The Indian Evidence Act, 1872: 6st Semister - 3 Year LLB - Karnataka Law University

The Indian Evidence Act, 1872 15 November 2016
The Indian Evidence Act, 1872

6st Semister | 3 Year LLB | Karnataka Law University
Shiva Shankara R Shetty is an

practicing chartered
accountant since 2012. He
p ro v i d i n g a p ro f e s s i o n a l
service to the Central and State
Government Undertakings,
Multi-National Companies,
Nationalised Banks, Service
S e c t o r, M a n u f a c t u r i n g
Industries, Real Estate
Developers, etc.
He also possess expert

knowledge in Income taxation 1.Evidence and its kinds
matters, Litigation, Income tax
Evidence is a word derived from the Latin word ‘evidera’ which
refund, etc
means to discover clearly, to ascertain or to prove.
He also author of the According to the Phipson, evidence means testimony, whether oral
‘Simplified Approach to the or documentary or real, which may be legally received in order to
Income tax’, a hand book to prove or disprove some facts in the dispute.
the IPCE [Inter mediate of the
Sec. 3 of the Indian Evidence Act defines ‘evidence’ in these words:
Chartered Accountancy]
“Evidence means and includes -
He resides in Bangalore.
i)all statements which the court permits or requires to be made
Contact us: before it by witness in relation to the matters of the facts under
enquiry; such statements are called oral evidence;
M: 91 90358 46043
ii)all documents including electronic records produced for
O: 080 2678 0452 inspection of the court, such documents are called documentary
evidence”.
E: shetty@ssrshetty.co.in
However, the definition of evidence, is too narrow and it doesn’t
W: www.ssrshetty.co.in include the following:
•Material things other than documents, e.g., weapons, articles of the

stolen property;
•Statement made out of court or before the court by the parties;
•A thing like struggle in the case of murder;
•The result of local inquiry or inspection;
•Identification proceedings.
Kinds of evidence
The evidences are 2 kinds. They are:
www.ssrshetty.co.in shetty@ssrshetty.co.in 1
a) Oral evidence
The oral evidence must be direct. The statement may be made by any method by which the witness is capable
of making it. A witness who can’t speak may communicate the facts to the court by signs or by writing and in
either case it will be regarded as oral evidence.
Oral evidence is a much less satisfactory medium of the proof than documentary proof. However, the oral
evidence can be judge with the reference to the conduct of the parties and the presumptions and probabilities
legitimately arising in the case.
b) Documentary evidence
Those documents which are presented in the courts for the inspection, such documents are called
documentary evidence. The documentary evidence that would show the actual attitude of the parties and
their consciousness regarding the custom is more important than any oral evidence.
c) Primary evidence
Primary evidence is the top most class of the evidence. It is that proof which in any possible condition gives
the vital hint in a disputed fact and establishes through documentary evidences on the production of an
original document for inspection by the court. It means the document itself produced for inspection of the
court.
d) Secondary evidence
It is the inferior evidence. It occupies secondary position. It is the evidence which is produced in the absence
of the primary evidence, therefore, it is known as secondary evidence.
If secondary evidence is admitted without any objection at the proper time, then the parties are precluded
from raising the question that the document has not been proved by the primary evidence.
e) Real evidence
It means material evidence. It is fact is brought to the knowledge of the court by inspection of a physical
object and not by information derived from a witness or a document.
Example: Conduct of the witness, behaviour of the parties, the local inspection by the court, etc. It also be
called as the most satisfactory evidence.
f) Hearsay evidence
Hearsay evidence is very weak evidence. It is only the reported evidence of a witness which he has not seen or
heard.
g) Judicial evidence
Evidence received by the court of justice is called judicial evidence. The confession made by the accused in
the court is also included in the judicial evidence. The statements of the witnesses and documentary evidence
and the facts for the examination by the courts are also judicial evidence.
h) Non Judicial evidence
Any confession made by the accused outside the court, in the presence of any person, is called non judicial
evidence.
i) Direct evidence
Direct evidence is that evidence is very important for the decision of the matter in the issue. Example, main
fact presented by the witness, things. The evidence of person who had actually seen the crime being
committed.
j) Circumstantial or indirect evidence
It attempts to prove the facts in issue by providing other facts and affords an instance as to its existence.
Example, the statement made before the police.
2. Definition of admission, Sec. 17
An admission is a statement (oral or documentary or contained electronic form) which suggests any inference
as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances
hereinafter mentioned.
Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceedings
proves that the other party has admitted his case, the work of the court becomes easier.
A files a suit against B alleging that B is not the last male owner’s daughter’s son and that he (A) is, the last
male holder’s sapinda. B files a document in which A admitted B to be the daughter’s son of the last male
holder. This document is not only admissible in the evidence but is a very strong and important piece of
evidence.
Sec. 17, 18, 19 and 20 taken together define ‘admission’. This definition will be clear by reading all these 4
sections together, if all these sections were to be written in one sentence, they would read as follows:
An admission is a statement oral or written, which concludes any fact or issue and is made by -
i) A party to the proceedings;
ii) An agent to any party, as expressly or impliedly authorised by him;
iii) A representative of any party to the suit, in his representative capacity;
iv) The person who have proprietary or pecuniary interest in the subject-matter of the proceedings;
v) The persons from whom the parties to the suit have derived their interest in the subject-matter of the suit;
vi) The person whose position and liability is necessary to prove as against any party to the suit;
vii)The person to whom a party to the suit has expressly referred for information in reference to a matter in
dispute, Sec. 20.
According to the definition given above, the statement of the parties to the suit or proceedings and also of
the persons who are not parties to such suits or proceedings, i.e., of strangers are admissions if they are made
under the circumstances mentioned above and suggest any conclusion as to any fact in issue or relevant fact.
The statement of the person making admission should be read completely and the statement drawn from the
reference can’t form admission.
The admission of a party will be admitted against him and to make his statement admissible, it is not
necessary that the attention of the person making admission should be brought to the said fact.
3. Difference between the confession and the admission
Confession Admission
1 It related to the criminal proceedings. 1 It usually related to civil proceedings.
2 It is a statement made by an accused 2 It is an statement made by the person

which is sought to be proved against him. mentioned U/s. 18, 19 and 20. Example:
Party, agent, representative, etc.
3 It is voluntarily made by a accused. 3 It is not conclusive as to the matters

admitted.
Confession Admission
4 It always go against the person making it. 4 It may be used on behalf of the person
making it.
5 It made by one or more accused jointly 5 Admission by one of the several

tried for the same offence. defendants in suit will be considered
separately.
6 It may be oral or written statement which 6 It is a statement oral or written which

is directly admits to the suit. gives conclusion about the liability of the
person making it.
4. Relevancy of the facts forming part of the same transaction
Relevancy of the fact
Sec. 5 of the Evidence Act states that, evidence may be given in any suit or proceedings of the existence or
non-existence of every fact in issue and of such other facts as are declared to be relevant in between Sec. 6 to
Sec. 55 of the Evidence Act.
This section excludes everything which is not declared relevant under any of the Sec. 6 to 55. All the evidences
tendered must be shown to be admissible of any section in between 6 to 55. The evidences excluded by the
Evidence Act should not be admitted merely because it may be essential for ascertainment of the truth. Any
fact intended to be established has to be found to be relevant under a provision contained in the Act before it
can be allowed to the proved.
Therefore, the court must confine itself strictly to the provisions of the Act and come to a conclusion as to
the relevancy of a fact on the interpretation of the relevant provisions of the Act regardless of the fact
whether the conclusion ultimately arrived at is in accordance with common sense view of things or not.
Further, a court can’t exclude evidence relevant under Act under any ground even on the ground of the public
policy.
Relevancy of facts forming part of same transaction
One fact is said to be relevant to another when one is connected with the other in any of the ways referred to
in the provisions of the Act relating to the relevancy of fact. Facts relevant to the issue have been arranged in
the following manner:
• Things connected with the facts in issue as part of the same transaction, occasion, cause, effect, motive,
conduct;
• Things said, namely, admission, confession;
• The statements by the persons who can’t called as witnesses;
• The statement under the special circumstances;
• The decision in other cases;
• The opinions about the facts in issue;
• The character and reputation of the parties concerned.
Basis of the rule
Every fact is a part of other facts. There is no fact which is unconnected with other facts. The sec. 6 lays
down that the facts which are so connected with the facts in issue that they form part of the same
transactions are relevant facts.
Sec. 6, 7, 8 and 9 gives the various ways in which the facts are so related to each other to form components of
the principal facts. Even hearsay statements are admissible under this section if they form part of the
transaction.
Same transaction
The term ‘same transaction’ has not been defined in the Evidence Act. It should be interpreted not in any
strict or technical way but in its ordinary etymological meaning of ‘un affair’ or ‘a carrying through’. The rule
of efficient test for determining whether a forms part of the same transaction is that subsidiary acts as to
constitute one continuous action.
Proximity of time is not so essential as continuity of the action and purpose. To ascertain whether a series of
the acts are parts of the same transaction, it is essential to see whether they are linked together to present a
continuous whole.
Facts forming part of the same transaction
The transaction consists both of the physical acts and the words accompanying such physical acts, whether
spoken by the person doing such acts, the person to whom such acts are done or any other person or persons.
Res gestae
This phrase means simply a transaction, ‘thing done’, ‘the subject matter’. This has been used in senses. In the
restricted sense it means words happening out of which the right or liability in question arises. In the wider
sense it covers all the probative facts by which res gestae are reproduced to the tribunal where the direct
evidence of the witness or perception by the court are unattainable.
Physical acts forming a part of a transaction
The facts forming the part of the same transaction with the fact in issue are relevant. The expression ‘res
gestae’ as applied to a crime means the complete transaction from its starting point in the act of the accused
until the end is reached.
It is a general rule that the evidence of the connected president or surrounding circumstances is proper to
show the probability that the principle fact has happened in all cases where it may naturally be assumed that a
connection exists between the main fact and the subordinate fact.
Where the transaction consists of the several physical acts, in order that the chain of such acts may constitute
the same transaction, they may be connected together by proximity of time, by proximity of place, continuity
of the action and community of purpose.
Illustration
✦ A is accused of the murder of B by beating him. Whatever was said or done by A or B or by the by-standers
at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
✦ The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to
the several intermediate person successively. Each delivery is a relevant fact.
✦ A is accused of waging war against the Government of India by taking part in an armed insurrection in
which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts
is relevant, as forming part of the general transaction, though A may not have been present at all of them.
5. State when the statement of third persons are admissible
When two parties are litigating, statement of any of them made prior to the litigation may be proved at the
trial if it amounts to admission. Ordinarily statements by the strangers to a suit or proceedings are not
relevant as against the parties.
Illustration: A files a suit against B for possession of a house alleging that it belongs to him. B contends that
the house belongs to him. A can lead evidence to the effect that B admitted his title to the house in dispute
out of the court. Similarly B can prove A’s admission. If any one of them tries to prove that one C, who is not
a party to the proceedings, admitted his title to the house in dispute, he will be stopped from doing so.
But, in some cases admissions of the strangers to a proceedings are relevant. When in a suit a party to it in
order to achieve success in the litigation, has to prove the position of the liability of a stranger to the, the
statement of such stranger would be relevant against a party to the proceeding as admission, if the statement
is of such a nature that if a suit is brought against him in relation to that position or liability against or by that
person who made the statements it would be relevant provided when the statement was made, the person
making the statement occupies such position or subject to such liability about which the statement was made.
Under section 19, the party to a suit can be use the statement of even a third party, if the statement of that
third person contained an admission against the interest of that third person, and could have been used
against the third person if he sued or was sued in connection with a matter involving the position or liability
affected by that admission.
6. Fact, Fact in Issue and relevant Fact
(a) Fact
Fact means and includes -
i) any thing, state of things or relation of things, capable of being perceived by the sense;
ii) any mental condition of which any person is conscious.
The word ‘means and includes’ wherever used, indicate that, no other meaning can be assigned to the
expression that is put down in the definition. It indications an exhaustive explanation of the meaning which
for the purposes of the Act, must invariably be attached to these words or expression.
‘Fact’ means an existing thing. It doesn’t refer a mental condition of which a person is conscious. The word
‘fact’ is not limited to only what is tangible and visible. It also includes statements, feelings, opinion and state
of mind.
The fact may be classified as -
• Physical and psychological facts: Physical fact is a fact which others can see. It visible to the others. A
horse, a man are physical facts. A psychological fact is a fact which others can’t see. However, others can
feel. A reputation, opinion, intention is example for psychological fact.
• Positive and negative facts: The existence of a certain state of things is a positive fact, the non-
existence of it is a negative fact.
(b) Fact in issue
The expression ‘facts in issue’ means and includes any fact from which, either by itself or in connection with
other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied
in any suit or proceeding necessarily follows:
Example: A is accused of the murder of the B. At this trial, the following facts may be in issue -
✦ that A caused B’s death;
✦ that A intended to causeB’s death;
✦ that A had received grave and sudden provocation from B;
✦ that A, at the time of doing the act which caused B’s death was, reason of unsoundness of mind, incapable
of knowing its nature.
There is no difficulty at all in ascertaining what are the facts in issue. The facts in issue may be themselves or
in connection with other facts constitute such state of things that the existence of the disputed right or
liability would be legal inference from them. The expression means the matter which are in dispute or which
form subject of investigation.
Facts is issue are those facts which are alleged by one party and denial by the other in the pleading in a civil
case or alleged by the prosecution and denied by the accused in a criminal case. These are the facts of which
existence or non-existence is disputed by the parties.
(c) Relevant fact
One fact is said to be relevant to another when one is connected with the other in any of the following ways:
• Fact forming part of the same transaction;
• Fact which are occasion, cause or effect of the facts in issue;
• Motive, preparation, conduct of a party;
• Facts, necessary to explain the facts in issue;
• Things said or done by conspirators;
• Facts inconsistent with facts in issue;
• Facts helping in the estimate of damages;
• Transaction creating right, etc;
• facts stating of mind or body;
• Facts showing whether act is intentional or accidental;
• Existence of course of business;
• Admission;
• Confession;
• Statement of persons who are dead or can’t be found;
• Statement made under special circumstances;
• Judgements;
• Opinion of the experts and others;
• Opinions as to existence of custom and usage;
• Opinion on relationship; and
• Character
7. Who can make admissions?
Admission
Admission is an oral or written statement, which suggests any inference to any fact in issue or relevant fact
and is made by -
(a) A party to the proceedings
The party includes not only those who appear on the record in that capacity, but also persons who are actually
parties without so appearing persons who are not parties on the record but who are interested in the subject-
matter of the suit are considered by the law as parties and accordingly their admissions have the same weight
as though they were parties on the record.
Further, a party who has no beneficial interest in the litigation will not be permitted to admission on behalf of
whom he is acting. For example, in a suit brought by a guardian for a minor, the statement of the guardian will
not be an admission against the minor.
The admission of a fact in dispute by a party to a suit or proceeding is a very important piece of the evidence.
It has been held that what is admitted by a party to be true must be presumed to be true ‘unless’ the contrary
is shown.
(b) Admission by the agent
The statements by the agents are admissible against their principals for the reasons similar to those which
govern the statement of coparceners. The principal can appoint a agent as his representative in the
transaction of certain business. There, whatever the agent does, in the lawful transaction of that business, is
the act of the principal, the statements and the admissions respecting the subject-matter will also bind him if
made at the same time.
It should be noted that admission of the agent binds the principal only when made during the continuance of
the agency. When the agent’s right to interfere in the particular matter has ceased, the principal can no longer
be affected by his declarations.
The rules of the admissibility are the same for the trial of civil and criminal cases. Whatever the agent does,
within the scope of the authority binds his principal and is deemed his act. It must be shown that the agent
has the authority, and that the act is within his scope.
(c) Admission by pleaders, attorneys and counsels in civil cases
If client appoints a pleader, attorney or counsel and gives him full authority to conduct his case and gives him
full information, then the admission made by such a counsel under his signature is binding upon the client. It
can’t be withdrawn in later.
When a person engages an advocate to conduct his case, he authorises his advocate to make binding
admission before the court in the course of his conduct of the case. Where it erroneous, the statement of the
advocate is not binding on the client.
Admission by the counsel in criminal cases: The law makes no provision for admission by a counsel in a
criminal case. No admission by the counsel can relive the prosecution of the duty to prove the case. But when
the counsel of the accused appears as witness to prove some facts the above principle doesn’t apply.
(d) Statement made in representative person
Where the party sues or is sued in a representative capacity, i.e., as trustee, executor, administrator, etc, the
representative is different from his ordinary capacity and only admission made as representative capacity is
receivable.
(e) Persons having any proprietary or pecuniary interest
Where several persons are jointly interested in a subject matter of the suit, the admission of any one of these
persons are receivable, against himself and fellows, whether they all be jointly suing or sued.
Whether an action brought in favour or against any one or more of them separately, then separate admission
is required. The defence statement is made by one defendant can’t be read in evidence for or against his co-
defendant. If it were allowed, the plaintiff might make one of his friends a defendant and thus may gain a
most unfair advantage. Therefore, the statement of co-party are not useable against a co-party.
(f) Admission from person whom the parties derive interest
A former owner of a land is so identified in interest with a subsequent owner, holding under the same title, are
receivable in evidence. This evidence is based on the theory that the self-interest involved in the ownership of
the title is a sufficient guarantee for the truthfulness of the statement against an interest made by the owner.
generally, a man doesn’t make a statement against his own interest.
(g) Admission of the statement by third parties
When two parties are litigating, statement of any of them made prior to the litigation may be proved at the
trial if it amounts to the admission.
Ordinarily, statements by the strangers to a suit or proceedings are not relevant as against the parties. But, in
some cases, admissions of the strangers to a proceedings are relevant.
Under section 19, the party to a suit can use the statement of third party, if the statement of that third person
against to his own interest and such statement could be used against such third person if he sued or was sued
in connection with a matter involving the position or liability affected by that admission.
(h) Admission of statement by the experts
When a party refers to a third person for some information or an opinion on a matter in dispute, the
statement made by third person is receivable as admission.
It was held that the report of the Munsif is admissible in evidence as admission of the parties under section
20 of the Evidence Act.
8. Doctrine of Res Gestae
Res gestae means simply a transaction, ‘things done’, ‘the subject matter’. The term ‘res gestae’ has been used
in two senses. In the restricted sense it means world’s happening out of which the right or liability in question
arises. It means, the fact must be such as so connected with the transaction or fact under investigation as to
constitute a part of it.
In wider sense, it covers all the probative facts by which res gestae are reproduced to the tribunal where the
direct evidence of the witness are unattainable.
The res gestae shall be, those circumstances which are the automatic and undersigned incidents of a
particular litigated act. These incidents may be separated from the act by a lapse of the time. A transaction
may lost for weeks.
The incident may consist of sayings and doings. They may comprises things not done as well as things done.
The incidents must be related to the litigated act in the sense that they are not produced by the calculated
policy of the actors.
The test of the admissibility of the evidence as part of res gestae is whether the act, connected with the
principle facts.
9. Explanatory facts and introductory facts
It should be borne in mind that, these are 7 categories of facts which are not admissible generally. They are
relevant only in so far as they are necessary for the purpose indicated in each category.
(a)Facts necessary to explain in issue or relevant fact
There is a kind of evidence which if considered separately and alone from other evidence would not amount
to anything. But if it is taken in to the consideration in connection with some other facts, which proved in
the case, it explains and illustrates them.
Sometimes it gives strength to the evidence and sometimes breaks the force of the evidence. Such fact which
are necessary to explain a fact-in-issue or relevant facts are relevant u/s. 9 of the Evidence Act.
The explanatory evidence is not relevant in itself. It has no direct line of proof to the existence of a fact in
issue or relevant fact.
Rahan Lalu Vs. Emperor: The Rahan Lalu killed his wife on one morning with an axe. Their son a child of
5 years was beside them. He made a cry and his cry attracted the witness who found Rahan with an axe in his
hand and his deceased wife near him. The child’s evidence was not recorded. The witnesses deposed as to
what the child had said and upon that they reached. It was held that the witness could speak to the nature of
the cry and even to what the child said so far as it explains their conduct.
The court said that, if the child had not said that his father was killing his mother, the witnesses would not
have gone there. So, the cry and the words of the child explains as to why the witnesses went there.
(b)Introductory facts
It is practically impossible, in conducting a suit or proceeding to jump directly on the main fact. The fact
which are introductory of a relevant fact is very useful in understanding the real nature of the transaction, and
bridge the missing link.
10. Circumstantial evidence
Evidence means that which makes evident. The evidence means the fact which proves a fact. In ordinary
parlance, the evidence and testimony are used interchangeably but that is not correct. Evidence is wider than
testimony because, evidence includes oral as well as documentary evidence whereas a testimony is the oral
evidence given by the witness in the court.
Circumstantial evidence was accepted without any condition. For example, if a man in fear and anxiety comes
out of a deserted house with a blood-stained dagger and a dead man with severed head is found inside that
house, the inference can be drawn from these facts that he has murdered the man found dead in that house.
In a criminal case, on difference of opinion amongst the witnesses, the benefit of doubt was given to the
accused person.
The evidence was also taken by issuing commission. The witnesses were administered oath - Hindus of
Bhagavathgeeth, Muslims of Koran and Christians of Bible.
11. Motive preparation and previous or subsequent conduct
Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that:
• A fact which shows or constitute a motive for any fact in issue or relevant fact is relevant;
• A fact which constitutes preparation for any fact in issue or relevant fact, is relevant;
• Previous or subsequent conduct of any party or his agent to any suit or proceedings, in reference to such
suit or proceedings are relevant. Such conduct should influence any fact in issue or relevant fact;
• Previous or subsequent conduct of any person an offence against whom is the subject of any proceedings or
suit, is relevant, such conduct should be influence any fact in issue or relevant fact;
• Statement explaining the acts is relevant; and
• Statements made in the presence and hearing of a person whose conduct is relevant.
(a) Motive: A motive means, which moves a man to do a particular act. It is that which is in the mind of a
man and which moves him to act.
Motive is an emotion, a state of mind, but it is often confused with the events tending to excite, to emotion,
the outward facts, which may influence the emotion.
It is generally proved by 2 sorts of circumstantial evidence. They are:
✦ Conduct of the person; and
✦ By events about the person which could excite that emotion.
Motive, conduct and statement: There is hardly any act without a motive. It is the moving power which
impels one to do an act. It is the inducement for doing the act. The absence or presence of a motive and
evidence of the preparation, previous attempt, previous or subsequent conduct of the parties are relevant as
they help in proving or disproving a fact in controversy. It may sometimes be important to know, whether a
man charged with an offence, has any interest or motive to commit it. Again, the conduct, previous or
subsequent of a person committing an offence may be helpful in deciding as to whether a man has committed
an offence.
Intention and motive: The motive should not be confused with an intention. The intention is an act of the
will directing an act or a deliberate omission. It shows the nature of the act which the man believes he is
doing.
If a man fires at a tiger, but the aim is missed and a man is killed, he intends to kill the tiger, his intention is
not to kill the man.
A owes Rs. 1,000 to B. B puts pressure upon A for his money. A decides to kill B with a motive to get rid of
the pressure of the demand. He invites B to his house and strikes him with a sword and kills him, this act was
prompted with the said motive, and at the actual moment, the assault was with the intention to kill.
Importance of the motive: Existence of a motive for committing a crime is not an absolute requirement of
the law but it is always a relevant factor. The absence of the motive is a advantage to the accused as it offers
him, as a defence. However, in case of the direct evidence, the motive for the crime is meaningless. But in
case of the circumstantial evidence, that motive assumes important.
In the absence of an eye-witness or no scientific evidence to connect the accused with the murder, the motive
to commit murder has to be established. However, a mere fact of strong motive to commit the crime is not
sufficient for an offence.
(b) Preparation: The evidence tending to show that the accused made preparation to commit a crime, is
always admissible. The preparation means, plan to do certain things as planned. It is not always carried out
but it is more or less likely to be carried out.
In a case of burglary of 4 accused held a meeting to arrange for the crime, and these accused brought a bar of
iron which necessary for burglary, is amounts to the preparation.
An inn-keeper and his wife were accused of the murder of a guest. It is shown that on the night the murder
was committed, they sent the maid-servant out of the house so that there may not be anybody to see the
offence being committed. When she returned the next morning, she was made to sleep in another part of the
building. This is a relevant preparation to prevent the discovery of this crime.
(c) The previous or subsequent conduct: The conduct means, outward behaviour. A man’s conduct
includes what he does, and what he omits to do. The conduct may include statements. The word ‘party’
includes not only the plaintiff and the defendant in a civil suit but parties in a criminal prosecution, as for
instance a prisoner charged with the murder.
The conduct of a party to a proceeding or suit in reference to the fact in issue or relevant fact are admissible,
similarly the conduct of a party in the relation to the proceeding is also admissible.
S is suspected of having poisoned T. He tried in every way to prevent the body of T from being medically
examined. This conduct of S in preventing the medical examination of the body of T is relevant.
It must be borne in mind that the conduct of a party alone is admissible. The conduct of a person who is not
a party to the suit or proceedings is not admissible. Further, the conduct of a person who is dead or a person
who is a member of group or team, which intended to do an unlawful act, also inadmissible.
The conduct of the party is relevant irrespective of the previous or subsequent to the fact in issue or relevant
fact. The complaints of the deceased to the police expressing apprehension of the death made 2 months
before the death are admissible.
Unit - 2
12. Circumstances in which judgements of court become relevant
Ordinarily, the judgement in the previous case will not be admissible in subsequent cases because the court
has to form its own opinion depending upon the facts and circumstances of the case. The rule is applicable
for civil and criminal cases, both.
However, in KG Prem Shankar Vs. Inspector of Police & others, it was held by Supreme Court that, previous
judgement which was final could be relied upon as provided U/s. 40 to 43 of the Evidence Act.
In civil cases, between the same parties, principles of res judicata may apply. In criminal cases, Sec. 300 of the
Criminal Procedure Code, 1973 makes the provisions that once a person is convicted or acquitted, he may not
be tries again for the same offence if the condition mentioned therein are satisfied.
Kinds of the judgement
The judgements are 2 kinds. They are:
(a) Judgement in rem: The judgement will affect the legal status of the person or thing. Example, family
court judgement. Such judgements are conclusive evidence against all the persons whether parties or not.
(b) Judgement in personam: These judgements are ordinary judgements not affecting the status of any
person or thing. The judgement is binding only on the parties to the suit or the proceedings and their
privies. The privies may be divided in to 3 classes:
• Privies in interest (Donar, donee, lessor, lessee, etc)
• Privies in blood (Ancestor, heirs or coparcener)
• Privies in law (Testator, executor)
Judgement of court when relevant?, Sec. 40
Sec. 40 lays down that, when there is a judgement about a fact and the law, no subsequent proceeding shall be
stated, in case of previous judgement is relevant and can be proved.
Sec. 11 of the Civil Procedure Code, lay down that in case of any suit or issue directly or subsequently relates
to any issue or suit which tries and decided by the court, in earlier, between the same parties, the court should
not be admitted to the trial. Thus, this section bars a second suit between the same parties for the same
subject-matter.
Sec. 403 of the Criminal Procedure Code bars a subsequent trial of a man and it lays down that a person who
has once been tried by a competent jurisdiction for an offence and convicted or acquitted of such offence
shall not be liable to trial again for the same offence. Thus it is clear that a judgement which bars a subsequent
proceedings is relevant.
It must be remembered that for a previous judgement being admissible U/s. 40 the parties must be the same
or their representative-in-interest.
Judgement of civil court if admissible in criminal courts and vice versa
A finding on certain facts by a civil court in an action in personam is not relevant before a criminal court
when it is called upon to give finding on the same facts. Similarly, a finding on certain facts by the criminal
court is not relevant before the civil court when it is called upon to give finding on the same facts.
Relevancy of certain judgement in probate, matrimonial, etc.
A final judgement, order or decree of a competent court in the exercise of probate, matrimonial, or insolvency
which takes away from any person any legal character, or which declares any person to be entitled to any such
character or to be entitled to any specific thing, is relevant, when the existence of any such legal character or
the title of any such person to any such thing, is relevant.
Relevancy of judgement in election petition
In Satrucharla Vijaiya Rama Raju Vs. Nimanaka Jaya Raju and Others, where the election petitioner failed to
establish his claim, it could not be said that it amounted to a declaration of the status of the respondents in
that petition. Thus, it is not a judgement recognised under section 41 of the Act. Therefore, such judgement is
not recognised under section 41 of the Act.
Judgement in pendency
For the purpose of Sec. 41 of the Evidence Act, a judgement has to be pronounced. Mere pendency of two
proceedings, whether civil or criminal by itself would not attract the provisions of the Sec. 41.
Relevancy and effect of the judgements other than those mentioned in the Sec. 41
Judgements, orders or decrees other than those mentioned in the Sec. 41 are relevant if they relate to the
matters of the public nature, but such judgements, orders or decrees are not conclusive proof of that which
they state.
Under section 42, judgements are admissible as evidence although they may not be between the same parties
provided they relate to the matters of the public nature.
Sec. 40 deals with the judgements which render the matter conclusive between the parties. Sec. 41 deals with
the judgement in rem, which are conclusive against all the world. Sec. 42 deals with the judgement which as
relating to the matters of a public nature, are relevant though not conclusive, between the strangers to the
suit. Sec. 43 lays down a general rule that all the judgements, decrees and orders not mentioned under section
40 to 42, are irrelevant.
13. Confession - conditions of their relevancy
The word ‘confession’ has not been defined in the Indian Evidence Act. The Justice Stephen in his Digest of
the Law of the Evidence defined confession as ‘confession is an admission made at any time by a person
charging with a crime stating or suggesting the inference that he committed that crime’.
According to this definition, a statement of an accused will amounts to a confession if it fulfiles any of the
following conditions:
• If he states that he committed the crime he is charged with; or
• If he makes a statement by which he doesn’t clearly admit the guilt, yet from the statement some inference
may be drawn that he might have committed the crime.
A confession which is voluntary and free from any pressure can be accepted. A confession can’t be used
against an accused person unless the court is satisfied that it was voluntary and at that stage the question
whether it is true or false doesn’t arise. If the facts and circumstances surrounding the making of confession
appear to the cast a doubt, the court may refuse to accept.
Voluntary and non-voluntary confession: A confession to the police officer made by the accused while in
custody of the police officer, never relevant and can never be proved under section 25 and 26.
A confession made by accused in the front of the Magistrate are admissible only when they are made
voluntarily. In Lokman Shah and Others Vs. State of West Bengal, it was held that voluntary confession recorded by
the Magistrate can’t be doubted.
14. Expert evidence
Section 45 makes the opinion of the persons specially skilled in some science, art, foreign law, identity of
handwriting and finger impressions in the relevant.
An expert is one who has acquired special knowledge, skill or experience in any science, art, trade or
profession. Such knowledge may have been acquired by practice, observation or careful studies.
The evidence of an expert is such evidence which is based on the expertise and experience. He must have
special knowledge of the subject or acquired special experience therein.
The opinion of an expert must be given orally and a mere report or certificate by him is not evidence. Senior
scientist (Chemistry), Central Forensic Science Laboratory was held to be an expert in science, though not
falling in the category of officers mentioned in Sec. 293 of the Criminal Procedure Code. His opinion would
be relevant piece of the evidence under Sec. 45.
Prerequisites of expert evidence
Before the expert testimony can be admitted two things must be proved. They are:
a) Expert opinion was necessary: Where the court was able to form its own opinion from facts and
circumstances of the case it can be said that expert opinion was not necessary. But wherein some technical
question is involved which can be answered by a person specially skilled it can be said the expert opinion
was necessary.
b) The witness in question is really an expert: An expert is not witness of fact, his evidence is only of
advisory character. The duty of an expert witness is to furnish the judge with necessary scientific criteria
for testing the accuracy of the circumstances so as to enable the judge to form his independent judgement
by the application to that criteria to the facts proved by the evidence of the case.
Science or art: When the court has to form an opinion upon a point of science or art, the opinion upon that
point of the persons specially skilled in such science or art is admissible.
It would be physically impossible to deal with the every branch of science or art in which expert evidence may
be given. Some of the examples:
• Medical evidence: The facts stated by the doctor either in the injury report or in the post mortem
report.
• DNA report: In case of the murder, the DNA report may be called for to identity the accused as well as
the victims.
• Ballistic expert: Where the offence is alleged to have been committed by the use of fire-arm, the case
can be referred to an ballistic expert.
• Handwriting expert: When there is a question before the court as to whether a document is in the
handwriting of a person, the court may either take the opinion of a handwriting expert or of another
person acquainted with the handwriting of the person-in-question or it may itself compare the disputed
handwriting with admitted handwriting.
15. Dying declaration - Conditions - Its evidentiary value
Dying declaration is an statement made by a person who is dead, as to cause of his death or as to any
circumstances which resulted in his death. In case, where his death comes in to the question, such statement
is relevant.
If dying declaration is written by any of the surrounding person, is relevant. People present may depose orally
that the deceased has told the name of his assailants. Oral dying declaration is admissible as evidence. It is
exception to the general rule of the evidence that hearsay evidence.
The oral dying declaration made by the deceased before his wife, the father-in-law and other relatives was
made in the conscious state, is admissible and relevant.
Form of dying declaration
There is no particular form to be employed in making a dying declaration. It may be oral or in writing or may
even be partly oral and partly in writing. Sometimes, it may be neither oral nor written, that is to say, it may
consist of some signs or gestures made by the deceased.
Possibly the declaration should be written in the exact words of the person making it. But simply because the
very words of the injured are not written dying declaration can’t be rejected.
When a Magistrate writes a dying declaration, preferably it should be in question and answer form. It is
certainly better to the record the dying declaration in the language of the maker. It would not affect the
evidentiary value of the dying declaration.
Simply because the dying declaration has not been recorded by a Magistrate, it can’t be disbelieved. Further,
the dying declaration not recorded in question answer form can’t be discarded on that ground alone.
Deceased while making statement speaking in Kannada and Urdu languages, and statement recorded in
Kannada language. Such statement can’t be discarded on the ground that it was recorded only in the Kannada
language.
Dying declaration made before Judicial Magistrate
A dying declaration made before a Judicial Magistrate has higher evidentiary value as he is presumed to know
how to record a dying declaration and he is a neutral person.
Statement written by doctor
A dying declaration written by the doctor is reliable. Where the dying declaration was recorded by the doctor
in the question and answer form in the presence of other witnesses, it was held that it was sufficient to
convict the accused.
Multiple dying declaration
Where there are discrepancies and contradiction in multiple dying declaration, it can’t be relied upon in the
absence of other reliable evidence, as a basis to the record conviction.
Statement to the police
The statement of a deceased as to cause of his death does amount to dying declaration. A clear and
corroborated dying declaration can’t be rejected just only because it was recorded by a police officer.
Where the evidence was that the deceased was not in a position to make any statement and the alleged
statement of the deceased was recorded by the investigation officer, it was not a dying declaration.
The declaration must be in a fit state of mind
At the time of the declaration the person making the statement must be in a fit state of mind. Where victim
sustained brain injury and his brain function was impaired, dying declaration made by him can’t be relied on.
If the court has slightest doubt about the mental soundness of the author of the dying declaration, it is unsafe
to base conviction on such statement.
Dying declaration incomplete
A dying declaration is admissible if it is incomplete.
16. Facts which need not be proved
According to the doctrine of judicial notice, certain facts need not be proved because the court has
knowledge of such facts. If the court doesn’t know such facts, it can itself take notice of them without any
proof. The following facts, need not be proved:
• All laws in force in the territory of India;
• All public acts passed in United Kingdom and all local and personal acts directed by the Parliament of the
United Kingdom;
• Articles of war for the Indian Army, Navy or Air Force;
• Proceedings of the Parliament of the United Kingdom of the Constituent Assembly of India of Parliament;
• All seals of which English courts take judicial notice and all seals of all courts in the India;
• The seals of the Notaries Public;
• All seals which any person is authorised to use by the Constitution or an Act of Parliament of the United
Kingdom, or an Act or Regulation having the force of law in India;
• The accession to office, titles, functions and signatures of the persons filling for the time being any public
office in any state, it their appointment is notified in any Official Gazette;
• The existence, title and national flag of every state or sovereign recognised by the Government of India;
• The divisions of time, the Geographical divisions of the world, and public festivals, fasts and holidays
notified in the Official Gazette;
• The names of the members and officers of the court and their subordinate officers and assistants, etc;
• The rule of the road on land or at sea.
Unit - 3
17. Secondary evidence
Document means any matter expressed or described upon any substance by means of letters, figures or marks
or by more than one of those means intended to be used or which may be used for the purpose of recording
that matter. The most common document is letters.
The contents of the documents must be proved either by primary or secondary evidence. It means that there
is no other method allowed by the law for proving the contents of the documents.
(a) Primary evidence: It means the documents itself produced for the inspection of the court. Example: A
rough books from which account books are prepared can be said to be primary evidence.
(b) Secondary evidence: It includes
• Certified copies given under the provisions of the Evidence Act;
• Photo copies of the original documents;
• Copies made from or compared with the original;
• Counter parts of the documents as against the parties who didn't execute them;
• Oral accounts of the contents of a documents given by some person who has himself seen it.
Secondary evidence is a document which is not original but one of those mentioned in above. It is not best
evidence, however it is admitted in an exceptional nature. The value of secondary evidence is not as that of
primary evidence. Notice is required to be given before giving secondary evidence.
The secondary evidence can be given in the following circumstances:
✦ Where the original document is in possession of the opposite party. However, the section doesn’t require
that in all the cases it must be definitely proved that the document is in possession or power of the
opposite party. It is sufficient if it is proved that it appears to be in his possession or power.
✦ When the original is in possession of a person out of reach or not subject to the process of the
court: Where the original will is in possession of the person in French Territory and he can’t be compelled
by a court in Indian Union to produce it in a court in India, the secondary evidence of the will become
admissible.
✦ Where the contents of the original have been admitted: When the contents of the original deed has
been proved to be admitted in writing by a person against whom it is sought to be proved or by his
representative in interest, the original need not be summoned and the contents of the document may be
proved by the secondary evidence.
For example: The repository of mortgage deed. The Sub Registrar is an repository of the registered deed.
The Sub Registrar can submit the certified copy of the original deed.
But if the original deed is inadmissible for want of the registration or want of requisite stamp, the written
admission will not be admissible.
✦ When the original has been destroyed or lost or can’t be provided.
✦ When the original is not easily movable.
✦ When the original is a public document.
✦ Certified copy permitted by the Act.
✦ When the original, consists of numerous accounts or huge document.
18. Presumptions - Presumption as to ancient documents
Sec. 79 lays down that when a document purporting to be a certificate or a certified copy is produced with the
certificate, the shall presume that the copy is genuine copy and can’t be contended that there may be mistake
in the copy.
If a document purports to have been signed or certified by any officer it shall be presumed that the person
certifying or signing held that office at the time when he did so.
Presumption of the copies of the ancient document
When a document being 30 years old, is produced in a court from a proper custody, the court may presume
that it has been property executed and attested. Cases may arise where a document is 30 years old but due to
certain circumstances the document itself is not produced in the court, but its copy is produced.
In, Badan Singh Vs. Brijraj, AIR 1935 pc 132, the Privy Council laid down the following the principles:
• If a copy of a 30 years old document is produced before a court, the genuineness of the original can’t be
presumed. The party producing the copy has to prove the execution of the original.
• If the copy is less than 30 years old, even this can’t be presumed that the copy is a true copy of the original.
The High Court of Allahabad, Madras and Patna have held relying on the Privy Council ruling mentioned
above that production of a copy of a document more than 30 years old will not give rise to any presumption
about the genuineness of the original.
The Bombay High Court held that, if a document has been legally and correctly registered more than 30 years
ago and if its copy is produced in a court of law, the court may presume that the original deed was executed
and attested property. But if the document is unregistered and its copy is produced, no such presumption
about the genuineness of the original will arise.
The controversy between the High Courts in India have been set at rest by their Lordship of the Supreme
Court. It laid down, if the document produced is a copy, admissible as secondary evidence and is produced
from proper custody and is over 30 years old, then only the signature authenticating the copy may be
presumed to be genuine. The production of a copy is not sufficient to raise the presumption of the due
execution of the original.
19.Rule of exclusion of hearsay evidence and its exceptions
There are some kinds of contracts, grants or other dispositions of the property which can be created orally
without any document. A sells a horse to the B for Rs. 50/-. In this case, no written deed is necessary. This
transaction will be valid without any form of the writing.
Contrary to this, there are certain matters which are required by the law to be in writing and registered. The
judgement and decrees in civil cases are required by the law to be in writing. Similarly, judgement and orders
in criminal cases, dispositions of witnesses in civil and criminal cases, examination of an accused person and
many such other things are required by the law to be in writing.
A mortgage or sale of the immovable property for Rs. 100 or more must be in the form of registered
document.
Rules of exclusion of oral evidence by documentary evidence
Section 91 of the Evidence Act excludes admission of the oral evidence for providing the contents of a
document except in cases where secondary evidence is admissible.
Sec. 92 excludes oral evidence to contradict the terms of the contract where the deed is proved. It is a general
and most inflexible rule that wherever written statements are created either due to the requirements of the
law or by the contracts of the parties, any other evidence is excluded from being led, either as a substitute for
such instrument or to contradicted it.
There is a matter both of the principles and of policy:
• of principle because such instruments are in their own nature entitled to a much higher degree of the credit
than oral evidence;
• of policy because it would be attended with great mischief if those instruments upon which man’s right
depended were liable to be impeached by the loose and uncertain parole evidence.
The document which is itself the best evidence of the terms should be produced in the courts. If a document
is lost, or is the possession of the opposite party, secondary evidence may be accepted.
Exception 1:
The general rule is that when the contents of a writing is to be proved, the writing itself must be produced or
when its absence is accounted for, secondary evidence may be given. To this general rule there is an
exemption. When a public officer appointed by some writing, and when it is shown that any particular person
has acted as such officer the writing by which he has been appointed need not be proved.
Example: A is a High Court Judge, the warrant of appointment need not be proved, the only fact that he is
working as a High Court Judge will be proved.
A appears before a court as a witness. He need not be show his appointment order that he is a civil surgeon.
He has to show that he has been working as civil surgeon.
Exception 2:
To the general rule of producing the writing itself there is one more exception. When a probate has been
obtained on the basis of a will and afterwards the question arises about the existence of that will, the mere
production of the probate will prove the existence of the will, the original will need not be produced.
Under this exception, the contents of a will may be proved by the probate. The word ‘probate’ means the
copy of a will certified under the seal of the court of competent jurisdiction. The probate, though technically
secondary evidence, ranks as primary evidence.
20.Character evidence
Meaning: Character is a combination of the quality distinguishing a person, the individuality of which is the
product of the nature, habits and environment. Strictly speaking, character is to be distinguished from
reputation yet reputation is more commonly considered as having reference to the dispositions or character
of a person.
Thus it is said of a person that he bears a good reputation meaning he also having a good character.
Explanation to the Section 55 defines character as including reputation and general disposition both.
Relevancy of the character in civil cases: As a general rule that, an evidence of the character of a party to
a suit is not admissible in the civil cases.
Exclusion of the evidence of the character of a party as a basis of the inference as to his conduct is
particularly absolute in civil cases. If a man is sued for breaking his promise or for wrongful detaining of
another’s goods, evidence can’t be given that it was likely for him to do from his disposition and reputation.
Example: A files a suit against B for possession of a house alleging that B has taken forcible possession of it. In
this A can’t lead evidence about B’s character to show that it was likely for him to trespass.
Character admissible in the civil cases: There are some cases, in which character is a fact in issue or a
relevant fact.
Example: In a suit for defamation, if the defendant consisted the bad qualities and defendant justifies the
existence of these qualities, this would be a fact in issue and evidence of the character may be led.
A character of a female chastity has been received in evidence in action for breach of the promise for
marriage.
Relevancy of character in criminal cases: In criminal proceedings a man’s character is often a matter of
importance in explaining his conduct and in judging his innocence or criminality.
There is a broad line between crime and innocence, and when the question is whether a man has committed
an offence or not, his character becomes a material consideration, sometimes it becomes conclusive.
When the previous bad character is relevant: The previous bad character of the accused in criminal
cases is relevant in the following circumstances:
• Where the bad character of the accused itself is a fact in issue. A caused is by habit of robber, a house
broken, etc.
• Where the previous conviction is relevant as evidence of bad character. Under section 71 of the IPC, if it is
proved that a person is a previous convict he shall be sentenced to much longer term of imprisonment that
would ordinarily have been awarded to him.
21. Public documents - How the public documents are proved
In Evidence Act, the documents have been divided in to 3 groups. They are:
• Public documents; and
• Private documents.
Public documents: The following documents are public documents.
(a) The documents which records the acts of
✦ the sovereign authority;
✦ the official bodies and tribunals; and
✦ the public officers, legislative, judicial and executive of any part of India or of the commonwealth or of a
foreign country.
(b) Public records kept in any state.
A public document is one prepared by a public servant in discharge of his public official duties. The mere fact
that its copy is in office doesn’t lead to the inference that it is a public document. It must have been prepared
by a public servant in his official duty.
An order sheet in a case, judgement or a decree are public documents as they are acts of the public officers.
But a plaint or written statement is not an public document because it is not an act of a public officer. These
are the private documents.
The following documents are the public documents. They are:
• The statement recorded by a court during the proceedings;
• Letters between the district authorities;
• A report is made orally of a cognizable case and it is recorded by a public officer;
• The waqf document which is kept in Sub-Registrar office;
• The electoral roll.
Characteristics of the public documents: They kept in some special custody and provable by means of a
copy without production of original. In addition to the above, the following documents are also considered as
public documents.
✦ The records of nationalised bank: These documents are admissible without any further proof. Examination
of the persons, who prepared that document is not necessary.
✦ The documents furnished to the press council of India for its recommendations.
✦ School leaving certificates.
Method of issue of public document: The copy of public document must be issued on payment of the
legal fee and there shall be attached a certificate to it containing the following particular:
• That it is the true copy;
• The date of the issue of the copy;
• The name of the officer and his official title;
• The seal of the office, if there is any;
• It must be dated.
When a copy contains the particulars mentioned above, we shall call is as certified copy.
Public documents to be proved: When the contents of the public documents are to be proved before the
court of law, the original need not be produced before the court. Instead of a certified copy taken from the
office may be produced before the court and the court will accept it. The idea underlying this principle is that
the record of a court should not be taken away from its place of custody in to courts. If public records are
summoned in courts it would make it impossible for the time being for others to use records. Cases take years
to be decided.
There will also be a risk of loss and there would be constant additional wear and tear upon the documents if
they are removed from the place to place.
Marriage certificate is a good evidentiary proof of the marriage. The following are the public documents may
be proved as follows:
• The records of the departments: Certified by the heads of those departments respectively.
• Any other documents: by the order of such Government.
• The proceedings of the legislatures: by the journals of those bodies respectively, or by published Acts or
abstracts.
• Proclamations, orders or regulations issued by Her Majesty or by the Privy Council or by any department of
Her Majesty’s Government: by copies or extracts contained in the London Gazette, or purporting to be
printed by the Queen’s printer.
• The Acts or the proceedings of the Legislature of a foreign country: by journals published by their authority
or commonly received in that country, as such or by a copy certified under the seal of the country or
sovereign or by a recognition thereof in some Central Act.
• The proceedings of a municipal body in a state: by a copy of such proceedings certified by the legal keeper
thereof or by a printed book purporting to be published by the authority of such body.
• Public documents of any other class in a foreign country: by the original or by a copy certified by the legal
keeper thereof with a certificate under the seal of a Notary Public, or of an Indian Council or Diplomatic
agent that the copy is duly certified by the officer having the legal custody of the original.
22. Primary evidence
primary evidence means the documents itself produced for the inspection of the court. Where a judgement
originally written in English was translated into Urdu and the Judge signed the translation was held that it was
a primary evidence of its contents.
A rough book, which regular account books are prepared can be said to be primary evidence. Primary
evidence is called as best evidence. A executes a sale deed in the favour of B for Rs. 1,000/-. B files a suit for
the possession of the property on the basis of the sale deed mentioned above. A denies to have executed the
sale deed. B produces the very sale deed before the court. This is the best evidence and so is the primary
evidence of the contents of the documents.
Documents in several parts: A, B and C partitioned their property in 3 equal shares partition deed is to be
executed and registered. All of them want to have one document with them. Now 3 deeds each describing the
distinct shares of the partners will be prepared and signed by all and each one of them. All the 3 deeds will be
original.
Document in counterparts: Where a document is executed in counterparts and each counterparts is

executed by one of the parties to the deed, each counterpart is a primary evidence.
Document made by uniform process: When a number of documents are prepared by one uniform
process such as printing or photography each is primary evidence of the contents of other but where they are
all copies of a common original they are not primary evidence of the contents of the original.
A number of placards printed at one time, any one of the placard is a primary evidence of the contents of any
other.
Distinction between primary evidence and secondary evidence
Primary Evidence Secondary Evidence
1 It is original document which is presented 1 It is not original but one of those which
to the court for its inspection. are mentioned in Sec. 68.
2 It is best evidence in all the circumstances. 2 It is in the nature of secondary and it is

admitted in exceptional circumstances
mentioned in Sec. 63.
3 Giving primary evidence is general rule. 3 Giving secondary evidence is exception

to the general rule.
4 No notice is required before giving primary 4 Notice is required to be given before

evidence. giving secondary evidence.
5 The value of primary evidence is high. 5 The value of secondary evidence is not as
that of primary evidence.
Unit - 4
23. Burden of proof
Certain facts require no proof. All other relevant facts, however, must be proved by the evidence, that is by
the statement of the witnesses, admission or confession of the parties and the production of the document.
The burden of the proof means the obligation to prove a fact. If no evidence is given by the party on whom
the burden is passed the issue must be found against him.
The expression burden of the proof really means, two different things. It means:
• Sometimes that the party is required to prove an allegation before judgement is given in its favour;
• It also means that on a contested issue one of the two contending parties has to introduce evidence.
The word ‘burden of proof ’ has not been defined in the Evidence Act. In criminal case it is accepted principle
of criminal jurisdiction that burden of proof is always on prosecution. It never changes. This conclusion is
derived from fundamental principle that, the accused should be presumed to be innocent till he is proved
guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt.
The burden of proof is of two kinds:
(a) Burden of proof on pleading: The burden arises from the pleading depends upon the facts asserted or
denied and it is determined by the rules of the substantive and statutory law or by presumption of law and
fact.
A files a suit against W, widow of B for declaration that he is owner of all the property left by B being his
adopted son. W the widow denies the factum of adoption. In this case, the burden of proof lies on A. In this
illustration, the burden has arisen from pleading and is determined by rules of substantive law.
(b) Burden of adducing evidence: The burden of adducing evidence rests on the party who would lose if
no evidence is led by any of the parties.
A files a suit on the basis of a bond. B admits the execution of the bond but pleads that the bonds was taken
by the practicing fraud upon him. Here, the burden to lead evidence first lies on B and the A will produce
evidence to rebut the evidence led by B. This kind of burden of proof is sometimes termed as onus of proof
(Onus Probandi)
Burden of proof in civil cases: The standard of proof applies in all the civil cases. The court has to strike
the balance of the probability. Even in case where fraud is to be proved the same standard is to be applied.
In a suit for declaration of title and possession, plaintiff ’s suit can’t succeed on any alleged weakness in the
title or possession of the defendant.
Burden of proof in criminal cases: The prosecution has to prove the guilt of the accused beyond the
reasonable doubt. In criminal cases, the burden of proof even in the sense of establishing a case is always on
the prosecution. The prosecution has to stand on its own legs. It has to prove the guilt of the accused on its
own evidence. The weakness of the defence will not help the prosecution.
If the prosecution evidence as a whole is unreliable and can’t be accepted the silence of the accused never be
permitted to become a substitute for the proof by the prosecution.
The accused need not prove his case beyond the doubt. It is enough for him to show, preponderance of
probabilities in his favour.
Importance of the burden of proof: The question of burden proof at the end of the case, when both the
parties have adduced their evidence is not of very great importance and the court has to come to a decision
on a consideration of all materials.
Burden of proof as determining factor of the whole case can only arise if the tribunal finds the evidence pro
and con so evenly balanced that it can come to no conclusion. Then the onus will determines the matter and
the person on whom the burden of proof lies will lose. But if the tribunal, after hearing and weighing the
evidence, comes to a determinate conclusion the onus has nothing to do with it, and need not be further
considered.
The case is to be decided on the merits without taking in to the consideration as to on which of the party the
burden of proof lay.
24.Court may presume the existence of certain facts
A presumption is a rule of law that attaches definite probative value to specific facts or directs that a
particular inference as to existence of one fact not actually known shall be drawn from a fact which is known
and proved.
It furnishes prima facie evidence of the matter to which it relates and relieves the party of the duty of the
presenting evidence until his opponent has introduced evidence to rebut the presumption.
Presumption hold the field in the absence of evidence but when facts appear presumptions go back. The
presumption may be either of law or fact and when of law may be either conclusive or rebuttable but when of
fact are always rebuttable. Mixed presumptions are those which are partly of law and partly of fact.
Court may presume the existence of certain facts
If a fact is likely to have happened in the common course of the natural events according to general human
conduct, according to public and private business, in their relation to the facts of the particular case, the
court may presume the existence of such fact.
So, a letter was posted it shall be presumed that it reached the addressee. A sent a registered notice to B
terminating the lease of a house and requesting hi to vacate the premises. Afterwards A files a suit for B’s
ejectment. B denies having received notice ruminating the lease. A files the postal receipt showing that the
registered letter was sent by A to B. Now this having been proved the court may presume that the notice did
reach B and it lies heavily on B to prove that he didn’t receive the notice.
Common course of natural events
The course of the conduct which this section terms as ‘common’ can only be that which is most common in
the experience of the judge who has to decide the point. The conduct of the animals as dogs are not
admissible under this section.
If live-in-relationship between the parties continue for a long time, it can’t be termed as ‘walk in and walk out’
relationship. The presumption of the marriage arises between them.
25. Promissory estoppel
Doctrine of promissory estoppel has been variously called ‘Promissory Estoppel’, ‘Requisites Estoppel’, ‘Quasi
Estoppel’ and ‘New Estoppel’.
The ‘estoppel’ is rule of equity. Where the parties enter in to an agreement which is intended to create a legal
relation between them and in pursuance of such arrangement one party makes a promise to the other which
he knows will be acted on and which is in fact acted on by the promissee, the court will treat the promise as
binding on the promisor to the extent.
Consideration is an essential element of the contract but promisors estoppel is an exception to it. Before the
doctrine of promissory estoppel can be invoked it must be proved:
• There is a promise in regard to something to be done in the future;
• The promise was intended to affect the legal relations of the parties and to be acted upon accordingly;
• That it is one on which the other side has, acted to its prejudice.
Application of doctrine of promissory estoppel to the Government
The doctrine of promissory estoppel has also been applied against the Government. The government is not
exempted from liability to carry out the representation made by it as to its future conduct and it can’t fail to
carry out the promise made, on some undefined or undisclosed grounds.
The Supreme Court has refused to make any distinction between a private individual and a public body so far
as the doctrine of promissory estoppel is concerned. But if the promise on behalf of the government is
unconstitutional and against public policy the question of promissory estoppel against government doesn’t
apply.
26.Estoppel - Kinds - Distinction with Res Judicata
Estoppel can be described as rule of creating or defeating rights. The doctrine of estoppel applies in the cases
affecting the rights. Estoppel which enable a party against another party to claim right of property which in
fact he didn’t possess is described as estoppel by negligence or by conduct or by representation or by holding
out ostensible authority.
Estoppel may itself be foundation of right as against the person estoppel.
Kinds of estoppel: Estoppel properly so called is of four kinds, namely:
(a) Estoppel by matter of record or quasi record: Estoppel of the records arises -
• Where an issue of facts has been judicially determined, between the parties by a tribunal having jurisdiction
in the matter; and
• Same issue comes directly in the question in subsequent proceedings between the same parties; and
• Where the first determination was by a court having exclusive jurisdiction, and the same issue comes
incidentally a question in subsequent proceedings between the same parties.
Estoppel by the record: Estoppel by record is enacted by a final judgement. A party relying on estoppel by
record should be able to show that the matter has been determined by judgement in its nature final.
A judgement which purports finally to determine rights is nonetheless effective for the purposes of the
creating an estoppel because it is liable to be reversed in appeal. A judgement obtained by fraud or collusion
may be treated as nullity and it will not work as an estoppel.
(b) Estoppel by deed: Where in a deed made between the party and verified by their seals, there is a
statement of facts, an estoppel results, and is called ‘estoppel by deed’. The estoppel is binding on each party,
of otherwise, it is only binding on the party making it.
Estoppel by deed is based on the principle that when a person has entered in to a solemn engagement by deed
under his hand, he shall not be permitted to deny any matter which he has so asserted. If, a deed was obtained
by fraud, force or other foul practice, or a forgery, no estoppel can arise.
(c) Estoppel in pais i.e., estoppel by conduct: Where one has either by words or conduct made to
another a representation of fact, either
• with the knowledge of its falsehood; or
• with the intention that it should be acted upon; or
• has so conducted himself that another would understand that a certain representation of fact was intended
to be acted on,
and that other has acted on the representation and thereby altered his position to his prejudice, an estoppel
arises against the party who made the representation.
(d) Estoppel by election: The doctrine of estoppel by election is one among the species of estoppel in pais,
which is a rule of equity. By this law, a person may be precluded by way of his actions, or conduct or silence
when it is duty to speak, from asserting a right which he would have otherwise had.
Distinction between estoppel and res judicata
Estoppel Res Judicata
1 It prevents a person from saying one 1 It prevents the jurisdiction on the subject
thing at one time and retreating from it at matter already decided by the
another time. competent court on same issue, between
the same parties.
2 It is rule of equity. 2 It is rule of legal procedure.
3 It is based on rule of equity, justice and 3 It is based on public policy.

good consciences.
4 It originates from representation or 4 It originates from decision of the court.

conduct of the party.
5 It can be inferred from the conduct of the 5 It is claimed on the basis of previous
parties. decision of the competent court.
27. Presumption in rape cases
In order to constitute an offence of rape under the Indian Penal Code, two facts have to be proved:
• the accused had sexual intercourse with a woman;
• the rape committed without her consent.
In order to punish the accused for rape the prosecution has to prove that the sexual intercourse was
committed without the consent, because rape with pre-consent of major girl is no offence.
Sec. 114-A of the Evidence Act lays down that in the cases mentioned in the section the prosecution has to
prove only that there was sexual intercourse between the accused and the prosecutrix. After that if the
prosecutrix states in her evidence before the court that she didn’t consent, the court shall resume that the
sexual intercourse was committed without the consent of the woman. Then it lies on the accused to prove
that he committed the sexual intercourse with the consent of the woman. If he fails to prove the consent of
the woman he shall be convicted for the offence of rape under section 376 of Indian Penal Code.
28.Presumption in dowry cases
(a) Soon before her death: To attract the presumption of the dowry death. It is essential to establish that
the victim had been soon before her death subjected to cruelty or harassment in connection with the dowry.
There must be nexus between the demand or dowry, cruelty or harassment based upon such demand and date
of the death. The test of proximity will have to be applied, it is not a rigid test and depends on facts and
circumstances of each case and calls for a progmatic and sensitive approach of the court within the confines
of law.
The presumption will be raised only on the proof of following essentials:
• The question before the court must be whether the accused has committed the dowry death of a woman.
• The woman was subjected to the cruelty or harassment by her husband or his relatives.
• Such cruelty or harassment was for or in connection with, any demand for dowry.
• Such cruelty or harassment was soon before her death.
There must be material to show that soon before her death, victim was subjected to the cruelty or
harassment. There must not be the possibility of natural or accidental death.
Once it is established by the prosecution that soon before her death, the deceased was not subjected to the
harassment and cruelty in connection with the dead for dowry, it will be presumed by the court that the
suicide was committed by the deceased.
29.Presumption of legitimate of a child
maternity admits of positive proof, but paternity is a matter of inferences. The connection of a child with his
father is secret but it may be ascertained by the subsisting facts. It is a legally constituted relation between
him and the mother of child. To be clear it is known to everybody that maternity is a fact and paternity is a
surmise.
Sec. 112 lays down that if child is born during the continuation of valid marriage between the mother and a
man or within 280 days after the dissolution of the marriage, the mother remaining unmarried, it shall be
presumed that the child is a legitimate son of that man, unless and until it is shown that the parties to the
marriage had no access to each other any time when the child would have been begotten.
A marries W on the 3rd March, 1930 and the wedlock continues up to 3rd January, 1935. A child is born to the
woman on 2nd June, 1932. Now, it shall be presumed that this child is legitimate son of A.
Suppose A and W marry each other in 1930 and their marriage is dissolved on 1st January, 1935. The woman
doesn’t marry after the dissolution of the marriage. A son is born to her on 7th September, 1935. Now, it is well
within 280 days and it shall be presumed that the child is a legitimate son of A.
30.Estoppel and Tenancy - Dattaram S. Victor Vs. Tukaram S. Victor
AT the time of allotment, the appellant indicated in form C, submitted to the Board that his brothers,
respondent along with his wife would be occupying the premises. The Board accepted form C. It was held
that, Board was estoppel from terminating tenancy on the ground of subletting. The Supreme Court held the
order of eviction illegal.
Unit - 5
31. Competency of witnesses
A witness is said to be competent when there is nothing in law to prevent him from appearing in court and
giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to
him and the capacity to give rational answers thereto.
Competency of a witness
A witness may be competent and yet not be compellable. He may have the power of the understanding the
question and may be able to give rational answers thereto, but may not be subject to the authority of the
court. In other words, the court can’t be compelled by a court to appear before it to give evidence. Foreign
ambassadors and sovereigns can’t be compelled by a court to appear before it to give evidence.
Who may testify
All persons are competent to testify unless they are incapable of giving evidence or understanding the
questions. The reason may be, extreme old age, disease or any other cause of the same kind.
Even a lunatic is a competent witness provided he is capable of understanding the questions put to him and
giving rational answers. The court has to ascertain in the best way possible whether from the extent of his
intellectual capacity and understanding, the witness is able to give a rational account of what he has seen or
heard or done on a particular occasion.
Child witness
A child even of 6 or 7 years of age may be allowed to testify if the court is satisfied that they have capacity to
give rational testimony. A child is a competent witness when such child is intellectually sufficiently developed
to understand what he or she had been and afterwards to inform the court about it.
Unable speak
When a deaf-mute is a witness the court will ascertain before he is examined that he possesses the requisite
amount of intelligence, and that he understands the nature of an oath. A deaf-mute’s evidence may be taken -
• by written questions to which he may reply in writing; or
• by means of signs.
Judges and Magistrates: A Judge or magistrate can’t be compelled to give evidence about his conduct in
relation to a case tries by him. However, he can be a evidence with special order of Higher Court.
Husband and Wife: In a criminal case any person, the wife (if the accused is husband) or the husband (if the
accused is wife) of such person shall be competent witness. Thus, the wife or husband of a party to a
proceedings is a competent witness and capable to testify.
32. Leading questions - When they can be asked
A question is leading one when it includes to the witness the real or supposed fact which the examiner
expects and desires to be confirmed by the answer. Whether a question is leading is to be determined by the
circumstances in which the question arises.
Examples of the leading question:
✦ Is the plaintiff your brother?
✦ Have you not lived for 10 years with him?
✦ Is not your name Shyam?
✦ Do you reside at Bangalore?
In these questions, the examiner clearly suggests the answer. Generally the answer to the leading questions
are given by ‘YES’ or ‘NO’. But it can’t be said that in order to stamp a question leading the answer to it must
be as ‘YES’ or ‘NO’.
When they may be asked?
Leading questions may be asked in cross-examination. However, counsel can not ask mis-leading questions in
cross-examination.
Suppose, a witness appears for the plaintiff, the defendant tries to show that the witness is a servant of the
plaintiff and so he is an interested witness. The proper question to be put by the defendant in cross-
examination would be ‘Are you a servant of the plaintiff?’
A question ‘How long have you been in service of the plaintiff?’ is not proper as it assumes that the fact that
the witness is a servant of the plaintiff has either been proved or it has been admitted by the witness.
33. Impeaching the credit of witness
Sec. 155 prescribes manner of impeaching the credit of a witness. Sec. 138, 140, 145 and 154 provides for
impeaching the credit of a witness by cross-examination. Sec. 146 permits questions injuring the character of
the witness to be put to him in cross-examination. Sec. 155 lays down a different method of discrediting a
witness by allowing independent evidence to be led.
This section lays down 4 different ways in which the credit of a witness may be impeached.
(a) Independent evidence may be given that a witness shall be examined by the opponent bears such a general
reputation for untruthfulness that he is unworthy of the credit. The witness must be able to state what is
generally said in front of others whom he lives.
(b) Independent evidence may be given to prove that the witness has been bribed or has accepted the offer of
a bribe. But, where the witness has been merely offered a bribe is not be accepted. Demand of the bribe by
the witness should be proved.
(c) The credit of witness may be impeached by proof of his former statement with any part of his statement
before the court.
If a witness intended to be contradicted with his previous statement in writing, the attention of the witness
must be drawn to it. It is not necessary under the provisions of the Evidence Act, to cross-examine and
compare the witness by the previous oral statement, however, it is advisable.
A witness can be cross-examined and compare only with that previous statement which was made in writing
or was reduced to writing. That section is not applicable to oral previous statement.
(d) In trials for rape or attempt to commit that crime the evidence that she is a reputed prostitute can be
given for it goes long way in raising an inference that she yielded willingly.
34.Examination-in-Chief, Cross Examination and Re examination
Examination-in-Chief
When a witness presents himself before the court, he is given oath or affirmation. His name and address is
taken down. Then, the party by whom the witness is called to examine him for the purpose of eliciting from
the witness, all the material facts within his knowledge which tend to prove his case. This is called
examination-in-chief.
The object of examination-in-chief is to elicit the truth, to prove the facts which bear upon the issue in
favour of the party calling the witness. The witness can give evidence of fact only and no evidence of the law.
Cross examination
After the party calling a witness has finished the examination-in-chief, the opposite party has a right to cross
examine the witness. Cross examination, if properly conducted is one of the most useful and tool of
discovering the truth.
Once a party even by the mistake, comes to the witness-box and swears and deposes about a document, he
becomes a witness and will be liable to be cross examination by his opponent. His cross examination may be
about the whole case. It can’t be confined to only the facts stated by him in examination-in-chief. A witness
proving a document may be cross-examination in other points also.
Every accused is entitled to cross examination, a presentation witness on the evidence against him. Such
statement may be made in the examination-in-chief or in the cross examination of another witness.
An accused is entitled to put further question to a prosecution witness by way of cross examination in respect
of what he had stated in reply to the questions put to him in cross examination by the other co-accused.
It is a rule of Justice that a party must put the crucial and important part of case to the witness of the other
side in their cross examination, if no such questions are put, the court presume that the witness’s account has
been accepted.
Re examination
The party who called the witness may re examine him, if it be necessary. The re examination must be confined
to the explanation of the matters arising in cross examination.
The purpose of re examination is by asking questions as may be proper to draw forth an explanation or
meaning of the expressions used by the witness in cross examination, if they are doubtful.
New matters may be introduced by the permission of the court and if that is done, the adverse party has a
right to cross examine the witness on that point.
35. Accomplice
An accomplice is a person who is a guilty associate in crime or who sustain such a relation to the criminal act
that he can be jointly, indicated with the principal criminal.
The word ‘accomplice’ has not been defined by the Act and therefore, it should be presumed to have been
used in its ordinary sense. A accomplice means a guilty associate or partner in crime or who in some way or
other is connected with the offence in question or who makes admissions of the facts showing that he had a
conscious hand in the offence.
Where a witness is not concerned with the commission of the crime for which the accused is charged he can’t
be said to be accomplice in the crime.
Categories of the accomplice
In order to be an accomplice, a person must participate in the commission of the same crime. This
participation may be done in various ways. The modes of taking part with a crime are -
(a) Principals in the first and second degree: A principal of the first degree is one who actually commits
the crime. A principal of the second degree is a person who is present and assists in the perpetration of the
crime. These persons are undoubtedly under all the circumstances accomplices.
(b) Accessories before the facts: An accessory before the fact is one who encourages or procures the
commission of the crime. Persons to be accomplice, must be participate in the commission of the same crime
as the accused person in a trial are charged.
(c) Accessories after the facts: Every person is an accessory after the fact to a felony, who knowing that a
felony has been committed by another person receives, comforts or assists him in order to escape from
punishment or rescues him from arrest, intentionally and voluntarily allows him to escape or opposes his
arrest. Three conditions must unite to render one an accessory after the fact:
• the crime must be complete;
• the accessory must have the knowledge that the crime has been committed;
• the accessory must harbour or assist the principal crime.
36.Privileged communication
By reason of the complexity of law, litigation can only be properly conducted by professional men. A litigant,
in order to get a correct legal opinion and to make his Vakil or Pleader fully conversant with the facts of his
case, has to make a clean breast.
A man of legal profession, is forbidden from disclosing without his client’s consent:
✦ Any communication made to him in course of and for the purpose of his employment; or
✦ The contents of conditions of any document which came to his knowledge in the course of and for the
purpose of his employment; or
✦ Any advice by him to his client in the course of and for the purpose of such employment.
The counsel has right to claim privilege and refuse to show the statement of witnesses recorded by the court
in extensive and supplied to him in order to prepare himself for an effective cross-examination, if he has
recorded instructions of his client on these statement.
However, the communication would not be privileged:
• When such communications are for an unlawful purpose having for their object the commission of a crime;
• When after employment of the lawyer, he observes that some crime has been committed.
This section has been enacted for the protection of the client and not of the lawyer. Therefore, the lawyer is
bound to claim the privilege unless it is waived by his client.

The Indian Evidence Act, 1872: 6st Semister - 3 Year LLB - Karnataka Law University

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The Indian Evidence Act, 1872 15 November 2016

The Indian Evidence Act, 1872

Shiva Shankara R Shetty is an

He also possess expert

•Material things other than documents, e.g., weapons, articles of the

•Statement made out of court or before the court by the parties;

•A thing like struggle in the case of murder;

•The result of local inquiry or inspection;

The evidences are 2 kinds. They are:

h) Non Judicial evidence

j) Circumstantial or indirect evidence

2. Definition of admission, Sec. 17

i) A party to the proceedings;

ii) An agent to any party, as expressly or impliedly authorised by him;

iii) A representative of any party to the suit, in his representative capacity;

3. Difference between the confession and the admission

1 It related to the criminal proceedings. 1 It usually related to civil proceedings.

2 It is a statement made by an accused 2 It is an statement made by the person

3 It is voluntarily made by a accused. 3 It is not conclusive as to the matters

5 It made by one or more accused jointly 5 Admission by one of the several

6 It may be oral or written statement which 6 It is a statement oral or written which

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

Relevancy of the fact

Relevancy of facts forming part of same transaction

• Things said, namely, admission, confession;

• The statements by the persons who can’t called as witnesses;

• The statement under the special circumstances;

• The decision in other cases;

• The opinions about the facts in issue;

• The character and reputation of the parties concerned.

Basis of the rule

Facts forming part of the same transaction

Physical acts forming a part of a transaction

5. State when the statement of third persons are admissible

6. Fact, Fact in Issue and relevant Fact

Fact means and includes -

ii) any mental condition of which any person is conscious.

The fact may be classified as -

(b) Fact in issue

✦ that A caused B’s death;

✦ that A intended to causeB’s death;

✦ that A had received grave and sudden provocation from B;

(c) Relevant fact

• Fact forming part of the same transaction;

• Fact which are occasion, cause or eﬀect of the facts in issue;

• Motive, preparation, conduct of a party;

• Facts, necessary to explain the facts in issue;

• Things said or done by conspirators;

• Facts inconsistent with facts in issue;

• Facts helping in the estimate of damages;

• Transaction creating right, etc;

• facts stating of mind or body;

• Facts showing whether act is intentional or accidental;

• Existence of course of business;

• Statement of persons who are dead or can’t be found;

• Statement made under special circumstances;

• Opinion of the experts and others;

• Opinions as to existence of custom and usage;

• Opinion on relationship; and

7. Who can make admissions?

(a) A party to the proceedings

(b) Admission by the agent