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Law of Evidence

Short Questions:

1) Definition of Document.
2) Digital Signature
3) Test Identification Parade
4) Doctrine of Res gestae
5) Judicial Notice
6) Extra Judicial notice
7) Hostile witness
8) Accompliance
9) Experts Opinion
10) Conclusive proof
11) Leading question
12) Test Identification Parade
13) Patent ambiguity
14) Hearsay Evidence

Long Questions:

1) When Facts not otherwise relevant becomes relevant?


2) Dying declaration. Examine the evidentiary value of dying declarations.
3) Discuss the conditions for the relevancy and admissibility of dying declaration.
4) Define Admission. Discuss the relevancy of admissions.
5) What are the various modes of examination of witness?
6) Who is an Expert? When are opinions of expert relevant?
7) What is secondary evidence? Under what circumstances secondary evidence is admissible
8) Explain the nature, scope and purpose of cross examination of witnesses.
9) What are Privilege communications?
10) Discuss the general rule relating to burden of proof.

Short Answers:

1) Definition of Document:

ANS:-

Definition:
Section 3 of Indian Evidence Act, 1872 defines Document as, “Document” means any matter expressed
or described upon any substance by means of letters, figures or marks, or by more than one of those
means, intended to be used, or which may be used, for the purpose of recording that matter.
The document can be defined as," a piece of written, printed or electronic matter that provides
information or evidence or that serves as an official record.
Types of Documents:
Documents are divided into two categories Private Documents and Public Documents.

Public Documents:
According to Section 74 of Indian Evidence Act, 1872 the Following Documents are Public Documents:

(1) Documents forming the acts, or records of the acts—


I. of the sovereign authority,
II. of official bodies and tribunals, and
III. Public officers, legislative, judicial and executive, of any part of India or of the Commonwealth,
or of a foreign country.

(2) Public records kept in any State of private documents."

Private Documents:
As per Section 75 of Evidence Act, "all other documents other than those, enlisted in Section 74 of the
Evidence Act are Private Documents."

2) Digital Signature:

ANS:

Section 47A, says when the court has to form an opinion as to the digital signature or any person, the
opinion of the certifying authority which has issued the Digital Signature Certificate is a relevant fact. It
means while drawing the conclusion, court gives the weight of the digital signature as a relevant fact.

Section 3 of the Information Technology Act, 2000 makes digital signatures legal in India. It states that
provides that electronic records can be authenticated by digital signatures that use an asymmetric
crypto system and hash function for authentication. Section 5 assigns legal recognition to digital or
electronic signatures laying down that all electronic documents affixed by a digital signature are
authentic.

Digital Signature has also been admitted as electronic evidence in courts. Section 67A of the Indian
Evidence Act says that if a digital signature of any subscriber is claimed to have been attached to an
electronic record, the fact that such digital signature is the digital signature of the subscriber must be
demonstrated.

Punishment:
Any person who makes misrepresentation, or suppresses any material fact when obtaining a Digital
Signature Certificate can be punished with imprisonment for up to 2 years, with fine of Rs. 1 lakh, or
both. Similarly, any person who knowingly creates publishes or otherwise makes a Digital Signature
Certificate available for any fraudulent or unlawful purpose can be punished with imprisonment for up
to 2 years, with fine of Rs. 1 lakh, or both.

3) Test Identification Parade:

ANS:
Section 9 of the Indian Evidence Act, 1872

Definition:

Test Identification Parade (TIP) is used in police investigation is 'test identification' i.e. a process by
which the identity of persons, things or animals concerned in the offence under investigation or trial is
established through a test parade.

In all criminal trials, the two most intrinsic points of determination are the following: whether the
alleged offence was committed, and, if so, who committed the offence. One of the ways employed to
establish the identity of a person as the doer of a particular act is by way of identification parades.
Evidence by way of identification parades is taken under Section 9 of the Indian Evidence Act, 1872. The
purpose of identification parade is to test the veracity/trustworthiness of the evidence of the witness.
The object of conducting a Test Identification Parade (hereinafter referred to as the “TIP”) is, firstly, to
satisfy the investigating authority, before remitting the case to the court for trial, that the person
arrested, who was not previously known to the witness, was in fact one of those who committed the
crime; and secondly, to satisfy the court that the accused arrested is in fact the culprit.

TIP is a part of the investigatory process under Section 162 of the Criminal Procedure Code, 1973. TIP
has been in common use for a very long time; the object is to place the suspect of crime in a line with
other individuals for identification. The purpose is to find out whether or not the suspect/accused is the
perpetrator of the crime. This is all the more essential where the name and details of the accused,
although, are not known to the eyewitnesses of the incident, but, still by recalling the scene of crime
and the physical features (face, eyes, complexion, height and/or physique) of the accused/suspect the
eyewitnesses are able to identify the accused/suspect. The rationale of TIP is to confirm the identity of
the accused and to help the police in their investigation.

Case Law:

Further, in the case of, Rabinder Kumar Pal v. Republic of India, the Hon’ble Supreme Court of India held
that, photo identification of accused and TIP are only aides to the investigation conducted by the
investigating officer (‘I.O.’ for short) and these do not form substantive evidences. Substantive evidence
is the evidence in the court of law on oath. The logic behind TIP, which includes photo-identification, lies
in the fact that it is only an aid to the investigation, where an accused is not known to the witnesses; the
I.O. conducts TIP to ensure that he has caught hold of the right person as the accused.

4) Doctrine of Res gestae:

ANS:

Section 6 of the Indian Evidence Act, 1872

Halsbury defines 'Res gaste' as "Facts which form part of the res gestae and are consequently provable
as facts relevant to the issue ; include acts , declarations and incidents which themselves constitute or
accompany and explain the facts or transaction in issue.
Circumstantial facts are declared relevant and admitted in evidence, though such acts are not in issue, if
they are so connected with the fact in issue as to form part of the same transaction, whether they occur
at the same time and place or at different times and places.

Case Law:

In a case decided by the Supreme Court, the talk between the accused and the police decoy was tape-
recorded and sought to be used in evidence in a prosecution for bribery. The defence objected to its use
as being a statement to the police. Rejecting the argument, the Supreme Court held that the dialogue
formed part of the res gestae and was, therefore, relevant and admissible under S. 6 of the Act.

However, the Court also cautioned that as magnetic tapes are capable of erasure and re-use, the Court
must also be satisfied that the tape had not been tampered with. (Yusufalli v. State of Maharashtra,
A.I.R. 1968 S. C. 147)

5) Judicial Notice:

ANS:

Definition: Section 57 of the Indian Evidence Act, 1872

A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of
a particular fact commonly known by persons of average intelligence without establishing its existence
by admitting evidence in a civil or criminal action.

The authority of a judge to accept as facts certain matters which are of common knowledge from
sources which guarantee accuracy or are a matter of official record, without the need for evidence
establishing the fact. Examples of matters given judicial notice are public and court records, tides, times
of sunset and sunrise, government rain fall and temperature records, known historic events, or the fact
that ice melts in the sun.

When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in
court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or
tangible evidence. However, if each fact in a case had to be proved through such presentation, the
simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures
have approved court rules that allow a court to recognize facts that constitute common knowledge
without requiring proof from the parties.

Conclusion:
Under rule 201 a trial court must take judicial notice of a well-known fact at the request of one of the
parties, if the court is provided with information supporting the fact. A court also has the option to take
judicial notice at its discretion, without a request from a party.

6) Extrajudicial Notice:

ANS:
An extrajudicial statement is an out-of-court utterance, either written or oral. When offered into court
as evidence, it is subject to the Hearsay rule and its exceptions.

An extrajudicial oath is one that is not taken during judicial proceedings but taken formally before a
proper officer or magistrate, such as a Notary Public.

7) Hostile Witness:

ANS:

Definition: Section 154 of Indian Evidence Act

A witness who is antagonistic to the party calling them and, being unwilling to tell the truth, may have to
be asked leading questions.

Nowhere hostile term is used nor is described in respect of hostility. Hostile means adverse, unfavorable
or alien. These words have been borrowed from the British Law. In a criminal trial when a prosecution
witness is summoned to produce evidence he appears before the court but does not confirm his
previous evidence / statement recorded or collected by the investigative agency. He is called adverse
witness or a hostile witness.

Case Law:

The Famous Jessica Lal Murder Case and Others


It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is shot dead
at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering
hole. The man accused of killing her — Manu Sharma, the son of a former Union Minister — flees the
scene and absconds for an entire week before surrendering to the Delhi police. The Jessica Lal murder
case, in which a session’s court acquitted all nine accused on the ground of insufficient evidence, is an
instance of gross miscarriage of justice and raises serious questions about the criminal justice system.
The collapse of the case is the result of two main causes. First, there were a couple of glaring holes in
the prosecution's case. Two bullets were fired, one in the air, on that fateful night and the Delhi police
maintained that they both came from the same gun; however, a forensic report showed they were fired
from different weapons. Moreover, the gun used to shoot Jessica Lal was not recovered, a failure that
suggests a lack of diligence with which the case was investigated. However, what really sunk the case
was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses
turning hostile.

8) Accomplice:

ANS:

Section 133 of the Indian Evidence Act, 1872

The word “accomplice” has nowhere been defined in the Evidence Act. An accomplice means “a guilty
associate” or a partner in crime.” An accomplice is a person who is connected with another or others in
the commission of crime. He is a person who participates in the commission of the crime. Where the
witness sustains such relations to the criminal act that he would be jointly indicted with the accused, he
is an accomplice. For example, when numbers of persons have committed an offence and one of them is
produced as a witness before the court, he is called as accomplice.

Section 133 lays down that an accomplice shall be a competent witness against an accused person and
the conviction is not illegal merely because it proceeds from the uncorroborated testimony of an
accomplice. He being a guilty associate shall be a competent witness in crime.

However, Section 133 has to be read along with Section 114(b) and reading them together the law is
well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be
corroborated by some other evidence. It is desirable that the court seeks reassuring circumstances to
satisfy the judicial conscience that the evidence is true. In a smuggling case the Supreme Court once
again observed: “the evidence of an approver does not differ from the evidence of any other witness
except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if
the evidence of an approver is found to be trustworthy and acceptable then the evidence might well be
decisive in securing conviction.”

9) Experts Opinion:

ANS:

Definition of expert opinion: A person who is a specialist in a subject, often technical, who may present
his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or
criminal case.

The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts or
commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered to when the
Court has to form opinion pertaining to:

-foreign law
-science
-identity of handwriting
-finger impressions

In such cases, the Court seeks opinion of skilled persons i.e. experts in the aforementioned fields.
Matters commonly made the subject of such evidence include causes of death, insanity, effects of
poison, genuineness of works of art, value of articles, genuineness of handwriting, proper navigation of
vessels, meaning of trade terms and foreign law. A witness who is qualified to speak on these matters is
called an expert.

Importance of Expert Opinion:


The Supreme Court in the case of State of H.P. v. Jai Lal and Others. explained the substance of expert
opinion by stating that Section 45 of the Evidence Act which makes opinion of experts admissible lays
down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or
as to identity of handwriting or finger impressions, the opinions upon that point of persons specially
skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger
impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert
it has to be shown that he has made a special study of the subject or acquired a special experience
therein or in other words that he is skilled and has adequate knowledge of the subject.
10) Conclusive proof:

ANS:

Definition:

Conclusive Evidence is evidence that cannot be contradicted by any other evidence. It is so strong as to
overbear any other evidence to the contrary. The evidence is of such a nature that it compels a fact-
finder to come to a certain conclusion.

There are three sections in the Act which deal with conclusive proof, viz., Ss. 41, 112 and 113. The
contents of these sections are discussed below.

1. Judgments in probate and other jurisdictions (S. 41):

A final judgment, order or decree of a competent Court, in the exercise of its.

(i) Probate,
(ii) Matrimonial,
(iii) Admiralty, or
(iv) Insolvency jurisdiction

2. Birth during marriage conclusive proof of legitimacy (S. 112):

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.

The basis of the rule contained in S. 112 seems to be that it is undesirable to enquire into the paternity
of a child whose parents have access to each other. This section refers to the point of time of the birth
of the child as the deciding factor, and not to the time of conception of that child; the latter point of
time has to be considered only to see whether the husband had no access to the mother.

3. Cession of Territory (S. 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, been ceded to any Native State, Prince or Ruler is
conclusive proof that a valid cession of such territory took place at the date mentioned in such
Notification.

Conclusion:
Sections 41, 112 and 113 are the only sections which deal with matters which are to be regarded as
“conclusive proof”. No rule of the kind can be based on considerations of evidence, because enquiry is
altogether excluded.

11) Leading question:

ANS:
Definition:

Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as, “Any questions suggesting
the answer which the person putting it wishes or expects to receive is called a leading question."

Why are leading questions allowed in cross examination?

Leading questions are also allowed during a cross-examination when an attorney is questioning the
other party's witnesses. This is because one of the purposes of cross-examination is to test the
credibility of statements that a witness made on direct examination.

Examination in Chief is the first examination after the witness has been sworn or affirmed. It is the
prerogative of the party by who the witness has been called to examine him in chief so as to get all the
material facts within his knowledge to prove such a party’s case.

Cross- Examination is a powerful tool to test the veracity of a witness and the accuracy or completeness
of what he has stated. Cross- examination can at times take form of intensive questioning with the
expected answers hinted to in such questions itself.

Leading questions cannot ordinarily be asked in examination-in- chief or re-examination. The witness is
presumed to be biased in favour of the party examining him and might thus be prompted. The reason
for excluding leading questions is quite obvious; it would enable a party to prepare his story and evolve
it in his very words from the mouth of his witness in Court.

Leading questions can, only be asked when they refer to matters, which are (1) introductory; (2)
undisputed; or (3) sufficiently proved. For, if such questions were not allowed, the examination would
be most inconveniently protracted.

Leading questions can, however, be asked in cross-examination. This is so, because the very purpose of
a cross-examination is to test the accuracy, credibility and general reliability of the witness.

12) Patent ambiguity:

ANS:

Definition:

Patent ambiguity is defined in Secs.93 and 94 of the Indian Evidence Act, 1872. “When the language
used in a document is, on its face, ambiguous or defective, evidence may not be give of facts which
would show its meaning or supply its defects.”

Patent ambiguity refers to uncertainty on the face of a legal document. This gives the agreement or
contract an indefinite meaning. When a document includes a patent ambiguity, no external evidence
can show the testator's intention, which remains unclear. A patent ambiguity may invalidate an
agreement or contract.
When the language used in a document is, on its face, ambiguous or defective, evidence may not be
given of facts which would show its meaning or supply its defects.

Illustrations:

(a) A agrees, in writing, to sell a horse to В for “Rs. 1,000 or Rs. 1,500.” Evidence cannot be given to
show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant
to be filled.

Conclusion:
Generally, outside evidence may be introduced to clear up an ambiguity that is obvious on the face of
the document. If the court determines that an ambiguity exists, it may consider extrinsic evidence to
resolve the ambiguity. Many courts do not distinguish between patent and latent ambiguities.

13) Hearsay Evidence:

ANS:

Definition:
Hearsay Evidence. The term “hearsay” refers to an out-of-court statement made by someone other than
the witness reporting it. For example, while testifying in John's murder trial, Anthony states that John's
best friend told him that John had killed the victim.

Hearsay evidence “denotes that kind of evidence which does not derive its value solely from the credit
given to the witness himself, but which rests also, in part, on the veracity and competence of some
other person.” The evidence is such that the witness has no personal knowledge about the fact in
question, rather it is derivative based on the second-hand knowledge, “Sometimes it means whatever a
person is heard to say; sometimes it means whatever a person declares on information given by
someone else; sometimes it is treated as nearly synonymous with ‘irrelevant’.

Exclusion of hearsay evidence:

Hearsay evidence is excluded owing to its infirmity as compared with its original source. It is always
desirable in the interest of justice to get a person whose statement can be relied upon.

Exception to hearsay rule:


There are number of exceptions to the rule of hearsay. All exceptions have been imported in the
Evidence Act. Primarily, the exceptions are to be found in Sections 17 to 39 of the Act as well as in
Provision to Section 60.
Long Answers:

1) When Facts not otherwise relevant becomes relevant?

ANS:

Section 11 of the Indian Evidence Act, 1872

When facts not otherwise relevant become relevant:

Facts not otherwise relevant are relevant—

(1) If they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts they make the existence or non-existence of any
fact in issue or relevant fact highly probable or improbable.

Illustrations:

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it
was committed, which would render it highly improbable, though not impossible, that he committed it,
is relevant.

(b) The question is, whether A committed a crime.

The circumstance are such that the crime must have been committed either by А, В, С or D, every fact
which shows that the crime could have been committed by either В, С or D, is relevant.

Case Law-1:

Facts which makes thing highly improbable are also relevant

In Santa Singh v. State of Punjab (1956) The witnesses testified that they saw the deceased being shot
from a distance of twenty-five feet. The medical report showed that the nature of the wound was such
that it could have been caused only from distance less than a yard. Thus, the expert opinion rendered
the statement of witnesses highly probable.
This section is too wide in its import. It does not place any restriction upon the range of facts that can be
admitted as showing inconsistencies or probabilities.
It leaves the whole thing at the discretion of the court.

Case Law-2:
In Reg. v. Prabhudas (1874) where to prove the offence of forgery by the accused, evidence was offered
of other forged documents found in his possession, as this would make it probable that he committed
the forgery.

Case Law-3:
In Umashanker v. State of Chattisgarh (2001) in a charge of passing a fake currency note, the relevancy
of possession of other fake note proved mens rea or guilty state of mind or knowledge.

2) Dying declaration. Examine the evidentiary value of dying declarations:

ANS:

Definition: Section 32(1) of Indian Evidence Act

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but
may in common law nonetheless be admitted as evidence in criminal law trials because it constituted
the last words of a dying person.

Evidentiary value of dying declaration:

Dying declaration can only be taken into consideration when it is


I. Recorded by a competent magistrate (with certain exception),
II. the said statement must be recorded in the exact words,
III. there must not be any scope of influence from the third party, and hence the declaration must
be made soon after the incident that is the reason of the death,
IV. There must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or
it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying
declaration needs evidence to corroborate.

Case Law:
The case of Kushal Rao v. State of Bombay set several precedents for future cases involving the dying
declaration.

I. First, a dying declaration which has been recorded by a competent Magistrate in the proper
manner i.e. in the form of questions and answers, &, as far as practicable in the words of the
maker of the declaration stands on a much higher footing than a dying declaration which
depends upon oral testimony. The court observed that dying declaration that depends upon oral
testimony may suffer from all the infirmities of human memory & human character.
II. Second, there is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated and therefore, a true & voluntary declaration can be sole basis
of conviction, provided, it is corroborated.
III. Third, a dying declaration stands on the same footing as other piece of evidence. Therefore, it
has to be judged in the light of surrounding circumstances and with reference to the principle
governing the weight of evidence.
IV. Fourth, a dying declaration is not a weaker kind of evidence than any other piece of evidence;
however, each case must be determined on its own facts and the court must keep in view the
circumstances in which the dying declaration was made.
V. Fifth, the court must test the reliability of the dying declaration for which it has to keep in view
the circumstances like the opportunity of the dying man for observation. For instance, whether
there was sufficient light if the crime was committed in the night. The court must also test
whether the capacity of man to remember the facts stated had not been impaired at the time
he was making the statement by circumstances beyond his control.
VI. Sixth, the court must also test whether the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart from the official record of i. Also, the
statement had been made at the earliest opportunity & was not the result of tutoring by
interested party.

3) Discuss the conditions for the relevancy and admissibility of dying declaration:

ANS:

1. To whom the statement is to be made and its form.


2. The person making the statement must have died.
3. Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death.
4. The cause of death must be in question.
5. The statement must be complete and consistent.
6. Declarant must be competent as a witness.

1. To whom the statement is to be made and its form:

A statement of dying declaration could be made to any person – a doctor, a Magistrate, a friend or near
relative, a police officer. However, a statement recorded by a Magistrate or doctor is considered more
reliable, and that recorded by a police officer or close relative not (require more scrutiny).

No particular form of recording a statement is prescribed. The statement could be written, oral or even
verbal (e.g., gestures).

2. The person making the statement must have died:

The death need not occur immediately after the making of the statement. However, the death must
occur. If the persons making the declaration chances to live, his statement is inadmissible as a dying
declaration, but it might be relied under section 157 to corroborate his testimony when examined. Such
a statement can also be used to contradict him under section 145

3. Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death:

If the statement made by the deceased does not relate to his death, but to the death of another, it is not
relevant. For example, where the wife made a statement that her husband is killed by Z and then she
committed the suicide.
The circumstances of transaction resulting in death must bear proximate relation to the cause of death
or actual occurrence. The general expressions indicating fear or suspicion, whether of a particular
individual or otherwise and not directly related to the occasion of death will not be admissible.

4. The cause of death must be in question:

The declaration under section 32(1) must relate to the death of the declarant. In Dannu Singh v.
Emperor, A and five other persons were charged with having committed a dacoity in a village. A, who
was seriously wounded while being arrested, made before his death a dying declaration as to how the
dacoity was committed and who had taken part in it. It was held that declaration was not admissible in
evidence against other persons, as it does not relate to his death, but relates to participation of his
associates in the dacoity.

5. The statement must be complete and consistent:

If the deceased fails to complete the main sentence (as for instance, the genesis or the motive for the
crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but
fails to answer the last question as to what more he wanted to say, the declaration can be relied upon.

A dying declaration ought not to be rejected because it does not contain details or suffers from minor
inconsistencies.

6. Declarant must be competent as a witness:

It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would have
been competent witness. Thus, in a prosecution for the murder of a child, aged four years, it was
proposed to put in evidence, as a dying declaration, what the child said shortly before her death. The
declaration was held to be inadmissible.

7. Other points:-
Where the injured person was unconscious, dying declaration should be rejected. Where for some
unexplained reasons the person who noted down (scribe) the statement was not produced, the
declaration was not accepted as evidence.

Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying declaration.

4) Define Admission. Discuss the relevancy of admissions.

ANS:

Definition:

Admission as per Indian Evidence Act –

Section 17 of Indian Evidence Act defines Admission as a statement which may be in oral, documentary,
or electronic form, suggesting any inference as to any concerned fact and is made by any of the persons
and under the circumstances mentioned below:
Section 18 – Admissions by party to proceeding or his agent; by suitor in representative character; by
party interested in subject-matter; by person from whom interest derived –

I. Statements made by the persons who are directly or indirectly a party to a suit.
II. Statements made by persons who are suing or being sued in a representative character are
admissions, only if those statements were made by the party while being in that representative
character.
III. Similarly, statements made by persons who have a pecuniary interest in the subject matter of
the proceeding and statements made by persons from whom such interest is derived by the
parties in suit, are also admissions if they are made while the maker had such an interest.
For example, A bought a piece of land from B. Statements made by B at the time when B was the owner
of the land is admissions against A.

Section 19 – Admissions by persons whose position needs to be proved:

I. Statements made by persons whose position or whose liability is necessary to prove as against
any party to the suit, are admissions,
II. if such statements would be relevant as against such persons in relation to
III. such position or
IV. liability in a suit brought by or
V. against the made if they are made whilst the person making them occupies such position or
VI. Is subject of such liability.

Illustrations:

P undertakes to collect rent for Q.


Q sues P for not collecting rent due from R to Q.
X denies that rent was due from Z to Y.
X statement by Z that he owned Y rent is an admission, and is a relevant fact as against X, if X denies that
Z did owe rent to Y.

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

Statements made by any persons to whom a party (to the suit) has expressly referred in reference to a
matter in dispute for information, are admissions.
Illustration –
The question is, whether a horse sold by P to Q is sound P says to Q “Go and ask R. R knows all about it”
R’s statement is an admission.

Section 21 Proof of admissions

Admissions are relevant and may be proved as against the person;

I. who makes them or


II. his representative in interest and
III. not by or on behalf of the person
IV. who makes them or by his representative in interest
V. except in following cases:
VI. it is of a nature that the person making it, if were dead, it would be as relevant as between third
persons under section 32 of the code
VII. it consists of a statement of existence of any state of mind or body,
VIII. It is relevant otherwise than as an admission.

5) What are the various modes of examination of witness?

ANS:

Attorneys question witnesses on the stand through various modes:

1. Direct Examination.
2. Cross-Examination.
3. Challenging Witness's Credibility on Cross-Examination.
4. Redirect and Recross Examination.
5. Defense's Case.

Direct Examination:
During direct exams, attorneys can ask witnesses to identify demonstrative evidence, such as
documents and photographs and/or to explain what they saw, heard, or did in relation to the case at
hand. For example, a plaintiff's attorney in a car accident personal injury lawsuit may call a bystander to
testify as to what he or she saw just before, during, and/or after the accident, including what the
weather was like, what happened during the accident, and any other details the witness remembers
from the day.

During direct examination, a judge will have some control over the scope and form of the questions. The
judge can stop repetitive questioning and prevent a lawyer from asking leading questions, which imply,
suggest, or prompt the witness to give a particular answer. However, a judge won't restrict questions
unless the other attorney makes an objection. If the plaintiff's attorney is leading the witness, then the
attorney for the "defendant" (the person being sued) can object to the question.

Cross-Examination:
After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-
examine the witness. Cross-examination is a fundamental right in the American system of justice.
Generally, cross-examination is limited to matters covered during the direct examination. The attorney
may ask leading questions during cross-examination.

Challenging Witness's Credibility on Cross-Examination:


During cross-examination, the attorney tries to undermine or impeach the witness's credibility by
showing that the witness is not reliable or that the witness may have misstated something or even lied
during the direct examination. For example, if the witness said one thing in an accident report or during
a deposition and then testified differently at trial, the defendant's attorney can refer to the previous
statements and show inconsistencies in the story.

The attorney might also try to show that the witness is biased or prejudiced toward a party in the case.
Another way to undermine the witness's credibility is to show that the witness has a stake in the
outcome of the case, which might influence the testimony.
Redirect and Recross Examination:
Following cross-examination of the witness, the plaintiff's attorney has an opportunity to ask the
witness follow-up questions regarding topics discussed during the cross. After this, the opposing
attorney can conduct a final recross examination of the witness, which is limited to the subjects brought
up during the redirect.

Defense's Case:
Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins
calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The
defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will
conduct cross-examinations.

6) Who is an Expert? When are opinions of expert relevant?

ANS:

Definition:

Definition of expert opinion: A person who is a specialist in a subject, often technical, who may present
his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or
criminal case.

Relevancy of an Expert Opinion:

I. Opinion of examiner of Electronic Evidence (Section 45A)


II. Facts bearing upon opinions of experts (Section 46) :
III. Opinions as to handwriting, when relevant (Section 47)
IV. Opinion as to digital signature when relevant (Section 47A)
V. Opinion as to existence of right or custom when relevant (Section 48)
VI. Opinion as to usage’s, tenants, etc., when relevant (Section 49)
VII. Opinion on relationship, when relevant (Section 50)
VIII. Grounds of opinion when relevant (Section 51)

i) Opinion of examiner of Electronic Evidence (Section 45A):

When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion of
the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000
(21 of 2000), is a relevant fact.

Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

ii) Facts bearing upon opinions of experts (Section 46):

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts
when such opinions are relevant.
Illustrations:

The question is, whether A was poisoned by a certain poison. The fact that other persons who were
poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms
of that poison, is relevant.

iii) Opinions as to handwriting, when relevant (Section 47):

When the Court has to form an opinion as to the person by whom document was written or signed, the
opinion of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.

iv) Opinion as to digital signature when relevant (Section 47A):

When the Court has to form an opinion as to the "digital signature" of any person, the opinion of the
Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

v) Opinion as to existence of right or custom when relevant (Section 48):

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

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

vi) Opinion as to usages, tenants, etc., when relevant (Section 49):

When the Court has to form an opinion as to - the usage’s and tenants of any body of men or family, the
constitution and government of any religious or charitable foundation, or the meaning of words or
terms used in particular districts or by particular classes of people, the opinions of persons having
special means of knowledge thereon, are relevant fact.

vii) Opinion on 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 on the subject, is a relevant fact.

viii) Grounds of opinion when relevant (Section 51):

Whenever 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.

7) What is secondary evidence? Under what circumstances secondary evidence is admissible?


ANS:

Definition: Section 63 of Indian Evidence Act, 1872 deals with Secondary Evidence.

A reproduction of, or substitute for, an original document or item of proof that is offered to establish a
particular issue in a legal action.

Secondary evidence is evidence that has been reproduced from an original document or substituted for
an original item. For example, a photocopy of a document or photograph would be considered
secondary evidence. Another example would be an exact replica of an engine part that was contained in
a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle
involved in the case, it is considered secondary evidence.

When Secondary Evidence is Admissible:

According to Section 65.of the Indian Evidence Act, 1872 Secondary evidence may be given of the
existence, condition or contents of a document in the following cases:

a) When the original is shown or appears to be in the possession or power of the person against whom
the document is sought to be proved, or of any person out of reach 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 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 time;

d) When the original is of such a nature as not to be easily movable;

e) When the original is a public document within the meaning of Section 74;

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

g) When the originals consist of numerous accounts or other documents which cannot conveniently be
examined in Court, and the fact to be proved is the general result of the whole collections.

I. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
II. In case (b), the written admission is admissible.
III. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
IV. In case (g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.

Conclusion:
Secondary Document is the document which is not original document. Giving Secondary Evidence is
exception to the general rule. Notice is required to be given before giving secondary evidence. The value
of Secondary evidence is not as that of primary Evidence

8) Explain the nature, scope and purpose of cross examination of witnesses:

ANS:

Definition:
"Cross-examination is the interrogation of a witness by a party other than the direct examiner upon a
matter that is within the scope of the direct examination of the witness. Generally the scope of
examination is limited to matters covered on direct examination.”

Scope of cross examination:


The scope of cross-examination is limited to questions involving the subject matter of the direct
examination or the credibility of a witness. The outside limits of cross-examination fall within the
discretion of the trial judge.

According to Section 137, para 2 of the Indian Evidence Act, 1872: The examination of a witness by the
adverse party shall be called his cross-examination. Cross-examination considered most powerful
weapon. According to Philip Wendell, "Cross-Examination is double-edged weapon, if you know how to
wield, it helps to cut enemy's neck Otherwise, it cuts own hands"

Limit-

It should be remembered that the witnesses must speak to facts and not to opinions inference or
beliefs. A witness may be cross-examined as to previous statements made by him in writing or reduced
into writing. Leading questions may be asked.

Object-

The object of the cross examination is to test the truth of statement made by witness, to see how
far is memory is reliable or what powers of observation possesses whether he is partial or impartial, etc.
; in short it is an attempt to break down a witness or to show that his statement cannot be relied upon.
The object and scope of cross-examination is twofold to weaken qualify or destroy the case of the
opponent; and to establish the party's own case by means of his opponents witnesses. With this view
the witness may be asked not only as facts in issue or directly relevant thereto, but all question

(1) Tending to test his means of knowledge,


(2) Tending to expose the error, of omission, contradictions and improbabilities in the testimony or
(3) Tending to impeach his credit.

The object of cross examination are to a impeach the accuracy, credibility and general value of
the evidence given in chief ; to sift the facts already stated by the witness, to detect and expose
discrepancies or to elicit suppressed facts which will support the case of cross examination of party.

Case Law:
Sukhawant Singh v. State of U.P AIR 1995 SC 1601

In this case the Supreme Court has held that a witness cannot be thrown open to cross-
examination unless he is first examined-in-chief. Where the prosecution did not examine its witness and
offered him to be cross examined, it was held that this amounted to abandoning one's own witness,
there cannot be any cross-examination without the foundation of examine-in-chief.

9) What are Privilege communications?

ANS:

Introduction:

The privilege of a witness means the right of a witness to withhold evidence to disclose certain
matters. There are certain circumstances in which certain persons are not compelled to testify (to give
evidence). The right is based on the convenience and public policy. Section 122 to Section 132 of Indian
Evidence Act 1872 provide for privileged Communications.

A "privileged professional communication" is a protection awarded to a communication between the


legal adviser and the client. It is out of regards to the interest of justice, which cannot go on without the
aid of men skilled in jurisprudence in the practice of Courts, and in those matters affecting rights and
obligations, which form the subject matter of all judicial proceedings. If the privilege did not exist at all,
everyone would be thrown upon his own legal resources. Deprived all professional assistance, a man
would not venture to consult any skilled person, or would only dare to tell his counsel half his case. The
following discussion compares the laws dealing with privileged communications in India and England.

Indian law:
In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to
professional communication between a legal adviser and the client. Section 126 and 128 mention
circumstances under which the legal adviser can give evidence of such professional communication.
Section 127 provides that interpreters, clerks or servants of legal adviser are restrained similarly. Section
129 says when a legal adviser can be compelled to disclose the confidential communication which has
taken place between him and his client.
Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to

1. Disclose
I. any communication made to him by or on behalf of his client or
II. Any advice given by him to his client in the course and for the purpose of his employment.

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.

English law:
In England, the main category of privilege afforded to a communication is legal professional privilege.
Further there are two types of legal professional privilege:

1. Legal advice privilege:


It protects communication between a lawyer in his professional capacity and his client provided they are
confidential and are for the purpose of seeking or giving legal advice. This type of legal priviledge is
similar to that under Section 126 of the Indian Evidence Act.

2. Litigation privilege:
The second type of legal professional privilege arises only after litigation or other adversarial proceeding
are commenced or contemplated. It is wider than legal advice privilege and protects all documents
produced for sole and dominant purpose of the litigation, including all communication between
I. A lawyer and his client
II. A lawyer and his nonprofessional agents
III. A lawyer and a third party.
This type of privilege has similar protection under Section 127 and 129 of the Indian Evidence Act.

10) Discuss the general rule relating to burden of proof:

ANS:

Definition:

The burden of proof is the task of proving that you are correct, for example when you have accused
someone of a crime. The burden of proof is on the prosecution.

Specific rules of Burden of Proof: Section 104 to Section 143.

Evidence admissible:

Section 104 deals with the burden of proving fact to be proved to make evidence admissible:

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.

Burden of Proof on Accused -

Section 105 deals with the Burden of proving the fact that in a criminal case, the case of the accused
comes within one or the other of the exceptions as to liability.

Special knowledge -

Section 106 deals with the burden of proving a fact within the special knowledge of a particular person:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon
him.

Proof of Death -

Section 107 and 108 deals with the burden of proving the death of a person and proving that a person
was alive, in certain circumstances. This section says:
Section107: 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.

Burden in case of certain relations:

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.

Burden in case of terrorist -

Section 111(a) states:

it is shown that such person had been at a place in such area at a time when firearms 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 had committed such offence.

Burden in case of Dowry Death -

Section 113(A) is as follows

When the question is whether the commission of suicide by a women had been abetted by her husband
or any relative of her husband and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative of her husband has subjected
her to cruelty, the court may presume, having regard to all the other circumstances of the case, that
such suicide had been abetted by her husband or by such relative of her husband.

Section 113-B is as follows:

When the question is whether a person has committed the dowry death of a women and it is shown
that soon before her death such woman had been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry; the court shall presume that such person had caused
the dowry death.

Burden in certain cases of rape -

Section 114-A is as follows

"In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause
(g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) 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
such woman states in her evidence before the court that she did not consent, the court shall presume
that she did not consent. "
Proof regarding legitimacy -

Section 112 is as follows:

"The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the
parties to the marriage had no access to each other at any time when he could have been begotten."

Cases of suicide:

A new Section 113A has been added by Act 46 of 1983 with effect from 25th December, 1983. It
provides that:

Presumption as to abetment of suicide by a married woman.- When the question is whether the
commission of suicide by a women had been abetted by her husband or any relative of her husband and
it is shown that she had committed suicide within a period of seven years from the date of her marriage
and that her husband or such relative of her husband has subjected her to cruelty, the court may
presume, having regard to all the other circumstances of the case, that such suicide had been abetted
by her husband or by such relative of her husband.

Conclusion -
The rule is in accordance with the principle that the burden of proof is upon the party who substantially
assert the affirmative of the issue but not on the party who denies. The reason behind this rule is that
who drags anther into the Court must bear the burden of proving the facts which he asserts.