CASE MATERIAL COMPILATION: INDIAN EVIDENCE ACT

[EVIDENCE LAW: MR. VIPULL VINOD]

Section 59

1. Kalian kumar gogoi v ashutosh agnihotri.

The word 'evidence' is used in common parlance in three different senses: (a) as equivalent to
relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which
courts come to a conclusion about the existence or non-existence of disputed facts. Though, in
the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral
and documentary evidence, this word is also used in phrases such as: best evidence,
circumstantial evidence, corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc. The idea of best evidence is implicit in the Evidence Act.
Evidence under the Act, consists of statements made by a witness or contained in a document.
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 Evidence Act requires that ordinarily the
original should be produced, because a copy may contain omissions or mistakes of a deliberate
or accidental nature. These principles are expressed in Sections 60 and 64 of the Evidence Act.

2. zaheera Habibullah sheikh v state of Gujarat

As indicated above, the Section is wholly discretionary. The second part of it imposes upon the
Magistrate an obligation: it is, that the Court shall summon and examine all persons whose
evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of
evidence that the best available evidence should be brought before the Court.
Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on
this rule. The Court is not empowered under the provisions of the Code to compel either the
prosecution or the defence to examine any particular witness or witnesses on their side. This
must be left to the parties. But in weighing the evidence, the Court can take note of the fact that
the best available evidence has not been given, and can draw an adverse inference. The Court
will often have to depend on intercepted allegations made by the parties, or on inconclusive
inference from facts elicited in the evidence. In such cases, the Court has to act under the
second part of the section. Sometimes the examination of witnesses as directed by the Court
may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and
cannot be taken into account. Whether the new evidence is essential or not must of course
depend on the facts of each case, and has to be determined by the Presiding Judge

Section 63.
3. j. yashoda v k. shobha rani
Learned Single Judge held that the documents which were sought to be received and marked as
secondary evidence are photo copies. It was noted that it may be a fact that the original of the
documents are not available with the parties but at the same time the requirement of
Section 63 of the Indian Evidence Act, 1872 (in short the 'Act') is that a document can be
received as an evidence under the head of secondary evidence only when the copies made from
or compared with the original are certified copies or such other documents as enumerated in the
above section. The High Court found the photo copies can not be received as secondary
evidence in terms of Section 63 of the Act and they ought not to have been received as
secondary evidence. Since the documents in question were admittedly photo copies, there was
no possibility of the documents being compared with the originals. Accordingly the Civil
Revision was allowed.
secondary evidence, as a general rule is admissible only in the absence of primary evidence. If
the original itself is found to be inadmissible through failure of the party, who files it to prove it
to be valid, the same party is not entitled to introduce secondary evidence of its contents.
Essentially, secondary evidence is an evidence which may be given in the absence of that better
evidence which law requires to be given first, when a proper explanation of its absence is given.
The definition in Section 63 is exhaustive as the Section declares that secondary evidence
"means and includes" and then follow the five kinds of secondary evidence.

section 65 B

4. anwar pv v pk bashir

section 22A of the Evidence Act reads as follows:

22A. When oral admission as to contents of electronic records are relevant.- Oral
admissions as to the contents of electronic records are not relevant, unless the genuineness of
the electronic record produced is in question.

8. Section 45A of the Evidence Act reads as follows:

45A. Opinion of Examiner of Electronic Evidence.-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.

5. tukaram s. dighole v manikrao shivaji kokate

In Ziyauddin Burhanuddin Bukhari (supra), relying on R. v. Maqsud Ali (supra), a Bench

of three judges of this Court held that the tape-records of speeches were admissible in
evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the
record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and
satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of
tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of

relevancy found in the Evidence Act.

Tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and
stand on no different footing than photographs - Appellant miserably failed to prove the
authenticity of the cassette as well as the accuracy of the speeches purportedly made by the
Respondent - Appeal accordingly devoid of merits and hence dismissed.

Section 79

6.Bhinka and ors v charan singh

the three Courts have concurrently held on a consideration of oral and documentary evidence
that they were not hereditary tenants. The learned Counsel for the appellants made an attempt
to reopen the said finding by contending that it was vitiated by the following errors of law : (i)
Though the appellants filed a certified copy of the khatauni of 1355 fasli, the Courts did not
draw the presumption, which they were bound to do, to the effect that the said certified copy
was a genuine document and that the person who purported to have signed it had held the
official character which he claimed to hold in the said document; (ii) as the Magistrate made
an order in favour of the appellants under s. 145 of the Code of Criminal Procedure, the
Courts should have thrown the burden of proof on the respondent; (iii) the material evidence
adduced on the side of the appellants was ignored; (iv) the Courts applied different standards
of proof to the appellants and the respondent in regard to the certified copies of khatauni and
khasra prepared by the same patwari, Ahmed Ali; and (v) the Courts also ignored the rights
accrued to the appellants and Sections 10, 16 and 20 of the U.P. Tenancy Act. For
convenience of reference and to distinguish the alleged errors of law from the main
contentions, we shall refer to the former as points.

The first point, in the manner presented before us, does not appear to have been raised in
any of three Courts. Section 79 of the Evidence Act reads :

"The Court shall presume to be genuine every document purporting to be a certificate,....

which is by law declared to be admissible as evidence of any particular fact, and which
purports to be duly certified by any officer of the Central Government or of a State
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".

Section 80

7. bhagwan singh v state of Maharashtra

Now the certificate of the Committing Magistrate endorsed on the deposition sheet states that
the deposition was read out to the witness and that the witness admitted it to be correct. The
Court is bound to accept this as correct under section 80 of the Indian Evidence Act until it is
proved to be untrue. The burden is on the person seeking to displace the statutory
presumption and if he choose to rely on the testimony of a witness which the Court is not
prepared to believe the matter ends there. The duty of displacing the presumption lies on the
person who questions it. The Court is of course bound to consider such evidence as is
adduced but it is not bound to believe such evidence nor is there any duty whatever on the
Court to conduct an enquiry on its own. There is nothing in this point. But we again wish to
discountenance the suggestion that the Committing magistrate should have been examined to
prove the truth of his certificate and we endorse the remarks we made in Kashmera Singh
v. The State of Madhya Pradesh MANU/SC/0031/1952 : 1952CriLJ839 based on the
decision of the Privy Council in Nazir Ahmad v. King Emperor MANU/PR/0020/1936
regarding the undesirability of any such practice.

Section 81
8. dr. B singh v. state of Punjab

He only refers to the representation of Ram Sarup and some paper cuttings of news items. He
has not indicated as to whether he was aware of the authenticity or otherwise of the news
items. It is too much to attribute authenticity or credibility to any information or fact merely
because, it found publication in a newspaper or journal or Magazine or any other form of
communication, as though it is gospel truth. It needs no reiteration that newspaper reports per
se do not constitute legally acceptable evidence. Strangely, in the affidavit accompanying the
writ petition he has stated as follows:
"That I have read over the contents of accompanying writ petition page No. 1 to 13 para, Para
No. 1 to 18, synopsis and list of dates, page A to C and I say that the same are true and correct
on knowledge and based on the record of the case".
The affidavit shows that the contents were true and correct to his knowledge and based on
records. Strangely, it has not been indicated as to what is the source of his knowledge and are
based on what records

Section 81
9. ravindra kumar sharma v state of assam
Newspaper reports regarding the Central Government decision could not be any basis for the
respondents to stop action under the Assam Control Order of 1961. The paper reports do not
specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was
not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the
Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports
were evidence and conveyed the necessary information to one and all including the respondents
2 and 3. But the presumption of genuineness attached under Section 81 to newspaper reports
cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are
merely hearsay Laxmi Raj

Setty v. State of Tamil Nadu MANU/SC/0252/1988 : 1988CriLJ1783 .

10. rohit singh v state of bihar

As regards the finding that the notification under Section 29 of the Forest Act has not been
proved, the same has also to be held to be unsustainable. The Gazette notification issued 32
years prior to the suit was produced and marked in evidence and no circumstance proved,
justified an inference that it might not have been published as enjoined by law. The regularity of
issue of such a notification should have been presumed leaving it to defendants 3 to 17 to rebut
that presumption. For the present, all that is required is to vacate the finding in that regard
entered by the lower appellate court.

Ss. 62, 63,64, 65

Surendra Krishna Roy vs Mirza Mahammad Syed Ali MatwaliThe only purpose of a notice
under Sections 65 and 66 of the Indian Evidence Act is to give the party an opportunity by
producing the original to secure, if he pleases, the best evidence of the contents. The difference
between a certified copy and the original for the purposes of the present case is not very
obvious, but secondary evidence is admissible when the party offering evidence of its contents
cannot for any reason not arising from his own default or neglect produce the original
document in reasonable time [s. 651; and under Section 66 the Court has absolute power, when
it thinks fit, to dispense with a notice under these sections----- As defendant No. 1 had not filed
the original, denied having ever had it, and gave no reliable account of what happened to it---
held eminently reasonable in the circumstances of this case to permit the plaintiff to produce the
certified copy.
State Bank Of Travancore, ... vs Velayudhan Pillai Bhaskaran Nair: In our view the very
purpose of executing duplicates and registering the same along with partition deeds whereby
title to immovable properties is created in favour of several persons is to treat each of them as
original itself having the same operation and effect as that of the other. After partition each of
the allottee get the properties executively in their own rights and each of the allottees would like
to have title deeds of the respective properties allotted to them so that each may deal with such
properties independently. It is precisely to serve the above purpose that parties to a partition
usually get duplicate partition deeds as the one in this case………….we are inclined to take the
view that in a case where duplicate partition deed registered along with the original is deposited
bona fide by one of the executants of the partition deed (or persons claiming through such
executants) to whom only a duplicate was given as his title deed and not the original; deposit of
original need be insisted only as a rule of prudence and caution and not as a legal requirement
for the purpose of validly creating an equitable mortgage.
Raghunandan Prasad vs Ram Prasad And Ors: Section 61 of the Act lays down that "the
contents of documents may be proved either by primary or by secondary evidence," and I
understand the rule to mean that there is no other method allowed by law for proving the
contents of documents. Section 62 defines the meaning of primary evidence; Section
63 describes what constitutes secondary evidence within the meaning of the Act; and Clause (c)
of the section lays down in express language that "a copy transcribed from a copy, but
afterwards compared with the original, is secondary evidence; but a copy not so compared is not
secondary evidence of the original, although the copy from which it was transcribed was
compared with the original." There is no evidence in this case, which proves that the copy of the
decree now produced in evidence was compared with the original decree, and I therefore hold
that it was not admissible in evidence, because it could not be regarded either as primary or
secondary evidence of the contents of the original decree.
H. Siddiqui vs A. Ramalingam :Section 65 ---In a case where original documents are not
produced at any time, nor, any factual foundation has been led for giving secondary evidence, it
is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary
evidence relating to the contents of a document is inadmissible, until the non production of the
original is accounted for, so as to bring it within one or other of the cases provided for in the
section. The secondary evidence must be authenticated by foundational evidence that the alleged
copy is in fact a true copy of the original. Mere admission of a document in evidence does not
amount to its proof. Therefore, the documentary evidence is required to be proved in
accordance with law. The court has an obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement thereon
Dr. Gurmukh Ram Madan vs Bhagwan Das Madan: Section 65(f) states that secondary
evidence is permissible when the original is a document of which a certified copy is permitted by
the Evidence Act or by any other law in force in India, to be given in evidence. All that it means
is that secondary evidence is admissible notwithstanding the existence of the original when it is a
document of which a certified copy is permitted to be produced by the Act or any other law.
The document in question is not a public document and the document could not have been let
in evidence except after explanation as to the non-availability of the original in an appropriate
manner. Therefore, the view taken by the High Court in this regard that section 65(f) was not
attracted to the case is justified
S. 65(a)(c)(f):::Marwari Kumhar And Ors vs Bhagwanpuri Guru Ganeshpuri:Thus it is to
be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed,
then secondary evidence of the contents of the document is admissible. Sub-clause (c) is
independent of sub-clause (f)-Secondary evidence can be led, even of a public document, if the
conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public
document has been lost or destroyed then the secondary evidence can be given even of a public
document.
S.65(b)Dayamathi Bai vs K.M. Shaffi: when the plaintiff submitted a certified copy of the
sale deed (Ex.P1) in evidence and when the sale deed was taken on record and marked as an
exhibit, the appellant did not raise any objection. Even execution of Ex.P2 was not challenged.
In the circumstances, it was not open to the appellant to object to the mode of proof before the
lower appellate Court. If the objection had been taken at the trial stage, the plaintiff could have
met it by calling for the original sale deed which was on record in collateral proceedings. But as
there was no objection from the appellant, the sale deed dated 14.11.1944 was marked as Ex.P1
and it was admitted to the record without objection.
Anvar.P.V vs P.K.Basheer:What constitutes proper foundation for the admission of a sound
recording and reasonably strict adherence to the rules prescribed for testing the admissibility of
recordings, are outlined as follows:-
"(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording ;
(4) a showing that changes, additions, or deletions have not been made ;
(5) a showing of the manner of the preservation of the recording ;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made without any kind of inducement."

SECTION 79:

Bhinka And Others vs Charan SinghUnder this section a Court is bound to draw the
presumption that a certified copy of a document is genuine and also that the officer signed it in
the official character which he claimed in the said document. But such a presumption is
permissible only if the, certified copy is substantially in the form and purported to be executed
in the manner provided by law in that behalf. Section 4 of the Evidence Act indicates the limits
of such a presumption. The relevant part of that section reads:
" Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact
as proved, unless and until it is disproved ".
To put it differently, if a certified copy was executed substantially in the form and in the manner
provided by law, the Court raises a rebuttable presumption in regard to its genuineness.
In this case neither the diary was produced to prove that the procedure prescribed was followed
nor the extract to disclose that the officer made any note of payment. It cannot, therefore, be
said that the certified copy was issued by the patwari in substantial compliance with the
provisions of law governing such issue. If so, it follows that the Court is not bound to draw the
presumption in regard to its genuineness.
Ss. 91 and 92
Mahindra & Mahindra Ltd vs Union Of India & Anr:It is the actual or probable effect of
the trade practice which has to be judged in the light of the various considerations adverted to
by us and there is no question of contradicting, varying, adding to or subtracting from the terms
of the agreement by admitting any extraneous evidence. The meaning of the particular clause of
the agreement is not sought to be altered or varied by reference to the various factors which we
have discussed above, but these factors are required to be taken into account only for the
purpose of determining the actual or probable effect of the trade practice referred to in the
particular clause. The reliance placed by the learned Chief Justice on sections 91 and 92 was,
therefore, quite inappropriate and unjustified and we do not think that the learned Chief Justice
was right in shutting out oral evidence to determine the actual or probable effect of the trade
practices impugned in the case before him.
Tamil Nadu Electricity Board & Anr vs N. Raju Reddiar & Anr: Once a contract is
reduced to writing, by operation of Section 91 of the Evidence Act it is not open to any of the
parties to seek to prove the terms of the contract with reference to some oral or other
documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence
Act where the written instrument appears to contain the whole terms of the contract then
parties to the contract are not entitled to lead any oral evidence to ascertain the terms of the
contract. It is only when the written contract does not contain the whole of the agreement
between the parties and there is any ambiguity then oral evidence is permissible to prose the
other conditions which also must not be inconsistent with the written contract.

Thiagaraja Mudaliar vs Vedathanni This is not a case where oral evidence is sought to be
adduced for showing that Ex. I is enforceable not according to its plain terms, but in a modified
form by something being substituted for or subtracted from or added to any of the terms
expressly mentioned therein. It is only when parol evidence is sought to be let in for proving
such a case, thatSection 92 of the Indian Evidence Act would be a bar and render such oral
evidence inadmissible. What the plaintiff seeks to prove in this case is that there was never any
real disposition at all under Ex. I.Evidence to prove such a plea does not come within the scope
of Section 92. In respect of Section 92 of the Evidence Act, oral evidence is admissible to prove
that an agreement in writing was really no agreement at all but was only a sham as it was not
intended to be operative. The dictum in Woodroffe and Ameer Ali's commentary on the Indian
Evidence Act, namely, "although evidence to vary the terms of an agreement in writing is not
admissible, yet the evidence that there is not an agreement at all is admissible"

Roop Kumar vs Mohan Thedani It is likewise a general and most inflexible rule that wherever
written instruments are appointed, either by the requirement of law, or by the contract of the
parties, to be the repositories and memorials of truth, any other evidence is excluded from being
used either as a substitute for such instruments, or to contradict or alter them. This is a matter
both of principle and policy. It is of principle because such instruments are in their own nature
and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because
it would be attended with great mischief if those instruments, upon which men's rights
depended, were liable to be impeached by loose collateral evidence.

In Section 92 the legislature has prevented oral evidence being adduced for the purpose of
varying the contract as between the parties to the contract; but, no such limitations are imposed
under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberation
omission from Section 91 of such words of limitation, it must be taken note of that even a third
party if he wants to establish a particular contract between certain others, either when such
contract has been reduced to in a document or where under the law such contract has to be in
writing, can only prove such contract by the production of such writing.

Sections 91 and 92 apply only when the document on the face of it contains or appears to
contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a
document which limitation improved by Section 92 relates only to the parties to the document.
If after the document has been produced to prove its terms under Section 91, provisions
of Section 92 come into operation for the purpose of excluding evidence of any oral agreement
or statement for the purpose of contradicting, varying, adding or subtracting from its terms.
Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without
the aid of Section 92, and similarlySection 92 would be inoperative without the aid of Section
91.

The two sections are, however, differ in some material particulars. Section 91 applies to all
documents, whether they purport to dispose of rights or not, whereas Section 92 applies to
documents which can be described as dispositive. Section 91 applies to documents which are
both bilateral and unilateral, unlike Section 92 the application of which is confined to only to
bilateral documents. Both these provisions are based on "best evidence rule". In Bacon's Maxim
Regulation 23, Lord Bacon said "The law will not couple and mingle matters of speciality, which
is of the higher account, with matter of averment which is of inferior account in law". It would
be inconvenient that matters in writing made by advice and on consideration, and which finally
import the certain truth of the agreement of parties should be controlled by averment of the
parties to be proved by the uncertain testimony of slippery memory.

Vimal Chand Ghevarchand Jain & Ors vs Ramakant Eknath Jajoo: Indisputably when a
true character of a document is questioned, extrinsic evidence by way of oral evidence is
admissible. It was open to the respondent to adduce oral evidence in regard to the nature of the
document.

Abdulla Ahmed vs Animendra Kissen Mitter: The evidence of conduct of the parties in this
situation as to how they understood the words to mean can be considered in determining the
true effect of the contract made between the parties. Extrinsic evidence to determine the effect
of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of
the acts done under it is a guide to the intention of the parties in such a case and particularly
when acts are done shortly after the date of the instrument.

State Bank Of India & Anr vs Mula Sahakari Sakhar Karkhana Ltd:The provisions
of Section 92 of the Evidence Act do not apply in the present case, because Defendant 3 is not
attempting to furnish evidence of any oral agreement in derogation of the promissory note but
relying on the existence of a collateral agreement in writing which form parts of the same
transaction as the promissory note . While the High Court proceeded on the basis that Section
92 of the Evidence Act would be attracted in the instant case but despite the same it referred to
the oral evidence so as to find out the purported circumstances surrounding the transaction,
which in our view, was not correct.

As per Sections 91 and 92 of the Indian Evidence Act, 1872 no evidence dehors the terms of
the agreement, whether documentary or oral, can be led by the parties to get out of the express
terms thereof.

R. Janakiraman vs State Of Tamil Nadu: We may cull out the principles relating to section
92 of the Evidence Act, thus :-
i) Section 92 is supplementary to section 91 and corollary to the rule contained in section 91.

ii) The rule contained in section 92 will apply only to the parties to the instrument or their
successors-in-interest. Strangers to the contract (which would include the prosecution in a
criminal proceeding) are not barred from establishing a contemporaneous oral agreement
contradicting or varying the terms of the instrument. On the other hand, section 91 may apply
to strangers also.

iii) The bar under section 92 would apply when a party to the instrument, relying on the
instrument, seeks to prove that the terms of the transaction covered by the instrument are
different from what is contained in the instrument. It will not apply where anyone, including a
party to the instrument, seeks to establish that the transaction itself is different from what it
purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a
contract, and not to disprove the contract itself, or to prove that the document was not intended
to be acted upon and that intention was totally different.

Applying the aforesaid principles, it is clear that the bar with section 92 will apply to a
proceeding inter-parties to a document and not to a criminal proceeding, where the prosecution
is trying to prove that a particular document or set of documents are fictitious documents
created to offer an explanation for disproportionate wealth. Oral evidence can always be led to
show that a transaction under a particular document or set of documents is sham or fictitious or
nominal, not intended to be acted upon.

Bai Hira Devi And Others vs The Official Assignee Of Bombay: The normal rule is that
the contents of a document must be proved by primary evidence which is the document itself in
original. Section 91 is based on what is sometimes described as the " best evidence rule ". The
best evidence about the contents of a document is the document itself and it is the production
of the document that is required by s. 91 in proof of its contents. In a sense, the rule enunciated
bys. 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral
evidence for proving the contents of the document except in cases where secondary evidence is
allowed to be led under the relevant provisions of the Evidence Act.

It is after the document has been produced to prove its terms under s. 91 that the provisions
of s. 92 come into operation for the purpose of excluding evidence of any oral agreement or
statement, for the purpose of contradicting, varying, adding to or subtracting from its terms.
The application of this rule is limited to cases as between parties to the instrument or their
representatives in interest.

Like s. 91, s. 92 also can be said to be based oil the best evidence rule. The two sections,
however, differ in some material particulars. Section 91 applies to all documents, whether they
purport to dispose of rights or not, whereas s. 92 applies to documents which can be described
as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike s.
92 the application of which is confined only to bilateral documents. Section 91 lays down the
rule of universal application and is not confined to the executant or executants of the
documents. Section 92, on the other hand, applies only between the parties to the instrument or
their representatives in interest. There is no doubt that s. 92 does not apply to strangers who are
not bound or affected by the terms of the document. Persons other than those who are parties
to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or
subtract from the terms of the document. It is only where a question arises about the effect of
the document as between the parties or their representatives in interest that the rule enunciated
by s. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely
clear by the provisions of s. 99 itself.

Though it is only variation which is specifically mentioned in s. 99, there can be no doubt that
the third party's right to lead evidence which is recognized by s. 99 would include, a right to lead
evidence not only to vary the terms of the document, but to contradict the said terms or to add
to or subtract from them.

Mian Feroz Shah vs Sohbat Khan: Section 92 of the Indian Evidence Act forbids the
admission or consideration of evidence as to the intentions of the parties, or to contradict the
express terms of the document. No presumption can legitimately be drawn from the fact that
there had been previous transactions between the parties of a similar character.

S. 93::::::::::Keshavlal Lallubhai Patel vs Lalbhai Trikumlal Mills Ltd: If, on a fair

construction, the condition mentioned in the document is held to be vague or uncertain, no
evidence can be admitted to remove the said vagueness or uncertainty. The provisions of s.
93 of the Indian Evidence Act are clear on this point. It is the language of the document alone
that will decide the question. It would not be open to the parties or to the court to attempt to
remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence. Such an
attempt would really mean the making of a new contract between the parties. That is why we do
not think that the appellants can now effectively raise the point that the plea of vagueness
should not have been entertained in the High Court.

S.94:::::::The General Court Martial & Ors vs Col. Aniltej Singh Dhaliwal: The Section will
come into play only when there is document and the language of it has to be considered with
reference to a particular factual situation. That Section will apply only when the execution of the
document is admitted and no vitiating circumstance has been put forward against the same. In
the present case, the document in question is a proceeding of the Board. If at all, it can only be
said that said document contains an admission made by the signatories thereto that they had
checked the materials and the serviceability thereof. It is well settled that an admission can be
explained by the markers thereof. In Naqubai Versus B. Shama Rao AIR 1956 S.C. 593 the
Court held an admission is not conclusive as to the truth of the matter stated therein and it is
only a piece of evidence, the weight to be attached to which must depend upon the
circumstances under which it is made. The Court said that it may be shown to be erroneous or
nature so long as the person to whom it was made has not acted upon it at the time when it
might become conclusive by way of estoppel.

The appellants herein contended before the High Court that the relevant provision of the
evidence Act is Section 92, Proviso 1. The same contention was repeated before us. In our view
neither Section 92 nor Section 94 is attracted in this case. Hence, the view of the High Court
that the oral evidence given by PWs 6, 21 and 24 is inadmissible is totally erroneous.

Ss. 105 onwards:

P.N. Krishna Lal And Ors. Etc. Etc vs Govt. Of Kerala And Anr.: It is the cardinal rule of
our criminal jurisprudence that the burden in the web of proof of an offence would always lie
upon the prosecution to prove all the facts constituting the ingredients beyond reasonable
doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable
doubt. At no stage of the prosecution case, the burden to disprove the fact would rest on the
defence. However, exceptions have been provided in sections 105 and 106 of the Evidence Act,
as stated hereinbefore. Section 113-A of the Evidence Act raises a presumption as to abatement
of suicide by a married woman by her husband or his relatives. Similarly section 114-Araises
presumption of absence of consent in a rape case. Several statutes also provided evidential
burden on the accused.

"Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law
that except in very exceptional classes of cases the burden that lies on the prosecution to prove
its case never shifts and section 106 is not intended to relieve the prosecution of that burden.
On the contrary, it seeks to meet certain exceptional cases where it is impossible, or a
proportionately difficult, for the prosecution to establish facts which are especially within the
knowledge of the accused and which can be proved by him without difficulty or
inconvenience."

It is thus settled law even under general criminal jurisprudence that sections 105 and 106 of the
Evidence Act place a part of the burden of proof on the accused to prove facts which are within
his knowledge when the prosecution establishes the ingredients of the offence charged, the
burden shifts on to the accused to prove certain facts within his knowledge or exceptions to
which he is entitled to. Based upon the language in the statute the burden of proof varies.
However, the test of proof of preponderance of probabilities is the extended criminal
jurisprudence and the burden of proof is not as heavy as on the prosecution. Once the accused
succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his
favour, the burden shifts again on to the prosecution to prove the case against the accused
beyond reasonable doubt, if the accused has to be convicted.

State (Delhi Administration) vs Pawan Kumar Garg: Section 106 is an exception to the
general rule laid in Section 101 of the Evidence Act that the burden of proof basically lies on the
prosecution. Section 106 of Evidence Act surely is not intended to relieve the prosecution of
that duty. This provision is designed to meet certain exceptional situations in which it would be
impossible or disproportionately difficult for the prosecution to establish facts which are
specially in the knowledge of the accused and which he can prove without difficulty or
inconvenience. The word 'specially' used in the section clearly hints to the facts that are pre-
eminently or exceptionally within his knowledge and no other interpretation can be put on the
section or else it will lead to startling conclusions. To us it appears that if the relevant or material
information in a particular case is found to be within the special knowledge of the accused then
alone the provision of Section 106 are attracted and if the fact is such as is capable of being
known by others also and is capable of discovery by diligent and proper investigation, though it
might be difficult to do so, then in such an event the prosecution is not relieved of establishing
the ingredients of an offence alleged.

L.I.C. Of India vs Anuradha: The law as to presumption of death remains the same whether
in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of
the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections
107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule
enacted in Section 107. The human life shown to be in existence, at a given point of time which
according to Section 107 ought to be a point within 30 years calculated backwards from the date
when the question arises, is presumed to continue to be living. The rule is subject to a proviso
or exception as contained in Section 108. If the persons, who would have naturally and in the
ordinary course of human affairs heard of the person in question, have not so heard of him for
seven years the presumption raised under Section 107ceases to operate. Section 107 has the
effect of shifting the burden of proving that the person is dead on him who affirms the
fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden
of proof back on the one who asserts the fact of that person being alive. The presumption
raised under Section 108 is a limited presumption confined only to presuming the factum of
death of the person who's life or death is in issue. Though it will be presumed that the person is
dead but there is no presumption as to the date or time of death. There is no presumption as to
the facts and circumstances under which the person may have died. The presumption as to
death by reference to Section 108 would arise only on lapse of seven years and would not by
applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at
any time short of it. An occasion for raising the presumption would arise only when the
question is raised in a Court, Tribunal or before an authority who is called upon to decide as to
whether a person is alive or dead. So long as the dispute is not raised before any forum and in
any legal proceedings the occasion for raising the presumption does not arise.

If an issue may arise as to the date or time of death the same shall have to be determined on
evidence-direct or circumstantial and not by assumption or presumption. The burden of proof
would lay on the person who makes assertion of death having taken place at a given date or time
in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the
death had occurred on any given date before which the period of seven years' absence was
shown to have elapsed.
Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or
assumption being drawn or made that the person not heard of for seven years was dead on the
date of his disappearance or soon after the date and time on which he was last seen. The only
inference permissible to be drawn and based on the presumption is that the man was dead at the
time when the question arose subject to a period of seven years' absence and being unheard of
having elapsed before that time. The presumption stands unrebutted for failure of the
contesting party to prove that such man was alive either on the date on which the dispute arose
or at any time before that so as to break the period of seven years counted backwards from the
date on which the question arose for determination. At what point of time the person was dead
is not a matter of presumption but of evidence, factual or circumstantial, and the onus of
proving that the death had taken place at any given point of time or date since the disappearance
or within the period of seven years lies on the person who stakes the claim, the establishment of
which will depend on proof of the date or time of death."

Oriental Insurance Company Ltd vs Sorumai Gogoi & Ors: Sections 108 and 109 of the
Evidence Act are founded on the presumption that things once proved to have existed in a
particular state are to be understood as continuing in that state until contrary is established by
evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding
by the death of a person may be an issue. The Section does not say that presumption would be
applicable in all situations. It shall not apply in respect of a person who absconds from justice
nor evade a trial or is otherwise charged for commission of a grave offence as he in that
situation may not communicate with his relations. Furthermore in a case of this nature, it is also
difficult to rely upon a self serving statements made by the claimants that they had not heard of
their son for a period of seven years.

Saroop Singh vs Banto: Section 108 is a proviso to Section 107.There is neither any doubt or
dispute that the date of death of Indira Devi is not certain. By reason of the aforementioned
provision, a presumption of death can be raised. In this case, however, death of Indira Devi is
not in question, the date of death is. In the instant case, both the parties have failed to prove the
date of death of Indira Devi. However, having regard to the presumption contained inSection
108 of the Indian Evidence Act, the Court shall presume that she was dead having not heard of
for a period of seven years by those who would naturally have heard of him, if he had been
alive, but that by itself would not be a ground to presume that she had died seven years prior to
the date of institution of the suit.

It is constantly assumed not perhaps unnaturally that where the period of disappearance exceeds
seven years, death, which may not so. The presumption is the same if the period exceeds seven
years. The period is one and continuous, though it may be divisible into three or even four
periods of seven years. Probably the true rule would be less liable to be missed, and would itself
be stated more accurately, if, instead of speaking of a person who had not been heard of for
seven years, it described the period of disappearance as one of not less than seven years."

Gurdit Singh vs Munsha Singh: Under section 108 of the Evidence Act, the precise time of
the death is not a matter of presumption but of evidence and the onus of proving that the death
took place at any particular time within seven years lies upon the person who claim a right for
the establishment of which the proof of that fact is essential.

Darshan Singh vs Gujjar Singh:There is no presumption of exact time of death under Section
108 of the Evidence Act and the date of death has to be established on evidence by person who
claims a right for establishment of which that fact is essential.

Section 118

Rameshwar v. State of Rajasthan: i) Criminal - omission to take oath - Section 118 of

Indian Evidence Act - accused convicted of raping girl of seven years of age - oath not
administered to girl as she did not understand nature of oath - as per Section 118 omission to
take oath does not affect admissibility of evidence - such omission only affects credibility of
witness.(ii) Corroboration of evidence - Sections 8, 114, 133 and 157 of Indian Evidence Act -
whether testimony of complainant in rape cases requires corroboration required - raped
woman is not accomplice - in such cases rule regarding advisability of corroboration should be
present to mind of judge - he may dispense with corroboration in particular circumstances of
case if it is safe to do so - corroboration not essential for conviction in every case - as matter
of prudence rule of corroboration ought to be kept in mind - in cases where corroboration is
required it is not necessary that there ought to be independent confirmation of every material
circumstances - all that is required is that there should be some additional evidence rendering
complainant's evidence probable - corroboration must come from independent source -
independent evidence must reasonably connect accused with crime thereby confirming
complainant's testimony - corroboration need not be direct evidence that accused committed
crime - circumstantial evidence of accused's connection with crime would be sufficient
corroboration.

The first point taken before us related to the admissibility of the evidence of the girl herself.
Her age was stated to be seven or eight years at the time of the examination by the learned.
Assistant Sessions Judge who recorded her testimony. He certified that she did not
understand the sanctity of an oath and accordingly did not administer one to her. He did not
certify that the child understood the duty of speaking the truth. The proviso to section 5 of
the Indian Oaths Act, 1873, prescribes that-"Provided that where the witness is a child under
twelve years of age, and the Court or person having authority to examine such witness of
opinion that, though in understand, the duty of speaking the truth, he does not understand the
nature of an oath or affirmation the foregoing provisions of this section and the provisions of
section 6 shall not apply to such witness, but in any such case the absence of an oath or
affirmation shall not render inadmissible any evidence given by such witness not affect the
obligation of the witness to state the truth." The question is whether the opinion referred to
must be formally recorded or whether it can be inferred from the circumstances in which the
deposition was taken. The proviso quoted above must be read along with section 118 of the
Evidence Act and section 13 of the Oaths Act. In my opinion, an omission to administer an
oath, even to an adult, goes only to the credibility of the witness and not his competency. The
question of competency is dealt with in section 118. Every witness is competent unless the
Court considers he is prevented from understanding the questions put to him, or from giving
rational answers by reasons of tender years, extreme old age, disease whether of body or mind,
or any other cause of the same kind. It will be observed that there is always competency in fact
unless the court considers otherwise. No other ground of incompetency is given, therefore
unless the Oath as Act adds additional grounds of incompetency it is evident that
section 118 must prevail.

The first question is whether the law requires corroboration in these cases. Not the Evidence
Act nowhere says so. On the other hand, when dealing with the testimony of an accomplice
though it says in section 114 (b) that the Court may presume that an accomplice is unworthy
of credit unless he is corroborated in material particular, it makes it clear in section 133 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."

Madhusudan Das v. Narayani Rai: When there is a conflict of oral evidence on any matter
in issue and its resolution turns upon the credibility of the witnesses, the general rule is that
the appellate court should permit the findings of fact rendered by the trial court to prevail
unless it clearly appears that some special feature about the evidence of a particular witness has
escaped the notice of the trial court or there is a sufficient balance of improbability to displace
its opinion as to where the credibility lies. In this connection, reference may usefully be made
to W.C. Macdonald v. Fred Latimer AIR 1929 P.C. 15 where the Privy Council laid down that
when there is a direct conflict between the oral evidence of the parties, and there is no
documentary evidence that clearly affirms one view or contradicts the other, and there is no
sufficient balance of improbability to displace the trial court's findings as to the truth of the
oral evidence, the appellate court can interfere only on very clear proof of mistake by the trial
court. In Watt v. Thomas L.R. 1947 A.C. 484 it was observed: "...it is a cogent circumstance
that a judge of first instance, when estimating the value of verbal testimony has the advantage
(which is denied to courts of appeal) of having the witnesses before him and observing the
manner in which their evidence is given,"

It was found in favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain
Singh and Ors. MANU/SC/0002/1950 [1950]1SCR781 . It seems to us that this approach
should be placed in the forefront in considering whether the High Court proceeded correctly
in the evaluation of the evidence before it when deciding to reverse the findings of the trial
court. The principle is one of practice and governs the weight to be given to a finding of fact
by the trial court. There is, of course no doubt that as a matter of law if the appraisal of the
evidence by the trial court suffers from a material irregularity or is based on inadmissible
evidence or on a misreading of the evidence or on conjectures and surmises the appellate
court is entitled to interfere with the finding of fact.

Virendra v state of up: The Indian Evidence Act, 1872 does not prescribe any particular age
as a determinative factor to treat a witness to be a competent one. On the contrary, Section
118 of the Evidence Act envisages that all persons shall be competent to testify, unless the
court considers that they are prevented from understanding the questions put to them or from
giving rational answers to these questions, because of tender years, extreme old age, disease,
whether of mind, or any other cause of the same kind. A child of tender age can be allowed to
testify if he or she has intellectual capacity to understand questions and give rational answers
thereto.

Golla yelugu govindu: The evidence of a child witness is not required to be rejected per se;
but the Court as a rule of prudence considers such evidence with close scrutiny and only on
being convinced about the quality thereof and reliability can record conviction, based thereon.
(See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1). In Dattu Ramrao Sakhare v.
State of Maharashtra (1997 (5) SCC 341) it was held as follows: A child witness if found
competent to depose to the facts and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath the evidence of a child witness can be
considered under Section 118 of the Evidence Act provided that such witness is able to
understand the answers thereof. The evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only precaution which the Court should bear
in mind while assessing the evidence of a child witness is that the witness must be a reliable one
and his/her demeanour must be like any other competent witness and there is no likelihood of
being tutored.

Acharaparambath Pradeepan & Anr. ... vs State Of Kerala: In terms of the said provision,
therefore, all persons shall be competent to testify unless by reason of tender years, the court
considers that they are incapable of understanding the questions put to them and of giving
rational answers. It is for the Judge to satisfy himself as regards fulfillment of the requirements
of the said provision. The opinion of the learned Judge had been recorded and, thus, it satisfies
the test laid down by this Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan [AIR
1952 SC 54].

Ratansingh Dalsukh Bhai Nayak v St of Gujrat: In Dattu Ramrao Sakhare v. State of

Maharashtra it was held as follows:

"A child witness if found competent to depose to the facts and reliable one such evidence could
be the basis of conviction. In other words even in the absence of oath the evidence of a child
witness can be considered under Section 118 of the Evidence Act provided that such witness is
able to understand the answers thereof. The evidence of a child witness and credibility thereof
would depend upon the circumstances of each case. The only precaution which the Court
should bear in mind while assessing the evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any other competent witness and there is no
likelihood of being tutored".

The decision on the question whether the child witness has sufficient intelligence primarily
rests with the trial Judge who notices his manners, his apparent possession or lack of
intelligence, and said Judge may resort to any examination which will tend to disclose his
capacity and Intelligence as well as his understanding of the obligation of an oath. The
decision of the trial court may, however, be disturbed by the higher Court if from what is
preserved in the records, it; is clear his conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live in a world of make beliefs.
Though it is an established principle that child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shake and moulded, but it is also an accepted norm
that, if after careful scrutiny of their evidence the Court comes to the conclusion that there is
an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child
witness.

St of Rajasthan v omprakash: The High Court seems to have overlooked that it had been
established on record that at the time of the incident. Om Prakash was alone at home. When
such an act is done, the natural tendency is not to talk about it to others but, to an extent
possible, hide it. There was nothing unnatural for other villagers not visiting the house of
P.Ws. 1 and 2. Being a child witness, we have examined the testimony of P.W. 5 and that of
her mother with utmost care and caution. The High Court has clearly committed a serious
illegality in assuming that in natural course of events, if rape had been committed, the young
child girl and her mother would have shouted so as to collect others and they would have
visited her house. The prosecutrix was unconscious. There was no question of prosecutrix
shouting as assumed by the High Court. Too much was made by the High Court on account
of non-examination of persons other than the family members. The aspect of the non-
examination was given undue importance without having regard to the contextual facts. Was
relied on state of Up v Asok Dixit

Krishna Kahar v E:
Dhanna v state: Another mistake committed by the learned Sessions Judge was that before P.
w, 2 Rajaram, a lad of 12 years of age, made his statement he simply cautioned him to tell the
truth and thereafter without satisfying himself, he proceeded to record the statement. Under
Section 118, Evidence Act, it is imperative that the Court should test the competency of a
child witness before examining him. It should indeed test his intellectual capacity by putting a
few simple and ordinary questions and also judge the competency of the witness during the
course of his examination and say something to that effect after the statement is over so that
the appellate court may feel satisfied as to the capacity of the child to give evidence

Section 120:

E v Nga Po Min :

Nagoraj alias Kumar alias Anand alias Selvan v state of Karnataka: The principal
objection raised on behalf of the accused is that the statement is hit by section 122 of the
Indian Evidence Act, which provides for bar as to admissibility in evidence of communication
made during the subsistence of the marriage and the same cannot be disclosed even, unless the
person who made it or his representative in interest consents. The exception made is only in
suits between married persons or proceedings in which one married person is prosecuted for
any crime committed against the other.

The principle underlying Section 122 of the Evidence Act would make it clear that though
Section 120 of the Evidence Act enables a spouse to tender evidence in a case against the
other spouse except in litigation between themselves either arising out of the marital relations
or in a criminal prosecution and in all other cases bars the disclosure of any statements made
by one spouse to another during subsistence of the marriage. The privilege under
Section 122 of the Evidence Act extends to all communications made to a spouse during
subsistence of marriage by the other spouse. Such communications need not be confidential
and applies to all communications. The privilege is not to the witness, but to the spouse who
made the communication and therefore the witness cannot waive it at his or her will nor can
the Court permit disclosure even if he or she is willing to do. The protection extends only to
communication, that is utterances and not acts. The Courts have taken the view that before
admitting evidence under Section 122 the party against whom it has to be given must be asked
by the Court his consent of evidence being given. The consent must be express and cannot be
implied. It is incumbent upon the Court to ask whether he or she would consent to the
evidence being given. It makes no difference that no objection was raised by the accused at the
trial. In this case though no objection had been raised at the time when PW-17 Honnamma
tendered her evidence in relation to the extra judicial confession said to have been made by
the said witness, the learned Counsel for the prosecution is not in a position to get over this
difficulty of not obtaining the consent of the accused. However, he sought to rely upon certain
decisions which have no bearing on the point at all. The law being very clear that
communications between husband and wife cannot be permitted to be disclosed unless the
spouse other than the one in the witness box has consented to such disclosure. In this case
such consent is absent. Therefore, the evidence tendered by PW-17 Honnamma in so far as it
relates to the disclosure of the statements made to her by the accused is concerned is held to
be inadmissible

Section 121:

District Judge, Vaghela v Kantibai Jethabai: (b) Moreover, in view of the provisions of
Section 121 of the Evidence Act, no Magistrate can be compelled to answer any questions as
to his own conduct as such Magistrate. Therefore also, the applicants cannot be permitted to
adopt this course. In above view of the matter, this additional ground is also required to be
rejected.

Banke Bihari Lal v Mahadeo Prashad:

Section 126:

Aisha Bi v Pir Khan Saheb:

Dayashankar Dubeyv Suhas Kumar:

Municipal Corporation of Greater Bombay v Vijay Metal Works, Bombay:

BP Bhaskar v BP Shiva:

PR Ramakrishnan v Subramma Shastriyal: The making of imputation involves the

translation of the imputation into some form. If the libel is in writing, the making of the libel
is incomplete without writing it down. The author himself can be its scribe or it can be a
 different person. Dictation by a lawyer to his clerk is part of his professional exercises and
merely because the clerk in the course of his professional work heard it, cannot amount to
factual publication. The privilege attached to the professional communications between a
lawyer and his client is further fortified by providing Section 127 of the Evidence Act as per
which the ban against disclosure is extended to clerks and servants of the lawyer. The clerk of
a lawyer, in the professional sphere, has to maintain confidence regarding matters conveyed to
him, if it relates to communication between the counsel and the client. If a notice, or a letter
or even a pleading is dictated to the clerk by a lawyer, it does not, in practical sense go beyond
the lawyer's professional range. The fact that the clerk, as a different human being, comes to
know of the contents of the notice cannot make it publication to a third person.

S. 118: Krishna KAhar v Emperor: The trying Magistrate under sec. 118 of the Evidence Act has a
discretion to decide whether a child witness is or is not qualified to be a witness by reason of understanding or lack
of understanding and that discretion must be exercised in a judicial manner. Although it cannot be laid down as
a broad proposition that, the Court should form an opinion as to the competency of such witness to depose before
the actual examination of the witness by interrogating him, the Court should question the witness for the purpose
of ascertaining his power of understanding and giving rational answers when it appears necessary to do so.
S.121Banke Behari Lal v Mahadeo Prasad: Section 121 of the Indian Evidence Act which
permits a superior court to question the inferior court with regard to the conduct of the
Presiding Officer of that court and with regard to the knowledge which might have been
derived by such Presiding Officer in that capacity. Section 121 of the Indian Evidence Act also
thus empowers an appellate court to question the trial court on matters relating to the
proceedings before him and the answers of such questions are certainly to be taken into account
when deciding the appeal because reference to proceedings is permitted under the provisions of
the Code of Civil Procedure.

S121,125 Munna Singh Tomar v State of M.P. The law relating to “privilege” has to be read in S.
121 et. seq, of Evidence Act. We do not read an F.I.R. to be legally clothed in those provisions
with the status of a “privileged” document in any manner. The material Section indeed is S. 125,
but scope thereof is clear and narrow. It secures privilege for a “Magistrate or Police Officer” to
refuse to “say whence he got any I information as to the commission of any offence.” We have
no doubt that the “privilege” contemplated under S. 125 is merely in respect of the source of
the information, and not to the content of the information.
Q. E. v Donaghue: S. 122 –does not prevent communication being proved by evidence of third
person

Norendra Nath Mozumdar v The State Exception under 122: unless the person who made it or
his or her representative-in-interest consents, except in suit between married persons or
proceedings in which one married person is prosecuted for any crime committed against the
other. The present case before us does not come within any of these exceptions, & is not a
‘proceeding in which one married person is prosecuted for crime committed against the other’.
Here is no crime committed by the husband against the wife. That portion of the language in
Section 122 of the Evidence Act obviously refers to such crimes as assault, or bodily injuries,
wrongful confinement etc. by one of the spouses against the other. There may be also other
forms of crime but the gist of this exception is that it must be the crime committed by one
married person against the other. The question whether the pistol was in the possession of the
husband or wife cannot, in my view be said to involve any crime committed by one against the
other. The protective provision u/s. 122, Indian Evidence Act is based on the wholesome
principle of preserving domestic peace & conjugal confidence between the spouses during
coverture. The exceptions also are based on common sense. Such protection obviously cannot
exist in suits between married persons when one of the spouses is litigating against the other or
when one of the spouses commits any crime against the other, for to prevent disclosure in that
event will be to defeat justice.

Ram Bharosey v State of up: Reference to acts and conduct of appellant- not inadmissible under
s 122- it is not any communication made by him to his wife

M.C. Verghese vs T.J. Ponnan Section 122 of the Evidence Act only prevents disclosure in
giving evidence in court of the communication made by the husband to the wife. That does not,
however, mean that no other evidence which is not barred under s. 122 of the Evidence Act or
other provisions of the Act can be given. s. 122of the Indian Evidence Act does not prohibit
proof in the Court by the complainant of the letters written by Ponnan to his wife. If the
complainant seeks to support his case only upon the evidence of the wife of the accused, he
may be met with the bar of s. 122 of the Indian Evidence Act. Whether he will be able to prove
the letters in any other manner is a matter which must be left to be determined at the trial. If the
defamation case were to proceed and 'the wife' should appear as a witness to
 give evidence about the communication made to her by her husband, the
communication could not be deposed to unless the first respondent
consented because, if the marriage was subsisting at the time when the communication was
made the bar prescribed by s. 122 would operate. But the letters were in appellant's
possession and were available for being tendered in evidence, and he could prove the letters in
any other manner.
Fateh Singh v State: It is true that under Section 120 of the Indian Evidence Act, in a criminal
proceeding the wife would be a competent witness against the husband but this alone may not
save the situation for the prosecution in this case. Kamlesh is certainly a competent witness to
beexamined in the trial against her husband. But the provisions of Section 122 of the Indian
Evidence Act were absolute and the learned Sessions Judge should not have permitted Kamlesh
to disclose the communications she received from Fateh Singh, such communications under the
law may be of any nature and need not necessarily be confessions. In this connection the law
has clearly been enunciated by the Supreme Court in the case of Ram Bharose v. State of U.P. as
reported in AIR 1954 SC 704 : (1954 Cri. LJ. 1755) indicating that communications made to his
wife by the accused were inadmissible while the evidence of the wife on other points excepting
the communications may be admissible.
Ss. 126, 127 and 128,129:
Daya Shanker Dubey v Subhas Kumar, D.M. Allahabad : s 126: privilege can be claimed only
when the Advocate or the clients are asked to disclose any professional communication between
them. Such a privilege, however, cannot be claimed in respect of a document which has already
come in possession of the opposite party and has been filed on record.

Municipal Corporation Of Greater Bombay vs Vijay Metal Works : Ss. 126 and 129 are
supplementary to each other

a salaried employee who advises his employer on all legal questions and also other legal matter
would get the same protection as others under Sections 126 and 129 of the Evidence Act and
even otherwise these communications are properly covered by these sections

B.P. Bhaskar vs B.P. Shiva As between advocate and his client, principles of agency would apply
depending on the context. It is true that an advocate is not a mere agent of a client, for, duties
of the advocate are far greater and far more sublime than that of a mere agent. But there can be
functions which an advocate may have to perform for his client which may fall within the
 amplitude of principal and agent relationship. Receiving a reply by the advocate on behalf of his
client is one of the instances where the function of an agent is involved. The receipt of the reply
by the advocate is, in effect, receipt of the client himself. It is one of the recognised modes of
communicating to the client. The confidential communications between client and advocate
have protection from compulsory disclosure as envisaged in S. 129 of the Evidence Act. Neither
the advocate nor the client is under any obligation to spell it to a third person. The interdict
provided in Sections 126 and127 and the prohibition of communication embodied in S. 129 of
the Evidence Act are intended to keep the communications confidential as between the
advocate and client. In ordinary law of agency the above protection is not afforded either to the
agent or to the principal. So the relationship between the lawyer and client is far more salubrious
than the ordinary principal and agent relationship. Yet the idea of agency inheres in it.

PR Ramakrishnan v Subramma Shastriyal: Dictation by a lawyer to his clerk is part of his

professional exercises and merely because the clerk in the course of his professional work heard
it, cannot amount to factual publication. The privilege attached to the professional
communications between a lawyer and his client is further fortified by providing Section 127 of
the Evidence Act as per which the ban against disclosure is extended to clerks and servants of
the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence
regarding matters conveyed to him, if it relates to communication between the counsel and the
client

Ayeasha Bi v Peerkhan Sahib: This rule however covers only the private and confidential
communications between the client and the lawyer and which cannot be disclosed either by
means of direct questions or elicited by means of indirect tactics. It does not however preclude
the lawyer from replying to the opposite party who wants to proceed against him from stating
that what all he did was in pursuance of the instructions given to him and not on his own
volition. The rule under Section 126 of the Evidence Act does not require that a lawyer should
vicariously make himself responsible for an offence which he never committed and in any event
he will not be advancing his client's cause by remaining mute since in that case it is a fair
inference to draw that what he did was either in violation or in excess of the instructions given
to him or that he and the client conspired to defame this complainant and in which event both
the lawyer and the client would find themselves in the dock, ranged as co-accused. So looked at
from any point of view the rule under Section 126 of the Evidence Act cannot cover the case of
 a lawyer acknowledging a notice given to him and replying that what he did was only in
pursuance of his instructions and nothing more.

Mrs. Edna May Olivia Hardless vs Mr. Harold Richard Hardless An interesting point arose
during the case. All the doctors claimed privilege, alleging that the relationship of doctor and
patient were confidential. The law on this matter is clear. Section 126,Evidence Act, gives
protection to a barrister, attorney, pleader or vakil with regard to communications made to him
in the course of his employment as such by a client. There is no protection afforded by
the Evidence Act to a doctor as such. When a doctor is called to give evidence he is ' in the
same position as any other person not exempted by the Act. It is his duty to assist the Court in
every way possible and to disclose to the Court all the information in his possession relevant to
the matter in issue. I therefore had to disallow the plea of the doctors that they were entitled to
withhold their evidence in this case.

[S.130] Imrat Chamar v Sibdhari Pandey::: A deed of lease is the title deed of the lessee, and he
cannot, therefeore, be compelled to produce it.

(S 130) Davies v Waters: With respect to the production of title deeds, the protection has been
held applicable to the case of trustees and mortgagees, who cannot be compelled either to
produce the deeds of the cestuis que trust, or mortgagors or to give parol evidence of their
contents.

It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but
that he is compellable to give parol evidence of its contents; that would give him, or rather his
client through him, merely an illusory protection, if he happens to know the contents of the
deed, and would be only a roundabout way of getting from every man an opportunity of
knowing the defects there may be in deeds and titles of his estate.

Here, a person having possession of a deed in the character of trustee to the defendant, had first
obtained a knowledge of its contents while acting as his solicitor, the knowledge thus obtained
was held to be privileged.

S. 132::::::

Potaraju Venkata Reddy vs Emperor: As the section deals with criminating answers, the
protection given by the proviso is limited to criminal proceedings. But if we are to look to the
statute law of this country alone, the result would be that, unless a witness would prove good
 faith, he would, if compelled to answer, be protected from a prosecution in respect of a
defamatory statement, but he would not be protected against a suit for damages.

Emperor v Ghulam Mustafa: pg no 556 avtar singh

Hira H. Advani vs State Of Maharashtra If theIndian Evidence Act is 'a complete Code
repealing all rules of evidence not to be found therein, there is, in our opinion, no scope for
introduction of a rule of evidence in criminal cases unless it is within the four corners of s.
132 or some other provision of the Evidence Act. As the Act does not apply to interrogations
by a Customs Officer exercising powers under s. 171-A of the Sea Customs Act s. 132 of the
Evidence Act cannot be attracted.

A Customs Officer is not a court and therefore statements made before him do not
attract the provisions of s.132 of the Evidence Act or Art. 20(3)of the Constitution.
Laxmipat Choraria vs State Of Maharashtra In India the privilege of refusing to answer has
been removed so that temptation to tell a lie may be avoided but it was necessary to give this
protection. The protection is further fortified by Art. 20(3) which says 'that no person accused
of any offence shall be compelled to be a witness against himself. This article protects a person
who is accused of an offence and not those questioned as witnesses. A person who voluntarily
answer questions from the witness box waives the privilege which is against being compelled to
be a witness against himself, because he is then not a witness against himself but against
others. Section 132 of the Indian Evidence Act sufficiently protects him since his testimony
does not go against himself. In this respect the witness is in no worse position than the accused
who volunteers to give evidence on his own behalf or on behalf of a coaccused. There too the
accused waives the privilege conferred on him by the article since he is subjected to cross-
examination and may be asked questions incriminating him.

Section 134:

Narayan dutt v. state of WB :. Section 134 of the Evidence Act clearly lays down that no
particular number of witnesses shall in any case be required for the proof of any fact. The Court
is required to assess whether prosecution could establish the guilt of an accused person on the
basis of the quality of the evidence. It is not necessary that any minimum number of witnesses is
required to be examined for that purpose. P.W. 3 was declared hostile by the prosecution but his
evidence that he “did not go to Yunus as he was lying at a distance from the metallic road” plays
a very significant role in completion of the chain of events.
Munna v. state of MP: Section 134 of the Evidence Act does not require any particular
number of witnesses to prove any fact. In law quality and not the quantity matters. Conviction
can be based on sole evidence of a witness if he is found trustworthy
Mohd. Kamaleedin v. state of assam: As per section 134 of the Evidence Act, 1872 (for
short, ‘the Act’) no particular numbers of witnesses shall, in any case, be required for the proof
of any fact. It is settled law that it is not the number of witnesses but the “quantity” of evidence
that counts. The plurality evidence is not at all required for bringing home the guilt of the
accused and it is the quantity of the evidence which is important in the appraisal of evidence.
Even the testimony of single witnesses can be sufficient to prove the guilty of the accused if
found entirely reliable. Evidence has to be weighed and not counted.
Duttarey kundalik v. state of Maharashtra :: Evidence Act, S. 134 — Plurality of evidence
— Rule of prudence — Not an inflexible requirement of law. Plurality of evidence is only a
rule of prudence and may be necessary in the given facts of a case and not an inflexible
requirement of law.
But the time honoured rule and a rule of great wisdom is that evidence is to be weighed and
not counted. It is this rule which is incorporated in section 134 of the Indian Evidence Act
which provides that “no particular number of witnesses shall in any case be required for the
proof of any fact.”

Surjit gulab sohatrey v state of mahatashtra

Evidence Act, S. 134 — It is permissible for a Court to sustain a conviction on

evidence of a solitary eye-witness in view of settled principle that evidence is to be
weighed and not counted — But same can only be done if evidence is cogent, implicit,
reliable and in tune with probabilities.

in view of the provisions contained in section 134 of the Indian Evidence Act which provides
that “No particular number of witnesses shall in any case be required for the proof of any
fact”, it is permissible for a Court to record/sustain a conviction on the evidence of a solitary
eye-witness. This provision is based on the principle that evidence is to be weighed and not
counted. But the same can only be done if evidence is cogent, implicit, reliable and in tune
with probabilities Section 133:
Nawal kishore rai v E: The contradiction between the rule that one approver cannot
corroborate another and the view that in certain circumstances the evidence of two may be
stronger than that of one is more apparent than real, for in a case such as that contemplated it
is not the oath of one rogue that reinforces the oath of another. It is the detailed
correspondence of the stories of observers independent of each other that provides the
corroboration of each. The reinforcement of the testimony thus provided is entirely
independent of the veracity of the witnesses concerned. The same principle is applicable to the
evidence of all witnesses, and in a case of the sort I have described the evidence of several
persons is worth more than that of one, who, however honest, may always fall into error
through mistakes of observation or lapse of memory

Jagannath v emperor: a Full Bench of the Calcutta High Court in Queen v. Okhoy Coomar
Shaw (1) decided that a partner, who dishonestly misappropriates or converts to his own use
any of the partnership property with which he is entrusted or which he has dominion over, is
guilty of an offence under S. 405, and this Full Bench case is quoted with approval in a case of
our own High Court, Emperor v.Lalloo (2). I agree therefore with his Lordship the Chief Justice
in the view that there is nothing in S. 405 to prevent its being applied to a partner. Especially
this is the case where, as here we have a capital partner and a working partner. A capital
partner is one who supplies the capital for the working partner and it seems to me that in such
a case it can certainly be said that the working partner is entrusted with dominion over the
capital partner's property. The position in law seems to be this that the working partner, as the
accused in this case was, was entitled only to a share in the profits and had no interest in the
capital. Therefore he was an agent and trustee for the capital partner's capital and was entitled
only to the profits after they had been ascertained. Speaking strictly therefore, according to the
section it can be said that if he used for himself any of the property in his hands which could
not be looked upon as profits, he was misappropriating it. Whether of course the
misappropriation is criminal or not depends naturally on the intention with which it was done.
But I cannot agree with the learned counsel on behalf of the accused that under S. 405 there
can be no misappropriation of partnership property on the ground that the partner cannot be
looked upon as a person entrusted with partnership property.

Ghulam Rasul v Crown: That when there is evidence proving that a person accused of
killing or injuring another acted in the exercise of the right of private defence the Court may
 not ignore that evidence and convict the accused merely because the latter set up a different
defence and denied having committed the assault.

Bhuboni sahu v king: held that whilst it is not illegal to act upon the uncorroborated
evidence of art accomplice it is a rule of prudence so universally followed as to amount almost
to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is
corroborated in material respects so as to implicate the accused; and further that the evidence
of one accomplice cannot be used to corroborate the evidence of another accomplice. The law
in India, therefore, is substantially the Same on the subject as the law in England, though the
rule of prudence may be said to be based upon the interpretation placed by the Courts on the
phrase "corroborated in material particulars" in illustration (b) toSection 114.

R v Baskerville: Where on the trial of an accused person evidence is given against him by an
accomplice, the corroboration which the common law requires is corroboration in some
material particular tending to show that the accused committed the crime charged. It is not
enough that the corroboration shows the witness to have told the truth in matters
unconnected with the guilt of the accused.

Section 134

Narayan dutt v. state of WB :. Section 134 of the Evidence Act clearly lays down that no
particular number of witnesses shall in any case be required for the proof of any fact. The Court
is required to assess whether prosecution could establish the guilt of an accused person on the
basis of the quality of the evidence. It is not necessary that any minimum number of witnesses is
required to be examined for that purpose. P.W. 3 was declared hostile by the prosecution but his
evidence that he “did not go to Yunus as he was lying at a distance from the metallic road” plays
a very significant role in completion of the chain of events.
Munna v. state of MP: Section 134 of the Evidence Act does not require any particular
number of witnesses to prove any fact. In law quality and not the quantity matters. Conviction
can be based on sole evidence of a witness if he is found trustworthy
Mohd.Kamaleedin v. state of assam: As per section 134 of the Evidence Act, 1872 (for short,
‘the Act’) no particular numbers of witnesses shall, in any case, be required for the proof of any
fact. It is settled law that it is not the number of witnesses but the “quantity” of evidence that
counts. The plurality evidence is not at all required for bringing home the guilt of the accused
and it is the quantity of the evidence which is important in the appraisal of evidence. Even the
testimony of single witnesses can be sufficient to prove the guilty of the accused if found
entirely reliable. Evidence has to be weighed and not counted.
Duttareykundalik v. state of Maharashtra :: Evidence Act, S. 134 — Plurality of evidence
— Rule of prudence — Not an inflexible requirement of law.Plurality of evidence is only a
rule of prudence and may be necessary in the given facts of a case and not an inflexible
requirement of law.
But the time honoured rule and a rule of great wisdom is that evidence is to be weighed and
not counted. It is this rule which is incorporated in section 134 of the Indian Evidence Act
which provides that “no particular number of witnesses shall in any case be required for the
proof of any fact.”

Surjitgulabsohatrey v state of mahatashtra

Evidence Act, S. 134 — It is permissible for a Court to sustain a conviction on

evidence of a solitary eye-witness in view of settled principle that evidence is to be
weighed and not counted — But same can only be done if evidence is cogent, implicit,
reliable and in tune with probabilities.

in view of the provisions contained in section 134 of the Indian Evidence Act which
provides that “No particular number of witnesses shall in any case be required for the proof of
any fact”, it is permissible for a Court to record/sustain a conviction on the evidence of a
solitary eye-witness. This provision is based on the principle that evidence is to be weighed and
not counted. But the same can only be done if evidence is cogent, implicit, reliable and in tune
with probabilities

Section 137

Ramchandra v. Vitthal

Indian Evidence Act, 1872 — Chapter 10 — Sections 135 to 138 — Examination of

Witnesses — Section 137 -Cross Examination — Meaning of

Held :
 Examination of a witness by the adverse party is called the cross examination. It is the most
effective of all the means for extracting truth and exposing false hood. It is a greatest legal
engine ever invented for discovery of truth. It is the only mode to test the veracity of the
statements given by a witness in examination-in-chief relating to an occurrence, which took
place with him or in his presence. It is not an empty formality but a very valuable right, and a
weapon in the armory of the adverse party to destroy the case of the opposite party and to
substantiate his defence.

Further Held :

The basic concept is fair play in action. It must depend upon the particular lis, if there be
any, between the parties. If the credibility of a person who has testified or given some
information is in doubt, or if the version or the statement of the person who has testified is in
dispute, right of cross examination must inevitably form part of fair play in action. Where there
is no lis regarding the facts there is no requirement of cross examination to be fulfilled to justify
fair play in action.

[B] Indian Evidence Act, 1872 — Section 138 — Order of Cross Examination —
Section 137 — Cross Examination Purpose or Object of

Held :

The object of cross examination is two fold. Firstly, to weaken, qualify or destroy the case of
the opponent. To 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-examining party. Secondly, to
establish the party's own case by means of his opponents witnesses. It may be either by way of
admissions or by way of eliciting facts which would prove the case of the cross examining party.
It is like a double edged sword. Properly used it may destroy the opponents case and support
the cross examining party. Otherwise it may destroy the case of the cross examining party. It is
an art which requires great skill. It can be acquired only by training and experience.

[C] Indian Evidence Act, 1872 — Right to Cross-examine — Condition precedent for
giving an opportunity to cross-examination
Held :

The right of cross examination is that of the adverse party. — The condition precedent for
giving an opportunity to cross examine a opposite party is that, either from the pleading of the
parties or in the evidence, there should exist conflict of interest between the parties. It should be
shown that the evidence on record adversely affect his interest and that his interest is adverse to
the interest of the party who has given evidence and therefore, he is in the position of an
adverse party. — Once it is demonstrated that the interest is common, there is no conflict of
interest, and no evidence is adduced affecting the interest of the defendant, then there is no
question of giving an opportunity to such a party to cross examine the opposite party.

Indore rolling mills v state of MP

Evidence Act, S. 137 — Cross-examination — Cross-examination is not mere form of

procedure but is a matter of substance — Party is required to put its version in the cross-
examination to assail the correctness of the statement made.

Salagram v emperor

Jayakar v. State

EVIDENCE ACT, 1872 (Central Act No. 1 of 1872) Section 138 — cross-examination of
witnesses normally to follow examination-in-chief — where accused demands postponement
of cross-examination of any witnesses, Court's power stated — see Section 231(2) of Cr. P.C.

The cross-examination of every witness should follow his examination-in-chief according to

Section 138 of the Evidence Act of 1872. It is both irregular and inconvenient to allow all the
witnesses to be examined one day and to reserve the cross-examination to a subsequent date.
The accused is, therefore, not entitled as of right to postponement of the cross-examination.
The Court may, however, grant such a postponement on reasonable grounds as, for instance,
where the counsel is unprepared, or where the accused was undefended the first day and put
only a few questions and applied the next day for cross-examination by his pleader explaining
why he was not engaged before or where the counsel appointed to defend the accused, who
had no instructions till then, requested the Court to postpone the cross-examination of the
prosecution witnesses till the next day after the examination-in-chief were over.
Ramchandra dixit v arvind kumar jain

Srimul v. Annapurna devi rani kr. Awasthi

a) Evidence Act, S. 111 — Burden of proof on person enjoying good faith and active
confidence.

In the cases of burden of proving good faith where one party is in a position of active
confidence of another, the courts of equity have invariably placed the burden of sustaining the
transaction upon the party benefited by it, requiring him to show that it was of an
unobjectionable character and one which it ought not to disturb. The principle is of universal
application and must not be regarded as a technical rule of English law. 1923 AC 673 PC and
AIR 1930 PC 139, Ref.

(Paras 8 to 10)

(b) Evidence Act, SS. 137, 138 and 146 — Cross examination — Not a mere formality
— One is required to put one's own version to opponent in cross-examination.

Matter of cross-examination is not a mere empty formality, but, one is required to put its
own case in cross-examination otherwise a version of the witness has to be taken as
unchallenged. It is the duty to put one's own version to opponent in cross-examination
otherwise deposition of a witness cannot be discredited.

Ajay kr. Ghosh v. state

Ss 137-139-cross examination-right of- held, is a statutory right and it has to be protected

Rajni devi v. narottam

Vijay v. saraswati

Indian) Evidence Act (1872), Sections 137 and 138, Cross examination right of who can
exercise, Scope, Practice/Cross Examination, Scope — Right of examining witness is confined
only to a party, who has brought action and the adversary party — In this case, since it is not
the case of the petitioner that P.W.1's case is adverse to that of her, the Court below has rightly
disallowed the cross examination on behalf of the petitioner herein — There is no illegality or
infirmity in the said order — CRP dismissed.
Sections 137 and 138 of Indian Evidence Act, 1872 read as follows:—

“137. Examination in chief: — The examination of a witness by the party who calls him
shall be called his examination in chief.

Cross Examination: — The examination of a witness by the adverse party shall be called his
cross examination.

Re-Examination: — The examination of a witness, subsequent to the cross examination by

the party who called him, shall be called his re-examination.

Order of examination: —

138. Witness shall be first examined in chief, then (if the adverse party so desires) cross
examined, then (if the party calling him so desires) re-examined.

The examination and cross examination must relate to relevant facts, but the cross
examination need not be confined to the facts to which the witness testified on his
examination in chief.”

Thus, the above provisions make it clear that the right of examining the witness is confined only
to a party, who has brought action and the adversary party.

Practice/Cross Examination, Scope — See (Indian) Evidence Act (1872), Sections 137
and 138, Cross examination right of, who can exercise, Scope.

Mohd Hussain v. state

Section 141

K. suryanarayan v. Hindustan petroleum corp. Ltd.

Verkey joseph v. State of kerala

Manu Sharma v. Nct delhi

Section 145:
Tehsildar singh v st of UP: A statement to the police could be used under s. 162 of
the Code only for the purpose of
contradicting a statement in the witness box under the second part of s. 1, Evidence
Act, but it could not be used for the purpose of cross-examining the witness under
the first part of s. 145.

Binay kumar singh v st of bihar: The credit of a witness can be impeached by proof of any
statement which is inconsistent with any part of his evidence in court. This principle is
delineated in Section 155(3) of the Evidence Act and it must be borne in mind when
reading Section 145 which consists of two limbs. It is provided in the first limb of Section
145 that a witness may be cross-examined as to the previous statement made by him without
such writing being shown to him. But the second limb provides that "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." There is thus a
distinction between the two vivid limbs, though subtle it may be. The first limb does not
envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-
examine the witness with reference to the previous statements made by him. He may at that
stage succeed in eliciting materials to his benefit through such cross-examination even without
resorting to the procedure laid down in the second limb. But if the witness disowns having
made any statement which is inconsistent with his present stand his testimony in Court on that
score would not be vitiated until the corss-examiner proceeds to comply with the procedure
prescribed in the second limb of Section 145.

Mohanlal gangaram gehani v st of Maharashtra: It is obvious from a perusal of s. 145 that

it applies only to cases where the same person makes two contradictory statements either in
different proceedings or in two different stages of a proceeding. If the maker of a statement is
sought to be contradicted, his attention should be drawn to his previous statement under s.
145. In other words, where the statement made by a person or witness is contradicted not by
his own statement but by the statement of another prosecution witness, the question of the
application of s. 145 does not arise. To illustrate, we might give an instance-suppose A, a
prosecution witness, makes a particular statement regarding the part played by an accused but
another witness B makes a statement which is inconsistent with the statement made by A, in
such a case s. 145 of the Evidence Act is not at all attracted. Indeed, if the interpretation
placed by the High Court is accepted, then it will be extremely difficult for an accused or a
party to rely on the inter-se contradiction of various witnesses and every time when the
contradiction is made, the previous witness would have to be recalled for the purpose of
contradiction. This was neither the purport nor the object of s. 145 of the Evidence Act.

Sushil Kumar v State of Punjab

Evidence Act, 1872 — S. 133 — Accomplice — Who is — Held, an accomplice is person
who has concurred in the commission of an offence, meaning thereby a partner in the
crime and associate in the crime — When the witness sustains such a relation to the
criminal act that he could be jointly indicted with the accused, he is an accomplice —
Prevention of the Corruption Act, 1988 — S. 13(2) (Para 11)
Manickam v State
EVIDENCE ACT, 1872, Ss. 133 & S. 114 Ill. (b) — Accomplice — Evidence of —
Admissibility and evidentiary value — Tests — Accomplice, a competent witness under
Evidence Act — But, fact that such accomplice participated in commission of offence
induces serious taint in his evidence — Courts therefore are only reluctant of such
evidence unless it is corroborated by material particulars by other independent evidence
— Evidence of accomplice need not necessarily be rejected — Evidence requires
corroboration in material particulars as well as corroboration of evidence connecting or
tend to connect accused with crime — If above tests are satisfied, evidence of
accomplice can be safely relied upon to hold accused guilty of offence. (Paras 22-29)