosecution in above mentioned cases strong proof of marriage is necessary

When the Court has to ascertain the relationship of one person to another, the opinion of any person having
special means of knowledge, as expressed by conduct, is admissible in evidence. The opinion may be of a
member of the family or an outsider, but he must have special means of knowledge. Evidence of general

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reputation, which is a accumulation of perception testimonies heard and gathered and reduced to an
assertion to Court, it not admissible.

Ground of opinion, when relevant: Section 51

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When the opinion of any living person is relevant, the grounds on which such opinion is based are also
relevant.

Illustration: An expert may give an account of experiments performed by him for the purpose of forming his
opinion

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a. whenever the opinion of a person is relevant
b. the grounds on which such opinion is based are also relevant.

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Where the opinion of an expert is receivable, the grounds or reasoning upon which such opinion is based
may also be inquired into opinion is no evidence, without assigning the reason for such opinion. The
correctness of the opinion can better be estimated in many instances. When the reasons upon which it is
based are known, if the reasons are frivolous or inconclusive the opinion is worth nothing.

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Adithela Immanual Raju v. Orissa, 1992 Cr. L.J. (Orissa): Where reasons for the support of opinion ere
introduced at the time of evidence, it was held that the grounds so introduced formed part of the relevant
testimony, for the opposite was not thereby deprived of their opportunity to cross-examine the expert not it
was otherwise prejudiced.

Chapter II (VII) Character when relevant [Section 52-55)

In civil cases character to prove conduct imputed, irrelevant: Section 52


In the civil cases, the fact that the character of any person concerned is such as to render probable or
probable any conduct imputed to him, is irrelevant, except in so far as such character appears from +acts
otherwise relevant.

a. In civil cases, no party can prove that the character of the person concerned is such as to render any
conduct improbable

b. Exception : It is relevant when character is fact in issue itself.

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c. In civil cases evidence of the character of any party to the prove the probability or improbability of
any conduct imputed to him is irrelevant. The general exclusion of character evidence is based on
ground of public policy and fairness of justice.

Wigmore has said, "The business of the Court is to try the case, and not the man: and a very bad man may
have a very righteous cause".

Character: The word "character" occurring in Section 52, 53 and 54 has been defined in the explants to
Section 55 "Character" is a combination of the peculiar qualities impressed by nature or by habit of the
person, which distinguish him from others.

The evidence of character relates either -

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i) to character of witnesses, or
ii) to character of parties.

Character of witness affects his credit and is always material as it helps the Court to come to the conclusion

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whether his evidence should be treated as trustworthy. Questions touching the character of a witness are
allowed to be put to a witness who comes to give evidence in a case.

In criminal cases previous good character relevant: Section 53

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In criminal proceedings the fact that the person accused is of a good character is relevant, e.g., an accused
is being tried for an offence/crime; the fact that he is a person of good character; is relevant.

Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC: It was held by the Supreme Court that
character evidence is very weak evidence; it cannot outweigh positive evidence in regard to the guilt of a

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person.

Previous bad character is not relevant, except in reply : Section 54

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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.

i.
j.

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In a criminal proceeding the bad character of a person is irrelevant
exception

a) the evidence of bad character can be given to contradict his motion that he is a person of good
character.

b) When the bad character of a person is itself fact in issue (Explanation 1)

c) a previous conviction is relevant as evidence of bad character. (Explanation 2)

Evidence of bad character of an accused person (of whose good character evidence has not been given) is
not relevant under this section for the purpose of raising a general inference that the accused is likely to
have committed the offence charged. Such evidence is irrelevant and cannot be legally admitted in
evidence elicited by the prosecution or by the defence.

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Previous conviction [Explanation 2]: A previous conviction is not admissible in evidence against the
accused, except where he is liable to enhanced punished under Section 75 of the Indian Penal Code on
account of previous conviction or unless evidence of good character is given, in which case the fact that the
accused has been previously convicted of an offence is admissible as evidence of bad character.

A previous conviction may also be relevant under Section 8 as showing motive. It may also become
relevant within the meaning of Section 14, explanation 2, when the existence of any state of mind, or body,
or bodily feeling, is in issue or relevant. It may also be relevant under Section 43, illustration (e).

Character as affecting damages: Section 55

In civil cases, the fact that the character of any person is such as to affect that amount of damages which he
ought to receive, is relevant.

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Explanation: In sections 52,53,54 and 55, the word "character" includes both reputation and disposition:
but, [except as provided in Section 54] evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition were shown.

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In civil cases the character of any person is relevant; if it is likely to affect the amount of damages which he
ought to receive; explanation makes it clear that in Sections 52, 53, 54 and 55 the word "Character"
includes both reputation and disposition. But evidence may be given of general reputation and general
disposition. Section 54 is exception of the above mentioned rule.
It is in the civil cases, where the question of amount of damages to be awarded to the plaintiff is concerned,

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that the character of the plaintiff becomes relevant. [Vide D. Shastri v. K. B. Sahoy, 1953 Pat.]

In civil cases good character, being presumed, may not be proved in aggravation of damages, but bad
character is admissible in mitigation of damages, for example.

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a) In cases of defamation the bad reputation of the plaintiff may be proved. The argument in favour of
considering reputation is that the person shown not be aid for the loss of the which he never had.

b) In cases, of breach of promise of marriage, the plaintiff's general character for immorality is
relevant.

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c) In cases of seduction evidence of the general character for immorality on the part of the person
seduced is relevant.

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Norton has written- "Evidence of reputation or disposition must be confined to the particular traits which
the charge is concerned about. Thus, it would be useless to offer evidence of a prisoner's reputation for
honesty on a charge of cruelty, or of his mild disposition on a charge of theft. Reputation for honestly would
be relevant on a charge of theft, and a merciful disposition on a charge of cruelly."

Character includes reputation and disposition [Explanation]: The word "Character" includes both
reputation and disposition, "Reputation" means what is thought of a person by others, and is constituted by
public opinion. "Disposition" respects the whole form and structure of the mind. It comprehends the springs
and motives of actions. "Temper" influences the action of the moment, "disposition" is permanent and
settled; "temper" may be transitory and fluctuating. It is possible and not infrequent to have a good
disposition with a bad temper, and vice versa. [Vide: Bhagwan Swarup v. State of Maharashtra, AIR
1965 SC]

FACTS WHICH NEED NOT BE PROVED


CHAPTER III - [Section 56-58]

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Fact judicially noticeable need not be proved: Section 56


No fact of which the Court will take judicial notice need be proved.

a. No party has to prove the fact


b. Of which the Court will take judicial notice
All facts in issue and relevant facts must be proved by evidence, either oral or documentary. To this rule
there are two exceptions.

a. facts judicially noticeable, and


b. facts admitted.·

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Facts of which court must take judicial notice: Section 57
This Section can be divided into three parts:
i) List of facts of which the court shall take Judicial Notice
ii) Matters of Public History, Literature, Science and Art.

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iii) The Court can order to produce any book or document for its aberration.

The Court shall take judicial notice of the following facts:

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a. All laws in force in the territory of India
b. All personal and local acts passed by the Parliament of the United Kingdom.
c. Articles of war for the Indian Army Navy or Air Force.
d. The course of proceedings of Parliament of the United Kingdom, of the Constituent

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Assembly of India, of Parliament and of the Legislatures established under any law in any
State of India.

e. The accession and the sign manual of the sovereign for the time being of the United

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Kingdom of Great Britain and Ireland.

f. All seals of which (a) English Courts take judicial notice; (b) the seals of all Courts in India;
established by the authority of the Central Government; (c) All Courts established by the
Crown Representative; (d) the seal of Courts of admiralty and Maritime Jurisdiction; (e) of

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Notaries Public, and all seals which any person is authorized to use by the Constitution or (f)
by an Act of Parliament of the United Kingdom; (g) by an Act or Regulation having the force
of law in India.

g. The accession to office, names, titles, functions and signatures of the persons filling for the
time being any public office in any State if the fact of their appointment to such office is
notified in any Official Gazette.

h. The existence, title and national flag of every State or sovereign recognised by the
Government of India,

i. (a) The divisions of time; (b) the geographical divisions of the world: (c) public festivals and
facts; (d) holidays notified in the Official Gazette.

j. The territories under the dominion of the Government of India.

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k. (a) Commencement; (b) continuance and (c) termination of hostilities between the
Government of India and any other State or body of persons.

l. The names of (a) the members and officers of the Court and of their deputies (b) subordinate
officers; (c) assistants; (d) all officers acting in execution of its process; (e) all advocates,
attorneys, proctors, vakils, pleadeis; (f) other persons authorized by law to appear or act
before it.

m. The rules of the road on land or at sea.

All the matters of public history, literature, science or art, the Court may resort for its aid to appropriate
books or documents of reference.

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The Court may demand any such book or document, which is necessary for him to come to the conclusion
that such fact exists in fact. The Court is not bound to take judicial notice of that unless such book or
document is produced before it for its observation.

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Section 57 enumerates thirteen facts of which the court is bound to take judicial notice. These facts are not
exhaustive. It is for the sake of convenience that the Courts are allowed to take judicial notice of certain
facts which are so clearly established that the evidence of their existence is unnecessary.
Facts admitted need not be proved: Section 58: No fact need to be proved in any proceeding which the
parties thereto or their agents agree to admit at the hearing, or which, before the" hearing, they agree to

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admit by any writing under their hands, or which by any rule of pleading "in force at the time they are
deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such
admission.

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Admissions by the parties before suit are dealt in Section 17. This section deals with admissions at or
before the hearing. No proof need be given of facts which the parties or their agents agree to admit at the
hearing, or which, before the hearing, they agree to admit by writing under their hands, or which, by any rule
of pleading in force at the time, they are deemed to have admitted by their pleadings.

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Every allegation of fact in the plaint, if not denied specifically or by necessary implication or state to be
admitted in the pleading of the defendant, shall be taken to be admitted.

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The Court may its discretion require any fact so admitted to be proved otherwise than by such admission [0.
VIII, r, 3, Civil Procedure Code (CPC))

IMPORTANT QUESTIONS

Q.1. What is meant by 'Dying declaration'? Can a dying declaration form the sole basis of conviction?

Q.2. Define an admission and distinguish it from confession. Can an admission be proved by a person
who makes it? Give reasons for your answer?

Q.3. Explain with illustration:

a) "Hearsay evidence is not admissible'

Q.4. Discuss Relevancy of facts forming part of the same transaction.

Q.5. Discuss briefly the important rules regarding 'relevancy of facts' as laid down in the Indian Evidence

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Act.

Q.6. discuss and illustrate the essential conditions of Dying Declaration.

Q.7. i) Whether a dying declaration (dd) must be in writing or it may be oral also?
ii) Whether and is admissible in civil cases also.
iii) Can a doctor record dying declaration.
iv) An injurned person is unable to speak and reply to the questions put through signs and
questures. Will it amount to a declaration?

Q.8. What is meant by 'Expert Opinion'? Under what circumstances opinions of persons given in a case

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are binding on the court?
Q.9. Define 'Admission'. By whom admission can be made in relation to a suit? When are oral
admissions as to contents of documents relevant?

Q.10. Define 'confession' and distinguish it from Admission. What are the essentials of a valid

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confessions? Define.

Q.11. When is opinion as to handwriting is relevant?

Q.12. What facts are considered to be relevant in a case? Discuss with illustrations?

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Q.13. How much of information received from an accused may be proved in the court?

Q.14. What is meant by 'relevancy of facts'? When are opinions of third persons relevant under the
Evidence, Act? Discuss.

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Q.15. Mention two such facts which need not be proved?

Q.16. Mention anyone case in which statement of relevant fact by person who is dead, is relevant.

Q.17. Define and illustrate judicial notice.

Q.18. In which circumstances opinions of persons are considered relevant?

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Q.19. What is meant by 'Expert Opinion'? Under what circumstances opinions of persons are relevant
facts? Are opinions of experts given in a case binding on the court?

Q.20. "Facts judicially noticeable need not be proved". Discuss. What are those facts of which courts must
take judicial notice?

Q.21. What is Doctrine of Res Gestae?

Q.22. Explain and illustrate - 'Facts though not in issue, yet so connected with a fact in issue as to form part
of the same transaction, are relevant whether they occurred at the same time and place or at
different times and places.'

Q.23. In a charge of murder of 'K' where the prosecution case is that on the day of incident the accused
uttered a threat that he would finish off 'K' and thereafter also kill himself. Is the evidence admissible
to show that the accused tried to kill 'K'?

Q.24. Why are facts necessary to explain or to introduce relevant facts? Discuss and illustrate your

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answer.

Q.25. When are facts not otherwise relevant, relevant? Illustrate your answer.

Q.26. A is tried for the murder of B. Are the facts that A murdered C, that B knew that A had murdered C,
that B had tried to extract money from A by threatening to make the knowledge public, relevant?
Give reasons for your answer.

Q.27. Are facts which are the occasions, cause or effect of facts in issue relevant? Illustrate your answer.
Q.29. Distinguish between direct and circumstantial evidence. Can a person be convicted on
circumstantial evidence alone?

Q.30. What facts are relevant when the question is as to the existence of any right or custom? Answer with

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examples.

Q.31. What is the value of a retracted confession? Can it be relied upon for conviction with or without
corroboration?

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Q.32. To what extent is a confession relevant against a co-accused? What is the position in case of a
retracted confession?

Q.33. When do the statements made by a party in representative character become admission?

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Q.34. How much of the information received from the accused in police custody may be said to be
proved?

Q.35. What do you understand by a "retracted confession"? Q.36. Write a brief note on Extra Judicial
Confession.

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Q.37. Explain and illustrate- "No confession made to a police officer is admissible."

Q.38. Define admission. Distinguish it from confession. Illustration your answer.

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Q.39. Discuss fully the evidentiary value of retracted confession. Illustrate your answer.

Q.40. What is confession? Distinguish between judicial and extra-judicial confession.

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Q.41. State the exception to the rule that confession by an accused in police custody is not admissible in
evidence.

Q.43. Write a note on confession made in police custody.

Q.44. Who is an accomplice? Under what circumstances can a conviction be based on the testimony of an
accomplice?

Q.45. When does a confession become irrelevant?

Q.46. Whether an admission can be used by the maker of the admission in his own favour? If so, in what
circumstances? Explain and illustrate.

Q.47. What do you understand by "admission" and "confession"? Distinguish between the two and
explain their evidentiary values.

Q.48. What do you understand by "inculpatory statement" and "exculpatory statement" of confession"?

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What is law relating to admissibility of such statements?

Q.49. Discuss fully the evidentiary value of retracted confession. Illustrate your answer.
Q.50. A, accused of rape, confessed his crime in a letter-addressed to a police officer. Would it be relied
upon. [Words 50]

Q.51. An accused confessed his crime to a doctor while the police officer was standing outside the room.

Can this extra-judicial confession be relied upon and the accused could be convicted thereby? .
Explain.

Q.52. "The accused did not speak a single word but he went to the spot to show dead body to the police."

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Whether the above mentioned evidence is admissible in evidence? Explain. [Words 50]

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UNIT -III
ORAL EVIDENCE CHAPTER VI- [SECTION 59-60]

Proof of facts by oral evidence: Section 59

All facts, except the contents of documents, may be proved by oral evidence.

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i) All facts may be proved by oral evidence
ii) Exception: The contents of the document cannot be proved by oral evidence.
Oral evidence has been denied by the act to all statements which the Court permits or requires to be . made
before it by witnesses in relation to matters of fact under inquiry (Section 3). All facts except the contents of

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documents may be proved by oral evidence.

- Contents of documents may be proved by oral evidence under certain circumstances, viz, when
evidence of their contents is admissible as secondary evidence. Oral evidence, if worthy of credit, is
sufficient without documentary evidence to prove a fact or title.

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It is the cardinal rule ·of evidence that where written documents exist, they must be produced as being the
best evidence of their own contents. Where oral testimony is conflicting, much greater credence is to be
given to men's acts than to their alleged words, which are so easily mistaken or misrepresented. [Vide:
Dinomovi Devi v. Roy Luchmiput Singh, 1879 (A)]

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Where a fact may be proved by oral evidence it is not necessary that the statement of the witness
should be oral. Any method of communicating thought which the circumstances of the case or the
physical condition of the witness demand may in the discretion of the Court be employed. Thus a

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deaf-mute may testify by signs by writing or through an interpreter.

Oral evidence must be direct: Section 60

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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 is refers to a fact which could be heard, it must Qe the evidence of a witness who says be 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 if the author is dead or
cannot be found, or had become incapable of giving evidence, or cannot be called as a witness without an
amount of delay or expense which the Court regard as unreasonable.

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.

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This section, subject to the proviso excludes opinions given at second-hand. The use of word "must" in the
first clause of the Section imposes a duty on the Court to exclude all oral evidence that is not "direct",
whether the party against whom it is tendered objects or not. The word 'direct' is opposed to mediate or
derivative or "hearsay".

Meaning of Hearsay Evidence: The word "hearsay" is used in various senses. Sometimes it means
whatever a person is heard to say; sometimes it means whoever a person declares on information given by
some one else, sometimes it is treated as nearly synonymous with "irrelevant" [Stephen's Introduction].

Derivative or second-hand proofs are not receivable as evidence Instead of stating as maxim that the
law requires all evidence to be given on oath we should say that law requires all evidence to be given under
personal responsibility, i.e. every witness must give his testimony, under such circumstances as expose
him to all penalties of falsehood, which may be inflicted by any of the sanctions of truth.

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- The Court has jurisdiction to order examination of an overseas witness by means of a live television
link.

Rationale Behind Exclusion of Hearsay: Derivative or second-hand evidence is excluded owing to its

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infirmity as compared with its original source. Thus where a witness told a material fact to another but
himself resiled from it in the witness box, narration of the other was rejected as hearsay. [Vide: Yasin
Gulam Haider v. laharashtra (1979) 4 SCC)

Lim Yam Hong v. Lam Choon & Co., (1927) Bom L. R. (PC): Hearsay evidence which ought to have been

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rejected as irrelevant does not become admissible as against a party merely because his counsel fails to
take objection when the evidence is tendered.

Option expressed in Treatises (Proviso 1): The first proviso is a departure from the rule of English law,
under which medical and other treatises are not admissible, whether the author is alive or dead. Any

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scientific text-book commonly offered for sale is admissible in evidence under the circumstances
mentioned in the proviso. Section 45 refers to the evidence of expert witness who may be examined in
Court Section 39 refers to books on law.

Production of material thing may be required (Proviso 2) : This proviso enables the Court to require the

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production of a material thing for its inspection under section 65 the Court has power to direct the production
of any document or thing in order to discover or to obtain proper of relevant facts.

DOCUMENTARY EVIDENCE CHAPTER – V [SECTION 61-90)

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Proof of contents of documents: Section 61

The contents of documents may be proved either by primary or by secondary evidence.

Section 3 gives the definition of documentary evidence - "Documentary evidence means all documents
produced for the inspection of the Court (Section 3)", Documents are of two kinds (i) public (ii) Private

Section 74 gives the list of pubic documents. All other documents are regarded as private documents. The
production of documents in Courts is regulated by the Civil Procedure Code and the Criminal Procedure
Code.

Principle: The contents of a document must be proved either by the production of the document which is
called primary evidence, or by copies or oral accounts of the contents, which is called second day.

Primary evidence: Section 62

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Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1: Where a document is executed ~n 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 copies of a common original. they are not primary evidence of the contents of the original.

a. Primary evidence means the document itself produced for the inspection of the Court.

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b. Where a document is executed in several parts, each part is primary evidence
c. Where a document is executed in counter-parts, each counter-part is primary evidence as
against the party executing it.

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d. Where a number of documents are made by uniform process, such as printing, lithography
or photography, each one is primary evidence of the contents of the rest.
e. Where a number of documents are made by one uniform process, but they are copies of the
common original, they are not primary evidence of the contents of the original.

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Secondary Evidence: Section 63

Secondary Evidence means and includes-

1) Certified copies given under the provision as hereinafter contained.

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2) Copies made from the original by mechanical processes which in themselves insure the accuracy
of the copy, and copies compared with such copies;

3) Copies made from or compared with the original.

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4) Counterparts of documents as against the parties who did not execute them;
5) Oral account of the contents of a document by some person who has himself seen it.

Clauses 1 to 3 deal with copies of documents.

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Ram Lochan Mishra v. Pandit Harinath Mishra, (1922) Pat: In the above mentioned case a copy of a
document was admitted in evidence in trial Court without objection, its admissibility cannot be challenged
the appeal court. Because omission to object to its admissibility implies that it is a true copy and, therefore, it
is not open to the Appeal Court to say whether a copy was properly compared with the original or not.

Oral Statements [Clause 5] : Secondary evidence includes, according to CI. 5, oral accounts of the
contents of a document, given by some person who has himself seen the original document. But a written
statement of the contents of a copy of a document, the original of which the person making the statement
has not seen, cannot be accepted as secondary evidence.

Proof of documents by primary evidence: Section 64

Documents must be proved by primary evidence except in the cases hereinafter mentioned.
i) Documents must be proved by primary evidence

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ii) Secondary evidence can be given under the circumstances described under Section 65.

A written document can only be proved by the instrument itself where the contents of any document are in
question, either as a fact directly in issue or a sub-alternate principal fact. The document is the proper
evidence of its own contents. But where a written instrument or document of any description is not a fact in
issue, and is merely used as evidence to prove some fact, independent proof is receivable; for example,
where the contents of a marriage register are in issue, verbal or other evidence of those contents is not
receivable, the fact of marriage may be proved by the independent evidence of a person who was present
at it.

P.C. Purushathama v. S. Perumal, AIR 1972 SC: It was held that once a document is properly admitted
the contents of document are also admitted in evidence, though those contents may not be conclusive
evidence.

cases:
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Cases in which secondary evidence relating to documents may be given: Section 65

Secondary evidence may be given of the existence, condition, or contents of a document in the following

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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 of, or not subject to, the process
of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in

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Section 66, 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 or by his representative in interest;

c. when the original has been destroyed or lost, or when the party offering evidence of its contents ,
cannot, for any other reason not arising from his own default or neglect, produce it in reasonable

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time;

d. when the original is of such a nature as not to be easily movable;

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e. when the original is a public document within the meaning of Section 74;

f. when the original is a document of which a certified copy is permitted by this Act, or by any other law
in force in India to be given in evidence;

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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 cases (a), (c) and (d) any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a 'certified copy of the document, but no other kind of secondary evidence, he has
examined them, and he is skilled in the examination of such documents.

Section 65 A: Special provisions as to evidence relating to electronic record : The contents of


electronic records may be proved in accordance with the provisions of Section 65 B

Section 65 8: Admissibility of electronic records:

1. Notwithstanding anything contained in this Act, any information contained in an electronic record

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which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a
computer (Hereinafter referred to as the computer output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in relation to the information and computer in question
and shall be admissible in any proceedings, without further proof or production of the original, as
evidence of any contents of the original or of any matter stated therein of which direct evidence would
be admitted.

2. The conditions referred to in sub-section (1)_ in respect of a computer output shall be the following,
namely;

a. the computer output containing the information was produced by the computer during the period
over which the computer was used regularly to store or process information for the purposes of any
activities regularly carried on over that period by the person having lawful control over the use of the

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computer.

b. during the said period, information of the kind contained in the electronic record or of the kind from
which the information so contained is derived was regularly fed into the computer in the ordinary
course of the said activities;

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c. throughout the material part of the said period, the computer was operating properly or if not, then in
respect of any period in which it was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record of the ordinary course of the said
activities;

3.
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d. the information contained in the electronic record reproduces or is derived from such information
fed into the computer in the ordinary course of the said activities.

Where over period, the function of storing or processing information for the purposes of any

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activities regularly carried on over that period as mentioned in Clause (a) of sub-section (2) was
regularly performed by computers, whether –

a. by a combination of computers operating over that period; or

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b. by different combinations of computers operating in succession over that period, or

c. by different combination of computers operating in succession over that period, in whatever order,
of one or more computers and one or more combinations of computers.

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All the computers used for the purpose during that period shall be treated for the purposes of this section as
constituting a single computer; and references in this section to a computer shall be construed accordingly.

4. In any proceedings where it is desired to give a statement in evidence by virtue of this Section, a
certificate doing any of the following things, that is to say,.-

a. identifying the electronic record containing the statement and describing the manner in which it was
produced;

b. giving such particulars of any device involved in the production of that electronic record as may be
appropriate for the purpose of showing that the electronic record was produced by a computer.

c. dealing with any of the matters to which the conditions mentioned in sub-section (2) relate.

and purporting to be signed by a person occupying a responsible official position in relation to the

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operation of the relevant device or the management of the relevant activities (whichever is
appropriate for the purpose of showing that the electronic record was produced by a computer);

5. For the purpose of this section,-

a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate


form and whether it is so supplied directly or (with or without human intervention) by means of any
appropriate equipment;

b) whether in the Court of activities carried on by any official information is supplied with a view to its
being stored or processed for the purposes of those activities by a computer operated otherwise
than in the course of those activities, that information, if duly supplied to that computer, shall be
taken to be supplied to it in the course of those activities.

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c) a computer output shall be taken to have been produced by a computer whether it was produced by
it directly or (with or without human intervention) by means of any appropriate equipment.

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Explanation: For the purposes of this section any reference to information being derived from other
information shall be a reference to its being derived therefrom by calculation, comparison or any other
process.

Secondary evidence may be given of the existence, conditions or contents of a document in the following

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cases:

i. when the document is in the possession of


a. the person against whom it is to be proved, or

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b. any person against whom it is to be proved, or
c. any person who is legally bound to produce it but does not produce it after notice
under section 66.
ii. When the existence or contents of the original have been proved to have been admitted in writing by

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the person against whom it is to be proved or his representative, in such a case the written
admission is admissible.

iii. When the original has been destroyed or lost or when the party offering evidence of its contents
cannot, for any other reason, not arising from his own regligence or default produce it in reasonable

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time. In such a case secondary evidence of its contents is admissible.

iv. When the original is of such a nature as not to be easily movable. In such a case any secondary
evidence of its contents is admissible.

v. When the original is a public document under Section 74, a certified copy is admissible.

vi. When the original is a document of which a certified copy is permitted by this act of any law in force in
India, a certified copy is admissible.

vii. When the original consists of numerous accounts or other documents which cannot conveniently
be examined in Court, and the fact to be proved is the general result of the whole collection. Such
result may be proved by the evidence of any person skilled in the examination of such documents.

This Section enumerates the seven exceptions in which secondary evidence is admissible. It is applicable
in civil as well as in Criminal cases. It is incumbent on the person who tenders secondary evidence to show
that it is admissible the question of admissibility is ordinarily for the Court of first instance.

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Effect of Refusal to Produce Document: The sole object of a notice under Section 66 to produce the
original document is to enable the adversary to have the document in Court, to produce it if he likes, and, if
he does not, to enable the opponent to give secondary evidence thereof, so as to exclude the argument that
the latter has not taken all reasonable means to produce the original which he must do before he can be
permitted to make use of secondary evidence.

LIC of India v. Narmada Agarwalla, AIR 1993 Orissa: Admission of documents amounts to admission of
contents thereof but not its truth. Truth or correctness is to be ascertained from evidence.

Amrita Devi v. Sripat Rai, AIR 1962 All: The, original book of accounts is in a very tottering condition and is
also worm-eaten, secondary evidence of such accounts cannot be given.

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Rakesh Brohters v. Kartick Chandra, AIR 1968 Cal.: To prove the loss of a document, evidence of
diligent search is necessary [Vide: Section 104, ill (b)]. Copies are inadmissible without proof of the search
of the original; it must be established that the party has exhausted all resources and means in search of the
document which were available to him.

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Tulsi Ram v. Ram Saran, (1924) Born. L.R. (PC): A Promissory note field with a plaint disappeared from
the Court file; it was held that the plaintiff was entitled, without showing how the disappearance or the loss
arose or who abstracted it from the file, to give secondary evidence of it.

Rules as to notice to produce: Section 66

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Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be
given unless the party proposing to give such secondary evidence has previously given to the party in
whose possession or power the document is, [or to his attorney or pleader. ] such notice as the Court
considers reasonable under the circumstances of the case:

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Provided that such notice shall not be required in order to render secondary evidence admissible in any of
the following cases, or in any other case in which the Court thinks fit to dispense with it -

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i. when the document to be proved is itself a notice.
ii. when, from the nature of the case, the adverse party has obtained possession of the original by
fraud or force;
iii. when it appears or is proved that the adverse party has obtained possession of the original by fraud

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or force;
iv. when the adverse party or his agent has the original in Court;
v. when the adverse party or his agent has admitted the loss of the documents.
vi. when the person in possession of the document is out of reach of, or not subject to, the process of
the Court.
a. Secondary evidence of the contents of the documents referred to in Section 65. Clause (a) shall not
be given;
b. Unless the party has given notice to the possible party to produce it as is prescribed by law;
c. But the notice is not necessary in the following cases;

a. When the document to be proved is itself a notice;


b. When, from the nature of the case, the adverse party must know that he will be required to
produce it;

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c. When the adverse party has obtained possession of the original by fraud or force;
d. When the adverse party, or his agent, has the original in Court.
e. When the adverse party, or his agent, has admitted the loss of the document;
f. When the person in possession of the document is out of reach of, or not subject to, the
process of the Court.

Proof of signature and handwriting of person alleged to have signed or written document
produced: Section 67

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or
the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved

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to be in his handwriting.

Section 67 A: Proof as to digital signature: Except in the case of a secure digital signature, if the digital
signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital
signature is the digital signature of the subscriber must be proved.

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This Section merely requires proof of signature and handwriting of the person alleged to have signed or
written the document produced. Mere admission of execution of a document is not sufficient. Proof that the
signature of the executants is in his handwriting is necessary.

This Evidence act permits secondary evidence to be given with regard to the attestation of an attesting
witness who is either dead or cannot be brought to Court. The signature of the attesting witness when
proved in evidence is proof of every thing on the face of the document and that he saw the executants make
his mark.

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Proof of execution of document required by law to be attested - Section 68 : If a document is required
by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence:

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[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a Will, which has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been
executed is specifically denied.

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Documents required by law to be attested are used in evidence as follows

i) alive a) subject to the process of the Court, and

ii)
iii)
iv)
b) capable of giving evidence
but, if the document is a registered one and is not a will.
then it is not necessary to call an attesting witness.
unless its execution is denied by the person who has executed it.
This Section applies to cases where an instrument required by law to be attested bears the necessary
attestation. What this Section prohibits is a proof of execution of a document otherwise than by the
evidence of an attesting witness if available.

This Section applies only where the execution of a document has to be proved or when the allegation is that
the executants was not in a fit state of mind to know the real nature of the document.

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Proof of Will: This Section is not permissive or enabling. It lays down the necessary requirement which the
Section has to observe in order that a document can be held to be proved. The principle underlying the
Section is that execution of the will must be proved by at least one attesting witness, that it is only an
attesting witness who is entitled to prove the execution of the will.

- The plain perusal of Section 68 of the Evidence act shows that the requirement of examining at least
one attesting witness is to be fulfilled, "jf there be an attesting witness alive". Where the attesting
witnesses are dead the will can certainly be proved in the manner provided for proof of a document.

- Where a document is written, executed and attested in one ink the presumption of due attestation is
permissible under the maxim, "ominia pracsumuntur rite et solomniter esseacta dones probetur in
contrarium".

i)
ii)

iii)
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Document Requiring Attestation
A Will (Section 57 and 63 of the Indian Succession Section, 1925);
A Mortgage, the principal money secured by which is Rs. 100/- or upwards

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(Transfer of Property Act, Section 59)
A gift of immovable property (Transfer of Property Act, 1882, Section 132)

Proof where no attesting witness found: Section 69

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If no such attesting witness can be found, or if the document purports to have been executed in the United
Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and
that the signature of the person executing the document is in the handwriting of that person.

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If the attesting witness cannot be found, or if the document is executed in the United Kingdom, it must be
proved.

a. that the attestation of a witness is in his handwriting, and

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b. that the signature of the person executing the document is in the handwriting of that person

An attesting witness, if available, should be called in evidence. If the attesting witness is dead, or is living out
of the jurisdiction of the Court or cannot be found after diligent search, or if the document purports to have
been executed in the United Kingdom of Great Britain and Ireland, two things must be proved:

i)
ii)

K the signature of one attesting witness, and


the signature of the executed.

Admission of execution by party to attested document: Section 70

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its
execution as against him, though it be a document required by law to be attested.

i) If the attesting witness


a) denies or
b) does not recollect the execution of the document
ii) the execution may be proved by other evidence i.e. it may be proved under Sections 69 and
70

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Where an attesting witness has denied all knowledge of the matter, the case stands as if there was no
attesting witness, and the execution of the document may be proved by other independent evidence.

Proof of document not required by law to be attested: Section 72

An attested document not required by law to be attested may be proved as if it was unattested
a. An attested document, not required by law to be attested,
b. May be proved as if it was unattested.

When the law does not require attestation for the validity of a document, it may be proved by admission or
otherwise, as though no attesting witness existed.

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Comparison of signature, writing or seal with others admitted or proved: Section 73

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have
been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to
have been written or made by that person may be compared with the one which is to be proved, although

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that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling
the Court to compare the words of figures so written with any words or figures alleged to have been written
by such person.

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Section 73 A : Proof as to verification of digital signature: In order to ascertain whether a digital
signature is that of the person by whom it purports to have been affixed, the Court may direct –

a. that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate,

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b. any other person to apply the public key listed in the Digital Signature Certificate and verify the
digital signature purported to have been affixed by that person.

Explanation: For the purposes of this section, "Controller" means the Controller appointed under sub-

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section (1) of Section 17 of the Information Technology Act, 2000.

i) In order to ascertain whether a signature, writing or seal is that of the person.


ii) By whom purports to have been written or made.

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ii) Any signature, writing or seal proved to have been written or made by that
person.
iv) may be compared with the one which is to be proved.

The Court may compare the disputed signature, writing, or seal of a person with signatures, writings or
seals which have been admitted or proved to the satisfaction of the Court to have been written or made by
that person. A Court may rely upon its own comparison of the signature, writing, or seal, unaided by expert
evidence. [Vide: Pakala Narayana Swami v. King Emperor, (1937) Pat.)

Public Documents

Public documents: Section 47

The following documents are public documents:

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1. Documents forming the acts, or records of the acts -


a) of the sovereign authority
b) of official bodies and tribunals, and
c) of public officers, legislative, judicial and executive, [of any party of Indian or of the
Commonwealth], or of a foreign country:

2. Public records kept [in any State] of private documents


The public documents are -

i) documents forming the acts or records of the acts

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a} of the sovereign authority
b) of official bodies and tribunals, and
c) of public officers, legislative, judicial and executive of any part of India or of the
Commonwealth, or of a foreign country.

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ii) Public records kept in any state of private documents.

2. Comment
i) Public and

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ii) Private

This Section states what comes in the category of public documents. Section 75 states that all other
documents are private documents.

-
b.

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Section 74-78 deal with
a. the nature of public documents, and
the proof which is to be given of them Section 74 defines their nature; and Section 76-78
deals with the exceptional mode of proof applicable in their case.

The proof of private documents is subject to the general provisions of the Act relating to the proof of

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documentary evidence contained in Sections 71-73.

- Public documents form an exception to the hearsay rule and their admissibility rests on the ground
that the facts contained therein are of public interest and the statements are made by authorised
and competent agents of the public in the course of their official duty.

Public Records of Private Documents: This clause refers to public records of original will and of
registered documents. Some examples of public documents are:

a. The Madras High Court has held that an income-tax return of a statement filed in support of it is a
public document :

b. Memorandum of Association of a company is a public document within the meaning of this Section.

c. Electoral roll prepared under the Representation of the People Act is a public document.

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d. An agreement between a Maharaja and government setting up a Gurudwara as a public trust and
the Government setting a scheme of constituting a Temples' Board of Management including the
Gurudwara, is a part of public records - a public document and therefore, no need for formal proof .

e. A true copy of wakf deed

f. A safe deed is a private document but are recorded with the sub-registrar.

Private document: Section 75

All other documents are private

Documents which are not public documents are private documents, e.g., contracts leases, mortgage

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deeds, etc.

Certified copies of public documents : Section 76

Every public officer having the custody of a public document, which any person has a right to inspect, shall

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give that person on demand a copy of it on payment of the legal fees there for together with a certificate
written at the foot of such copy that it is true copy of such document or part thereof, as the case may be, and
such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be
sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall
be called certified copies.

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Explanation: Any officer who, by the ordinary course of official duty, is authorized to deliver such copies,
shall be deemed to have the custody of such documents within the meaning of this section.

i) Every public officer having the custody of public document,

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ii) shall give a certified copy of that document
a. which any p.erson has a right to inspect.
b. on demand and

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c. on paym.ent of the legal fees therefore
iii) the certified copy -
a. a footnote will be written by the issuing officer that it is a true copy.

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b. the certificate shall be dated
c. It shall be subscribed by such officer with his name and his official title.
d. It shall be sealed, whenever such officer is authorised by law to make use of a seal.
iv) Such copy so certified shall be called certified copy

v) An officer who is competent to deliver such copies shall be deemed to have custody of such
document within the meaning of this Section.

Reasons for Accepting a Certified Copy Not Original: The certified copy of a public document is
accepted but its original copy is not admissible in evidence. Its certified copy is presumed to be correct. This
is an exception to the rule that primary evidence should be produced in the Court. The main reasons are –

a. The public documents are, comparatively, not liable to corruption, alteration or


misrepresentation.

b. The whole community being interested in their preservation, in most instances, entitled to

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inspect them.

c. The number of persons interested in public documents also renders them much more
frequently required for evidentiary purpose; and if the production of the originals was
insisted on, not only would great inconvenience result from the same documents being
wanted in different places at the same time.

d. The handling from frequent use would soon ensure their destruction.

If Public documents were allowed to be taken in original, there will be great possibility that they may be lost.

Proof of documents by production of certified copies: Section 77

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Such certified copies may be produced in proof of the contents of the public documents or part of the public
documents of which they purport to be copies.

i) The certified copies as described under Section 76

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ii) may be produced in Court as proof of public document.
iii) it shall be admissible according to the provision of the law.

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Proof of other official documents: Section 78

The following public documents may be proved as follows:

a) Acts, orders or notifications of the Central Government] in any of its departments, or of the Crown
Representative or of any State Government or any department of any State Government - by the

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records of the departments, certified by the heads of those departments respectively, or by any
document purporting to be printed by order of any such Government or, as the case may be, of the
Crown Representative;

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b) The Proceedings of the Legislatures: by the journals of those bodies respectively, or by
published Acts or abstracts, or by copies purporting to be printed [by order of the Government
concerned;

c) Proclamations, order or regulations issued by Her Majesty or by the Privy Council, or by any

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department of Her Majesty's Government, - by copies or extracts contained in the London Gazette,
or purporting to be printed by the Queen's printer;

d) The acts of the Exchange or the proceedings of the Legislature of a foreign country - by journals
published by their authority, or commonly received in that country as such, or by a copy certified
under the seal of the country or sovereign, or by a recognition thereof in some Central Act;

e) The proceedings of a municipal body in a State. by a copy of such proceedings certified by the legal
keeper· thereof, or by a printed book purporting to be published by the authority of such body.

f) Public documents of any other class in a foreign country - by the original, or by a copy certified by the
legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Councilor
diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the law of the foreign country.

The following public documents may be proved as follows:

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i. Acts, (b) orders or (c) notifications of the Central Government in any of its departments, or of the
crown Representative of any State Government or any department of any State Government.

- By the records of the departments, certified by the heads of those departments respectively.

ii. The proceedings of the Legislatures.

- a) By the journals of those bodies respectively or (b) by published Acts or abstracts, or (c) by
copies purporting to be printed by order of the Government concerned.

iii. (a) Proclamations, (b) orders or, (c) regulations issued by Her Majesty or by the Privy Council, or by
any department of Her Majesty's Government.

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- By copies or extracts contained in the London Gazette or purporting to be printed by the Queen's
printer.

iv. (a) The Acts of the Executive or (b) the proceedings of the Legislature of a Foreign country,

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- (a) By journals published by their authority, or commonly received in that country as such, or (b)By a
copy certified under the seal of the country or sovereign, or; (c) by a recognition thereof in some
Central Act;

v. The proceedings of a municipal body in a state.

vi.
-

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(a) By a copy of such proceedings, certified by the legal keeper thereof, or (b) by a printed book
purporting to be published by the authority of such body;

Public documents of any class in a foreign country,

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- (a) By the original, or (b) a copy certified by the legal keeper thereof, with a certificate under the seal
of a notary public, or of an Indian Counselor diplomatic agent, that the copy is duly certified by the
officer having the legal custody of the original, and upon proof of the character of the document
according to the law of the foreign country.

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Presumptions as to Documents

Presumption as to genuineness of certified copies: Section 79

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The Court shall presume to be genuine every document purporting to be a certificate, certified copy or the
document, which is by law declared to be admissible as evidence of any particular fact that which purports
ot be duly certified by any officer of the Central Government or of a State Government, or by any officer in
the State of Jammu and Kashmir who is duty authorized thereto by the Central Government;

Provided that such document is substantially in the form and purports to be executed in the manner directed
by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified
held, when he signed it, the official character which he claims in such paper.

I. the Court shall presume to be genuine every document purporting to be


a. a certificate,
b. Certified copy, or

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c. other document
II. Which is by law declared to be admissible as evidence of any particular fact and,
III. Which purports to be duly certified by

a. any officer of the Central Government or


b. of a State Government, or
c. by any officer in the State of Jammu and Kashmir who is duly authorised thereto by the Central
Government.
IV. Proviso - Such document is substantially in the form and purports to be signed or certified, held,
when he signed it, the official character which he claims in such manner.

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Presumption as to documents produced as record of evidence: Section 80

Whenever any document is produced before any Court, purporting to be a record or memorandum of the
evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer

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authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused
person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any
such officer as aforesaid, the Court shall presume -

That the document is genuine; that any statements as to the circumstances under which it was taken,

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purporting to be made by the person signing it, are true, and that such evidence, statement or confession
was duly taken.

As to -

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i) a record 0 evidence in judicial proceedings, or
ii) a confession taken in accordance with law and purporting to be signed by a Judge or Magistrate or
other officer authorized by law, the Court shall presume -

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a. that the document is genuine;
b. that any statement as to the circumstances
c. such evidence or confession was duly taken.

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The presumptions under Section 80 embrance only the genuineness of the document, but that it was duly
taken and given under the circumstances recorded in the document. The presumptions under this section
are not conclusive; they may be rebutted.

This Section is applicable –

a. to a document which purports to be record or memorandum of the evidence given by a witness in a


judicial proceeding or before any official authorised by law to take such evidence, and

b. to a statement or confession by an accused person, taken in accordance with law, and signed by
any Judge or Magistrate.

Presumptions as to Gazettes, newspaper, private Acts of parliament and other documents: Section
81

The Court shall presume the genuineness of every document purporting to be the London Gazette, or any

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Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown,
or journal, or to be a copy of a private act of Parliament of the United Kingdom printed by the Queen's
printer, and of every document purporting to be a document directed by any law to be kept by any person, if
such document is kept substantially in the form required by law and is produced from proper custody.

The Court shall presume the following documents genuine:

i) All documents purporting to be the London Gazette


ii) All documents purporting to be any Official Gazette
iii) All documents purporting to be Government Gazette of any (a) Colony (b) dependency or (c)
possession of the British Crown.
iv) All documents purporting to be a newspaper or journal, or to be a copy of Private Act of Parliament of

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the United Kingdom printed by the Queen's printer.

Every document purporting to be a document directed by any law to be kept by any person if-

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- such document is kept substantially in the form required by law
- produced from proper custody.

Presumptions as to document admissible in England without proof of seal or signature: Sec. 82

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When any document is produced before any Court, purporting to be a document which, by the law in force
for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice
in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or
official character claimed by the person by whom it purports to be signed, the Court shall presume that such
seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the

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judicial or official character which he claims and the document shall be admissible for the same purpose for
which it would be admissible in England or Ireland.

The Courts in India shall presume the documents genuine, which would be admissible in an English or Irish
Court without proof of -

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i) its seal or stamp or signature, or
ii) the official character of the person signing it, the Court shall presume

a. that the seal, etc. is genuine, and


b. that the person signing it held that official position which he claims in it.

Presumptions as to maps or plans made by authority of government: Section 83

The Court shall presume that maps or plans purporting to be made by the authority of [the Central
Government or any State Government] were so made, and are accurate, but maps or plans made for the
purposes of any class must be proved to be accurate.

Presumption as to collect of laws and reports of decisions: Section 84

The Court shall presume the genuineness of every book purporting to be printed or published under the
authority of the Government of any country, and to contain any of the laws of that country and of every book
purporting to contain reports of decisions of the Courts of such country.

Presumption as to powers of attorney: Section 85

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The court shall presume that every document purporting to be a power-of-attorney, and to have been
executed before, and authenticated by, a Notary Public, or any Court, Judge, magistrate, Indian Consul r
Vice-Consul, or representative of the Central Government was so executed and authenticated.

Section 85 A: Presumption as to electronic agreements: The Court shall presume that every electronic
record purporting to be an agreement containing the digital signatures of the parties was so concluded by
affixing the digital signature of the parties.
Section 85 b: Presumption as to electronic records and digital signature:

a) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is
proved, that the secure electronic record has not been altered since the specific point of time to
which the secure status relates.

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b) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary
is proved that –

i) the secure digital signature is affixed and subscribed with the intension of signing or

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approving the electronic record.

ii) except in the case of a secure electronic record or a secure digital signature, nothing in this
section shall create any presumption, relating to authenticity and integrity of the electronic
record or any digital signature.

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Section 85 C: Presumption as to digital Signature Certificates: The Court shall presume, unless
contrary is proved, that the information given in a Digital Signature Certificate is correct, except for
information specified as subscriber information, which has not been verified, if the certificate was accepted
by the subscriber.

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The Court shall presume that every document purporting to be a power-of-attorney, it has been executed
before and authenticated by (a) A Notary Public, (b) any Court, (c) Judge, (d) magistrate, (e) Indian Consul,
(f) Vice-Consul or (g) representative of the Central Government, and it was so executed and authenticated.

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Presumption as to certified copies of foreign judicial records: Section 86

The Court may presume that any document pruporting to be a certified copy of any judicial record of any
country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document

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purports to be certified in any manner which is certified by any representative of the Central Government in
or for such country to be the manner commonly in use in [that country] for the certification of copies of
judicial records.

An officer who, with respect to any territory or place not forming part of India or Her majesty's dominions, is
Political Agent therefor, as defined in Section 3, [Clause (43)], of the General Clauses Act, 1897 (10 of
1897), shall for the purposes of this section, be deemed to be a representative of the [Central Government]
[in and for the country] comprising that territory or place.

The Court may presume

1. that any document purporting to be a certified copy of any judicial record of any foreign country as
genuine, if

2. the document purports to be certified in any manner which is certified by any representative of the
Central Government in or for such country to be the manner commonly in use in that country.

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3. The Political Agent of foreign country will be that person as defined under Section 3 (43) of the
General Clauses act, 1897.

4. The certified copy of the judicial decision must be certified by the Political Agent of that Country.

Presumption as to books, maps and charts: Section 87

The Court may presume that any book to which it may refer for information on matters of public or general
interest, and that any published map or chart, the statements of which are relevant facts and which is
produced for its inspection, was written and published by the person and at the time and place, by whom or
at which it purports to have been written or published.

Presumption as to telegraphic messages: Section 88

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The Court may presume that a message, forwarded from a telegraph office to the person to whom such
message purports to be addressed, corresponds with a message delivered for transmission at the office
from which the message purports to be sent; but the Court shall not make any presumption as to the person
by whom such message was sent;

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Explanation: For the purposes of this section, the expressions "addressee" and "originator" shall have the
same meanings respectively assigned to them in Clauses (b) and (za) of sub-section (1) of Section 2 of the
Information Technology Act, 2000.

Presumption as to due execution, etc. of document not produced: Section 89

The Court shall presume that every document, called for and not produced after notice to produce, was
attested, stamped and executed in the manner required by law.

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Presumption as to documents of thirty years old : Section 90

Where any document, purporting or proved to be thirty years old, is produced from any custody which the
Court in the particular case considers proper, the Court may presume that the signature and every other

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part of such document, which purports to be in the handwriting of any particular person, is in that person's
handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by
the persons by whom it purports to be executed and attested.

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Explanation: Documents are said to be in proper custody if they are in the place in which, and under the care
of the person with whom, they would naturally be: but no custody is improper if it is proved to have had a
legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to Section 81.

Section 90 A: Presumption as to electronic records five years old: Where any electronic record, purporting
or proved to be five years old, is produced from any custody which the Court in the particular case considers
proper, the Court may presume that the digital signature which purports to be the digital signature of any
particular person was so affixed by him or any person authorised by him in this behalf.

Explanation: Electronic records are said to be in proper custody if they are in the place in which and under
the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a
legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

Principle: When a document is or purports to be more than thirty years old, if it be produced from what the
Court considers to be proper custody, it may be presumed.

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1. that the signature and every other part of such document, which purports to be in the hand writing of
any particular person, is in that person's handwriting, and,

2. that it was duly executed and attested by the person by the person by whom it purports to be
executed and attested.

Proper Custody (Explanation): The proper custody means the custody of any person so connected with
the deed that his possession of it does not excite any suspicion of fraud. The Section insists only on a
satisfactory account of the origin of the custody, and not on the history of the continuance. The provisions of
the section read with the explanation insists on a satisfactory account of the origin of the possession being
given by the party relying upon the documents. The custody, might not in the strictest sense be legal
custody, but, whether it originated in the right or wrong, the origin must be explained.

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THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE CHAPTER VI- (SECTION 91-100)

Evidence of terms of contracts, grants and other dispositions of property reduced to form of
documents: Section 91

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When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the
form of a document, and in all cases in which any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the terms of such contract, grant or other dispositions of
property, or of such matter, except the document itself, or secondary evidence of its contents in cases in

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which secondary evidence is admissible under the provisions herein before contained.

Exception 1 : When a public officer is required by law to be appointed in writing, and when it is shown that
any particular person has acted as such officer, the writing by which he is appointed need not be proved.

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Exception 2 : Wills admitted to probate in India may be proved by the probate.

Explanation1: This Section applies equally to cases in which the contracts, grants or dispositions of
property referred to are contained in one document, and to cases in which they are contained in more
documents than one.

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Explanation 2: Where there are more originals than one, original only need be proved.

Explanation 3: The statement in any document whatever, of a fact other than facts referred to in this

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section, shall not preclude the admission of oral evidence as to the same fact.

Principle: The rule is based on the principle that the best evidence, of which the case in its nature is
susceptible, should always be presented. It is adopted for the prevention of fraud, for, when better evidence
is withheld, it is only fair to presume that the party has some sinister motive for not producing it, and that, if
offered, his design would be frustrated, the rule does become essential to the pure administration of
Justice.

Hira Devi v. Official Assignee, Bombay AIR 1958 SC: The best evidence about the contents of document
is the document itself and it is the production of the document that is required by this section in proof of its
contents.

Scope: Sections 91 and 92 define the cases in which documents are exclusive evidence of the transaction
which they embody. They only apply when the alleged contract appears to contain all terms in the
document. Sections 93-100 provide for the interpretation of documents by oral evidence. If parties have
reduced all the terms of a contract or of grant or of any disposition of property into writing, then no parole
evidence is admissible, but if they intended only to reduce to writing a portion of the terms of the contract,

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then they are entitled to give parole evidence of the terms which they did not intend to reduce to writing.

Appointment of Public Officer [Exception 1]


- The exception 1 relating to appointment of Public Officer is partly based on the maxim "omnia
praesumuntur rite esse acta" (all acts are presumed to be rightly done).

- It is a general principle, that a person's acting in a public capacity is prima facie evidence of his
having been duly authorised so to do; and even though the office be done the appointment to which
must have been in writing, it is not, at least in the first instance necessary to produce document, or
account for non-production.

Exclusion of evidence of oral agreement: Section 92

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When the terms of any such contract, grant or other disposition of property, or any matter required by law to
be reduced to the form of a document, have been proved according to the last section, no evidence of any
oral agreement or statement shall be admitted, as between the parties to any such instrument or their
representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its
terms:

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Proviso (1) : Any fact may be proved which would invalidate any document, or which would entitle any
person to any decree or order relating thereto; such as fraud, intimidation, illegality, want to due execution,
want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

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Proviso (2): The existence of any separate oral agreement as to any matter on which a document to his
proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the
attaching of any obligation under any such contract, grant or disposition of property, may be proved.

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Proviso (4) : The existence of any distinct subsequent oral agreement to rescind or modify any contract,
grant or disposition of property is by law required to be in writing, or has been registered according to the law
in force for the time being as to the registration of documents.

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Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually
annexed to contracts of that description, may be proved.

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express

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terms of the contract.

Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to
existing facts.

Scope

National Bank of Upper India Limited v. Bansidhar, 1929 IA: The Privy Council has held that oral
evidence is inadmissible to show that the person who has signed a promissory note is not liable but
someone else is.

- It is always permissible to look to the surrounding circumstances to see in what manner the
language of a document was related to existing facts. A party is not precluded from showing that the
writing was not the contract between the parties but was only a fictitious or colourable device which
cloaked something else.

Exclusion of evidence to explain or amend ambiguous document: Section 93

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a. When the language used in a document is -


i) ambiguous or
ii) defective,.
b. Evidence may not be given of facts, which would show
i) its meaning or,
ii) supply its defects

Sections 93 to 98 deal with rules of construction of documents with the aid , of ,extrinsic evidence,

Sections 91 and 92 define the cases in which documents are exclusive evidence of the transactions which

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they embody Sections 93 to 99 deal with the interpretation of document" by oral evidence. This Section
deals with patent ambiguities. If the language of a deed is on its face, ambiguities or defective, no evidence
can be given to make it certain. .

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Exclusion of evidence against application of document to existing facts : Section 94

When language used in a document is plain in itself, and when it applies accurately to existing facts,
evidence may not be given to show that it was not meant to apply to such facts.

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The words of a written instrument must be construed according to their natural meaning. No principle has
ever been more universally insisted upon than that written instruments, jf they are plain and ambiguous,
must be construed to the plain and unambiguous language 'of the instruments- themselves.

Evidence as to document unmeaning in reference to existing facts: Section 95

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When language used in a document is plain in itself, but in unmeaning in reference to existing facts,
evidence may be given to show that it was used in a peculiar sense.

1. Evidence may be given to show that in a document a particular word was used in a peculiar sense if

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2. Following two conditions are fulfilled


i) the language used in the document is plain in itself

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ii) but is unmeaning in reference to existing facts.

Section 95 is based upon the maxim falsa demonstratio non necet (a false description does not vitiate the
document). Section 97 is a part of the rule in this section, and both the sections must be read together.
Evidence as to application of language which can apply to one only of several persons: Sec. 96

When the facts are such that the language used might have been meant to apply to anyone and could not
have been meant to apply to more than one, of several persons or things, evidence may be given of facts
which show which of those persons or things it was intended to apply to.

This section modifies the rule laid down in section 94 by providing that there the language of a document
correctly describes two sets of circumstances but could not have been intended to apply to both, evidence
may be given to show to which of similar persons or things the language applied has been introduced by
extrinsic evidence.

Evidence as to application of language to one of two sets of facts, to neither of which the whole

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correctly applies: Section 97 .

When the language used applies partly to one set of existing facts, and partly to another set of existing facts,
but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it
was meant to apply; _

Extrinsic evidence may be given under Section 97 to clarify the meaning of words used in a document.

This section is based upon the maxim falsa demonstration non necet. It means a false description does not
vitiate the document. It is only an extension on the provision of Section 95. Sections 95, 96 and 97 all deal
with latent ambiguity.

Evidence as to meaning of illegible character etc.: Section 98

1)

2)

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Under Section 98 extrinsic evidence may be given as to:
a. the meaning of illegible, or
b. not commonly intelligible following expressions
(a) foreign, (b) obsolete (c) technical, (d) local, (e) provincial expressions (f) abbreviations, (g) of
words used in a peculiar sense.
Evidence as to the meaning of illegible characters (e.g., shorthand-writer's notes) or of foreign, obsolete,
technical, local and provincial expressions and of words used in a peculiar sense may be given. In such

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cases the evidence cannot be properly be said to vary the written instrument, it only explains the meaning of
expressions used. Mercantile usage has given special meanings to many ordinary words. Evidence of the
meaning which these words bear in mercantile transactions can be given under this Section.

Who may give evidence of agreement varying terms of document : Section 99

i)
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Persons who are not parties to a document, or their representatives in interest, may give evidence of any
facts tending to show a contemporaneous agreement varying the terms of the document.

a) Persons

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who are not parties to a document, or
who are not representative in interest of the parties to a document.

b) May give evidence of any facts tending to show a contemporaneous agreement varying the terms of the

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document.

Patent and Latent Ambiguities

Meaning of Latent and Patent Ambiguities: There are two sorts of ambiguities of words - the one is
ambiguitas patens and other ambiguities latens. Patens is that which appears to be ambiguous upon the
deed or instrument; latens is that which seems certain and without ambiguity, for anything that appears
upon the deed or instrument; but there is some collateral matter out of the deed that breeds the ambiguity.

Difference between Latent and Patent Ambiguities

Patent Ambiguities Latent Ambiguities


1. Patent is that which seems to be ambiguous Latent is that which appears certain and
upon the deed or instrument. without ambiguity but there is some
collateral matter out of the deed that breads
the ambiguity.

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2. It is dealt in section 93 of the Indian Evidence It is dealt in Sections 95, 96 and 97 of the
Act, 1872 Indian Evidence Act, 1972

3. Extrinsic Evidence cannot be given to clarify Extrinsic evidence can be given to clarify the
the meaning of the patent ambiguities (vide. meaning of the latent ambiguities because
section 93) false description does not vitiate the
document (vide: section 95, 96, 97)

4. Under Section 29 of Contract Act, an It is a valid contract, if uncertainity can


agreement based on Patent ambiguity is be removed.
(vide : section 29, illustration (f) the Indian
Contact Act, 1972)

Q.1.

Q.2.

Q.3.

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IMPORTANT QUESTIONS

Who may give evidence of agreement varying terms of a document?

What are the duties of a public officer regarding giving of certified copies of documents?

What is meant by primary evidence?

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Q.4. When do oral admissions as to contents of documents become relevant? Mention such
circumstance?

Q.5. Oral evidence must be direct” Explain and illustrate.

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Q.6. Explain the following:
a. Primary and Secondary evidence;
b. Documentary and Oral Evidence

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Q.7. What are the main rules regarding "exclusion of oral evidence regarding the terms of a written
contract"?

Q.8. Which facts may be proved by oral evidence? Discuss with exception to the rule the 'oral evidence
must be direct'?

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UNIT – IV
THE BURDEN OF PROOF CHAPTER- VII- (SECTION 101-1140]

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Burden of Proof: Section 101: Whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that
person.

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The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the
party who denies it. The rule of convenience has been adopted in practice, not because it is impossible to
prove a negative, but because the negative, does not admit of the direct and simple proof of which the

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affirmative is capable.

Jarnail Singh v. State of Punjab, AIR 1996 SC : It was held by the Supreme Court that in a criminal that the
burden of providing the guilt of the accused beyond all reasonable doubts always rests on the prosecution
and on its failure it cannot fall back upon the evidence adduced by the accused in support of his defence to
rest its case solely thereon.

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Plea of Alibi: When the accused raises the plea of alibi (his presence elsewhere at the time of commission
of the offence) burden lies on him to substantiate that fact at least to the extent of a reasonable probability.
Even if the evidence produced is capable of creating a doubt whether the accused was there at the time of
the happening, he becomes entitled to benefit of doubt.

Constitutional Validity of any enactment: In the petition challenging the constitutionality of a statute, the
allegations regarding the violation' of the constitutional provision should be specific, clear and
unambiguous and burden of proof is on the person challenging its constitutionality.

1.

2.

3.
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In Gauri Shanker v. Union of India 1994 SCW the Supreme Court stated that

There is always a presumption in favour of constitutional validity of an enactment and the burden is
upon him who attacks it to show that there has been clear transgression of the constitutional principles.

It must be presumed that the legislature understands and correctly appreciates the needs of its own
people, that its laws are directed to problems made manifest by experience and that its discriminations
are based on adequate grounds,

In order to sustain the presumption of constitutionality the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may assume
every data of facts which can be conceived existing at the time of legislation.

On whom burden of proof lies: Section 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.

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This section lays down a test for ascertaining on which side the burden of proof lies. The section makes
it clear that the initial onus is on the plaintiff. If he discharges that onus and makes out a case which
entitles him to relief, the onus shifts on to the defendant to prove those circumstances, if any which
would disentitle the plaintiff to the same. There is an essential distinction between burden of proof and
onus of proof; Burden of proof lies upon the person who has to prove a fact and it never shifts but the
onus of proof shifts. Such a shifting onus is a continuous process in the valuation of evidence.

Burden of proof as to particular fact: Section 103

The burden of proof as to any particular fact lies on that person who wishes the Court of believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

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This section amplifies the general rule laid down in Section 101. It differs from Section 101 by Section
101 the party has to prove the whole of the facts which he alleges to entitle him to judgment when the
burden of proof is on him. This section provides for the proof of some one particular fact. The illustration
sufficiently points out the meaning. All the facts in a criminal case, must be proved by the prosecution. If
the accused wishes to prove a particular fact. his alibi for instance, he must prove it.

Burden of proving fact to be proved to make evidence admissible: Section 104

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The burden of proving any fact necessary to be proved in order to enable any person to give evidence of
any other fact is on the :person who wishes to give such evidence.

Principle: Where it is necessary to prove any fact, in order to render evidence, of any the fact

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admissible, the burden of proving that fact is on the person who wants to give such evidence. For
example, if any person wants to prove the contents of a document with the help of secondary evidence,
he must prove that he has a right to produce secondary evidence according to the provisions of
Evidence Act.

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Burden of proving that case of accused comes within exceptions: Section 105

When a person is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any special exception or proviso contained in any other part of the same code, or in any law

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defining the offence, is upon him, and the Court shall presume -the absence of such circumstances.
i) Any person is accused of any offence
ii) The burden of proof that he has committed alleged offence is on the prosecution.
iii) Unless and until, the alleged offence is proved beyond reasonable doubt, the
accused will be presumed to be innocent.

iv) When the alleged offence is proved beyond reasonable doubt, the Court shall presume that
the accused is guilty of the alleged offence.

The burden or proving that the alleged Act of accused comes into exception is on the accused, i.e:
- The existence of circumstances bringing the case within any of the general exceptions in the Indian
Penal Code, or
- Proviso contained in any other part of the Indian Penal Code, or
- Exceptions or proviso contained in any other law defining the offence.

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In criminal cases the burden of proof, using the phrase in its strictest sense, is always upon the prosecution
and never shifts whatever the evidence may be during the progress of the case. When sufficient proof of the
commission of a crime has been adduced and the accused has been connected therewith as the guilty
party, then the burden of proof, in another and quite different sense, namely in the sense of introducing
evidence in rebuttal of the case for the prosecution is laid upon him. The onus of establishing an exception
shifts to the accused when he pleads on exception.

Burden of proving fact especially within knowledge: Section 106

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

This section applies only to parties to a- suit.

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Shah Guman Mal v. A.P., AIR 1980 SC: In the above-mentioned case, the accused was found in
possession of gold with foreign markings, the Supreme Court held that the burden lay upon him to account
for his possession.

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Burden of Proving Negligence and Res-ipsa Loquitur: It has been considered by the Privy council that
the burden of proving negligence always rests with the plaintiff, even when the maxim res ipsa loquitur
applies. Once the initial burden of. showing the setting of the mishap is discharged, this maxim will relieve
the plaintiff of showing further evidence of negligence.

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Burden of Proving death of person known to have been alive within thirty years: Section 107 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.

a) The law will presume that a person is alive when it is shown that he was alive within thirty years.

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b) The burden of proving that he is dead is on the person who says that he is not alive.

Burden of proving that a person is alive who has not been heard of for seven years: Sec. 108

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Provided that when the question is whether a man is alive or dead, and it is proved that he has not been
heard to for seven years by those who whould naturally have heard of him if he had been alive, the burden of
proving that he is alive shifts to the person who affirms it.

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1. If a person has not been heard of for seven years by those who would naturally have heard of him.
2. law presumes that he is dead
3. The burden of proving that he is alive is on him who says that he is alive.

Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent:
Section 109

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.

Principal and Agent: When an authority to do an act is once shown to exist, it is presumed to continue until
the contrary is proved. Sections 182-238 of the Indian Contract Act deal with the relationship of principal
and agent. Sections 2-6 provide that reasonable notice must be given of revocation or renunciation of
agency. Section 2-8 provide when the authority of an agent is terminated.

Burden of proof as to ownership: Section 110

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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.

i) Possession is the prima facie evidence of ownership


ii) The presumption of law is that the person, who is in possession of movable or
immovable property, is the owner of that property.
iii) The burden of proving that he is not the owner of the property is on him who says
that he is not the owner of the property.

Proof of good faith in transaction where one party is in relation of active confidence: Sec. 111

i)
ii)
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Where there is question as to the good faith of a transaction between parties, one of whom stands to the
other in a position of active confidence, the burden of proving the good faith of the transaction is on the party
who is in a position of active confidence.

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Where a fiduciary or quasi - fiduciary relationship exists
One of whom stands to the other in a position of active iconfidence.
iii) The burden of proving good faith of the transaction is on the party who is in a

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position of active confidence.

Active Confidence: These words indicate that the relationship between the parties must be such that one
is bound to protect the interest of the other. This rule applies to trustee, an executor, an administrator, a
guardian, an agent, a minister of religion, a medical attendant, an auctioneer, and an attorney. Persons

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standing in confidential relation towards others cannot entitle themselves to hold benefits which those
others may have conferred upon them unless they can show to the satisfaction of the Court that the person
by whom the benefits have been conferred had competent and independent advice in conferring them.

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PRESUMPTIONS

Presumption as to certain offence: Section 11A

1. Where a person is accused of having committed any offence specified in sub-section (2), in -

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a. any area declared to be a disturbed area under any enactment, for the sub-section (2), in
being in force, making provision for the suppression of disorder and restoration and
maintenance of public order; or

b. any area in which there has been, over a period of more than one 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 firerms or explosives were used at or from that place to attack or resist
the members of any armed forces or the forces charged with the maintenance of public
order acting in the discharge of their duties, it shall be presumed, unless the contrary is
shown, that such person has committed such offence.

2. The offences referred to in sub-section (1) are the following, namely –

a. an offence under Section 121, Section 121 A, Section 122 or Section 123 of the Indian Penal
Code (45 of 1860)

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b. Criminal conspiracy or attempt to commit, or abatement of an offence under section 122,


Section 123 of the Indian Penal Code (45 of 1860)

Birth during marriage conclusive proof of legitimacy: Section 112

The fact that any person was born during the continuance of 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.

Under this section the fact that any person was born

1. during the continuance of a valid marriage between

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a) his mother and
b) any man, or

2. a) within two hundred and eighty days after its dissolution and

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b) the mother remained unmarried

shall be CONCLUSIVE PROOF that he is the legitimate son of that man.

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3. This presumption can be rebutted by showing and proving that the parties had no access to each
other at any time when he could have been begotten.

4. Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the
burden of proof to the party, seeking to establish the contrary.

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Paternity Test: Section 112 requires the party disputing the paternity to prove non-access in order to dispel
the presumption, "Access" and "non-access" means the existence or non-existence of opportunity for
sexual contact; it does not means actual cohabitation, it is a rebuttable presumption of law. This
presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of

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probabilities.

Gautam Kundu v. State of W.B., AIR 1993 SC: The Supreme Court held following rules as to permissibility
of blood test to prove paternity

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i) The Courts in India cannot order blood test as a matter of course.
ii) Whenever applications are made for such prayers in order to have proving inquiry the prayer for
blood test cannot be entertained.
iii) There must be a strong prima facie case in that the husband must establish non-access in order to
dispel the presumption arising under Section 112.
iv) The court must carefully examine as to what would be the consequence of ordering the blood test,
whether it will have the effect of branding a child as a bastard and the mother as a unchaste woman.
v) No one can be compelled to give sample of blood for analysis.

Proof of cession of territory: Section 113

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 (26 Geo. 5, Ch. 2) been ceded to any native State, Prince of Ruler,

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shall be conclusive proof that a valid cession of such territory took palce at the date mentioned in such
notification.

Section 113 A deals with presumption as to abetment of suicide by a married woman.

1. Where the question is whether suicide by a married woman was abetted by her husband or in laws,
and

2. following two conditions are fulfilled:-


a) She has committed suicide within seven years of her marriage.
b) She was subject to cruelty

3. It will be presumed that her husband and in-laws have abetted her to commit suicide which is an

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offence under Section 306 IPC.

4. The burden of proof would be shifted to in-laws to show that they had a role to play in the episode
and it was the result of her own voluntary act.

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5. The word "cruelty" has the same meaning as in Section 498 A of IPC.

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Presumption as to dowry death: Section 1138

When the question is whether a person has committed the dowry death· of a woman and it is shown that
soon before her death such woman has been subjected by such person to cruelty or harassment from or in
connection with, any demand for dowry, the Court shall presume that such person had caused the dowry
death.

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Explanation: For the purposes of this section "dowry death", shall have the same meaning as in section
304 B, of the Indian Penal Code, (45 of 1860).

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The presumption under Section 113B shall be raised only on the proof of the following essentials:

1. The question before the Court must be whether the accused has committed the dowry death of a
woman. This means the presumption can be raised only if the accused is being tried for the offence
under Section 304 B. IPC.

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2. The woman was subjected to cruelty or harassment by her husband or his relatives.

3. Such cruelty or harassment was for or in connection with any demand of dowry.

4. Such cruelty was taking place soon before her death.

Court may presume existence of certain facts: Section 114

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.

Section 114 lays down certain cases in which the Court may presume -

1. The existence of any fact which it thinks likely to have happened, regard being had to - the common
course of natural events,

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a) The common course of natural events,


b) human conduct, and
c) public or private business, in their relation to the fact of the particular case.
2. The illustration to Section 114, deals with matters like

a. Receiving stolen property


b. Testimony of an accomplice;
c. Consideration;
d. Continuity of things;

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e. Judicial and official acts
f. Functioning of legislature and government officer,
g. Common sense of business;

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h. Refusal to answer questions, etc.

Scope: This Section authorizes the Court to make certain presumptions of fact. They are all presumptions
which may naturally arise, but the legislature, by the use of the word 'may' instead of "shall" both in the body
of the Section and in the Illustrations, shows that the Court is not bound to raise them but is to consider

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whether in all the circumstances of the particular case they should be raised.

Presumptions of Law Presumptions of Fact

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1. It derives its force from law 1. It derives its force from logic

2. If applies to a class, te conditions of which 2. It applies to individual cases, the conditions


are fixed and uniform which are inconsistent and fluctuating

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3. Presumptions of law are drawn by the 3. Whereas presumptions of fact are drawn by
Court, and in absence of opposing the jury who may desregard opposing
evidence are conclusive for the party in evidance however cogent.
whose favour they operate

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4. presumptions of law may be either 4. Presumption of facts are always rebuttable
conclusive or rebuttable.

5. The Court has no discretion in respect 5. The Court has wide power in respect of
burden of proof. casting burden of proof on either party

5. Common Course of Natural Events: The expression is appropriate in regard to such matters as
the period of gestation or the continuance of life. The legitimacy of a child may have to be decided by
reference to the terms during which in the ordinary course of nature gestation may continue.

State of Maharashtra v. Wasudeo, AIR 1981 SC: A Government servant was found in possession
of assets disproportionate to his earnings and he was also not able to explain it, the presumption of
corruption arose.

6. Human Conduct: Human beings have common conduct, similar behaviour in particular

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circumstances. After observing common fact relating to human conduct some presumptions may
be raised, for instance, when there is a long and continuous course of co-habitation between a man
and woman, the law presumes in favour of marriage and against concubinage under this section
even in the absence of satisfactory direct evidence of marriage.

7. Illustrations are not Exhaustive: The illustrations given under this section are not exhaustive.

8. They are merely a few examples of this class of "natural" presumptions, and they do not exclude the
other numerous cases in which such presumptions are constantly drawn. The word used "may"
indicate that the Court is not bound to draw the presumption in any particular case.

- Stolen Property Illustration (a): This illustration raises two presumptions viz., that person in
possession of stolen goods soon after the theft is either

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b.
the thief, or
has received the goods knowing them to be stolen.

The question drawn will depend upon the circumstances and facts of each particular case. This is a
presumption which the Court i~ not bound to draw but it is in the option of the Court to draw it. But it
does not, in any way, shift the burden of proof to the accused.

Sanwat Khan v. State of Rajasthan, AIR 1956 SC: The Supreme Court held that illustration (a) to Section

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114 raises merely suspicion but suspicion cannot take the place of proof.

- Accomplice [Illustration (b)] : An accomplice is one who is a guilty associate in crime. His
testimonial evidence cannot be sole basis of conviction notwithstanding. Section 133 of the
Evidence Act. The corroboration of the accomplice's testimony is necessary.

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The Bombay High Court has laid down the following four principles with regard to the nature and
extent of corroboration. [Vide: Rau v. State of Mysore, 1953 Bom. L.R.)

a) That it is not necessary that there should be independent confirmation of every material particular.

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b) That independent evidence must not only make it safe to believe that the crime was committed, but
in some way reasonably connect or tend to connect the accused with it by confirming in some
material particular the testimony of the accomplice or complainant that the accused committed the
crime.

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c) That corroboration must come from independent sources, and

d) That corroboration need not be direct evidence that the accused committed the crime - it is sufficient
if it is merely circumstantial evidence of his connection with crime.

- Presumption as to Consideration [Illustration (c)] : The presumption on which illustration (c) is


based is founded in accordance with the maxim omnia presumuntur rite esse acta Le. all things are
presumed to be done in due form.

Illustration (c) to Section 114 - The Court may presume that the bill of exchange accepted or
endorsed, was accepted or endorsed for good consideration.

Gulab Chand v. Satya Vrat, AIR 1983 SC: The Supreme Court held that an effect of the presumption is that
the plaintiff has not to produce account books to substantiate consideration. The burden is upon the other-
party.

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- Continuity of Things [Illustration (d)]: This illustration is founded on the presumption which
exists in favour of continuance or immutability.
- Judicial and Official Acts [Illustration (e)]: The rule embodied in the illustration flows from the
maxim "omnia praesumuntur nite et solemnity esse acts i.e. all acts are presumed to have been
rightly and regularly done.

S.R. Bommai v. Union of India, AIR 1994 SC: This illustration only means that, if an official act is proved to
have been done, it will be presumed to have been regularly done, but it does not raise any presumption that
an act was done for which there is no evidence and proof. When the government accords sanction, Section
114 illustration (e) of the Evidence Act raises a presumption that the official acts where regularly performed.
The burden is heavier on the accused to rebut that statutory presumption Neither motive can be presumed
nor bad faith or abuse of power.

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- Common Course of Business [Illustration (d)] : This illustration leaves it to the discretion of the
Court to presume that a common course of business has been followed: but the Court is not bound
to presume it. In commercial transactions the presumption is that the usual course of business was
followed by the parties thereto.

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Lakshmi Singh v. Bihar, AIR 1976 SC : The ,Supreme Court held that failure on the part of prosecution to
explain injuries on the person of the accused can give rise to the following presumptions.

i) that the prosecution has suppressed information as to the nature of the occurrence,

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ii) that the who have denied those injuries are telling lies 'to the Court;
iii) that the defence of the accused that he committed fhe crime in self-defence becomes more
plausible shifting the burden to the prosecution.
- Refusal to Answer Questions [Illustration (h)]: Refusal to answer a question is a legitimate

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ground of unfavourable inference against the person. who has to answer the question under
Section 148(4) of the Indian Evidence Act. But this illustration does not contemplate the case of
witnesses who are not compelled to answer on grounds of privileges under Section 121 to 129.

- Document in the Hands of the Obligor [Illustration (i)]: This presumption is based on the natural

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supposition that a man will protect his own interests by securing his bond before or at the time of
discharging it. If a pro-nate is in the hands of the maker, there is a presumption that it has been paid
off. If the drawer alleges that the maker come into possession of the nate unlawfully, the onus is on
him to prove it.

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Presumption as to absence of consent in certain prosecutions for rape: Section 114 A

In a prosecution for rape under clause (a) or clause b) or clause (c) or clause (d) or clause (e) or clause (g) of
sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), 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 she states in her evidence before the Court that she did not consent, the Court shall
presume that she did not consent.

1. Sexual intercourse with a woman of, or above sixteen with her free-consent, is no offence at all (it
may be adultery, if she is married under Section 479, IPC.)
2. Where sexual intercourse by the accused is proved and the woman (victim) states in her evidence
before the Court that she did not consent, then

3. The Court shall presume, in the following cases, that she did not consent.

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a) Whoever being a Police Officer commits rape -


i) within tee limits of the Police Station to which he is appointed, or
ii) In the premises of any station house whether or not situated .in the Police Station to
which he is appointed; or.
iii) On a woman in his custody or in the custody of a Police Officer subordinate to him or
[Section 376 (2) (a), IPC]

4. Whoever, being a public servant, takes advantage of his official position and commits rape on a
woman in his custody as such public servant, or in the custody of a public servant subordinate to
him; or [Section 376 (2) (b), IPC]

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5. Whoever, being the management or on the staff of a jail, remand home or other place of custody
established by or under any law of the time being in force or of a woman's or children's institution
take advantage of his official position and commits rape on any inmate of such jail, remand home,
place or institution: or [Section 376 (2) (c), IPC].

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6. Whoever, being on the management or on the staff of a hospital, takes advantage of his official
position and commits rape on a woman in that hospital; or [Section 376 (2) (e), IPC]

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7. Whoever commits rape on a woman knowing her to be pregnant; or [Section 376 (2) (e), IPC]

8. Whoever commits gang rape [Section 376 (2) (g), (IPC)]

ESTOPPEL Chapter-VIII - [Section 115-117]

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Principle: Estoppel is based on the principle of equity. When one person had induced another person by
his act, omission or declaration to believe something to be true and the other person had taken some steps
on believing upon the statement, it would be most inequitable and unjust to allow the former to deny or

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repudiate the effect of his former statement.

This Section says that when one person has by his (a) declaration (b)act, (c) omission,

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i) Intentionally caused or permitted another person to believe a thing to be true, and
ii) To act upon such belief neither he nor his representative shall be allowed in any suit or proceedings
between himself and such person or his representative, to deny the truth of that thing. The kinds of
estoppel which have evolved through judicial process are equitable estoppel, promissory estoppel,
including promissory estoppel against Government and its agencies, against universities and
institutions, issue estoppel etc.

Conditions: To invoke the doctrine of estoppel, three conditions must be satisfied:-


i) Representation by a person to another.
ii) The other shall have acted upon the said representation, and
iii) Such action shall be detrimental to the interests of the person to whom the representation
has been made.

Allegans contraria non est audiendus: The estoppel is based on the above mentioned maxim which
means -a person alleging contradictory facts should not be heard. This Latin maxim is the species of

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presumptio juris et de jure, where the fact presumed is taken to be true, not as against all the world, but
against a particular party, and that only by reason of some act done.

Estoppel applies not only in favour of the person induced to change his position but of a transferee from
such person and it binds not only the persons whose representations or actions have created it, but all
persons claiming under or through him by gratuitous title.

Estoppel is a rule of civil action. It has no application to criminal proceedings, though in such proceedings it
would be prejudicial to set up a different story.

Estoppel and Presumption

Estoopel Admission

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1. An estoppel is a personal disqualification 1. Where a presumption is a rule that
upon a person peculiarly circumstanced particular inferences shall be drawn from
proving particular fact. facts.

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2. Estoppel is the species of presumption 2. It applies against the whole world
where the fact presumed is taken to be
true, not as against all the world, but as
against a particular party, an that only by
reason of some act done

3.

4.
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It is a rule of civil law

Estoppel is a rule of Evidence Act.


3.

4.
Presumption applies in civil as well as in
Criminal Law

It is also a rule of Evidence Act.

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5. Estoppel And Admission

Estoppel Admission
1. Estoppel binds only parties and privies 1. It is not with admission. Even stranger can

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take advantage of admission.

2. Estoppel being a rule of evidence, an 2. An action can be founded on an admission


action cannot be founded on it

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3. It applies in civil law. 3. Same applicability in civil law.

6. Estoppel and res judicata : Res judicata is defined under Section 11 of CPC

Estoppel Admission

1. Estoppel is part of he law of evidence and 1. While res judicata belongs to precedure and
proceeds upon the equitable principle of is based on the principle that there must be
altered situation. an end to litigation.

2. Estoppel prohibits a party from proving 2. Res judicata prohibits the court from equity
anything which contradicts the previous into a matter already adjudicated.
declarations or acts to the prejudice or a
party who relying upon them, altered
his position.

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3. Estopel shuts the mouth of a party 3. Res judicata ousts the jurisdiction of the
court.

4. Estoppel is defined under Section 115 of 4. Res judicta ousts the jurisdiction of the
the Evidence Act, 1872 court.

Estoppel and Waiver: Estoppel and waiver are different. Estoppel is not a cause of action. It may assist a
plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact
essential to establish the cause of action.

Waiver is contractual and may constitute a cause of action. It is an agreement to release or not to assert a
right. (Sen & Co. vs. Mani Mala Sadhu, AIR 1980 SC 155).

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There is no question of waiver where the party is not even aware of his right. For attracting the principle of
waiver, there are two essential elements to be satisfied:

Kinds of Estoppel: There are different kinds of estoppels

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i) Estoppel by matter of record
ii) Estoppel by deed; and
iii) Estoppel in pais etc

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1. Estoppel by matter of record: A matter of record is something part of the record of a court. It is at
once the narrative and the proof of its proceedings, estoppel by records results from the judgment of a
competent court. If any party to a suit does not challenge the decision of a court, he cannot
subsequently re-open or dispute that decision. Estoppel by matter of record is chiefly concerned with
the effect of judgments and their admissibility in evidence, and this kind of estoppel is dealt with in the

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Sections 11 to 14 CPC and Sections 40-44 of the Evidence Act.

CIT vs. British Paints, AIR 1991 SC 1338: It was held that this principle is applicable to execution
proceedings as well.

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2. Estoppel by deed: Where a party has entered into a solemn engagement by deed as to certain facts,
neither he nor any claiming through or under him is permitted to deny such facts. But qualifications are:

a. The rule applies only between parties and privies and only in actions on the deed.

3.
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b. No estoppel arises upon the recital or descriptions which are either immaterial or not intended to
bind.

c. No estoppel arises where the deed is tainted by fraud or illegality.

d. A deed which can take effect by interest shall not be construed to take effect by estoppel.

Estoppel in pais arises:

a. From agreement or contract; and

b. From act or conduct of misrepresentation which has induced a change of position in accordance
with the intention of the party against whom the estoppel is alleged.

The ways in which a person may make sure a representation are infinite. He may speak or write, act or omit
to act, or act negligence.

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4. Equitable estoppel: A man may be estopped, not only from giving particular evidence, but from
doing acts, or relying upon any particular argument or contention which the rules of equity and good
conscience prevent his using as against his opponent.

In Maddanappa vs. Chandramma, AIR 1965 SC, the Supreme Court observed, liThe law of estoppel by
representation is confined to the provisions of this Section and apart from the provisions of this Section
there is nothing like what is called 'equitable estoppel' evolved by the English Judges. liThe provisions
of this Section are in a sense a rule of evidence.

5. Promissory Estoppel: When one party has, by his words or conduct, made to the other a promise
or assurance which was intended to affect relationships between them and to be acted on it, the one
who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal

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relations as if no such promise or assurance had been made by him but he must accept their legal
relations subject to the qualification which he himself has so introduced.

This doctrine which is derived from a principle of equity enunciated in 1877, has been subject of
considerable recent development. It differs from estoppel properly so-called because the

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representation relied upon need not be one of present fact. [Halsbury's Laws of England (3rd Edition)
Vol. 15]

6. Doctrine of estoppel does not apply in criminal cases: It is a rule of civil law and it has no
existence in criminal law.

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State of Maharashtra vs. Jethmal Himatmal Jain 1994 Cr. L.J. (Born): In the above mentioned case
under the Drugs and Cosmetics Act, an understanding was arrived at between the Government and the
accused that, if the accused surrendered his licence, the Government would not proceed further with the
case. The licence was surrendered by the accused but, later on, the Government reversed its decision. It

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was held that the doctrine of promissory estoppel does not apply to criminal cases.

No estoppel against sovereign and legislatives powers

Estoppel cannot be stretched to the extent of restraining the state from exercising its sovereign and

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legislative powers. The Government can, for example, change export policy and thereby upset many
contractual commitments. The Government is also not bound by the acts of its Departments or officers
which are beyond their powers, ultra vires.

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Bihar EGP Cooperative Society vs. Sipahi Singh, AIR 1977 SC: Estoppel cannot be claimed on the
basis of a contract which does not satisfy the requirements of Article 299 of the Indian Constitution.

Estoppel against universities and institutions

The rule of estoppel can be appried against the universities and institutions. But there may not be any
estoppel on the point of law.

Issue estoppel

Industrial Finance Corporation vs. Official Liquidator, AIR 1993 SC 1524: The purchaser of the assets
of a company submitted before the High Court that as per terms of the settlement he would abide by the
terms as modified by the High Court, it was held that the Supreme Court could again modify the terms and
no estoppel would be attracted.

Scope of Section 115

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In order to hold that a case comes within the scope of this Section, a court must find:-

a) That party believed a thing to be true

b) That, in consequence of that belief, he acted in a particular manner.

c) That belief and P\s so acting were brought about by some representation by party B. either by
declaration, act or omision, which representation was made intentionally to produce that result.

If this be established, then B is prohibited by law from denying in a proceeding against A or A's
representative, the truth of his representation.

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No estoppel against minor
No estoppel when true facts-known to both parties
No estoppel on point of law

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No estoppel against statue
The principle of estoppel cannot be invoked to defeat the plain provisions of a statute. There is no estoppel
against an act to legislature.

Subhash Kumar vs. R.C. Chibha, 1988 SC: No one can be precluded from pleading that certain orders

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are illegal or invalid, because the question as to whether orders are illegal or invalid is a pure question of law
and there can be no estoppel against law.

Estoppel by Silence

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Whenever there is a duty owing by one person towards another to speak or act which he has failed to
perform and the other party has been led by such silence to change his position, such silence would operate
as estoppel against the former. but where there is no duty to peak, no estoppel can arise.

Estoppel by negligence

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It must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea,
or towards the general public of whom he is the one and that the negligence on which it is based should not
be indirectly or remotely connected with the misleading effect assigned to it but must be proximate or real
cause of that result.

Constructive estoppel

There is no such thing known to the law as constructive estoppel.

Estoppel gives no jurisdiction

An estoppel against a party cannot give the court jurisdiction where it has none. There can be no estoppel
against a statute and the consent of the opposite party cannot confer jurisdiction.

Estoppel of tenant and of licensee of person in possession: Section 116

A tenant of immovable property or person claiming through such tenent cannot during the continuance of
the tenancy deny that the landlord had, at the beginning of the tenancy, a title to such property.

A tenant, who came upon immovable property by the licence of the person in possession thereof, cannot

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deny that the person so in possession had a title at the time when such licence was given.

Estoppel of acceptor of bill of exchange, bailee or licensee: Section 117

An acceptor of a bill of exchange cannot deny that the drawer had authority to draw or endorse.

But 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 I).

A bailee or licensee cannot deny that his bailor or licensor had, when the bailment or license commenced,
authority to make such bailment or grant such license. But 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 if he is sued by
the bailor (Explanation II).

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The section deals with further instances of estoppel by agreement.

IMPORTANT QUESTION

Q.2.
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Q.1. Write short notes on :
a) Accomplice

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b) Estopped
c) Burden of Proof
d) Relevancy of character

Which professional communications between a client and an advocate are privileged and which are

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not? Whether such privilege extends to the clerks and servants of such advocate?

Q.3. Upon whom the burden of proof lies where it is alleged. that the case of accused comes within
exceptions?

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Q.4. What are privileged communications? Narrate them.

Q.5. Discuss with illustrations the law regarding 'estoppel' as laid down in the 'Indian Evidence Act'.

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Q.6. Discuss briefly the rules regarding burden of prooL

Q.7. What is the rule of estopped regarding tenants?

Q.8. When the question is whether any person is owner of anything of which he is in pos session, upon
whom would lie the burden of proof as to ownership of such thing?

Q.9. Give two examples of facts which the court may presume under Sec. 114 of the Evidence Act.

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UNIT - V
WITNESSES CHAPTER-IX- [ SECTION 118-1340

The object of the legal proceedings is the determination of rights and liabilities which depends on the facts.

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The facts must be proved by (a) documentary evidence or (b) oral evidence. Oral evidence can be given by
the witnesses who are competent to testify.

Who May Testify: Section 118: All persons shall be competent to testify unless the court considers that
they are prevented from understanding the questions put to them, or from rational answers to those

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questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the
same kind.

Explanation: A lunatic is not incompetent to testify unless he is prevented by his lunacy from

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understanding the questions put to him and giving rational answers to them.

This Section merely enumerates the English rule with regard to the competency of parties as witness. It
does not matter whether they are admissible or not.

1. The competency of witness: The competent child witness to testify as a witness is a condition

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precedent to the administration to him of an oath or affirmation, and is a question distinct from that of
his credibility when he has been sworn or has been affirmed.

2. Child Witness: No age is fixed for a competent child witness. The intellectual capacity of a child to

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understand questions and to give rational answers thereto is the sole test of his testimonial
competency and not any particular age.

3. Lunatic : The explanation to Section 118 applies to the case of a monomaniac or person affiliated
with partial insanity. Such person will be an admissible witness if the Judge finds him upon

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investigation capable of understanding the subject in respect of which he is required to testify.

4. Accused Witness: An accused person is competent to testify within this Section, but before the
amendment of the Criminal Procedure Code in 1956 he was incompetent to be a witness, for an
oath could not be administered to him and without it, no witness can be lawfully examined, or give
evidence by or before a court.

5. Partisan Witness: An interested witness means a person who wants to see that the accused gets
convicted because of his own animus or otherwise.

Tata Singh vs. State of Punjab, AIR 1987, AIR 1987 SC: The fact that a witness is related to one of
the parties cannot by itself be considered sufficient to warrant discarding of his evidence in toto. But
the evidence of such witness should be scrutinised carefully.

6. Unchaste Woman

State of Maharashtra vs. madhukar N. Mardikar (1991) 1 SCC : The Supreme Court he that even

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an unchaste woman may be a competent witness and the judgment can be baSed upon her
testimony.

In the above mentioned case, the Supreme Court states, "Even a woman of easy virtue is entitled to
privacy and no one can invade her privacy as and when he likes. She is entitled 0 protect her person
if there is an attempt to violate it against her wish. She is equally entitled 0 the protection of law.
Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown
overboard. At the most the officer called upon to evaluate her evidence would be required to
administer caution unto himself before accepting her evidence."

7. Fals us in uno, Falsus in omnibus: The maxim "falsus in uno, falsus in omnibus" means false in
one thing false in everything.

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Ugar Ahir vs. The State of Bihar, AIR 1965 SC: The Supreme Court held that false in one thing
false in everything is neither a rule of law nor a rule of practice, for the reason that hardly one comes
across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggeration or
embellishment. But it is the duty of the court to scrutinse the evidence carefully and separate the
grain from the chaff.

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Dumb Witnesses: Section 119

A witness who is unable to speak may give his evidence in any other manner in which he can make'
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.

In respect of a deaf-mute witness, the court will ascertain before he is examined that he possesses e
requisite amount of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence
may be taken (a) by written questions to which he may reply in writing or (b) by means of signs.

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Kishan Singh vs. State of Rajasthan, 1995 Cr. L.J., Rajasthan: A witness having become dumb was
physically incapable to give his statement, it was held that no adverse inference could be drawn against the
prosecution in not examining him.

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Parties to civil suit and their wives or Husbands; Husband or wife of person under criminal trial:
Section 120

In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be

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competent witnesses.

In criminal proceedings against any person, the husband or wife of such person respectively, shall be a
competent witness.

In a civil proceeding, parties to the suit are competent witnesses. Husbands and wives are competent
witnesses for or against each other in civil as well as criminal proceedings. There is no inflexible rule that if a
party gives his testimony he must be disbelieved because he is a party to the suit.
Judges and Magistrates : Section 121

No Judge or Magistrate shall, except upon the special order of some court of which he is subordinate.
compelled to answer any questions as to his own conduct in court as such Judge or Magistrate, or as to
anything which came to his knowledge in court as such Judge or Magistrate, but he may be examined as to
other matter which occurred in his presence whilst he was so acting.

Principle: Sections 121-132 declare exceptions of the general rules that a witness is bound to tell the
whole truth, and to produce any document in his possession or power relevant to the matter in issue. These

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Sections (121-132) deal with the privilege of certain classes of witness 1. Under this Section, a Judge or
Magistrate shall not be compelled to answer questions as to

1. His conduct in court as such Judge or Magistrate, or


2. Anything which came to his knowledge in court as such Judge or Magistrate, except upon the order
of the superior court. He may be examined as to other matters which occured in his presence while
he was so acting.

Communications during Marriage: Section 122

No person who is or has been married shall be compelled to disclose any communication made to him
during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any
such communication, unless the person who made it, or his representative in interest, consents, except in

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suits between married persons, or proceedings in which one married person is prosecuted for any crime
committed against the other.

- The protection is not confined to cases where the communication sought to be given in evidence is

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of a strictly confidential character but the seal of the law is placed upon all communications of
whatever nature which pass between husband and wife.

Evidence as to affairs to state: Section 123

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This Section involves two things:
i) That the document is an unpublished official record relating to any affairs of State, and
ii) That the officer as the head of the department concerned may give or withhold the permission for
giving the evidence derived there for on the ground of public policy. Evidence derived from
unpublished official records of State cannot be given, except with the permission of the head of the

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department concerned. The court is bound to accept without question the decision of the public
officer.

Production without Claim of Privilege

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Chaudhary v. Governor of Bihar, AIR 1980 SC: The Supreme Court held that notwithstanding the bar
contained in Article 163(3) of the Constitution it shall be the sole discretion of the Governor concerned to
produce the proceedings of the Council of Ministers without any objection and without any claim of privilege
before any court of law and then there is nothing to debar the court from looking into the same. This

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proposition of law was affirmed by the Apex Court in Chaudhary's case.
R. K. Jain v. Union of India, AIR 1993 SC: The oath of secrecy does not absolve the Minister from filing
affidavit stating grounds or reasons in support of his claim for public interest immunity.

Official Communications: Section 124

No public officer can be compelled to disclose communication made to him in official confidence, when he
considers that the public interests would suffer by the disclosure.

1. Purpose: This Section is designed to prevent the knowledge of official papers a' papers in official
custody from moving beyond the circle which would obtain knowledge of e in confidence whether
the confidence was express or implied. It would normally include all officers including clerks of
superior officers and might also apply to non-officials to whom such papers were disclosed on the
understanding, express or implied, that the knowledge should go no further.

2. Principle: A public officer cannot be compelled to disclose communications made to him in


confidence if he considers that public interests would suffer by his disclosure.

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3. Difference between Section 123 and Section 124: Section 124 is confined to public officers,
Section 123 embraces everyone. Section 123 deals with unpublished records; this Section deals
with communications made in official confidence.

King-Emperor v. Bhagwati Prasad (1929) 5 Luck: If communications are not made in official confidence,
they cannot be regarded as privileges e.g. statement made to a stationmaster of a railway in the course of
an inquiry of a theft by some railway employees.

Information as to commission of offences: Section 125

No Magistrate or police-officer shall be compelled to say whence he got any information as to the
commission of any offence, and no Revenue Officer shall be compelled· to say whence he got any

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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.

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1. Principle: On the ground of public policy, a Magistrate or a police-officer cannot be compelled to
give the source of information received by him as to the commission of an offence. Similarly a
revenue-officer cannot be compelled to say whence he got information as to any offence against the
public revenue.

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2. Where public policy may require disclosure: One of the circumstances in which police may be
compellable to disclose the source of their information is when the police power is being abused in
league with the informer.

Professional Communications: Section 126

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No Barrister, attorney pleader or Vakil shall at any time be permitted to

1. Disclose (a) any communication made to him by or on behalf of his client or (b) any advice given by
him to his client, in the course and for the purpose of his employment;

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2. To state the contents or conditions of any document with which he has become acquainted in the
course and for the purpose of his employment.

- The privilege also extends to documents prepared in connection with the client's claim for the

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dominant purpose of preparing for litigation.

This section does not protect from disclosure -


a) Any communication made in furtherance of any illegal purpose.
b) Any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

Under section 127, the above provisions apply to interpreters and the clerks or servants of
barristers, pleaders, attorneys and vakils.

Explanation: The obligation stated in this Section continues after the-employment has ceased.

Illegal purpose (Proviso I): Proviso I to the Section 126 states that nothing in this section shall protect from
disclosure any such communication made in furtherance of any illegal purpose - This proviso differs from
the English Law. Under it any communication made in furtherance of an 'illegal purpose" is not privileged.
Under the English Law, the purpose must be 'criminal" and not merely "illegal".

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Section 126 to apply to interpreters etc.: Section 127

The provisions of section 126 shall apply to interpreters' and the clerks or servants of barristers, pleaders,
attorneys and vakils.

This provision extends the privilege given by Section 126 to interpreters, clerks or servants of lawyers.

Privilege not waived by volunteering evidence: Section 128

If any party to a suit gives evidence therein at his own .instance or otherwise, he shall not be deemed to
have consented thereby to such disclosure as is mentioned in Section 126, and, if any party to a suit or
proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have
consented to such disclosure only if he questions such barrister, attorney or vakil on matter which, but for

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such question, he would not be liberty to disclose.

Principle: The privilege belongs to the client and, therefore, he alone can waive it. The privilege is not lost
by calling the legal adviser as a witness, unless the party having the privilege questions him relating to
confidential matters.

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Confidential communication with legal advisors: Section 129

No one shall be compelled to disclose to the court any confidential communication which has taken place
between him and his legal professional advisor, unless he offers himself as a witness, in which case he may
be compelled to disclose any such communication as may appear to the court necessary to be known in
order to explain any evidence which he may give, but no others.

1. Principle: Sections 126, 127 and 128 prevent a legal advisor or his clerk, servant etc. from
disclosing professional communications. This Section applies where the client is interrogated,

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whether he be a party to the suit or not. Documents prepared for litigation or for the purpose of legal
advice are privileged even if they are copies of documents which may not be privileged. In the
plaintiffs claim against the defendant in respect of an accident, his solicitors obtained copies of
hospital records concerned with the plaintiffs treatment. The Court of Appeal held that the copies

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were privileged notwithstanding that the originals could be obtained by the defendant from the
hospital by means of a court order. This is a part of the privilege that the advice given by a lawyer to
his client is not disc losable, the reason being that by revealing the lawyer's copies, the lawyer's
advice or strategy would emerge. Copies made by a lawyer are the fruits of his experience; in so far

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as skill is involved it was part of his professional skill in assisting his client to go to the hospital and
get copies.

2. Conclusion: The conclusion of the different views described in the above mentioned three cases
may be found in a famous case.

Guinners Peat Properties Ltd. vs. Fitzroy Robinson Partnership, 1987 2 All ER: The court observed
that the courts would normally give such relief it disclosure was obtained by fraud or trick and added that if
the document has come to the possession of the other side due to mistake or carelessness on the part of
the party entitled to the document or by his advisers, the balance will be very different from the balance in a
fraud case.

Production of title-deeds of witness, not a party: Section 130

This Section protects a witness, who is not a party to the suit in which he is called from producing -

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a. Title deed to any property


b. Any document in virtue of which he holds any property as pledgee or mortgagee or
c. Any document the production of which might tend to criminate him, unless he has agreed in writing
for production of such document.

It would be entirely optional for the witness to produce his title-deeds and to raise any objection whatever.

Production of documents which another person, having possession, could refuse to produce:
Section 131.

Persons in possession of documents on behalf of others are generally agents, attorneys mortgagees,

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trustees etc. This Section extends to these persons the same protection which the preceding Section
provides for a witness who is not a party to a suit.

Witness not excused answering on ground that answer will criminate: Section ·132

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A witness cannot be excused from answering any relevant question upon the ground that the answer will
tend.
i) to criminate him, or
ii) to prove against him in any or criminal proceedings except in a prosecution for giving false

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evidence.
a) subject him to arrest or prosecution, or
b) be prove against him in any or criminal proceedings except in a prosecution for giving false

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evidence.

Accomplice : Section 133

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal

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merely because it proceeds upon uncorroborated testimony of an accomplice.

The evidence of an accomplice, though it is uncorroborated, may form the basis for a conviction.

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This Section is the only absolute rule of law as regards the evidence of an accomplice. But illustration (b) to
Section 114 is a rule of guidance to which also the court should have regard. It is not a hard-fast
presumption incapable of rebuttal, a presumption juris et de jure. The combined effect of this Section and
Section 114, Illustration (b), is that though the conviction of an accused on the basis of testimony of an
accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of
such witness without corroboration in material particulars.

The evidence of an accomplice requires to be accepted with a great deal of caution and scrutiny because
He has a motive to shift guilt from himself,

1. He has a motive to shift guilt from himself


2. He is an immoral person likely to commit prejury on occasion
3. He hopes for pardon or has secured it, and so favours the prosecution.

An accomplice is a person who participated in the commission of the actual crime charged against an
accused. He is to be a participles criminals. There are two cases, however, in which a person has been held

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to be an accomplice even if he is not a participles criminals. Receivers of stolen properties are taken to be
accomplices of the thieves from whom they receive goods on a trial for theft. Accomplices in previous
similar offences committed by the accused on trial are deemed to be accomplices in the offence for which
the accused is on trial when evidence of the accused having committed crime identical type on other
occasions be admissible to prove the system and intent of the accused in' committing the offence charged.

Combined effect of Section 133 and Section 114(b): Section 133 states that an accomplice shall be a
competent witness against an accused person; and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice.

Section114 (b) says: The court may presume that an accomplice is unworthy of credit unless he is
corroborated in material particulars;
The combined effect of Section 114(b) and 133 is that it is a rule of prudence and practice which practically

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amounts to a rule of law that the evidence of an accomplice ought not to be acted upon unless it is
corroborated as against the particular accused in material respects.

Retracted Statement

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Haji Abdulla Haji Ibrahim v. Mandhra Superintendent of Customs, Bhuj 1992 Cr. L.J. (Guj.): It was
held that is would be risky to base convictions on the sole retracted statement of the co-accused but the
conviction is not barrred.

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Number of witnesses: Section 134

No particular number of witnesses shall in any case be required for the proof of any fact.

Yashpal Sawhney vs. Gandotra Traders, AIR 1995 J&K: The J&K High Court laid down the rule that the

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number of witnesses depends upon the following points :

i) Nature of litigation;
ii) Number of issues required to be proved;

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iii) The fact as to on whom the onus has been laid;

iv) The specific purpose for which a particular witness is required to be produced. The party seeking to
produce a witness is also required to specify the purpose for which the witness is proposed to be

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produced.

EXAMINATION OF WITNESSES (SECTION 135-166)

Order of production and examination of witness (Section 135) : The order of production and examination of
witnesses is regulated by the civil and criminal procedure codes or by the direction of the court. In practice, if
is left largely to the option of the party calling witnesses to examine them in any order he chooses.

Judge to decide as to admissibility of evidence (Section 136): The Judge may ask how a particular fact
is relevant and admit the evidence if he thinks the fact would be relevant. If the relevancy of a fact depends
on proof of some other fact, such latter fact must be proved first unless the party undertakes to prove it
subsequently and the .court is satisfied with such undertaking.

Judge's Discretion: When the relevancy of one fact depends upon the proof of another fact, the Judge has
full discretion to allow either fact to be proved first.

§Questions as to the admissibility of evidence should be decided as they arise and should not be

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reserved until judgment in the case is given.

§ Where a Judge is in doubt as to the admissibility of a particular piece of evidence he should declare
in favour of admissibility rather than of non-admissibility.
Munir Ad. v. State of Rajasthan, AIR 1989 SC : The Supreme Court upheld the rejection of the evidence of
a living person by means of an affidavit. The proper course was for the signatory of the affidavit to appear in
person.

Examination

1. Examination-in-Chief (Section 137): The examination of a witness by the party who calls him
shall be called his Examination-in-Chief.

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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.

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Tej Prakash v. State of Haryana, 1996 SC: Where a witness was not examined in examination-inchief,
tendering him for cross-examination is not permissible.

Order of Examination (Section 138): Witnesses are examined-in-chief, then cross-examined, and then

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re-examined. The examination and cross-examination must relate to relevant facts, but the cross
examination need not be confined to the facts to which the witness testified on his examination-in-chief. The
re-examination must be directed to the explanation of matters referred to in cross-examination.

If a new matter is introduced in re-examination, the adverse party may further cross-examine upon that

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matter only.

1. Examination-in- Chief : This will ordinarily be in the form of a connected narrative brought out by
question put to the witness by the party calling him. It must relate to relevant facts [Section 138(2)].
No leading question can be asked (section 142).

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Unless evidence of reputation be admissible, witnesses, must, in general merely speak to facts
within their own knowledge, and they will not be permitted to express their own belief or opinion.
[Taylor, 12th Edition].

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A prominent law writer Taylor has said, "on some particular subjects, positive and direct testimony
may often be unattainable, and, in such cases, a witness is allowed to testify to his belief or opinion,
or even to draw inferences respecting the fact in question from other facts, provided these last facts
be within his personal knowledge."

This mode of examination chiefly prevails on questions of science or trade, where from the difficulty
of obtaining more direct and positive evidence, persons of skill, sometimes called experts, are
allowed, not to testify the facts, but to give their opinions in evidence.

2. Cross-Examination: The testimony of a witness is not legal evidence unless it is subject to cross-
examination and where no opportunity has been given to the appellant's counsel to test the veracity
of the principal prosecution witness, the evidence of such a witness is not legal testimony and
cannot be the basis of a judicial pronouncement. [Ganesh Yadav v. State of Assam, 1995 Cr. L.J.
(Gua.)]

Juwar Singh v. State of M.P., AIR 1981 SC: The objects of cross-examination are to impeach the

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accuracy, credibility and general value of the evidence given in chief; to shift the facts already stated
by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support
the case of the cross-examining party.

3. Rules for Cross-Examination

a. Cross-examination must be related to relevant facts but unlike re-examination, it need not
be confined to facts deposed to in the preceding examination (Section 138). Further it differs
from both of them in as much as leading questions can be asked (Sections 142[ 143).

b. No cross-examination can be allowed of a witness who is· "summoned to produce a


document (Section 139)[ but it is competent of a witness to character (Section 140)".

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c. A witness may be cross examined as 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 (Section 145).

d. The range of cross-examination is unlimited, the only circumscribing limits being that it must

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relate to relevant facts (Section 138).

e. By sections 146 to 150 the legislature has tried to give very wide powers to the cross
examiner to help him in finding out the truth. In oral depositions laid out before the court. In
cross-examination, a witness may be asked question.

K 1) to test his veracity;


2) to discover who he is and what is his position in life;
3) to shake his credit by injuring his character, although his answer might

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criminate him or expose him to penalty or forfeiture (Section 146).
f. All questions or inquires which are indecent or scandalous, unless they relate to facts in
issue, are to be avoided (Section 151); so also all questions which are calculated to insult or
annoy or couched in a needlessly offensive form (Section 152).

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g. Cross-Examination is in almost all cases undertaken by the adverse party; but the court may
permit a party to cross-examine his own witness if he proves to be a hostile witness (Section
153).

h. In criminal cases (Warrant cases) tried by magistrates, the accused person can after the

i.
charge has been framed and he has given his plea, re-call and cross-examine any witness
for the prosecution (Section 246 Cr. P.C.).

Muniappan v. State of Madras, AIR 1961 SC : An accused is entitled in law to put further
questions to a prosecution witness by way of cross-examination in respect of what he had
stated in reply to questions put to him in cross-examination by the other co-accused.

4. Re-Examination: The object of re-examination is to afford the party calling a witness an opportunity
of filing in the lacuna or explaining the inconsistencies which the cross-examination has discovered
in the examination-in-chief of the witness. It is accordingly limited to the explanation of matters
referred to in cross-examination (Section 138). It partakes of the nature of examination in-chief in as
much as no leading questions can be sked (Section 142).

Mir Mohammed Omar v. State of West Bengal, AIR 1989 SC : If a question has been omitted in

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the examination-in-chief, and cannot in strictness, be asked on a re-examination as not arising out
of cross-examination, it is usual for the counsel to request the Judge to make inquiry and such a
request is generally granted.

5. Examination by Court: It is not the province of the court to examine the witnesses, unless the
pleaders on either side have omitted to put some material question or questions.

Ram Chander v. Haryana, AIR 1981 SC : The Supreme Court held that 'Judge's right to question is
circumscribed by the adverse system. Where the Judge rebuked a witness and threatened him with
prosecution for perjury, the whole trial was held to be vitiated'.

Cross-Examination of person called to produce a document (Section 139): A person


summoned to produce a document does not become a witness and cannot be cross-examined

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unless he is called as a witness.

Parmeshwari Devi v. State, AIR 1977 SC: A witness summoned merely to produce a document
does not become a witness for purposes of cross-examination, since he may either attend the court
personally or may depute any person to produce the document in court (0. XVI, R. 6, C.P.C. and

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Section 91 of Cr. P.C.). If he intentionally omits to produce the document, he commits the offence
punishable under Section 175 of I.P.C. or Section 345 of the Criminal Procedure Code, 1973.

In the above mentioned case, the wife of a partner was called upon to produce the deed of dissolution of the
firm. She was not permitted to be examined as a witness.

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The summons to produce a document is in English law called a subpoena duces tecum.

Witnesses to character (Section 140): Witness to character may be cross-examined and re-examined.

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Leading questions (Section 141): Any question suggesting the answer which the person putting it wishes or
expects to receive is called a leading question.
Leading questions can be freely asked in cross-examination due to two reasons-

1. The witness has a bias in favour of the party bringing him forward, and hostile, to his opponent.

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2. The party calling a witness has an advantage over his adversary and knows what the witness will
prove and consequently, if he were allowed to lead, he might interrogate in such a manner as to
extract only so must of the knowledge of the witness as would be favourable to his side, or even put
a false gloss upon the whole.

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When they must not be asked (Section 142): A leading question 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.

The court shall permit leading question as to matters which are introductory or undisputed, or which have, in
its opinion, been already sufficiently proved.

When they may be asked (Section 143): Leading questions may be asked in cross-examination.

Varkey Joseph v State of Kerala, AIR 1993 SC: Section 144 enables the parties to put in force the
provisions of Sections 91 and 92. Any witness may be asked whether any (a) contract, (b) grant, or (c) other
disposition of property as to which he is giving evidence, was not in writing and if he says that it was, the
adverse party may object to such evidence being given until the document is produced or facts proved for
the admission of secondary evidence.

The same principle applies if a witness is about to make any statement as to the contents of a document,
which, in the opinion of the court, ought to be produced.

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Explanation- A witness may give oral evidence of statements made by other persons about the contents of
documents if such statements are in themselves relevant facts.

Cross-Examination as to previous statements in writing (Section 145) : A witness may be cross-


examined as to previous statements made by him and reduced into writing without such writing being
shown to him if 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 it which are to be used for the purpose of contradicting him.

1. Object: This Section indicates one of the modes in which the credit of a witness may be impeached.

2. Principle: A witness may be cross-examined as to any statements as to relevant facts made by him
on a former occasion, in writing or reduced into writing without showing the writing to him or proving

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the same. But if it is intended to contradict him by the writing his attention must be called to the
writing. Such writing may be a document, letter, depositions, police diaries, etc. It must be noted that
the previous record should be in writing. The witness may also be contradicted by his previous
verbal statements (Section 153, Exception 2).

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3. Contradiction of Witness: As regards the contradiction of a witness by a previous statement,
Section 162 of the Code of Criminal Procedure, 173 sanctions a very extraordinary procedure. This
Section in its ordinary application is intended for the purpose of such contradiction by a written
previous statement for which the witness is responsible. This cannot in terms apply to a statement
recorded under Section 161 of Cr. P.C. for the record of which he cannot be held to be directly

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responsible and which he does not sign.

4. Documents: A witness can be confronted with the statements made in writing in his account books;
but a clerk who writes the accounts at the mere dictation of his employer cannot be so confronted.

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5. Depositions: Section 162 of the Criminal Procedure Code, 1973 provides that the accused may be
furnished with a copy of statement of a witness, "in order that any part of such statement, if duly
proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian
Evidence Act, 1872.

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6. Police Diaries: There is no provision in Section 172 of Cr. P.C. 1973 enabling any person other than
the Police Officer who made the special diary to refresh his memory by looking at the special diary
and the necessary implication is that a special diary cannot be used to enable any witness other
than the Police Officer who made the special diary.

ii)
ii)
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Questions lawful in cross-examination (Section 146): When any witness is cross-examined, he may in
addition to the question hereinafter referred to, be asked any questions which tend-

i) To test his veracity


To discover who he is and what is his position in life, or
To shake his credit by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture.

Scope: This section gives very wide powers to the cross-examiner in addition to those given by Section
138. As long as the cross-examiner confines his questions to the points of testing the veracity of a witness or
discovering his status in life, there seems to be no limits to his power of putting questions. But when he tries
to impeach the character of a witness, the following sections (Sections 147 to 150) give ample protection to

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the witness.

When witness to be compelled to answer (Section 147) : If any such question relates to a matter
relevant to the suit or proceeding the provisions of section 132 shall apply thereto.

Court to decide when question shall be asked and when witness compelled to answer (Section
148): If any such question relates to a matter not relevant to the suit or proceeding except in so far as it
affects the credit of the witness by injuring his character, the court shall decide whether or not the witness
shall be compelled to answer it, and may if it thinks fit, warn the witness that he is not obliged to answer it. In
exercising its discretion, the court shall have regard to the following considerations-

Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them
would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he

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testifies.

i) Such questions are improper if the imputation which they convey relates to matters so remote in
time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight
degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

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ii) Such questions are improper if there is a great disproportion between the importance of the
imputation made against the witness's character and the importance of his evidence.

iv) The court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer

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if given would be unfavourable.

Object: Section 148-52 are intended to protect a witness against improper cross-examination.

Questions not to be asked without reasonable grounds (Section 149): No such question as is referred

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to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the
imputation which it conveys is well-founded.

Illustration –

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1. A barrister is instructed by an attorney or Vakil that an important witness is a dakait. This is a
reasonable ground for asking the witness whether he is a dakait.

2. A pleader is informed by a person in court that an important witness is a dakait. The informant, on

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being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable
ground for asking the witness whether he is a dakait.

3. A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are
no reasonable grounds for the question.

4. A witness, of whom nothing whatever is known, being questioned as to his mode of life and means
of living, gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a
dakait.

The cross-examiner must have reasonable grounds to believe that the imputation made against the
witness is well-founded.

Procedure of Court in case of questions are being asked without reasonable grounds (Section 150):
If the court thinks that any question was asked without reasonable grounds, it may, if it was asked by any
barrister, attorney, pleader, or Vakil report his conduct to the High Court or other authority to which he is
subordinate.

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"If any advocate asks such questions to defame the witness, he can be prosecuted for defamation under
Section 500 of IPC. Upon a trial for defamation, it would, of course, be open to the person accused to show,
either that the imputation was true, and that it was for the public good that the imputation should be made
(Exception 1, Section 499 IPC), or that it was made in good faith for the protection of the interest of the
person making if or of any other person (Exception 9, Section 499 IPC). This is the only method which
occurs to us of providing at once for the interests of a bonafide question and an innocent witness." [Gazette
of India, PP 237, 238, dated March 30, 1872]

Indecent and scandalous questions (Section 151): The court may forbid any questions or inquiries
which it regards as indecent or scandalous although such questions or inquires may have some bearing on
the questions before the court, unless they relates to fact in issue, or to matter necessary to be known in
order to determine whether or not the facts in issue existed.

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This section forbids the putting of any question which is indecent or scandalous, unless it relates to facts in
issue or is necessarily connected with them.

Question intended to insult and annoy (Section 152): The court shall forbid any question which appears

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to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly
offensive in form.

The court has the power to forbid any question which is intended to insult or annoy, or which is couched in a
needlessly offensive form.

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Exclusion of evidence to contradict answers to questions testing veracity (Section 153): When any
witness answers any question which is relevant in so far as it shakes his credit, no evidence can be given to
contradict him but if he answers falsely he may be charged with giving false evidence.

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Exceptions: Evidence may be given-

i) of a previous conviction, if the witness denies it, or


ii) of facts tending to impeach his impartiality if he denies them.

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Questions by party to his own witness (Section 154): The court may in its discretion, permit the persons
who it calls as witness to put any questions to him which might be put in cross-examination by the adverse
party.

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1. Principle: Where a party calling a witness and examining him discovers that he is either hostile or
unwilling to answer questions put to him, he may obtain permission of the Court to put questions to
him which may be put to him by way of cross-examination.

A discretion is given to the Court to allow or not to allow a person to cross-examine his own witness
as hostile. The witness may be asked leading questions (Section 143); or questions as to his
previous statements in writing (Section 145); or any questions under Section 146; or his credit may
be impeached (Section 155).

2. Hostile witness: A "hostile witness" is one who from the manner is which he gives evidence shows
that he is not desirous of telling the truth to the court.

Shatrughan v. State of M.P., 1993 Cr. L.J. (MP): It was held by the MP High Court that a hostile
witness is not necessarily a false witness Merely because one part of the statement of a witness
was not favourable to the party calling him, the Court should not readily conclude that he was
suppressing the truth or that his testimony was adverse to that party. Hostility of a witness is to be
judged from the answers given by him.

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3. Partisan witness: A partisan witness is a person who favours one party due to his personal
interests i.e. blood relation, family blood-feud, monetary interests, relationship by blood or by
marriage etc. In the case of evidence of a partisan witness no conviction can be based on his
evidence unless it is corroborated in material particulars.
Bhanuprasad V. State of Gujarat (1968) Bombay L.R. 43 SC: The Supreme Court held that it is
not illegal to convict an accused on the testimony of a partisan witness but it may be appropriate to
look for reliable corroboration.

Impeaching credit of witness (Section 155): The credit of a witness may be impeached by the adverse
party, or with the consent of the Court, by the party who calls him in the following ways-

a. By the evidence of person who testifies that they believe him to be unworthy of credit.

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b. By proof that the witness has received bribe or has accepted the offer of a bribe, or has received any
other corrupt inducement to give evidence.
c. By the proof of former statements inconsistent with any part of his evidence which is liable to be

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contradicted.
Explanation: A witness declaring another witness to be unworthy of credit may not, upon his examination
in-chief, give reason for his belief, but he may be asked his reasons in cross-examination, and the answers
which he gives cannot be contradicted, through, if they are false, he may be charged with giving false
evidence.

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Manimohan Ghosh v. Emperor (1931) Calcutta: It was held that the first information report recorded
under Section 154 Cr. P.C. may be used to contradict the informer under this Section.

Emperor v. Bishun Datt (1927) All: A pervious statement of a witness recorded under Section 164

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Criminal Procedure Code can be used as provided for by this Section but it cannot be used as substantive
evidence of the facts deposed to therein.

Question tending to corroborate evidence of relevant fact admissible (Section 156): When a witness

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whom it is intended to corroborate gives evidence of a relevant fact he may be questioned as to the
circumstances which he observed at or near the time or place at which such relevant fact occurred.

Former statements of witness may be proved to corroborate later testimony as to same fact
(Section 157): Any former statement made by a witness relating to the same fact at or about the time when

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the fact took place, or before any authority competent to investigate the fact, may be proved.

1. Principle: A witness's former statement relating to the same fact made at or about the time when
the fact took place may be proved in order to corroborate his present testimony.

a. A witness should have given testimony with respect to some facts.


b. He should have made a statement earlier with respect to the same fact at or about the time
when the fact took place or before any authority legally competent to investigate the fact.

2. Testimony of Approver

o The testimony of an approver should be regarded with very great suspicion.


o The previous statements of an accomplice may be proved under Section 157 of the
Evidence Act and may be corroborated by the other available material on record.

3. Effect of Section 162[ Cr. P.C.: The general rule laid down in Section 157 is controlled by the

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special provisions of section 162, Cr. P.C. so far as statements to the police taken under Section
161, Cr. P.C. are concerned. Section 162 prohibits the use of the record containing the statement of
a witness to the police as evidence against the accused as well as proof of such statement by oral
evidence.

4. Dying Declaration: Maqsoodan v. U.P, AIR 1983 SC, Where a person making a dying declaration
chances to live, his statement cannot be admitted in evidence as a dying declaration under Section
32 but it may be relied on, under Section 157, to corroborate the testimony of the complainant when
examined in the case.

What matter may be proved in connection with proved statement relevant under Section 32 or 33
(Section 158): When a statement relevant under Section 32 or 33 proved, evidence may be given-

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a. to contradict or corroborate it, or
b. to impeach or confirm the credit of the person by whom it was made, as if he had been called
as a witness and had denied upon cross-examination the truth of the matter suggested.

Refreshing memory (Section 159) : A witness may refresh his memory by referring to-

1. any writing made by himself-

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a. at the time of the transaction concerning which he is questioned, or
b. so soon afterwards that the transaction was fresh in his memory;

2. any such writing made by another person and read by the witness and known by him to be correct,
while his memory was still fresh;

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3. professional treatises if he is an expert.

A witness may with the permission of Court, refer to a copy of any document to which he might refer if it were
produced, provided there is sufficient reasons for the non-production of the original.

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Testimony to facts stated in document mentioned in Section 159 (Section 160): A witness may also
testify to facts mentioned in any such document as is mentioned in Section 159, although he had no specific
recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

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Right of adverse party as to writing used to refresh memory (Section 161): Any document to refresh
memory must be shown to the adverse party who may, if he pleases, cross-examine the witness upon it.

Principle: This Section gives the opposite party a right of inspecting documents used in Court for the
purpose of refreshing the memory of a witness. He may look at the writing to see what kind of writing it is, in
order to check the use of improper documents.

Field J., has described three grounds upon which the opposite party is permitted to inspect a writing used to
refresh the memory.

i) to secure the full benefit of the witness's recollection as to the whole of the facts;
ii) to check the use of improper documents;
iii) to compare his oral testimony with his written statement.

Production of documents (Section 162): A witness summoned to produce a document must, if it is in his

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possession, bring it to Court, notwithstanding any objection which there may be to its production and
admissibility. The validity of such objection will be decided by the Court. The Court may inspect the
document unless it refers to matters of state or take evidence to determine, its admissibility.

The section refers to official as well as private documents-

1) Translation of documents: If for such purpose it is necessary to cause any document to be


translated, the Court may, if it thinks fit, direct translator to keep the contents secret, unless the
document is to be given in evidence, and if the interpreter disobeys the direction, he shall be held to
have committed an offence under Section 166 of the Indian Penal Code.

2) Principle: Under this Section the validity of an objection to the production of a document has to be
determined by the Court. The only limitation on the power of the Court is that in cases of documents

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where privilege is claimed under Section 123, the Court may not look at those documents but must
determine the validity of the claim on materials other than the document itself. [Dinbai Petti v.
Dominion of India, (1950) Bom. L:.R.]

4. Privilege on Newspapers: The privilege of newspaper (known as the newspaper rule) protects

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their sources of information.

X V5. Y, (1988) All. ER: A newspaper reporter collected information form some hospital sources identifying
the victims of AIDS admitted there. But the newspaper was permanently restrained from publishing the
matter because freedom of the press was comparatively less important than the secrecy of AIDS victims so

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that they may not be deterred from going to hospitals.

- An editor or reporter may be compelled to disclose its source of information, if it is in the interest of
public.

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Giving as evidence, of document called for and produced on notice (Section 163): When a party
gives notice to produce a document, and it is produced and inspected by the party calling for its inspection,
he is bound to give it as evidence if the party producing it requires him to do so.

Using as evidence of document production of which was refused on notice (Section 164): When a

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party refuses to produce a document which he had notice to produce, he cannot afterwards use the
document as evidence without the consent of the other party or the order of the Court.

Judge's power to put questions or order production (Section 165): The Judge may, in order to

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ascertain relevant facts,

1. Ask any question -


a. at any time,
b. of any witness or parties,
c. about relevant or irrelevant facts-though the judgement must be based on
relevant facts only.
2. Order the production of any document or thing -

The parties cannot object to this course, nor can they cross-examine a witness upon any answer given in
reply.

The Judge, however, cannot-

1. compel a witness to answer a question or produce a document which such witness would be

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entitled to refuse to answer or to produce under Section 121 to 132 at the instance of the adverse
party;

2. ask any question as to credit which it would be improper for any other person to ask under Section
148 or 149;

3. dispense with primary evidence of any document, except where secondary evidence is admissible.

IMPROPER ADMISSION AND REJECTION OF EVIDENCE [SECTION 167)

No new trial for improper admission or rejection of evidence (Section 167): The improper admission
or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it
shall appear to the Court before which such objection is raised that, independently of the evidence objected

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to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence has
been received, it ought not to have varied the decision.

1. Ingredients: The improper admission or rejection of evidence is not a ground-

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a. for a reversal of the Judgement, or
b. for a new trial of the case If the Court thinks-

if the Court thinks-

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a. that independently of the evidence admitted, there is sufficient evidence to justify the
decision, or

b. that if the rejected evidence has been received it ought not to have varied the decision.

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2. Comment: Improper admission or rejection of evidence may be a ground, if injustice is caused to
any party. But if it does not affect it materially, it cannot be a ground of reversal of a proper decision in
appeal. The provisions of this section are made applicable by the clearest possible words to all
judicial proceedings in or before any Court. The Section applies to civil cases and to criminal cases
whether or not the trial had been held by a jury.

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3. Object: The object of the section is that the Court of appeal or revision should not disturb a decision
on the ground of improper admission or rejection of evidence, if in spite of such evidence, there are
sufficient materials in the case to justify the decision. It means, technical objections will not be

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allowed to prevail, where substantial justice appears to have been done.

4. Civil Cases: In the case of first appeal in civil case, the provisions of this section have to be read
with Section 99 of the Civil Procedure Code, 1908. Section 99 of CPC provides, "No decree shall be
reversed or substantially varied nor shall any case be remanded, in appeal on account of any error,
defect or irregularity in any proceeding in the suit not affecting the merits of the case".

In second appeal, one of the grounds, justifying the appeal is "a substantial error or defect in the
procedure which may possibly have produced error or defect in the decision of the case upon the
merits". [Vide: Section 100(1)(c) of the Civil Procedure Code, 1908].

In second appeal, the High Court has no power to deal with the sufficiency of evidence; the second
appeal is heard only on the point of law but the High Court can remand or reverse the decision of
lower Court, if injustice is caused to any party.

Babulal v. Mohammed Sharif, AIR 1996 MP: A document has been acted upon while pronouncing
the judgement and passing the decree in consequence of that, the said document cannot be

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challenged in appeal in view of this Section.

Talewar Singh v. Bhagwan Das, 1907 CJL: The omission to receive an important document or to
examine a material witness justifies a reversal of the decision.

5. Criminal cases: In criminal cases the same law has been enacted by the Legislature. Section 465
of Criminal Procedure Code, 1973 lays down, "No binding sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered..... on appeal or revision, on account of any
misdirection in any charge to a jury unless such error, omission, irregularity or misdirection has in
fact occasioned a failure of justice.

IMPORTANT QUESTIONS

Q.1.
Q.2.
Q.3.

Q.4.
Q.s.
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What questions are lawful in cross-examinations?
When leading questions must not be asked?
Comment on Examination of Judges and Magistrates as a witness.

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Whether a dumb person can testify in a court?
What is the rule regarding professional communications?

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Q.6. Whether communications between a doctor and an accussed patient are privileged?
Q.7. Whether the court may presume that an accomplice is unworthy of credit unless he is corroborated
in material particulars?
Q.8. Whether a witness may refer to a writing made by some other person, to refresh his memory, while

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under examination?

Q.9. When a man is prosecuted for rape, can it be shown that the prosecutrix was of generally immoral
character?

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Q.10. Discuss briefly rules regarding :
a. Leading questions
b. Indecent and scandalous questions
c. Impeaching credit of a witness
d. Refreshing memory
Q.11. When does evidence of character become relevant in civil and criminal cases? Whether evidence
of previous bad character would be relevant in civil cases?

Q.12. What is privileged communication? Can an advocate ever be compelled to testify in a case against
his client and disclose the details of his conversation with his client? Are there any exceptions?

Q.13. Discuss improper admission or rejection of evidence?


Leading questions

Q.14. Write notes on :

a) Impeaching Credit of a witness


b) Impeaching Credit of a witness

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c) Coroborated testimony of an accomplice.

SUGGESED READINGS

1. Law of Evidence, Ratan Lal Dhiraj Lal


2. Law of Evidence, Dr. Avtar Singh
3. Law of Evidence, Batuk Lal
4. Sarkar on Evidence, 1999, Sarkar & Manohar
5. Evidence (5th Edition 2000), Polein Murphy

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6. The Problem of Proof, Albert S. Osburn
7. Law of Evidence, Vepa P. Sarathi
8. Law of Evidence, G.S. Pande

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9. Law of Evidence, S.D. Basu
10. Law of Evidence, A.N. Sen
11. Law of Evidence, Raja Ram Yadav
12. Law of Evidence, R.G. Trivedi

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13. Law of Evidence, Vidya Bhushan

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NOTES
NOTES

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