Rc/evaiicv 01 eiii,v ill1,jihlic 1(COfl/ nan/c in perf1 -/naIoe of dut y.Svc.

35 7$5

shares in klicivals or other revenue papers affords by itself a very sI iglit indication 01
title iVaçe.rliar i'. Canes/ia, 47 IA 57 : 42 A 30$ A 1920 PC 16; /)u,a i.
Ghan,r/ijü,ii, A 1948 PC 2! 0 : 53 CWN 118; Nirincm i'. Rw/ropiata/i, 53 IA 226'
A 1926 PC 100: J?amanna c Sainlrnnioorrhv, A 1961 AP 3611.
An entry in the Record of Rights operates in (lie same way hetwcen landlords of
neighbouriniz estates as between landlord and tenant or between landlords of the
same estate or bctwecn tenant and tenant [Bibi Maki/am i'. Dc'o Nandan, 5 PLJ 68
59 IC 29$]. Remarks recorded by a settlement officer about a vi1lae alter inspection
is admissible [S/icc Baliadur c Bis/unath, A 1927 074 99 IC 876 ] . Remarks by a
ettlement Officer that certain names are entered as proprietors in a sanadSis
admissible [Paib/iu t .: Jitendra, A 1948 0 307]. As to presumption from entries in
Record of Rights, see notes to s 114. post. Sumiriarv settlements have not the same
value as a regular settlement (Saddu a Mcmi, A 1931 U 139].
Settlement records prepared under Re 7 of 1822 are relevant under s 35 [Rag/ia-
110w/an v. Bib/in, 39 C 304 : 12 IC 147]. Revenue records are not conclusive
evidence of facts recorded. The presumption is rebuttable lGurdir a lilt Bliago. 26
111,R 673; Vassan(Imal a Hiromal, A 1947 S 94). As to value of entries in revenue
register when the origin of the entries is not known, see P/ri/ia a Md Ali. 94 IC 18$:
A 1926 0 427. Though entries in survey records may not be sufficient evidence to
prove that a certain land is poramnboke, they are good evidence where the only
question is as to the extent of porambuke land [Kalavi Narayana v. Secv of S, 29 IC
154:2 LW 413].
Entries made in settlement kiieo'ais even if they do not come under s 102 13 T Act
are relevant under s 36 F1'ratap a Jagadis/i, 40 CIJ 331 : 82 IC $86]. Pedigrees
prepared for purposes of settlement are relevant under is 35 [Bajnan/m a 1/aliadur, 91
IC 583 : A 1926 0 101; Saiju a Ram Hawk/i, 1$ IC 250 ] . Family traditions recorded
by a settlement officer as stated by a person without special knowled g e is of no value
[Ma/ct Baksh a Ajodlua, A 1936 0 340]. Ford badi/z prepared under the Punjab Land
Rev Act by pa/lean are public documents [Ma//k a KJiusa!, A 1931 L 6051.
Where the settlement officer was directed under Re g 7 of 1 822 to ascertain the real
nature and extent of interests held, more specially where the several papers may hold
interests, in the same subject-matter of different kinds and degrees, entries in kheivar.r
and k/iuiiiai,s would he admissible to prove the existence of disputed mortgage
[Skinner a Cliandan, 31 A 247: 6 AU 197. See Mi Scm a Nga Pywi, UI3R (1905)1.
Rates of rent appearing in ruhkars of Collectors under Bengal Land Rcvenu
Settlement Re g 7 of 1822 are relevant [Deonaro van a Dit'arka, 109 IC 136: A 1928
P 329]. Jummabuncli prepared by a Deputy Collector engaged in settlement work
under Reg 7 of 1322, was held to be a public document within the meaning of s 74
[Thru Parur a A/,inas/i, 4 C 79; dissented from in Ram Ch a Bunseedhur, 9 C 741.
See also Aks/maya a Sliama Chur,i, 16 C 586 and iJld ma yan a MelKorwimaiullah, 12)
A 301 PB]. Statements of facts by a settlement officer in the column of remarks in
the c//iarc'pairak, but not his remarks for the same, even though they may consist of
statements of collateral facts which it was no part of his duty to Coler into, arc
admissible in evidence [MacI/iay a Deonak, 21 B 695]. The presumption of
correctness of entries will not prevail where there was a decision by court long before
publication of record of rights [Kazi Muhammad a Sihiwn, A 1967 C 10].
—13a/wa,-a or Partition Papers.--Keshra Jcn,'an a Caya Alit,,, A 1937 P 567] or
banwara kehsra ['i5ilok-e i' U,nan, A 1922 P447 (38 IC 491 followed); Kali i' Mama,
15 P 5841, or k/ias,a girclwcmnis [Mc/ Din a Dime/i Di,,, A 1934 I. 698] or abadi khe.vra
I P/iakkar a Praeji, A 1935 0 268] are admissible in evidence. Baio'ara Khesra is
786 Sec. 35 Chap. /1—ui the Rcler'aacv of Fzct.v

gcncrally prepared by aniio on the admission of both landlord and tenant, and as such
is very valuable evidence in subsequent disputes. But h/iesra prepared riot oil
basis of admissions of all the parties, but oil supplied by one of them and
without enquiry is absolutely valueless in evidence and is inadmissible [Golab t:
S ycd Salka, 36 IC 513], Area given in settlement map is more reliable than area in
kliasia [Laharam t Guruinuk/rrao, A 1927 N 2041.
Records of existing rent and other assets of an estate published under s 48 Bengal
Estates Partition Act are admissible [Cliatteijee Estates Ltd i D/iirendra, 40 CWN
8211. Entries in batwari papers prepared under the Bengal Estates Partition Act are
some evidence of the existence of relationship of landlord and tenant and also sonic
evidence as to the rents payable, in a suit for tent [Jatindra c Isaf, 53 IC 19; sec
however, Nwrdalal e Mo/rant, 17 CWN 779: IS IC 143; Sad/iusaran v. Anthika, 68
IC 676, and other cases posi. Entries in registers maintained by Cantonment
authorities under Cantonment Act 3 of 1924 are not presumed to be true 11'h /raze t:
H C Vashistlia, A 1980 B 91.
Entries in partition papers prepared tinder Act 5 of 1897 as to amounts of rent
payable by tenants are evidence in the same way as entries in the Record of Rights.
Pr/mci facie they are evidence against the tenant, thou g h it may not he very valuable
[Janki t: Kirtarnath, 13 CWN 93: 4 IC 316]. But such entries are in no way binding
upon persons not parties to the batwara proceedings. So far as strangers are
call
concerned, the only way in which they treated as evidence would he under s
II [Rahirnudc/in t'. LImes/i, 87 IC 694: A 1926 C tISj. Barwara records are mere
evidence tinder s 35 as official records but such evidence is weak [Satis/i n
Kalicharan, 29 CWN 221; Gocool c Jamal, 55 C 680]. The batwara record is not
conclusive. Evcn when the question is between co-sharer and landlords, a subsequent
settlement record must prevail over the earlier partition record lBen ode o Rcmrani, 38
CWN 2681. Certified copies of papers in the Collectorate which pri,imafticie appear
to be the record of a partition made under Reg 19 of 1834 between the predecessors
of the parties to a suit are good and admissible evidence quite apart from s 35
I Khettrwmath i Md Al/a Baksh, 23 C\VN 48: 45 IC 921].
The batwa,-a map and batwara chitta prepared by partition am/t under s 54 of the
Bengal Estates Partition Act proved to have been accurately prepared or to have been
accepted or acted upon by the landlord are independently of s 35 admissible against
the landlord for the purpose of proving what lands were held by what tenants
[Dirtanoth n Nawab Ali, 49 IC QR; Mar!'. Dhanu, 59 IC 963]. Entries in
bahiara papers are valuable pieces of evidence [C'/rattar v. Bahar, 29 CWN 333: 86
IC 835: A 1925 C 635]; but it is for the court to determine in each case whether the
evidence is so valuable as to rebut the presumption of correctness of Record of
Rights [Jugdeo i Bulaki, 63 IC 226: A 1921 P 275]. Writs of attachment issued in
1792 and 1797 and prepared when the Collector took possession of a zemindari for
non-payment of revenue and batwara papers are admissible to prove the non-
existence of tenures. Much weight cannot be attached to a partition paper in the
absence of detailed information as to the history of the document, ie, when was it
prepared, by whom, in whose presence and for what purpose [Tarakumar v. Arun, 36
CLJ 389: 74 IC 383: A 1923 C 261], Batwara map prepared in a paritiori proceeding
between the proprietors of an estate is no evidence against tenants if it was prepared
after the creation of their tenancy [Banamali v. Sat/s C/r, 56 IC 1381.
The /iakikat cliotvhuddibteizdi (boundary) papers were made on Government form
in pursuance of a Government request and to afford the Government for their
purpose satisfactory information upon various questions to which they furnished
 Releia,jcv of entr y in public record made in peijniwice oJthit: Sec. 35 787

answers. Those papers gave description of th e different 'rus

ica with their different
boundaries and in the absence of any coll -mioll s whatever made in the statements
and of any documents forthcoming from the Government showing that the returns
'vere questioned, they must as between the Government and the zemindc,rs
(plaintiffs) he accepted as prifna lacre accurate [l-Iarodus e Sec', of 5, 26 CLJ 590 : A
1917 PC 86; Rajnwidiiii e Majimatha, 44 CWN 1079: A 1941 C 223; sec also Sec),
of S n Ka/ika, 15 CU 2811. Reliance call placed upon hand-skctches drawn up by
parties oil basis of the information derived From qninquenniai papers and /iakikat
c/iowliudth-bw,di papers ESecy of S e Wajid A/i, 34 CLJ 141].
Rubkari,—Recital of ekrarnama and its terms in ancient Public document like.
Rubkari furnishes strong evidence of the existence and g enuineness of the
eki'arnwnci and its terms [Bisiewub liar o 5, 1954 SCR 842: A 1954 SC 139: 1954
SO 219].
—Wajih-ul-arz or Riwaz-ia,,z Papers.—Wajib-ul-aiz is a part of the settlement
record and a statutory presumption of correctness attaches to it [Avadhikislioje i
Ram, A 1979 SC $61]. Though an entry as to title in a wajth-uI-arz or record of
rights does not create a title, it gives rise to a presumption in its support, which
prevails until its correctness is successfully impu g ned [Dakas Khan v. Qua/am, 45 C
793:28 CU 441.4$ JC 473: A 1918 PC 4; Inc/er v. Ralthir, A 1978 P&H 9$ FBI.
Ikrarnama or sharail-irajth-u!-alz is one of the important documents of the record-
of-rights [State of Punjab ' Subash Cliander, A 1991 P&II 134, 137 (1987 Pull
393 Reversed)]. Value of entries in wajib-u/-cirz-----Thc views of Revenue authorities
as to the effect of a grant or the intention of the Government is not binding oil
courts [Rajindar e Siik/ii, A 1957 SC 286: 1956 SCR $891. Evidentiary value of a
ii'ajth-iul-arz in deciding whether the right to a particular mineral vested in the State
Government or not [Premc/iand aS, A 1972 P&1-1 501. Entries in wajib-111-arz or
village administration papers made in a settlement proceeding under Re- 7 of 1 882
recording the kind of custom in question, were held admissible under s 35 to prove
the cLlStom [Lekhrqj v. Mahiapal, 7 IA 63 : 5 C 7441.
A wajib-id-arz is all record, of more or less weight according"
circumstances, but still an official record of the local customs of the districts in which
it is recorded. But a settlement officer should not receive a mere expression of the
views of a proprietor or enter it upon the record, relating to the village Umnan v.
Gwidharap, 15 C 20: 14 IA 127 ] . Entries in wajib-ul-arz are admissible under s 35
even if made under misconception of official duly [Prein a Hai-ihar, A 1946 0 163].
Statements in wajib-ul-arz when not ambiguous are sufficient evidence of custom
[Balgobimid a Badri, 50 IA 196: 29 CWN 465: 45 A 413: A 1923 PC 70; reId to in
Slier i: Dust, 78 1C 45: A 1925 U 231: followed in Hubraji a Chimidiabali, A 1931
0 891] and is conclusive unless rebutted [Bajrang v. Rain, A 1943 0
291. Entry as to
custom in village note is admissible [Biclya v. Surk/iur, A 1931 P 263 W-ijib-ul-arz
].
prepared pursuant to the directions in Oudh Cir No. 20 of 1863 when properly used
afford most valuable evidence of custom and are much more reliable than oral
evidence given after the event. On the other hand, they at times contain statements
which would appear to have been concocted by the persons making them in their
own interest and are therefore to be disregarded being worse than useless [Roshwi Au
a Ashgur, A 1930 PC 35 : 57 IA 291. Entry in a wajib-u/-arz paper was not
exhaustive regarding the exclusion of collaterals [lValayat a Slier A/i, 19 PR 1917].
Entry in ii'ajth-u!-arz is not conclusive [Humid Fatima i. Bhiola, 52 IC 869].
An entry in a wajib-ul-ar is admissible in proof of customs of exclusion of daughter
under s 35 and its validity does not depend on whether it has been verified by the
788 Sec. 35 Chap. /f--O/ 1/li' Iheicianc of l'acrs
proprietor of the village or not [Me/u/i il/eliil. 10 IC 820: A 1927 0 6081. Fntrics in
'a/ib-ie/-ar made and authenticated b y the siCnaturcs ol' the officers who made theni
are admissible in evidence under this section in order to prove a family Clistoill of
inheritance, or under s 48 as the record of opinions as to the existence of such custom
by persons likely to know it [La/i r Alurhidluir, 33 TA 97 : 28 A 48$ : 10 CWN 730; sec
also Rum SarilJ? v. Situ! Prasad, 26 A 549: I AIJ 279. Sec also Par/rat, i: Chmidrupa/.
S CC 941. The weight of such entry must vary with the circumstances of each case, eg
the source of the knowledge of the person dictating [Pt-em s: 11w-i/ui,; sup]. In the case
of discrepancy in the khasra and umajib-111-ai-z the latter prevails IRanmji i: '/w)'abupu, A
1940 N 178; Manruraba, u Itha!, A 1954 N 103].
• A ii'ujth-uI-ai -z prepared and attested in the form and manner prescribed by the
Board of Revenue, is prwia facie evidence of the existence of any custom o1 pre-
emption which it records, open to he rebutted by any one disputing the custom [Isri
Singh c Gun go, 2 A 876; followed in Mc! Hussain 'e Manna, 8 A 434: 6 AWN 166;
in Deohincuu!an x ,. 12 A 234 and in Ali Nasar i Manikchcmd, 25 A 90: AWN
(1902) 207]. In Garuradhwaja 1: Sciparandhu'aja, 27 IA 23$: 23 A 37: 5 CWN 33, it
has been held that such papers are no doubt admissible as evidence, but they are not
sufficient to outweigh the evidence afforded by the actin g s of the parties and actual
descent of the estate. In Md Imam o Husain, 25 IA 161: 26 C 81 it has been held,
that although as an official village record it is always admissible in evidence, y et its
weight may be very slight or considerable according to Circumstances.
An entry contained in a wajth-uI-arz prepared under the provisions of Act 19 of
1873, is prima facie evidence of its accuracy [Skimmer x: Chczndai:. 31 A 347: 6 ALl
1971. A statement in a mmajth-u!-ar made by a zemindar is not a statement narrating a
tradition, but it is a statement by a person possessing an interest and an existing right
in a village and is prima facie evidence that he is entitled to the right recorded therein
[Md Eaujaz u Behan, IS ALJ 893 FB: 40 A 45]. A Wajib-mil-arz hearing the sig-
nature of settlement officer and prepared on the information furnished by zenwidars
is admissible under s 32(4) and s 35 [Baijimath -u Rajju, 12 OLJ 571]. [As to entries in
wath-u!-arz, see also notes to s 13, ante].
The rimtaz-i-am is a public record prepared hya public officer in discharge of his
duties under Government rules and is clearly admissible in evidence [l3asant v.
Brijrcij; 62 IA 180: 57 A 494: 39 CWN 1057 : A 1935 PC 1321. SlIcmer af
customs in r,waz-i-an' are by thcmcies srong evidence even if instances are not
cited Nidh Kaur v. Gian Singh, A 193$ L 55]. Presumption of correctness of riivaz-
i-am may he rebutted if it is shown that the-class of persons adversely affected, eg
females and others had no opportunity to appear before the revenue authorities—
Value of entries in riim'az-i-am [Go/al a Parvin, 1952 SCR 825: A 1952 SC 231:
.S'ubhani v. Nawab, A 1941 PC 21: 68 IA 11. A judicial decision, though of
comparatively recent date may he sufficient to rebut the presumption of correctness
Of niwaz-i-wn [Sub/toni v Nawab, sup]. Certified copy of riwaz-i-a,'n may be of high
evidentiary value [Badii ncira}'an i: Nagarma!, A 1959 B 2411. In a conflict between
the rin-az-i-am and Rattigan's Digest, the former ordinarily prevails [Jaikaur a
S/ieising/m, A 1960 SC 1118: 1960, 3 SCR 975; Salig Rain v. tv1unsi Raw, A 1961
SC 1374: 1962, 1 SCR 470; Kellar Singh Dett'an, A 1966 SC 1555]. Though there
is a presumption of correctness in favour of riwaz-i-an: the quantiini of evidence
necessary to rebut the presumption varies with the facts of each case [Sahigram
Maya, A 1955 SC 266 : I SCR 1]91: 1955 SOJ 248].
—Statements in Judgments, Decrees and Orders etc.—Where the decree in a
Former siut of 1818 against the defendant's predecessor in title contained an abstract
 Relevancy (1/ CiliFy 1/1 /1111)1/C /C/OOI /1106 /1! J'C/10/711(//Rc oO/jtiv Sec. 35 780
01 the pleadines in the Case, the absu'act was admitted to /R)vC an admission made hy
the deftudaut's prcdccessor in title, under s 35 I /ii - /uiriv i: Puii,o, 9 C 586 followed
in B/la/a i. /'ando, 3 CU 521, where it has been held, that receipts ill jtldgmciils and
decrees are admissible ill under s -15 and also tinder s 13 1ollowed ill
Diama v, Kondaji, 15 M 37$ and in KrLVII,lasn'a,ni i: Rajagopalci , 18 NI 73; applied
in Bvothw nn
a t: J?ajagopala, IS NI 19 and dissented from in Sij6ranuj,jaw,,n
Parainasjiarani, I I M 116 and doubted in Swafei- o Eatclunulu, I
CWN 513; Rani
Swulur n ilarihala, 37 IC 911]. Ill i: Sitarain, A 1927 N 9: 97 IC 091 it has
been held that jud g ments are admissible under s 35. A statement amounting to an
admission by the Predecessor in title Of the opposite party contained ill a judgment is
CvidCnce under s 35 I Kri.rhnasu'aini e Rafagopala, 18 M 73, 78; followed
in Bihar
B/ ic i: iIada,i, A 1919 P 23] and the Judicial Committee observed that 'there is
much to he said for this view of s 35" I Co/fr oj Gomkhpur n Ramsundar, 61 IA
286:
56 A 468: 38 CWN 1101: A 1934 PC 157; sec Raivasitaojj i: Subbarava, A 1948 M
3S8; Cliandu/al t: Pitslikar, A 1952 N 27 I].

Where certified Copies of a decree and two pcdigrces Found with it are produced
by the parties. tile cort may presume that the pcditirL'es were the liecligre
e s filed by
the parties in the previous suit and they are admissible. The statement in the decree
that the pedigrees were filed is evidence under s 35 as an entry in a public record or
under s 13 as evidence of the course of proceedings [Co/ir of Gorakhpur i:
Rainsunda,; sup]. Relying on this Privy Council decision it has been held that an
entry ill order sheet of service of notice would be admissible under s 35 as
evidence, of the fact of service [Ga/hand/ia Loan Of/ice Ld n Saiyadujutessa, 46
CWN 967: 1943, 1 Cal 22: A 1943 C 114]. Where ajudgment constitutes die only
official record of all admission, it is admissible [Su/tharaya i: Se/lanue i/to, A
1933 NI 184]. Statement of court that a person admitted the claim of another in a case
before it, is relevant under s 35 as it forms part of the record Rudrapratap n Nirma/,
74 IC 225: A 1923061].

• . A recital in a public record as to a statement made by a public servant with

reference to a particular statement of the grant by the Government may be admitted
under s 35 as proving that the public servant made the statement that he is stated to
have made, if the fact that lie made such a statement is a relevant fact. But such
recital would not be admissible under s 4$ in a case where a specific right chainied by
a particular individual, and not a general right, is being dealt with fSaiikaracharya t:
Manali, 51 IC 876].
—Order-Sheet.—Order sheet of a certificate case under Public Demands
Recovery Act, 1913, recording that notice under s 7 was served, is admissible under
s 7 [Gajhancj/ma Loon O ffic e Ltd e Sciivac/unnessa sup].
So, entry in order sheet of
service of notice under Or 21, r 22 is evidence of service [Aswhij v Karwnat, A 194$
C 1 65 1. As to presumption of service of notice, sec s 114, i//us (e)
and notes, past.
—Books, Gazetteers and Reports.—\Vilson's Manual on questions of' customary
law in the Punjab is admissible under s 35 [Sub/ia,u t: Nan'ah, ante]. Sifton's
settlement report is admissible [Soniar n Bud/i, A 1937 P 463 There can he no
].
objection to refer to settlement reports or District Gazetteers, whether they are
strictly speaking evidence or not under s 35 Elopes/i Ch n Makl,uI, 47 C 979: 25
CWN 857: 60 IC 8941. Reports and Gazettccrs are not strictly evidence of the truth
of all the statements contained in them, although they may he read for what thcy are
worth Gainrudhivaja 'a Saparaiiadliieaja, 23 A 37, 49: 27 IA 23$; Kali Pr i:
Nagend ra, 44 CWN 873, 8841. Probative value of Settlement Reports in regard to
title or division of shares [Darpa Pd 'a G/ianas/iyam, A 1948 PC 210: 53 CWN 118:
790 Sec. 35 Chap. /[ —Of thc Relevancy of Pacts

7'irtha v. lxii Sailananela, A 1952 Or 991. Any entry with regard to it custom in a
particular locality contained in a 1)1)0k compiled by art under the direct ion of
Government, is admissible under s 35 [Tularwn v. Shyam, 86 IC 729: A 1925 A 64$].
So also the Manual of Customary law Published officially in accordance with the
riwaz-i-arn [Basant v. L?rijrai, 62 IA 180: 57 A 494: A 1935 PC 132]. Entry of the
marriage in the Administration Report of the Court of Wards is evidence under s 35
[Ari C/ietriar u Rama Reddiar, 9 MIJ 2141.
With regard to the reports of Collectors under ss 10&11 of Madras Reg 7 of 18 17,
as to existence of a customary right, the Privy Council observed --"When reports of
public officers express opinion as to private rights of parties, such opinions are not to
he regarded as having judicial authority or force. But being the reports of the public
officers made in the course of duty and under statutable authority, they are entitled to
great consideration, so far as they supply information of official proceeding and
historical facts, and also in so far as they are relevant to explain the conduct and acts
of the parties in relation to them and the proceedings of Government founded upon
them" lMuthu Ramalinga u Perianayagurn, I IA 209, 239 : 3 Sar 341; Mathewson u
Secy of S, 3 P 673, 682; Chandulal vPushkar, A 1952 N 271]. In order to prove that
a certain Raja had authority to appoint a ma/ian!, the plaintiff produced a report made
by the Koteval in 1 840 oil reference to him by the political agent for enquiry in
connection with the appointment of a certain mahant by the said Raja—Held that the
report was a public record of a public enquiry and was admissible [Baldeo v. Gohind,
36A 161].
Documents (report &c) coming from official sources recording statements as to
adoption made to officials before disputes had arisen were held of great weight
]A rjlino u. Modoninoliono, A 1940 PC 153: 1940 AU 671: 1940 Kar 349]. Although
official reports are valuable and in many cases the best evidence of facts therein,
opinions therein expressed should not be treated as conclusive in respect of matters
requiring judicial determination [Marta.nd u Malhar, 55 C 403, 406: 32 CWN 621:
A 1928 PC 10: 55 IA 45; see Muktakeshi v Midnapore Z Co Lsl, A 1934 P 309],
Report of a Collector containing a family tree on the question whether an estate
should be taken by the Court of Wards is admissible [Raniakrishna v. Tirunarayana,
A 1932 M 198]. Report of an officer under s 202(1) Cr P Code is admissible {Jagdat
v. Sheopal, 104 IC 287: A 1927 0 3231. Report by a magistrate relating to rights of
villagers oil complaint of a tenant is admissible lMaheswar i. S'ni!endra, A 195 1
Or 327}
The words "all in s 35 are not intended to apply to opinionof public officers
in the course of inquiries under s 202 Cr P Code or Or 26. Such opinions are not
sufficient to prove the truths of the assertions made therein without test of cross-
examination [Ghanaya u Mehtab, A 1934 L 890 ] . Police reports under s 107 Cr P
Code come within s 35 and are admissible where the handwriting is identified [Aid
Salim v. Ramkumar, A 192$ A 710: 110 IC 657]. Report of Revenue Inspector that
delivery of property was effected in pursuance of the court's order is in discharge of
his duty [Sathappci v. Thayyanayaki, A 1942 M 6981.
—Electoral Roll.—Electoral roll being a public document if, admissible in
evidence and it is not necessary to prove source of information on the basis whereof
fact stated in the roll were recorded. [Raghunath Behera v. Balarain Pehera, A 1996
Ori 38,431.
Gazette Not ification.—Statcment in a gazette notification that an Act has been
assented to by the President is proof of that fact [Narayana v.5, A 1953 Or 1851. The
Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under
 Relevancy of entry in public ,i'conl nan/c in per/iI/Jluulce of dut y. Sec. 35 791
section 35 read with section SI [Bala Sliankar Mona Sankar Bliatijec v. Charity
Com,n,: Cu jaiat, A 1995 SC 167, 1751.
—Correspondence.—Copies of actual letters made in rcgisters of official
correspondence kept for reference and record are admissible under s 35 [Krishna
Dievar v. Ra,naswami, 40 NI 871: 33 NIIJ 277: A 1918 M 889; approved in P C
f'urushotlia,na v. S Peruinal, A 1972 SC 608, 614]. Copies ol Correspondence from a
Government Officer to his superior in due performance of official dut y are evidence
under s 35 [Lionel Edwards Ltd a S, A 1967 C 1911. It must always be a question of
drawing a line between records and correspondence which do and those which do
not fall within the scope of the section [Raniakrjs/,,,a a Tirimaravana, A 1932 M
198]. Remarks made in a letter passing between officials are not evidence under s 35
[Gludanz a Sammidar, A 1936 L 37].
—Army List, Medical Register, Calendar, etc.—Arrny list or Gai.eiie purporting
to be published by authority of Government, Law list or Roll of solicitors kept at the
office of the Law Society, Medical Re g ister published by the Genera] Council of
Medical Education are admissible to prove the names of persons and their rank or
qualification. Universit y and College books arc admissible to prove degrees con-
ferred and other collegiate proceedings. University calendars are not admissible to
prove the truth of the particulars contained therein IPhipson 11th Ed p 475].
The absence of a person's name in a law list published by authority, is prima facie
evidence, until the contrary he made to appear, to show that such person is not
qualified to practice IR a Weitham, 1866, 10 Cox CC 222, cited in Taylor 10th Ed
1179 foot-note].
—School Records, University Certificates, etc.--- School certificates are admis-
sible [Liladhar v. Mabihi, A 1934 N 44] as also Matriculation certificate [Hrishikesh
a Sushil, A 1957 C 211; Jagadananda a Rabindra, A 1958 C 533:
Anadi a
Rabindra, A 1962 C 265]. A g e as recorded in the school certificate can he relied on.
[Mahendraprasad Singh v. State of Bihar, A 1995 Pat 162, 1651. Entry in admission
register is a very important piece of evidence. [Raghunath I3ehera a Balaram
Behera, A 1995 Ori 38, 43. See also L. Debi I'd. a Tribeni Devi, A
1970 SC 1286].
Admission registers arc admissible in evidence [Maniyamkandi Kun/iira-man a
Macli/i Parambath Vanaja, A 199$ Kcr 24]. Entries in school record made by the
Headmasters in discharge of their official duties can be regarded as pieces of
circumstantial evidence and not as direct evidence of the date of birth. Failure to
prove that the date of birth entered in the horoscope was the correct date of birth
would not increase the evidentiary value of the entries of the date of birth ill school
record [Tara Devi v. Sudesh Chaud/aiy, A 1998 Raj 59 A school certificate or an
].
admission form is not a conclusive evidence of the age of a person. [Chidda Rain a
State, 1992 CrLJ 4073, 4075 (Del)]. School admission register cannot be regarded as
the sole clinching factor for determination of age. [Bis/wudas 13e/jera a Stare of
Orissa, 1997 CrLJ 2207, 2209 (On). See also Pravakar Pail v. Ajaya Kumar Das,
1996 Cr1LJ 2626]. School leaving certificates, procured belatedly and containing
contradictory assertions, produced in support of claim for alteration in date of birth
entered in service record, were not reliable. [Union of India a Kant/la! Hemantrain
Pandya, A 1995 SC 1349, 1351].

Even if rules do not specifically mention about the caste for the purpose of
alteration and Correction when the name date of birth and religion can be corrected
and altered on the ground either a wrong entry or subsequent changes, it stands to
reason that any entry relating to caste in the admission register should also he
permitted to he changed in case of error or mistake. [Kerala Partika Jaihi Samrek-
7°2 Sec. 35 ('hap. II -- . O[ ihe he/clone )' at /u'l.v

.v/iana Swnithv o State (FR), A 1995 Kcr 337, 3 47 1 . Where the date of birth Liven in
the school certificate was based on the date nientioned in the transfer certificate, but
the name of the school from which the transfer certificate was obtained itself was
absent from that certi hcate, no reliance call be placed on such School certificate.
[Jagrar Singh v. Stale of Punjab, A 1993 SC 244$ : 1993 CrLJ 2886]. What is stated
in School Admission Register as to the age of a student cannot he treated to be
correct since the guardians understate thc age of their children than the real one at the
time of admi s sion in the school. [13r11 /iohoii Singh IF / >riva Brat iVarain Sin/ia, A
1965 SC 282; Rain Miirti State of Har yana, A 1970 SC 1020; Manoranian c Stare,
(1992) 5 OCR 200 followed in Pravakar Pati i: Ajava Kuinar Dos, 1996 Cr1 J 2626
(On). When there is conflict between the expert opinion and school leaving
certificate as regards the age of the girl, the accused is entitled to the benefiL of doubt
[Prai'akar l'ati o Ajayo Kumar Dos, 1996 Cri U 2626, 2627, 2628 (On)]. Unproved
and unexhihitcd school certificate cannot be treated as evidence [Ranimu,-ti n S, A
1970 SC 10291. Certified copy of "transfer certificate" granted to a pupil by the
headmaster of a Government School (Indian State) is admissible to prove age
]Maharj i: Krishna/mi, 50 B 716: 99 IC 307: 28 Born LR 1225; Indian Caftan Co r:
Raghwiat/i, A 1931 13178: 33 Born LR 1111.
On a question of age of a girl, certified copies from school register and affidavit by
father stating date of birth and statement of the girl to the police amount to evidence
[AM Jkram v. 5, A 1964 SC 16251. It is not necessary to examine its author especially
when the entry is proved by the Headmaster of the school [Ilarpal Singh v. State of
H.P., A 1981 Cri U I : A 1981 SC 361, 3621. Entries in school register or
vaccination register as to age are relevant [Legal Rem o For/md, A 1934 C 766; Ago
Jan o Keshco, A 1940 N 217; Kalaram v. Fezal, A 1941 Pesh 38 ] . Evidentiary value
of entries as to age in school admission registers [Abdiil Majeed i Bliargavan, A
1963 K 18]. Entry as to age in school register based on the statement of deceased
father is admissible [Muwia v. Kaancshri, A 1929 0 113; Manick v. Krishna, A 1932
N 117; Latafat v. Onkar, A 1935 0 41; ½s/uiu v. Kuruvilla, A 1957 K 103]. But
entries in school register by employees in school other than Government or State
school is not admissible under s 35 [Hook v. Ma E, 1940 Rang 481: A 1940 R 191;
Gopalan ': Kannan, A 1959 K 12; Sesliagiri v. R, 1936 MWN 111; Anontrain r: 5, A
1975 P&II 198]. Entry of birth date in non-Govt school's General Register kept
under Bombay Primary Education Rules, 1949 is admissible under s 35 but does noi
prove the age [Swusuddi;i r. S. A 1,),7n C 178 (Rhino v. Magarwn, sup dist)]. Entry in
any iccord of even a private school run under the Education Code of any State Govt
is admissible [Rad/iakris/iana o Bhus/iwi, A 1971 J&K 62].
Under the Educational Rules every school whether Government or Private is
obligated to maintain register of admissions with the prescribed particulars and such
records can he considered as official records 'flrnissihle under sec 35 [Vijaya Kari v.
K. Swarna/atha, A 1983 AP 181, 189]. In the case of a private school no presump-
tion of authenticity can be raised with regard to this document particularly when it is
not maintained in the regular course of business [Sa/i/I, Singh v. State, 1991 Cri U
687, 689 (Del)]. Register of admissions kept by Municipal High School is admissible
[In Sri ram Reddi, A 1960 AP 253]. Such registers are public decurncnts which
could be proved by secondary evidence [Subbarao o Venkara, A 1964 AP 531. Entry
in School Register as required by the Bihar & Orissa Education Code is admissible
[Bhim v. Magaram, A 1961 P 21]. It is however very common to understate the age
when entering a school in order that the boy may not be too old for Government
Service [Ml Hassan ii. Safdar, 14 L 473; Bwisirwn v. Jitra,n, A 1964 Pu 2311. The
court of fact cannot ignore this fact when assessing the value of the entry [Brijmohon
 Relevancy of ei,trr in /nth/ic record ouch' in peijermonce of dul , Sec. 35 793
Y
i: P/7yabiijt, A 1965 SC 2821. Such entries arc of little value
[ilsaiand e Gian, A
1936 1. 583; Anantrain t: 5, A 1975 P&H 1931, specially when there is nothinig to
ShOW on whose statement the entry was made [Janaki t: Jvorish, A 1941 C 4 : 45
CWN 141; Jaça,inut/i e Motiram, A 1951 Pu 377; Radlikrjsluia v. Biwsan, sup].
Where the basis on which entries in the school rccui'd were made has not bL'cii
proved, no ieliancc can he placed oil school record [Rake.c/ i i Stateof
Rcijast/ian, 1998 Cri U1434, 1439 (Raj)]. Entry ii voters' list carries greater weight
than the school re g ister [Nazir Hussain v. 5/7te, 199$ Cri U 1720 (Cal)[. Whether
the person had special means of knowledge when stating the age does not affect the
admissibility under s 35 though it may affect its value (Ago Jan v. Kes/ico, A 1940 N
2171. Date of birth in the school certificate from school regisler unlike birih register
cannot be relied upon with implicit faith when doubt has been cast by medical
evidence [Raunki i: S. A 1970 P&H 450].
For the purposes of the Juvenile Justice Act, 1986, it has been held that the entry
in the lEigh School certificate of the date of the birth of the accused is presumed to he
correct. Burden lies ail party who is challenging it to prove , his challenge. The
Court also held that entries in the electoral roll showing the age of the person
concerned call he relied upon to determine the age of the juvenile
Rajpiii i: State of UP, 1998 Cri U 2797 (All)]. [Ma yank

—Process-Server's Report, see past 5 74.

—Certificate at Foot of COflfCSSIOn.—A certificate by a magistrate as to the
voluntariness of a confession is good prima ftzcie evidence. It is not conclusive and
facts which may lead the court to think that the confession was not voluntary can be
proved [Nor Singh e R, 73 IC 257: 25 OC 22]. As
to the mode of recording
confessions, see ante s 24. As to presumption in a record of confession, see s $0.
—Other Entries.—Peon's return in execution proceedings being all
record made by a public servant in the discharge of his official duty isldniissible in
evidence [Heramba i Surendra, 53 IC 20: A 1919 P 465. (See notes to s 74
post).
Guardianship certificate under G&W Act is admissible in proof of age [Mohanv. Md
Adil, 89 IC 69: 12 OLJ 453]. Entry made oil certified copy indicating the date of
completion is relevant under s 35 but on ail as to the correctness of such an
entry the report of the copyist is not legal evidence without examining him as a
witness [Nizam c Md Ikbal, A 1928 L 643: 108 IC 6191, Summary of evidence by
registrar under rule 72 of the Madras Registration Rules is admissible [Sudaicana u
Seet/larainamma, 1933 MWN 1148]. Copies of shajra and k/iasra
of municipal
committee are admissible under s 35 [Jassaram 'i: Puran, A 1938 L 440: 40 PLR
693 ] . Entries in the Service Book of it Govt servant cannot be lightly challenged
[Kasinnath v. Kapila, A 1952 Or 285]. Entries in the Ledger Account of the High
Commissioner in London is admissible [G/iulam Atoned Govt, A 1960 J&K 1361.
Khatauni papers (returns) made under U P Land Rev Act are admissible [National
Investment &c v Mahendra, A 1960 C 724]. Entry in ail roll that
'A' is wife
of 'S' is admissible {Linga o Ajodliya, A 1974 Or 107 (Kirtan i Thakur, A 1972 Or
158 F13 foild)]. It is not necessary to call in evidence the author thereof or the person
supplying the information to prove its genuineness [Ganesh Swain v. Nakadi Swain
A 1983 Ori 279, 280].
Writ petition filed by a govt. employee towards fag end of his service seeking
correction of his date of birth entered in his Service and Leave Record or Service
Register with the avowed object of continuing in service beyond the normal period of
his retirement, should not be entertained. [Ruin Standard Co. Ltd. v Dinabandhin
79-I Sec. 35 chop. 11-0011c Rt'lcianrv Of I(1CIS

Majuinder, A 1995 SC 1499, 15041. Although no strong pre-Suniption ot correctness

arises from the cniries in Municipal K/uisia but all the same they are evidcncc of
facts nicnt toned therein according to section 10 of' Bihar and Orissa Municipal
and therefore its evidencing value has to be considered along
Survey Act (I of 1920)
with other material oil LLiil BoOn Yadav v. Ram Bibs/i Rai, A 1997 Pat 131].

ENTRIES IN RECORDS ETC ThAT DO NOT COME UNDER THIS SECTION

Registers. S 35 relates to that class of cases where a public officer has to enter in a
register or other books some actual fact, which is known to him; as br instance, the
fact of a death or a marriage. The record of the names of the proprietors of revenue-
paying estates by the Collector, under Bengal Act 7 ci 1876 is not evidence of the
fact of proprietorship under s 35; it is a record of right and not of act [Saraswati n
Dlianpat, 9 C 431: 12 CLR 12 (8 C 853 explained)—CONTRA : Sas/ii v. Girish, 20 C
940 ante]. Registration of name under the Land Registration Act is evidence of
possession, but not evidence at all of title as a proprietor SO registered [Shyama i. Md
Zarij, 9 CJ_J 91; Ram Bliusan t: Jebli Ma/ito, S C 853 ] . Revenue records are not
evidence of the title, for they are kept for fiscal purposes and it is no part of the duty
of the revenue officer to record title. But when the facts recorded are facts which it is
the ditt y of the revenue officer to record, then his record is evidence of those facts
under s' 35 [Bibi Sahehzadi v. Sayad Mu, 9 SLR 143: 32 IC 548].
Perganali and Kanungoe registers are not kept punctually and are not admissible
to prove an omission of an entry therein as to lackheraj [Bipradas v. Monor(inia, 22
CWN 396: 45 C 574: 47 IC 49 ] . Teishk/iana registers, prepared by a patwaru under
rules framed by the Board of Revenue tinder s 16 of the Reg 12 of 1817. is not a
public document nor is the patwari preparing the same a public officer Boijnath c
Snkhu, 18 C 534. Followed in Samar v. Jugaf, 23 C 366, where it has been held that
ieishk/iana papers prepared by patwaris under s 16 Reg 12 of 1817, not being papers
of the description contemplated by s 35, are inadmissible]. Reg 20 of 1817 does not
impose oil daroga any duty of keeping a register of cliowkidari chakran lands,—
s 35 does not cover such entries, but they are admissible under s 32(2) [Sheonandan
v. .Jeonandan, 13 CWN 71]. The fact of a person ' s name being entered in the
Collector's book as occupant of the land, does not necessarily of itself establish that
person's title or defeat the title of any other person lBajoji v. Bapuji, 12 B 751.
Certified copy of an entry from a book in the Collectorate made on the footing af a
return by a landlord prccribcd by b 4 of Regn 8 of 1793 and s 15 of Rcgn 7 of 1799
does not come under s 35 lTarak v. Prasanna, 28 CWN 679: 78 IC 7191.
A hissawari in consequence of a demand by Collector under s 30 Land Rcgn Act
is not a public register or record and is inadmissible. It would be admissible if it were
proved to have been made by the person by whom it is said to have been signed
[Tuiiha n Bandhu, A 1919 P 323: 59 IC 8]. Levy demand register prepared under
executive orders for the purpose of issuing food grain levy demands cannot be relied
upon for proving possession unless the official responsible for preparing the levy
demand notices are examined [Thunga e Vishalakshi, A 1975 Kni 111]. Where a
person's name is recorded in bhuinhary register prepared by the revenue authorities
under Bengal Act 2 of 1869—Held that such a register was not conclusive evidence
of the title of the person whose name was recorded herein, as a co-sharer in the
inokraree [Kit-pal v. Sukurmoizi, 19 C 91].
A mortgage cannot be proved by production of entries in and orised maps or
authorised revenue registers. The fact of entries is a relevant fact, but their production
in proof of mortgage is inadmissible unders 91 [Mating Ton v. Mating Khan, 84 IC
 Releivuicv of ciltry if public rico!4 tirade in / i Ci/ 'Oi7ilwuiv' o/thiiv Sec. 35 795
987: A 1925 R 61 (Mg liming r: Mg Chit,
I R 135 dissented Imm)J. Entry in
vaccination register regarding lather's name
birth is 1101 admissible under s 35 or s 157 Of' iIlcitimate child three years aher
[kinniapjni,z i Ku/lanwiof, A 1930 NI
-1
19 : 1929 M\VN 6961. An extract from icgisrer of applications
in respect of minors
and lunatics as to the age of a person is not admissible undei- s 35
Balder, 86 IC 681: A 1924 P 796]. Municipal registers of Gohhtilanaic/ v
thanas and khanasu,nai-j
are not admissible [Magan v Hat -bans, A 1936 1. 965].
—Books of the Calcutta Corpor
atiotl._Cerrifled copy of entries in the 'Inspec-
tion Book of Lands and Buildings" is not admissible flitendm e Mak/tan,
61 CWN
175]. Entries in the assessment register under s 143 Cal Municipal Act is at best
hearsay evidence and not admissible [Durgabala e A
l it y ananda, 59 CWN 367].

—Revenue and Settlement Records, etc.—T/,a,&-bast kljasra,

survey of a village is a rough register preliminary to
and statements entered in it have no evidentiar y
value unless it is proved that the persons adversely affected had notice of it and
opportunity to controvert it, but knowingly acquiesced in the statement before tile
ainin [Jagdeo v. Baldeo,
49 IA 399: 36 CU 499: 2 P 38: A 1922 PC 272]. This case
was explained in a later case holding that it was not intended in Jagdeo 's
down that i/ink case to lay
statements could never have any evidentiary value, still less they were
inadmissible in evidence; but only that they were of
110 evidentiary value when, as in
the case they dealt with matter outside the scope of the survey [Krishna i:
56 C 813: 49 CLJ 112: A 1929 PC 50: 56 IA 74]. An entry in a Dhirendra,
paimaisli (survey
measurement) account alone is not sufficient evidence to establish a right which is
denied [Keshar'an e Basude p a,z, 7 M
75]. Khasra paiinaish of a municipality or
police records of levy of p unitive tax is not
a record of title but a mere record of
survey which carries no presumption of correctness of ownership
1934 1, 885]. Rasa/xuzdj or chowkidara [Kariar n Me/ri, A
1'. Ghwrava, 94 IC 125: A 1926 L 452].
papers are not admissible under s 35 [T/iakar

A record plan of a municipality is not admissible as a public document under s 35

or s 74 [Gouri I?,
A 1930 A 26]. Government resumption c/rittas are nothing more
than documents prepared for the information of the Collector and are not conclusive
evidence against private persons kr the purpose of proving that the lands described
therein are or are not of a particular character in tenure
741 (Juninajov r: Dir'arka,ia;/ i [Rant Ch v Bairshidhar, 9 C
5 C 287 referred to]. Followed in Dri'a,'ka s
Thrjtaniouj 14 C 120 and in Gjj'j,i(/,-a r: Rajend,-a I CWN 530, where it has been
held that resumption cluttas are not evidence without resu mption proceedings].
Village notes and a list of jalkar
rights which purport to have been prepared by a
settlement officer are not admissible in evidence when not satisfactorily proved
[Kedar r: Ainrit, 88 IC 676: A 1925 P 567].
Entry in draft record of tights is riot admissible [.4mbar u: l.utfe.
C 159; Sat-tip u Si-ikant, 55 21 C\VN 996: 45
IC 922
C (P); sec however h u: Bhagrvaii,
248: 2 P 8 14 1. A 1924 P
It is admissible only for showing what was the entry before the final
publication ]liai-deo it Kapil, A 1928 p
353: 108 IC 417]. A parc/ia slip granted to
an
individual in the course of survey proceedings is not a public document and is
inadmissible in evidence [Ram Bhragn-an it P
47 IC 82]. Order of Revenue Officer in
mutation proceeding based on untrue piece of evidence has no evidentiary value in
civil suit [Dayaram it D walats/ralr,
A 1971 SC 681].
—Batwara or Partition Papers.—A
barwara k/ws,a measurenicnit paper
prepared under s 54 of Bengal Act 8 of 1876 cannot come within s 35 as it is
1101 an
official hook, register or record
(Pci-ma Roy u: Kisliore Roy, 25 C 90. Followed in
'cit-ar Ch it Tatanatir, I IC 807). A
baiwara k/iasra is not a 'record' within s 35 and
796 Sec. 35 Chap. II- Of the Relevancy of I,ct.c

entry thciein of the name of tenant in possession is not admissible to prove the tact of
tenancy. It can be put ill under s 13 to show the history of the land before the creation
of the tenancy [S'acl/iusaran r. A,'nbika, 6$ IC 676; sec also Drobo Moce c Marina
Das, 10 WR 197. 1311L see Golabchand v. Syed Salka, 36 IC 517: 5 Pat LW 6;
Dinanath v. Nawab, 49 IC 984]. Butwara khasra prepared under Bengal Estates
Partition Act is not a record within the meaning of s 35 and is inadmissible
[Nandalal v. Mo/twit, 17 CWN 779: 17 CU 462 (Perina v. Kishen, 25 C 90 folld>I,
but on proper proof it may he evidence under s 18 or s 13 [Rant Sarup i Rain
Na rain, 7 P 85: A 1929 P 32. See Jatindra r' isof, 59 IC and other cases noted, a/lie].
l3aiivaro barwada prepared under Ch 8 of Estates Partition Act by deputy collector
and signed by him, is admissible [Ramsarup v. Rain Warain, 7 P 85: A 1929 p 32;
G/wga r: Jagarnath, A 1947 P 475 ] . The measurement papers prepared by a hatwara
ameen deputed by the Collector to make a partition do not come within this section
[Mahi Choivdhury c D/uro, 6 CLR 139]. In the absence of any explanation of the
circumsLanceS under which the entries were made, statements in khasra do not
constitute admission [111inadkhaiz v. Hurniuzi, 8 OLJ 27: 61 IC 177. Mere entry in
settlement khasra of qubrisian and inasjid could not he regarded that entire area was
in use since time immemorial as graveyard [Rain Pd v. Magan, A 1981 A 52].
Certificate of Guardianship, Sale, etc.—A certificate of guardinaship is no
evidence of minority under s 35 for it is neither a book nor a record kept by any
officer in accordance with any law [Satish v. Mohendra, 17 C 849; Nainia e
Basant, A 1934 A 406 FB; Gunjra Kuar v. Ablak Pande, 18 A 478; Hen Ch V.
B/taboo I'd, 2 Cli 69n; Saidunnissa v. Ruqya, A 1931 A 307; see also Ilarihar v.
Edul, 5 PLJ 460; Harakuinar v. Jogendra, 38 CLJ 186: 71 IC 336; Prahiad i
Ramsaran, 38 CLJ 213; Kishori v Ad/tar, A 1942 C 428—CONTRA : Mohan V. Md
Adil, 89 IC 67: A 1926 0 88; A,'neer e Md Ezaz, A 1929 0 134; Rajkumar v.
Vijavakumar, A 1969 A 162]. But entry of wards age in the Administration
Report of the Court of Wards is evidence [Arichetar v. Rama Reddiar, 9 MLT 214]
and guardian's former verified application containing ward's date of birth is
admissible under s 157 [Harchand v. Dewan, A 1929 A 550]. A sale certificate or
a sale proclamation is not "a public or other official book, register or record"
within s 35 and is much the same as a certificate of guardianship which has been
held not to answer the description. It is only a statement of the. parties [Ambika v.
Kumud, 110 IC 521: A 1928 C 8931.
A certificate of Manchester Chamber of Commerce testifying to the existence of a
strike of coal miners is not a public record within s 35 and is equally inadmissible
under s 32(2) [Gird/tar i: Keraivala, 93 IC 622: 28 Born LR 232: A 1926 B 253].
Certificate of age of private patient is not relevant as a public record under s 35
[Venkata v. Subbarava, 33 IC 142].
—Reports and Other Entries.—Where a report is given by a responsible
officer, which is based oil of witnesses and documents and had a statu-
tory flavour in that it is given not merely by an administrative officer but under the
aulhority of a slatuic, its probative value would indeed by very high so as to be
entitled to great weight. I Stare of Bihar v. Sri Radhu Krishna Singh, A 1983 SC
684, 698J Proceeding of confidential enquiry by an assistant settlement officer
containing an opinion on cx pane investigation is inadmissible under s 35 in a
subsequent suit [Baldeo v. S/teoraj, 56 IC 9071. Report by a tehsildar in UCSOflSC
to the requisition by the Collector is not admissible [Malikarjuna v. Sec) of S, 35
M 21] or a report to a magistrate under s 157 Cr P Code [Miyana p. S. A 1962 G
214]. Tahsildar's report recording holding of cattle fair at a place is not admissible
IS v. Rcimsri, A 1976 A 1211. The District Judge asked the Collector to say which
 Relei'ancv (J Siaicij;eni.v ui 1001IS, (/i1ni.V. (/1)1 plwiv. Sec. 36 797
ol (bee persons wastuest (I) IX' itI I l)Oicd
lit g uardian of a iinisir' and tue l;ttier
called for a report rout the kaiiungo. Aai tn'os report is 1(01 evidence [Sub/wç t'.
R/l,J/l/m1ion, 30 A 282]. Secretarial no(es by Miiiisicrs or others [llivna/ili,e.van t'.
S, A 1952 Or 2891 01 opinions expressed b y (iovcrnIncIit officers in Secretariat
cnrrespoiiilcnee without personal enquiries are inadmissible ill [G/iulcin,
V. Swittuidar, A 1930 ], 37].

Letter written by a Dy Commissioner in 1882 proposing that a certain estate

should be taken nvc.r by the Court of Wards does not come under s 35 [Keolapati t:
/Linar, i4 CWN 66: A 1939 PC 2491.
The report of the Special Commissioner is not ad iiussiblc in evidence as it does
not C011ie within any of the provisions of the Evidence Act [Lee/a,uwd t .'. Lak/ipati,
22 WR 1-31]. List of suspects drawn up by the police is not admissible Brnt'a
I
Sw7ip 0 ii, 8$ IC 22: A 1925 1, 2991 nor certified cop y of police report Il/asia i'.
R, A 1937 I. 5931. Report of a magiStrate deputed to make a local inquiry is not
evi dence of possession of a party although the report is in his favour [A'tohan v.
Deonarain, A 1945 P 4 531. Report made by the sadar kctnwigo in a letter of
administration case is 001 admissible tinder s 35 or s 13 [Abinasli v. Sarashi/,ala,
27 CWN xxxii (a)].
Order of detention under R 26(1 )(h) of D I Rules are not public record [1-Jarkis/ma
o 1?. A 1944 L 33: 212 IC 3211. Report of the Court of Enquiry under R 75 of
Aircraft Rules, 1937 does not attract s 35. Nor is it evidence under ss 2, 3 of the
Commercial Doe Ev Act, 1939 [Indian Airlines Corpn o Madhuri, A 1965 C 2521.
Transcript of newspapers containing statements of chief minister that big landlords in
Goa are few is not relevant [Laks/itnibai 1'. Union, A 1979 Goa 21]. If the statement
as to age at the headin g of a deposition was made by the witness alter the witness
was already pitt on oath and then proceeded to make die deposition, the description
of age is very much part of the evidence [ Meno Ranjan Dasgupia 0 Sucliiira
Ganguly, A 1989 Cal 14, 22 (DB)l.
—Recital in Jnrigrnents.—(See (1nte, "Statements in .Judgments, Decrees, Ore/ct-s
etc " ). A recital in a judgment of a matter incidentally mentioned is not evidence of
what is said there [Rhupo o Jai, 32 ALR 763]. A recital in a judgment not inter
partes of a relevant tact is not admissible under s 35 [Thpiurana v Rokkam, 45 M
332: 66 IC 280 P13; Ambika n Kuwiud, A 192$ C 893. See s 13, ante]. Recital in the
order of a president Union Board is not admissible [Domisit'wni o Kaniuiappa, A
931 M487].
—Absence of Entr).—S 35 does not make the public book, evidence to show that
a particular entry has not been made in it [In ic Juggan La!, 7 CLR 356; In ic Raina
Rao, A 1960 AP 441; sec R 1'. Girish, 10 C 207 and Ali Nasar o Manik, 25 A 90 : 22
AWN 207]. But absence of ciltry may he relevant under s 9 or s II of the Evidence
Act oil ground that the public servant would not have omitted any transaction to
be entered in the book. But the absence of entries may he capable of oilier
explanation, such as, he was not enjoined to enter every transaction or was negligent
or had some motive in omitting it [In i -c Siram Reddi, A 1960 AP 253; In re 1/01/10
Rao, sup; sec attic, s 34,1) 425: Absence of Entries"].

S. 36. Relevancy of ' Statements in maps, charts, and plans.--

Staten-tents of facts in issue or relevant facts, made in published maps or
charts generally offered for public sale, or in maps or plans made under the

798 Sec. 30 :Iui;. Il—Of the Rele cast cv oJ /'acfs

'
authorit y of [tile Central Government or any State Govcrninent], as to
matters usually repi-c.sented or stated in sucli maps, charts or plans, are
themselves relevant facts.

SYNOPSIS
Pa g Page
Principle and Scope 798 Churns and Their
StLtC[IICLrtS of Facts iii Issue Admissibility 805
or Relevant Facts" irs Maps 799 Proof of Maps Published
"Offered for Public Sale 800 Under Authority • 805
Public and Private Maps 800 Value of Maps and C/nuns
Made by the Government
Value of Information in Maps 800 for a Particular
Maps Made Under Authority Purpose 805
of the Government 800 Maps How Far Admissible
Survey Maps—Evidentiary on General Principles 806
Value of 801 Map Prepared By Commis-
Thakbust Maps—Evideritiary sioner Appointed for
Value of 803 I_neal Investigation 806

COMMENTARY
Principle and Scope.--This section mentions two kinds of maps, viz., (i)
published maps or charts gederally ofrcd for public sale; and (ii) maps or plans
made under the authorit y of Government) It should be read with s. 83 under which
tlere is a presumption of accuracy of maks made by authority of Government. The
court may refer to standard dictionaries fOr the meaning of words or to approved and
accredited works on matters of public history, literature, &c, for asccrtaining
notorious facts of public nature (s 57). Such books are general]y ad 1- as in the
nature of public documents to prove ancient facts of a public nature- (Vhcjirst class of
snaps, ie, published maps offered
offered for public sale may he calld quasi-public
documents and are received in evidence on almost identical grounds to prove geogra-
phical facteg, positions of towns, &c. "Public maps, generally offered for public
sale, have hbcn admitted to show matters of general geographical notoriety, such as
the relative situations of towns or countries" (Halls, 3rd Ed, Vol 15, para 724). The
publication being accessible to the whole community and open to the criticism of all,
the probabilities are in Favour ol any inaccuracy bein g challenged and exposed
(Field, p 166). The adrnissihliLy of the second class of maps, ie, maps made under
authority, rests upon the ground that such documents contain the results of inquiries
made under competent public authority and concerning matters in which the public is
in ,çrested [Tay s 1767].
Maps prepared by private persons and not under authority of Government arg irrelevant
LinfesS generally offered for public sale [Rant Kislmorc v Union, A 1966 SC 649
To render inquisitions, reports, surveys and other similar documents admissible
in evidence as public documents, it must appear that they were made for the

Substituted successively by AU 1937, AO 1948 and AU 1950.

In Pakistan the words "the Central Government or any Provincial Government" have
been substituted by AU 1949.
In Burma, the original word "Government" stands.
In Ceylon, the original word "Government stands.
 Rc'Ii'raiu'V 0/ 51(1IC111 (' j f in ,na1,.c, elia,is, wid plans. Sec. 36 799

purpose ol the public making use ol them and being able to icier to them. ["orthe
tact that the public are interested in the locunieiuts and are in it position to
challenge or dispute if-
them.
inaccurate, invest therti with a certain amount of
authorit y Thy s 1769A: Phip 9th Ed, p 369]. Wherever the office of Government
surve y or has been created, the officer has an implied ant/writs' of office to make
returns of his official surveys, and his returns arc therefore admissible. The
admissibility depends upon the authority; hence, o i l one hand, the returns of
the Government surveyor are admissible to evidence only those matters which he
is authorised to do; and on the other hand a private, person's Survey if made under
special warrant or if otherwise sanctioned by proper authorit y , may become
ad' ssihle twig s 16651.
'his section does not say that the authority under which a map is prepared must be
an\ruthority given by a statute. It is enough if the inquiry is of a public nature and the
survey is made for it public purpo. It should be noted that every map prepared
under authorit y of Government or-6 y it Government officer for private purpose, eg,
particular suit is not admissible under this section. It must he br a public purpose
and b y a public inquiry. The presumption of accuracy under s 83 applies only to
maps made tinder authority for a public purpose, eg, a cadastral surve ) of a district.
See also 87. The expression "published maps generally offered for sate" may be
compared with that applied to the treatises of experts mentioned in s 60. Sec also s
57. Maps and surveys in India for revenue purposes are official documents preprcd
by competent persons arid with such publicit y and notice to persons interested as t
he admissible as valuable evidence of the state of things at the time they were made.
Therefore t,.pless a map is shown to be wron g , it may he properly judicially received
in cvidepcc as corrct when made [Bibi Wvkilaiu v. Deo Nairdi,ut, A 1921 p 268: 59
IC 298 /
tI?cJiy cs 1767-73; Step/i Art 35 P/rip 8th Edj,1, 328, 348, 350 et seq, Hl.r, 31-d
Ed, V1 15, pa,a 724; f/os N P 194-200; Wig s 1665; Jones s 3051.
/Statements of Facts in issue or Relevant Facts" in Maps.—The words
'gtatements of facts" in the be g inning of the section evidently mean statements of
general geographical facts, eg, physical features, boundaries, situation, relative
position of countries, districts, towns, villages, topograplucal description, distance,
&c, &e, usually stated in maps.

As remuds public maps or charts offered for public sale, this section refers to the
physical features of the country, &e, and as regards maps or Plitfls made under the
authorit y of the Government, the section refers not only to such features but also to
boundaries ç villages, estates and fields lWhitIcy Stokes, Anglo-Indian Codes Vol
II, p 878]. In, Orton, cited in Stephen's Di g of Ev Art 35, maps of Australia were
received to show the situation of various places where the defendant was alleged to
have 1ivcd:-
In Koonroodjnee i: Pooi,ro, 10 WR 300 (decided under Act 2 of 1855) it was held
that "Government survey maps are evidence, not only with regard to the physical
features of the country depicted, but also with regard to the other circumstances
which the officers deputed to make the maps are specially commissioned to note
down; and that an ordinary Government survey map was for this reason evidence as
to the boundaries of any plots or estates which stand tinder a separate number in the
Collector's books, Further than this, they are not evidence as to rights of ownership''.
Any note made oil map by a public servant tinder a special direction may perhaps
appropriately come tinder s 35 its an entry in the discharge of his official duty. in re
,S S Drnc/ii'nJl.c, 27 C 800, 871, a chart of the river J-Jooghly with the notes thereon
$00 Sec. 36 Chop. //—Of the R'1cr'ancv oJ lads

was field admissible. The court said: t'hc, chart is sucd under the authority of
Government and the notes thereon ma y he tefcrr9d to PS ant horitati y e;' [see also
5oshee Alook/zee v. Bissessuree, 10 WIZ 343 4.J parte statement in survey maps
Should be regarded merely as corroborative proof' and not as primary proof
lKwirakJn'a i: Surend,'-a, A ] 928 P 2841.7
"Offered for Public SaIe".--Map Withdrawn by Government and whose sale is
Stopped is not admissible. Renncl's 1 map published in 1914 is one of such maps
IGadcidhar v. Sara!, 44 CWN 935]. rivate maps offered for public sale though not
irrelevant do not, the benefit of a 1)ufl1ption of accuracy [Ram Ki.vhore ' Union,
A 1966 Sc 644].
Public and Private Maps.--The distinction between public and private maps
should be remembered. Neither s 36 nor s $3 has any application to maps prepared
for private purposes, that is, for the purpose of any particular suit or by any
iovernmeiit officer for the purpose of settlement, etc. The following observation in
ewo v. Jagat, 23 C 335, will clearly show the distinction:—
"A map prepared by an officer of Government, in the course of proceedings
for the settlement of land forming the silted bed of a certain river, is not one
admissible in evidence under ss 36 and 83 of Act I of 1872; but it is a map
whose accuracy inusthe proved by the party producing it, before it can be
admitted in evidence"7l
Value of Information in Maps.---Accuracy as to the boundaries and other
information in a map must depend upon the source from which the information is
obtained. Where sufficient evidence as 10 informants is not forthcoming and it is
acknowledged that corrections have been made in the map from time to time,
contents of such map cannot he relied upon aS ijL.loritative [Akpandja v.
Egblomesse, A 1939 PC 143: 182 IC 56].
Maps Made Under Authoiity of the Governnient.tAs to the second kind, that
is, maps prepared under the authority of Government, he revenue survey and ihak
maps are examples. But. maps and plans prepared for any private purposes, for the
purpose of any suit or made by a Deputy Collector for settlement of land, do not
conic within this section jnd s 83 does not raise any presumption in favour of their
accuracy. The general principle upon which the second kind of maps referred to in
this section rc admitted has been thus stated by the Judicial Committee in
Jagadindra v. Sey of S, 30 IA 44: 0 C 291: 7 CWN 173: -
"Maps and surveys made in India for revenue purposes, are official
documents prepared by competent persons and with such publicity and notice to
persons interested as to be admissible as valuable evidence of the state of things
at the time they are made. They are not conclusive and may be shown to be
wrong; but in the absence of evidence to the contrary they may be judicially
received in evidence as correct, when made" [see also Kali Pr v. Hemania, 79
IC 1038: A 1924 C 977; Sec) of u WaaedAli, 34 CLJ 141; Anand Hari v Secy
of S, 3 CLJ 3I6;Mazharul v. Gopal, 84 IC 48$: A 1924 P719].
Wilkin's plan of 1887 and Smarts' plan of 1909-10 being made under the Calcutta
Survey Act, are admissible as evidence of possession, but in a question regarding
boundary, evidence of possession has a great value as regards the question of title
[Debendra Surendra, 31 CWN 419: A 1927 C 345]. Irrigation khasra and the
corresponding map of the villages prepared at the time of construction of canals may
he relied on as evidence of the fact that the lands are held by the persons who are
recorded therein as to holding them [Mathura v. Rama, 14 P 8241. Parker's map is
 keleianc' of Statement ill map.v, clnii'ts, and jilanv. Sec. 36 801
not a published map gen erally Offered
ereorf public sale, nor is it iiiadc under the
authority of Government within s 36. It has to be proved to be accurate under s 83
[Kesho r Bahuria, 41 CWN 577: A 1937 PC 69: 16 P 2581. As 10
value of Rcnnefl's
map, sec post, s 83.

In 1971 a dctailcd survey of the Multan city was made and it special kl;as,a
prepared showing the plots owned by the Government. No notification for the
preparation was made by Government and no settlement was in progress. It was not
clear under what authority the survey was ordered. The work was done by pa!ivaris.
but it was outside their regular circle duty They were specially deputed to do this
work and got special reward—Held that the maps and plans were made by the
authority of the Government for a public and not a private purpose [Rah umatuilali n
Secy of 5, 63 PR 1913: 18 IC 799]. Printed maps of different wards of a city coining
from the Commissioner's office and Collector's private office are admissible tinder ss
83, 36 and 87 of the Act [Sec) ofSi: Chimanlal, A 1942 B 161: 1942 Born 357]. In
a certain proceeding before it Collector the question was whether certain land was the
property of the owners of a certain m ouza/i or whether it was land which formed part
of no settled estate and to which the Government was therefore entitled. A map
prepared by a kanungo in that proceeding did not fall under s 35 or s 36
[Tarini
Charan i'. Fakra,missa, 15 IC 4591.
As to superimposition of maps to determine change of locality, sec Sec y of S o
Jatindra, 52 IA 160: 52 C 417 : 29 CWN 1: A 1925 PC 97.
Survey Maps—Evidentiary Value of.— Thak and survey maps are valuable
evidence of the State of thin g s at the time ificy were made. But it cannot be
presumed as a matter of law that the state of things described in those maps existed
at the time of the Permanent Settlement. The dluestion what lands were included in
the Permanent Settlement, is a question of fact and no of law which may or may
not be satisfactorily Proved by subsequent survey maps The onus of proving that
any particular lands were included in the Permanent Settlement is not shifted by
the production of survey and thak- maps [Secy of S v. Wajid Ali,
34 CLI 141 : see
Prafulla n Secy of 5, 24 CWN 639: 57 IC 29]. It is not permissible for a court to
act on the assumption that in 1793, a state of things existed different from what
appeared from any evidence before the court [Secy of S r: Upendia,
36 CLI 336:
71 IC 849 ] .
In a suit by a proprietor for a declaration that the resumption and
assessment of lands so shown in the revenue survey map are illegal. Government
cannot he said to be held hound by their admission in the map [Birei/,-a v Secy of
5, 39 CWN 1000]. As to the value of revenue survey maps for purposes of
comparison, see Soudanmjnj v Secy of 5,
38 CLJ 47: 50 C 822: 77 IC 707; and as to
evidentiary value of revenue survey map as to location of land in bed of public
navigable river, see Thrakdas v. Secy of S,
39 CWN 994: A 1935 PC 125. Where
the position of a streamulet as shown in the revenue survey map was at a considera-
ble distance from the present position but there was no evidence that any change of
position had actually taken place, the map could not be trusted [Chandan v.
C/oman, 44 CWN 205 : A 1940 PC 3: 1940 Kar 15 1.

36 does not require that the authority under which a map is prepared must he an
autEority given by statute. (The words used in the section are authority of Government).
A topographical survey map of 1869, in which the boundary line between two
purgunnahs is given, is admissible in evidence under s 36, the presumption being that
they were so entered in pursuance of instructions received. Assuming that
topographical survey maps are not prepared for revenue purposes, they are official
documents prepared by competent persons, and with such publicity and notice to
902 Sec. 36 C/lOp. 11-01, i/ic lieleiwic ' oflaci..

person itcrestcd, as to be admissible as valuable cviden of die stale of things, at the

time they wcic made. They are not conclusive and may 6C shown to be wrofle. but in
the absence of evidence In the contrary, the y nay be J)ruperly and jLidiCially received in
evidence as correct when made [Gaj/wor 1'. Kotnar, II CWN 230: 9 Cli 415].
survey niap is not made under the authority of an ciiactmenl but is purely an
c.x'ecutivc act. But the proceedings of the survey authorities ]lave been recognized by
thc legislature. Further, the rules made for the guidance of the survey authoritics are
embodied in a Manual issued by the Board of Revenue and some of these rules Contain
mattersaddr Sssed by way of instruction and direction to the parties interested in the
mcasurcnient, A survey map is not direct evidence of title, but it is a good evidence of
possession aèorcling to the boundary demarcated thereupon [Nobo Corninar a Goi'inif,
9 CLR 305, per FIELD, J]. Where the lands are culturable and definite acts of
possession such as filling, sowing, dc, can be exercised over them, the presumption of
actual possession raised by the survey map would be stronger than -where the land is
Wholly unfit for cultivation [Radhakishun a Shyarndas, A 1933 P 671].
The iliak and survey maps afford important evidence of possession at the time they
were made, and, as evidence of possession is evidence of title, they afford also
valuable evidence of title. In case of disagreement between the i/ink and survey
naps, the one that necessarily agrees with the local land marks is to be followed
[Nanab v. Gopinath, 13 CU 625; sec also Ahid Hossein i'. Don'currs', 6 CWN 629].
A survey map is good evidence of possession but it is not necessarily evidence of
title. Whether a i/ink or survey map raises a presumption of title must be determined
on the facts of each ease lflaniannndan a Jov,i'obind, 75 1C 955 : A 1924 P 213:
tvfoez.iidili i: Is/mit, 15 CWN 706; S/aim/nI a Luc/i,nnn, 15 C 3531. It is not conclusive
and may be shown to be wrong t.Jn,cndwdio i: Secy of S. 30 C 2911. The Gangetic
survey cannot he very strong evidence of possession and cannot have the same value
as evidence of title as the revenue survey map. Ilence when there is a conflict
between the Gangetic survey map and a later cadastral survey map, the latter must he
given preference [,Rad/inkish an a S/iywndas, sup].
Revenue survey maps are evidence of title and possession. iey are not conclusive
and map he shown to be wrong, but in the absence of evidence to the eontrr y, they
may he properly and judicially received in evidence ascorrect when made [Mir-,a
S/marnsher a KiwI Behari, 12 CWN 273 : 7 CU 114; Brindaban a Gopal, 1928 P
36 : 104 IC 514]. In some cases the cvidcncc of sorvcy maps may be sufficient proof
of title. But each ease must be decided upon its own merits. A survey map is
evidence of possession at the particular time at which the survey was made; coupled
with other evidence it may raise a presumption that the land belonged to the estate at
the time of the Permanent Settlement [S/tam/ni a Luc/iman, 15 C 353; sec also Umni
Fatima a fi/tojogopal, 13 WR 50; Ram Das a Mo/ie.ch, 19 WR 202; Narain Singh a
Nnrendra, 22 \VR 296; Kashi Kinker a Pawn Stwdari, 23 WR 27 per PHI--AR, J
C/mitt a Zobcda, 25 WR 54]. As to the value of survey maps as evidence of title, see
Sec y of a Radha KLc/more, 43 IA 303 :44 C 328 :21 CWN 291 : A 1916 PC 141,
Where survey proceeding, conducted in the presence of both parties, declared land to
he included in the zeinindari of a person, a plaintiff suing to recover possession of
that land as included with his own zeinindari, must prove by counter evidence at
what precise lime, if ever, he or any one from whom he claims, was in possession of
the lands [Prahind a Bud/ia Singh, 2 BLR 111: 12 WR 6 PC].

In a ease relating to a boundary dispute. a suivey map, i riot c,iiciisiVC, is

evidence of an important character which ou g ht to be looked to and considered
[Gadad/tar v. '1xra, 15 WR 3]. Survey maps are evidence, not only with regard to
 Rc/evi,i- 0 1 .S(a7c,flcnf ill irraps, churls, a/1/ p/ails.
Sec. 36 803
the physical features of the country depicted, but also with regard to the other
ci run mstariccs which the oil cers deputed to make the maps, are specially
COmmissioned to note down [ Kim ' iidu i j Porno. 10 \VR 300]. A Survey map is
not sufricient, in the absence of oilier satisfactory proof of title or of long antcce-.
dent possession to establish the plaintiff's right to the land or to disturb the
defendant's possession [Collr of l?ajsha/r y e i: Dur'a Sundar,,
2 WR 210]. Plaintiff
having failed to prove possession by his vendor at any time, the mere fact that the
land is shown as part of his holdint in the revenue map is not sufficient to establish
his title [flung H/a e Ton Cvi, 35 IC 432: 9 Bur LT 242]. Unless it can be proved
that the person against whom a i/ink or survey map is attempted to he used
expressly consented to the delineation, or admitted the correctness of such malls,
they have no binding effect [Krisio n Secy of 5, 3 CWN 99]. Survey maps or
kistitar, maps prepared under the authority of Government are evidence of
possession, and therefore, also of title [Sashi Mook/jee Bis.ressuree,
10 WR 343;
Chaudliury r Abdul, 64 IC 326]. Where there has been a Government survey, the
survey map must he taken as evidence; and where one of the parties has taken
settlement according to the survey boundary, the fact must be taken into account
unless explained awa y lRad/ia ChoivjJrani i'. Girici/jari, 20 WR
243 ] . An award
of survey authorities is not conclusive evidence as to title [La/it e Narain, I WR
333. Sec also Kailasli Ch v Raj Ch, 12 WR 180]. Although the testimony of a
survey map is not conclusive,
' it should not be disregarded unless there is clear and
direct evidence to the contrary [Prosunna i'. Land Mon Bank, 25 WR 453].
hc presumption of law is that, in the absence of evidence to the contrary, the surve'
mnas prepared for public purposes b y responsible oflicers of Govement are entitled to
more reliance, than maps prepared for private purposes in a private su[Mat/zura u S/jib,
12 CWN 334]. An entry in it map that it was prepared in the presence of the
representatives of certain parties is admissible in evidence [Bidhu-mukhi e Jiie,rdra,
10
CLI 527]. When parties consent to be bound by the boundary line in survey map as
conclusive, they cannot question its correctness [Raghwu-ith v. Rainesliut'ar, A 1922 P 87].
Where plaintiffs claimed that a large tract of land formerly under the Gan ges formed
part of their permanently settled Ze/ni,j/a,l, three sets of documents were relied on, viz,
plan of a survey, conducted by Major Rcnncll between 1764 and 1773; the
hakikat
draw/i uddibwu/i papers and the Government survey map made in 1859— held that they
were all admissible [Ilaradas m: Sec y of 5, 26 Cli 590 : A 1917 PC 86: 43 1C 361 : 20
Born LR 49 : distd in Tarakdas c Secy of 5,
39 CWN 994 : A 1935 PC 125]. This case is
no authority for saying that because a certain rivulet is not shown in Rennell's map, that
map is evidence of its non-existence. As regards Rennell's map a party cannot rely upon a
statement made by it who was not before the court (eg, statement of settlement
officer in diara
proceedings) and whose statements could not he tested. If he wanted to
rely upon this piece of evidence, he should have produced the map before the court arid
asked it to form an opinion upon it [Benode v. Sery of S. 34 CWN 1113 : A 1931 C 239].
As to the relative value of thak and survey map as evidence, see Abid Hossein o
Doimcurry, 6 CWN 629; Srinafli i: Secy of
Ranijas, 83 IC 205 : A 1924 P 402; Keshabji e S, 36 CIJ 345 : 50 C 276; Sas/ii c
Sas/u,
96 IC 1027 : A 1926 P 385.
Thakbust Maps—Evidentiary Value of,— There are three kinds of i/ink maps:
(a) eye-sketches in which no actual measurements are made; (h) maps in which
rough magnetic bearings were used and rough linear measurements made; amid (c)
maps made from careful magnetic bearings and careful linear measurements.
When there is a difference hetwcen the revenue survey map and thakbu.vi map of
the first or second kind, the survey map prevails [Sas/ii Rhusan v Ramjas, 3
p 851.
80 . 1 Sec. 36 ('Imp. 11-0. 01w Pcictaitcy o. 1 licis

Thakbu.rr ma ps are good evidence of possession, but the value of that evidence
varies enoriiioiislv. In the case of it iliak map containing def inite land marks aid
undisputed boundaries signed by the parties and their agents rcpresentuig land
which has been brouabl u RCLJ cultivation e nd is in the possession of the riayats
whose names are known or call ascertained from Lilt:, zu.'nindiri papers, a thak
map is very valuable evidence of possession. But the valuc of such nap is greatly
diminished when there are natural land marks delineated thereupon, that the land
was at the time of the measurement: that the boundaries- are not discovera-
ble from a nicrc inspection of the map; and that neither the zemindars not their
a g ents, by their signatures admilted the correctness of the thok [Jo ytara 1.
Mitbareck, $ C 975 : 11 CLR 399]. T/icik maps have always been considered as
good evidence, and although their value depends upon accuracy, there is no
presumption that they must he inaccurate [Krishna Kai aid v. BraunJieid, 20 CWN
1028 : 36 IC 1841. There is a prima fhcie presumption - of accuracy of thak and
survey maps. It may be shown to be incorrect by the admission of parties or
adjudication by a court or by evidence intrinsic or extrinsic to the map I Tarainoni
Gopal, 65 IC 1 8 2 ] . Tltnkbust maps are evidence of possession at the time the
survey is made, but they are also some evidence of title though not conclusive
[Salkari c. Sec) of S, 22 C 252. Sec also Mo/tuna v. Wise, 25 WR 277 and Pogose
v. Mukitiid, 25 WR 36]. It has been held in a ease that the ihak authorities had
nothing to do with title or possession and no deduction as to title or possession can
legitimately be drawn from lick maps. No inference can he drawn from thak as to
whether a particti lar river was included in the grant of Permanent Settlement
[Dehend,a v. Sec) , of S, 3 I CWN 473 : A 1927 C 4031.
The object of the thak map being to delineate the various estates borne on the
revenue-roll of the district, the entry in a tliak map, that certain lands formed part of a
certain estate, becomes a relevant fact under this section and such entries ill
maps are evidence on which a court may act. It is open to a court to hold that the
same state of things existed at the time of the Permanent Settlement [Abdiil Hamud u
Kiran, 7 CWN 843; folld in Bid/iumukhi u Jitendra, 10 CLJ 527 (Jarookumari u
Lalotimoni, 17 IA 145 : 18 C 224 distd)]. It is no part of the duty of revenue officers
conducting the thakbrest operations to record the prescriptive rights. As to value of
thakbust maps, see Chatirapal u Lees, 72 IC 648 : A 1923 P 558. The thak map
affords good substanlial evidence of the linear distances between the successive
marking points of the boundary lines. The map by its nature does not pretend to he
anything more as tegardsLc rclativc angular distances, or pocitions. of the different
points, than a sketch outline just sufficient to connect theist and to indicate roughly
their situations on the ground [Burn v. Aclmumbit Roy, 20 WR 141.
A t/makbust map is not only evidence, but very g ood evidence, as to what the
boundaries of the property were at the time of the Permanent Settlement and also as
to what, they admittedly were at the time of the thakbusi survey [Sliaina Smomdari i'
Jagabaimdlmu, 16 fT 186]. The thakbust map is a rough sketch, or at most, all
fically prepared plan showing the number and approximate position of the dick
marks or dhuis for the guidance of the revenue surveyor who followed after, and
who, having picked up and verified the ihak marks in the thak map, prepared the
revenue map by accurate observation with scientific instruments.) ;he revenue map
must therefore he accepted as showing the result of the flick survey even more
accurately than the thakbust. The signature of the revenue stirveyot on a t/iak man
means merely that he has satisfied himself that the boundary had hcott correctly
picked Up on the ground and correctly surveyed on the revenue survey map IKeshabii
I,. Sushi, 96 IC 1027 : A 1926 P 3861.
 li'leI'Oucv o15'iatenu'iit UI IflU/?.V, ( -/ l(IrtV and i,ln'. Sec. 36 805

An entry in a (Iia&Lnt.vt riiip cannot he Said to be insufheict to entitle a Court of fact to

hold that the disputed lands were really included in a particular estate at the time of the
Permanent Settlement I Paz/ar o Nabenc/ra, 17 C\VN 151 : 15 IC 341; see however
Ruiniuuiclan Jn'obmd, 2 P 8391. Where the question was as to the quantity of dc/maci
land in a villa ge, a i/iakbu.st map made at a revenue survey by an ainm who had no
authorit y to determine what lands were debutrer, but onl y to lay down, and to map
boundaries, could not be treated as raising a presumption of correctness within s 83 or the
question as to the aflloLiflt Of the debutrer land in one of the villa-es mapped [Jiraoku,uari
o Laloninoni, 17 IA 145 (dist., in ]3idliumukhi c Jitcadra. 10 CD 527)1. The presence at
the preparation and the signing by the parties or their agents, of -,I thakbusr map, may fairly
he taken to be an admission by the parties of the boundary lines between adjoining
villag es—He/d under the circumstances of the case, that the cvidentiaiy value of the
thakhusr map and the survey maps produced on behalf of the plaintiff was greater than
that of the survey maps produced on behalf of the defendants [Danne u Dharani, 35 C
621]. As to the value of thak maps prepared before retular survey and i/ink kliasras, see
.Jogdco u Baldeo, 27 CWN 925 A 1922 PC 272 : 49 IA 399.
The thakbu.rt map in Bihar was only a rough and ready survey in 1814 as a preliminary
to the regular survey in 1845. The surveyors had no authority to record any irrigation
rights and such notes on thakbu.ri tnaps carry no presumption and are not evidence. Such it
map does not raise any presumption of coiTectness under s 83 and the entries in rho kbusr
khasra have no evidentiary value [Harihar u Janak, 21 PLT $73].
Chit/as and Their Admissibility.— As to the admissibility in evidence of the
Government c/u/Inc, see the following cases: Swaswati u Ambika. 24 WR 192;
Moliuwn o Ijisshambor, 24 WR 450; Md l'dve u Ozeooddin, 10 WR 340; i/ad/ia
Cliaraii i. Anand. 15 WR 444.
Proof of Maps Published Under Authority,— Documents referred to in this
section are public documents within the meaning of s 74 and they can be proved by the
production of certified copies under ss 77 and 79 of the Evidence Act [see Gopeenath e
A,iund Movee, 8 WR 1671. This section should he read with ss 83 and 87 of the
Evidence Act, under which the court shall presume the accuracy of the maps.
/ Value of Maps and Chittas Made by the Government For a Particular Purpose.--
map prepared by an officer of Government while in charge of a kliasinahal does not
AC, me under Ibis section, the possession of Government being only that of a private
proprietor. Such a map, would, however be admissible tinder s I /Junnzejoy u Dwarka, 5
C 287 : 4 CIJ 574]. Applied in Ram Ch u Bunseedhur, 9 C 741, where it has been held
that Government chirtas made for its private use are not admissible in evidence against
private parties for proving the character or tenure of the lands described therein; see also
Upendia : Rod/ia Gobinda, A 1927 C 189. A map produced by Government is [lot
admissible unless made under authority [Electric Supply Co v S. A 1958 C $51.
The particular papers of Collectorate partition showed a certain land to have
been allotted to A, but the attached map showed it to have been allotted to B. As
the map merely delineates the plots allotted, the partition papers should prevail
[Anil v. Rash Mohan, 28 CWN 46 ] . A fllJ) made for the purposes of a partition
which affected the public revenue is admissible for what it is worth [Abdul Hauuid
I'. Brojendra, 90 IC 643 : A 1926 C 2901. A map prepared by an officer of
Government in the course of proceedings for the settlement of land forming the
silted bed of a certain river, is not one admissible under .ss 36 and 83: but is a map,
whose accuracy must be proved by the party producing it, belurc it can he
admitted in evidence [Kanra i'. Jagut, 23 C 3351. A una/iaiwari map which is mole
than 30 years old is entitled to the benefit of presumption under s 90 and is
relevant under this section [tvladhabi i' Gaanencira, 9 CWN 111, 113).
W6 Sec. 37 Chap. IL —01 , 111f . Selctvu,e UJ 1is

Maps flow Far Admissible on General i'!' i Wjl)ICS._ ._ Reports and maps refer-ted to
in orders tinder s 145 Cr P Code, 1882, are admir,ihlo in evidence, on general
principles. If the land referred to in such orders are described by yiii.li tirck' am1
hounds, or by reference to objects or marks physically existing, these must necessarily
he ascertained by extrinsic evidence, ic the testimony of' persons who knLr\v the
locality, lithe orders refcr to a map, that map is admissible in evidence to tender the
order intelli g ible; and the actual siwation, of the objects drawn or otherwise indicated in
the map must, as in all cases of this sort, he ascertained by extrinsic evidence
[Dinomotti v. Brojonto/t jni, 29 IA 24 : 29 C 187 : 6 CWN 386]. When a nmp represents
a transaction and is a part of and necessary to explain or understand the document, it
becomes admissible under s 13 on proof of the document without separate proof 0! the
map [Kedar u Mahendra, 54 CWN 671 Joseph u Makkaru, A 1960 K 1271.

Map Prepared By Commissioner Appointed for Local Investigation.-----j\ map

prepared by a commissioner who makes a local investigation is evidence by itself under
the C P Code (Or 26, r 10). It is evidence by itself only in the particular suit in which
the enquiry was ordered [Dinahwtc/Int e Ni.rtari,mi, 12 CLR 50]. But it may be admitted
in evidence even in other suits when it is properly proved by examining the persons
who prepared it [Sara! v 5w-ala. 105 IC 61: A 1928 C 63]. Site plan prepared for the
purpose of a case has very little probative value on the question of title. Entries in such
maps in support of title of a municipal board are admissions in favour of the. hoard and
are not relevant [Gauri u R, A 1930 A 26]. To admit a map without calling the maker
thereof tm'mounts to admitting hearsay. Mere proof of the map b y itself is only proof of
the fact that the map was prepared by the maker thereof. It is no proof of the correctness
of its contents. The fact that a particular person prepared a map, cannot without or apart
from and independent u! the proof of the correctness of its contents, have any hearing
cmi the matters in issue in the case. A map attached to a decree is effective only so far as
it relates to matters in issue in the suit. The rest of the map cannot he regarded in law as
part of the decree at all lDwijen r: Naresh, 49 CWN 791 : A 1945 C 4921.

S. 37. Relevancy of statement as to fact of public nature contained

in certain Acts or notifications.—When the Court has to form an opinion

P,\KtsrAN.—After the words "Act of Parliament' read "oft lie United Kin g dom or in an y Act
mh' fl cntrat Le g islature or of any other legislative authority in the Provinces constituted by
any laws for the time being in force or in i, Cc',' :mcot notification or notification by the
Crown Representative appearing in the Official Gazette or in any printed paper purporting to
be the London Gazette or the Government Gazette of any Dominion, colony or possession of
[is Majesty, is a relevant fact'.
BURMA.—The section as modified by AC) 1937 and AC) 1948 reads thus:—
/m the Court has to form an opinion as to the existence of any fact of a public nature,
any statement of ti made in a recital contained in any Act of Parliament of the United
Kingdom of Great Britain and Ireland, or in any ermacO;mpnd in force at any time in the Union
of Burma or lirthu or Pakistan or in notification of the Govcrnntcnt appearing in the Gazette,
or in any printed paper purporting to be the London Gazette or the Government Gazette of
any colony or possession of the Queen, is a relevant fact."
CEYI.ON.—The section reads:—"Whcn [lie court has to form an opinion ato the existence
of any fact of a public nature, any statement of it made in a recital en cOned in oily Act of
P arliament, or in any Ordinance. or in any prn'ktm4iion or notification of the Government
appearing in the Go v . rnnll1 rjazette, or in any printed paper purporting to be the London
Gainima or the Government Gazette of any colony, dominion, dependency or possession of the
British Crown or to be the Gazette issued by the Local Government of any part of such
colony, domination, dependency or possession, is a relevant fact'.
 IiCl('I'OJl(V ( ?f rotcnu'nt (IS 1OJ(7(t qfpllblic )Ianu' ('OntoIIu'd in ('c/loin Acts Sec. 37 807

as to the existence of any fact of a public nature, any statement of it, made
in a recital contained in any Act of Parliament. [of the United Kingdom] or
in any 2 [Central Act, Provincial Act or a State Act or in a Government
notification or notification by the Crown Representative appearing in the
Official Gazette or in any printed paper purporting to be the London
Gazette or the Government Gazette of any Dominion, colony or possession
of His Majesty, is a relevant fact.]
* *1

COMMENTARY
Principle and section says that statements and recitals of facts of
a public nature in statutes, ordinances, proclamations, &c or in Government
notifications in Government Gazettes are admissible in evidence ir order to prove
the existence of those 4cts. The section is silent as to the distinction between
public and private Acts.)The facts as'to the existence of which the Court has to
form an opinion must {c of a public nature. The expression "matters of public
nature" is also to be found in s 42, post. The grounds of admissibility are the same
as in ss 35 and 36, viz that the facts stated are of public notoriety and they have
,41 een recorded by competent public servants in the official discharge of their duties.
(The Government Gazettes are of course evidence of facts of public nature
dntained therein, but not of facts of private nature. Thus • a notification in the
Gazette regarding acquisition of land for public purpose comes under this section,
but not a notification or advertisement by a private person appearing in a
Government Gazette though it may concern the public) S 57 deals with the judicial
notice of statutes by courts; s 78 with the node of pfoving notification and S. 8 1
With the presumptions Gazettes. ie Acts and notifications are prima
facie evidence but nut conclusiAs to definition of "Central Act", see s 3(7)
Gcnl Clauses Act, 10 0 1897. evidence regarding partition of joint
concerniAcurnentary
family property would prevail over oral evidence. [VS. Nagaraja S/zetty s M.N.
Krishna, 1996 All-IC 2904 (Kar)].
Statutes, State papers, and other writings of a cognate character, will generally
be admissible, either as prima facie or as conclusive proof of the facts directly
stated in them, if duly authenticated and if their contents be pertinent to the issue.
In many cases they will even he received as priinafacie evidence of matters stated
in them by way of introductory recital. Thus, where certain public statutes recited
that great outrages had been committed in a particular part of the country, and a
public proclamation was issued, with similar recitals, and offering a reward for the
discovery and conviction of the perpetrators these were held admissible and
sufficient evidence of the existence of those outrages, to support the a ,.,ei-nlqDts to
that effect in an inforrna,ifor a libel on the Government in relation theret 1? v.
Sutton, 4 M&Scl 532. (jecitnl of a state of war, in the preamble of a public
statute, is good evid cc of its existence and the war will he taken notice of
without further proof, hcther this nation be or be not a party to it {R v. Dc
Bei-engei-, 15 RR 415 But recitals in a Public Act are not conclusive evidence.

1 . Inserted by AO 1950.
2. Original words were substituted successively by the Repealing and Amending Act. 10 of
1914; AO 1937; AO 1948; AO 1950 and Part B State (Laws) Act, 1951.
3. Omitted by the Repeating and Amendin g Act, 10 of 1914.
 Sec. 37 ('hap. 11---O/ the Rcleca,ici Of ki t , Is

lhcrelore, where the schedule of the unicipal Corp ration Act described a place
is an existing Borough, prooF was ::dreittcd to show tli:u this description was false.
A private statute, though it Contaiiis it reqitirine it to heudically noticed as
it public one, is (tilt evidence at " strangers cither of notice or of any of
the acts recited [Tay I
s 1660]. \Vi more advances sonic ar g uments against the
reception of recitals in statutes. I says that the parties against whom they may he
used arc not parties to the prior proceeding; the .sitemcnts concern matters not
Within the personal knowled g e of the declarant the re s ults deal not with
legislative proceedings, but with extrinsic facts and that unless there is an official
duty to investigate and obtain adequate information, the statements should not be
received IWig s 16621.
Recitals of facts in statutes are not conclusive. ''A recital of a fact in i t stature,
though it may Oil some conditions he admissible as an official statement, is not
conclusive testimony. The legislature's recitals are commonly intended merely as
explanations of motives and purposes, and not as determination of controverted fact.
They could not without gross injustice, he made evidentially conclusive, and this is
ocnerally conceded. As a contract, or a i l or otherwise, the recital may be
binding, hut that would not he due to a rule of Evidence" IWig s 13521.
[Ref Toy ss 1527, 1591, 1660, /662-66; Best s 219; Step/i Art 33,- P/tip 8th Ed i.ip
328-31]
Government Gazctte.--Bcfore the publication of the Gazette of India,
notifications of the Home Government were published in Gazettes of Local
Governments. The Gazeltc of India was first published in 1863 (Official Gazettes
Act, 3 I of I 863). As to presumption as to Gazettes, sec s 81. In the Uz/iahi trials,
official letters published ill the Gazette of India and the Calcutta Gazette, verc
used as evidence regarding the subject of hostility between British Government
and certain Mahomuedan fanatics on the frontier [1? i'. Ami,-uddiit , 7 B I.R 63 : 15
WR Cr 25].
As to sufficiency of notice of dissolution of partnership in the Calcutta Gazette,
under s 264 of the Indian Contract Act (19 of 1872), see Cliundee r: EduIji, 8 C 678
pp 682-83 : II CLR 225, where it has been held that Official Gaccttc is not
necessarily the only proper medium of publication (JuggernaUt i: MtcIac/tlan, 6 C
681 overruled), and the question of the sufficiency of the notice, whcUcr public of-
Odle, vh-;c, one rather of fact than of law. It is only the factum of proclamation or
publication ill Gazette or Otilci proscribed modes of publicity which alone would
give such -,III or decision, the indicia or the necessary staitipiog af a notification.
Till then it would remain merely an order or decision and it may not travel beyond
the knowledge of its author and might well remain completely cloistered. The
issuance of a notification is in the eye of law either notice or imparted knowled g e of
its contents to the citizens in general [Ka.chjjj-j La/ v. State of Ptoijab, A 1984 Pull
Har 87, 89: (1983) 85 Pun LR 741
Puri Gazettei- of O'Malley of 1908 was relied o i l evidence providing historical
material and the practice followed by a Math and its head [Srinii'as i Sutanjan, A
1967 SC 2561.
Jnder the Documentary Evidence Act 1868 (31 & 32, Vie c 37) amended by the
Documentary Evidence Act 1882 (45 & 46, Vic c 9) production of the Official
Gazette is prima facie evidence of any proclamation, order, or regulation issued
before or after tile passing of the Act by His Majesty, the Privy Council or any of the
principal departments of the State (s 2).
 l''eleeancv at Stat,iic/itS (IS to (if 1V Iaii (Ontailled in , boOks.
/011 - Sec. 38 809

S. 38. Relevancy of statements as to any law contained in law-

books.—Vhcn the Court has to form an opinion as to a law of any
country, any statement of such law contained in the book purporting to be
printed or published under the authority of the Government of such
country and to contain any such law, and any report of a ruling of the
Courts of such country contained in a book purporting to he a report of
such rulings, is relevant.
SYNOPSIS
Page Page
Principle and Scope 809 Authority of Rulings 811
Cases Printed in Unauthorised Foreign Law 812
Reports or Unreported Cases 809
COMMENTARY
Principle and Scope.-Thcn it is necessary to form an opinion as to the law of
any country, (i) statements of such law in hooks published under the authority of the
Government of that country and (ii) books purporting to contain the reports of cases
(whcthu published under authority or not) decided by the courts of any country, are
relevant .The words 'any country' no doubt include this country, though they princi-
pally rcr to other countries, as under s 57 the courts are hound to take judicial
notice of the laws in force in this country As to facts of which courts must take
judicial notice see s 57.
The ground of admissibility is the same as in the preceding sections. Statements of
law in Acts, Reports, etc published tinder authority are made by authorised agents in
the course of office duty and the facts are of public notoriet y. Moreover their'
publication under authority affords a guarantee of their accuracy. Reports of Maw
t ses of any country (including India) not published under authority are also
admissible as they purport to contain the decision of courts and on account of their
publicity and constant 'sc they are open to criticism and the probabilities are in
favour of their accuracy) The unofficial or private law reports purport to print judg-
ments of superior court's reported by gentlemen of the Bar with a summary of the
decisions called head-notes.
The provisions of s 3 of the Indian Law Reports Act iS Of l7) that a court is
not bound to hear a case not reported in the authorised reports is not consistent with S
38 which makes relevant the report of a ruling contained in a private law journal. The
matter needs examination for the removal of the anomaly.
Cases Printed in Unauthorised Reports or Unreported Cases.—The words
and any report of a ruling of the courts of such countr y contained in a book
purporting to be a report of such rulings is relevant" in s 38, go to show that reports
Of cases published in private journals, eg Calcutta Weekly Notes, Madras Law
Journal, Bombay Law Reporter, A]]ahahad Law Journal, &c, &c though not
published under the authority of Government, are relevant. S 3 of the ILR Act 1875,
merely says that no court shall be bound to hear, cite or receive as an authority
binding on it, the report of a case other than a report published in the authorised
Reports, but it does not prohibit the reception of reports of cases published in other
journals if it is satisfied about their accuracy. As a matter of fact such Reports arc
being very frequently referred to by the courts every day. The view that regard being
had to s 3 ibid an unreported case or ruling is not to he treated as an authority
81 C) Sec. 38 Chap. II—Qf the Re/eva/u ) : oflui.v

[Mahbul v. Rak/zal, 4 CWN 732], was dissented from and it was, pointed out that s 3
was framed to Constitute a. monopoly if the judge so desired, for the authorised Law
Reports. It does not prevent the court from looking at an unreported judgment of
other judges of the same court [Md/tli o Na zar Ali, 28 C 289 :5 C'SVN 3261.
The excessive number of private law journals in India and the unhealthy
competition) between them promoting indiscriminate reporting of numerous
common-place or unreportabic cases in order to increase their bulk, have grown into
an evil causing difficulty to both judges and law yers, especially when decisions on
pure questions of fact are reported and needs checking. Some sort of CXeCIltiVC
control by withdrawing the facilities now offered by the High Courts to the private
law journals in the matter of supply of copies of judgments, or of access to records,
should they disre g ard the direction of a Council of Law Reporting as to the
judgments recommended for being reported, may have a salutary effect. But neither
principle nor policy can justify the suppression of private law journals by securing a
monopoly for "authorised" reports. Nor would it be legal; the public have a right to
publish, discuss and criticise judgments.
The question was gone into fully by the Lord Chancellors' Committee oil
Reporting (presided over by MR JUSTICE St?vIONDS afterwards LORD SIMONDS). They
rejected the proposal unanimously and in their Report (1940) observed:
"It ignores, as we think, the fundamental fact that the law of England is what
it is, not because it has been so reported but because it has been so decided......
It is the privilege, if not the duty of a member of the Bar to inform the court,
whether as counsel engaged in the ease or as WOiCUS curiae, of a relevant
decision whether it has been reported or not. So it is the duty of a Judge to
follow the decision of a competent court whether reported or not; it may well he
that there has not been time to report it.......
In our view such proposals are fundamentally wrong. They strike as we
think, at the basis of a principle which is one of the pillars of freedom, that the
administration of justice must be public. The decisions of the court must be
open for publication, discussion and Criticism."
There seems to he a confusion of ideas as to the authority of cases published in
unofficial law reports and some of the views expressed are opposed to fundamental
priniciples as will appear from the followin g cases:
In a case, a ruling, reported in the Calcutta Law Journal and Calcutta Weekly
Notes was not taken notice of [Gobindasatni v. Perumal, A 1927 M 327]. Cases
published in the unauthorised reports have no binding force as authorities [Mci Shop
v. Mubarak, 7 R 361 A 1929 R 273; fiishe.thwar v. 1?, 6 CWN 1007]. A court is not
bound to follow a decision not published in the official law reports, though respectful
and careful consideration should he given to decisions unofficially reported [Md
Mustafa v. Wamanrao, 19 NLJ 301]. A judge who has no access to all published
reports should refuse to exercise his judgment when one such report is brought to his
notice. It may be that in another unpublished judgment the opposite view has been
taken [[Jaji Karim v. Rahinan, A 1932 N 137]. Courts should only fall back on
unofficially reported cases when they can find no officially reported ruling on the
point in issue [Ba'ndeally v. Peer Md, A 1933 R 75]. A court should follow the
authorised reports of the decision of its own High Court rather than the unauthorised
reports [Mg Chit v. Ma Pwa, A 1934 R 39 : 148 rc 9081. When there is a conflict
between the decisions of the same High Court, one of which is officially reported and
the other unofficially, the court should follow the former [C'hettyar J 'j m v. Mg Seitz,
 Relevanc y of slat em ents as to any Ian contained in law-books. Sec. 38 $ I I

9 R 561 : A 1931 R 2791. Uuauthoriscd reports arc on the same footing as unreported
cs [ 2 4QC329:A 19210226].
The law expressed in the decision of a conlpcent court is an authority which every
jue has a duty to follow, not because it has been so reported (in an official or
private journal), but because it has been so decided. So whether such a decision is
reported or not, its binding authority is the same) The reasonable view would
therefore be that it being the decision and not (lie opi/lion of the court, nor the report
of it that makes the precedent (see Vinayak r Moreshwar, 1944 Na- 342 : A 1944 N
44), if the court is satisfied about the accuracy of the judgment placed before it
whether published in an official or unofficial report or whether it is a certified copy,
the judge has a duty to follow it. The most that call said is that the report of a case
published in an authorized report carries with it a guarantee of its accuracy. The
Indian Law Reports Act is little more than an addendum to s 78 Evidence Act. An
officially certified copy of a judgment of the High Courts is bound to be treated in
the same way as an officially reported judgment I Vinayak n Moreshww sup].
All reports made by gentlemen of the Bar and published oil responsibility,
are equally regular. There is no superiority in the reports of the Council of Law
Reporting. Counsels are as much entitled to cite the one as the other [The Master of
the Rolls," TLR Vol 3 p 640; May 20, 1881. A party relying on a jud g ment or other in
the reports of cases should be asked to produce a copy of the same [Sourindra
Siromoni, 28 C 171 : 5 CWN 307].
The words in the section being "contained in a book purporting to he a report of
such rulings," it would seem that strictly speaking, the report of a case appearing in a
newspaper is not relevant. But if the report is an authenticated one and is published in
a newspaper of established reputation, there is no reason why it should not have the
same authority as a report published in a private law journal. In a case counsel relied
oil judgment published only in the Statesman and COSTELLO J, allowed the report
of the judgment to he placed before him observing "it has been said on high authority
that the position of the Statesman, is similar to that of the limes." [Statesman,
Calcutta, 18th Feb 1928]. The view of the author was approved in S o Sardar, A
1969 C 451. Cases reported in reputed newspapers are found to be cited in several
well-known English law books.
In Shuja-ul-mulk v. Umjrulumara, 48 M 846 : A 1926 M 20, DEVADOSS J, said:
"The Indian Law Reports Act has no application to the Privy Council and therefore
the courts are at liberty to refer to an unauthorised report of the decisions of the Privy
Council and if they are satisfied that it is a correct report, they are bound to follow
it." An unreported judgment is not any the less an authority simply because it has not
been reported, nor is it so because it has been published in any Report other than the
Indian Law Reports. All that is necessary is that the court should be satisfied about
its correctness or authenticity. It has been held that in the case of a conflict between a
reported and an unreported judgment, the proper course is to follow the former
[Trustees PD Venkatac/ialam, 92 IC 709: A 1926 M 321].
Authority of Ru1ings.4A judge can distinguish, but cannot disregard an
unreported ruling of the HihCourt [R v. Ganesh Ch, 1 CWN 1]. But a ju C is
bound to follow the ruling of the High Court to which he is subordinate [See
Korban v. Sharada, 10 C 82, 84; Korban v. Pitumbari, 13 CLR 256; Swami Rao
& Kashinath, 15 B 419; Balaji v Sakharam, 17 B 555; Hajee Maliamed v. Swee
Cheang, 25 C 488 : I CWN 172; Ma/iadeo v. Jagannath, 13 P 303]. A Division
Bench must follow the Full Bench decisions [Anantra,n v. Khushal, A 1927 A
244]. Decision of a Division Bench is binding oil other Division Benches
812 Sec. 3$ Chap. il—Of the leleL'WJrv 0/ JoeL

unless they are satisfied that it is incorrect and unless a reference is inacjc to the
Full Bench [ Roman çina i'. I3ish n'aiiatl, , A 1-1 934 P 85; ilmn/iuth'o r. .Iaiwl,iat/j.
sup; Rain Jitan v. P/wa/u, A 1976 SC 844] A single judge of the II ighi Court is
hound by the decision of the Division Bc)i,.L even though it is not reported
iVinayak v. Mores/iwar, A 1944 N 44, 46 ] . IL' a single jud ge of a High Court is
inclined to diffkv from the view of earlier single judge he has to refer the mailer
to larger Bc.ncl/ [Eknath c. S, A 1977 SC 717; Shri Bhagnan t'. Ra,nchuiid, A
1965 SC 176Y. In the case of conflicting decisions of various 11i0h Courts, each
court must follow its own curcus curiae [Satyanara't'ana r. Venkata, 100 IC 365
A 1927 M 533]. The refusal of a single. judge of a High Court to 1'0110W ',I
Bench decision is deprecated [Kamalanimal i'. V'nkatalakslimi, A 1965 SC
1349]. In case of difference of opinions in decisions of Supreme Court, 1-ugh
Court is to follow the opinion expressed by larger Bench [Motto/al a Rod/ic/al,
A 1974 SC 1596; Union v. K S Subi-amanian, A 1976 SC 2433; S v.
Ramchandra, A 1976 SC 25471.
Foreign Law.—The words "any country" include India, Pakistan, Burma,
Ceylon, England and other foreign countries. This section is to be read with s 84,
in which there is a presumption in favour of the genuineness of the books, which
are relevant under this section of the Act. The two sections refer to foreign law and
their effect is, that proof of foreign law may he obtained directly from books and
without the aid of expert witnesses who according to English practice are required
For the purpose. Even when an expert is examined (under s 45) and produces the
authorities on which he bases his Opinion, the court is at liberty to examine those
authorities and put its own construction on them. An unauthorized translation of
the Code Napoleon was held under this section not to he relevant to prove French
Law [Christian a Delanney, 26 C 73] : 3 CWN 614', see Cunn p 108]. Attested
copy of Burma Gazette is not admissible in proof of foreign law [Raman a
gopal, A 1954 Raj 135].
RCfhe difference between the English law and the Act is this that under this
section hooks containing statement of foreign laws (published ttndcr the
authority of Governments of those countries) may he directly referred to by the
court; hut. according to English Law, the foreign law must he prod by calling
experts or professional persons to give their opinions on the sub e [see Taylor
!0th Ed s 1423 p 973; Pliipson, 8th Ed P 382; s 45 post]. Opinion of experts
Upon a point of foreign law is relevant [see s 4aj. The Englls lli e.iur3 cannottake
judicial notice of foreign law, which in this connexion includes the law of
Scotland, Commonwealth countries, British Colonies and possessions; for
foreign laws are usually matters of evidence requiring proof as questions of fact
[see Guaranty Trust Co v Hannay & Co, 1918, 2 KB 623, 667 CA; Beattv a B,
1924 1 KB 807, 814 CA; ' Lazard Bros & Co v. Mid/and Bank Ltd, 1933 AC 289,
297, 298 I-IL; Htds 3rd Ed Vol 15 para 6101. As to proof of foreign law, see S 45
post.
As to facts of which court must take notice see s 57.
Under s 38, the Ceylon Insolvency Ordinance mi g ht he looked at to decide the
question of defendant's liability as the basis of a contract [1eieanayagam a
Muthukuntaraswainy, 14 IC 560 ] . Although the court may take judicial notice that
the law set out in a book published by a foreign Government is the law in force at the
relevant time, what the whole law of a foreign Government is at a particular point of
Lime cannot be proved except by calling an expert under s 45 ].Jagadish a 17'
Commrs, A 1956 C 48].
 What ei'ith'iice to he i,'iicn when s(ateInc'Iit locins pact of fl coci Vc'rSaiiOn Sec. 39 813

HOW MUCH OF A STATEMEN1' IS TO BE PROVED

*[s. 39. lVhat evidence to be given when statement forms part of a
conversation, document, electronic record, book or series of letters or
papers.—When any statement of which evidence is given forms part of a
longer statement, or of a conversation or part of an isolated dociune,zi or is
contained in a document which forms part of a book, or is contained in part of
electronic record or of a connected series of letters or papers, evidence shall
be given of so much and no more of the statement, conversation, document,
electronic record, book or series of letters or papers as the Court considers
necessary in that particular case to the full understanding of the nature and
effect of the statement, and oft/ic circumstances under which it was made,]

SYNOPSIS
Page Page
Information Technology Act. 2000 813 Discretion of Judge in Limiting
When statement has to proved the Quantity to be Admitted 815
in part only [S. 39] 813 how Much of a Statement is to
Be Proved 815
Principle and Scope
Statement Barred Under Other
Opponent Ma y Put in the Sections is Not Admissible
Remainder 814 Under This Section 816

COMIENTARY
Information Technology Act, 2000
When statement has to be proved in part only [S. 391.—Thc original S. 39 has been
substituted with a new declaration. The reason for recasting the provision is to
accommodate the words "electronic records".
§ For text of the Information Technology Act, 2000, see Slop Press pages in
Volume I after General Contents.
Principle and Scope.—This section is based on the rule as it prevails in England.
When any statement of which evidence is to be given forms part of a longer statement, or
of a conversation or is contained in a document which forms part of a book, letter, &c,
evidence should be admitted of so much of the statement, conversation, document, letter,
&c, as are necessary to explain or to understand the statement. In the absence of any such
restriction, much time would he wasted and matters which would be otherwise
inadmissible would be let in. Moreover, justice requires that an unfair use should not be
made of a man's statement shorn of its context. If a party makes a qualified statement, it
cannot be used a g ainst him apart from the qualification or explanation attached to it. The
rule is therefore founded on justice and convenience. So, when a particular entry in an
account hook or a diary or a paragraph in a newspaper, or a part of a conversation or
some out of a series of letters have been put iii evidence by a party, the other side is not
entitled to use as evidence distinct entries, paragraphs, letters, &c unconnected with the
entries relied oil his opponent. The court has been given discretion to admit so much
of the Statement, conversations, &c as may he necessary to understand or qualify it.
Taylor states the rule thus: Though the whole of a document may, as a general rule,
he read by one party when the other has already put in evidence a partial extract, this
rule will not warrant the reading of distinct entries in an account-book, or distinct
paragraphs in a newspaper, unconnected with the particular entry or paragraph relied on

* Subs. by the Information Technology Act, 2000.

814 Sec. 39 Chap. /1—Of the Relevancy of Fact.v

by the opponent; nor will it render admissible bundles of procccduigs in bankruptcy,

efltflCS in corporation-hooks or a series of copies of letters inserted in a letter-book,
merely because the adversary has read therefrom one or more papers, or entries or
letters. If, indeed, the extracts put in expressly refer to other documents, these may be
read also, but the mere fact that the remaining portions of the papers or books may
throw light on the parts selected by the opposite party will not he sufficient to warrant
their admission; for such party is not hound to know whether they will or not; and
moreover, the light may he a false one [Tay s 732]. The same nile prevails in the case of
a conversation, in which several distinct matters have been discussed. If a part of a
conversation is relied on as an admission, the adverse party can give in evidence only so
much of the same conversation as may explain or qualify the matter already before the
court. For example, a witness who has acknowledged on cross-examination, that he has
heard the plaintiff admit on oath that he had repeatedly been insolvent, cannot be asked
in re-examination whether the plaintiff had not, OB the same occasion, expressly stated
that the money was given to him, and not lent [Tay s 733],
ABBOT CJ, in the Queen's case, 2 B&B 297, said thus about the rule as to re-examination:
"I distinguish between a conversation which a witness may have had with a
party to the suit, whether civil or criminal, and a conversation with a third PSol1.
The conversations of a party to the suit, relative to the subject-matter of the suit,
are in themselves evidence against him in the suit; and if a counsel chooses to ask
a witness as to anything which may have been said by an adverse party, the
counsel of that party has a right to lay before the court the whole, which was said
by his client in the same conversation, not only so much as may explain or qualify
the matter introduced by the previous examination, but even matter not properly
connected with the part introduced upon the previous examination, provided only
that it relates to the subject matter of the suit: because it would not be just to take
part of a conversation as evidence against a party, without giving to the party at the
same time the benefit of the entire residue of what he said on the same occasion."
This statement of the rule was however qualified in Prince v. Samo, 7 Ad &
E 627, where it was held that it witness of the plaintiff cross-examined as to the
assertions of the plaintiff in a particular conversation, could not be examined as
to other unconnected assertions of the plaintiff in the same conversation, al-
though connected with the subject of the suit Roscou, NP, 18th Ed, p 184].
In Prince v. Samo, ante DENNAN LCJ, said: "My opinion was that the
witness might he asked as to everything said by the plaintiff, when he appeared
on the trial of the indictment that could in any way qualify or explain the
statement as to which he had been crosc-examincd, but that lie had no riht to
add any independent history of transactions wholly unconnected with it.......
Upon the whole, we think it must he taken as settled that proof or detached
statement made by a witness at a former time does not authorize proof by the
partycalling that witness of all that he said at the same time, but only of so
much as can be in some way connected with the statement proved..... We cannot
assent [to the above passage of the opinion in the Queen's case"].
Opponent May Put in the Remainder.—The opponent, against whom a part of
an utterance has been put in, may, in his turn complement it by putting in the
remainder, in order to secure for the tribunal, a complete understanding of the total
tenor and effect of the utterance. There is much opportunity for difference of opinion
whether the proponent in the first instance must put the whole. But there is and could
be no difference of opinion as to the opponent's right, if a part only, has been put in,
himself to put in the remainder. In the definition of the limits of this right, there may
he noted three general corollaries of the principle on which the right rests, namely:
(a) No utterance irrelevant to the issue is receivable; (b) No more of the remainder of
the utterance that concerns the same subject, and is explanatory of the first part, is
What evidence to be çi1'c7 nba" .cmramentJoraLv part of a conversation Sec. 39 815

receivable,- (c) 77te remainder thus received merely aids in the construction of the
utterance as a whole, and is not in usd1 testimony [Wig s 2113].
With regard to letters, it has been held that a party may put in such as were written
by his opponent, without producing those to which they were answers, or calling for
their production; because, in such a case, the letters to which those put in were
answers are in the adversary's hands, and he may produce them, i1 hc thinks them
necessary to explain the transaction. This is the strict rule, but in practice if a party
reads a letter from his opponent and is in possession of a copy of his own letter to
which the opponent's is an answer, he is expected to read both. If a plaintiff P ut s in a
letter written by the defendant on the back of which is something written by himself,
the defendant is entitled to have the whole read; and where a defendant laid before
the court several letters between himself and the plaintiff, he was allowed to read a
reply of his own to the letter of the plaintiff, it. being considered as part of an entire
correspondence [Tay s 734].
Discretion of Judge in Limiting the Quantity to be Adruitted.—Whether the
statement be in a civil or criminal proceeding (admission or confession), the whole of
it which contains the statement must he read and taken together for thus alone can
the whole of what the person making the statement intended to convey be certainly
arrived at. It would be all practice to extract what is against the interest of the
declarant, while the very next sentence might contain a material qualification. On the
other hand, great prolixity and waste of time might occur, if the whole of long
rambling statements were to be introduced simply on the ground that the whole of
the document or conversation must he before the court. The judge is therefore
constituted, in every ease, the referee, by whose decision is limited the quantity of
the document, etc, containing the statements which shall he put in evidence. His
discretion is to he guided by the principle of letting in so much, and so much only, as
makes clear "the nature of the effect of the statement and the circumstances under
which it was made." Thus if the statement he contained in a conversation, it by no
means follows that the court should admit the entire conversation. The court would
exercise a sound discretion in admitting' only so much as explains or qualifies the
statement. Prince v Same (ante) is the leading case on this point [NOrL pp 203-041.
This section must be taken to refer to statements which are admissible under ss 17,
18, 19, 34 to 38, as also statements used for purposes of cross-examination. The
documents referred to by a witness to refresh his memory do not strictly come within
the section, but the same principle has been applied to them lCunn p 109].
Flow Much of a Statement is to Be Proved.—The case of Pu/in v. Watson, 9 WR
190, goes not further than to lay down that an unfair use is not to be made of a man's
written statements, by trying to convert into an admission by him, that which he
never intended to he an admission [Baikuntanat/, v Chandra, 1 BLR AC 133 10
WR 1901. If the special diary is used to refresh his memory by the police officer who
made it or is used by the court to contradict such officer, then the accused or his
agent is in law entitled to see only the particular entry used and so much of the
special diary as in the opinion of the court is necessary in that particular matter to the
full understanding of the particular entry so used and no more. In such cases, the
court ought to exercise a sound judicial discretion and should not be influenced by a
mere arbitrary fancy [R Mannu, 19 A 390, 405 FB]. Although the entries in hooks
of account are relevant to the extent provided by s 39, yet such a book is not by itself
relevant to raise all from the absence of any entry [Kanmalapathi s Bejoy, 3
IC 291]. Because a document is admissible for a certain purpose all recitals,
statements and references therein cannot he used as proof of the facts to which they
S I 0 Sec. 40 Cliuji. 11-0f i/ic Relecwu- y r/ /J('[.5

elate I 7kcirwn e. A! oil/cit. A 1930 A 299 Sec liosvcvcr S'hk Ketabudtli,t t. Nrijirr, 44
Cli 552 : A 1927 C 230]. As to how much of an ailnirs.vio,i or totijessim can he
pros ccl. see ante ss 17 and 24.
Statement Barred Under Other Sections is Not Admissible Under This
Section.— When a particular siatement is barred by s 27, it cannot be let in under s
39 under the garb of an explanatory Statement; s 39 cannot be invoked for letting in a
confession in respect of which the bar under ss 24, 25, 26 has not been removed by s
27 [Suk/iaiz e R, 10 L 283 FR : A 1929 L 344]. if the accused wishes to challenge. the
veracity of the statement that it was on his information that the thing was discovered,
he may ask the deponent to depose to the exact words. Then under s 39 so much of
the statement made by him can be given in evidence as the court considers necessary
in that particular case to the full understanding of the nature and effect of the
statement. But so far as the admissibility of the words deposed to is concerned, they
are still governed by s 39 [Karain Din e R, A 1929 L 33$].

JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT

S. 40. Previous judgments relevant to bar a second suit or trial.—
The existence of any judgment, order or decree which by law prevents any
Court from taking cognizance of a suit or holding a trial, is a relevant fact
'when the question is whether such Court ought to take cognizance of such
suit or to hold such trial.
SYNOPSIS
Page Page
Principle and Scope. [Rele- Er pc:re Decree 823
vancy of Judgmcnts] 816 - Decision in Rent Suits 823
General Rules Applicable to Res Judicata Between
Judgments 818 Co-defendants l'roforrna
Relevancy of Previous Judg- Defendants and Co-plaintiffs 823
ments to Bar a Second - Plea of Rev Judicata, Flow
Suit or Trial 819 to be Determined 824
Res JtrcJiCat(-i 821 Applicability of This Section
Distinction Between 1/es u Criminal Lases 824
Jiatic-ala and Estoppel 822 Foreign J udgrncn 821
Conditions Necessary to Evidence of Acquittals 825
Constitu t e Res Judicata 822
Evidence of Convictions 826

COMMENTARY -
Principle and Scope. [Relevancy of Jugrncnts].—ctions 40-44 deal s ith the
relevancy of judgments of courts of justice) When the. ci was in the Bill stage, it
was complained by some that the provisions relating to judgments were meagre. The
reply of Sir James Stephen to his critics was that "it may appear meagre to those who
take their notions of the Law of Evidence from works like Mr Tay'or's; but that it
contains everything which properly belongs to the subject. Its utter absence of
arrangement and classification on every subject is the great reproact of the law of
England ...... It is of great importance to draw the line distinctly between what
properly belongs to the subject (of Evidence) and what does not. It is for this reason
that the seclions about judgments are drawn in their present form, and that certain
 l'iei'io!(Sjiuic,,jc,JL V 1(1 CL (iii! to bar ti SCCOII1 VU!! 01- t,iul. Sec. 40 8 17
topics Connected with judgments which are often dealtwith by Writers on evidence.
are omitted from the Bilt" ISteph Speech on Maicli 12, 872]. For instance, the
subject of res pu/train properly belongs to procedure and the law is contained in the
C P Code. S 40 touches the question only to this extent that it makes a prcviouc
judgment relevant in order that the adjective law or law of procedure may be given
effect to by showing that the existence of a previous juLICiflent is a bar to a second
suit. "The only questions c
onnectcd with judgments which do appear to me to form
part of the Law of Evidence properly so called, arc dealt with in ss 40-44, of the Bill.
These sections provided for the cases in which the Lct that a court has decided as to
a given matter of fact relevant to the issue may he proved for the purpose of showing
that the fact exists. This no doubt is a branch of the law of Evidence" IStcph Speech].
S 40 enacts that the existence of an y judgment, order or decree which by the law,
that is, by the provisions of the Civil Procedure Code or Criminal Procedure Code (ic
judgments in support of a plea of rex jiulicara, in civil case or of
aurre fois acquit or
autre fois convict, in criminal cases, Constitutes res judicata, that is, bars a second
suit or trial is a relevant fact, and to have the effect, the judgment must be jilter
panes. S 40 has nothing to do beyond admissibility of the judgment. The question of
re.c)Jithcata is to he determined tinder the separate adjective law.
/s 4o Simply renders admissible udgments which operate as pleas in bar of the
action of the kind as plea of iesjudicaia or otherwise, under some other rule of law.
That section has nothing to do with questions of evidence be y ond the admissibility of
the judgments, because a plea of re.rjudicata is not a plea as a matter of evidence, but
only a plea barring the action as a matter of procedure as distinguished from the rules
of cydcncc [ Colir of Gorak/ipur c Palakdliarj, 1 2 A I FB per M..itzioor J. P 44].
40 does not lay down that the judgment must prevent the eoLlrt from taking
cognizance of the entire suit as a g ainst all the parties. If the judgment prevents the
court from taking cognizance of the suit so far as it relates to some ol the parties
thereto, then also s 40 would apply [B/iolai-jt/i i. Manniat/in, 45 C\VN 4201.
S 41 deals with what is usually called judgments in rem, that is, judements which
are conclusive not only against parties to them, but a g ainst,all the world. The section
does not however, give any definition of the term judgment in rein, but only
enumerates four classes of judgments.

S 42 deals with the admissibility of judgments relating to matters of public nature,

though not between the parties or privies, without makin g any distinction between
the words 'pablc and 'general,' which is sometimes made in England. But such
judgments, orders or decrees are not conclusive proof of that which they state.
S 43 says that judgments other than those mentioned in ss 40-42 are irrelevant
unless the existence of such judgments is a fact in issue or is relevant under some
other provisions of the Act, eg under ss 8, 11, 13, 54 ExpI (2) &c.

S 44 says that when any judgment, order or decree has been received under ss 40-
42, the adverse party may show that it was obtained by fraud or was delivered by a
couit without jurisdiction. Judgments vitiated by fraud can therefore be challenged
under s 44 without hi inginu a suit to set them aside.
As to the particular judgment which may be put in if admissible, when appeal is
taken against a decree, the decree of the lower court gets merge d in the decree of the
appellate court and so the judgment of the trial court is not the final adjudication on
the points in issue and cannot be referred to [L?cnode La! o S'ec' of S,
34 CWN
1113].
818 Sec. 40 Chap. Il—Of the Relevancy of Pacts

General Rules Applicable to Judgnients.—Fhcrc arc certain general Riles which

apply to all judgments. They are:—
(I) All judgments are conclusive of their existence as clistiiiguishcd from their
truth. A judgment is a solemn transaction Publicly recorded by the court and it
affords conclusive proof of the fact that there was a litigation between some parties at
a certain time which terminated in a certain way; but it does not make all the recitals
in the judgment part of the evidence in the subsequent action [Abdul La/if] u Abdul
Huq, 28 CWN 62; Kashinath v. Jagat, 20 CWN 6431. If the object is to prove the
existence of a judgment, its date or its legal consequences, its production is
conclusive evidence of the facts against all the world, whether parties, representatives
or strangers [Abinash v. Pares/i, 9 CWN 402]. The judgment merely establishes the
fact that there has been a judgment, but it does not prove its correctness [Baidyanath
v. Alifian, 36 CU 91. These and other cases have been cited and discussed in Ram
Kripal u Mon ihati, 1958 p 477 . Judgment is admissible for proving the factum of
previous suit and the circumstances in which it was decided [Shyain v. Ilira, A 1972
HP 135]. So far as regards the truth of the matter decided, a judgment is not
admissible against one who is a stranger to the suit [Kesho u Bahuria, 41 CWN 577
A 1937 PC 69 : 16 p 258. As to the objects for which judgments are admissible, see
post, s 43]. In other words, the law'attributes unerring verity to the substantive, as
opposed to the judicial portions of the record. In the substantive portion, the court
records or attests its own proceedings and acts. In the judicial portion, on the
contrary, the court expresses its judgment or opinion on the matter in question, and in
forming that opinion it is bound to have regard only to the evidence and arguments
adduced before it by the respective parties. Such a judgment. therefore, with respect
to any third person, who was neither a party nor privy to the proceeding in which it
was pronounced, is only ie.r inter alias, judicara; and hence the rule that it does not
bind and is not in general, evidence, against any one who was not a party or privy
[jay s 1667; Phip 11th Ed, p 533; Best 11th Ed, s 590; Steph Art 40].
(2) All judgments are conclusive of their truth in favour of the judge. A judgment
of a court of competent jurisdiction is conclusive for the purpose of protecting the
judge who pronounced, and the officers who enforced it, when acting within the
scope of their authority. The rule is founded on public policy [jay ss 1669-72; Steph
Art 45]. Cf Judicial Officers' Protection Act (18 of 1850),
(3) A domestic judgment in rem is in civil proceedings cnncl'si"e evhicnce for or
against all persons, whether parties, privies or strangers, of the matters actually
decided (Tay ss 1680-81). S 41 has reference to such judgments in rem. It confers
conclusiveness on four classes of judgments, viz, those pronounced by a competent
court in the exercise of probate, matrimonial, admirality or insolvency jurisdiction.
These judgments affect the status of a person or thing and they are made conclusive
for or against all the world oil principle that public policy requires that question
of status should not be left in doubt. "It is an adjudication which not only declares
the status of the person or thing adjudicated on, but actually renders the status of the
person or thing such as it declares to he" [Tay ss 1672-75].
(4) A judgment in personain of a competent court is coiclusivc proof, in
subsequent proceedings between the same parties or their privies, of the matters
actually decided, as well as of the grounds of the decision where these can he clearly
discovered from the judgment itself [Phip 11th Ed, p 549; Step Art 14; Best 11th Ed,
ss 589-95]. Judgments in personam, though generally binding upon the parties and
privies thereto, may be used as against third persons, for the purpose of proving
conclusively against them, in the absence of fraud against them, the relationship
 Pret'iosjudçcnie, t ,v ,elciaiil to bar ci sc'coitd suit (Jr trial. See. 40 819

between the parties and of the extent of the relation, though the judgments cannot he
use(] it) favour of such third persons [Abinash e Pr'iresh, 9 CWN 402]. But see
jUdOfllCI1tS in personem not inter panes are not at all admissible in evidence. The
recitals in a judgment like findings given in appreciation of evidence made or
arguments or genealogies referred to in the judgment would be wholly inadmissible
in a case where neither the plaintiff nor the defendant were parties. [State q'/3i/tar e
Sri Rad/zakrishna Singh, A 1983 SC 684, 714]. An exception to the rule that no one
shall he affected by judgments to which he was not a part y or privy cists in favour
of judgments upon ivatters of a public nature. But though such judgments are
admissible they are not conclusive proof of that which they state. This rule is enacted
in s 42.
(5) Judgments are never evidence of collateral matters. No jud g ment is evidence of
tile truth of any matter not directly decided, or a necessary ground of the decision;
thus, it is never evidence of facts which merely came collaterally in question, or were
incidentally cognizable, or can only he inferred by argument from tile decision [Phil)
11th Ed, p 537 ] . A jud g ment furnishes no proof whatever of collateral facts, even
though, as between parties to such judgment themselves, such facts must have been
proved [per GEIDT, J, in Abinasli v. Paresli, sup].
(6) All judgments are impeachable oil grounds, eg, that they were passed
by courts without junisdic6on or that they were obtained by fraud or collusion (s 44).
Judgment may also he impeached o i l ground that they were nol final or they are
not on merits [Tay s 171$; Phil) 11111 Ed ill 535-537).
Relevancy of Previous Judgments to Bar a Second Suit or Trial.—This section
simply declares that if the law (civil or criminal) gives to a jud g ment, order or decree,
the effect of precluding the court from taking cognizance of or trying a subsequent
cause, then such judgment, order or decree is a relevant fact. The object of the
admissibility of previous judgment, order or decree is to enable the court to give
effect to the adjective law or law of procedure on the subject. The section has nothing
to do be y ond the admissibility oijLldgments. The plea of res judicata belon g s to the
province of procedure. The section does not say that such judgme n t, order or decree
would be conclusive, but it simply says that the existence of such judgment, etc, is
only a relevant fact. The only eases in which a judgment is conclusive are those
mentioned in s 41. S 40 applies to a case in which the court has jurisdiction to decide
a matter and one party says that it should not do so because that matter has been
decided before [Lakhan v. Ramdas, A 1929 C 374 FB: 118 IC 857]. The doctrine of
res judicata rests upon the maxim Nemo debet bis vexari pro uita Cf cadent catisa-
No mail to he troubled twice for one and the same cause. The leading case on
the point, is that of the Ditches of Kingston, 2 Smith LC 680. Where the decree-
holder obtains possession otherwise than by execution of the decree it amounts to
satisfaction of the decree for possession and if the decree-holder is dispossessed
thereafter he gets a fresh cause of action for filing a second suit oil basis of his
dispossession [Rantsarup v. Puran, A 1971 P&H 106 (Laklirwti v. D/tanraj, A 1916
A 261 oil A 1916 A 163 foild)].

Thejudgments of courts in any trial are relevant for particular purposes and not
otherwise within the contemplation of Ss. 40 to 43 of the Evidence Act. The
judgments of Criminal Courts or the Findings supported by reasons are by
themselves not binding on civil courts non would be conclusive of the facts of the
involved therein for the purpose of determination of the similar facts in issue in a
civil case which has to he gone into oil adduced before it to be
independently decided. The rule is not that the judgment of the criminal court has
520Scc. 40 C7iap. 11—Of the Rcleiwicv üJ l'at.c

to be mnored altogether but it should not be relied as conclusive prool lbr decidin
the disputes in a civil suil. Such judgments and findings of criminal courts
s the
although by them elves may not constitute the proof of facts in issue in a civil
case, they still holds the feild of proof by corroboration. The rule requires further
elaboration within the true COCCPt of the binding nature on persuasive nature of
the decisions of a criminal court in civil cases. In view of the concept of proof-
beyond reasonable doubt of an offence in a criminal court, the acquittal of an
accused may he for various reasons including a technical flaw and the benifit of
doubt, whereas the conviction for an offence beyond reasonable doubt. In a civil
case, the proof of a fact or fact in issue being one based on the probability would
not he that stricter as in the case of proof of a offence beyond reasonable doubt.
Therefore, broadly stated the acquittal of accused for an offence in a criminal case
is not relevant or binding on the civil court whereas the conviction may be not only
relevant but also has a stronger probative force of fact in issue in a civil court to
record a finding not within the meaning of having force. [Sardar Pro/i/nd Singh v.
Syed A/i Musa Raza, 1997 AIHC 3122, 3 1331.
The conditions under which a former judgment, order or decree will prevent any civil
or criminal court from taking cognizance of a suit or holding a trial, do not belong to the
law of Evidence. They are contained in the Codes of Civil and Criminal Procedure, viz, ss
10-13; Or 2, r 2 of Act 5 of 1908: ss298 and 300 of the Cr P Code of 1973.
The present section is evidently intended to refer to judgments inter panes and not
to the judgments mentioned in s 41, for which no provision is made in the Code of
Civil Procedure. In any case in which a question at issue is concluded by a previous
judgment between the same parties, that judgment is admissible [see Gujju La/I e
Fuitch La/I, 6 C 171 FB]. The present section does not apply to a case in which the
court by which the judgment was given should not have tried the second suit. In such
a case there is no resjudicata and so the question may arise whether ajudgmcnt in a
former suit between the same parties and relating to the same matter is, although not
conclusive, admissible in evidence [Cunn p 112].
S 10 of the C P Code of 1908 provides, for stay of suit if the matter, in issue in the
suit is also directly and substantially in issue in a previously instituted suit between
the same parties or between parties under whom they or any of them, claim litigating
under the same title, where such suit is pending in the same or any other court.
The next section which deals with thc cuesiion of rcsjudicata is s 11 of the C P
Code of 1908.
S 13 of the C P Code of 1908 deals with the effect of foreign judgment, which
shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or privies, litigating under the same title except in the eases specified in
clauses (a), (b), (c), (d), (e) and ( of the section.
Or 2, r 2, C P Code, 1908provides that every suit shall include the whole of the
plaintiff's claim, and if he omits to sue in respect of any portion of his claim, he shall
not afterwards be entitled to sue in respect of the portion so claimed. The former
judgments may therefore be relevant under s 40 of the Evidence Acfor showing that
the claim subsequently advanced forms part of a former claim, or that the remedy for
which the plaintiff now sues is one for which the plaintiff might have sued in a
former suit in respect of the same cause of action.
The same principle applies to criminal law. An accused person may under s 300 Cr
P Code bar proceedings against himself by showing that he has been previously
acquitted or convicted by a competent court on the same facts as those in respect of
Pictiousjielçeme,it.v /L'/Ci'Uftt to hO' it scioiiil 'tilt or trio!. Sec. 40 82 I

w t uch he is bcmg prosecuted. The jtidgfllClit of' the court by which he was acquitted
or convicted would be relevant under s 40 of" the hvidciicc Act Isec Cu nu I I th Intro
p xxvi]. As to the mode of provin g a lrc\'ious conviction or acquittal See s 29$ of
the Cr P Code. See also ss 14 and 54 of the B y Act.
The provisions as to the conclusiveness of an entry in the settlement officer's
record arc contained in s 17 of the Bombay Khoii Act (I of 1880).
Res .Jiithcata.—The object of ics juthcata belon g s properly to procedure and is
regulated by the provisions of the C P Code. S 1] Cl' Code is not exhaustive. The
binding force of a judgment in a proceeding between the parties depends not upon s
11 but upon the general principles of law I Kalipada i: Dtvijapada, 57 IA 24: 34
CVN 201: A 1930 PC 22; Ram Kripttl v ' Rup Kwnari, Ii IA 37: 6 A 269]. A
judement, which is relied on by a party in a subsequent Suit in Support of the plea of
rex judicata, becomes relevant and can he read in evidence 1 11mc Boson v. Sint
1-/asina Bibi, A 1984 All 216, 219 : 1984 CJ 141 (A 1927 All 494 and A 1971 All
439 overruled)]. The previous judgments are relavant to bar -,I second suit or trial. I[)
other words the earlier judgment operates as icr judicata [Nac/titittar Sing/i v. Sail
Jagir Kaur, A 1986 Pun & Har 197, 199 : (1985) 288 Punj LR 593].
Though the rule of rex judieaut may be traced to an English source, it embodies a
doctrine in no way opposed to the Spirit of the law as expounded by the Hindu
commentators. Vijnanesrvara and Nilkiinta include the plea of a former judgment
among those allowed by law, each citing for this purpose tile list of Katayana, which
describes the plea thus: "If a person, thou g h defeated at law, sue again, he should be
answered. "You were defeated formerly'. This is called the plea of former judgment.
And so tue application of the rule by the courts in India should he influenced by no
technical consideration of forms but by matter of substance within the limits allo ed
by law JSheopar.rctn c Ramcmandan, 20 CWN 738: 43 C 694: 43 IA 91: A 1910 PC
7$; Kalipada v Divijapada, sup]. In Katyayana, res judicata is spoken of as Purba
Nvaya or former judgment. The doctrine seems to have been recognized much earlier
in HindujurisprLidCflce judging from the fact that hoih the Smritic/iandrika and the
Virinirrodava base the defence of Prag Nyaya (former decision) on the following text
of Harita who is said to have flourished in the 91.11 century BC: 'The plaintiff should
be non-suited if the defendant avers: 'In this very affair, there was litigation between
him and myself previously' and it is found that plaintiff had lost the case." There are
texts of Parasara and Mayukha to the same effect [Lzich/iini : B/tn/li, 8 L 384 FBI.
MALIMOOD, J. in Sitaram I ,. Amir IJegum, 8 A 324, has clearly explained that the
Principles of the law of rex judicala belong to the province of adjective law. In a very
long and lucid judgment, he made the following observations:—
"The plea of res judicata, as a bar to an action, belongs to the province of
adjective law, but difference of opinion prevails among the jurists as to whether
the rule belongs to the domain of procedure or constitutes a rule of the Law of
Evidence as furnishing o a gr und of estoppel. In England and also in America,
the rule is usually deali with as belonging to the Law of Evidence, for, there,
judgments in personain which operate as res jttdicara, arc as often treated as
Falling under the cate g or y of cstoppels by record. SIR Ftrz JAMES STEPIltIrc, the
distinguished jurist who framed the Indian Evidence Act, and whose views have
been accepted by the Indian Legislature in framin g this section of the Act,
adopted, what seems to he, the only logical and jurislic classification by treating
tile rule of ies judicata, as fallin g beyond the proper region of the Law of
Evidence, and as appertaining to procedure properly so called."
 $22 Sec. 40 Chap. 11—Of the Relcr'ancv of /ici.r
Although discussions on the subject of n's jutheata arc beyond the lWOPCr regions
Of he Law of Evidence, yet the mai na ha Lures of the law of n's j uthcata are explained
below with reference to the leading cases. It should, however, he borne in mind that
as an estoppel shuts out inquiry into the truth, it is necessary to sec that the principle
of resjudicata is not unduly enlarged [Raichai-an v. Kumud, 25 C 27 : 2 CWN 2971.
The doctrine of resjudicara as embodied in s 11 of the C P Code is not exhaustive.
The section does not cover all cases of estoppel by judgment [Sayam e Secy of- S, 36
M 141; Peon v Durlav, 18 CWN 954]. The addition to s II by C P Code (Ant) Act
104 of 1976 of Expi vii has made statutory i-es judicata applicable to execution
proceedings in its full amplitude, and of Expin III has provided that the decision of a
court of limited jurisdiction would operate as res judicata in a subsequent suit
notwithstanding the lack of competence to try it. As to res judicata, see Sarkar's C P
Code, 6th Ed. 1979.
Distinction Between Res Judicata and Estop 1) rule of estoppel is not a
rule of substantive law, in the sense that it does not declare any immediate ri g ht of
claim. It is a rule of evidence, but capable of having the greatest effect on the
substantive rights of the parties. Resjudicata ousts the jurisdiction of the court; while
estoppel does no more than shut the mouth of a party. To put it colloquially and
compendiously, estoppel never means anything more than that a person shall not be
allowed to say one thing at one time and the opposite of it at another time; while res
judicata means nothing more than that a person shall not be heard to say the same
thing twice over in successive litigations [see Cassamally v. Curremb/zoy, 36 B 214
and BhajsJzankar v Mororji, 36 B 283]. The law of resjudicata does not compel the
court trying the latter suit to hold, without trial, that the decision in the earlier suit
was correct; it merely cstops the parties to the earlier slut and their privies from
showing that it is incorrect. The Judge trying the latter suit must give effect to the
decision, but he is not bound to hold that it is right [Vabswara v. Muthukrislrna, 21
MLJ 57: 9 IC 686; Kalicharan v. Sheobu.x, 17 CU 93: 16 CWN 783]. A plea of
estoppel by res judicata can prevail even where the result of giving effect to it will be
to sanction what is illegal in the sense of being prohibited by statute [Cliagan v. Bai
Hark-ha, 33 B 479: 11 Born LR 345; Basangouda v. Basalingappa, A 1936 B 301].
It has been pointed out in a later case that in neither of the two cases supra was there
any question of the court itself being held hound to take any action contrary to the
express words of a statute [Bai Suraj i !-Iaribhai, A 1943 B 54; see pact, s I 15:
'Principle of Estoppel cannot override thc p10 kLions of a statute"].
—Conditions Necessary to Constitute Res Judicata.—(J) The matter which the
court is forbidden to try under s 11 C P Code must have been heard and decided in
the former suit as distinguished from a proceeding or application. (2) Not only is the
court forbidden to try a suit but also art issue in a suit which has been heard and
decided in a former suit. (3) The matter in the subsequent Suit was directly and
substantially or constructively in issue in the former suit. (4) There must be identity
of parties in both the suits. (5) The parties in the subsequent suit have litigated under
the same title in the former suit. (6) The court which decided the former suit was
competent to try the subsequent suit. with reference to the value and the subject-
matter. (7) The matter directly and substantially in issue in the subsequent suit must
have been heard and finally decided in the former suit.
To give effect to the plea of res judicata, the court must be satisfied that the
ground of legal right on which the plaintiff sues was a point raised and opened for a
decision and that it was finally dealt with by the judgment and decree therein
[Udaiya v. Katama, 2 Mad HC 131; affirmed in 10 WR 1 PC; see also A,nriteswari
 Pit'viousjud,'ements relevant to bar a second suit or trial. Sec. 40 823

Sec) of S, 24 IA 33: 24 C 504: 1 CWN 249; Parsotani u Narbada, 26 IA 175: 21

A 505; Dhani Ram i Bhagirathi, 22 C 692; She osagar i: Siraram, 24 IA 50: I CWN
297: 24 C 616; l3iwgiati v. Ranikali, 66 TA 145: A 1939 PC 133: 43 C\VN 67]. On
the subject of resjudicata see Sarkar's C P Code, 6th Ed. 1979.
—Ex pane Decree.—Where an issue was raised and finally decided the rule of
resjudicata applies, though the decree was ex porte [Horn Ch v. Bepin, 13 CLJ 38;
Gauhar e Samiruddiji, 18 CWN 33]. In the absence of fraad or irregularity a decree
obtained e..v porte is binding for all purposes as a contested decree [Beer Ch i
Hurrish, 3 C 383; Ru,! Kumar v. Alimuddi, 17 C\VN 627; Hiraiimoy u Ranijan, 20
CWN 48; La/a Gobind i: Baldeo, 226 PLR 1914: Rajwant v. Barn Rain,,, 42 IA 171:
20 CWN 35: 37 A 485: A 1915 PC 99; Macthu Manjaree V. Jhurnar, I CWN 120;
Motilal u Nripendra, 2 CWN 172; Atareiniessa v. Golabdi, 14 CWN lOOn].
—Decision in Rent Suits.—A decision in a rent suit by the landlord against his
tenant for rent in arrears, is not, resjuthcaia in a subsequent suit by the same plaintiff
for establishment of title, not only against the tenant but also against the person
whose title as landlord the tenant-defendant had set up in the previous suit [Divarka
i Ram Cliand, 26 C 428 FB : 3 CWN 266, See also Nitr yanund v. Ram Narain, 6
CWN 66: Md Afsaruddin v. Beer Ch, 8 C 470; Ran Bciliadur u Loch/ia Koer, 11 C
301: 12 TA 23; Haithar v. Karurnat, 9 CU 493: S,'ihari v. Ks/iitish, 24 C 569; Khatar
i Sadaraddi, 34 C 922]. It is not res judicata if the question of title is decided
incidentally jDurgapada t; Manindra, 63 IC 762; Mani Md v. Dhcuie Md, 17 CWN
76: PrL'thhu v. Swidar, 16 CU 41; Sonaullah v. Durga Kanta, 50 IC 598]. But where
the question of title was directly and substantially in issue the question is resjudicata
[Paiicliu i: Chandra, 14 CLJ 220; Si'eenath i Koser, 18 CWN 116 : Parbati v.
Mathora, 16 CWN 877 : 40 C 29; Gohind v. Taruck, 3 C 145 PB: Radha Mad/mb v.
Monohar, 15IA 97: 15 C 756; Kasiswar v. Mohenc/ra, 25 C 136; Sahadeb v Rain
Rudra, 10 CWN 820].
Decree in a previous rent suit for a certain sum claimed for a certain period, which
did not decide the question or rate or rent is not ,es judicala in a subsequent suit
[Manindra 'c Upendra, 36 C 604 : 9 CLJ 343, see also Madhusudan v. Brae, 16 C
300 FBI. Es parte decree for rent in which no issue was raised as to rate of rent is not
resjudicata ENafar v. Bhusi, 65 IC 581(C); see also Jatindra 'a Samblmu, 4 CWN 43;
Ayyaperuinrnal 'a Rarnaswami, 29 MU 326; Beni Pd 'a Rajkwnar, 6 CWN 589; Kali
Ray 'a Pratap, 5 CLJ 92 (Ghaneshyam m'. Padmanand, 9 CWN 610: 82 C 336
dissented from); Kishun 'a Ku/pad, 3 PIJ 372: 45 IC 316. See however Sowcar 'a
Polegar, 82 IC 990: A 1925 M 378); S/nb Ch 'a Latc/ii Priya, 29 CWN 2531. In suits
for rent, the causes of action for successive periods are different and in order to apply
the doctrine of resjudicara it must be shown that the question of right or liability not
merely for the period in the previous suit but for all times or once for all was directly
and substantially in issue and was tried and determined [Gimanada 'a. Nalini, 30 CWN
593].
Resjiidicata Between Co-defendants, I'ro forma Defendants and Co-plaintiffs.
—A judgment in a previous suit is not res judicata as between co-defendants, unless
there was conflict of interest between them and the judgment determines the real
rights and obligations of the defendants inter se. Such previous judgment is not res
judicata when the plaintiff in the subsequent suit was only a nominal party in the
prior suit [Balanthliai 'a Narayaiibhat, 25 B 74; Saroc/a v. Kai/ash Bus/nm, 17 CWN
128; Zemimidar V Prop of Kolanka, 2 M 23: 5 IA 260; mamma 'a Kurnaranissa, 3 A
152; Dhian 'a. Bilaskuar,
' 42 Pr 1912; Chittar Mat 'a Rain Narain, 12 ALT 603;
Bhagwant 'a Tejkuar, 8 A 91; Rainaniya v. Norayana, 18 M 374; Rain C/ 'a
 $24 See. 40 Chap. Il—Oft/ic Rcicva,icv of/acts

iVararan, 11 B 216; Goti,ul t'. Sri Govind, 24 C 330; Bapa % -.B/wwani, 22 B 215;
Nazir Khall i'. Maui gili, 231 PI,R 1912; Mir Khan i: Rahman. 33 PLR 1914; (7/ia//u v.
Uniran, 22 A 386; Alaipuirwu v. Mehdi, 31 C 95: 8 CWN 30; )bsuf i: I)urgi, 30 NI
447; Kwuc/ivi/ u: Zwnorin 29 M 515; Gurdeo n C/inndrikah, 36 C 193: 5 Ci J 611;
Ag/uore i'. Kanuini, 11 Cli 4611. There must be (I) a conflict of interest between the
co-defendants; (2) the necessity to decide the conflict in order to g ive, the plaintiff
appropriate relief: (3) the co-defendants must be necessary parties and (4) a final
decision in the question jIftik/uar Aluned Meharban, A 1974 SC 749; Miami u:
Tri/oke, 35 CWN 661: A 1931 PC 114: 58 IA 158; Chandu/al v. K/iou/ar, 1942, 2
Cal 229: 46 CWN 729: A 1943 C 76; see further Sarkar's C P Code, 6th Ed 19791.
—Plea of Rcsjitdicafa How to be Dcterniined.—In order to determine a pica of
,es judicara, the judgment must be 'looked at for the purpose of finding out whether a
matter was directly and substantially in issue in the previous suit and whether it was
actually decided in that suit. Decree is usually insufficient to show what was really
heard and finally decided [Kali Kr v Secy of S, 16 C 173 : 15 IA 186; Magniram v.
Me/udi. 31 C 95: 8 CWN 30; Sri Raja Rau Lakshnui v Iiiuganti, 25 IA 102: 2 CWN
337: 21 M 344; iViamur v. P/iathr, 6 C 319; Shib Charan v. Rag/iunat/u, 17 A 174;
Jagaijit e. Sarabjit, 18 IA 165; 19 C 159; Bluikabhai v. Bai J3huri, 27 B 418; Rwujir
Singh us Baswita, 12 CWN 739; Panc/iu us Chzandrakw ga, 14 CU 220]. The
judgment or order of the magistrate under s 145 Cr PC does not operate as res
judicata between the parties [Nirwujcun us Kasturi, A 1971 P&H 4 (Bhinka v. Charwu,
A 1959 SC 960 folld)].
Applicability of This Section to Criminal Cases.—The principle of resjudicata
applies to criminal proceedings. It is different from the principle of autrefois acquit
or double jeopardy as embodied in s 300 of Cr P Code. Where an issue of fact has
been decided by a competent court and a finding has been reached in favour of an
accused, it would constitute a resjudicata against the prosecution, not as a bar to the
trial and conviction of the accused for a different or distinct offence, but as
precluding the reception of evidence to disturb the finding of fact in issue, provided,
however, (1) that the parties are the same and (2) the fact in issue proved or not is
identical with what is sought to be rcagitated in subsequent trail [Sambasivam us P P,
1950 AC 458: 54 CWN 695 PC; Pritarn Singh us S, A 1956 SC 415; Manipur Minn
us I3ira Singh, A 1965 SC 87; Piara us S, A 1969 SC 961; Mohar v. 5, A 1968 SC
1281]. The effect of acquittal on a lawful charge is not only that the person acduiued
cannot be tried a g ain fn r the same uiTence but that the verdict is binding and
conciusive in all subsqiuent proceedings between the parties. The maxim 'res
judicata pro veritate accipitur" is no less applicable to criminal than to civil
proceedings [Sambasiva'n v. P P. 1950 AC 458: 54 CWN 695 PC]. Where there has
been acquittal, the guilt of the accused in respect of the offence of which he was
acquitted is not open to further question or discussion; and it would indeed he a very
dangerous principle to adopt, to regard a judgment of not guilty as not fully
establishing the innocence of the person to whom it relates [R v. La/it & Ors; 38 C
559, 578:15 CWN 593; Kader Sundar p. R, 16 CWN 69; Goloke v. R, A 1938 C 51,
70: 42 CWN 129].
As to the mode of proving an acquittal and conviction, see s298 Cr P Code.
As to the admissibility of judgments of criminal courts in civil : cases and vice
versa, sec..notes to S 43,
Foreign Judgment.---As to the conclusiveness of foreign judgments see s 13 of
the C P Code and the following cases: Balarwn v. Kamini, 4 WR 108; Shreehuree us
Gopal, 15 WR 500; Kassirn v. Isuf, 29 C 509: 6 CWN 829; Gudaru v. Moradugulu,
 I1Ci JO 1( .V /lU/f'e,/)',Jis ii'lcwiiii to 1(01 (1 .c((()fl(/' 5)1(1 or frif. Sec. 40 825
30 M 292; Ramanai/,an v. Kalinwiliu. 37 M 163; Santa n /1/wa/na/nj, 7 NI 164:
of 'W r. /larban.v 2 I A 17; GurlIovof t: 5 u a of fvtru/kot, 22 C 222: 2 I IA 17
tloaz:in, t: Raphael 28 C 611; Siinira.va t: ,i,&afu t//y/'/a 2$ M 23$. '/l'11o/?l 0
lVwg 0 and Co Lid., A 1928 PC 82.
As to the relevancy ofjudgnients not inter partes, see notes 10 S 13 ante.
Evidence of Acquittals.—To what extent acquittals in oilier cases arising out of
the same set of facts was in question in [Hiti C/ii-iniiiç n P. (1991) 3 All ER
897].
The prosecution case Was that a roan called Alt Po organised a gang to go out with
him to tind a particular person and to kill him on to inflict serious ifl
.Rtl y on him. The
gang killed another man under mistaken identity. Alt Po was tried for murder lie was
acquitted of murder but con convicted of manslaughter. Later his companion, the
appellant in this case, was tried for murder. The prosecution case was that he joined
the gang with knowledge of its aim. He cited the evidence of the acquittal of the gang
leader on murder charge. The trial judge excluded the evidence and the Privy Council
upheld his decision. Lord Lowry was of the view that the acquittal in the earlier case
was nothing but an opinion (of the jury) on the facts in that particular case and
cannot be used to influence decision on facts in other trials. Ile cited Ho/fin gton t -. P
Hent/jo,7 1 & Co Lid, [19, 131 2 All ER 35 where the irrelevance of the outcome of
earlier trials was emphasised.

This decision has been criticised oil the ground that relevance is a matter of logic
and common sense. Evidence is relevant to an issue of fact if it can lead to an
inference concerning the existence or non-existence of the facts ill question.
Irrelevant facts are excluded not because of some legal rule but because they are of
no use. [See All ER Annual Rei'ieu, 1991, p 169].
In [R e. Ha y , (1983) 77 Cr App R 701,
the accused made one confession about
two unrelated offences of arson and burglary. He was tried first on an arson
charge but was acquitted. At his subsequent burglary trial, the accused sou g ht to
adduce evidence of his earlier acquittal, but the trial judge refused permission.
On appeal it was held that his earlier acquittal should have been allowed to he
proved because it went to show that his confession was untrue. The evidence had
a bearin g on the credibility of the police officers who obtained the confession of
the accused.
In [R n Cooke, (1986) 84 Cr App R 2861 7 A, B and C
were alleged to have made
admissions to the sante constable. B and C were tried for robbery and acquitted.
Later, A was tried for robbery and convitcd. His conviction was quashed on appeal
because the trial judge wrongly excluded the evidence of the acquittal of B and C.
Here also the evidence of acquittal reflected the credibility of the constable who
obtained the confession.

It appears that sonic exceptional feature is needed before it will be considered

relevant to give evidence of what happened in curlier cases arisin g out of the same
transaction. A more reasoned approach is provided by the decision in
'- R i:
Edwards, (1991) 2 All ER 2661. The a g cused was char g
ed with robbery. The
prosecution produced evidence of his confession to the police about which the
accused said that it was fabricated by the two police officers concerned. It was
held that the defence should have been g iven the opportunity, as they demanded, to
cross-examine the two police officers as to the earlier cases in which also there
were allegations of fabricated confessions resulting in acquittals. For another :.so
on the same subject matter see (I? o. 11 (Joseph Robert), (1990)
90 Cr App 7
440 CA].
820 Sec. 41 Chap. 11—Of the Releva,icv of I'icis

Evidence of Convictioiis.—Thc conviction of a co-accused is admissible if it is

relevant to one of the evidential issues of the case. in [Ii a Gre',', (1989)
88 Cr App
R 375 CA], A, B and C were charged with burglary. A pleaded guilty. At the trial
of 13 and C the occupier of prcmiscs gave evidence of seeing one white and two
coloured youths near the house at 2 p.m. A neighbour gave evidence of seeing
three similar youths carrying bags at the house at 3.45 p.m. who ran away oil
challenged. Three youths of similar description were -arrested at 4 p.m. The trial
judgc allowed the crown to put in A's pica of guilty and evidence of A's shoc-print
in the house. There was a strong circumstantial case for linking A with B and C. It
was held that whether or not the three originally seen in the garden were the same
as those arrested later, the fact that one of them was proved by his plea to he one of
the burglars was plainly relevant to the issue of whether or not the other two were
involved.
Such evidence is, however, admissible as showing the background and circum-
stances but not as proof of guilt. [B a Mattison, 1990 Crim LR 117 CA]. Even as
such it becomes useful on occasions. Certain persons including C and F were
charged with robbery. A witness identified C at a parade and possibly F also, F
pleaded guilty. These two facts taken together left no doubt about C and F as
participants making F's guilty plea relevant against C. [R a Castle, 1989 Crirn LR
567 CA],

S. 41. Relevancy of certain judgments in probate, etc., jurisdiction.–'--

A final judgment, order or decree ofacompetent Court, in the exercise of
probate, maUi moni'äT, aJhira1ty or i nsol i'yjurisdiction, which confers
upon or takes va from any person any legal charadter, or whlf
any person b entitled to any suclihãfiiter, or to be entitleflômity
specific thing, riot as against any specified person but absolutely, is
relevant when the existence of any such legal character, or the title of any
such person to any such thing, is relevant.
Such judgment, order or decree is conclusive prof—
hat any legal character which it confers, accrued at the time when such
judgment, order or decree came into operation;
tht any legal character, to which it declares any such person to be
entitled, accrued to that pet-son at the time when such judgment, '[order or
decree] declares it to have accrued to that person;
that any legal character which it takes away from any such person
ceased at the time from which such judgment, '[order or decree] declared
that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was
the property of that person at the time from which such judgment, [order
or decree] declares that it had been or should be his property.

In Ceyloan paras 1 & 2 of the section have been numbered as sub-sees. (I) & (2) respectively
and the remaining four par:isbavbccn designated (a), (b), (c) and (ci) respectively.
1. Inserted by s. 3 of the Indian Evidence Act, (Am) Act 18 of 1872.
 R /c 111011 OJ CesiaiJj jlu/i'cnc cuts In J lJ'0[1', etc., ,ic 1 i.vdc '1ii/ See. 41 527

SYNOPSIS

Page Page
Pu riciple and Scope [Judgments Admi 'ally Jo risd iction $32
in refit] 827
Insolvency JLI ri silictiori 832
Final Judgment &c.' 828
Lunacy Proceedings 833
"Competent Court $28
Other Cases \Vlnerc Judgment
Legal Character- 829 as to Status of Person is
When is a Judgment Relevant 833
Cone] Li Si Ve S 2') Jud g ment in rein Whether
Probate Jurisdiction 829 Good u Si ye in Criminal
as well as in Civil
Effect of Probate arid Letters
Proceedings 833
of Administration 829
I ud glue at oil Questions of
Secondary Evidence of Probate $31
Legitimacy. Adoption and
Guardianship Proceeding 831 the Like 833
ts tat ri mon at Jurisdiction 831 Judgment of Rent Controller $34

COMMENTARY
Principle and Scope. [Judgments in rem ] .— Ordinarily audgn ient binds only
the patties to it. It is known as a jttdgment in Juerso/lam. The judgments for which
provision is made in this section are usually called judgments in rem, a phrase
which denotes certain judemcnts which are conclusive not only against the parties
ho them but also against all the world A jud g ment in rem is not defined in the Act.
It is defined by Bower as one "which declares, defines or otherwise determines the
status of a person, or of a thing, that is 10 say, the jural relation of the person or
thing, to the world generally" (Spencer Bower on Res Judicara, 1st Ed p 132). In
cases before the passing Of the Evidence Act there was a tendency to regard
decisions by competent courts on legitimacy, adoption and like matters as judg-
nierits in i'ent binding on strailgers. The subject was ably discussed by FIOLI..OWAY
J. in Yarakalamma i'. Aitalsala, 2 Mad I-ICR 276, where the history of judgment in
rem is fully discussed. He summed up thus:—"The result seems to be that the rule
which makes a judgment coticlusive only against the parties and those who claim
under them is subject to certain exceptions which are the offspring of positive law,
and the reasons for the exception may be generally stated to he both in English and
Roman law that the nature of the proceedings, by which there is -,I fictitious,
though generally not unjust extension of parties, renders it proper to use the judg-
ment against those no formally parties." This case was followed in ikanli va/al v.
Rod/ta C/turn, 7 WR 338: BLR Sup Vol 662 PB and the other leading cases are
Jogendra v. Fanindra, 14 MIA 367: 11 BLR 244; Amedb/ioy v. Vu/fe/i/wy. 6 B 703;
Karanra Nac/tiar v. Raja of S/tieagunga, 9 MIA 539.
This section is based upon the judgment of PEACOCK CJ, in Kanlnya!ol v i/ad/ia
C/turn, sup. ''For the sake of simplicit y , and in order to avoid the difficulty of'
defining or enumerating judgments in rem we have adopted the statement of law
by SIR BARNES PEACOCK in Kaitltvafal v. 1/ad/ta Churn, 7 WR 338." [Sec the
Report of the Select Committee in the Gazette of India, 1st July 1871, Part V p
27_3j. Only the tout' classes of judgments mentioned in this section, u'iz the final
judgments of Courts of Probate, Matrimony, Admiralty and Insolvency are conclu-
sive against the world as judgment in rem- The principle of the conclusiveness of
judgment in rent as rceards persons is, that public policy for the peace of society
requires that matters of social status should not be left in continual doubt (Tay
S 1676).
 828
S280Sec. 41 Chap. Ii- 'the , PcI '(Inc ()tLclCi.V

A jurlime.nt in rein has been dcflned to be "an adjudication l I r(iIiOtl)ccd, as its

name indeed denotes, upon the status ol sonic Particular subject-matter, by a tribunal
having coilipeteilt authorily for that purpose." In general, titcielote, a judenient in
leni furnishes conclusive proof of the facts adjudicated, as well against .c!raI1eis as
a g ainst panics; but this rule does not extend either to criminal convictions which are
Subject to the same rules of evidence as ordinary jud gments infer panes. Inquisitions
in lunac y, inquisitions post 17701-1 0M, or other inquisitions, which though regarded as
judmcnts in rein, so far as to he admissible in evidence of the ficts determined
against all mankind, are considered as not exclusive, evidence [Thy s 16741. Thouvh,
for the reasons just given, the above definition of a judgment in rein can,iot be
considered perfect, yet it WOL1]d he extremely difticult, if not impossible, to enunciate
any other, which would be open to fewer objections (Thy s 1675). See the list of
judgments in rem given in Taylor 1101 Ed Pp 1138-39. Commentary referred to in
Sri ram i: Probhudayal, A 1972 Raj 1St), 184.
Although an order adjudicating a person as insolvent is a judgment in rent, it is
conclusive only as regards the statuts but not as regards the grounds on which the
order is based. Hence the finding on which it is based is not binding on third parties
in subsequent proceedings I Radha Kis/tait u Gangabai, A 1928 S 121 (Ballanivite &
Co i Mackinnon, 65 LJQI3 616 relied on); Sahasrabudhe i Kilachand, A 1947 N
161; In re Advocate, 54 M 601; Sukumci D/iibar v. Sint. Anjahi Dosi, (1983) 2 DMC
260 : 1983 Cri U 36, 38 (Calcutta)I. Though it he necessary as a step to making a
declaration, which will operate in rem to find a fact, that finding will not hind third
parties in subsequent proceedings [In re Venkataramanayva, A 1931 M 441: 54 M
601 SB (Kan/iva v.Rod/ia, 7 WR 338, 343 folld)]. A judgment in a suit under s 92 C
P Code binds
inds". the entire world [Surajgir 'i.. Bra/into, A 1946 A 148, 149: Hassan-
intl/oh v. R M 7'Rd, A 1948 M 134; see however Anjwnon r Litafat, A 1950 A 109].
Previous judgments based on razinamah cannot he said to be a jud g ment in rent and
could he no bar to a subsequent suit. None of ss 41, 42 or 43 would he applicable. S
41 is exhaustive and embodies the law relating tojudgments in rem in India [Ra/miat
o Balm Zahra, 14 PR 1912: 14 IC 486]. A right to recover a debt (in insolvency) or a
chose in action be deemed to he a 'specific thing' [In i -c Venkatarainannyya, 54 M
601 SB]. A decision rendered in proceeding arising out of a creditor's suit cannot he
brought under s 41 [Gopalkrislma V. Subborava A 1972 NI 269]. Where the foreign
judgment of divorce by mutual consent was pronounced by a court of competent
jurisdiction and the grounds of divorce were not. ppmcd to public policy in India
presumption of conclusiveness is available to the parties. [Raj Andre Sales tie
Andrade o State of Goa, 1996 AIHC 99 (Born)].
"Final Judgment etc."—'Final' means the judgment, order or decree of such a
court by which thegrant is actually issued. An order merely stating that letters of
administration are granted on condition that applicant executes the usual bond is not
final Harilal v Sarat, 43 CWN 824; Satya o Hrishikesh, A 1959 C 795].
"Competent Court." ie, it court having jurisdiction over the parties and subject-
matter [Satya o Teja, A 1975 SC 105]. It is only under sections 41 and 42 when the
judgment is relevant that even a third party can show that the same was delivered by
a Court not competent to deliver it or that it was obtained by a fiud or collusion.
[Nachhittar Singh o Snit. Jagir Kaur, A 1986 Punj & Har 197, 199 : (1985) 288 Punj
LR 593]. Court in s 41 is not restricted to a court of this country, but includes a
foreign courL provided it is competent to pronounce a judgment such as is contem-
plated by the Section [Messa v M, A 1938 B 394: 1938 Born 529; Chanmalappa v.
Abdul WaIted, 35 B 139, 145; stva,icahan v. Abdul Wajid, A 1963 SC I; Satya v.
Teja, sup]. A judgment of the British Indian Association not filed in the court of the
ReIL'!'a!u.v of cc'rtoi! /udgeincuts in plo/laO', 't(. j nrisiIu 110!!. Sec. 41 829

1 : im1ti ci i l Collinlissiolicl . within six months of the passiniz Of the Omili Estates Act
cannot he treated as a decision of ii COnIpCtCflt court and is not relevant under ss 40-
43 [Md Asa! n Sailiq, A 194 3 0 91].
"Legal Character".--Mea nS something equivalent to status, The legal character
assigned 10 a person announCeS to all the world what the lcgal status of the person in
question is. The term must be narrowly construed, for it must be remembered that an
action ill is not all against a thing but an action availing aizainst all the
world tin in t/'nkaiaranianavva, 54 M 601 SB; Srirani v. P,a/,Iiudaval, A 1972 Raj
1801. A declaration of a legal right is a different thin g from a declaration of a legal
character. The word 'character" means status; it is some thing more than a mere.
right. The declaration of a person's right operates as against a particular person or a
group of persons against whom the right is claimed, whereas a man's status is some
thing which defines his position not in relation to any particular person or group of
persons but in relation to the rest of the world. To Say that a person is not a partner of
a firm is not to declare his status or legal character, it is merely to declare his position
with respect to the particular firm [Punjab N Bank v. Balikrain, A 1940 C 225: 190
IC 537 J. The status of' a person means his "personal legal condition" to the exclusion
of his ''proprietory relation'. An adjudication of adoption will in law amount to a
declaration of status; but the claim to succession is not a matter of status in this sense
[Digganinia a Ganesha y va, A 1965 Mys 97].
When is a Judgment Conclusive.—A jud g ment in i'eiii is not conclusive if it
relates to a matter which need not have been controverted or which was not material
or which came collaterally into question or which was only incidentally cognizable.
The principle is that in order to he a judgment in rem binding oil world, there
must he a finding on status which is not only the foundation of the judgment but
necessary for it [Mes.ca a M, sup; discussed in Re Antonius Raab, A 1950 B loll.
Probate Jurisdiction.—The courts exercise testamentary and intestate jurisdiction
under the Succession Act (39 of 1925 Part IX).
Effect of Probate and Letters of Administration.—The probate granted by a
competent court is conclusive of the validity and contents of such will and the
call
appointment of executor, until it is revoked, and no evidence admitted to
impeach it, except in proceedings in the Probate Division, for its revocation [A/Ic!! a
Dundas, 1789, 3 TR 125; Daropti v. Sand, A 1929 L 483; Babulal v. Z-Iaribaksh, 13
PR 1918; Venkataratnwn v. Ram Mohana, 31 MU 277; K/shore Bai s: Rcmclthodia,
38 B 427; Iiarmusjee a Bai Blianbaijee, 12 B 164; Hcmciizgini v. Sara!, 34 CLJ 457;
Rallabundv a Yanamandra, 79 IC 44: A 1924 M 578]. A judgment in probate
proceedings regarding the genuineness of a will or its due execution and attestation is
a judgment ill IeJi! [Saroda a Govind, 12 CU 91, 97: 6 IC 912: Ramani v. Kuniud, 7
IC 126; P/ienki a Manki, A 1930 P 618; Sounder v. Gian, A 1957 SC 875; Schultz a
5, 1853, 10 Guttan 3581. Letters of administration granted on the basis of will by
High Court of Birmingham conclusively proved execution of the will and could not
he reopened in civil court [Darshan a Kuldip, A 1979 P&H 250]. The grant of a
probate operates as a judgment in rem and would be binding on all persons including
one whose intervention by filing a caveat was refused on the ground of want of locus
staitth. Ile can, however, maintain an appeal from the order [Ma/wi v. D/ianapati, A
1964 C 41; Nabin a Nibaran, A 1932 C 734]. The title conferred on the executor by
the will and the probate which is relevant evidence under s 41 is given effect to by s
228 Succession Act [Blackwood & Sons Li!, a Parasuraman, A 1959 M 410].
The judgment in a proceeding under the Guardian and Wards Act oil question
of the genuineness of a will is not resjudicara in an investigation in the probate court
 30 Sec. 41 Chap. 11-00 he Releaircy of
l(/(1
as to the JicIunr at the will propounded in the court
lCithiira.vami v. IIari/,a,i/,/radia
6 M 380]. So a decision as to the proof of a will given b y a civil court can in no
circo instances operate as res juc/wala in proccediucs tacri n probate
the \Vl I I lleibcuroo o Pootamaj, A ] 955 13 4471. court rcgardin

A finding not essential to the judgment in a probate action dOCS not operate as a
Findin g in rein; but all that is essential to the decision that the executor
was entitled to
the probate must be taken to have been conclusively determined and therefore
probate is the conclusive proof of the due execution of the will
Bishes/rrrar, 5 P 77: A 1927 P 61]. A decree of the court of probateIC/randies/rwar
grantingrobate
p
i•:
and declaring the domicile of the tcstator, is not, as judgment
in rein, conclusive as to
domicile, unless the declaration was essential to the grant [Concha v C, LR 11 App
Cas 541 ] . The grant of probate is the decree of a court which no other court can set
aside except for fraud or want of jurisdiction [Kainallochun v. Ni/ration, 4 C 360; sec
also In re Ni/many, 6 C 429 and May/io o. Williams, 2 NWP 268].
"Probate of a will," it was said in the House of Lords, is also conclusive evidence
that it was executed in due form according to the law of the country where the
testator was domiciled at the time of his death I P//ticker v. Home, 1858, 7 HLC 124].
The grant of a probate by a foreign court and its subsequent revocation by that court
is not a judgment in rem and a court in India can still hold that the will left is true
[Fatmakanj v. Slik Dawood, A 1936 M 1971.
Where a question of relationship of parties has been decided in a previous probate
proceeding, a subsequent suit between the same parties involving the same question
is barred 1Dw/ai,ada v. Kalipada, A 1927 C 421: 31 CWN 898; affirmed in
Kalipada v. Drvijapada, 57 IA 24: 34 CWN 201: A 1930 PC 22;
S/rio Narai,t v. Msz
Raji, A 1982 Raj 119, 123]. Art order granting letters of administration to a person is
conclusive proof of the representative title of the grantee against all debtors of the de-
ceased arid all persons holding property which belonged to the deceased [Jagannath
v. Ilanjit, 25 C 3541. But it does not operate so as to preclude the starting of criminal
proceedings on a matter appearing in the case but which was not in issue in the
proceedings relating to letters of administration [Mali Mitt/rn o R, 4 R 251: 97 IC
1054].
In an application for probate the only question for determination is whether the
will is genuine or not and it is not the province of the court to determine any question
Of title, with reference to the property covered by the will [4runmovee v Mnhendra,
20 C 888 see also Rehor ' '. JCgc:;;c/iuo, 4 C 1; Oc/rwaram, v. Dolatrwn,
Born LR 966; Birajnath v. c/iunder, 19 A 458]. From a refusal to grant28 B 664; 6
probate, it
does not follow that the will was found not to be genuine. A finding that, on the
evidence on the record, the due execution of a will had not been proved, should not
be treated as a final decision upon the genuineness or otherwise of the will and will
not preclude a fresh application on the part of the executors, when they are in a
P o sition to support it with more complete proof [Gumresh v. Ram c/i, 21 B 5631. The
court refused probate to executors on the ground that the testator was not of a sound
disposing mind. The testator's widow then filed a regular suit against the executors
de son tort for recovery of possession and the will was again set up in defence—Held
that s 41 was not applicable to the judgment of the probate crrt, and that the
judgment operated as resjudicata [Kalyan v. Sitabai, 38 B 309 FB: 23 IC 325].
This section applies to probates granted prior to the passing to the Hindu Wills Act
as well as to those granted after it [Girish v. Broughton, 14 C 861]. The Recorder's
court has the same powers in respect to the grant of probates to the estates as the
High Court, before and after the passing of the Indian Succession Act. It cannot grant
 RC1L'lU,ICV of cetini, / i idgenn.'iits i/I /)W/)(IIC', etc., jiiiixdtc1iii. Sec. 41 3I

administration In the estate of a Hindu, Mahomedan or Buddhist Which a3uld

Interfere with their laws of , irilìcriancc and succession [In ic Fackeroocleen I
4 131.
Letters of adnunistralion, with a copy of the will annexed, may he cquivnt to
probate, but neither is of itself sufficient to prove a will, the genuineness of w:-ich is
contested [Teen Coniec e Iluree/zur, S WR 3081. Judgment of the probate c:urt is
inadmissible in evidence in a proceeding under s 193 11) Code for perjury conilutted
in the testamentary suit. I Oates v. R, 38 Cli 163]. On the Clucstion of truth, vdidit.y,
n
geuineness and due execution of a will, the decision of the probate cow, is a
judgment in rem. The decision of the ordinary, civil court, dealing with the same
issue, would not constitute judgment iii rem. [Alagammai i Rakkwnnial, A 1992
Mad 136, 138].

Secondary Evidence of Probate.—Parol evidence and even evidence of cenduct

is admissible to prove grant of probate when the document is lost, destro y ed or
cannot he produced [Satya v. Ilirishikesh, A 1959 C 795: 63 CWN 615].

Guardianship Proceeding.—Order passed in guardianship proceedings is not

judgment in rein. It may be admissible only to prove that an order had in fact been
made, but not to prove its contents [Muktipada v. Ake/ma, A 1950 C 533]. Decision
under Guardian and Wards Act as to age is not a .1 udginent in rem [I-/usaina v. Sahib,
7 IC 506 ] . An order appointing a guardian under the Guardian and Wards Act does
not come under ss 40, 41 and 42 [Venkate, ': Akkappa, A 1941 M 569]. \Vl:cn the
father was not a party to the guardianship proceedings, the orders passed in those
proceedings are inadmisible under s 41 [5lniiicka e. Ammo Kamm, A 1942 M 1291.
Matrimonial Jurisdiction.—The civil courts, other than the High Court exercise
matrimonial jurisdiction under the provisions of the following acls:—viz (a) Indian
Divorce Act (4 of 1869) relating to the divorce of persons professing the Christian
religion; (h) Indian Christian Marriage Act (15 of 1872); (c) Parsi Marriage and
Divorce Act (3 of 1936); ((1) Convert's Mar.riagc Dissolution Act (21 of 1866); (e)
Dissoluiion of Muslim Marriage Act (S of 1939); ) Special Marriage Act (43 of
1954); Hindu Marriage Act (25 of 1955). As to the matrimonial jurisdiction of the
High Courts, see Letters Patent, 1865 Cl 35.
A valid marriage causes the relationship of husband and wife to exist, not only as
between the parties to it, but also as respects all the world; a valid dissolution of a
marriage, whether it he by the act of the husband, as in the case of repudiation by a
Mahomedan husband, or by the act of a court competent to dissolve it, cause, that
relationship to cease as regards the whole world ]Kanhya p. l?adha, 7 WR 338]. A
judgment of a court given in the exercise of matrimonial jurisdiction (under the
Hindu Marriage Act, 1955) falls under s 41 and would he conclusive against the
whole world [Siddainh n Pencholanuna, A 1963 AP 158; Suhas v Manmohan, A
1971 B 183]. In divorce proceedings a findin g against the petitioner or respondent in
a previous suit, may be given in evidence, though between different parties [Thick v.
Ruck, 1896 p 152 : 65 UP 87]. Sentences concerning marriage and divorce when
pronounced in the country where the parties are bonajide domiciled, will be regar-
ded in the courts of England as conclusive facts adjudicated, otherwise the rihtsC, of -
mankind would be very precarious [Roach i: Graven, 1748, 1 Ves Seri 159. Sec also
Sinclair v. Sinclair, 1798, 1 Hagg Cons 297; Shaw v. Gould, 1868, 37 LJ Ch 433
(HL)].

A decree for dissolution or for nullity of marriage by a competent court being a

judgment affecting status is a judgment in rem [see Salvesen v. Administrator &c,
 $32 Sc4 1 Chap. it-MIt/ic Role l'ancy ofFacts
1927 AC '1 137 LT 571; 1 lals Siinond's Ed Vol 7 p 117; lniiia o Shivap/)(t
Anadi, A 198 -1 Kant 241, 244 1 1 .R (1987) Kant 1955J, Decree
dissolving n riage under Madras Act, 6 of 1949 is a judgment in rem [Suiiw,c/o it
ii/haruo, . 1957 AP 4241. Thejudgment in matrimonial case for restitution of
conjugal rlpts, though not a judgment in rem, is bindin g the parties in personam and
admissible •ilhout further proof. [Sangatewa v. Sliankarappa, A 1992 Kant 211,
215]. A dcc:ce by a High Court confirming a decree of nullity of marriage is a final
decree and i is under s 41 conclusive proof that the woman's previous marriage was
a nullity [Cto,i e Castoit, 22 A 270. A decree of divorce obtained by the husband
in a foreign zourt by fraud or by making a false representation as to a jurisdictional
fact will not be valid and bindin g on a proceedings for maintenance under s 48$ (now
s 125) Cr PC [Sat'a v. Thja, A 1975 SC 105J. As to judgment without jurisdiction,
see Abdul Ksdar v. Doolan Bihi, 37 B 563 post.
A judgment in a suit for restitution of conjugal rights is not a judgment in rem [Ma
P0 Ma Shin, 11 R 1981. The findings of a judgment in a suit for restitution of
conjugal rights are relevant in subsequent suit for dissolution of marriage though they
do not operate as res judicata [Santhwnmal it Thangaraj, A 1975 Kilt 23]. A
judgment in suit under s 42, Specific Relief Act (s 34 Act 47 of 1963) that the
plaintiff was no longer the wife of the defendant is not a judgment in rem [Kitambata
v. K, 36 BornLR 1021].
Admiralty Jurisdiction.—As to the admiralty jurisdiction of the Hi g h Courts, see
Cl 32 of the Letters Patent of 1865 for the Calcutta High Court, and the corres-
ponding clauses of the other Letters Patent for the other High Courts. As to the
admiralty jurisdiction of the molussil courts see 12 & 13, Viet Cap s 88. It is with
reference to vessels condemned as prizes more especially that questions concerned
with admiralty jurisdiction arise, such a sentence of condemnation by a competent
court being usually conclusive upon all the world [Field 6th Ed, p 181].
The sentence of a foreign court of admiralty condemning a ship as enemy
property, is conclusive evidence in favour of the tinder-writers against the warrant of
neutrality [Geyer it Aquilar, 1898, 7 TR 681]. The decision of the Admiralty court
restoring the certificate of an officer of a ship which had been suspended, is a
judgment fl re/it in so far as the status and certificate of that officer is concerned
[Yoosafi S S F/bra, A 1939 S 349 : 1940 Kai, 53].
As to admiralty jurisdiction, see In re: "Falls of Etirick" 22 C 511.
Insolvency Jurisdiction.—The High Courts exercise insolvency jurisdiction
under their respective Charters. For the Calcutta Hi g h Court, see clause 18 of the
Letters Patent of 1865 and for the other High Courts, the corresponding clauses of
their respective Letters Patent. Other courts exercise the jurisdiction tinder the
Presidency Towns Insolvency Act, 3 of 1909 and the Provincial Insolvency Act, 5 of
1920.
An order adjudicating a person insolvent is a judgment in rein and is conclusive as
regards the status only [Rad/takis/tait v. Gangabai, A 1928 S 121; SahasraLiuu//te it
Kilachand, A 1947 S 161] and is a judgment in rent only in respect of matters arising
before insolvency court [Ainar Kaur v. Shiv Karan, A 1965 Pu 2061.
A stranger to a bankruptcy proceeding whose property is seized by the receiver
in
bankruptcy may apply under s 6$ of P I Act 1920 for return of the properly. The
adjudication bars a subsequent Suit in civil court as it amounts to conclusive proof
within s 11 [Pitaram v Jaj/iar, 33 IC 798; sec also Bhairo v. P C Doss, 17 ALI 787;
hcItad v. Gopinath, 41 A 378; A'lusuin,nat i. Mathura, 40 IC 102; Nuira''a,r v. Harci-
Re/c'canc' of certain iud8euu'nts in probate, ('I ., j1iiL'dUiiOfl. Sec. 41 833

tlatta. 16 NLR 201; Bajirao Bonn/al, A 1963 13 212]. Even where an insolvency
court tails to make any declaration under the last paragraph of s 41, the cstoppcl
against an opposing creditor arises, as the estoppel is not limited to the provisions o
s 41 [Rail/rn Kish an m'. Gangabai, sup; Rain Naraiim o Durgu Dat, 13 IC 56S ] . An
order of an insolvency court refusing to ad judicate.a person insolvent oil ground
that hc was not a partner ill firm adjudicated insolvent, is not a judgment in rein
within s 41. As to whether judgment of inso]vcncy court refusing to adjudicatc a
person bankrupt is a judgment in rein, see OjJl Ass, Madras 'e Offi Ass, Rangoon, 46
MLJ 580 : A 1924 M 662 : 83 IC 174 (relied on in Veiikatara,nanavya i. Paimimilu, A
1931 M 441 SB: Punjab N Batik i: Balikrain, A 1940 C 225). A final order of an
insolvenc y court may have the effect of a judgment in rem though not inter panes
[see Bansi o Anandi, A 1935 P273].
Lunacy Proceedings.—Altliough an order in lunacy is not a judgment which is
conclusive tinder s 41, it is still binding upon the parties thereto and those who claim
under them [Subba Naickar o Solaippa. 56 M 904.
Other Cases Where Judgment as to Status of Persons is Relevant.—This
section does not expressly mention Courts-martial, but Courts-martial other than
Courts-martial convened under the Arm y Act are included in the operation of the
Act. (See s 1 ante).
Order made upon a contributory under the Indian Companies Act is conclusive
evidence that the monies ordered to he paid are due and all other perunent matters
stated in such order are to be taken to he trul y stated as against all persons and in all
proceedings whatsoever [Cunn p 116].
A foreign judgment declaring a person to be adopted son of a Hindu widow is
binding on the courts ill in a suit relating to the widow's properly. Such a
declaration by a forei g n court affecting status is regarded as analogous to a judgment
in rem [Natarcija v Subbtmrava, 1939 Mad 507 : A 1939 M 693].
Judgment in rem Whether Conclusive in Criminal as well as in Civil
Proceedings.—A judgment in rem will under this section he conclusive in a criminal
as well as in a civil proceeding. But whether a judgment in rem is conclusive in a
criminal proceeding, is a matter of some doubt under the English law. [See Tay s
1680].
Judgment on Questions of Legitimacy, Adoption and the Like.—The notion
thatjudgments on questions of legitimacy, adoption and the like were judgments in
rem was done away with in Yarakalantma v. Anakala (ante: "Principle and Scope").
The section enumerates four classes Of judgments, which alone are to be conclusive.
The jud g ment on the status of adoption is not a judgment in rem [Arjun 's'.
Mat/twa, A 192$ A 395]. In the Full Bench case of Kan/iya La! v. Rail/ia C/writ,
ante, PEACOCK, CJ, observed as follows:—
"It is clear that there are no judgments in rem in the mofussil courts and that
as a general rule, decrees in those courts are not admissible against strangers
either as conclusive, or even as prima facie evidence. If a judgment in a suit
between A and B, that certain property for which the suit was brought belonged
to A as the adopted Son of C, were a judgment in rem and conclusive against
strangers as to the fact and the validity of the adoption, the greatest injustice
might he caused."
This statement of law in Kcin/iya 's case, sup, was relied on in Appo r Woman, A
1941 PC 85: 1942 Boni 75 : 69 IA 64: 74 CLJ 471. The legal characters mentioned
 834 Sec. 42 Chap. 11 (f 111e flelctancv of l-'art.v

in s 41 do 1101 include the state of being it partner lRadhakiNhall c Gall,obai, A 1926

S 1211.
Judgment of Rent Con1roller.-Fix ing standard tent for a particular tenancy is
1101 a jtIditlle!i1 in let?)
5cor! c RL'S)JCI1CC Lid, A 19 5 0 C. 606.

S. 42. Relevanc y and effect of ,judgments orders or decrees, other

than those mentioned in Section 41 .—Judgtnents, orders or deci-ecs other
than those mentioned in section 41 are relevant if they nlate to matters of
it public nature relevant to the enquiry; but such judgments, orders of -
decrees are not conclusive proof of that which they state.

Iffiest ration
A sues B for trespass on his land. B alleges the existence of a public right of way over the land,
Which A deities.
-ftc existence of a decree in favour of the defendant, in a suit by A against C for a trespass on
same land, in which C alleged the existence of the same ri g ht of way, is relevant, but it is not
conclusive proof that the right of way exists.

SYNOPSIS
Page Page
Principle and Scope 834 Judgments Relating to the
Relevancy of Juclginerins Existence of Custom ... 836
Relating to Matteis of Status &c ... 837

it Public Nature 835 Jud-inent% Not Relevant . - 837
Inquest Report ... 837

COMMENTARY
Principle and Scope.—liis section follows the English law on the matter and
is another exception to the general rule that persos not panics or privies to a
judgment shall not be affected or prejudiced thereby.) In matters of public nature,
eg, customs, preseriplions, trusts, etc, previous ju&ments whether between the
same parties or other parties are admissible as evidence of reputation oil of
general interest ...........
or public rights.. On...................
....... account
. of their public nature an exception is
. "Inc
IAL,.tuc. "J 5L.11LJ(l% LUll,. LlLLL.il L. ,\l,,JLli.L .)
tilL. Li
/14LI / LLI1119P)[LJLL4 £_' LLJl I,
44 ILI .4 l.JLII

Suniok, 20 B 53; Mad/tub v. Toinee, 7 WR 210]. But such .rlgz11ents are not
conclusive proof of that which they state. They are1evant not as res judicata, but
as evidence [Gujjulal v. Furteh La/I, 6 C 17. 1, 191 J .i ,The matter must be of it
nature; thus in it between A and 13 the questiozf'heing whether A had a private
right of common over certain land, a decision in a Previous si,jjt between Strangers,
as to such right, is not admissible as evidence of reputationj[ Wi//joins v. Morgan,
15 QB 782]. /
The law has been stated thus in Taylor:—The exception [10 the rule that judgments
i/tier partes, Sre not admissible either for or against strangers in proof of tile facts
adjudicated] is allowed in favourof verdicts, judgments and other adjudications upon
subjects of a public nature, such as customs, prescriptions, tolls, boundaries between
parishes, counties, or manors, rights of ferry, liabilities to repair roads, or sea-walls,
moduscs, and the like. In all cases of this nature, as evidence of reputation will he
admissible, adjudications— which for this purpose are regarded as a species of
 /?elciancv and c/leet oJjudgei,iciils, oi'th'rs or deeiees Sec. 42 835
reputations -will also be received, and this too, whether tilL' Ixuties in the Second suit
be those who litivated the first or he utter Strangcrs. The effect, however, of the
adjudication, when admitted, will SO far var y , tim!, if (lie parties he the same in both
suits, they will he hound by the previous judgment; but if the litigants in the second
suit he strangers to the parties in the first , the judgment, thouch admissible, will not
he conclusive [Tay S 1686!.

This section like s 32(4) and s 48, lays down an exceptional rile for cases ill
which
lastmatters of public nature are in question. A judgment, not coming within
the section, may be relevant as such against persons who were not parties 10
the proceedings in which it was given, when it relates to matters of a public
nature. The term 'public" is strictly applied to that which concerns every
member of the State; the term "genera/'' being confined to a lesser though still a
considerable portion of the community [see notes under s 32(4)]. The right of
way in the illustration to the section is claimed by the public at large. The right
to use the well mentioned in the illustration to s 48 is claimed for a particular
village and is therefore a general right. The distinction between "public" and
"general" is not preserved in s 32(4) or in s 48. Under this section, though it
refers to matters of a public nature on/i, it is apprehended that judgmen
t is
relevant when it relates to a right or custom which concerns a section of the
community and not the public at large. This section is in accordance with the
law as stated in Taylor [Cu an pp 116-17 J.

As to the admissibility of judgment, and report under s 133 of the Cr P Code, see
Suijamani c S/ik Pandab, 15 CU 36n. It is onlyder
un sections 41 and 42 when (lie
judgment is relevant that even a third party can show that the same was delivered by
it court not competent to deliver it or that it was obtained by a fraud or collusion.
[Nach/urtar Sing/i v. Sint Jagir Kaur, A 1986 Punj & Har 197, ] 99 : ( 1 985) 2 Punj
LR 593]. When Privy Council of an erstwhile State of Jarnkhandi held in an earlier
proceeding that Shivalingayya was duly nominated and installed as Padayya, a
contrary conclusion arrived at in the subsequent proceeding by High Court cannot he
confirmed. Even though the judgment of the Privy Council did not bind the plaintilT
on the principle of res judicata, it was definitely a relevant circumstance to be taken
note of because of what has been stated in section 42 [V S/iankarayya r N.S.
Pattudadevan, A 1995 SC 2187, 21891.
Relevancy of Judgments Relating to matters of a Public Nature Judgments
relating to matters of a public nature are elcvant under this Seeion, ' not as n's
judicata, but as evidence, whether between the same parties or no,1
Gujjur La/I n
flute/i Loll, 6 C 171, 174, 191 FB; Col/r of Gorak/ipore t. Pa/akdfzan, 12 A I
FE;
Thtarain v Mohan, 2 Agra 120; Bai Baiji c Bi Sanrok, 20 B 53; see 15 CLJ 36n].
Except in matters of general interest or public ri g hts, a verdict in a previous suit to be
admissible, roust be between the same parties or parties through whom the parties
actually in ]iLigation claim [Doorga Dos i' Nareiu/ra, 6 WR 232; see also i'1adhub v.
.Io,nee, 7 \VR 210].
In a suit brought by the trustees of a temple to recover from the
the owners certain
lands in certain villages, money claimed under all alleged right as due to the temple,
judgments in other suits against other parties in which claims under the same right
had been decreed in favour of the trustees of the temple, are relevant as relating to
matters of a public nature [Rama Sami v Appaiii, 12 M
9 ! . Though nol inter part es
judgments as to whether there was a private trust are of abundant evidentiary value
[Sec) of S u Dads/ia, 44 M 778 A
1921 M 248 FE; Narayanaswa,ni v. Balasun-
dara,ri, A 1953 M 750].
 $36 Sec. 42 C/ nip. I/—( / i/H' Rcli'i'(i/i(v (([ i -is

decrec in a Former Suit was held adinissihie as a piece of evidence under s -12
Llirowinn ,(-'ht on the ownership of certain village ill dispute 1.S7uee. (i(ine\/n 1'.
1 5 13 625, 0351. Ali order passed durin g sen Icincnt operations in CXCICiSC
of powers s a Collector !'ec.ognizing the rights ul gie/w -s oF hrcc vii lanes to graze
their cattle in the disputed land relates to a matter of public nature within s -'
Sail/i, A 1962) FTP 281. Judgment relating 10 u-a/f propert y is releviintin a suit riot
between the same parties though not conclusive J,Visbahmlelin n ½dyasaçar, 36 MR
106 : A 1935 L 64]. In a suit for recovery of certain villa g es From the defendant, a
Former judgment in a suit ill which the COUSIn of a former nianager sued him
(defendant) for partition of certain villa g es, included in this suit, was held admissible
as being a decision upon a question of public right, which is, as reputation, adintissi-
ble in evidence, though not conclusive [Nal/athwnbi v. Nc/la Kuioara, 7 Mad
HCR 306].
Judginent.s Relating to the Existence of Custom.-- t Nhene a CUStOrn is in dispute,
judicial decisions recognising such customs are good cvidcnceof their, exitencc
[Slum/rn n Goyan, 16 A 279; see also Har Nat/i i: Manila!, 27 C 379, 391 ,(lierc
decisions regarding the existence of a disputed custom were held relevan as
evidence of the existence of the same custom amongst the Joins of other places.
These decisions are with regard to customs of Certain commLlnities and not with
regard to the public at large]. The proceedings before a settlement officer recording a
custom in accordance with which certain cesses were leviable were held to be
important evidence, though not of a conclusive nature [La/a n Hira Singh, 2 A 49;
see also Akbar Khan n Sitcom-wan, I A 373; S/ieobaran i: Blnairo, 7 A $80]. Proof of
a custom, whereby a zemindar is entitled to a fourth of the purchase-nroney
whenever a house is privately sold in the village [Kalian v. Bliagii-atlnu. 6 A 47].
Where a co-owner (if village lands seeks to establish his right to certain shares in
such lands, as one of such co-owners, the existence of jndgnicnt inter panes, in a suit
brought by another co-owner for periodical allotments of lands, was held to he
cogent evidence of the existence and validity of the custom [ Venkata c Su/,bo Row, 2
Mad HCR 1].
A judicial decision of comparatively recent date (or pronounced after the
controversy) is also admissible not because it is relevant under s 13 and s 42 as
forming in itself a 'transaction by which the custom was recognised &c", hut as
containing a number of specific instances relating to the relevant custom [see
Sith/iani n-: Nawab, A 1941 PC 21: 68 IA 1: 1941 Lah 154; Amarchand i: Sliankr;ri
A 1956 Paj Si].
In dealing with case of a family, decisions in previous litigations between niem-
ber.s of that family which raise the question of caste arc relevant. If the judgment is
evidence, the recitals in the judgment of the evidence of witnesses are also relevant
[Maharaja of K v. Sundaram, 48 M I : A 1925 M 4 9 7 1 . A judgment as to the trains-
ferahility of similar tenures in an adjoining village of the same pergannah is
admissible as evidence of usage under s 42 IDa/gus/i i: Guzuffer, 23 C 4271.
Decisions as to rates of rent in previous suits are admissible in evidence of local
usage, though the tenant in the particular case was no party to those Suits [/Las wara 1'.
Pwigan'amiac/nari, 13 M 361]. Decrees obtained by the landlord agajnst other tenants
of same /ergal-i/?ai,, were admitted in evidence, to prove the standard of measure-
ment, although the tenant against whom they were tendered in evidence was not a
party to those decrees [Jinutullah v. Ramani, IS C 233]. Judgements not jilter park's
regardin g in nature and incidents of certain kinds of tenures (Ghaiwali tenures in
B i rbhunn) were taken into consideration [Ni/mom e Tama Nat/i. 9 C 295 FC : 12 CI _R
361 :9]A 1741.
Judgments, etc oilier 1/ian i/lose llU'nhiOIICd II! ."('CIiOiJS 40 to 42 Sec. 43 837

PtCVmUS judgments between other parties are admissible to prove custom of pre-
cinpiloli [l/ai Bauji v. lJai ,Santok, 20 13 531. ['he [11051 satisfactory evidence of an
cn!'oreeincnt of a custom of pre-CIflptiOn, is final decree based on the custom
I
I (7nithiial u Jhanda, 10 A 585 and Lttchinaii u. A kb-u, I A 440]. Con 0 jet no
decisions of subordinate courts were held not to establish that the custom of the
right of pre-emption under the lahomedan law prevailed among the Hindus of
Chittagong [fader Narain o Md Nazirueddin, I WR 2341. As to admissibility of
judicial decisions in support of custom and of previous judgments in cases
involving custom, See (11th? s 13.
As to proof of custom or right, sec notes under ss 13, 32(4) and 48.
—Status, etc.—Whcn a question of status is in issue, judgments and orders
between parties in mutation cases, succession certificate cases, rent suits, suits fur
possession, &c are admissible [mutual o Mt Halki, A 1924 N 387 ] . Evidence of
criminal procccdino s and a razutrnnah come to between other parties was admitted in
support of a presumption to legal right to enjoy the water in dispute [Ramcshur v.
Koouuj Be/tori, 6 IA 38 : 4 C 633,1.
Judgments Not Relevant.-Dcfendants were convicted of murder of L by the
Faridkot Court. After their release plaintiffs sued them for compensation for
death of L. The judgment of Faridkot Court is inadmissible. The morbid interest
of a section of the public in the details of -,I murder trial cannot constitute such
trial 'a matter of public nature" within s 42 jRis/ten v. Ram Labhat 106 PR
1915]. Where the plaintiff sought a perpetual injunction restraining the
defendants from importing or selling any watches similar in appearance to the
watches he sold and with the same design, a copy of the judgment of' Swiss
Court against a third party was held inadmissible under the section Heiniger v.
Draz, 25 B 433 : 3 Born LR I]. A judgment deciding a questionof adoption is
not admissible between third persons as evidence of the truth of the matter
decided therein [Guru Malwdeo v. Jagairaj, 71 IC 929 A 1924 P 2981. The fact
that a judgment is relevant under s 42 would not render remarks made
incidentally about another property which was not then in dispute admissible.
The proper way to prove it is to produce the witness who stated this [Banwari t.
Sheochand, A 1923 L 384 85 IC 7951.
Observation in a judgment relating to a different matter though connected cannot
bind a third party and the judgment itself' cannot be evidence against him {Narasimha
I
,. Of/I Assignee, A 1930 M 7 511 . Although judgments not jitter panes may be used
as evidence in certain circumstances as a fact in issue or relevant fact (sec notes to s
13 ante) the recitals in a judgment cannot be used as evidence in a litigation between
the parties [Kasi u Jagat, 20 CWN 643 : 23 CLJ 5831.
Inquest Report.—IL is questionable how far an inquest report is admissible except
under s 145 Ev Act [Pandurang 'a S, A 1955 SC 216]. Mere recitals in the inquest
report cannot by itself be regarded as substantive evidence [Rag/taco 'a S, A 1965 K
44]. Coroner's Inquisition is not ajudgment, much less a judgment inter panes. Nor
does it relate to matters of public nature and is inadmissible in evidence [P o
L3/iagwandas, A 1946 B 184 : 47 Born LR 997].

S. 43. Judgments, etc other than those mentioned in sections 40 to

42, when relevant.—Judgrncnts, orders or dccecs, other than those
mentioned in sections 40, 4
and 42, are irrelevant, unless the existence of
 3$ Sec. 43 Chap. Il— of the Releiancv o[lic't.v
such jLtdginent, order or decree a fact in issue, or is relevant
k U tider Some
other p7visions of this [Act].

• IllItsIrat ions
(a) A and 13 separately sue C for a libel which reflects upon each of them.
iii at the matter al lc g ed to he libel lous is true, an(]the circumstances are such thatCitiniscacti case says
probably inic
in each case, or in neither.
A ohtjin a decree against C
for clanis on he grou id that C' failed to make iiii Ii is
jus(ificaoii The fact is irrelevant as between 13 and C
(b)A prosecutes 13 for adultery with C, A 'a wife.
13 denies that C is A '.v svifc, but the court convicts 13
for adultery.
Afterwards, C is prosecuted for bigamy in marrying /1 during
A 'a lifetime. C says that she never
Was 'y' wife.
T$e judgment against B is irrelevant as against C.
) .4 prosccutr B for stealing a cow froni him. B is convicted.
A afterwards sites C for tile cow, winch 13
and C, the judgment against ii is irrelevant. had sold to him before his conviction As between .4
(d) A has obtained a decree for the P
ossession of land agains t B. C, B's son, murders A in
consequence.
The existence of the judgment is relevant, as showing motive for it crime.
' [(e)A is char g ed with theft and with havin g
been previously convicted of theft. The previous
conviction is relevant as a fact in issue.
(J) A is tried for Ihe murder of B. The fact that B prosecuted A for libel and that
A was convicted
and sentenced is relevant under section 8 as showing the motive for the fact in issue]

SYNOPSIS
Page Page
l'rinciple and Scope [Relevancy Objects for Which Judgments
Of Ju dgements Not Men- are Admissible
tioned in ss 40-42] 842
838
"Or is Relevant Under Some Judgment of Criminal Court
When Relevant and Irrelevant
Other Provisions of in Civil Cases and vice versa
this Act" 845
841
Miscellaneous 847
COMMENTARY
Principle and Scope. [Relevancy of Judgments Not Mentioned in Ss 40-42].—
In the previous sections, iudgments the existence of which bars a second suit (s 40),
judements which are conclusive against all the world (S 41) and judgments relating to
matters of a public nature though between strangers (s 42) have been declared
relevant S 43 states the general rule that all other judgments tint inter panes are
irrelevant. There is an important
important qualification to this rule. A judgment may not be
admissible for proving the truth of the particular points which it decides, but it may
he admissible for other purposes, as for instance when its existence is a fact in issue,
or when it is relevant tinder the rules of relevancy contained in the other provisions of
the Act, eg ss 8, II, 13, 54 ExpI (2), &c, Thus where A
of a crime against 13, and afterwards sues B has been tried and acquitted
for malicious prosecution, the judgment

I. In Ceylon "Ordinance" substituted.

2. lllus (b) has been omitted in Ceylon and the other illustrations have been designated
3. 'these llIieSlraIioims were added by s. 5 off E Act (1872) Am Act 3, 1891. (b) to (e).
Judçininis, etc other f/jail i/jose ,nc,riioncd in sections •h) to 42 Sec. 43 839

is conclusive evidence of A's acquittal and is relevant For that purpose, but it is not
relevant as proof that A was innocent, or that 13 was prosecutor, or was actuated by
malice ]Legatr o Joileri'c , 14 East 3021. S 43 therefore declares that all judgments,
orders or decrees, other than those specified in the preceding Ilirec sections (40. 41
and 42), are themselves irrelevant, that is, not admissible in evidence, unless the
existence of 1/ic j udgment, omsier ui decree itself is a fact in issue or is relevant under
some Of/ic,' sections of this Act. [S P L, Madras i'. K V Sundarai'eiu, A 1978 SC
10171. This section (43) therefore, subject to the exceptions mentioned in the latter
Pal-t, excludes prior judgments, and so in effect declares that iii deciding a question
which has been decided in a Suit between other parties, the court shall not be guided
b y the judgment in the former suit of finding therein contained. Such prior judgment
is not admissible to prove the truth of the facts therein stated, eg any opinion as to the
nature of a person's liability, it may be relevant only to prove the existence, of the
judgment itself J Jakati v. l3orkar, A 1959 sc 282 : 1959 SCR 13841. Since section
43 is not included in section 44 collusive decree will still be relevant to support the
plea of estoppel if the ingredients of estoppel are made out. [lime Hasan v. Smut.
Ha.ciita Bib ;, A 1984 All 216, 219 1984 All CJ 14l (A 1927 All 494 and A 1971
All 439 Overruled)].
The object behind enacting section 43 appears to be two fold : (1) to treat every
ease a class by itself so that the judgment delivered in one case may not be availed of
by parties to another ease; and (2) to maintain the independence of courts by
preventing the parties from submitting before the court hearing their ease the
judgments of other courts. The exception to this rule are judgments which are
relevant under Article 141 or 227 of the Constitution as binding precedents or the
judgments which are relevant under sections 41 and 42 of the Evidence Act or which
are necessary to be taken into consideration when plea of' ,'es judicata is raised.
[Gopal n State of Rajasthan, 1997 CrLJ 2162, 2166 (Raj)]. Unless existence of
judgment is face in issue such judgment is irrelevant. [A Manusn'ami v. P.
Ser/taraman, A 1995 Mad 375, 379 ] . Finding of the court that decree in respect of
Some. portion of the property was vitiated by fraud would not operate as resjudicato
in a subsequent suit in respect of other portion of the property. But the earlier
judgment is admissible under section 13 as the transaction was same. [N. 5'ubhaka ran
v K. Rajamonv, 1996 AIHC 1024, 1026 (Ker)].
Judgment of a High Court in writ proceedings is binding and conclusive between
the parties unless reversed. As regards persons not parties it becomes a valuable
precedent ]Bhupendra c. 5', A 1960 Or 461. Judgment in counter case is not relevant.
[Deo iVaravan Rai v. State of Ri/ta,', 1988 Cri I.J NOC I : 1988 BBCJ (MC) 86
(Pat)]. Where the accused was charged for criminal misappropriation findings against
him in departmental proceedin g s would be irrelevant under s. 43 ]Jagdis/m Ch andra v.
State of Rajasthan, 199$ Cri LJ 1902 (Raj) 1.
There is no provision in the Act by which the actual decision or the findings
arrived at in a previous judgment call used as evidence to decide the points which
are in issue in a particular case. Such a decision may operate as res juthcata or he
relevant tinder ss 40-42 to prove assertion of a right, &c but otherwise it is no better
than a mere opinion expressed on the issues in a particular case and opinion is
relevant in those cases only in which it is specially referred to in the Act and in no
others [Purnima n Naitdlal, 12 PET 582; Raiitparek/ia i Rwnj/tari, A 1933 P 690;
l-/itendi-a n Ranmesn-ar, A 1925 1' 625], Statement of facts in a previous judgment is
not admissible under s 43 in it subsequent case to decide any points in iSSue
[K/iubna,'ajn '. Rain Ch, -A 1951 P 3401. Sec further port: ''Objects for which
Judgments are Admissible."
 $40 Sec. 43
(/10]) /1- 0/ the P i l'i'anct' 01,1.-(j(-f,:

Evidence of erdiet at an earlier trial is not admissible at a later trial arisine froiti
the sinire facts, unless there is sonic Cxccptional feature. It is not an abuse of process
to indict an accomplice for murder despite the principal's acquittal of murder and
conviction of mansJanhtcr. [I/in Ciu-Ming u I?, The Independent, Sept 1
9, 199 1 PC
(1991)3 All ER 897 PC].

The latter portion of this section, that is, thc words "wrle.rs tire c.visIcflce oJ such
Itidgineni, order or decree is a fact in issue, or is relevant under SOfliC iher section
oJ this Act" require sonic explanation. In GuJ/a La! n Patch Lail, 6 C
171 Ff3 GARTH i
CJ, has thins explained the section:—

'The cases contemplated by s 43 are those where a judgment is used not as

res jiedicata or as evidence more or less binding upon
an opponent by reason of
the adjudication which it contains. But the eases referred to in s 43 arc such, I
conceive, as the section itself illustrates, viz when the fact, of any particular
judgment having been given is a matter to he proved in the case. As for
instance, if A sued B for slander, in saying that he
(A) had been convicted of
forgery, and B justified it upon the ground that the alleged slander was true, the
conviction of A for forgery would be a fact to he proved by
B like any other fact
in the case, and quite irrespective of whether A had been actuall y guilty of the
forgery or not. Thus, 1 conceive, would be one of the many cases alluded to in 5
43.,,
Thus, for example, where it is proposed to discredit a witness or to contradict his
testimony by proving that he gave different testimony on a former trial, the judgment
in the former case will, notwithstanding that the parties to it were strangers to the
subsequent suit, be admissible for the purpose of laying the foundation for the
evidence of the trnicr statements [Clarges u Sherwin, 1699, 12 Mad
Shaw, 1821, 7 Scrg & R 163; What.von c Little, 1860, 343; Pa.vter o
29 LI Ex 267; see further s
145 Post]. Again in an action by A
against his servant for negligence in regard to C,
the judgment obtained by C against A is relevant for showing the amount of damages
recovered but it is not admissible in proof of the servant's negligence lGreen is New
River Co, 4 TR 590]. The cases contemplated by s 43 are such it itself illustrates,
viz
where the fact of any particular judgmctit having been given is a matter to he proved
in the case. A former judgment which is not a judgment in rem nor one relating to
matters of public nature is not admissible in a subsequent suit either as res judicata
or as Proof of the particular point which it decided unless between the parties or
those claiming UdCT tham [fIi!eniro v Roineswar, 87
IC 489 : A 1925 P 625].
If the object ac merely to prove the existence of the judgment, its date, or its legal
cons equences, the production of the record, or the proof of an examined copy, is
conclusive evidence of the facts against all the world. This rests on the ground that a
judgment is a public transaction of a solemn character, which must he presumed to
be faithfully recorded. Therefore, if a party indicted for any offence has been
acquitted, and sues the prosecutor for malicious prosecution, the record is conclusive
evidence for the plaintiff to establish the fact of acquittal, although the parties are
necessarily not the same in the action as in the indictment [Legait v. Tollervey,
18 11,
14 East 302]; but it is no evidence whatever, that the defendant was the prosecutor,
even though his name appear on the back of the bill, or of his malioa, or of want of
probable cause; and the defendant, notwithstanding the verdict, is still at liberty to
prove the plaintiff's guilt......The same doctrine will apply to oilier cases, where the
party has a remedy over, as for contribution, or the like [J a
y s 1667].
Where a judgment is not in rem, nor relevant to matters of public nature, nor
between the parties to a subsequent suit, the fact that the court by that judgment
Juc/çinents. etc of/icr fhall those ifl('uiliouiL'd U? sections 40 to .12 Sec. 43 841

(tecidesa point in a particular way, is not relevant under s 13 for the purpose Of the
decision on the same point in the subsequent suit I Slianka, r'. Gauie.vh, A 1930 N 1
FR]. It has been observed in a later Nagpur case that the reference to the Full Bench
it) Slionkor 's case was in terms wider than that was necessary for the purpose of the

decision in the case and pro tonfo it is obiter. A judgment is not admissible to prove
the truth of the fact which it states. But where the right of -,I part), has alread y been
concluded by a previous judgment, the fact can be proved by production of the
Judgment since in such a case the existence of the judgment itself is relevant [fliaroli
V. Jagauruiath, A 1939 N 72 : 1938 NU 466]. The finding in a pmy Council judg-
ment not iurrer panes that a village was a fixed place is not admissible [Midnapore Z
Co u Bijay, A 1941 C 1].
"Or is Relevant Under Some Other Provisions of this Act".—The words 'or is
relevant wider some other provisions of this Act," are clearly an exception to the first
part of this section, and they clearly show that there are other provisions in this Act,
under which judgments not inter partes are relevant; for instance, tinder ss 8, 11, 13
and 54 ExpI (2), judgments not inter panics are relevant. The cases quoted above and
il/us (d), (c) and () clearly show the meaning of the last words of this section. [See
the judgment of N,11'1 TER, J, in Gujin Loll v. Forte/i Loll, 6 C 171 FR and Loks/junan v:
Amrit, 24 13 591]. if the law as laid down in Gujin Loll v. Fate/i Loll he correct, then
the. latter portion of the section should he simply useless. The existence of a
judgment will sometimes he a relevant fact under some of the provisions of the Act
as to relevancy. lor instance, the fact that A has obtained a decree of ejectment
against B, may be the motive for B's murdering A or it ma y he. necessary, for the
purpose of prov in A's position, to show that lie suffered judenient to go by default
against him at a parlicular time: or the fact of A's having prosecuted 13 for slander
may explain the relations of the parties, and their state of mind oil a subsequent
occasion, or the judgment may itself he a fact in issue, as where A sLied B because
through B's fault A has been sued and cast in damages. In any such case., judgment
will he a relevant fact" [Cunn Intro p xxx].
It may he argued that if tire defendant in a suit by A puts forward a defence which
is negatived and in a subsequent suit by B on the same matter against the defendant
he takes an identical defence, lie may be met by the judgment in the suit against him
by A. The previous judgment is, however, not admissible arid the argument is met by
illus (a) of s 43 [Benode v Secv of .5, 34 CWN 11]3]. Illustration (d), (e) and (/) are
instances of judgments being relevant, otherwise than under the three preceding
sections. Judgments are admissible as a means of proving a transaction or instance in
which a given right is claimed, recognised or denied [see notes tinder s 1 3 ! . The
Income-tax and wealth-tax assessment orders are not admissible in evidence under
sections 40 to 42 but the y are definitely admissible in evidence as they contain admi-
ssions with regard to shares which the parties were having in the property in
question. [Clriranjilal v. Bhagoan Dos, A 1991 Delhi 325, 332].
A judgment not inter panes is admissible in evidence in certain circumstances and
in certain cases, if the existence of such judgment is a relevant fact or fact in - issue
[S/ia,ui Sunder o Pour Khelarcan, A 1929 P 739]. A judgment in a suit not inter
panes holding that a partition of a certain estate was proved is admissible tinder s 13
and s 43 as establishing a particular transaction, in which the partibility of the estate
was asserted and recognised. But the reason of the judgment on any finding is not
relevant [Gor'indi: Shainlal, 58 IA 125:58 C 1187: A 1931 PC 8 9] . Ajudgirient of
.
President of Municipal Council not inter pwtes is relevant under s 13 Or S 43 its
establishing transaction that permission to make new construction was accorded h
Council [[loarilal v. Alivar Nagar Ponisliad, A 1976 Raj 91]. Under s 43 read with
 42 Sec. 43 Chap. if ---Of the Re/crane 1' of IieLv

ss II and 13 judgricnts not liner paitc can he ri g htly adnirtied ill evidence arid used
or certain limited purposes and takcn into consideration alone with other evidence in
the ease. But they do riot operate as nes judicata; nor can the- basis (if the juilg inca s
be discussed [Hem Ch n: Puma Ch, 59 CLJ 320 : A 1934 C 788J. Judgment ill pre-
ViOUS suit against it widow is admissible to ascertain whether the decree was passed
against her as representing her husband's estate and also to ascertain the nature of the
Stilt ['vinayak V. Md Haiiit, A 1954 N 11].
A judgment not inter panes though not rcsjudicata may be admissible tinder s 43
read with s 8 as valuable proof of title [Abdul Majid i Tukwam,' 101 IC 744, 774 : A
1927 N 3591. In a suit by a landlord against a tenant, a previous judgment containing
a finding as to the prevailing rate of rent in a suit to which the defendant was not a
party is not admissible under ss 40-44 [Raghupai 'a Narbadeshivar, A 1938 P 103J.
The decision of an income-tax-officer that an assessee is separate from his joint
family is irrelevant in a civil suit [Naiidkinmnr v. Ka/uram, 19 NLJ 287]. A statement
of opinion by the judge in a previous judgment not inter panes is no evidence in a
subsequent case lflarnath 'a Mo/ran, A 1929 L
123]. Former judgment not inter
parres does not operate as a bar to the trial of a suit lhottgh they may he received as
evidence in the case. In a suit by the plaintiff against Government for recovery by
emoluments of a certain office, Government pleaded as a bar to the suit a former
judgment in which plaintiff's claim to the office against certain contesting claimants
was negatived, though Government was not a party to it—Held that it was open to
the plaintiff to re-assert his title to the office inspite of the former judgment [Secy of S
'a .Syed Aluned,
44 M 778 : A 1921 M 248 PB]. In a suit against the defendant, who
was a lessee from N, a usufruetuary mortgagee of the share of one 1?, for a decla-
ration that he had no right to recover profits the lease having terminated by the
redemption of the mortgage; defendant pleaded an arrangement with P and produced
the judgment of the mortga g e suit between himself and I?—Held that it was
admissible tinder s 43 [Md A/naiad 'a Masi/ud/a/i-k/ran, 28 IC 387 : 13 AU 317].
Previous decisions Under Land Acquisition Act are relevant in a subsequent case
where the market value of lands in [lie same neighbourhood is in issue [Madan 'a
Secy of S, 78 IC 557: A 1925 C 481]. In Land Acquisition case judgments not inter
pw-tes would be relevant if they relate to similarly situated properties and contain
determination of value on dates fairly proximate to the relevant date [improvement
Trust 'a H Naraanaia/r, A 1976 SC 2403; State of U,P 'a Nat/n Hoo, A 1986 All
1 72, 174 : 19 16 All WC 7331. In a suit by plaintiffs for a declaration that a sale is not
binding on them the land being ancestral, tflc judgment in a pre'ious s'ah hy the
plaintiffs but riot inter partes that the property was ancestral is not irrelevant. It is
only admissible for showing that on a former occasion alienation of a part of the
property was questioned on the ground that it was ancestral [Partap v. Mat/ia, 96 IC
998 : 27 PLR 5441.
Previous judgments are sometimes admissible even against strangers [Go1ii
Su,mdarj 'a K/ierod, A 1925 C 1941. As to admissibility of judgments between third
parties, see Hanjlrar 'a Kesho, A 1925 P 68.
Objects For Which Judgments are Admissible.—S 43 expressly contemplates
cases in which judgments could be admissible under oilier sections of the Act, which
are not admissible tinder ss 40, 41 and 42. The cases referred to in s 43 are such, as
the section itself illustrates, 'm'i, when the fact of any particular judgntent having been
given is a matter to be proved in the case—per GARTH, CJ. The decree referred to in
ilu.r (d) of s 43 can only be relevant under ss 7, 8 or 11 of the Act. In all these
sections, the word used is "fact"; consequently, it follows that the word 'fact" as
 ./tl(l.çiflci)!.V, etc other flu/il I/love
infflCl itioiicd .vecIirnls 40 to 42 Sec. 43 843

clelitied in the Act it s elf' includes decree and judgments. Besides, the definition itself'
is comprehensive enough to include them--per MILThR, J, lGroiu l.a/i r: lrueli Loll,
6 C 17 1 FB]. The reason upon which the judgment is founded are no part of the
transaction vincIi was assented and reeonised and cannot be so re g arded nor can
any finding of fact there conic to, other than the transaction itself, be relevant to
FOVC partition in a subsequent Suit [Gobincfri e S/rain/al, 58 IA 125 : 35 CWN 521
58 C 1187 : A 1932 PC 891. Such a judgment or decree is admissible to prove the
fact that a decree was made between certain parties and for finding out what lands
had been decreed ]Gadadlrar v. Sarat, 44 CWN 935j.
A judgment in a land acquisition case determining compensation is a judgment in
peisonsa and not. a judgment in rent. Only the existence of the judgment vill be
relevant and not its contents [Mariam i: S, A 1980 K 176 (Improvement 7)-itst v. N
Naraiwnajah, A 1976 SC 2403 relied onj. Judgments not jitter pai-tcs are
inadmissible to prove, the fact stated therein [Coca-cola Co. Ltd i: Pepsi-cola Ltd, A
1942 PC 40 : 202 1C 2031. Judgments not infer panes can only he regarded as
evidence of transactions but are not admissible as proof of title [Radhu t: Jyori Pd, 36
CWN 8661. They are admissible as evidence of assertion of right claimed, The rule
that so far as regards the truth of the matter decided, a judgment is not admissible
evidence against one who is a stranger to the suit has long been accepted as a general
rule [Kesho t .: Thliuria, 65 CLJ 241, 252: 41 CWN 577 16 P258: A 1937 PC 69;
see Gopika u Atal. 56 IA 119 :56 C 1003 A 1929 PC 99; Gobinda v. Sham/al, 58
IA 125 : 35 CWN 52 : 58 C 1187). II judgme
n ts are admissible only under ss 43 and
13, they must be rigidly restricted to proving the transaction or instance, meant, but
the issues and the findin g s cannot be looked at [per BEASIAN, J, in Md Amin r:
Ilasan, 31 B 147, 158, 159]. The production of a previous judgment merely
establishes the fact that there has been a judgment, but it does not prove the
correctness of the previous decision [Baidi,'airath c. Alefjan, 36 CLJ 9 : 70 IC 194;
see however Gopi Swidari r: Klrewd, A 1925 C 1941.
In a document accused confessed misappropriation of 3 items of money. In a
judgment in a previous case relating two items, confession was found not to he
voluntary and accused was acquitted. In subsequent case relating to third item the
judgment is admissible to show tile issue in question in that case and the decision
thereof. In the circumstances of the case the document was found to be of little
evidentiary value and should not form sole basis for conviction Bnijhasilal 'e ,S', A
1979 SC 1080]. Previous conviction for encroachment of municipal land does not
prove encroachment in subsequent prosecution for non-demolition [in re Ram Ch, A
194$ M 502 ] . The general principle is that the mere existence of a judgment, its date
and its legal consequences, are conclusively proved by its production, but it furnishes
not proof whatever of collateral facts, even though, as between the parties to such
judgment themselves, such facts must have been proved [per GuDT J, in Abinasli 01
c /'ares/i, 9 CWN 402 ] . A decree for confirmation of possession in favour of a party
is not conclLisive that the party was in possession at the date of the decree. A
judgment generally is admissible to show its date and legal consequences
[Rag/iwiai/i v. R, 15 P 336].

Under s 43, judgments other than those mentioned in s 40 or s 41, or s 42 are of

themselves irrelevant, unless the existence of the judgment is relevant under some
other provisions of the Act. They are irrelevant in the sense that they can have any
such effect or operation as is mentioned in those recited sections qua judgments,
orders and decrees, but it must not he taken to make them ohsolutely inadmissible
when they are the best evidence of something that may be proved a/iruide. Under s
43, the question is, "IS the existence of the judgment and decree a fact in issue, or, is
 $44 Sec. 43 (imp. II-- Of the Reletoiirv of flu is

f
it relevant under some other provisions of the Evidence Act?" tCo/Ir Goraklipur
Palandh,arj, 12 A 1 F Bi . . ludgmcnts qua judgnicnts and an expression of Opinion
(d
the Cot!! tS v1i ich pronounced them are no relevant at all except under
ss 40 to 42
[Goja/krishna e Amino/u, A 1972 K 1961. A judgment setting asidc the transfer of a
holdinn is a tact in issue in pre-emption proccedines under s 26-F. B T Act mid
therefore admissible tlioueli not inter panes [I3a.sa,ita n L)uni'u, 1939, 1 Cal $• 43
CWN 549: A 1939 C 432]. A judgment between the plaintiff and third partics is not
admissible though thc facts found therein may support plaintiff's title disputed in the
present sLut [I-/arthur u Kesho, A 1925 p 681. A judgment granting additional rent
owing to increase of land though not Jiiter panics is evidence only regarding the time
when reformed land became fit for possession [Abdul Larf n flub thu/Ia/i, 69 CU 2$
A 1939 C 354].

The fact that a judgment is admitted in evidence in order to prove that there was a
litigation which terminated in a certain way does not make all the recitals in the
judgment pail of evidence in the subsequent action [Abdul Laliff V. Abdul I-faq, 28
CWN 62: 81 IC 667]. A judgment. inter panes which contains a recital of pleadings
might be admissible in a subsequent suit to prove acknowledgment contained in the
pleadings in the previous suit. Recitals in a jud g ment inter panics is admissible if it
refers to a point in issue [Uda,ncmthala 1.: Panameshieara, A 1925 M 1019 : 55 IC
996]. Recitals in a judgment not inter partes cannot he used in evidence in another
litigation [see Kashi o Jaat, 20 CWN 643; T;ipurcma n Rokkanm,
45 NI 332 ante;
Asa n Mans/m, A 1930 L 237; Scirada u Uinakaiiia, 50 C 3701.
A previous judgment produced not to prove an adjudication between third parties,
but to prove a statement amounting to an admission made by a predecessor in title of
the opposite party is relevant under s 35 Knivliiiaswni t: Rajagopala, IS M 73:
Raniaswwni v. Subbaraya, A 1948 NI 388]. In Co/Jr of Gorakfmpur t•: Ram Similar, 3$
CWN 1101, illS: A 1934 PC 157: 61 IA 286, the Judicial Committee observed that
there was much to he said for this view of s 35. But the recitals in a jud g ment are no
evidence whatsoever to prove the exact admission made by a party or a witness
unless the whole of the statement it recited therein [India e Commr of I T, 22 P 55: A
1943 P 169; Ram Prakas a Anand, 43 IA 73:43 C 707 : A 1916 PC 256].
Substance of pleadings narrated in the jud g ments may furnish evidence of the
allegation made by the parties on that occasion [Kailcisl, a Bijoy, 72 IC 680: A 1923
C I 8--CONTRA: Chhadek a Sayad Ali, 95 IC 880, $81 (C)]. The summary of the
written statement in the judgiiicnt Of,-, pra'.ices suit wc referred to for the purpose of
ascertaining whether the defendants repudiated the alleged tenancy in the previous
suit. But it has been held that the finding of fact arrived at on the evidence by the
court in one case, is not evidence of the same fact in another case where the parties
arc not the same [Gopika a Ara!, 56 IA 119: 56 C 1003:j\ 1929
C 99, 101].
Judgment is not admissible to prove that plaintiff filed a false case [Miyano a S. A
1962 G 214].
When judgments are sought to be used (for purposes other than res juc/icata) to
show the conduct of the parties, or to show particular instances of the exercise of a
right, or admissions made by ancestors or how the properly was (ICdil with
P revi ously, they may be used under s 11 or s 13 as exceptions recognised under s 43
as relevant evidence [Laksjmian a Amrit, 24 B 591].
In a suit to establish an it/na/nec
right to certain lands, certain transcript decisions of the civil court, inwluch a former
holder of the tenure of the person who was said to have created the right was a party,
were held to be admissible tinder s 43, not as conclusive, but as of such weight as the
court might think they ought to have [Niwt Ali a Gooroo Doss, 22 WR 265].
/n/Cnu'ntv etc at/ic, 111ail 1/Jose ii)('flh101)C'(/ in sections It) to 42 Sec. 43 845

An order of the Board of Revenue is not evidence in a case before the civil court,
hut the latter would not make a decree in dissonance with a decision of the Board
Without due weight [Malmo o Moos/it, 43 1C 393 : 3 Pat U I 8$1. in a redemption
suit, a judgment in a previous pic-enlption suit in which the document was found to
be sham, is admissible although not conclusive I CI,l,iddu i. Desral, 2! AU 793].
Judgement of Criminal Court When Relevant and Irrelevant in Civil Cases
and rice versa.—Decision of a criminal case cannot he relied on as one hindino in a
civil action. Equall y the findings in a civil proceeding are not binding on a
subsequent prosecution founded upon the same or similar a! leizations I Kris/inan i:
Ada ikalmo, A 1966 M 425----casc law discussed]. '[he judgment in the criminal court
would not he relevant in the claim petition under the Motor Vehicles Act. The judg-
ment in the claim petition would not he relevant iii the criminal case for establishing
the guilt of the accused. [Raja Roar Garg v. C/than go Sing/r, A ] 992 All 28, 30]. '[lie
standard of proof for imposing liability is widely different between the civil arid
criminal Courts and while in a civil suit a defendant can be made liable on
probabilities or the action decided on it mere consideration of the burden of proof in
the absence of other evidence, no accused can be convicted on such uncertain
grounds. INarayanaii c Mat/ian Mit/mi, A 1982 Ker 238, 2411. A person denied
execution and accused another of having forged the pronote. A judgment obtained by
him on that note, would according to s 43, have been inadmissible unless that section
was construed as widely as it was contended that s 13 should be construed [R c
Parb/iudas, 11 Born F1C 90, 95].
A judgment of a criminal court convicting the accused in an accident case would
be pr//no The/c evidence of rash and negligent driving. [Mohiiider Kumar o Sint.
Dcii, A 1990 Delhi (NOC) 40]. In a civil suit the decisions in criminal cases relating
to the subject matter of the suit cannot be relied upon [Harihar V. ,Ja,iak, A 1941 P
118; Mwrgal o Maikn, A 1937 0 2511. The order of a criminal court disallowing
costs of a witness in a proceeding under s 145 Cr P Code, is not resj'tulicaia in a civil
suit for recovery of the costs [Neinai s AjaImr, 8 CWN 1781. The finding in a civil
proceeding are not binding in a subsequent prosecution founded upon the same or
similar allegations. It is the duty of the criminal court to form its own view
independently [R c Nazir Ahmed, A 1945 PC 18: 71 IA 203]. A finding on certain
facts by a civil court in an action in personain is not relevant before the criminal
Court when it is called upon to give a finding on the same facts, and vice versa
[Kashycip i R, ] 944 Lah 408: A 1945 L 23 FBI. Onl y judgments in rein as defined in
s 41 have a binding effect on criminal courts tMwrsharam v. C/ietanranr, A 1945 S
32].
In a suit for damage for assault, the previous conviction of the defendant in
criminal court is not evidence of the assault. The faction of the assault must he
proved in the civil court [Ali Bukslr v S/ik Swniruddin, 4 BLR, AC 31: 13 WR 477;
In i.e Jagga faa, A 1935 M 563. See Mg P/in c Ma The, 2 R 549]. A civil court is
not bound to adopt the view of the criminal court as to the genuineness or otherwise
of a document [/iis/ionai/z v. Hurro Gobinda, 5 WR 27. Sec also Doorga Dos c
Doorga Churn, 6 WR Civ R 26; Juggat o Babu Lal, 5 WR Cr 50; Nittyanuncl c
Kaslree, 5 WR 26: Qomanath o Roghunatli, Marsh 43: 1 Hay 75]. A plea of gtnity in
a criminal court may, but a verdict of conviction cannot, be considered as evidence in
a civil case [Shumb/roo u Mad/mo, 10 WR 56].
In England the Civil Evidence Act 196$ makes evidence of previous conviction
admissible in subsequent civil proceedings (see "Previous conviction Relevant ........
in s 54 port).
 846 Sec. 43 Chap. if—Of the Re/eivmcv o/I'uci.v
In a stilt Lou damages oil 01 a charge brought in the criminal court, the
plaintiff must prove malice and want 0! reasonable and probable cause Lou the
actrSalion, and the proccedir s in the criminal court are not admissible as evidence
in the civil court lAg/iorc n Radliica, 14 \VR 339;
Kutjr/ja i. l'eirka1ai'a,nay'a A
1951 M 344; JogL'!:dr-a o Liii garaj, A 1970 Or 91; see also Kei'wnwu//a u
G/eolaor, 9
WR 77]. A judgriient ol criminal court is admissible to the extent of factuin of churpe
and conviction lI'erwnal v Dci'arajau, A 1974 M 14]. The order of thc criminal
court is admissible to prove acquittal, but the conclusions drawn are not binding,
though the judemcnt may he looked at for seeing the circumstances which resulted in
acquittal J Rai Jung n Rai Gudar, 1 CWN 537]. The judgment of a criminal Court
acquitting the accused in an accident case is riot conclusive and the finding therein
need not be considered by the Motor Accidents Claim Tribunal. [APSRT Corpora-
tion v. Saai'aji Aruna, A 1990 Andh Pra 162, 163]. In deciding it suit for damages for
malicious prosecution the duty of the civil court is to consider the evidence
independently from [lie judgment of the criminal court and to come to its own finding
if there is reasonable arid probable cause and ss 43, 13 or 11, did not apply to the
case [Git/ub i Chuni, 9 Born IR 1134; Pedda Veirkatapai/ri o Balappu,
56 NI 641;
MaIIlpull(/j r Parr'atl,airenj, A 195 1 M 344; S/ruhi-atj n Sham.cuddin,
however .fadithar i Sheo Saran, 50 A 713: see
21 A 261. It would be only in those exceptional
cases where the circumstances which resulted in the acquittal of the plaintiff became
relevant that the judgment could be looked at by the court lDliartiisliaw r Bonthav
Munply, A 1945 B 320: 47 Born LIZ 304].

Where in a proceeding to revoke a probate the question was of intestacy in respect

of the interest in favour of the son if he was the murderer of the testator, the judgment
of the criminal court convicting him of the crime is no proof of the fact. The
Jud g ment is relevant onl y to show that there was a trial resultin g
in the onvict ion and
sentence of the son. The question of murder by him is to be decided on evidence
[A 12 r Latjka, 1955, 2 SCR 270: A 1955 SC 566: 1955 SCJ 578]. A judgment (if
acquittal is irrelevant in a civil suit based on the same cause of action, just as a
judgment of conviction is irrelevant in a subsequent civil suit on facts on which the
conviction is based [Onkarnral n Banwarjlal, A 1962 Raj 127]. In a criminal
Prosecution for defamation, the judgment of a civil court dismissing the stnt for
damages for defamation is not admissible as it is a judgment in peevonain [Raina-
niirm
aa r Apj. r cz/anarasay ya, 55 M 346].

In a proceeding under s 145 Cr P Code, tire magistrate could not go behind the
desin of the civil cnrtri b y ign orine the decree, thnirph fil e court nassin g it had
no jurisdiction over the land' was immaterial that the delivery of possession was
symbolical only [nh/roy v. Basu, 27 CWN 2671. In a proceeding under s 145 Cr PC
Previous judgment of civil court about possession can he used as a piece of
evidence of possession quantum valebat [Ranrkawci/ i Dud/ja,rat/i, A 1969 p 317
(Abdul Sirakur r Aba Saveed, A 1925 p 593 reId on
)] . Fact of previous
proceedings under s 145 and the order thereon must be taken into consideration in
a subsequent suit for possession based on title [Barocla v. Mairmat/ra, 41 IC 456].
Orders of magistrates under s 145 Cr P Code are admissible in evidence on general
principle, and also under s 13 to prove certain facts [Dinoinoni v. Brojomohini, 29
IA 24: 29 C 187: 6 CWN 386 ] . It is admissible as evidence of Lha, filet as to who
was declared entitled to possession and these orders are admissible against all
Persons when the fact of possession on the date of order has to he dscertained. But
as between the parties, such order is also admissible as evidence as regards
Possession before two months of the date of the order [Jogendra i Mo/rim, 34
CWN 358].
jttth,ni'iit.v. etc oilier 1/Ia/I 1/lose ill,flhi(lIC(/ in seciion,% 40 to -12 Sec. 43 847

A judgment in it criminal case is admissible to show what order was made, who
the parties to the dispute were, what the hand in dispute was and who was held
entitled 10 possession [Krishna c. Md, 21 C\VN 93: 31 IC 789; Molrrwt e /rs/iad
22 Cli 525; Ramadhar v. Janke, A 1956 P 491. In suhscqncnt proceedings for
succession, the judgment of the criminal court is only relevant to show thai the
claimant was convicted and sentenced under s 304 PC. The points whether the
case falls tinder s 304 or within ss 299 and 300 PC are to he determined by the
civil court on evidence. In this case against conviction by criminal court under s
304 it was held that the clanitant was guihly Of murder and exclLidedi 0oin
succession )Biro v. Banta, A 1980 P&H 164 (Anil e Latika, A 1955 SC 566 rd
on)]. A finding regarding possession of land in previous judgnicnts of civil courts
thou g h inter pastes is by no means conclusive oil question in a subsequent
criminal proceeding for offence under ss 143, 379 and 109 I P Code. It is only a
piece of relevant evidence [Trailokhva c R, 59 C 136]. A judgment under s 144 Cr
P Code is not evidence of possession of the party in whose favour the proceeding
ma y have terminated Mo/ian v. Deonarain, A 1945 P 453: 24 P 379; Sheapujan i'.
Kesho, 2 P 9191. In a suit for declaration that the plaint If was not married to
defendant, report of Government hand-writing expert in criminal case arising out
of complaint by plaintiff's father for alleged forgery of certificate could be used as
evidence in the suit 1.4lrafI-lusssain r. Nasreen, A 1978 A 515]. Oil charg e tinder
s 447 I P Code, a criminal court is not entitled to disregard the decree of a civil
court declaring rights to the identical properly in dispute [ Varadaraja v. Swami, A
194$ M 49].
The decision of a criminal court does not operate as resjudicata in a. civil suit in
respect of the same cause of action. in a suit by a father for compensation for the loss
of his daughter's services in consequence of her abduction, the jud g ment of the
criminal court convicting the defendant did not prevent the civil court from
determining whether or not the defendant did abduct the plaintiff's daughter as
alleged [Rain Lal i 'Jhlarain. 4 A 97]. On a charge of forgery, the judgment of the
civil court holding that the document was a forgery, was held inadmissible [Gagan v.
B, 6 C 247: 7 CLR 74; Oates u R, 76 IC 416: 3$ CLJ 163; see also Tarapada c.
Kalipada, 28 CWN 587].

It will be opposed to fundamental canons of justice and public policy to treat the
jud g ements of the criminal court binding oil Motor Accidents Claims Tribunal,
trying a claim arising out of a motor accident involving injury or death Jullundur
Municipality t Romesh, i\ 1970 Ptr 1371.
A judgment of a civil court cannot he g iven in evidence in a criminal
prosecution for establishing the truth of the facts upon which it is rendered.
Whatever may be the nature of the decision of the civil court, the magistrate ought
to decide the question of the accused's criminality by himself—per RAMPINI J.
Contrary view was taken b y GIIOSH J, who observed that he was not prepared to
say that the decision in a civil court would not be admissible in evidence in a
criminal case, if the parties were substantially the same and the issues in the two
cases identical [Raj Kumar i Ba,na Sundari, 23 C 610. See also Manjanadi Debi
I
,. Rain Doss, 4 CWN 176 note].

Misccllaneous.—In suits brought to set aside alienation made by Hindu widows

and other persons who have not an absolute and complete interest in the property
alienated, the question is often raised whether or not the alienation was made for
necessary purposes. In order to prove such necessity, decrees are frequently
produced, without evidence being given of the circumstances under which the debts
 848 Sec. 44 Chap. II----O/ i/ic Rcicta,icv al i'icts

were contracted, for the recovery of which those decrees were obtained, Upon the
principle above stated, it might appear that such decrees though good evidence O f the
ilolount j-oud, arc lint evidence, at least on behalf of the alie.tiors, of the facts
constituting the nece s sity [Sec. Field 601 Ed pp 184-85 and the Cases citcd therein).
When a proceeding of a tribunal or a court relied on by one party in support of his
claim, It is open to the opposite party to show that proceeding is not either of a
competent tribunal or a court or that it was ohiauicd by fraud or collusion. [M Is' Paul
c State of Ke,-afa, A 1982 Kei' 38,40].

S. 44. Fraud or collusion in obtaining judgment, or incompetency of

Court, ma y be proved.—Any party to a suit or other proccccliiig may
show that any judgment, orderor decree which is relevant under sections
40, 41, 42, and which has been proved by the adverse party, was delivered
by a Court not competent to deliver it, or was obtained by fraud of-
collusion.

SYNOPSIS
Page Page
Principle and Scope [Avoidance Nature and Kind of Fraud
of Res Judicaia by Showing Contemplated by
Fraud or Collusion) 848 This Section 855
Grounds oil Judgments Distinction Between Fi an
May Be avoided 850 Attempted and Fraud
Same:—[Application] 850 Perpetrated 8S7
Onus 8.51 Procedure to he Adopted For
Order' - Setting Aside a Fradu lent
Sat and Collusive Decree 857
Incompetency or Want of
Jurisdiction - Forum of Suit to Set Aside
Fraudulent Decree 858
Judgment, Order or Decree"
Obtained By Fraud Perjured Evidence or False
852 Claim is No Ground For
Probate or Letters of Adminis- Setting Aside a Decree 859
tration 854 Undue Influence 859
Carl Part)' Plead His Own
Fraud 859
Fraud? 854
Ncgigence &c 859
Fraud Judgments can Be
Challenged Witiiout Setting Collusion 859
Them Aside 855 Oilier Proceedings 860

COMMENTARY
Principle Wid Scope. [Avoidance of Res .Judicata by Showing Fraud or
Collusion]. —_his section lays down that when one of the parties to a suit or other
proceeding tenders, or has put in evidence, a judgment, order or decree under ss 40,
41 and 42, iL is open to the puny against whom it is offered to avoid its effect on any
of the three grounds specified in the section, without having it set aside, sir (a) the
incompetency or want of jurisdiction of the court by which the decree was passed;
(h) that the judgment was obtained through fraud; or (c) that it was obtained by
collusion. The section applies to both civil and criminal proceedings tBhagiva'wlas v,
Pate& Co, 1940 Born 403: A 1940 B 131]. S 44 provides for impeaching not only
the judgments between the parties but also judgments regarding public matters and
 Iiaiid or (0/1OSlO/I ill o/'taiiiingjudgnic,it, i?/(o/////('I(//()' of Court
(0 Sec. 44 549
judgments in rein IShah Cu/am 1'. S/ia/i A/v/u!, i\ 959 /\])
212 Apart horn s 14 C P
Code, a foreign judgment can he challenged under this 'section on the g ron id at
laud, [see 5lu'a n Teja, A 1975 SC 1,S5]. Norton remarks: "I do not see why the
same rule ou g ht not to to the case o a judgment, &e tendered under s 43"
[Nort p 218]. The pninciple laid down in s II of C P Code is substantially modified
by s 44 and the principle of res judicata does lint appl y it, a previous decree is proved
to have been obtained by fraud [Sii I/ac/ha i: Wa/id Ali, 36 1C 746: 19 00 334:
Krishna v. Rainamut-ti, 16 M 19$; La.iuj a Aid S hall, A 1949 Pu 141 K/iliad a
J3ansh id/iar, A 1978 Or 1]]. S 44 is an exception to s I I CPC ['//apj.'wi i:
Peter, A
1979 K 194]. Not only a party to the decree but also a stranger can show that the
decree is a nullit y on account of fraud etc. [Hail i-a/n i: Rcnne.r/iit-ar, 49 C\VN 354].

But it is important to remember that the provisions of s 11 are mandatory, and the
Ordinary litigant who claims under one of the parties to the former suit can only
avoid its provisions by takin g advantage of s 44 which defines with precision [lie
grounds of such avoidance as fraud or collusion, or by showing want of bona tides in
[lie prosecution of the previous suit. It is not for the Court to treat negligence, or gross
neg li g ence, as fraud or collusion, unless fraud or collusion is the proper inference
from the facts [Venkata Seshyva a Kotisirara 64 IA 17 : 1937 Mud
263: it 1 OWN
257: A 1937 PC 11. The rule as to fraud applies equally, whether the juclement or
decree impugned was passed by an inferior court or a superior court. Whenever it is
shown that a judgment which is relevant was obtained by fraud, evers' court will treat
it as a nullity as in [lie words of DR GREY CJ, "fraud vitiates the solemn proceedings
of the courts of justice" [R a Duchess of Kingston, 20 how St Tr 355,
544]. But
some limitation must be put upon the section, e' if a decree is obtained by A against
B, B cannot bring an action to set aside that decree on the ground that it was obtained
by perjured evidence, althou g h a decree procured by false evidence is none the less a
fraudulent act. If that were allowed parties would go on bringings uch cross-actions
ad infinitum and there would be an end of i-es judicata. Fraud contemplated in this
section is an extrinsic act unconnected with matter adjudicated upon, ZC some fraud
by which a litigant is prevented from appearing and placing his case before the court
at the trial (post). "It is a jurisdiction to be exercised with care and reserve, for it
would be highly detrimental to encourage the idea in litigants that the final judgment
in a suit is to be merely a prelude to further litigation [per JENKINS CJ, in Naiida v
Rain Jibwz, 41 C 990, 9981. In order to sustain an action to impeach a judgment,
actual fraud must be shown; mere constructive fraud is not, at all events after long
delay, sufficient [Patch a Ward, 3 Oh 203].
The Pri vy Council in Ta//ui-i Venkatc-j Ses/ia y a a Thadikonda Kotiswara Rao, A 1937
PC I, has laid down that section 44 cannot be extended to eases of gross negligence. But
in the said case the Privy Council had observed that the court cannot treat negligence, or
gross neg ligence, as fraud or collusion, unless fraud or collusion is the proper inference
from the facts. In other words in cases where an inlrcnce of fraud or collusion can he
drawn from the negligence or gross negligence of the next friend of a minor, it would he
permissible for the minor to avoid the judgment or decee passed in the earlier proceeding
by invoking section 44 without taking resort to a separate suit for setting aside the decree
Of judgment [AsIiaiji/a/ a Koi/i, A 1995 SC
1440, 1444]. In a proceedingn u der s. 125 Cr
PC the wile specifically denied that she was gain fully employed and thus was able to
support herself. Even if she was employed no dishonesty or deceit could be attributed to
the wife to attract the provisions of section 44 jAsha Aid! Des/un uk/i i: flint Ma/iadeoro
Deshinuk/i, 1996 Cri U 2751, 2753 (Born)].
A litigant, who approaches the Court, is bound to produce all the documents
executed by him. If he withholds a vital document in order to gain advantage on the
 850 Sec. 44 Chap. /1—Ofthe Reh' caner of 1irts

other side then he would he guilt y of playing Fraud oil court as well as on the
Opposite party [SR Cheni,'ahrirava Naidu u ./aawmth, A 1 , 994 SC 853, $55[.
(;rotiiids on Which Judgments May be Avoided—Whenever a Judonicni is
offered in evidence against a stranger, hc may avoid its cffeTs, by furnishing distinct
proof that it was obtained by Fraud or Collu.swn)To borrow the language of LORD
(Ci LEF JusticE DE GRIiY, 'Fraud is an extrinsic collateral act, which vitiates the most
olcrnn proceedings in courts of justice. :L0R) COKE says it avoids all judicial acts,
ecclesiastical or temporal''. In applying this rule, it matters not whether the judgment
impugned has been pronounced by an inferior tribunal, or by the highest court of
judicature in the realm, but in all cases alike it is competent for every court, whether
superior or inferior to treat as a nullity any judgment which can be clearly shown to
have been obtained by manifest fraud. Whether an innocent party would he allowed
to prove in one court that a judgment against him in another court was obtained by
fraud, is a question not equally clear, as it would be in his power to apply directly to
the court which pronounced the judgment to vacate it; hut, however, this point may
he ultimately determined; this much is evident, that a guilty party woUld not be per-
nutted to defeat a judgment by showing that, in obtaining it he had practised an
imposition on the court; for it would be an outrage to justice and common sense, if a
person would thus avoid the consequences of his own fraudulent conduct [Thy s
1713].
In England therefore a party to a suit would not be allowed to defeat a judgment
by showing that in obtaining it he had practised an imposition upon the court. The
section does not appear to put any such restriction, its language being general. But
the rule that a party can set up his own fraud or collusion in nullifying a previous
judgment hhs its limitations (sec post: "Cana pa/ir plead his oonaud?").
fi
The rule that a person participating in a fraud will not be allowed to set it up as a
defence has its exceptions, e in cases where the act done is against public policy.
The rule also does not hold good against persons who claim through the party
defrauding, if they are the persons sought to he defrauded [see Barkarunnissa i Fad,
26 A 227 and other eases cited post p 482]. The rule that fraud can only be proved by
an innocent party does not however apply to probate and divorce cases [Phipson 11th
Ed p 536].
[Ref To y ss 1712-17, Step/i Art 46; Best 11112 lids 595, P/up 8th Ed p 400; Ha/s
3rd Ed Va! 15 P 383-8'!; Kerr on &e'ud, 407 "1 c 32 I ci' req
Same: [Application].-S 44 is permissive and not prohibitive. It allows a party to
avoid a judgment by prving fraud or coUusion, but it does not destroy his
substantive right which exists indepcndent1ypf the Act [Mahes n Manindra, 45
CWN 508; Iflkhar u Beani, A 1946 L 233 'FR] and so s 44 does not purport to
enumerate the grounds on which a decree can he attacked by a separate suit [S/mini-
natlyv Ramjas, 34 A 143: 13 IC 80 9 AU I; see Tribeni o Ramnpujan, A 1970 p
I 3].(. Thc application of the rule in s 4 is limited only to cases in which a decree is
treated as relevant under ss 40, 41, 42. iNane of these sections has any application to
execution proceeding. So it is not opeh to the judgment-debtor to take exception to
the execution of a decree upon the allegation that it has not been passed by a court of
competent jurisdiction [Biswanath v Rhagwandin, 14 CU 648]. In another case
however, where a transferee from judgment-debtor of his cquit of redemption
applied for setting aside the sale of the mortgaged property on the ground that the
execution proceedings had been carried on by fraud, it was held that it was quite
competent to raise the question under s 44 and give evidence in support [Ranid/mani
Topi Bihec, 19 CJ_J 264; see also Shewa ii. Rhawa ri/al, A 1973 13139], Relying on
 Proud 0/ collusion vi obtainun,'judçiiic,,t or ulco/npch'ncv o/Coii,i
Sec. 44 85 1
Bisn'tiiiat/i 'S case it has been held that s 44 does not apply to iud
cg admissible
tmder s 43 f Veukata i: Akkappa, A 1941 lvi 569.

It is now wcll-rccoeniscd that ordinarily an execution Court cannot go behind the

decree and its validity cannot he chalteneed there. It cannot go into the question that
the decree was obtained by fraud [Dattatrava n Purshottwn, 46 B 635;
o Aparna, 39 CWN 490 FBI. In all proceeding, the obiector who was a
Biso'anib/iar
party to the petition under 0 21 R 97 CPC had locus siandi to cha!len
ttc the validity
Of' the eviction order. tlogindcr Suiç'/l i: Sint Nirn,a/ Nai,o Mehra,
A 1986 Del 305,
312]. But where a decree is of a court which apparentl y has no jurisdiction, pecuni-
-try or territorial, the executing court may refuse to execute [Gorac/,nnd V
19 CWN 948 ; see Jnanedra n Rabindra,
I'rafulla,
37 CWN 401, 405: A 1933 PC 61: 60
IA 71 Uttain u Vz.riu1eo, A 1946 N 311]. See further, Sarkar's C P Code 6th Ed
notes to s 38.

Under s 44, where a decree obtained by fraud is sought to be used against a

person, he is entitled to show the nature of the decree notwithstanding the fact lie has
not previously taken steps for its cancellation. But he cannot he perriiitted to chall-
enge the decree unless lie sets out Specifically the circumstances which constituted
the alleged fraud oil and on the court [J'ulin e Satya,
70 IC 548: A 1923 C 79].
A decree of divorce of a foreign court is open to attack on gronnds specified in s 44
[Satyao Thja,A 1975 SC 1051.
A decree in rem even of foreign court (eg
a decree of divorce) which is relevant
under s 41 can he contested by any one not a party, also on the ground of fraud or
collusion which does not go to the jurisdiction of the court, The law in s 44 goes
beyond the English law in this respect [Situ Devi o (lopal Saran,
A 1928 P 375: 111
IC 762; B/lago'wic/as i: Paid & Co, A 1940 p 13]].
Onus.—Thc onus of proving collusion or fraud oil part of his predecessors in
previous suits is on the party who alleges it [Venkata Sesliayya o Korisivara,
64 TA
17: 1937 Mad 263: A 1937 PC 1; HaJIz i: Swat-up, A 1942 1].
"Order".—Wherc in a suit for rent by all the tenant raised the plea
that the letters of administration had been obtained by fraud and misrepresentation, it
is doubtful whether letters of administration call regarded as an order within the
meaning of this section [Ambica o Kala Chand,10 CWN 422].

Incompetency or Want of .Jurisdiction.-_1very species of judgment will he

rendered inadmissible on proof that the court which pronounced it had no
jurisdiction. 'Jurisdiction' is the authority by which a court has to decide matters that
are litigated before it or to take cgnizance of matters presented in a formal way for
its decision [Hridoy o R#m C/i,)24 CWN 723, 732: 31 CU 482;
Profulla, 52 C 166 FB].tfhe wods "not competent" in this Section refer Goracliand V.
to a court
acting without j ur i sd iction4Ket,i/ai,i,nj o Kelappan,
12 M 228]. The competency of
a court and its jurisdiction, are s y nonymous terms. They mean the right of court to
adjudicate in a given matter [Sai'dar o Anaruyal,
21 13 205]. S 44 refers to lack of
inherent jurisdiction in the court and not to its territorial jurisdiction which can he
waived [1/ira/al o Kalinat/i,
A 1955 A 569 on appeal A 1962 SC 199; Beer/v-pa o
Yesrvanj,'ao, A 1972 My 338; see also Bahrein Petroleum Co v. P J Pappu,
A 1966
SC 634 and further posts 115; " Waiver and Estoppel"]

party to a decision could get rid of that judgment and order only under s. 44 By,
showing that the court was not competent to render the judgment or pass the ord
[Rain P,'osad o State of Ujiar Pradesh, A 1988 All 309, 315 (DB): 1988 All \C
10821. The plea of want of jurisdiction can he raised at any stage unless there is a bar
852Sec. 44 (hap. hJ---OJ i/u' l'/c'a'v of /-'aiis

ol ies judicata or equitable c.stoppcl IS/i('a Jahal r. Rhiio y ck, A 1931 A 6891. A In
objection rcgai'ding want of territorial jurisdiction, see s 2 I C P Code. Under s 9 1) C
P Code, no decree shall be reversed or modified for any error or neon lanty nut
aflecting merits or jurisdiction.
The mere fact that a Court competent to hear and decide a suit, decides it wrongly
make the decree a nullity. It has never been and
Oil a question of limitation, does not
could not he held that a court which erroneously decrees a suit which it should have
dismissed as barred by limitation, res judicara, etc acts without jurisdiction and is not
competcnt to deliver its decree [Nathiu Rain u Kahian, 26 A 522: 1 AIJ 217; Row es/i
o Mooniraj, 45 CU 24; see also Coston o C, 22 A 270, 279 FB: 20 AWN 59]. Want
of jurisdiction must he distinguished from irregular or erroneous exercise of
jurisdiction. If a court has jurisdiction to take cognizance of any matter before it, but
decides it erroneously or exercises its jurisdiction irregularly, its judgment is not a
nullity till it is set right by an appropriate proceeding in a proper court. Jurisdiction
does not depend on the correctness of a decision. A power to decide necessarily
carries with it a power to decide erroneously as well as rightly. But if a court has not
the jurisdiction to determine a matter, and assumes it, its judgment is a nullity. In the
latter case, there being want of jurisdiction the whole proceeding is coorain non
judice and void. The law is stated in Hats 3rd Ed Vol 15 para 384 p 205 thus : "The
absence of a condition necessary to found the jurisdiction to make an order, or give a
decision, deprives the order or decision of any conclusive effict; but it is otherwise
where the order is good on its face and the court adjudicating has jurisdiction to
determine the existence or not of the condition, and the party denying its existence
has ne g lected his opportunity of raising the objection at the hearing''.
S 44 has nothing to do with the competency of the former court to try the
subsequent suit. It is concerned only with the competence of the former court to try
the former suit and with such competency of that court as a fact—Whether s 44 is
subject to s 11 C P Code lflickie v. 0/77 Trustee, A 1954 C 506].
This section empowers the court to ignore orders issued by courts without
authority [Keshav v. Amarchand, 57 B 456]. An order made without jurisdiction is
absolutely null and void; such an order may he shown to he a nullity in any
proceeding when reliance is placed upon it, -although no formal and direct proceeding
has been taken to have it vacated or reversed [Gulab Sao v. Chioud/wry, 2 CLJ 384: 9
CWN 956; Peary n: Secy o,fS, 39 CU 454, !15$].
A judgment delivered by a court not competent to deliver it, eg by a court which
had no jurisdiction over the parties, or the subject-matter of the suit, is a mere nullity
[see Kalka: Kaithya, 7 NWP 99; Sukram v. Crowd),, 19 WR 284; Ganesh v. Ram
Nidhi, 22 WR 361: India S&W Co Ltd v Climax] S, SOB 1: 91 IC 8471. When an
offence is tried by a court without jurisdiction, the proceedings are void, and the
offender-if acquitted, is liable to he retried [R v. Hussein, 8 B 307], A decree passed
by a court having jurisdiction is not void but voidable where it is passed under a
misapprehension or is brought about by fraudulent proceedings {Shik Ismail o Rajab,
30M295: I7MLJ 165].
A suit for restitution of conjugal rights in the High Court was drsmisscd for want
of leave, but it was held that the defendant was not the legally wedded wife of the
plaintiff. In a subsequent suit by plaintiff, held that the former decision was by a
court not competent within s 44 [Abdul Kader o Doolan, 37 B 563].
"Judgment, Order or Decree" Obtained by Fraud.—The term "fraud" has
not been defined in the Act. The definition of fraud is only to he found in s 17 of
 /1(1(1(1 QI (il/orion in obiauiiiig jiidgiiieiit, UI . i/IconiJ/efr/Icv oJ (7iiit Sec. 44 853
the Contract Act (9 of 1872). Accordine to Story, 'Fraud properly includes :1!
acts. Omissions and concciilmcnts, which ifl\'OlVC a breach of legal or cqt:i::iblc
(lil y , trust or confidence, justly reposed, and are injurious to anothci-, or b y which
an undue and ujiconScientiouS advaiitae is taken b y another" [Story, E (1 Jur S
2521. A person does a thing fraudulently it' hc does it with intent to defraud. TWO
Clements are necessary: deceit, ic to say, some one is deceived, and injury or loss
to the same person [Bisivaiiil.mr t' Nilwnbar, A 1930 C 263: 33 CWN 997]. Two
kinds of fraud are mentioned ei (1) Actual or positive fraud which includes cases
of the intentional and successful emplo y ment of mv cunnin g , deception, or
artifice, used to circumvent, cheat or deceive another Story, Eq s 186]. (2)
Constructive or legal fraud includes such contracts or acts as thou g h not
ori g inatirtg in any actual evil design or contrivance to perpetrate a fraud yet, by
their tendency to deceive or mislead others, or to violate private or public
confidence, are prohibited by law [Story, Eq]. It is in connection with the subject
of actual or positive fraud that. Story mentions frauds in verdicts, judgments,
decrees and other proceedings FStory, Eq s 61.
judicial
S 44 lays down not only a rule of law relatin g to evidence, but. also a rule of
procedure. It makes the sonic provision for impeaching on the ground of fraud
juduments infer partes and judgments in rem or judgments relating to pLthl ic matters
[Rajib v. Laklian, 27 C ii: 3 CWN 660; Pa/bali c. G/rj, A 1937 A 28]. A person
not an actual party to the fraud ma y set up a fraud as an answer to a decree
I Srirwn,'a,imjimal i'. Sandaminal, 23 M 216[.
decree of a superior court can be declared told by an inferior court on the
gr(Yd of fraud [Sarriiakram m: Nundo Ram, 11 CWN 579 . referred to in Abdiil iJuq
i' A/idol lJa/'z, 14 CWN I 16n: II Cli 6361. A party to a proceeding is never
disabled from showing that ajudgment or order has been obtained by the adverse
party by fraud [Matmclthciram u Kalidn's, 19 B 812, 826 ] . Decree obtained by
practising fraud both on defendant as well as court is nullity [f'alewal t: Go/mil, A
I 980 (NOC) 50 (G)l. The nullity of a judgment or decree obtained by fraud upon a
court though it has not been set aside or reversed, may be alleged in a collateral
proceeding El-/arc Kr m: Ramesh, 6 PLJ 373: 62 IC 9621.
If a previous decree obtained by fraud deprives a stranger of his right to certain
property, a suit by him in regard to it is maintainable without first bringing another
suit. for getting the decree set aside. Under s 44 he can impeach it, if it is sought to he
used against him as evidence [flswinj t: Baizamali, 21 CWN 594]. A mortgaged
certain property to B, who instituted a suit on his mortgage and obtained a decree
therein. Subsequent 10 such decree, A sold the property to a third party C. B having
attempted to execute his decree against the property in hand of C, the latter instituted
a suit agai
n si A and B for a declaration that the property was not liable to satisfy the
decree, as the mortgage transaction was a fraudulent one, and the decree was
obtained by fraud and collusion. In such suit B contended that C having purchased
subsequetitly to the decree Was absolutely hound by it—field, that having regard to
the terms of s 44, it was perfectly open to ' to prove that the decree had been
obtained by fraud and collusion [Nilmony i. . Alimwmissa, 12 C 156]. Where plaintiff
in an ejectment suit relies on his title as a purchaser in a court sale, it is open to the
(lefendants ill possession to show that the Purchase was procured by fraud [Gimaniar
i' Kits/ma, 23 IC I]. Entry in a record of righ ts operates as a decree tinder s 11 of
Reg 3 of 1872 (Sonthal Parganas, Settlement) and it is open to the plaintiffs to urge
under s 44 that it was obtained by fraud (Mir Mazafflir t: Kali I'd, 18 CWN 271: 19
CLJ 291.
854 Sec. 44 Chap. ll—OJ the hie/evwicv of En cis

Probate or Letters of Administration.—The question has arisen in sonic cases

as to whcthcr it can be collaterally challenged under s 44 ill suit or
proceeding oiln ground of fraud. GREAVES J, observed that 'having regard to the
wide terms of s 44, it is not possible to say that it is not open 10 a cou it oilier I han the
court from which a grant was issued in cases of fraud or collusion to deal with the
matter and decide whether the grant has been obtained by fraud or collusion''. He
however added that the better course would be to slay the Suit to enable an
application to be made for revocation of the grant Ikakshab v. Tarangini, 25 CWN
207: 62 1C 44$1. In ail case B\NntJt J, observed that a probate is not a
"judgment, order or decree" and a probate does not require to he ''proved". In this
view s 44 would not apply [Raii/ i Lek/ian, 27 C 11: 3 CWN 660].
In a case MARKI3Y J, described the grant of probate as a decree of the court.
Without any reference to s 44 it was held that the greatest confusion would arise if
the validity of the will could be questioned in a civil sint and that no court other than
the probate court can revoke the grant [Kanial Nilruttan, 4 C 360]. In Patna it has
been held that the probate does not amount to any adjudication, but it only recites the
n has been made. Hence it is not a decree and as s 44 does not
fact that ail
apply, no evidence can he allowed to prove that the will was a forgery Rajkishore v.
Proinode, A 1944 P J82: 22 P 756]. In Bombay it has been held that in an
application under s 476 (now s 340) Cr P Code although the criminal court has no
jurisdiction to revoke the probate of 'a will, it has full jurisdiction to decide that it was
a forgery. Under s 44 it is open to the party offering evidence of forgery to prove that
the probate decree was obtained by fraud [Bhagwandas Pate! & Co, 1940 Born
403:A 1940 B 131].
Can a Part y Plead his Own Fraud?--This section is wide enough to allow a
party to set up his own fraud or collusion in procuring the former judgment in order
to defeat it,—certainly a startling proposition LAhmedbhioy n Va!hibhov, 6 B 703,
71 6—per I.A'rt-1..\Nt J]. Althoitgh the words "any party" are wide enough to cover the
party who is himself a party to the fraud, it is now an established principle of law that
a party to fraudulent and collusive decree has always been held to be bound by it and
is estopped from raising in a subsequent suit the question of his own fraud
[Chenvirappabin c. Puttapbin, 11 B 708. See also Rangamma! c Venkcitac/iari, 18 M
378, oil 20 M 323; Varadarajulu e Srinivasulu, 20 lvi 333; Yaraniati v
Chundru, 20 M 326; Goburdhan v. Rifle, 23 C 962; Bankabehiari n Raj Kwnar, 27 C
231: 4 CWN 289; Kuinar Row v Nukainnia, 31 M 485: 18 MLJ 546: 4 MLT 331;
Kishiorebai u. Ranchiliodia, RS U 427; !\Oflai Ciouiih,d, A 1929 P !1. On th a.rne
principle a collusive decree hinds the parties and the representatives thereto [Sahib i:
Ba/ian, A 1927 A 494: 101 IC 765; Darbari ' Malibu!, A 1927 A 538: 101 IC 513;
Parameswa,-cm v Aiyappan, A 1959 K 206]. In all these cases it has been laid down
that it to a fraudulent and collusive decree when that fraud is effected, cannot
alleged his own fraud to escape frum the consequences of the decree. The case of
Param Singh v. Laijumul, I A 403 in which opposite view was taken has been
dissented from in 11 B 708, on the grounds, that it is not supported by any other
Indian case, that it is against the principles of the English cases on the point and that
it is also opposed to the general principles of resjuchicata [; see ante under principle
and Scope]. If the fraud is practised by both parties either of them cannot impeach
the judgment oil ground that it was collusively procured [Shripadgouda n
Govindgouda, 1941 Born 160: A 1941 B 77; see Raoji v. Ratansi, 54 B 696]. As to
estoppel in cases of parties in pari delicto, see s 115 post.
Where a person suffered it fraudulent and collusive decree to be passed against
him oil basis of a wokf with the intention of restricting the inheritance to the
 /1(211(1 01 collusion hi o/;IajliJnc' judgment, Or uuompetcn(-y of (01121 Sec. 43 855

property to his descendants so as to debar his collateral heirs from successions, Wc

latter class of his hcirs are not precluded in a suit b y them froiii scttirn , tip
the
fraudulent character of the decree LBai*aiunnisa u Paz.! /Iaq, 26 A 272]. When
parties act together and perpetrate fraud, the (lilly of the court is not to assist either
party [5/ik Villa -yet u Misi'wii, 72 1C 92; sec also Raghupati e A'ri.vinglia, 36
CLJ 491].
Fraud in Judgments Can Be Challenged Without Setting Them Aside —
Under s 44 a party can, in a collateral proceeding in which fraud may be set up as a
Under
defence, show that a decree. or order obtained by the opposite party against him was
passed by a court without jurisdiction or was obtained by fraud or collusion and it is
not necessary to bring an independent suit for setting it aside [Bansi u D/iapo, 24 A
242; Rout, Lckhan; 17 C II: 3 CWN 660; /i,hati i Gajraj, A 1937 A 28;
I'ra)'ag
a Situ, 42 CLJ 280, 428: A 1926 C I; hare Krishna a (Jinesh,
6 PU 373: A 192! p
193; Asiv,nj a Bwiamali, 21 CWN 594; Maiichharani a Ka!idas, 19 13
821, 826;
Ranganatli a Gocind, 28 13 639; Jainiruddin a Aliath aiiessa, A 1929 C 685: 114 IC
407; B1tmii'andas k Pate! & Co ante; Bishimat/i a Mirchi, A 1955 P 66; Vijaya a
Pad,iiaiia/,/1j, A 1955 AP 112 (sec also flue). So also it compromise decree
ob1ticd by fraud [Bomciit'ddi a R. 30 IC 639; Abdid Hakim v. Pane/ui, 32
IC 849].
Every court, whether superior or inferior, can treat as a nullity the decree of another
court obtained by fraud [Bai-katiin,uissa i: local Huq, 26 A 272; see also
Nistarini a
Nwudlal, 26 C 891 (on appeal 30 C 369 and 33 C ISO : 32 IA 193)]. It was contended
in a case that if this view is accepted there would be no limitation for setting aside a
decree and art 961 of the Limitation Act would he nugato'. It was held that in spite
Of the anomaly, the plain words of s 44 allow a party to show that a judgment was
obtained b y fraud Praycig a Siva Pd, 42 Cli 280, 428: 92 IC 385. Sec also
/tlinuedb/uov i: Vulleb/ioy, 6 13 703; Mwic/iliarci,ii, a Katidas, 19 B 821, 826 The
].
Limitation Act does not apply to defence [B/rota a Nagendra, A 1928 C 810;
Rjs/twia,/i a Mire/u, A 1955 p 661. A c ertificate of sale of land obtained by fraud is a
nullity and it can be challenged collaterally by way of defence without bringing a Suit
to set it aside [Bishunaili a Mire/u, sup; Suk/ii a Prayag, A 1959 P 508].
The right as given by s 44 has not been fettered by an limitation. A decree or' order
can be challen g ed on ground of fraud in a collateral proceeding without bringing a
I
Suit for setting aside the decree of order 'J'ribeni a Rampujan, A 1970 P 3
(Bishunath v. Mire/u, sup foild)]. But is a suit for settin g aside a decree on the ground
of fraud is time-barred, s 44 cannot save it [Ekawari a Jadu,randa,u, A 1974 P 191
(Bishwiat/i a Mire/u, sup distd)]. In Ni.rtarjnj a Nu,ic/o La!, 30 C 369 a consent
decree was treated as a nullity. In a suit by a decree-holder under Or 21 r 63, the
opposite party can establish that the decree was obtained by fraud or collusion
I Vijaya a Padmanab/ian i , sup].
Nature and Kind of Fraud Contemplated By This Section.—The nature arid
kind of fraud contemplated by this section should be borne in mind. In Md Go/oh a
Mel Sid/linwu, 21 C 612, 619, PE'rHERAM CI, after reviewing some English decisions,
observed:

"The principle upon which these decisions rest is that where a decree has
been obtained by a fraud practised upon the other side, by which he was
prevented from placing his case before the tribunal, which was called upon to
adjudicate upon it in the way most to his advantage, the decree is 1101. binding

1. Sec now art 59 of Act 36(11 1963.

2. Or 2!, r 63 has been omitted by CPC (Ann) Act, 1978, see now Or 21, r 58
$56 Sec. 44 C/ia1i. 11—Of the //efei'wiiv o//acts

upon him, and may he set aside. hill I am not aware I liut it has ever been
suggested in any decided case; and in m y opinion it is not the law that because a
person against whom a decree has been passed alleges that it was wrong and
that it was obtained by per committed by, or at the instance of the other
party, which is of CoLirse the fraud of the worst kind, that he can obtain a re-
hearing of the questions in dispute in a fresh action by merely changing the.
form in which he places it before the Court. and alleging in his plaint that the
first decree was obtained by the perjury of the person in whose favour it was
given. To so hold would he to allow defeated litigants to avoid the operations
not only of the law which regulates appeals, but of that which relates to tes
juthcata as well."
[ivid Go/ab n Md Sidhiinan, ante was approved in Abdul iIuq n Abdu/ !ia/ez, 14
CWN 695; Maishi Mosuful v. Surendra, 16 CWN 1002; Nanda Cootnar v. Ram
Jiban, 18 CWN 681; Nalini r: Han, 29 CWN 325; Swat v. Mecher, 29 OWN Ii;
Muktan,ala u Rain Ch, 31 CWN 258; Balkuntha v. Prahlad, 30 CWN 560; Kunja
Rehai-i n Krishna, 1940; 2 Cal 477: A 1940 C 489; Papavinasain v. DaIi'ani, A 1963
K 26 and dissented from in Lakshi Churn i Nor A/i, 15 C\VN 1010 and referred to
in iIkarwn 'c Daulatrain, 32 A 1451,
As observed by SIR JOHN ROLT Li, in Patch e 'i½ud, 1867 LR 3 Ch 203 the
fraud must he actual positive fraud, a meditated and intentional contrivance to keep
the parties and the court in ignorance of the real facts of the ease and ohiaining the
decree by that contrivance; constructive fraud is not sufficient; see also Md liashim
v. Iffat Ara, A 1942 C 180; Bishen '.r Wasawa, A 1926 L 177 post. Fraud must be
established by cogent evidence and suspicion cannot be accepted as proof
I ilansnaj v. Det-adoon &c, A 1940 PC 98: 1940 Kar 216; Naraywuan v. 0//7 Ass, A
1941 PC 93 ] . Fraud, like any other fact may he proved by circumstantial evidence,
but mere want of good faith cannot establish it [Laxmi v. MCI S/i.afi, A 1949 Pu
141 ] . It is now well established that a decree cannot be set aside as fraudulent on
the allegation that it was obtained by perjured evidence, or that the claim was
false. It must he shown that plaintiff was prevented by some fraud or contrivance
from appearing and placing his case before the court, ie, the alleged fraud must be
an extrinsic act (see below) . JAMES Li, in Flower v. Lloyd, I,R 10 Ch D 327,
observed as follows:—
"Where is litigation to end, if a judgment obtained in an action fought out
adversely between two litigants sui junis and at arm's length could he set aside
by a fresh action on the ground that peljuuy had hecit camiiiittcd in the
action or that false answers had been given to interrogatories, or a misleading
production of documents, or of a machine, or of a process had been given?
There are hundreds of actions tried every year in which the evidence is
irreconcilably conflicting, and must be on one side or other wilfully and
corruptly perjured. In this ease, if the plaintiffs had sustained on this appeal the
judgment in their favoLir, the present defendants in their turn, might bring a
fresh action to set aside that, judgment on the ground of peijury of the principal
witness and subornation of perjury; and so the parties might go on alternately
ad infinituni .......... Perjuries, falsehoods, frauds, when detected* must be puni-
shed and punished severely, but in their desire to prevent parties litigant from
obtaining any benefit from such foul means, the Court must notiorget the evils
which may arise froni opening such new sources of litigation, amongst such
evils not ti-ic least being that it would be certain to multiply inde.linitely ti-ic mass
of those every perjuries, falsehoods and frauds,"
 F1 . 111111 or co//usia,, in oht,i,,,ii' jlulyinri,i, or i/lca/IrpetL'ncy 01 Court Sec. 44 857
The decision of l''nkauippa v Su/tha, 29 M 179
that a suit lies to set aside a dcv:
obtained by )eitury and SlippieSSiorl O f evidence was overruled in Aadhi-r
:1
uppus,rcuni, 41 NI 743: 34 Ml .J 590. The former view was supported
En g lish cases viz i/mu/of! ii O/)pe/illeimer (1882), 10 Q131) 295 some
and 1 a(ja/a
Luives, 25 QBD 3 10, where the decision in I/own Lloyd
(I 878), 19 Ch 1) 327 has
been questioned. In Alioiv/ri itiosuñil r:Surendra, 16 CWN 1002. Flower v Lloyd
was relied on and it was pointed out that it has not been superseded liv A boa/off a.
O/'peithei,,ier and l%u/a/a 1. Lu'es, sup \vh cli are both Cases of foreign judgments
which stand oil a footing of their own. For other cases see port).
Constructive fraud is not sufficient FRi.rl,e,, v. Wasuwa, A 1926
L 1771, In order
that a decree whether made e.i porte
or by consent or after contest, apparent or real,
may lie attacked for fraud, the fraud must he actual positive fraud, a mcdi tated and
intentional contrivance to keep the parties in i g norance of the real facts of the case
and to obtain a decree b y that contrivance
[Na,,da Kuinar e Roar fl/mn, 18 CWN
681: ] 9 CLJ 457: 41 C 990; Janki a Lachmi, 37 A 5351.
In order that fraud may he
a ground for vacating a judnicnt, it must he a fraud that is extrinsic or collateral to
every thing that has been adjudicated upon and not one that has been or must he
deemed to have been dealt with by the court" [Rule in Duchess of Kiiiçsioii 's Care,
20 how St 'Fr 544 stated in Chinirava r: Rama,wa, 38 M 203;
sec also Logadopa/ii a
Aot/a Ran,a,rana 25 IMIJ 2281.
Fraud bearing on jurisdictional facts vitiates all judicial acts whether in rein or in
per.rone/n [Scuya a Teja, A 1975 SC 105].
Distinction Between Fraud Attempted and Fraud Perpetrated .—A distinction
exists between those cases in which the fraud is only attempted but not carried into
effect, and those in which it has actually been carried into effect. Iii the former case a
party attempting to commit fraud is not precluded from maintaining an action to set
aside the fraudulent transaction, but in the latter case h e is allowed to take
advantage of his own wrong and is precluded from maintaining an action to set aside
the fraOdulcnt transaction, actually carried into effect; Isce Goburdhan a Rita, 23 C
962; Jadunatlr v. Rap/al, 33 C 967; Honappa a Narsappà, 23 B 406; Pet/icr Peruinal
a. Muniandy, 35 C 551: 12 CWN 562: 35 IA 98 arid cases in notes under s
115 "iiu'
recognizes no Estoppel as between parties in pan dec/jew"].
Procedure to be Adopted for Setting Aside
a Fraudulent and Collusive
Decree.—The most natural course for a party to a judgment who seeks to impeach it
for fraud is by an application to the court which pronounced the judgment, to set it
aside or to bring a regular suit [see Rajib a Leklran, 27 C Ii: 3
C\VN 660; Mewa a
BJrujan, 13 BLR Ap 11; Ashutosh a Tara Pr, 10 C 612; Es/ta,, a Nundomani, 10 C
357; Karaina/j a Ru/run b/toy, 13 B 137 on appeal 15 B 594; Nistariiii i'. Nunda/al, 26
C 907; Ramgopal a Prasairrta, 2 CLJ
50$: 10 CWN 529; Rimf Mo/thu a.
Clrintanroiri, 5 CWN 877; Rakhulnronj a Adoitcu, 30 C 613: 7 CWN 419; Fool-
coonlari V. Woodoy, 25 C 649; ½rupaks/iappa a S/ridappa, 23
B 620; 5'ui-endra i'.
Hcriranginj, 34 C 83; Rarmadeo a Baranashi, 3 CIJ ] 1 9 and Sarbes/r a Hari Doyal,
14 CWN 451: I ICLJ 346].
In order td attack a compromise decree on the ground of fraud, collusion, undue
influence &c the regular mode would be a suit [Ga/al, a. Buds/ia/i, 13 CWN 1197;
IJirali a Rehmoohhoy, 15 B 594; GaLrtaun a Pramatha, 33 CWN 833; Gird/taran v.
Bho/i, A 1941 P 574; Nat/u,jma/ a. Raçh,ibar, A 1926 A 50]. One who is not a party
to the consent decree cannot sue to set it aside.. All that lie can do is get a dccla aion
that the decree did not affect his right
[Bison, b/tar e Ni/ambar, 33 CWN 997; Di
a. Nar.ring, 22 CU 383]. In a deed-
creating religious trust two views were possible.
$58 Sec. 44 Chap. 11—Of the Releraiicv of ljcts

Consent decree based on one view passed cannot he challenged in subsequent suit on
" round ui fraud and collusion (.loJuopal v. /'toi,ia/al, A 1978 SC 13 1-91. A decree
which is fi ctitious does not require to he Setaside [Sochi Kwuar i. Chandm, 35 Cl J
348; 5'urendra r. Kaligopal, 22 CWN 3671.
S 44 does not enable an individual creditor to bring a suit to set aside a transaction
contained in a decree on the ground of fraudulent transfer or preference. It refers to a
decree J Arvi C C S Ld v. Dhoodira;n, A I 940 B 289].
A person atzainst whom an cc paru' decree has been passed may apply under Or 9
r 13 or apply for a review ol'judgmcnt under s 114 or prefer an appeal under s 96 C P
Code. He may also maintain a suit for setting aside the decree on the ground of fraud
even aitc.r the rejection of his application under Or 9, r 13 [Prannath v. Mohesh, 24 C
546 (affirmed in 28 C 475 PC : 5 CWN 757); Duarka m: Lachnian, 21 A 289; Rain
iVarain e Slico Bhwmjan, 27 C 197; Sadho v. Go/oh, 3 CWN 375; Khagendra v
['rannath, 29 IA 99: 29 C 395: 6 CWN 437; Debendra v. Prasanna, 5 CLJ 328;
Go/op c: Indra, 13 CWN 493; Ba/ki.csen c. 7ipe.csur, 17 CWN 219; Janki i: 772akur,
75 IC 243; Koala Behari e Krishna, 1940, 2 Cal 477: A 1940 C 489]. A suit lies
even if no application is made under Or 9 r 13 [Abthil e Md, 21 C 605; Nga Ycin u
Alga So, 34 IC 2641. A suit lies for setting aside a decree and a sale thereunder on the
allegation of suppression of summons [Na,çcndra v. Parbati, 20 C'cVN 8 191. But if in
a suit to set aside an ex porte decree the only fraud alleged is non-service of
Summons, and the plaintiff had unsuccessfully applied to set aside the decree under
Or 9 r 1 3 - -held that the suit is not maintainable [Puma Chand is Shea Dat, 29 A
212: 4 AU 51; followed in Narsing is RaJiquan, 37 C 197: 14 CWN 507; Niadar v.
Rawmak, 29 A 608; K/zjrode is Asru/la/,u, 20 CWN 845; Yogainba v. Arunmuga, 20
MLT 126: 36 IC 128; Musthan i'. [Johendra, 1 R 500: 76 IC 794; Loganmani i:
Raingobiid, A 1942 P 3571. These decisions proceed on the ground that if fraud in
respect of which the decree is sought to be set aside, viz suppression of summons,
was properly in issue in the application under Or 9 r 13 and was determined upon, it
operates as i-cs judicara and a second suit is not maintainable [sec also Jan gal V.
La/fit, 60 IC 124: A 1921 P 12: 6 PU 1 (29 1A 99 dissented from); Chandra i.
Aswini, 45 IC 2501.
Forum of Suit to Set Aside Fraudulent Decree.—A suit to set aside a decree on
the ground of fraud may be brough t in the court within whose jurisdiction the fraud
was perpetrated or within whose local jurisdiction the defendant ordinarily resides or
personally works for gain [Abdul Huq v. Abdul !-Jafez, II CU 636: 14 CWN 11611].
A suit is maintainable at Cawnpore to have decree of a court in Calcutta UeclareO to
he void on the ground of fraud. It is competent for every court, superior or inferior to
treat as nullity any decree of any tribunal, if it is established that it was obtained by
fraud or collusion [Banka Jiehari v. Poklia, 25 A 48: 22 AWN 179. See however
Umrao v. Hardeo, 29 A 418 where several cases have been diseussed]. A suit to set
aside a decree on the ground of fraud lies in a court to which the decree was
transferred for execution [Raj Kwnar v. Raj Keshwar, 41 IC 161].
The 1-ugh Court has jurisdiction to set aside a decree of a mofussil court on the
ground of fraud [Nistarini v. Nanda Lad, 30 C 369: 7 CWN 353]. .i munsif can set
aside a decree passed by a subordinate judge [Shib Lal v. Paras, 86 PLR 19 171. A
suit, to set aside a decree on the ground of fraud lies in a courUinferior to that
which passed the decree provided the subject-matter is otherwise within the
jurisdiction of that court [I'illa Kakkadu v. Chandra'i'va, 24 MUT 254. See also
Arunachala o. Sabapathy, 41 M 213: 41 IC 937; Firm of Ram/al v. Sa/ig Ram, 7
PWR 1921:59 IC 2].


l'rai,il or rollu.r,o,z iii (,blail Ing jird1 1 ,

I (0 /// (nl/overov 0J (010? Sec. 44 859
Perjured Evidence or False Claim is No Ground For Setting Aside a
D ecree.—The mere tact that a dceiec lots been obtained by false evidence
o Amin o din, 23 CN W 133: 47 IC 14: Alrrst/ujn t: Siohend,i i F Kov err
Baikuni/ja r: Pea/i/ad 30 CWN aGOj, or b y SuppreSsion Of , I R 500: 76 794;
wrong evidence [Shiinio'as Nato y aniao, 76 1055 1: A 1923 evidence or proJitetion of
13 379; how ever
Ithikaji r: l3a!t',iit, A 1927 B 5101 is not a so Urcient g round br Setting itSL:
aside. The
point for consideration is whether the party a g
ainst whom the (lccrcc was prevented
by fraud from placing his case before the court. A though it cannot h
e sho wn that th e
court was mistaken (in the former suit), it ma y
cannot he set aside merel y he shown that it was misled. A decree
on the ground that it has been procurcd by perurcd
evidence [Alan indra c Han, 24 C\VN 133;
1002; /rarta o Bai Rod/ia, 4 Slims/ri 'llosiefir/ V. Sierendra 16 CWN
P1 J 187: 50 IC 45!; Kripa Sind/ije n Nandu, 56 IC
615: 1 PLT 239; Jan cal r: /.a//it, I PIT 735: 60 IC 124: see Observations of
U, in Flower r: Llo y JAMES
d, ante], that the claim is dishonest or false. The fraud must he
an extrinsic collateral fact 01a/rant n Laks/rnrj, I PIT 386; Janki Koer 1,.
58 IC 317; Ram Narain r: Tooki, 58 IC 182: 5 PU 259; Ma/whir,
594; Mut/ia,j r: Moliejidra I R Jagannat/i r: i/a/memo, 62
62 IC
Pitta/, C
I. 96; Miehtama/a n Rain Oh, 31 CWN 258; S t: Punjah C B, 92 IC 322: A 1926
Aim/a Re/tare r: Kris/wa, 1940, 2 Cal
477: A 1940 C 489; Syed Md /
fitAm 74 Cli 261
Ji I:

Undue Influence.—A suit is maintainable fors etting aside a decree based on an

agreement alleged to have been entered into by the exercise of undue influence. S 44
does not enumerate the grounds on which a decree can be attacked b y
[S/iami Nat/rn Ramjas, 34 A 143 (1895,2 Ch 273 foOd)]. a separate suit
F raud--Fl-al-id in s 44 i efars to the fraud practised against the court b
party, or it may also imply a liaud against any p a rt)- to the y any one
proceedings. "Collusion" is
used apparently in a difiet-ent sense [Sripadagoreda o Gorindagouda,
1941 B 77]. See ante p 483: 194 I Born 160: A
"Natw-e and kind offraud contemplated by this section."
Negligence ctc.--The principle of s 44 was applied to cases of gross negli
g ence
(eg gross ne g li g ence of a guardian ad litein
is passed) in Kari Bapanna n Swika ii of a minor on account of which a decree
Rama, 45 MU 324: 74 IC 218 and Mathura c
14 P 824, but the Judicial Committee has later on held that the principles
relating to negli g
ent conduct of a former litigation cannot be extended to cases of
gross negligence unless fraud or collusion is the proper inference from the facts
[Venkata Sesha yya n Kotiswara
it 64 IA 17: 41 CWN 257: A 1937 PC I (folid in Twit
Sridrar, 74 CLJ 13); Kris/inadas n Vitho/,a, A ] 939 13 66 FB; Laxmi n Md S/raji,
A 1949 Pit 141; S n Dliii, A 1972 Raj 2 411. Even gross neglicence may not amount
to any 11701 0 Jide conduct, and cannot be a grou
n d for setting aside the previous
decision binding between tlic parties [Kothanda,-c,,ircr 1. Se//ammo!, A 1959 Ni 524].
It cannot he shown under s 44 that a compromise on which the judgment is based is
vii iaiecl by mutual mistake [Krishna it Dhanapati, A 1957 C 591.
In Calcutta, Allalialnid. Madras, &c it has been held that a suit is maintainable for
selting aside a decree on the ground of gross negligence of guardian ad lirem
neither s 44 nor s 11 C P Code bars SUCh a suit [A/aires/i and
it Mairind,-a, 45 CWN 508:
Siiaj it MdA!i, 54 A 646 1q 13; Oirwidie/al 1.
Raç'ar,t, 45 M 425 : A 1922 M 273; Egappa
v. Ranranath, 1942 Mad 526: A 1942 M 384: Kanraks/uya it
PB; !Ik/wr r: Bci, A 1916 U 233 FB; Narava,ra,j it Gopalan, ABa/dea, \ 1950 1' 97
1960 K 367
Collusion ._Collitsion has heel) defined to he a deceitful agreement or
, Ce mpact
between two or more persons to do some act in order to prejudice a third person ot for-
sonic intfltoper purpose This is tIre wider sense. Collusion in judicial proceedings is
secret arrangement between two persons that the one should institute a suit against the
860 Sec. 45 Chap. ii- - 0. 1 the Peletancv of I-aci.

other, in order to obtain the dccismn of a judicial tribunal for some sinister purpose. It
may be. of two kinds:—( 1) when the facts put lorwaid as the loundation of the
judgmcnl of the court do not exist; (2) when ihc exist, but have been corruptly
Preconcerted for the express purpose of obtaining the judgment. [Wharton's Law
Lexicon]. Collusion implies whin is called 'no battle hut a sham fight" [A/miedh/ioy t:
Villehhoy, 6 117031. Collusion' is not the appropriate term to apply to the obtaining of
a decree by a fraud on the court. The term suggcsts the court was implicated in the
matter I Bindeswari i.: Thakur, 63 IA 53 : 40 OWN 289 A 1936 PC 46]. A conspiracy
of silence by which a decree was obtained cannot he described as 'collusion' ill
sense in which it is used in judicial proceedings [Koiui o C/win/al, A 1929 13 11. The
distinction between fraud and collusion lies in this, that a part y alleging fraud in the
obtaining of a decree against him is alleging a matter which lie could not have alleged
in answer to the suiL; whereas a party charging collusion is not alleging new matter. 1-Ic
is endeavouring to set up a defence, which might have been used in answer to the suit
and he cannot be allowed to do so consistently with the principle of res judicata
I Varadarajulu o Srinivasulu, 20 M 333, 3381.
A stranger can avoid a decree by proof of collusion. But a party to a collusive
decree and his representatives cannot escape its consequence [Venkataianunanaa v.
Vjiomina 10 M 17; fofld in Chem'irappa o Purtapa, 11 B 708; Kuina Row v.
Nukai,inia, 31 M 485: 18 MJ.J 576; Sahib v. Ba/tori. A 1927 A 494; Cltauliana 'a
Gaya Pd, A 1971 A 439] except possibly when some other interest is concerned that
call made good only through his [Kondi 'a Chunila!, A 1929 B 11. A party to a
decree or a person claiming through such party call sec 44 be allowed in avoid
the effect of the decree on grounds of fraud or collusion and assert that the said
decree cannot he relied on for the purpose contemplated by sec 40 thereof which
includes providing the basis for the plea of i-es judicata in view of the inclusion of
sec 40 ill 44. [1/me Mason v. Suit Ilasina i3ibi, A I 984 All 216, 219: 1984 All CJ
141 (A 1927 All 494 and A 1971 All 439 over ruled). The meaning of sec 44 is that
if collusion is proved between the parties to a previous suit then the judgment in that
suit which is relevant under see 40 cannot act as a bar. [Nachhiiiar Singh 'a Suit Jagir
Kaur, A 1986 Punj & Har 197, 200 : (1985) 2 Punj LR 59 3 ] . Secret combinations
amongst bidders at execution sales not to bid against each other are instances of
collusion [see Hari Ba! Krishna 'a Naro Moreswar, IS B 342; Doorga 'a S/ieo Pd, 16
C 194; Md Mirza v. Savs'assi, 23 M 227: 27 IA 17; Satis 'a Porter, 9 CU 244 : 36 C
226; Gobind 'a Shyam Lal, I CLJ 85. See however Amhika 'a Sitaram, 6 CLJ 111 and
Ivnii i . .lhoreewul!. 36 C 34 : 13 CWN 871.
Other proceedings.—S 44 includes not only a suit but other proceedings, such as
proceedings Linder s47 of the C P Code 1908 [Asabwi 'a Ananda, 14 CWN 8231.

OPINIONS OFTHIRD PERSONS WHEN RELEVANT

S. 45. Opinions of experts.—When the Court has to form an opinion
upon a point of forei g n law, or of science or art, or as to identity of
handwriting [or finger impressions], the opinions upon that point of

In Ceylon the words "or genuineness of handwriting" have been added after "identity"
wherever they occur and the words "plain impressions or foot impressions", after "finger
impressions" wherever they occur.
Added by s 3, 1 E Act, 5 of 1899. For discussion in Council as to whether "finger
impressions" include ''thumb impressions" see, Gazette of India, 1898, Pt V1 1) 24.
 Opinions tiJ c'xperl,r. Sec. 45 861

CISOnS specially skilled in such foreign law, science 01' art, 2[Oi. in
quest ions as to identity of handwriting] '[or linger I inpressions] are
relevant facts.
Such persons are called experts- i

Illustrat ons.
(a) The question is, whether the death ofA was caused by poison.
The opinions of experts as to the s y mpo nis produced b y (tie poison by which A is supposed to
have died, are relevant.
(6) The question is. whether A, at the time of doing a certain act, was, by reason of unsoundness
of mind, incapable of knowing the nature of the act, or that he was doing what was either wron g or
contrary to law,
The opinions of experts upon the question whether the symptoms exhibited by A commonly
show unsoundness of mind, and whether such unsoundness of mind usually renders persons
incapable of knowing the nature of the acts which they do, or of knowing that what they do is
either wrong or contrary to law, are relevant,
(c) The question is, whcthcr a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A.
T he opinions of experts on the question whether the two documents were written by the same
person or b y different persons. are relevant.

SYNOPSIS
Page Page
Principle and Scope 862 Expert Opinion on
Difference Between an Facts Stated by Other
Expert and an Ordinary Witnesses, [How Far Expert
Witness $64 can he Asked the Very
Exceptions to the Opinion Question Which the Court
Rule. [Opinions of or Jury. I lave to Decide] 881
Ordinary Witnesses Experts Not to Express
When Receivable] 865 Opinion on Facts in Issue or
When Expert Evidence to State Result of Opinions 883
is to be admitted. When Questions Need Not
["Science or Art" to he be Hypothetical 884
Construed Widely] 868 Reference to Text-hooks
Subject On Which Expert by Experts $84
Evidence May Not Foreign Law 885
Be Admitted 871 Ossification test and opinion
"Experts" 872 of radiologist regarding age $86
Expert witness—Duty of Court 873 Anthrecene Powder and
Expert advising both sides 874 Ultra Viote Rays $87
Expett—Witness of All 875 Ballistic Experts,
Competency of Expert Bullet Marks &c 887
875
Inquiries and Reports A rmou rer 888
Ordered 13y Court 878 Blood Grouping Tests 889
Mode of Examination of Experts Code Words 890
and its Scopc—[llypott,ctical Copy rig Ii 890
Questions) 878 Dog Tracking Evidence 890

2. Inserted by s 4, 1 EArn Act 9 of 1872.

 862 Sec. 45 Chap. 1I—Of rite I?e/em(-ujcy of Facts
Page Page
Foot prints 892 Age
Gaiuhling 912
892 H andwriting, Proof of 912
House- break n g 892 I laridwritins Expert 913
Illicit Liquor 892 Value of Expert Opinion
Land 892 on Handwriting 915
1-lair 893 Determination of age
Identity of seized articles 893 of Handwriting 921
Nautical Assessors 893 Science of Handwriting not
Trade mark- an exact science 922
893
Telephony Comparison of handwriting
893 by Court
Typewriting Specimens 923
893 Modes of proving handwriting
Water Mark on Cartridee 923
Paper Opinion on Marks 923
897
Workmen's Compensation Finger Impressions 923
Cases 897 Palm Impressions 924
Special Rules of Evidence in Report of Finger-print Expert 924
Cr P Code—Deposition of Value of Finger-prints—
Medical Witncss Without Duty of Court 925
Being Called 897 Foot-masks or Foot-prints 927
Deposition of Medical Wite.s Expert Evidence on Commission
How Recorded 928
898 Use of Scientific Treatises
Report of Certain Govt by Court 928
Scientific Experts and
Officers of Mint dc, etc. Expert evidence oil
898 state of mind or reliability
Mere Certificate of Medical 928
Man or Expert Value of Expert Evidence in
899 General and Degree of
Homicide or suicide 900 Credit to be attacherl to it 929
Medical opinion on time of injury 900 Corroboration of Export Evidence 932
Waiver 901 Whole of the report including
Medical opinion and its value 901 Covering letter 932
Time of Death 910 Experts cannot admit facts 933
Medical evidence and Expert opinion need not state facts 933
confessional statement 911 Court's duty to reject non-expert
Duty of expert witness in opinion 933
medical ne g ligence claim 911 Court may act without
Motor Accident Cases 912 expert opinion 933

(( COMMENTARY
Principle and Scope.—he plain meaning of section 45 is that the Court in order
to form an opinion upon a point of foreign law, or of science, or art, or as to identity
of handwriting, or linger impressions can treat the Opinion upon that point of person
specially skilled itt such foreign law, science or arLor in questions as to identity of
handwriting, or linger impressions as relevant facts1 In other words, the opinion of
persons specially skilled in such foreign law, science, or art, or questions as to the
identity of handwriting or linger impression, called experts therein, are relevant facts.
The opinion of such experts is admissible in evidence as relevant facts by virtue of
section 45 of the Evidence Act [Stare v S.]. C/toad/try , A
1996 SC 1491 1996
LJ 1713, 17151. Medical evidence, as is well-settled, is a opinion evidence given Cri by
art and deserves respect by the Court. Such evidence cannot he brushed aside
without any justifiable reason. This is, however, not to say that opinion expressed
by
an expert is always binding upon the Court. Evidence of an expert, like any other
witness, has to be appreciated in accordance with law and accepted only if found
trustworthy. An opinion evidence of an expert after its acceptance by the Court
 Opinions 0/ experts. Sec. 45 863
becomes [Ile decision of the Court and ceases to be a opt mon evidence O f the expert.
Under the cii-eUmstances evidence of an Cxperl also has to be interpreted like, an y
Other cvidence.1 lii s dome the effort should he made to explain the same and
correlated wjth- evidence ol e y e-Witnesses It is onl y when that the two become
'i'ecottciahle that the question ot accepting one or the other arises and not otherwise
Rokad Siiiç/i u State a/MR. 1994 Cri Li 494, 499 (MP)]. The Opinions or beliel's of
third persons are as a general rule irrelevant and therefore inadmissible, and
witnesses are to state jicts only, ie what tile)' themselves saw or heard or perceived
by an y other sense (s 60) and not to draw inferences from what they see
IJabulj e
A 1974 SC 755].

It is the function of the judge and jury to form their own conclusion or opinion on
the facts stated. Thus the opinion or the impression of a witness that it appeared to
him from the conduct of a mob that they had collected for an unlawful purpose is not
admissible to prove the object of the assembly [Jogi Raut e R, 105 IC 234 :
A 1928
P 98]. "A witness examined as to facts ought to state those only of which he has had
personal knowledge. It has been said that a witness must not he examined-in-chief as
to his belief or persuasion, but onl y as to his knowledge
of the facts. As far as regards
mere belief or persuasion which does not rest upon a sufficient and legal foundation,
this position is correct—as where a man believes a fact to he true merely because he
heard it said to be so" [Starkie, 173. "Opinions, in so far as they may he loundcd on
no evidence or illegal evidence, are worthless and, in so far as they may he founded
on legal evidence, tend to usurp the functions of the tribunal whose province alone it
is to draw conclusions of law or fact" [Phi l) 11th Ed 503].
p
Expert witness ma y give opinion evidence but the court is free to draw its own
conclusionsi Kolasiitiam i: Tlianthlpillai, (1997) I Malay-an Ii 288 (CA Kuala
I umpur)J. Expert evidence to determine the amount of drugs the accused had been
Using (luring the period before his arrest can be considered by the court lGarnam
Singh i: Public Prosecutor, (1994) 2 Singapore LR 243 (Singapore CA)]. An expert
must be skilled. He need not be so by special study. lie may he so by experience
[Leong llog Kong c Public Prosecutor, (1994) 2 Singapore LR 54 (Singapore CA)].
There are however cases in which the court is nat in a position to form a correct
judgment without the help of persons who have acquired special skill or experience
on a particular subject, eg when the question involved is beyond the range of
common experience or common knowled g e or when special study of a subject or
special trainin g or special experience therein is necessary. In such cases the help of
experts is required. In these cases, the rule is relaxed and expert evidence is admitted
to enable the court to come to a proper decisio Under this head comes, matters of
science, art, trade, handwriting, finger-impressions and foreign law. The rule
admittin g expert evidence is founded on Necessity.

"The instances in which the Witness' opinion is excluded b y this principle are
roughly classed into two groups. First, all witnesses whether testifying on observed
data of their Own or on data furnished by others, may state their inferences so far
only as they have some special skill which can be applied to interpret or draw
inferences from these data. Secondly, witnesses having no special skill,
who have had
peisonal observation of the matter in hand, may, as a result of their personal obser-
vation, have drawn inferences or made interpretations which the tribunal could
equally well make from the same data of personal observation, if laid before them:
and thus if it is possible to detail these data fully for the tribunal, the witness' own
inferences are superfluous" (Wi g s 1918). This mode of examination (as to belief or
opinion), however chiefly prevails on qLiestions of science or trade, where, from the
864 Sec. 45 Chap. Il_Oft/n' Relevancy o/ Facts

diiiiculty and occasional impossibility ni obtaining more direct and positive evi-
dence, persons of skill, sometimes called experts, are at towed tint only to testif y to
acts but to give their opinions in evidence [Tay s 14161.
When ai expert is dead or cannot he found, his Opinion may be proved by the
production of his book (sec s 60).
With regard to the examination of documents in the custody of the court by experts
there is a variance OF practice. In Madras it has been held that the exanunation must
be carried out in the court [Narasinilian u Naraywi, 1968, 2 MLJ 48] whereas in
Orissa it may he sent to the expert [Balaram n Achuinnanda, A 1975 Or 125].
[Ref Tay ss 1416-25, 1445;. Phipson 8th Ed pp 378-82; Best, ]it/i Ed ss 513-16;
Wigmore, s 1917 ci seq; Hais 3rd Ed Vol 15 pains 587-591; Roscoe NI' Fe 177-78;
Powell Ei' 9th Ed pp 37-55; Wills Cir Fe 61h Ed pp 154-77; Rogers Evpert Testimony
ss 121-44; Lawson's Expert Opinion and Evidence; Ames on Forgery; Ram on Facts;
Moore on Facts].
It is unsafe to base a conviction wholly on expert opinion without substantial
corroboration [Mo/id isa Khan i State of UP, 1992 Cri Li 3987, 3993 (All); See
also Ram Chandra v. State of U.P., A 1957 SC 381 and Megan Bihari La! case, A
1977 SC 1091]. The court is not hound to follow blindly the opinion of the experts
[Law Society of India v. Fertilizer and Chemicals Travancore Ltd., A 1994 Ker 308,
367]. Experts give evidence and do not decide the issue [Metropolitan Properties Co.
Ltd. r London, (1968) 1 All ER 354; R. e Lanfear, (1968) 1 All ER 683; R. e Smith,
(1974) 1 All ER 3761. Expert evidence unsupported by any reason may he ignored in
the circumstances of the case [linji Mohammad Ekramul v. S, A 1959 SC 488]. The
court accepted the evidence of a wife as to the paternity of a ten months old child, in
spite the unanimous opinion of several doctors [Bowden n Bowden, 62 SJ 1051. In
Octovious Steel & Co. v. Endograni Tea Co. Ltd., A 1980 Cal 78 it has been laid
down that although a medical certificate unsupported by a doctor's affidavit is
admissible in every case, the court cannot act oil unless it contains the relevant
particulars on which the Court seeks to arrive at a finding the court can direct
production of the concerned doctor to explain some of the queries in order to form a
substantive satisfaction about the authenticity of the medical certificate [Arcliana
Devi i.. Kaji Majibur Raharnan, A 1996 Cal 118, 119]. Expert opinion does not help
the cou'ft in interpretation [Forest Range Officer v. P. Mohammad Au, A 1994 SC
120, ) 5 ] . In borderline cases it would not he proper to solely rely oil medical
cvidnce [MA. 4jij v. Stare, (1972) 38 Cut L'! 12381.
fference Between an Expert and an Ordinary Witness.—An expert is one
wJ 7has acquired special knowledge, skill or experience in any science, art, trade or
profession. Such knowledge may have been acquired by practice, observation,
research or careful study. The differences between the testimony of an ordinary
witness and an expert are:—
(1) An expert's evidence is not confined to what actually took place but he can
give his opinion on facts, eg a medical man may give his opinion as to the cause of a
person's death or injuries or effect of a poison, on facts stated by other witnesses at
the trial, although he may not have personally attended the patient and observed
things for himself.
(2) He can speak to experiments made by him behind the back of the other
party.—Thc reason for the rule is that the court or the opposite party may
legitimately enquire into the grounds upon which an expert's opinion is based, and
the latter is entitled to give an account of experiments performed by him for the
 Opinions of experts.
Sec. 45 865

purpose of forming his opinion (s 5 I). In every case in \vlijch ()pillions of experts are
admissible, the grounds of such Opinions may he inquired into, either in chief, or as
is more usual in cross-examination; and facts and experiments, even though not
thcmsclvcs rclevani to the issue, are also receivable in corroboration Or rebuttal of the
opinion [Bi,rel/ v. Dryer, (1884) 9 App Cas
345. Halsbury, 3rd Ed Vol 15 para 590].
Thus, on a charge of arson, evidence of experiments made subsequently to the Ore is
admissible to show the manner in which the tire originated in the building
Heseltine,J 2 Cox 404]. The object is to weigh the value of the expert evidence, so [R v
as
to iaeure that it is not founded on rumour or hearsay or unsupportable grounds.
(4 He may cite text books of accredited authority in support of his Opinion and
-may refresh his memories by reference to them (see s 159).
(4)1 Ic may state facts relating to other cares hearin g similarity to the cases under
enquiry, in order to support his opinion. Evidence of such other transactions, which
are inconsistent with the opinions of experts may also he givc(sec s 46). Thus, in
Palmer 's case, several eminent doctors who were not present af the dcaU, gave their
option that Cook's death was due to strychnine poisoning although no strychnia was
Found in the stomach, as that poison acts by absorption. They gave evidence of
Ictanic contractions attending the death of three other persons poisoned by strychnia,
in order to show that the symptoms were the same in Cook's case. [For a report of
the trial of R v Palmer, see Stephen's GenI. View of thc Cr Law of En
g land, 2nd Ed
pp 23 1-72. I1/us (a) to s46 is similar to Palmer's case].

Whether a hook is obscene under s 292 PC must be judged by the Court. It does
not depend on oral Evidence of a writer or art critic [Ranjit v. 5,
A 1965 SC 88 11.
When an expert is asked to give opinion on facts admitted or proved at the trial,
but not observed by him, it is the opinion of a 'pure expert'; eg when a medical man
is asked to state his opinion as to the disposing capacity of a testator who makes a
will during all which terminates fatally. Such evidence is not of much value
when compared with the evidence of doctors who attended the patient
Bissessur, 16. CWN 265; see Monosseh v. Sliapuiji, 10 [Gop essur e
Born LIZ 1004 post]. It is
settled law that an expert may not be asked purely speculative or hypothetical
questions having no foundation in the evidence; in other words before the expert is
entitled to give evidence oil hypothesis, suflicient foundation for it must he laid
by due evidence [Govt of Bombay v. Merwanji, 10
l3om LIZ 907].
Where the accused was convicted of the murder of his cohabitee, an evidence of a
psychiatrist as to the likelihood of there having been a suicide pact was rejected. The
Psychiatrist had not treated the accused before the offence and had not treated the
victim also. His evidence was not relevant to the questions of fact. [R t Wood, 1990
Crim LR 264 CA]. It has also been held that a psychiatrist's evidence is not
admissible oil point as to how a person with air personality is likely to
react to the stresses and strains of life, if that person is not suffering from a mental
illness. [R u l½ighumna,t, (1991) 92 C
App R 291 CA].
When the defence wishes to investigate a medical abnormality and its effects upon
the mental processes of the accused, expert medical evidence is admissible. But
medical evidence is inappropriate where the court's task is objective, i.e., to
determine the intent of an ordinary man, unaffected by any medical condition,
physical or mental, permanent or temporary. [R nToner, The Daily Telegraph, Mar
11, 1991 CA].
Exceptions to the Opinion Rule. [Opinions of
Ordinar y Witnesses When
Rcccivah!e]._lt has been seen that the opinions of ordinary per te non-experts
$66 Sec. 45 Chap. I/—OJ the Re/eewcy of/acts

are irrelevant. It is one of the lundamental rules of thelaw of Evidence. The

impressions or inferences of ordinary Witresses are excluded as superfluous, because
the cowl and the jury are quite competent to draw their own conclusions when the
facts personally observed by the witnesses are narrated. There is also IOOLfl for
erroneous impressions or opinions. Moreover different persons are likely to form
different impressions from the same facts and such opinions arc bound to embarrass
the oiat. The above general rule, however, has exceptions and in certain class of
cases, opinions of ordinary witnesses are not only helpful, but they have to he
admitted out of necessity. There are things, events or circumstances which no
language can adequately describe and the best account is from the impressions or
opinions which the witnesses formed. Thus GIB-SON J, in Cornell e Green, 10 S&R
16 (Am) said:-----
"It is a good general rule that a witness is not to give his impressions, but to
state the facts from which he received them, and thus leave the jury to draw
their own conclusions; and whenever the facts can be stated, it is not to he
departed from....I take it that wherever the facts from which a witness received
an impression are too evanescent in their nature to be recollected, or are too
complicated to he separately and distinctly narrated, his impressions from these
facts become evidence."
The rule is thus stated by FOSTER CJ, in another American case (Hardy i Merrill,
56 NI1241):—
"The ground upon which opinions are admitted in such cases is, that from
the very nature of the subject in issue, it cannot he stated or described in such
language as will enable persons, not eye-witnesses, to form an accurate
judgment in regard to it. flow can a witness describe the weight of a horse? or
his strength? or his value? Will any description of the wrinkles of the face, the
color of the hair, the tones of the voice, or the elasticity of step, convey to a jury
any very accurate impression as to the age of the person described? And so,
also, in the investigation of mental and psychological condition....—the opinion
of the observer is admissible from the necessity of the case; and witnesses are
permitted to say of a person, 'lIe seemed to be frightened'; he was greatly
excited'; 'he.was much confused'; 'he was agitated'; 'he was pleased'; 'he was
angry" [cited Wigs 1918].
The opinions of non-experts may accordingly be received as to,—the disnosiiin'
or temper of animals 1Matticqr v. S, 55 Ala 224, Sydieman v. Beckwith, 43 Conn 9];
matters of colour, weight, light, darkness, the state of the weather, and simiiar facts
[Bass Furnace Co v. Glasscock, 82 Ala 452; Gallatin 'o Corning icr Co, 163 Cal
405; Critanot'itclz o Bomherg, 169 Iowa, 736]; measurement [Gardner v. Metro St R
C, 223 Mo 389]; the state of feeling existing between persons [Tobin r', Show, 45 Mc
3311; the appearance of individuals [Robinson v. Exempt Fire Co, 103 Cal I]; the age
of persons [Bell e Bearinan, 37 Oki 645]; a person was intoxicated [Harbison c
Lemon, 23 An Dec 376]; looked as though he had slept IS si Marceaux, 50 La Ann
11371; that parties on a bed seemed to have sexual intercourse [Bizer v. Bizer, 110
Iowa, 248 ]; that a man and woman were intimate IS v. March, 40 Ad 836]; that
defendant seemed sincere in making confession [horn v. S, 73 Pac 705]. In the
following instances, the evidence was excluded that a woman was in a delicate
condition IS v. Reinheimer, 109 Iowa, 6241; that his conduct seemed natural and
genuine [People i-i Smith, 172 NY 210]; that he treated her very affectionately [State
v. Brown, 86 Iowa, 121]; that a person Was shamming [Cole v. Lake Shore &ç, Ry
Co, 95 Mich 77]; that plaintiff was at the time of the accident in possession f his
Opinions of experts. Sec. 45 t67

faculties [Cragg u. Los Angeles Thst Co, 154 Cal 663—cited Jones, 3rd Ed pp
53 where a lar g e number of cases tuis been collected],
iii certain cases a witness is allowed to state his opinion, where it is scarcely
possible to do more than draw inferences of fact from appearances or surrounding
circumstances. Thus the opinions of ordinary witnesses are sometimes received on
questions of age. Where the Opinion or belief of a witness is, or becomes, relevant to
Ilte issue before the court as cvidencing his good faith or the state of his mind, he
may give evidence thereof [Mansell o Ciemeiits, 1874 LR 9 CP 139]; but his
evidence as to his own sanity is not always received, nor may he testify as to the
sanity of another, unless he speaks only to matters of fact such as conduct, or is a
witness expert on this subject. Similarly, a witness may he allowed to state his
opinion as to the affection existing between one person and another [ThIs, 3rd Ed,
Vol 15,para5961.
Witnesses may state that their belief as 10 the identity of persons, whether
present in Court or not; and they may also identif y absent persons by photographs
produced and proved by any competent testimony, not necessarily, of course, that
of the photographer, to he accurate likenesses [R v. To/son, 4 F&F 103; ilindson e
As/th y, 1896, 2 Ch 1, 21-22, 27; Phip 11th Ed p 526; Hals, 3rd Ed, Vol 15, para
592].
By the great wei g ht of authority, the opinions of ordinary witnesses are received
oil question of the sanity or insanity of an individual, on the obvious ground that
it is often impossible for witnesses in such eases adequately to describe to the court
or jury the actions, looks, or symptoms which properly constitute the basis for
determining the question [Cairn Mat Life fits Co i Lathrop, Ill US 612 and ether
cases cited Jones, s 364]. The opinions of non-professional witnesses, however, are
not admissible in such cases, unless such opinions are based upon their own
knowled g e and observation of person's appearance, and it is generally held that
before giving an opinion the witness must state the facts and circumstances oil
his opinion is based [Atwood e Atwood, 84 Conn 169 and cases in Jones, s 365].
Opinion as to sanity and opinion as to general testamentary or criminal capacity are
entirely distinct. The latter sort of opinion is admissible (when it is) because a
question of law may be involved, and witnesses' conclusions are not needed on such
points lWig s 1937].

The circumstances under which opinions of ordinary witnesses are received are
well stated in an American case thus'.—
"Court and text-writers all agree that upon question of science and skill,
opinions may be received from persons specially instructed by study and
experience in the particular art or mystery to which tbc investigation relates.
But without reference to any recognized rule or principle, all concede the
admissibility of the opinions of non-professional men upon a great variety of
unscientific questions arising every clay iii every judicial inquiry. These are
questions of identity, handwriting, quantity, value, weight, measure, time,
distance, velocity, form, size, age, strength, heat, cold, sickness and health,
questions also concerning various menial and moral aspects of humanity, such
as disposition and temper, anger, fear, excitement, intoxication, veracity,
general character and particular phases of character, and other ,conditions and
things, both moral and physical, too numerous to mention ...........Opinions of
witnesses derived from observation are admissible in evidence when, from the
nature of lie subject under investigation, no better evidence can be obtained"
[1-Jardy v. Merrill, 56 NH 227 cited Jones, s 366].
 868 Sec. 45 ('luip. Ii Of flit , Re/eva/icy of lids

As to the udritissibility ol opinions uI non-pi'olessiniial Wi(UCSSCS, see Rogers, 2nd

Ed, pp 9-13.
\'/lien Expert Lv.de!ice is to be Admitted, ["Science or Art" to he
Construed \Videlyl.—Under this Section expert cvideiice is adiiiiSsii)le when
the COurt has to lorm an opinion upon a point ot forcigaw, or of , Science or art
or as to identity of handwriting or finger impressionCjt will be seen that this
section speaks of expert evidence on matters of' ''sciedie or art'', and does not
specifically mention "trade" or "skill''. The word "science" is a broad term and
it is not always easy to determine what is or not a subject of scientific inquiry.
The English and American authorities on the subject, show that the tendency is
10 widen the scope of the term "science or art" its much as possible. The
decisions show hat expert evidence has frequçntly been admitted on matters not
Of pure science or higher science or pure ar
VTherc is no reason to suppose that
the Legislature intended to make a dcpufturc from the English law on the
subject. In English and American text-hooks the words used are ''science, art
arid trade" or "skill" and under this phrase is included the knowledge, evidence
or skill of medical men, engineers, artists, surveyors, valuers, accountants,
engravers, naturalists, mechanics, artisans, masons, blacksmiths, shopkeepers,
farmers, railroadmcn, etc. It is thereforc submitted that the words "science or
art" in this section are to be widely construed. The words"skill" has however
been used in de fining the term "expert" and this may he taken to include skill in
trade or any business or employment. In short the phrase "science or art" is not
to be constructed in a narrow sense. All subjects in which peculiar skill and
Jud g ment or experience or special study is necessary to the formation of an
opinion, come with the tern. In Hals, 3rd Ed Vol 15 para 587 it is stated: "Under
this head are included matters of science, art and trade."
For meaning of the word "Science" see also "t'pcvriting Specimens" infra.
The words 'Science or art' include all subjects on which a course of special study
or experience is necessary to the formation of an opinion (Stepli Dig Art 49) and it is
not necessary "that a speciality to enable one of its practitioners to he examined as an
expert, should involve abstruse scientific conditions" IStory r: Maclay, 3 Mon (Ky)
480, 483]. "Art, in its legal si g nificance, embraces every operation of human
inlclhigence, whereby something is produced outside of nature; and the term
'science' includes all human knowled g e which has been generalized and s
y stem-
atii.ed, and has obtained method, relations and the forms of law" rper D1v1s, J, in
Air/rican r'r RI? Cr? p 1/ .c I S CI () F ('1iinisIdol tIi w it
I rin,
pi y be ! ',
ai'
that the opinions of experts are limited to matters science, art or skill, yet this
limitation is not applied in any rigid or narrow sense [Clifford e Richardson, 18 Vt
620, 627]. As PtGOT C13, said [in I Jr R, Corn 1, 211, 218] "the subjects to which this
kind of evidence is applicable, are not confined to classified and specified
professions. It is applicable wherever peculiar skill and judgment applied to a
Particular subject, are required to explain results, or trace them to their causes"
[Rogers, 2nd Ed, s 7, p 25].

In order to make things clearer it would be better if the words "or of science or
art" in s 45 arc substituted by the words "or of science, art, skill or trade or others of
like kind" by amending the section so that expert opinion on many Matters oil
the court requires special help may not be excluded.

"On questions of science or skill, or relating to some art or trade, persons

instructed herein by study or experience may give their opinions; such persons arc
called experts. Every business or employment which has a particular class devotcd to
Opinions
ions of experts. Sec. 45 869

its pursuit is an 'art' or 'trade''' l awson's Expert and Opinion Evidence]. '1a intro-
dUCe expert evidence it is not sufficient that the witness niav know more of and
may better understand the subject of 10(1 0 iry, but the subject of inquiry must relate
to some science, art, pUOICSS1OII or trade in which persons instructed therein by
study and experience may he supposed to have more skill and knowled g e than
other persons (97 NY 5i I). The words ''science or art" are to be coil striicled
widely lSidik i: R, A 1942 S 11; Mahadeo n Vyankanimahai, A 1948 N 2871. The
test to he applied by the Judge in deciding whether expert opinion should he given
is whether the point to be decided involved special acquaintance with particular
subject, or whether it is a mere question of legal or moral obligation about which
one person is as good a judge as another. A professional man in a matter not
studied by him as a speciality, is regarded as an ordinary observer [S/ieo Th/ial i'.
4rjun, 56 IC 879: 1 PLT 136].
The Supreme Court of New Hampstead has classified the cases under three heads,
and declares that the experts may give their opinions:
1. Upon questions of science, skill or trade, or others of like kind.
2. When the subject-matter of inquiry is such, that inexperienced persons are
unlikely to prove capable of forming a correct jud g ment upon it, without such
assistance,
3. When the subject-matter of investigation so far partakes of the nature of a
science, as to require a course of previous habit or study, in order to the attainment of
a knowledge of it hones v. Tucker, 41 NI-I 546, cited in Rogers, s62nd Ed p 22].
It is difficult to state exactly what particular matters or topics come within the
subject of expert testimony. The most comprehensive and accurate rule appears to
have been stated in Muldoii'ney v, Illinois C R R Co.. 36 Iowa, 472 (cited in Ropers,
2nd Ed p 22) thus:—

"The opinion of witnesses possessing peculiar skill is admissible whenever

the subject-matter of inquiry is such, that inexperienced persons are not likely to
prove capable of forming a correct judgment upon it, without such assistance; in
other words, when it so far partakes of the nature of science, as to require a
course of previous habit or study in order to the attainment of a knowledge of it,
and that the opinions of witnesses cannot he received when the inquiry is into a
subject-matter, the nature of which is not such as to require any particular habits
of study in order to qualify a man to understand it. If the relations of facts and
their probable results can he determined without especial skill or study, the facts
themselves must, be given in evidence, and the conclusions or inferences must
he drawn by the jury."
The same statement of law is contained in Tay ss 1418, 1419. As to
instances, see s 1417.
In reference to the identification of voice it has been held that if given by a
properly qualified expert, evidence of voice identification is admissible, even if the
resulting opinion was based on a view held by a minority of the relevant profession
[R i: Robb, The Times, Feb 6, 1991 CA].
Medical men are constantly allowed to give their opinions on such medical
questions as to the causes of disease and death, the effect of poisons, the nature of
wounds, the conditions of gestations [Gordncr Peet-age, Le Merchants' Report, 169-
76]; the proper treatment of complaints, the effect of hospitals upon the healthy
conditions of neighbourhood [Metro Asylum D v. liii!, 47 LT 29; Au-Gen u Nouin-
 $70 Sec. 45 Chap, 11--Of 'he Re/c cancy of Iaci.v

I
'Ita,ii Coij,, 904, I Ch 073 and upon the sanity or conditions of mind of persons [P
M'Nai,'hten, 10 CI .&F 200 post], etc.

The evidence ol commercial and professional men is frequently allowed on

flatters with which they arc peculiarly acquainted. Thus a stockbroker has been
allowed to give evidence as to the. course of business of bankers Adwus 1. peters, 2
Car&K 7231; a grocer's assistant as to the cause of losses in the grocery trade
[M'Facic/en o Murdock, 15 \VR 1079]; ship-owners and merchants, as to the meaning
of words in charter-parfics [Robei-ison o Jackson, 1 5 U CP 28]: an architect as to
depreciation of property by nuisance [Gauntlet n Whito'ort/i, 2 Car&K 720]: an
engineer as to the cause of the choking of a harbour [Polkes a CJwdd, 3 Doug 157].
or strength and construction of vessels [The Robin, 1892 P 95]: as assurance broker
as to the proper method of drawing a policy [Chapman a Walton, 10 Bing 57]; an
accountant as to the manner in which company should deal with depreciation and
profits [Ronci v. Barrow H Steel Co, 1902, 1 Ch 3531; businessmen, experienced in
steel and iron companies, on the same question; underwriters as to the materiality of
facts in marine insurance [Richards a Murdock, 10 13&C 527; but see Carter a
Boehm, I Sm LC 4911; a person experienced in the business of Ii 'c insurance as to
the average duration of lives and the value of annuities [Rowley i London & N W Rl.
Co, LR 8 Ex 2211, an engineer as to the effect of a personal injury ' on the fitness. for
duty on an engineer [Johnstone i'. G W Rly Cu, 1904, 2 KB 250]; a builder as to the
safe construction of a staircase [Crofter v. Metro Pl y Co., LR I Cl--' 300]; a surveyor
as to the value of an estate [Alt-Ge,il a Cross, 3 Mer 524]: or as to the amount of
money necessary to put a house into proper state of repair; a farm valuer, as to the
value of crops, stacks, ricks, etc; an expert in forestry, as to the object with which
trees had been planted [Weld-Blundeel a Wolseley, 1903, 2 Ch 6641; artists as to the
genuineness of pictures or other works of art ['Whistler a Ruskin, Times, Nov 26th
and 27th 1878; Belt v. Laii'es, Times, Dec 1201 and 16th 1882]; nauticaL men and
Brethren of Trinity house as to whether the obstruction to a harbour was caused by a
neighbouring sea wall (Folkes a Char/(l, ante); militar y officers, as to military
practice [Bradley a Arthur, 4 B&C 295-311]; antiquaries as to ancient handwriting
[Tracy Peerage Case, 10 Cl&F 154, 1911 and post-office clerks ]Abbey a Lill, 5 Bing
299 ], and even persons in the habit of receiving letters [Woodcock a Houldsir'orth, 16
M&W 124], as to post-marks [Powell, 10th Ed, pp 41-43; for other instances, see
Tay S 1417; Phil); 8th Ed p 381]. A haulage contractor who owns several lorries and
fits a larg e quantity of tyres is an expert on the quality, use and usage of tyres [Globe
Co a Master, 157 IC 12 1 . The study of customs and manners of tribes and cas te &e
nay come within scmencc or art" [Mahadeo v. Vyankamrnabai, A 1948 N 2871. The
question as to whether the paper on which a document is written has been torn out
from a copy is an expert opinion. In order to establish the identity of the papers, the
colour, the thickness, finish or surface, watermark, wove or laid style, cutting, size,
ruling, fluorescence have to be looked into. In a given case only some of the things
may enable the expert to give an opinion ]Parag a State of Rajasthan, 1981 Cri Li
12Ø,4, 1253, 1254 : (1981) Raj LW 370].
(Persons who are goldsmiths by profession are able to find out whether a piece of
m^al is gold or not by the colour of the streak produced by rubbing ii on a
touchstone used by thni even though their assessment of its parity may not be exact.
It may not be a scientific way of proving that the metallic bars were gold bars. [Asst
Co/Ir of Central Excise, Ca/jew v. V P Sayed Moha,necl, A 1983 SC'l 68, 17 I : 1983
Cri LH 225 (SC)]. The deceased, the executor of a Will, was (leaf and dumb and he
conveyed his wishes and intention through signs and gestures which were ascertained
with the help of the Principal of the School for Deaf and Dumb. The evidence of the
Opinwn.v o,fexierts, Sec. 45 871

Principal of School for Deal' and l)unib is admissible as expert evidence when he has
given testimony in the form of quest ions and answers. [Kri.clian Sing/i c. is'ultho;tor
Singh, A 1983 Pun 373, 3761.
The technical adviser, Food Corporation of India, gave an Opinion in food
adulteration case in rcspecl of inaida, as follows. It is possible that it' eggs were
present, they could develop into white living insects in two days time. If this expert
evidence is to be rejected on the basis of any passage in a hook, the particular
passage should be put to the expert (luring the cross-examination and he should he
asked to explain the same [Krishnan Lal i 41. CD., 1985 Cri U 285, 291: 1984
Chund Cri C. (HC) 531 (De[)].
Subject On Which Expert Evidence Ma y Not Be Admitted.—The rule is well
established that the opinion of experts cannot be received in evidence in cases where
the suhjccniittcr of inquiry is such that it may be presumed to lie within the
commoneducation, moving in tilC ordinary walks of life [New En' Glass Co r:
Lovel4i Cush 319 and many cases cited in Rogers, 2nd Ed s 8], or which does not
requic any peculiar habits or course of study in order to qualify a man to understand
it. Tinis, evidence is inadmissible to prove that one name LNorrh C&M Brewery Co i:
l3reicc,-y Co. 1899 AC 831, or one trademark jBourne n Swan & E dgar, 19, 03 I Ch
11 so resembles another as to he calculated to deceive. To put it briefly, a witness
ma y not, on other than scientific subjects be asked to state his opinion upon it
question of fact which is the very issue- for the jury, as, for instance, whether a drive
is careful; a road dangerous; or an assault for homicide justifiable (Tay s 1419
quoting Greenleaf, s 441 )(ixperts will not he allowed to give their opinions UOfl the
constfuction of clocumc.nts for this, being a matter of law, is a question solel y for the
C01 1111 Grove u. Biilauavo, The Times 30th March 18981; nor upon matters of legal or
moral obligation, nor upon what would probably have happened had the parties acted
in one way rather than another, or as to the probable cause of an injury which
occurred to cattle while in railwa y truck [Hils 3rd Ed Vol 15 para 58$; Phip 11th Ed
p 5171. Experts may explain local or technical terms in a particular trade or
profession, hut not technical legal terms (see s 98).
In the early da y s of British rule there were "expert advisers" (muftis, maulvis,
pandits &c) on questions of Hindu or Mahomedan law. But expert opinion in such
questions are not now admissible [Alas,/id Sa/udganj n Gurudwar, 67 IA 25 1 : 44
CWN 657 : 1940 J.ah 49: A 1940 PC 116; sec Apiarnat/i v. /t, A 1948 U 126; Sabitri
'i: Savi, 12 P 3591. Evidence of person calling himself an expert in matter of
cantonment land is not admissible [Raindas ': Sec'y of 5, A 1930 A 587]. Where the
opinion of expert is based on reports of facts, those facts, unless within the ex]-jert's
own knowled g e, must he proved independently [Pacific Tin Consolidated Corpii. u
Iloo,z Wee T/iini, (1967) 2 Malayan Li 35 (Kuala Lumpur FC)].
Expert opinion by way of' opinion of hLlsincssman is not admissible on the ques-
tion as to whether a mark, or a combination of marks, resembles that on other goods
and is likely to deceive purchasers, the reason being that that is the very question
which the court would have to decide [Macdonald & Co v. ho/land & Moss, 41 IC
539: 10 SLR 175; see Swadeslu Mills Ltd v Juggi Loll, 49 A 92 : 23 ALl 9751.
"It is only where the matter inquired of lies within the range of the peculiar skill
and experience of the witness, and is one of which the ordinary knowledge and
experience of mankind does not enable them to see what inferences should he drawn
from the facts, that the witness may supply opinion as their gLiide" [Kenned y v
People, 39 NY 245], So that the testimony of experts is inadmissible ii1 regard to
matters Upon which one individual can form a judgment as well as another, both-
 872 Sec. 45 (ha1, if 0/the Re/ei'u, 0 . o/htit
haviiie equal knowledge of lie circun1s1ance
60, 61 cited in Rogcrs, 18U Ed p 1 31. Thus, hart IJiu/.vn P B Co , St NY 56,
it
possihilit\' of a rape having been cornniittcd in physician could not test I as to the
i particular manner described [ly the
proSceutrix, as it Was a qLteSiiort of iiiere relative stren
'shich an athlete or it could have answered gas th or mechanical posihility.
well aS a ph y sician and
every man upon the july as well as Cher ICOOk 1'. s, 24 N j
of what is the proximate cause of an injury is not a questionI.aw $431. The question
of science, or of legal
knowledge, but is a fact to he determined by a jury from surrounding circumstances
[Mi/anke &c I? P Co v Kelog, 94 US 469]. Detectives
could not he asked as to
whether it was possible to comtnit it robbery in the Itlanner charged
Mon igan, 20 Mich 1 1. Whether a street-crossing I3copIe i.
is unsafe or dangerous is not it
question of science 01 skill, upon which it is Proper
to receive the Opinion of witness
[Ci!)' of Parsons n Lindsay, 26 Kati 426, 432].
What are the chances of a man falling
out of a window on the fourth floor of a house is not
[Rafa,ti/thaj c New India Ass Co, A 1 956 B 633).a In question for it medical expert
a claim under Worknien's
C ompensation Act, the loss of earning capacity is not a
Kalidas o Moiidal, A 1957 C 6601, but matter for medical opinion
medical evidence a to physical capacity is
an important factor in the assessment of loss of earning capacity
Commerce I ,. Md f/ossajn
[Bengal Chamber o/
A 1969 C 378 (Kal idas v Mondal, sup folldfl. As to other
instances sec Rogers, 2nd Ed ss 8-13.
It is extremely difficult to determine always whether the facts are, as SHAW, CJ,
said in New England Glass Co v. Loce//, ante,
'of such a nature that it may be
Presumed to be within the common experience of all
men of common cdueation
moving in the ordinary walks of life." Hence the difficulty of ascertaining in man y
eases whether expert evidence is or is not admissible. Wigmore says that "the only
true criterion is: On this subject can a jury from this pc/s
I other words, the test is
Ill on receive appreciable help'
relative one, depending on the particu fat subject and the
Particular witness with reference to that srtbjec(, and is not fixed or limited to any
class of persons acting professionally" (Wig s 1923)].
"Exprts".__This term has been broadly
sk illcd."Rogcts defines all in any science, defined in the Act-as "person specially
art or trade, as one who, by
praclice nd observation has become experienced therein.) "Tile term 'expert' Seems
to imply
both superior knowledge and practical experience in the art or profession;
but generally nothing
[hall more is required to entitle one to give testimony as all
lie has been educated in particular
art or profession" IGreenleaf Ev s 4401.
MAULE, J, sa y s: "All ncrs^) ns I ;iii, who practise
requires them to possess a certain knowledge
a business or profession which
of the matter in hand are experts, so far
as expertness is concerned," [ Vander Donckt t', The/h,son,
8 CB 812].
AMES, CJ, of Rhode Island says: "Knowledge of any kind, gained for and in the
course of one's business as pertaitiing thereto, is precisely that which entitles one to
he considered all so as to render his opinion founded o il
admissible in evidence" [Biftucii v. Harris, 5 RI knowledge,
250- -Rogers, 2nd Ed p 3].
One who has studied a subject carefull y falls within the definition, though lie has
never practised it (Tay s 1416 in
citing GrecnleaO. The witness must have made a
special study of the subject or acquired a special experience therein 4U S Shipping
Board v Si. Albans, A 1931 PC 189
1 . The assistant mint master of Calcutta is an
expert witness and may be examined on commission [Mt Gil/i is R,
A'1925 0 616
88 IC 848). A person in his capacity as Commissioner and Adniitiistrator of the
Municipality gaining knowledge pertaining to the value of land in different parts of
the city and house properties is entitled to be considered an expert on such matters
 Opinions of experts. Sec. 45 87

[Coil,; Jabalpur t: Ahiiiit'd, A 1971 MP 321. Knowledge on any particular subject

need not he acquired professionally. It is for the court to decide whether a witness
has sufficient knowled ge or expertise to qualify as an expert [Conunercial Union
Assurance Co, c Lee Sieiv Khuan, (1992) 2 Malayan U 541 (Singapore HC)J. An
Excise Inspector who had put in 21 years service as such and had tested lacs of
samples of liquor could be treated as all [Srichand v. 5, A 1974 SC 639]. See
ante: ''When Expert Evidence is To be Admitted."
Where the productivity of all orchard was to he assessed and the District
Horticulture Officer was produced as an expert witness, the court said that he could
not he regarded as an expert because he had no scientific study or research in
assessing the productivity of an apple crop. Such person must be skilled and should
have adequate knowledge of the subject. The court explained the principles of
judging the credibility of the evidence of an expert. State of H.P. c Jai lxii, AIR 1999
SC 3318 : (1999)7 SCC 280.
Expert witness—Duty of Court.—The Court has to be vigilant when witnesses,
particularly expert witnesses, are in Court and where the prosecutor fails to put relevant
questions the answers to which will help the Court to come to a correct conclusion in
regard to the matters relevant to the enquiry, the Court has a duty to see that the
particulars are elicited. Where the prosecutor, either on account of ignorance or
otherwise fails to put relevant questions to all witness, the trial Judge has the
duty and right to put such questions to the witness, not with a view to help one side or
the other, but merely to help the Court in arriving at a correct conclusion in regard to
matters in dispute oil medical aspects of the case. The Sessions Judge has also the
duty to ensure that the doctor, who conducted post-mortem examination is shown the
weapon if it is available, or where it is not available, the description of the weapon is
Put to him and is asked whether such weapon could or could not cause any o' the
injuries. Where the prosecutor fails to discharge his duty adequately the trial Judge has
also the duty to elicit from the medical witness the nature and gravity of the injuries
sustained, for without such data it may he often difficult for the Court to come to a
conclusion [Kabiraj Tudu v. Stare of Assam, 1994 Cri U 432,437, 438 (Gau)].
In Kartarey v State of UP., A 1976 SC 76 : 1976 Cri Li 13, the Supreme Court
observed at page 18 of Cri Li:
"We take this opportunity of emphasising the importance of eliciting the
opinion of the medical witness, who had examined the injuries of the victim, more
specifically on this point, for the proper administration of justice, particularly in a
case where injuries found are forensically of the same species, e.g., stab wounds,
and the problem before the Court is whether all or any of those injuries could be
caused with one or more than one weapon. It is the duty of the prosecution, and no
less of the Court, to see that the alleg ed weapon of the offence, if available, is
shown to the medical witness and his opinion invited as to whether all or any of
the injuries on the victim could be caused with that weapon. Failure to do so may
sometimes, cause aberration in the course or justice."
The above observations have been quoted with approval in a later decision of the
Supreme Court in Ishwar Singh v State of UP, A 1976 SC 2423 : 1976 Cri Li 1883.
The Supreme Court in Ram C/iander t State of Hwyana, A 1981 SC 1036 : 1981
Cri U 609 quoted with approval the following observations of LORD JUSTICE
DENts'ING in bites v. National Coal Board, (1957) All ER 155:
"The Judge's part in all this is to hearken to the evidence, only himself
asking questions to witnesses when it is necessary to clear up any point that has
been overlooked or left obscure; to see that the advocate behave themselves
seemly and keep to the rules laid down by law; to exclude irrelevancies and
discourage repetition; to make sure by wise intervention thai he follows the
points that the advocates are making and can assess their worth; and at the end
to make up his mind where the truth lies."
874 Sec. 45 Chap. Il—Oft/u' Re/eIaiICV of Facts

Relying on these observations the Supreme Court in Rain C1 W/UIL'f case stated at
page 609 of Cri U:
"The adversary system of trial being what it is there is an unfortunate
tendency for a judge presiding over it to assume the role of it referee or an
umpire and to allow the trial to develop into a contest between the prosecution
and the defence with the inevitable distortions flowing from combative and
competitive elements entering the trial procedure. 11 a Criminal Court is to be an
effective instrument in dispensing justice, the presiding judge Joust cease to he a
spectator and a more recording machine. lie must become it in the
trial by evincing intelligent active interest by putting questions to witnesses in
order to ascertain the truth."
After referring to Ss. 165 and 172(2) of the Criminal Procedure Code the Supreme
Court observed (at page 610 of Cri U):
'With such wide powers the Court must actively participate in the trial to
elicit the truth and to protect the weak and the innocent. Ii must, of course, not
assume the role of a prosecutor in putting question".
The Court proceeded to observe further (at page 610 of Cri U):
"We may go further than Lord Donning and say that it is the duly of a judge
to discover the truth and for that purpose he may ask any question, in any form,
at any time, of any witness or of the parties, ahout any fact, relevant or
irrelevant (s. 165 Evidence Act). But this he must do, without unduly tres-
passing upon the functions of public prosecutor and the defence counsel without
any hint of partisanship and without appearing to frighten or bully witnesses. He
must take the prosecution and the defence with him. The court, the prosecution
and defence must work as a team whose goal is justice, a tttm 'hose captain is
the judge.
In case of large scale corruption by employees of Irrigation department in
connection with jungle clearance work, an officer of the department, who was
entrusted to assist the investigation, having regard to his special knowledge with
regard to the entrustmént of jungle clearance work, call said to be an 'expert' by
virtue of his special knowledge, though in the strict sense of the term the may not he
so [MS. Reddy v. State Inspector of Police, ACR, 1993 Cri LJ 558 (AP)]. It cannot
be laid down as a rule of universal application that a witness having departmental
experience cannot stale tht the liquid seised illicitly distilled li quor. It would all
depend upon the facts of a particular case. In fact in Suma Deis a State of Orissa,
(1993) 6 OCR 612, it had been observed that from the small and test a liquid call
held to he illicitly distilled liquor. An officer who has acquired sufficient experience
as an official of' the Excise Department can in a given case tender evidence in that
regard llluding Singh a State, 1995 Cri LJ 1128, 1130 (On)].
Expert advising both sides.—A handwriting expert, oil approached by
the plaintiff o i l authenticity of a document, advised him that the document
was not genuine. In discussin g his fee for the advice, the expert stated that it was
a rule with him not to give advice to both sides in an action. uhscquently the
defendant also approached him for advice on the same document and fogetting
the earlier advice to the plaintiff, he advised the defendant also that the
document was not genuine. On realising that lie had advised both sides he told
the defendants that he would accept no further instructions from them. The
defendants summoned him. The plaintiffs objected The judge ruled that the
expert was compellable witness and ought to give evidence as to his opinion on
Opinions (i/experts. Sec. 45 875

the clocumeiit. It was held by the Court of Appeal that the court was entitled to
conipcl an expert witness to give evidence both of the facts he had observed and
of his opinion oil facts, subject only to any claim to legal professional
privilege by the expert in respect of communications between him anti a party's
lawyers. Accordingly, on principle the court was entitled to have before it the
document in question and the expert's opinion oil and the defendants were
therefore entitled to summon him. The expert's statement to the plaintiff thaL it
was his practice when consulted b y one side in a case not to assist the other side,
did not amount to an express contract to that effect. Nor the plaintiff had
established that it was art implied term of the contract that on advice to them the
expert would not assist the defendant. Even otherwise, a contract by which a
witness binds himself not to give evidence before the court oil matter oil
thejudge could compel him to give evidence is contrary to public policy and
unenforceable [harmony Shipping Co S/1 v Davis, (1979) 3 All ER 177 CA].
The medical experts should come to the court to assist the court in coming to
correct conclusion. They should not come to help the party which calls them
[Shaik A/mind r. State of.4.P, 1996 Cri U 2582, 2585 (AP)].
Expert—Witness of All.—There is no reason why a scientific witness should not
he a witness of one or more or all of the parties to a suit. To a professional man it
matters not which party calls him [Lila o Bejov, 41 CLJ 300 : 87 IC 534]. Party can
examine a private expert on his own behalf without appointment by court [Dhuri Sat
i. Kishun, A 1965 P 29].
Competenc y of ExperL—\Vhen calling expert evidence, the prosecution must
first csiahiish the expertise of the witness [Public Prosecutor o Lin Lian Chan.
(1991) 1 Malayan U 316 (Kuala Lumpur HC)]. It is the duty of the judge to
decide whether the skill of any person in the matter oil evidence of his
opinion is offered is sufficient to entitle him to be considered art it is the
judge who is to decide the question of competency or fitness [Bristow v.
Secquecille, 19 U Ex 289; R ii. Silverlock, 1884, 2 QB 766: see S/teo Ta/ia! o
.4Jim, 56 IC 879 ante. [Ba/krishna Dos Agarwal v. Suit. Radha Devi, A 1989 All
133, 141 (DB)]. An expert, in order to he competent as a witness, need not have
acquired his knowled g e professionally; it is sufficient, so far as the admissibility of
the evidence goes,iflie has made a special study of the subject, or acquired a
special experience therein [R i. Silver-lock, sup]. Thus, hospital students, dressers,
and unqualified practitioners may be permitted to testify as medical experts; and
accountants who are conversant with the business of life insurance as actuaries. So
foreign law has frequently been proved by witnesses who, though not professional
lawyers, followed some occupation which gave them experience of the law in
question [Hals 3rd Ed Vol 15 para 589].
In Baldei' v. Urmnila, A 1979 SC 879 evidence, about pregnancy of wife at the time
of marriage, of woman assistant surgeon who had not specialised in gynaecology but
whose knowledge of midwifery as an obsieterician was proved to be of high order in
the case itself was accepted. "The opinion of scientilic men upon proven facts may
he given by men of science within their own science" [LORD MANSFIELD in Polkes o
Chadd, ante]. "The question is—is he peritus: is he skilled, has he adequate
knowledge? [Lotu) RuSSEtI in R u. Silverlock, ante; approved in U S Shipping Pd u
"Si Albans", A 1931 PC 189]. Unless the evidence of the chemist is so inherently
incredible that no reasonable person can believe it to be true, such evidence should
he accepted as prima facie evidence [Public Prosecutor v. Loin San, (1991) 3
Malayan IJ 426 (SC Malaysia)].
 876 Sec. 45 ('hop. 11 Of i/ic Re/c ewic' of/this

Complaint has been made that in England not only physicians, surgeons and
apothcetries, beyond whom it should not be cxtcnded but hospitii I dressen-s, students
and quacks havc been permitted to act as medical witness. But must the judge, before
receiving the testimony of ' a man, institute it enquiry as to whether he
conies within the definition of a "quack--one of the most uneerHn words in the
language and the correctness of the application ol which to particular individuals
must ever, to a certain extent, he a matter of opinion. Besides, it would he at variance
with the free--spirit of our laws to place the lives and liberties Of all persons accused
of offences in the hands of a privileged class, by prohibiting them from availing
themselves of the testimony of others who have studied and practised the subject in
queslion I Best, 11th Ed s 5 16].

A person riced not always he a professional expert. Thus the evidence of a solicitor
who had given study and attention to handwritin g and 'had on several occasions
professionally compared evidence in handwriting'' was admitted [R e Silrerloc/
sup] An expert need not he qualified professionall y to he accepted as all
[Commercial Union As.riirwice Co. 'c Lee Sieir KIwaji, (1992) 2 Malayan I .J 541
(Singapore I-IC)j. Defendant's solicitor qualified himself as all by carefully
studying every letter of the disputed will for 128 hours and eventually succeeded in
satisfying the judge thai the will was a forgery Dthib/iai u Suondeiji, 31 13 430
post].

As expressed by MR JUSTICE DOE, the rule is as follows:

"When a witness is offered as all three questions necessarily arise: (I)
Is
all the subject concerning which he is to testify, one upon which the opinion of
can he received? (2) What are the qualifications necessary to entitle a
witness to testify as all (3) Has the witness those qualifications? The
first two questions are matters of' law: the third is a inal cr of fact " [Rogers
Expert Test irnony s 17, 1883 Ed p 25].

An expert's testimony is not admissible without asking any question as to

what claims he has to the character of an expert. The law requires that there
should at least be a profession of special qualifications on the part of a person
who comes forward to depose to matters lying beyond common knowledge
[Row/er v. L&N WR Iv Co, LR 8 Ex 221] though he need not in every case he a
professional expert lper WEST, J, in Ti,iiaiiravda v. Raiigaugar'da, Re g ular App
No 24 of 1877 printed in the note to 11c li -i i'. Mono, 11 B 89. 10]
Law dnec nmi permit any a;uai 1,Liojj witnout evidence on material point of
Competence of the expert [Rajkis/rore v. 5, A 1969 C 3211. A constable claiming
to he expert in testing liquor but no evidence about nature of training and
qualification—such evidence is neither legal nor sri fficient IS v. Madhiiikar. !\
196713 611.
In America, for the purpose of determining the competency of the witness, a
Preliminary examination takes place, in which the witness may he asked to state his
acquaintance with the subject-matter in reference to which his Opinion is desired, and
what he has done to qualify himself as all in that partictilr department of
inquiry. The court is also at liberty to examine other witnesses as to whether he is
qualified to draw correct conclusions upon questions relating to thebscience or trade
in relation to which he is to he examined Rogers Expert Testimony,
,2nd Ed s 171. In
France experts are officially delegated by the court to inquire into facts and report
"poll and they stand o il much higher footin g than either ordinary or seicnti lie
m
witnesses aong u.s [Best, I I Ill Ed s 5 IS].
 (.)jnnwn.v OtCVpcli.r. Sec. 45 877

Alter a witness has been admitted to testily as an expert, evidence cannot be given
of the opinion of other experts in the mine science, that the witness is qualified to
draw correct Conclusions on the science oil which he has been examined. If that were
allowed, another witness might then he called to give, his opinion as to tile Capacity of
him just examined to form a correct opinion()" the dcgree of weight which was due
to the testimony of' the first, and so on [Rogers, 2nd Ed p 85]. Evidence of one expert
as to the qualifications of another cannot he called corroborative evidence (see ss
156, 157). Cf also s 153 w]irh exciudes evidence to contradict answers which is
relevant only in SO far as it tends to shake the credit, of' a witness by injuring his
character, if competency and credit are considered to be the same thing, counter
evidence of one expert as to the qualification of another expert is excluded. S 155
says that the credit of a witness may be impeached by the evidence of persons who
testify that they, from their knowledge of the witness believe him to be unworthy of
credit, but this refers to evidence reflecting on the witness' character for veracity, Ic
general reputation for untruthfulness. It has been however, held competent in
America for one expert to testify as to tile skill of another, where the knowledge of
the witness was derived from personal observation, as distinguished from an opinion
based on such expert's general reputation. in this ease. one expert was allowed to
testify as to the correctness of tile tests used by another expert in testing for arsenic
(La,vs e Corn, 84 Pa St 200. 209. Ro g ers, 2nd Ed 5 37
p 86 ] . The want of skill or
qualification may however he shown by cross-examination. The opinion of an expert
has very little value unless the grounds are known (see s 51). Questions ma y be
asked in cross-examination as to tile grounds and reasons of his opinion or his
previous acquaintance with the subject-matter iil order to test his competency or to
test and impeach his skill.

"The fact that the expert was not in a fit state of mind or health to form a proper
Opinion; or is interested or corcupt; or has expressed a different opinion at different
limes, may he elicited in cross-examination, or, if' denied, independently proved
[Alcock n Royal Er AS, S 13 QE 292; Gosling u. Alexander, 1902, 1 LR
139] And
when a theory advanced by an expert was very extraordinary, he was allowed to be
cross-examined by his own side [/1 c Cook, 147 CCC Sess Pap 466, per DARLING J";
]'hip 11th Ed p 510 ] . We find no test laid down, by which we can determine with
mathematical precision, just how much experience a witness must have had, how
expert, in short, he must he, to render him competent to testify as an expert lForgery
o First Nat Bank, 66 Ind 123, 125]. But it is for tile court to decide within the limits
Of a fair discretion whether the experience of the supposed expert has been such as to
make his opinions of any value [McEwp n '.'. Bigelow, 40 Mich 215, 2171. Mere
opportttnities for special observation have been insufficient in sonic cases to render a
witness Competent to testify as an expert I Rogers, 2nd Ed s 19 Si].
p
It is essential however to distin g uish the rule of qualification founded on the
experience of the witness and that which permits him to advise the court with an
Opinion. Every witness must be lit or expert in tile matter upon which lie gives his
supposed
sense knowledge. In some cases, viz when the witness is "expert" in the narrower
, his competency must be specially shown. The question however whether
besides deposing to facts he is to be permitted to express his opinion is another
matter. In stich case therefore it must he asked, is the matter one upon which the
witness is sufficiently qualified by experience; and if he is, is it a matter upon which
the witness is permitted to assist the court with his opinion? [Gopessur V Bissessur,
16 CWN 265, 2851.

'I'llC Competence of an expert has to he challenged in the trial court [Sric/iand t.'. S.
A 1974 SC 639].-No reliance can he placed on the opinion of an expert which lacks
 878 Sec. 45 Chap. lI—Cf the, Relevancy of Facts

objectivity expected professional skill and accuracy lSta!' 0 (iou v I)esiderio

i'Vle/teZes. 1996 AlEC 3177, 3183 (Born); Govt. of (JOG I. JOG/i/WIll lo/llo/i
k/iaolap, 1996 All IC 3258 (Bom)J.
Inquiries and Reports Ordered B y Court.---In addition to tile seicnt ilie
evidence adduced by the parties, the court, for its own guidance and information,
may (in cases other than criminal proceedings by the Crown) and even without the
consent of the parties [A-(; c Birmingham c Board, 1912 AC 78$1, order
independent inquiries and reports to be made, or experiments to be tried either in or
out of court [Mai-co,ii V Briti.rh Co, Times, Dec 15, 1910], by experts of its own
selection and may act oil reports [Administration of Justice Act, 1956, s 15 and
or 40, r 12; sec CoIls v. Home 51o,-es, 1904 AC 179, 192 and CSCS in Phip 11th Ed p
5081. It appears that this is not ordinarily permissible under the Actthough there are
exceptions, eg in ss 292, 293 Cr P Code. The opinion obtained should he properly
proved and the party affected should be given an opportunity of croSS-cxnniining him
[see /1051, "Mere Cert Uicateof Medical man or expert'']. In a case here it was held
that, the proper course in ordinary circumstances, in cases of infringement of
copyright is to eet the opinion of experts who might be appointed Commissioners to
investigate and report on the matters in issue [Sitanath 1'. Mohini, SI IC 754'. A 1924
C 595; see also Gopalda.r v. Jagannath, 1938 All 307: A 1938 A 2661.

Mode of Examination of Experts And its Scope.—[Ilypothetical Questions].

—The form of the question to all must be hypothetical. Hypothetical questions
Should not he put to non-experts. It is not possible to lay down any inflexible rule as
to the form of hypothetical questions. Opinions or inferences must be based on
certain premises. These premises may come to the witness' knowledge from personal
observation, eg when a medical man has examined the body and performed autopsy,
or, they may be supplied to him by the testimony of others. Here the premises must
be stated hypothetically and accurately in order to obtain his opinion oil
hypothetical data. Hypothetical questions should generally he based oil proved
in the case by testimony. Hypothetical questions may also be based oil assumed
for the time being to be true, but the premises must afterwards be supplied by the
testimony of others. The danger of such assumption is that the jury or the witness
might he misled and take as proved what is merely all on the part of the
lawyer. If the premises are afterwards found to be untrue, the opinion of the witness
must be rejected. A classical form of the hypothetical question was stated by Stl.Aw
CJ, in Woodbur, I', Obear. 7 flry 471 (Am) thus:--

"If certain facts, assumed by the question to be established by the evidence,

should be found true by the jury, what would be his opinion, upon the facts thus
Found true, oil question at issue'?"
II h y pothetical questions the premises upon which the witness is to give his
opinion should be stated with particularity. Thus, if the question be "Upon all the
evidencegiven what is your opinion oil certain point?"; it is not possible to fix in
the mind all the mass of facts narrated by a number of witnesses. If the specific facts
proved or assumed to have been proved are stated clearly, it enables the witness or
the court to determine o i l premises the opinion-is based. No hard and fast rule is
possible, but what is needed is that the facts should be stated far1y, clearly and
precisely.

Expert opinion even on admitted or proved facts will differ, and then the court has
to decide which opinion it will rely on. But when the facts themselves are not
admitted, the court has first to come to a conclusion oil evidence as to what facts
have been proved, and then apply to such facts the various expert opinions which
Opinions 0jexper1, 1 Sec. 45 879

havc been oflercd. BLII it it is not a point of science or art, the court or jury can loon
,111 Opinion Without expert evidence, though ti l e line, where there no longer remains a
point of science or art on which the court has to form an opinion, is not very clearly
defined [Monossch i'. Sivapurji, 10 Born LR 10041.
"If there is no testimony in the lending to prove the facts assumed in the
hypothetical question, such question is improper. The facts must he proved or offered
to be proved, and if there is no evidence to prove such facts, or if the. facts assuuiicd
in the interrogatory are wholly irrelevant to the issue, the question should be
excluded. If the foundation for the evidence is removed there is of course no basis for
the superstructure. The question is not necessarily to be rejected by the court
although the facts assumed by counsel to he true are not proved, or although the
question clues not state ihe facts as they actually exist. The facts are generally in
dispute; and it is sufficient if the question fairly states such facts as the proof of the
examiner fairly tends to establish, and fairly presents his claim or theory. It cannot he
expected that the interrogatory will include the proofs or theory of the adversary,
since this would require a party to assume the truth of that which he generally denies.
Nor should a question he rejected because it does not include all the, facts, unless it
thereby fails to present the case fairly" [Jones s 371 and cases cited].
The evidence of a medical man, who has seen and has made a post-mortem
examination of the corpse of the person touching whose death the enquiry is, is
admissible: (1) to prove the nature of the injuries which he observed, (2) its to the
manner in which the injuries were inflicted, and (3) as to the cause of the death. As a
matter of fact it is essential he should be questioned as to the character of the injury
[T/ianç'asn'a,n j, In re, A 1963 M 476]. A medical man who has not seen the corpse
and has not made the ost-nwriein examination is in the position of all witness
who could give nothmg but opinion evidence. The proper mode of eliciting such
evidence is to put to the witness hypothetically the facts which the evidence of the
other witnesses attempted to prove and to ask the witness's opinion on those facts.
The general rule as to evidence of this kind, is that the question must be put to the
witness hypothetically, ie, put in this way:
"Assuming such and such facts to be true, what is y our opinion on the
matter?" "Assuming such and such all an injury of such and such a kind
to have been inflicted, what is your opinion as to the nature of the weapon by
which it was possibly or probabl y inflicted?" [Per FIELD, J, in Roglumi v. 1?, 9 C
455,461 :11 CLR69],
The proper mode of eliciting such opinion is to put the signs observed at the post-
mortem to the witness (who has not seen the corpse), and to ask what, in his opinion,
was the cause of death on the hypothesis that those signs were really present and
observed [R v Melter Ali, 15 C 589 ] . Even a doctor not examining the patient is
entitled to give opinion on his death as all by answering all hypothetical
questions if the hyptheses are correctly put to him [Bai Diva u Silver Cotton, &c, A
1956 B 424].
As an expert is not allowed to draw inferences or conclusions of fact from the
evidence, his opinion should he asked upon a hypothetical statement of facts [Strong
u Kean, 13 Jr LR 93 and cases cited in Rogers, 2nd Ed,
p 64 ] . SHAW, Ci, well stated
the law as follows in Dickenson v. Fitchhw-y, 13 Gray, (Mass) 546, 556:—
"In order to obtain the opinion of a witness on matters not depending upon
general knowledge, but no facts not satisfied of by himself, one of two modes is
Pursued; either the witness is present and hears all the testimony, or the
880 Sec. 45 (hop. 1/- -Of ihe l?elet'cfl(y o/h-icis

testimony is siiiiiiiicd iii ill the question put to him; and in either case the
(1UCS1J0ii WSput to loin h y pothetically, wilctlicr if' certain facts testified Of arc
true he can turin all and what that opinion is."
Counsel in framing the hypothetical question, may base it upon the. h y pothesis of
the truth of all the evidence, or oil hypothesis cspcciafly framed nit ccrtain facts
assumed to he proved for the purpose of the enquiry [G'oi/ieh i. llocrinoii, 3 Cola 53].
The question is not improper simply because it includes only a part of the facts in
evidence [Stearns n Field, 90 NY 640]. And if framed on the assumption of certain
facts, counsel may assume the facts in accordance with his theory of them, it not
being essential that he should state the facts as they actually exist [Con/cc u People,
83 NY 464; Rogers, 2nd Ed, p 65]. As FOLGER, CJ, says in Coo'ley c. People, sup:—
"The claim is that a hypothetical question may not be put to an expert,
unless it states the facts as they exist. It is manifest, if this is the rule, that in a
trial where there is a dispute as to the facts, which call settled only by the
jury, there would be no room for ,I question. The very meaning of
the word is that it supposes, asumc something for the time being. Each side, in
an issue of fact, has its theory of what is the true state of facts, and assumes that
it can prove it to be so to the satisfaction of the jury, and so assuming, shapes
hypothetical questions to experts accordingly. Such is the correct practice."
"Hypothetical questions may he so put as to require the witness to decide upon the
evidence, to determine which side preponderates, and to find conclusions from the
evidence, in order to reconcile conflicting facts. Such questions though hypothetical,
are as clearly improper as if they directly sought the opinion of the witness on the
merits of the case" Rogers, 2nd Ed, s 28, p 69].
The following illustration of the hypothetical question, the (ltieStion being the one
propounded by the defence to the experts in the trial of Guiteau charged with the
murder of President Garfield is cited from Rogers' book on Expert Testimony, 2nd
Ed, (p 73):—
"Assuming it to be -,I fact that there was a strong hereditary taint of insanity
in the blood of the prisoner at the bar; also that at about the age of thirty-five
years hisown mind was so much deranged that he was a fit subject to be sent 10
an insane asylum; also that at different times after that date during the next
succeeding five years, he manifested such decided symptoms of insanity,
without simulation. thai many differentpersons conversing with him and obser-
iiig his conduct, believed him to he insane; also that in or about the month of
June, 1881, at or about the expiration of the said term of five years, he became
demented by the idea that he was inspired of God to remove by death the
President of theUnited States; also that he acted oil lie believed to he such
inspiration, and as he believed to he ill with the Divine will in the
preparation for, and in tile accomplishment of such a purpose; also that lie
committed the act of shooting the President tinder what he believed to be a
Divine command which lie was not at liberty to disobey, and which belief made
out a conviction which controlled his conscience and over-powered his will as
to that act, so that lie could not resist and the mental pressure upon him; also
that immediately after the shooting he appeared calm and as irretieved by the
performance of a great duty; also that there was no other ade Ujate motive for
the act than the conviction that he was cxectitin g the Divine will for the good of
his country—assuming all these propositions to he true, state whether, in yotir
opinion, the prisoner was sane or insane at the time of thooting President
Garfield?"
 Opinions of cxpert.r.
C. 4 88
Expert Opinion On Facts Stated b y Other Witnesses. [how Far
Be Asked the Very Question Which the Court or Jur Expert Can
y have to Dccidcj,—j\n
expert may give his opinion on the fac t s ot the case as proved by other witnesses at
the trial [ii n Wright, 1821 R&R 456; Feno'ick i: Bell, I C&K
312]. So a physician,
who has not seen the particular patient, ni:iy after licaring the evidence of others at
the trial, be called to testily as to the general cliects of the symptoms described by
them and their probable. consequences in the particular case [Roscoc, N P B y 18th
Ed. p 175, 176 citing Peak, Ev 208j. In R i'. Al 'ivuç'hteu,
1844, 10 CI&F 200, 212: 8
ER 718, TINDAL, CJ, said:--
"The question lastly proposed b y your Lordships is'Call a medical man,
conversant with the disease of insanoy, who never saw the prisoner previously
to the trial, but who was present during the whole trial and the examination of
all the witnesses, he asked his opinion as to the state of the prisoner's mind at
the time of the commission of the alleged crime, or his opinion whether the
P risoner was conscious at the lime of doin g the act that he was acting contrary
to law, or whether lie was labouring under any and what delusion at the time'!"
In answer [hereto, we state to your Lordships that we think the medical man,
under the circumstances supposed, cannot in strictness be asked his opinion in
the terms above-stated, because each of those questions involves the deter-
mination of [lie truth of the facts deposed [0, which it is for the jury to decide,
and the questions are not mere questions upon a matter of science, in Which
case such evidence is admissible But where the facts are admitted or not
disputed, and the question becomes substantially one of science only, it may he
convenient to allow the question to he put in the general form, though the same
cannot he insisted oil a matter of right.'
M'Naghren 's case, decided in 1844, still occupies the leading place o
i l subject
and inspite of attempts to enlarge the scope of the rule in respect of the defence of
"irresistible or uncontrollable imptlse" [see Sodeina,i i: 1?,
1936, 2 All ER 1138; B
Flavell, 1926, 19 Cr App R 141; B v Kopsch, 1925,
19 Cr App R 50;
Thmv,i 1960, 1 All ER 734; and Report of the Committee in 1922-24Art-GenI &c v
presided over
by LORD ATMIN], the present law in England to establish a defence of insanity is
what was laid down in Al ' ATaghten 's
ease. It was relied on and explained in
Basivwiirao e
B, A 1949 N 66 (which contains much valuable information on the
subject) where two questions have been formulated for guidance: (1) Do facts A, 1$
and C show insanity'! (2) Do facts A, B and
C show that the prisoner was inane'! The
first is permissible but not the second.

Accused after a savage attack on the murdered person went to a police station, said
he was giving himself up for murder and gave a detailed account of how he had done
the act. The cleliee set up was insanity. A medical witness for the defence was
asked in cr
oss-examination whether the accused's conduct immediately after the
murder indicated to him that at the time of tile murder the accused knew (i) the
nature of the act lie was doing and (ii) that his conduct was contrary to the law of the
land. The answer to both the questions was "Yes", field
that the questions were
rightly admitted [R n Holmes, 1953,
2 All ER 324]. Where the only cause alleged for
all or involuntary act is defect of reason from disease of the mind within
the M'Nighten rules, there is no room for the alternative defence of automatism
[Bratty i. Au-Ge,il, 1961, 3 All ER 523 HLJ.
In a case [B n Frances, 4 Cox CC 57
], ALDERSON and CHESWELL, JJ, refused to
allow a Witness to he asked whether, from all the evidence he had heard, both for the
prosecution and defence, he was of opinion that the prisoner at the time lie Commit-
882 Sec. 45 1
Chap. 11-0. the Relevancy of Facts

ted the act was of unsound mind, and said that the proper mode is to ask what are the
symptoms of' insanity, or to take particular facts, and assumine them to he true, ask
whether they indicate insanity oil part of the prisoner Iwills, Cir Ev 6th p 157]
Where, however, a medical witness has examined or attended such person, lie flay
give his Opinion as to the stale of mind of the person [R p. Richards, 1 F&F 871.
Where the sanity of a testator was in issue, a letter purporting from the testator was
proposed to be shown to a medical witness, and such witness asked whether the
writer of such a letter could he ot sound mind: MARTIN B, held this could not be
done, but that when the letter had been proved to he in the testator's handwriting, the
witness might be asked if it were a rational letter [Powell, 9th Ed pp 38-9]. The
question whether the accused was of unsound mind at the time of the commission of
the act, or by reason thereof he was incapable of knowing the nature of the act, or
that he was doing what. was either wrong or contrary to law, are questions of fact to
be decided by the court or the jury. But in arriving at a finding, opinion of an expert
in mental diseases is relevant [Deorno v. R, A 1946 N 3211, The Supreme Court of
Massachusetts said:—
'The object of all questions to experts should he to obtain their opinion as to
the matter of skill or science which is in controversy, and at the same time to
exclude their opinions as to the effect of the evidence in establishing contro-
verted facts. Questions adapted to this end may be in a great variety of forms. If
they require the witness to draw a conclusion of fact, they should he excluded"
[Hunt e Lowell G I. Co. S Gray 169].
The following question has been held to he improper, for the reason that it
practically put the expert in the place of the jury: ''Form the facts and circumstances
stated by previous witnesses, arid from those testified . to by still other witnesses,
relating to the homicide, and from defendant's conduct on the trial, is it your opinion
that the defendant was sane or insane when he committed the act?" [S v. Pelter, 23
Iowa 67, 74]. For the same reason an engineer has not been allowed to answer the
question whether "the plaintiff in oiling that pulley, could have been injured unless
he was careless" [Buxton ', Somerset P W, 124 Mass 4461: "So it has been held
improper to ask: "In your opinion as a canal boatman, did Mr C in any way omit or
neglect to do anything which he might have done to save his boat?" Ile could be
asked whether certain acts assumed to be proven were seaman-like and proper, but he
could not he allowed to express an opinion as to what was or was not done as a
matter of fact [Carpenter v. Eastern T Co. 71 NY 574]. And in an action against a
physician tor negicet aiid cmi as',endanc? in a case of frost-bite, it has been held that
a medical witness, to whom the evidence was read, could not be akcd: "From !hi-
evidence before the court, to what do you ascribe the loss of the plaintiff's ringers
and toes?" [Key v. Thompson, 2 Hannay, NB 224—Rogers, 2nd Ed s 26 pp 62, 63].
Questions should he so framed as not to call oil witness for a critical review of
the testimony given by the other witnesses, compelling the expert to draw inferences
or conclusions of fact from the testimony, or to pass on the credibility of the
witnesses, the general rule being that an expert should not be asked a question in
such manner as to cover the very question to be submitted to the jury. As expressed
in one of the opinions, "a question should not be so framed as to permit the witness
to roam through the evidence for himself, and gather the facts as he may consider
them to be proved, and then state his conclusions concerning th cm " 1 [ Dolz v. Morris,
17 NY Sup Ct 202; Rogers, 2nd Ed p 611.
Phipson has summarized the law thus after reviewing numerous decisions: The
eases are conflicting as to how far an expert may be asked the ve.'y question which
 Opinions OJCVf)erIS. Sic. 45 883

the judge or Jur y have to deco/c: but the weight of authorit y appears to be, its follows:
- -(u) Where the issue involves other elements besides the purely scientitic, [lie expert
oust conhnc himself to the latter, and must not give his opinion upon thc legal ui
erteraI merits of the case; (ii) Where the issue is substantially one of science or skill
merely, the expert may, if he has himself observed the facts, be asked the very
question which the jur y have to decide, (iii) If, however, his opinion is based merely
upon facts proved by others, such a question is improper, for it practically asks him
to determine the truth of their testimony, as wchl as to give an opinion upon it; the
correct course. is to put facts to him h ypothetically and not en bloc asking him to
assume one or more of them to he 1111c. and to state his opinion thereon; where
however, the facts are not in dispute. it has been said that the former question may be
put as a matter of convenience, though not as of right jPhip 11th Ed p> 5 18-19).
Mere advice to the court is outside the opinion rule and inadmissible. When a
testimony is given not after hearing the evidence but on a copy of the deposition, it
does not in itself make the evidence inadmissible, but the better course to follow is
that the expert should hear the evidence a to which he is asked his opinion
[Gopessure a /3iscssuure, 16 CWN 265, 285). For -,I case in which the judge was held
to have been wrong in calling expert testimony, see ilindessuree t: Donna, 9 WR 88.
Like other witnesses, experts may he cross-examined as to credit and competency
(see ss 146-55).
Experts Not to Express Opinion on Facts in Issue or to State Result of Opinions.
--"Clearly it is not the province of the expert to act as judge or jury. Hence all
questions calling for his opinions should be so framed as not to call upon him to
determine controverted questions of fact, or to pass upon the preponderance of
testimony. Thus it would he obviously improper to ask the witness to State his
opinion upon all the testimony in the case as to any given question, if the truth of part
Of such evidence were in dispute. When the question is SO framed as to call upon the
expert to determine oil side the evidence preponderates or to reconcile
conflicting statements, he is in effect asked to decide the merits of the case which is
duty wholl y beyond his province" [Jones, s 372 and cases cited]. It is not the duty of
an expert to reconcile conflicting evidence [Luninç v. S. I Chandler, (Wis) 178].
Expert should put before court all the materials which induce him to come to the
conclusion, so that court, although not an expert, may form its own jud g ment on
those materials [Ajitrcui t, " A 1969 C 48 (2)thi V. Jones, A 1934 A 273 56 A
428 rellied on). Opinions must be supported by reasons and it is the reasons and not
ipse thxit which is of importance [Palwusuvany t: 5, A 1968 B 127].
Depositions of expert witnesses as to the result of their opinions, and as to the
effect of them, (10 not come within the domain of expert evidence at all. For instance,
in copyright cases while expert witnesses ma y give evidence of similarities,
omissions, coincidences, &c they cannot be permitted to say that defendant did copy
from plaintiff's hooks [Decks a Wells, 142 IC 815 : 64 MLJ 193 : A 1933 PC 261.
"An expert cannot usually he asked to express all upon any of the issues,
whether of law or fact, which the court or jury have to determine; but this rule is not
applicable to some points of foreign law, or to all cases of insanity as a defence to
accusations of crime (see R a Holmes, 195Y 2 All ER 324, where medical expert
was allowed to say that accused knew the nature of the act and that it was contrary to
law). Ili cases the witness may explain terms of science or art, or inform the
court if a word or phrase used differs from its popular meaning, indicate the meaning
of symptoms, and generally enlighten the court on the technical aspects of the case
[per NEVILLE J, in Joseph Crosjie/d & Sons Lx/ p. Tee/too Chemical Laboratories Ltd,
 Sec. 45 Chap. I/---Of (he 1?eleiancv ()//'c(((.V
19! 3, 29 TLR 378; Richmond a R, 1914, III LT 273"; 1-lalsbury, 3rd Ed Vol 15 para
5$$1. In all cases in which Opinion evidence is receivable, wheilicr from experts or
not, the grounds of his opinion may properly be inquired into I /'iib!o' Prosecutor a
Lee Reng Smug, (1992) 2 Malayan LI 120 (Muar HC)].
When Questions Need Not Be Ilvpothetical.—Thcrc are exceptions to the
general rule requiring that on the direct examination the opinions of experts should
be asked LiOfl an assumed state of facts. First: A distinction is taken between cases
in which there is a conflict of evidence upon the material facts, and those in which no
such conflict exists. In the former class of cases the question must be framed
hYpothetically, but in the latter class there is no such necessity. Second: It is not
necessary 10 assume a state of facts in those cases in which the expert is personally
acquainted with the material facts in the case [Rogers, 2nd Ed S 31 pp 74, 75 1 . Thus,
a medical man who has not personally seen the accused or examined his symptoms
cannot be asked from a perusal or consideration of the conflicting evidence in the
case as to whether in his opinion the accused was sane or insane at the time of the
commission of the act; for that would be askin g him to draw a conclusion of fact
which it is for the court to decide [seeR a MNaghten,
'- 10 CI&F 200 mite!. But if the
medical man has personally attended or visited a patient, be can give his opinion as
to the state of the mind of the person. Here no assumption of facts is necessary and
that is no room for a hypothetical question. Thus a medical man who had personally
examined the uterus of a deceased woman was allowed to be asked: 'What, in your
opinion, caused the death of the person from whom the uterus was taken!" [S a
(;Ia.cs, 5 Oregon, 73].
Reference to Text-Books By Experts.—An expert may site text-books of
accredited authority in support of his opinion and may refresh his memories by
reference to them (see s 51 and s 159). Passages from well-known scientific works
may he read during trial, as evidence of opinions of experts [Hurry Churn t: R, 10 C
143; see also the penultimate para of s 57 post, and notes thereon]. Certain passages
From a book were allowed to be read in a case of salvage reward. The testimony of
witness called and examined in court is more reliable and of far more use than
hypothetical statements in a book, the authority of which is uncertain [see In re "The
Dracluenfels", 27 C 860). In cases where skilled witnesses are called to pronounce
their opinion on some scientific question of fact, is to be decided by the judge alone
fTay s 1423; Phip 11th Ed p 514]. They state that their opinions are formed in pun
upon consulting books written by their professional brethren.
In English law an e.pert niay In text-hooks to refresh his memory or to
correct or confirm his opinion, eg a doctor to medical treatises; a vaiucu tO iWIC3
&c. Such hooks are not evidence per se; though if he describes particular passages as
accurately representing his views, they may he read as part of his own testimony
[Concha a 1'v!urietta, 40 Ch I) 543; Phip 901 Ed p 409]. In India the opinions
expressed in hooks of authors who are dead or cannot be produced are themselves
evidence [see s 60 prov 1 post].

When an expert witness is asked to express his opinion on a question, the primary
facts on which the opinion is based have to he proved by admissible evidence given
either by the expert himself or some other competent witness. However, once such
facts are proved, the expert witness is then entitled to draw on the works (including
unpublished works) of others in his field of expertise as a part of the process of
arriving at his conclusion, provided he refers to that material in his evidence so that
the cogency and probative value of his conclusion can be tested b y reference to that
material. Reliance on the work of others and references to it in evidence do not
 Opulions ofejert.r. Sec. 45 g5
infrinue the hearsay rule. I R t. A/xulo,n, (1983)
I All ER 36-I CA], following
I English E.porers (London) Ltd Eldonua/l 1.0, (1973) 1 All ER 726 and (R 1'.
Turner, (1975) I All ER 701.
If an expert refers to the results of research ptiblishcd by a reputable authority in a
reputable journal, the court W ill ordinarly regard those iesuits as Supporting any
inference fairly to he drawn from them, unless or until a different approach is shown
to be correct. Such articles would he admitted in evidence so that the court may View
them and give such wei g ht to factual assertions in them as it nia y think fit.
[H i'
Sclmerj,n Chemicals Lid, (1983) 1 All ER 849 QI3D] An earlier authorit y on the
subject is [Sefaiiç' e. G Sear/c & Co, (1973) I All ER. opinion at pp. 292-2931.
Foreign Law.—Under the Act, foreign law may he proved (1) by the evidence
O f a person specially skilled ill and (2) also b y direct reference to books printed
or published under the authority of the fom'eitzn Goveritment (see ante, s 38 and
notes). The latter mode of proof is not allowed in England. The En g lish courts do
not lake judicial notice of the laws of forei g n States or Colonies [R. v. Governor of
Brixton Prison, 1907,
1 KB 696]. In the Privy Council, however, colonial statutes
will be judicially noticed. As to colonial statutes, see Colonial Statutes Evidence
Act, 1907 (7 EcIw E c 16) According to English rule the ordinary method of
proving a point of foreign law is by calling witness skilled in the law of that
country. Foreign law, though regarded as a question of fact, is to be decided by the
judge alone [Tay s 1423; Phip 11th Ed p 5 141. As 10 the law and practice relating
to proof of foreign law, see judgment of AI KIN U, in Buerger m'. N V Life Ass Ca,
1927, 86 LJKB 930. A man cannot he accepted as competent to prove foreign law
unless he is a practising lawyer, or has held some official position which presumes
a knowled g e of that law or has special knowledge of that law acquired from
practical experience. A .judge, barrister, advocate, or attorney will he competent,
hut not a incrchan t unconnected with the law though possibly acquainted with it
[Sussex Peerage Case, 1844, 11 CI&F 85, ] 14, 115, 117, 124: Vlmuler Doneket i:
ihelluson, $ C&13 812]. "While it is true that witness called to prove foreign law
may refer to any passages in the code of their country as containing the law
applicable to the case, court is at liberty to look at those passages and to consider
what is their proper meaning" lper VISCOUNT SANKF,Y in Dc Beeclie o South Am
States, 1935 AC 148, 158, 159].
It is not enough to show that the man in fact k ilO\S the law Oil tIle point, Ile
must be one who from his training may be expected to know the law [Per/ak
Petroleum o Dccii, (1924) 1 KB Ill]. In Vomit/er Doocki i .. T/mel/usou (sup),
however, a stock-broker of Belgium was allowed to depose oil Belgian law
Of bills of exchange (probably because the point related only to mercantile
usage). Knowledge obtained from there study is not sufficient qualification. In cc
Todd S/tumid t-. Kjdd, 1854, 19 Beav 582, a solicitor practising in Scotland gitvc
evidence oil point of Scotch law but it was not accepted and evidence of an
advocate was required. It was held that an Egyptian, residing in E g ypt hut not
specially conversant with the marriage law of Egypt cannot prove it [R m'.
Naguib, 1917,1 KB 359 CCA ] . In En g land, Indian law is to be treated as
foreign law. All afl'idavit of a barrister was regarded as "far from being a reliable
statement of Indian law" [R u. Secy of 5, 1941, 2 All ER 546, 553], Evidence of
New York lawyers as to the effect of foreign law on common English words is
admissible [Camille o Inland RC, 1954. 2 All FR 466]. Expert evidence given
by the Consul-General for China relating to custom in China as to divorce can
he accepted in evidence to prove the validit y of tile divorce [Re Sun Sien Gimami,
1932 Malayan U 95 (lIC Straits Settlement)].
886 Sec. 45 Chap. 11—Of the Rc/era,ic' of lict.v

A witness deposing on foreign law may refer to accredited authorities on the

subject for refreshing his memory [Nelson u Lord Bridport, 8 Bcav 527, 538; Sussex
Peerage Case, ibid, at p 116]. On any point oil law of' any part of his
Majesty's dominions is different from that in which the court is situated, the court
may also without relying oil testimony of experts remit a case to one of the
superior courts within that part of His Majesty's dominions for opinion, under the
British Law Ascertainment Act, 1859 (22 & 23 Vic c 63 s 1). The law of Bengal was
ascertained under this Act by a case remitted to the Supreme Court of Bengal (Login
'e Princess of Coorg, 30 Beav 632].
Where foreign law is laid down in an elaborate manner in a foreign code, the court
should interpret it without outside opinion however eminent [Palaniappa v. Nagappa, A
1930 M 146: 123 IC 6001. Although court may take judicial notice of foreign law under
s 38, what the whole law of a foreign country is at a particular time cannot be proved
except by calling an expert [Jagadish s I T Commes, A 1956 C 48 ante]. Opinion of
experts oil law is allowed, but Shia law of marriage is not foreign law nor is it
science or art and expert opinion is not admissible [Aziz Banoo t.: Md Ihrahi,n, 47 A
823: 23 AU 768]. Foreign law on a particular topic is a question of fact to he proved by
evidence. Evidence was given of decisions of Mysore High Court in the case of
partnership with an abkari licence of Mysore [Khoday v. Swaminadha, 92 IC 112: A
1926 M 218]. Though a foreign judgment cannot bind the parties to a suit in India,
judicial decision of a foreign State as to the law or custom of that country is sufficient
cogent evidence [Suganchand v. Mangibai, 1942 Boni 467: A 1942 B 185]. Expert
evidence as to Jewish personal law is admissible it being foreign law here [Jacob n
48 CWN 513: A 1940 C 90; Kathleen a Jacob, A 1955 NUC (C) 4847]. Where there is
no common ground between the expert witnesses for the opposing parties on the
position in foreign law, the court should apply its own mind with the assistance of the
opinion of expert witnesses, to the question [Swee Hong Exim Pte Ltd. o Saigon
Shipping Co., (1994)3 Singapore LR 76 (Singapore HC)].
Ossification test and opinion of radiologist regarding age.—The court is not right
in preferring the opinion of the radiologist to the positive evidence furnished by the
birth register, school admission register and evidence of girl's father. It cannot be
reasonably expected to formulate a uniform standard for the determination of the age
by the extent of ossification and the union of epiphysis in bones [Chathu v. P
Govinclan, A 1958 Kcr 21 : 1958 Cri IJ 637]. Opinion of doctor regarding age of a
rape victim based on ossification test cannot outweigh the consistent oral and
documentary evidence regarding her age [Jitmohan Lohar v, State, 1997 Cri U 2842
(On)]. Ossification tcsi is iit a surc test as to the ge of the orosecutrix. It gives only an
approximate age which may vary by two years on either side [Chidder Ram v. State,
1992 CriU4073, 4075 (Del)]. Medical evidence being only opinion evidence entries
in birth register should be given preference [State of Gujarat a !nayathusen
Mohinadmiya, 1996 Cri U 3225, 3228 (Guj)]. Mere opinion of the doctor about the
age of a person without ossification test is of no consequence [Hiralal a State of
Ha,'yana, 1994 Cri U 2471 (P&H)]. If the authorities have any doubt about the
medical certificate regarding age was given by Civil Surgeon, Govt. doctor, after
ossification test, then they should have examined the doctor, but when they have not
found that the report was not given by the doctor after ossifIcation test, non-
examination of the doctor cannot be a ground for not relying upon tte said document
[Han bans Singh v. State of Bihar, 1997 AIHC 2028, 2029 (Pat)]. Where the age of the
rape victim was fixed by the doctor only by clinical examination and ossification test or
other pathological tests were not performed, it was held that the assessment of age so
made was on fragile premises. Kainal Kishore c State of HP, (2000) Cri Lj 2292 (SC).
 Opinions oJe.vperis. Sec. 45 7
Anthrecenc Powder and Ultra-Violet Ra y s—For nature of expert evidence
when anlhrccenc powder and ultra-violet rays are used for detecting crime. see
Rwnsinç u S, A 1960 G 7.
Ballistic Experts, Bullet Marks ctc.--It is possible for experts in thc Science of
Ballistics to trace a bullet or cartridge to the particular weapon from which it was
discharged, by the application of certain tests and the use of a "comparison
microscope". The science of ballistics may be availed of to get information about
other important bicts with varying degrees of probability, eg the distance from which
a shot was Fred, when approximately was the weapon last fired, &e. "The general
fact of ballistics is that no missiles dischar g ed from the same or different fire-arms
bear the same trace-marks. This general truth was until recently unknown and
disputable; judicial opinion now recognizes it as a conceded fact of which judicial
notice may be taken'' [Wig s 417a]. For a description of the technique used in
ballistics, see 1924. Evansv. Commonwealth, 230 Ky 411 cited in Wig s 41 7a.
Opinion of the ballistic expert about pi ll of cartridges cannot he rejected
merely on ground that he has not taken photographs of the cartridges concerned [5G.
Gundegowda i State, 1996 Cr1 LJ 852, 867 (Kant)]. Report of ballistic expert is
admissible in evidence without calling him as witness [Balak Rain v. State of
Rajasthan, 1994 Cri JJ 2451, 2461 (Raj)]. In cases where injuries are caused by fire
arms, the opinion of the ballistic expert is of a considerable importance where both
the firearm and the crime cartridge are recovered during the investigation to Connect
all with the crime. Failure to produce the expert opinion before the trial court
in such cases affects the creditworthiness of the prosecution case to a great extent
[Suk/itvant Singh State of Punjab, A 1995 SC 1601, 1606]. Where the Court held
that it is not necessary to examine a ballistic expert in each and every case,
particularly when the direct evidence is of an unimpeachable character and the nature
of the injury disclosed by the postmortem report is clearly consistent with that direct
evidence [Kartik Harijan v State of Orissa, 1995 Cri LJ 2019, 2021 (On)]. Seizure
of empty cartridges, in absence of Ballistic Expert's report, is inconcquential [B/ia,u
Ram v State of Rajasthan, 1995 Cri Li 3165, 3168 (Raj)].
Where it was clearly stated by the ballistic expert that he had fired six live
cartridges from the rifle in question before recording his opinion that the empty
cartridge recovered from the spot was fired from the said rifle and that opinion was
not at all challenged in the trial court as well as in the statement of the accused under
section 313 Cr PC, it could not be stated that the said opinion of the expert could not
be believed or accepted [Surat Sing/i v. State, 1995 Cri U3189, 3194 (Del)]. Where
the medical evidence is to the effect that the solitary wound could be caused by a
blunt object, evidence of an alleged eye-witness that deceased was assaulted with a
knife and thereafter by rod cannot he relied upon [Subliash D/iondiha Pandit i State
of Maharashtra, 1996 Cri LI 4194, 4196 (Born)]. Till the guns are sent for ballistic
examination and a report is obtained that they are in working order, recovery of guns
cannot connect the accused with the crime LkhasingJz v. State, 1994 Cri U 2952
(Raj); Soznsingh Stale, 1984 WLN (UC) 15]. Report of the ballistic expert that
cartridges recovered from the house of the deceased had been fired from the guns of
the accused call used to corroborate the prosecution version that the accused had
Fired the gun [B/io!a Slug/i u State of Punjab, A 1994 SC 137, 141].
R.L. Gupta, in his book "Ballistic Fire Arms and Jurisprudence" 3rd Edn. pages
232 and 233 has observed that scorching is also called burning or charring. It can
appear only when the fire is made from a very close distance of 6" or within the
limits of a normal person's arms length. At ranges greater than a few feet these
 883 Sec. 45 Chap. 11—Oft/re Re!er'amv of'/,acts

features are not longer- present. As such, charring is not possible if erie is hit from a
distance of more than 400 feet. 'ibis also the view of Modi in his book ''Medical
Jurisprudence and lexicology'', 20th Edrr. pages 227 and 228 and Taylor in his hook
'Principles and Practice of Medical Jurisprudence" 10th Erin. page 441 [Mani Roar r:
State of Rajasthan, 1994 Cri LJ 3770, 3778 (Raj)].
Blackcnin of skin below the injury (as shown by the medical report), does not
necessarily mean that the firing was from a close range. Mo/ran Sing/i v Stare of
M.P., AIR 1999 SC 883 : 1999 Cri U 1334, or that the wound was self-inflicted.
Pam,ni r'. Govt ofM.P., AIR 199$ SC 1185 : (1998) 2 SCC 700.
Arrnourer,—The expert, viz, an armourer, who has a special training in the
subject, need not make a test firming for' ascertaining whether or not a rifle is capable
of firing [Suk/r Pal v. State of Harvana, A 1995 SC 5781.
Where the prosecution case is that the accused shot the deceased with a gun, but it
seems more likely that the injuries were caused by a rifle than by agun and also that
the shot must have been fired by more than one person and there were other
infirmities in the evidence, it is only by the evidence of a ballistic expert that it could
have been ascertained whether the injuries attributed to the accused were caused by a
gun or a rifle and Such evidence alone could settle the controversy as to whether they
could possibly have been caused b y a fire-arm being used at such a close range as is
suggested in the evidence [S v. Ma/nader, A 1953 SC 415]. There is however no
inflexible rule that in every case of murder with a lethal weapon the prosecution can
succeed in proving the charge by examining a ballistic expert. Where the direct evi-
dence is of an unimpeachable character and the nature of the injuries disclosed by
post-mortem notes is clearly consistent with direct evidence, the examination of an
expert may not be essential. Whether it is essential to examine a ballistic expert must
depend upon the circumstances of each case. In a case where a person took care to
keep the gun wit!) himself for over a week before surrendering it, it would be useless
to examine an expert for it is extremely unlikely that traces of its use had not been
removed by him [S n Gurbaclian, A 1963 SC 340].
Where the victims were killed by gunshot wounds by the accused and no rifles
were recoveredand the prosecution case was not that the wounds were caused by the
revolver which was recovered, the Supreme Court held that there was no need to
examine any ballistic expert [S i Jaidev, A 1963 SC 612]. Value of opinion of fire-
arm expert after test that a particular cartridge found was fired from the pistol
produced by the accused [Kalna v. 5, A 1958 SC 180: 1957 SCR 187]. The opinion
of the ballistic expert that the empty cartridge has been fired from a particular un
has to be discarded when the expert did not give any reason for giving that opinion.
[SniuiJi SnJr . Stare of Mad/iya Pradcs/z, 1988 Cr; U 1583, 1586 (MP); Gopol
Singh Gark/ia v. State of U.P., 1991 Cri LJ 1235, 1239 (All)].
Agreeing with the observations in Major Hatcher's "Fire-Arms Investigation,
Indentiflcatjon and Evidence", the court held that "the skin wound of entrance
always corresponds in size to the diameter of the bullet used. It is very common for
the aperture of entrance to appear smaller thai) the diameter of the bullet, but this is
an illusion, since the wound invariably admits a projectile similar to the one which
caused it. The small appearance is due to elasticity and shrinkage of the skin". It is
also a fact that the wound of exit is usually larger than of entrance. In this case the
court held that the accused did not shoot the deceased as the latter was shot with a
bullet fired from a 303.303 bore rifle and not a 500.500 bore rifle, the only weapon
attributed to the accused by the prosecution witnesses [Tahsildar v. 5, A 1958 A
255]. When tile exit wound was not only smaller in dimension than the entry wound
but was also smaller in dimension than the size of the cartridge the court concluded
that the injuries could not be gun shot wounds [Salim 1½ v. 5, A 1979 SC 3911.
In a case the Supreme Court placed reliance under the heading "Burning of the
Wound" (in Taylor's Medical Jurisprudence, Vol 1, 10th Ed p441): "It is impossible
 Opinions (tVf)C)iS.
Sec. 45 889
to state rules as to the precise distance (mm which it is possible
to produec marks or
burning for (los depends oji the quantity and nature of the powder. the method of
cliaicing and the nature of the Weapon. It is unusual, however, to net marks of
hurnum beyond it or it
and a half With a Shot mu), or at more than half it
yard with it revolver" (S(wtcl S ingh
nSA 1956 SC 526: 1955 Cri LJ 930].
The najii principle of forensic bathistics is to establish whether a g bullet or
cartridge was used in a particular Weapon. It is now possible not ally the
only to tally
cartridge fired With the gun Lised but a number of other ilnportaiit iacLs can be
decided though with varying degrees of probability. Among these are the distance
front a shot was fired, the approximate time when the Weapon was last fired
and other questions of similar nature. Unless the test Cartridge is sent to the court
SO
that it could he satisfied of the identity of the thumb-pi j il
face of both the cartridge t of the gun on the breech
s and unless the data collected by the expert or the enlarged
photos taken he produced for y en Iicatjon by the court, it ou
g ht not to accept the
expert's opinion without satisfying itself of its correctness. Fire-arms can he broadly
divided into to main c]asses: (I) smooth hoic arms and (2) rifle arms including
revolvers automatic and self-loading pistols and machine guns. The barrel of the
second class being furnished with spiral grooves imparts spin to the bullets. But shots
discharged from a smooth bore firearm scatter over an area that increases rotiglily
according to the distance of the tm-get from the gun, and besides these missiles do not
hear the individual characteristics of the barrel so effectively as in the rifle arm. That
is the reason wh y the pellets from a shot gun, thou
g h can be measured, weighed and
subjected to chemical analysis cannot establish the identity of the gun that fired them
though in the case of bullets from a rifle arm the identification of bullets is possible
with the help of a microscope and experts' services (In re Kodur,
re Bali a, A 1941 NI 88; Ii ircndi-a i: A 1957 AP 758 (in
R, A 1931 C 441: Fakir Md v R, A 1936 B 151
reid to)]. Evidence of Ballistic Expert that the cartridges could not have been fired
through any other firearm because every firing pin, firing pill and breech face
mark has its own individuality could he relied upon [Kartar
n S, A 1977 SC 349(.
The opinion of an expert who has compared the land and groove markin g s on the
bullets under a comparison microscope cannot be rejected simply on
he has not taken photographs [Runmanar/1 the grounds that
1-. S. A 1978 SC 1204]. Unless there
were rifling marks in the bullets and which were not defaced by the entry in tile
bodies of the victims, no expert could ordinarily and generally give an opinion. In the
c i r cumstances of the
instant case, the non-obtaining of the opinion of the Ballistic
expert could not shake the prosecution ease [C7iatar n
5, A 1976 SC 2474]. It would
need super-human ability to come to a conclusion about injury caused by gun fire
without seeing (lie injury but by merely looking at the description of the injuries or
even the photographs given by the doctors [Mo/ian
cS, A 1975 SC 2161].
Blood Grouping Tests,--in cases of disputed paternity blood grouping tests are
resorted to in some countries by grouping the bloods of the child, the mother and the
aficged father. In the present state of science these tests have only a negative value
inasmuch as they may-exclude a certain person as the possible father but it cannot be
said that a particular man is the father [see Wigmore 3rd Ed Vol 1, S
165a, p 610 ] .
There is no doubt that a person of full age and capacity cannot he ordered to undergo
a blood test against his will. 'Fhic court has no such power
841; see also s 21(l) [Wv. W, 1963, 2 All ER
Family Law Report Act, 19691. Although the view found
approval with sonic of the Law Lords in S c McC,
MACDERMoT 1970, 3 WLR 366, LOJW
cogently pointed out "I know of no reason why the High Court should
not in a ease order a party who is sui juris
to submit to a blood test". Medical
inspections are frequently ordered and "there call
no valid distinction in principle
$90 Sec. 45 Chap. Ii- Of i/u' Relciancy o/ Facts

between a blood test and a clinical examination" (at P 377). As a matter of tact the
position is different in the US and a number of State enactments authorise courts to
order adults to submit to blood tests. Other considerations prevail to make it diftercnt
in the case of children. On the trial of an issue as to the legitimacy of a child, it is in
the interests of the child and also cit justice that the court should have belore it all the
best evidence available, including modern scientific evidence as provided by blood
tests which mi g ht resolve the issue conclusively; and that the interests of the child arc
best served if the truth is ascertained (S e McC, 1970, 3 WLR 366 HI.; BRJ3 c.113,
2 All ER 1023]. Ii. remains a question of some nicet y whether the court should
be in a position to order the blood test of a non-consenting adult to serve the interest
of the child. As to evidence of blood-groups to test paternity, see Hals, 3rd Ed Vol 12
para 421 note (c.).
There is no provision in Indian law for the admissibility of blood grouping tests.
Also no one can be ordered to give blood for the purpose unless he or she consents to
it [ vEnkateswaiLir v Sithba','a, A 1951 NI 910; Subbavva v Bhmoopala, A 1959 M 396;
Ranmc/ianc/r(-i u Shma,mkar, A 1968 B 38$). When court has no power to order giving of
blood, there cannot he any adverse inference from refusal to give blood
[Raindiandra i; S/amkcii; sup].
Code Words.---Opinion of a police officer that particular words in a slip were
code words, is not admissible [Harakchand r. 5, A 1954 MB 145]. Sec Hari/al v. 1?,
A 1937 B 385 infra.
Copyright.—
lit. ease of infringements of copyright, the court should he reluctant
to sit as experts and to decide without the aid of expert evidence [Sitanath i: Mohin[,
$1 IC 754: A 1924 C 595].
Dog Tracking Evidence.--The evidence of tracker dogs has been admitted in
Scotland and Canada. But in USA there are conflicting decisions (see Ant loris, 2nd
Lc1, Vol 29; p 429, par 378). Dog-tracking evidence is admissible. in England and in
criminal trials, it is often used by the prosecution. There are certain safeguards which
need to be borne in mind in such cases. The position as it obtained formerly is
illustrated in the followin g passage from the case of R. v. Montgomer y, 1866 NI 100
"there are three objections which are usually advanced against the reception
Of' such evidence. First, since it is manifest that the dog cannot go into the box
and give his evidence on oath, and consequently submit himself to cross-
examination, the clogs human campani on must go into the box and report the
dog's evidence, and this is clearly hearsay. Secondl y, there is afeeling tho in
criminal eases the life and liberty of a human being should not be dependent on
canine inferences. And, thirdly, it is suggested that even if such evidence is
strictly admissible under the rules of evidence, it should he excluded because it
is likely to have a dramatic impact on the jury out of proportion to its N alue."
Subsequentl y, however, the position has been quite unambi g uous and has changed
drastically. What the Courts have insisted upon is that the evidence must pass the test
of scrutiny and reliability as in the ease of any other evidence. The following
guidelines must, however, be borne in mind
(a) That there must be a reliable and complete record of the exact manner in
which the tracking was clone to the extent, therefore, in this country, a
panchmnanma in respect of the dog tracking evidence will have to he clear and
complete. It will have to he properly proved and will have to be supported by
the evidence of the handler.
 Optiiions OJ(.'.V/)C/fS. Sec. 4-5 891

(1) It will be essential that there are n discrepancies between the version aS
n
ICCOICICd i the panchnama and the evidence f the handler as deposed to
before [Ile eon rt.
(c) The evidence of the handler will have to independently pass the test of cross-
examination.
(ci) Material will have to be placed before the court by the handler, such as the
type of trainin g imparted to the dog, its past performance, achievements,
reliability, etc., supported, if possible and available, b y the documents
1993
[Babe Ma,çhui Shaikh v. State of MaIiarci. y/iim, C ri LJ 2808, 2811
(Born)].

It is also to be noted that there are some breeds of dogs and some strains which are
specially utilised for hunting and tracking because of their abnormally high talents, if
the dog belon g s to one of these categories and if it is shown to the court that it has
been specially trained for purposes of detection, not only would the dog-tracking
evidence will be admissible, but it will have to he relied upon as being evidence of a
very high calibre.

The tracker clog's evidence cannot he likened to the type of evidence accepted
from scientific experts describing chemical reactions, blood tests and the actions of
bacilli, because the behaviour of chemicals, blood corpuscles and bacilli contains no
element of conscious volition or deliberate choice. In the present state of scientific
knowledge evidence of dog tracking, even if admissible is not ordinarily of much
weight [Abdul f?azak u 5, A 1970 SC 283]. The genuineness of the evidence of clog
tracking need not necessarily he tested in the restricted terms of availabilityr onon
availability of a drawn panchaoama supported by the testimony of the dog handler.
What appears to be relevant and material is that with regard to the dog tracking
evidence the testimony of the dog handler should inspire confidence of the court so
as to be accepted as a genuine and valid evidence given by the prosecution. The
Courts should be satisfied and free to accept any test of scrutiny of such evidence so
as to enable them to reach to the conclusion that such evidence is reliable and free
from doubt as corroborative evidence of the various other circumstances placed or
made available by the prosecution in support of their case [Ashok Gavade v State of
Goa, 1995 Cri U 943, 954 (Born). See also 1993 Cri U 2808: 1993 (3) BCR 309
which has been affirmed on this aspect by the Bombay High Court see also Abdul
1?azak Murtaza Dafadar v. State of Maharashtra, A 1970 SC 283 : 1970 Cri
Evidence relating to movements of tracker do g s cannot be rejected as inadmissible
II 373J.

and in approprite cases it is open to the court to consider it. Its reliability, of course,
depends upon the acceptibility of the- testimony of persons who manned the dog and
those who witnessed the movements and conduct of the animal [Bliaciran v State of
Kern/a, 1995 Cri LJ 676, 679, 680 (Ker)].
While complete and implicit reliance cannot he placed with regard to the
identification only on the dog tracking evidence, judicial notice must he taken of the
fact that the training skills and special skills and special qualities that are found in the
police dogs are now universally being recognised as being of such a high calibre that
in cases such as detection of explosives, drti g s etc. Ihey are found superior and more
effective than the most sophisticated instruments. For the purpose of tracking down a
criminal, special faculties, qualities and skills of the dogs are aspects of which
serious note must be taken. Where police rely on such evidence, courts would be
more than fully justified in accepting it provided that it passes the test of complete
scrutiny [Pajidian K. iVadar v. State of Maharashtra,
1993 Cri LJ 3883, 3895
(Born)].
892 Sec. 45 Chap. ll__-Of /I/c Relevancy of lari.v

Foot prints.-- The science oh ideiiti cation of- loot prints is not a hilly developed
science and tliei -ek)re, it' in a given case evidence relating to the siinic is huiid
satisfactory it may be used only to reinforce the conclusions as to the identity of a
Culprit already arrived at on the basis ol other evidence [Ala/u!. Anion e. State qJ
Rajasthan, A 1997 SC 2960, 2963 : 1997 Cii Li 3567]. Marks of shoes oh the
aCCUSCCI Found oil the Spot is not sufficient to connect the accLiSCcl with the crime
State of Ilar y ana e Ved Prukasli, A 1994 SC 468, 469 : 1994 Cri Li 1401.
Gambling.—It is impossible to say that gambling is either an art or science. But a
prosecution witness might give evidence that he had a long experience among people
Who indulged in gambling, and from that experience 10 he supported by instances, he
was satisfied that a System or code prevailed among such persons, and he. might then
express an opinion that the slips in question had a certain meaning. lie is not,
however, entitled to express the opinion that unintelligible documents found in a
room must he the record of gambling transactions [Hc.rilal v. 1?, 1937 Born 670: A
1937 13 385]. In order to prove that articles seized are instruments of gaining it is not
necessar y to examine an expert in each and ever' case [S v. Jaganbhai, A 1966 SC
1633].
Honsc-breaking.----Whc.n the police noticed that there was sameness in the modus
operandi in the house-brcakings and came to the conclusion that it must have been
the work of a gang, the opinion as to the existence of the gang is relevant. [Amdu-
miyun 'c R, A 1937 N 17 FBI.
Illicit Liquor.---An Excise Inspector can give expert opinion on illicit liquor
[Srichand i 5, A 1974 SC 639; Gobardlian a 5, A 1959; Rcmikaran v. R, A 1935
N 13].
Land.—In determining market value of land the opinion of experts is often
valuable, sometimes necessary. But such evidence is most often required where there
are structures or other improvements [S o: Marianuna, A 1969 K 265]. A valuation
surveyor, having made careful and appropriate inquiries, so far as necessary, is in our
judgment fully entitled 10 rely on what reasonabl y appears to him to he reliable
information. So is an expert. Both will be concerned to satisfy themselves that an
allegedly comparable transaction in fact took place, that there was not some special
factor which produced a typical result and that an allegedly comparable transaction
was in truth comparable. These matters are likely to be explored in court when
evidence is given [Abbey National Mortgages v. Key Surveyors, (1996) 3 All ER 184
In n'achine ihe ahove conclusion the court was fortified b y reference to a
ruling given by PHILLIPS J in Banque Bruxelles Lambert SA v. Eagle Slur Insurance
Co. Ltd., (26th February 1993. unreported). That was a valuation case, and it was
argued for the valuer that the claimant lenders should he put to strict proof of any
comparables upon which they relied. PHILLIPS J distinguished English Exporters
(London) Lid. a Eldoiiwa!! Ltd., (1973) 1 All ER 726 : (1973) Ch 415, and held:
"The unchallenged evidence has established that competent valuers make
valuations on the basis of market intelligence which is hearsay, as one would
expect. They do not and cannot apply the hearsay rule to the material they take
into consideration. It seemed and still seems to me that in consdering whether
(the valuer's) valuation was or was not negligent, I not only may but must have
regard to the hearsay material that a competent valuer could and should have
had reg ard to when performing the valuation. That of course requires proof of
the hearsay material that would have been available to such a valuer but such
proof is a very different exercise from that which (counsel for the valuers) has
contended is necessary."
 Opinions of apert.v. Sec. 45 893

The true position is in our Opinion, that both a valuer and a valuation expert may
have regard to market intcllience, but it is, of Course, open to anyone challenging
(lie valuation to seek to show, for an y one of a number of possible reasons, that the
intelligence rclicd on was Unreliable, 'or should not have provided a guide to the case
in question. [Abbey National Mortçaçes 'a Key Sunevors, (1 996) 3 All ER 184].
Where the material date for determination of compensation under Land Acquisition
Act was of the year 1972 but the experts inspected the property in the year 1990,
their evidence cannot be taken into consideration [Special Land Acquisition Officei;
Roin/iay 'a 'Vishanji Wiji Mepani, A 1996 Born 366, 371].
Hair.—Wherc hairs were found in the hands of the deceased, by g iving sample of
hairs an accused does not become a witness against himself [Nee raj Sharma i.. State
of U. 1993 Cri U 2266, 2269 (AID].
Identity of seized articles,—The opinion of the Forensic Sciences Laboratory on
the identity of the articles siezed and the authenticity of the packet were held to be
relevant. A minor lapse in the deposition of a police officer could not provide a
ground to hold that the seal on the packet was a different one or that the material
seized was different from that examined by the laboratory. Sarjudas 'a State of
Gujarat, 1999 (8) JT 118 : ( 1999) 8 SCC 508.
Nautical Assessors.—The advice of nautical a ssessors is expert evidence
admissible inAdmiralty Courts oil issues of fact or about seamanship. The court
is not hound to follow their advice, but obviously great attentions must be paid to
their opinion [Asiatic SW Co 'a Arabinda, A 1959 SC 597: 1959 Supp I SCR 979].
When the court has the assistance of nautical or other assessors, expert evidence, on
matters within the sphere of the assessors is generally inadmissible [The Kestrel
1881,6 PD 182; TheAssyrlan, 1890,63 LT 91 CA; Hals 31-d Ed Vol 15 pam 588].
Trade niark.—In the case of infrin g ement of trade mark similarity in the mark is
a matter for the court and evidence as to opinions of witness is inadmissible
[Smradeshi Mills Lid 'a Juggi Lai, 49 A 92: 24 AU 975; see Mocdonald & Co 'a
[Jo/land & Moss, 41 IC 539]. But the opinion of the Re g istrar, who has expert
knowled g e, regarding deceptive similarity, should not be disturbed lightly although
he m y he proved wrong [Krishna Cheuiar 'a Ambad & Co, A 1970 SC 146]. a
Telephony.—Evidence of expert witness on matters regarding telephony is
admissible lBacharal 'a Bombay Telephone Lid, A 1939 S 245 As to communi-
1.
cations received by telephone or dictaphone, see notes to s 60 post.
Typewriting Speciniens.—The word 'science', occurring independently and in
addition to the wordhandwriting' in Section 45, is sufficient to indicate that the
Opinion of a person specially skilled in the use of t y pewriters and having the scientific
knowledge of typewriters would be all in this science; and his opinion about the
identity of typewriting for the purpose of identifying the particular typewriter oil
the writing is typed is a relevant fact under section 45 of the Evidence Act [Stale 'a Si.
Choudhiy, A 1996 SC 1491 : 1996 Cri U 1713, 1715 overrules Hanwnani 'a State of
M.P., A 1952 SC 3431. The meaning of the word 'science' as understood ordinarily
with reference to its dictionary meaning must he attributed to the word as used in
section 45 of the Indian Evidence Act. S.], Choudhry; supra.
Some of the meaning given in dictionaries are:---
The O.iford Encyclopedic English Dictionar y : " Science .....a systematic and
formulated knowledge, esp. of a specified type or on a specified subject (political
science). b. the pursuit or principles of this..."
The New Shorter Oxford English Diciiona,y Vol. 2: "Science......2a. Knowledge
acquired by study acquaintance with or mastery of a department of learning ...... 3a. A
particular branch of knowledge or study; a recognized department of learning......
Collins Dictionary of time English Language, "Science n. I. the systematic study
of the nature and behaviour of the material and physical universe, based on
894 Sec. 45 Chap. II— Of the I?elela,IcV of/icts

observation, experiment, and iicasu c men t, and ihe formulation of laws to

describe these facts in general terms. 2. the knowledge so obtained or tile practice
of obtaining it. 3. any particular branch of this knowlcdgc: the pure and applied
sciences. 4. any body of knowledge organied in a systematic manner. 5. skill or
technique........
It is clear from the meanin g of the word 'scicnce' that the skill or technique of the
study of the peculiar features of a typewriter and the comparison of the disputed
typewriting with the admitted typewriting on a particular typewriter to determine
whether the disputed typewriting was done oil same typewriter is based on a
scientific study of the two typewritings with reference to the peculiarities therein; and
the opinion formed by an expert is based oil principles regulating the
scientific study. The opinion so formed by a person having the requisite special skill
in the subject is, therefore, the opinion of all in that branch of the science.
Such all is the opinion of an expert in a branch of science which is
admissible in evidence under Section 45 of the Indian Evidence Act. S.f. Choudhlr}'
supra.

There cannot he any doubt that the opinion of an expert in iypewritings about the
questioned typed document bein g typed oil particular typewriter is based oil
scientific stttdy of the typewriting with reference to the significant peculiar features
of a particular typewriter and the ultimate opinion of the expert is based oil
grounds. The opinion of a typewriter expert is an opinion of a person specially
skilled in that branch of the science with reference to which the Court has to form an
opinion on the point involved for decision in the case. Oil plain construction of
section 45 giving to the word 'science' used therein its natural meaning, this
conclusion is inevitable; and for supporting that conclusion, it is not necessary to rely
oil further reason that the word 'handwriting' in Section 45 would also include
typewriting. S.]. Choudluy, supra.
In 'Questioned Documents', Second Edition, by Albert S. Osborn in the Chapter
of "questioned typewriting" this aspect is considered and, therein at page 598, it is
stated thus:
'The principles underlying the identification of typewriting are the same as those
by which the identity of a person is determined or a handwriting is identified. The
identification in either case is based upon a definite combination of common or class
zualities and features in connection with a second group of characteristics made up
of divergences from class qualities which then became individual pecaac.
The mathematical principles outlined in the fourteenth chapter show how remote is
the possibility of coincidence of even a few scars or deformities oil person, and
coincidence of scars and deformities are as remote with typewriters as with persons."
In 'Photographic Evidence' by Charles C. Scott, Second Edition, Volume 1, under
the heading "Typewriting Identity or Non-identity of Typing" it is stated thus:
"But even as the nationality of all may be perplexin g but does not in any
way hamper the determination of his personal identity by means of his finger prints,
his handwriting, or other reliable indications, so also the fact that it s often difficult
to determine the make of a typewriter used in typing a document does not lessen the
reliability of the scientific determination that a certain typewritten 1 document was
typed on a particular machine regardless of its make. By the use of the proper
microscopes and test plates the document examiner often call the question
and by the use of photographic comparison charts he call his findings,
usually with unimpeachable certainty.
Opinions of experts. Sec. 45 895
From U comparison of the typcwriting 01) U docu ment which is a subject of
Controversy With specimens known 10 have been made on a ecrtari typewriter it is
usually possible to determine whether or not that typewriter was used in typing the
Subject document, provided the subject document contains sulftcient typewriting and
the specimens from the known machine are of a suitable kind. This is true because
every t y pewriter when it comes oil the. assembly line is an individual and writes
exactly like no other t y pewriter. When a typewriter is brand new the differences
between it and other typewriters coming off the assembly line at the same time are
extremely minute and elusive, but theoretically at least there are identifying differ-
ences that can be discovered by microscopic examination and demonstrated photo-
graphically. Furthermore, the more a typewriter is used the more individualistic it
becomes; and the easier it is to identify its typewriting. In some instances through
overuse, misuse, or abuse a typewriter develops so many peculiarities that its typing
can be identified readil y with the naked eye.' (p. 636)
In 'Law of Disputed and Forged Documents' by J. NEWTON ., BAKER, while dealing
with the basic principles of identification of T y pewriting generally it is stated:
Since typewriting possesses individuality it Cal) be compared and identified in
the same manner as handwriting........(page 453)
Therein while discussing individuality of typewriting, it is slated thus:
"The individuality of the typewriter is established by the character of its type
impressions oil paper. These characteristics of typewriting can be analyzed,
compared and differentiated and can he positively identified as those of a particular
typewriter. This individual comparison and identification of characteristics may
establish the genuineness or forgery of a t ypewritten instrument and when admitted
in evidence is sufficient. proof.
The occurrence of similar irregularities in t y pewriting in two or more machines is
practically impossible. The rule that the typewriter creates for itself a certain
distinctive character of writing which identifies one certain machirre from all other
machines is well established. To prove that two instruments were written on a parti-
cular typewriter similar coincidences of characteristics must he shown in both
instruments, and these coincidences considered collectively must demand a single
conclusion.' (pages 45 1-452)
In 'Typewriting Identification (Identification S ystem for Questioned Typewriting)"
by Bill Prior Bates, the conclusion of the principles is stated thus:
"Conclusion

TYPEWRITING identification is based oil same principle underlying

handwriting identification, or any oilier thing which has a great number of possible
variations.

The identification of a typewritten document can he likened to the identification of

a particular person. A person may he identified in general by his sex, size, features
etc., and in addition, for example, by a radical mastectomy scar. A typewriter may he
identified in general by characteristics such as type design and size, possessed by all
machines of a specific make and Model, and in addition, for example, by a flaw in
the serif oil letter E.

No opinion as to identity should be based upon only a few dissimilarities (or

similarities) Ii is the combination of measurements and characteristics which all
together make up the conclusion.
 $96 Sec. 45 Chap. U- -Of l/ic Reieiancv of Eacis

When good, clear specimens are available in sufficient amount for a scientific
identification of the twelve points of comparison, it is possible to show with absolute
certainty that a document was, or was not, produced by a particular machine.
The mathematical probability of the same combination of these characteristics
divergent from the norm appearing in two machines is practically nil. The evidence
Of the twelve points of comparison can he conclusive proof." (page 59)
A Bench of five Judges of the Supreme Court in S.J. C'houd/iry case, 1996 Cd U
1713 overruled the decision in Ilajiwnaiit e State, A 1952 SC 343 and concluded
thus:

It is, therefore, clear that the examination of typewriting and identification of the
typewriter on which the questioned document was typed is based on a scientific
study of certain significant features of the typewriter peculiar to a particular
typewriter and its individuality which can he studied by an expert having
professional skill in tile subject and, therefore, his opinion on that point relates to an
aspect in the field of science which falls within the ambit of section 45, of the Indian
Evidence Act.

"In the present case, even without resort to the word 'handwriting' in Section 45 to
include typewriting therein, in the view we have taken, the word 'science' is wide
enough to meet the requirement of treating the opinion of a typewriter expert as an
opinion evidence coming within the ambit of Section 45 of Evidence Act. We may,
however, add that the long accepted practice of judicial construction which enabled
the reading of the word 'telegraph' to include 'telephone' within the meaning of that
word in Acts of 1863 and 1869 when telephone was not invented, would also be
available in tile present case to read typewriting' within the meaning of word
'handwriting' in the Act of 1 872. This is so because what was understood by
handwriting in 1872 must now in the present times after more than a centur y of the
enactment of that provision, he necessarily understood to include typewriting is well,
since typing has become more common than handwriting and this change is on
account of the availability of typewriters and their common use much after the statute
was enacted in 1872. This is an additional reason for us to hold that the opinion of
the typewriter expert in this context is admissible under section 45 of the Indian
Evidence Act." As the words "science or art" have been given a very broad interpre-
tation in many cases (ante: "Science or Art to be construed widely"), it is not easy to
see why the evidence Of experts on typewriter impressions does not come within the
words unless the absence of its specific mention in the section (as in the case of
handwriting or linger impression) is considered a bar. But there is also no mention of
foot-prints or telephony and the evidence of foot-print or telephonic experts lia.s hecn
held admissible. So also of ballistic or medical experts who too have been mentioned
in s 45. Skill in any trade, business or employment should make a person an 'expert"
Within the meaning of s 45 as held in English and .American authorities (ante pp
491-93).

Even prior to the Supreme Court decision in Hanumant case supra it was observed
by the court that the evidence as to the fact that the typewriters used in the typing of
various exhibits had certain defects or peculiarities which were deaf from the typing
of those exhibits could be given by an expert. The court was entitled to draw its own
conclusion from the whole evidence including that of the expert lManabendra n
A 1933 A 498: 35 Cii LJ 768; sec also fhabiva/a n R, A 1933 A 690: 34 Cd U 967).
In another case it was held that tile court may ask the witness points in favour of the
view whether tile two documents have or- have not been typewritten on the same
 Opinionv Scc. 45 897
machine, but it must come to iN own couclusjofl lilac/ic/rn v. 1?, A 1935 A 162: 36
Cri U 6$.11.

The claim of experts that typewriters cannot he matched and that every typewriter
has its own peculiarities or defects of impression which are is individual as a
Pci_son's handwriting, has been established in many cases in America. It is also a fact
that two typewriters do not wear alike and each develops its Own peculiarities or
faults ol alignmcnt. Oil point see cases cited in \Viimorc, s 2024 toot-notes and
22 Corpus Juris Secundum, 1223. In Ly on m Oliver, 1925, 316 Illinois 292 : 147 NE
251, expert evidence was admitted to prove that a letter was t y pewritten on a
machine not made till after the (Lite of the letter, Mitchell in his book. The Expert
Witness, says (pp 130-3 1): "With regard to typewriting it may he mentioned briefly
that each machine has its own idiosyncracies by which it may he recognised, and
observations made by the writer have proved that letters written upon the same
typewriter at intervals of a year will exhibit corresponding peculiarities."

Water Mark on Cartridge Paper.—Whcre the Deputy Controller of Stationery

who is the head of the department gave evidence that cartridge paper bearing a
particular water mark was issued oil certain date under his orders, the evidence is
admissible as he is competent to give evidence from his own knowledge of it
[Calcutta High Court Cr Revision Nos 681 and 1049 of 1959—S M Basu n-: S R
Sai-kor and P N Ta/ukdar i S R Scirkar, decided on 18-S-]960---per Bosn J, (R ic
Jafftirul, 59 C 1046 : 36 CWN 514 distd as the evidence there was that of an office
assistant who spoke only from an entry not made by him and privilege was also
claimed].

Workmen's Compensation Cases.- —The Jaw in this country is somewhat

different from the law of En g land as regards using the services of experts for the
purpose of determining workmen's compensation cases. S 20 of the Workmen's
Compensation Act gives greater latitude to the Commissioner J AIi Akbar i'. Java
Bengal Lute, 1937, 2 Cal 714 : A 1937 C 697].
Special Rules of Evidence in Cr P Code.—Deposition of Medical Witness
Without Being Called.—Under s 291 of the Cr P Code of 1973. "(1) The deposition
of a civil surgeon or other medical witness, taken and attested by a magistrate in the
presence of the accused, or taken on commission under Chapter 23B, may he given
in evidence in any inquiry, trial, or other proceeding under this Code, although the
deponent is not called as a witness.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution
or the accused, summon and examine such deponent as to the sujcct-rnattcr of his
deposition."

The record should show that the deposition was taken and attested in accused's
presence, or it must be proved by evidence. There is no presumption under s 80 or S
114 i/las (c) [R n Riding, 9 A 720; R i: J/iubboo, 8 C 739; Bairangi i: R, 4 C\VN 49;
Kac/mali n R, $ C 129; R Pop/n Singh , 10 A 174. See also s 33, ante]. S 509 (now s
291) does not preclude the sessions jud g e from calling the civil surgeon as a witness
and this should he done when the deposition taken by magistrate is deficient
[Rog/iwni n R, 9 C 455]. A copy of a letter from the civil surgeon addressed to the
judge containing his opinion is inadmissible [R n Sanuruddin 8 C 211; i3udlnu n
A 1925 C 538; Dec/inn n J/iuri,
A 1936 C 363]. Nor is the report of a medical man
[Rag/nuni v R, step; R n Jadab Das, 4 CWN 129; R n Rain Sarup, 6 CWN 95, R n
Ramaswanmi, 40 Cri IJ 496] or his certificate [Ahmi1i v. B, 47 B 74; Panchanan
V.
D/zagiu, A 1950 C 261; Seis v. Annapurna, A 1950 C 173]
or the inquest report
 898 Sec. 45 (hap. /1 0/ thu he/ecu//c l of ltci.s
Sue/wi is. A 1956 SC 4251 admissible, though it may he
used to i'ctresh his
lilemory.
S 509 (now s 291) is not intcndcd to he applied when the medical wiuicss k
present in court [In re Ron gappa, 59 M 34 91 or is called and examined
[B/u(ic.vc'\ 1
5, A 19-17 0 41—CON -IRA: ilos/wiat n I?, A 1947 L
3771. S 509 (now s 291) is
Conhncd to the evidence of a mcdieal Witness as such. It does not apply to the
i ecording of a (lying statement by a doctor [lfhi-ri.c v. R, A 1940 0 209]. The section
does not permit the use of that portion of testimony which relates to non -medical
matters [iVawi c R, A 1943 1, 101]. S 509 (now s 291) is subject to the condition that
the accused should have been given full opportunity to cross-examine the witness
[Shii'ao'in i: R, A 1923 P 116 ] . The unexibjied report of chemical examiner is a
document which proves itself under section 293 Cr PC and does not require to he
formally proved by any witness [Shatrughan n AIR, 1993 Cri I .J 120. 123 (MP)].
Once a document is properly admitted the contents of (lie documents wotild stand
admitted in evidence and if no objection has been raised with regard to its mode of
proof at the sta g e of tendering in evidence such a document, no such objection could
be alleged to be raised at any later stace of the case or in appeal lAmar/it Sing/i ct
An,: v. Stare (Delhi Adnut.), 1995 (1) Crimes 777, 786 (Del)].
Deposition of Medical Witness 1-low Recorded.—In recording evidence of a
medical witness, it is improper to simply record that the injuries were fully detailed
in the medical certificate instead of taking his statement [B/tag Sing/i i: 5, 26 PLR
343 ] . A medical expert ought to be examined orally in
the presence of the accused.
Statements made by him in some other trial are inadmissible [Satdara i'. R. 26 PLR
80].

Reports of Certain Govt Scientific Experts and Officers of Mint etc etc.----
Under s 292 Cr P C the reports ol certain gazetted officers of the Mint or of Indian
Security Press (including the office of the Controller of Stamps and Stationery) upon
any matter duly submitted to them for examination and under s 293 Cr P C reports of
certain Govt scientific experts, namel y : (a)-any Chemical Examiner or Asst Chemical
Examiner to Govi; (h) Chief Inspector of Explosives; (c)
Director of Finger Print
Bureau; (d) Director, Haffkeinc Institute; (e)
Director, Deputy Director and Asst
Director of a Central Forensic Science Laboratory or a State Forensic Science
Laboratory; (1) Serologist to the Govt are admissible in evidence without calling
them as witness though the court ma y summon and examine them if it thinks fit.
Unlike, in the case of the Serologist, examination of a medical witness, except
in a
case covered 1w sec. 291 Cr.PC. is not disnrned with b y biw [Rbniicla (7rofr
of Assam, 1984 CH U 217, 220 (Gao)]. The word an y ' covers an 'additional
chemical examiner' and the addition was made to meet the case in 10 C 1026. The
word used bein g "may'', the use of the report by the court as evidence is
discretionary. Cf S 19A of the Coroner's Act. (See further Sarkar's Cr P Code, 4th
Ed). An inadequate report should not be admitted in evidence unless the officer
submits a full and satisfactory report or has been examined in support of it IGa ya v.
R, A 1934 062].
Under section 45 all of an expert on science or art etc. is relevant piece of
evidence. Senior Scientific Assistant (Chemistry), Central Forensic Science
Laboratory, although not falling ill categories of the officers enumerated in
section 293 Cr PC yet he is an expert in science and thus his opinion would he
relevant piece of evidence in view of section 45 [Amal it Sing/i v. State (Del/ti Adinn.),
1995 Cd LJ 1623, 1628 (Del)]. A Public Analyst by pleading i g norance of the
freezing point test, which is a generally accepted test tu ascertain the presence of
 Opinions (f('rper(s. Sec. 45 890

excess or added water in the sample milk, having exposed his superficial knowledge
of the subject, the ground mentioned by him under section 51 in support of his
opinion as an expert, to be admissible under section 45 fell short of court satisfaction
fDilip Singh n State of Rajasihan, 1997 Cri U 2161, 2465 (Raj)]. Where the expert
evidence is based on the notes prepared in exercise ul' official duty' but copies of such
notes were not supplied to the accused it. was held that such notes could not be relied
upon [Vu/ia! Ma/iadeo Paul n State, 1996 Cri Li 1796, 1801 (Karn)). Where the
samples taken out from the seized contraband remained with the police officer for
three da y s without being noted down anywhere in the records and thereafter sent to
the chemical analyser and there was no satisfactory explanation to exclude possibility
of tampering with them during period of three (lays, the certificate of the chemical
Anal y ser that the said samples contained herein must he discarded lAb/id. Hussain
B. Ram.can v. State of Maharashtra, 1994 Cri U 1020, 1024 (Born)]. In Dim/a i:
State of Rajasthan, a Division Bench of Rajasthan High Court observed that Forensic
Science Laboratory report in regard to blood stains present on the weapon of offence
cannot he used against the accused unless it was put to accused in his statements
under section 3 13 Cr.P.C. and was given all to explain it [Dim/a v. State
ofRajasu/man, 1997 Cri IJ 609 (Raj)].
The certificate of the Imperial Serologist touching the matter of blood-stains is
admissible Perumal e. SIR, 1937 Mad 764'. A 1937, M 407]. So under s 14(2)
Bengal Food Adulteration Act, 5 of 1919, the certificate of the public analyst is
evidence without formal proof, but there is no presumption that it is accurate [Legal
Rememn 'i' Ks/mitish, 1939, 2 Cal 495: A 1939 C 6671.
The original report signed by the Chemical Examiner who examined the matter
submitted is evidence JR n Bis/mumb/iar, 15 WR Cr 49: AN Simaji m: I?,
A 1949 L 240]
and not its copy [S jr. Kai-it, A 1954, P 131]. Mere statement of opinion is not
enough. The reporl of the chemical examiner must contain the grounds oil he
arrives at his opinion [Gajrani v R, A 1933 A 394].

The report of an excise analyst of a Government distillery does not come within s
510 (now s 293) [Bansj Led v. 1?, 52 N 686: A 1928 B 241]. So also report of
Municipal Analyst [Suleinan v. R, A 1943 B 4451. The report of the public analyst
can be used as evidence ]State v. Dines/i Kumar, 1986 Cri U 1527, 1529 (Del) (DB)
(1986) 1 FAC 194 : (1986) 2 REC. Cri. R. 476]. When the report of chemical
examiner was not tendered in trial court its perusal by the appellate court without
recording an order under s 428 (now s 391) Cr P Code was wrong [Wali Md m: R, 21
AU 869]. Weight due to the chemical examiner's report [see Hassenulla v. R, A
1924 C 625: 83 IC 485: Ajs/nan R, A 1934 L 150; Gaya i B, A 1934
' 0 62:
Be/irani n B, A 1944 B 312]. The danger of the provisions of s 510 (now s 293) Cr P
Code which allow the report to he used as evidence without subjecting the chemical
examiner to cr oss-examination was pointed out in some cases
[Hapjm 'n R, 32 AU
173; Ujagarv. B, A 1939 L 149: 1939 Lah 206] and so sub-s
(2) was added to 5 510
by Act 26 of 1955. When reports of the Chemical Examiner and Imperial Serologist
contradict each other, the prosecution should explain the differenic and mere
production of the report proves nothing v S, A 1954 SC 1: 1 954 SCJ 61 2].
If reporL of chemical examiner on blood-stained earth found in the place of
occurrence along with the earth is not produced in court in contravention of usual
practice the defence version may be true [Laksiimi v. S, A 1976 SC 2263].

Mere Certificate of Medical Man or Expert.—A certificate granted by a

Professor of Anatomy in a Medical College as regards bones is not admissible unless
proved by the evidence of the person giving it FR A hi/pa, 24 Born LR 803 : 47 B
 900 Sec. 45 Chap. /1- 'U 1/ic Rek'i'oi,c i o//acts

741- A doctor's certificate relating to the illness of ii wiuicss is not by itself evidence
at all. It is hearsay [Sarada a NItattivala, A 1935 M 659; S,i.v 0 11/1'Iap/e/71a, i\
1950
C 1731. The correctness of the statement in the certilicaic has to be l)roved b y an
allidavit or oral testimony in court by the doctor concerned or by some other
evidence [Pet/ad T R &'c a D y es & C/tenijca/ c, A 1960 SC 1006, 1007 : 1960, 2
SCR 906]. Medical certificates are not themselves admissible in evidence. They niust
he proved by Lhc Lcstirnony of persons giving them [Richards v.Saiidar.s Sons,
1912, BWCC 382; Ahiflkhar a Java Bengal Line, 1937,2 Cal 714 A 1937 C 697;
Pcrwnal a SIR, 1937, Mad 764: A 1937 M 407; Coral a Gans/aces, A 1953 M 858;
AhmedabadMunply a Shanti/al, A 1961 G 196; Govindrajulu a Laks/uni, A 1961 M
159; Gopi a Madanlal, A 1970 Raj 190].
The plea of the Doctor that the out-patieni register was not traceable cannot he
thrown away outright. It is common knowled g e that in small places the out-patient
registers are not kept with proper care and attention. Absence of an y indication that the
patient was unable to move is not fatal to the plea of illness. No medical officer
indicates in the certificate the exact condition of the patient [Nit)'zlIandu Maj/ti i: Srpra
Das A 1986 Orissa 102, 103; (1985) 2 Ori LR 272]. In the absence of any challenge by
the other side, the medical certificate should he accepted as correct unless the court
feels that its contents arc on the iaec of it false or at least it is doubtful, [Navnital a
Hasmukhtlal, A 1988 Guj 34, 36 : 1987 (2) Guj 1.R 1134]. When the doctor who issued
the post-mortem certificate is not examined, the cause of death cannot he established
!Dhobi Yadav a State of Bihar, 1989 Cri. Li NOC 193 : 1989 BBCJ (HC) 422; Bindu
Mahto and Hazan a State of Bihar, 1989 Cri. LI NOC 107 (Pat) (DB)]. The certificate
of the Principal, Medical College, without more is not evidence that the preparation
seized is not a medicinal preparation [S a l3hausa, A 1962 13 229 ] . Report of a doctor
about the age of a girl made in an affidavit by another person but without the report of
the doctor before the court is not admissible lMd Ikram a 5, A 1964 SC 1625]. Opinion
of Radiologist cannot he considered as conclusive [Taiyah Shaikh a The State, 1988
Cri. Li NOC 1: (1988) 1 Cal HN 243].
The report of a public analyst is not admissible without examining the analyst
[Raghunat/z a Kurseong Municipality, 76 IC 394: A 1923 C 561; Rajkishan a S, A
1960 A 460]; so the report of a handwriting expert without examinin g him as a witness
[Parivat a Sukdev, A 1956 B 617 ] . Report of Govt expert on handwriting not supported
even by an affidavit is inadmissible [Peary v. Kidar, A 1923 A 601]. Court obtaining
the opinion of an expert as to date of a stamp of a finger-print expert cannot base its
judgment on it without having the opinion formally proved and without giving an
opportunity of cross-examining the person [Rain Autar a Baldeo, 11 P 782; Thsaduq a
Ra.cau.'an,A 1933 P 159; B.Jn t Lrr) aKa.ran,A 1935 A 142]. Wh opinion of expert.
hs
been admitted without objection without his examination, no objection could he taken
in revision [Karant Din a Ala, A 1934 L 2301. Report of Director, Finger Print Bureau,
can be treated as evidence without examining him and if the opinion is based on
observations leading to a conclusion it can be accepted, but in case of any doubt the
court may examine him [H P Admit a Omprakash, A 1972 SC 9751.
Homicide or suicide.—The fact that the body of the deceased with a ligature mark
around the neck was found on the cot and not hanging completely was held to demolish
the theory of suicide completely. Rain Kwnar Madhusudan Pathak a State of Gujarat,
AIR 1998 SC 2732. Where the opinion in the post-mortem report was that the death in
question was homicidal and not suicidal and such opinion was accepted by the courts
below, it was held that the Supreme Court could not take a different view. Najiani
Faraghi a State of WB., AIR 1998 SC 682: (1998) 2 SCC 45.
Medical opinion on time of injury.—The testimony of a doctor on the point of
time at which injuries were caused or, in other words, as to the duration of Injuries,
can never be absolutely certain. Rant Swaroop a State of UP., AIR 2000 SC 715,
Opinions of experts. Sec. 45 901

Waiver.—When a Ixirt>' does not object to the report of a finger-print expert, he

cannot be allowed to say in appeal that the evidence is inadmissible without proof [ I)in
Mdi'. Sam, A 1927 1, 396: 100 IC 922].
Medical Opinion And its \'alue.—"The opinion of ph y sicians and surgeons may he
admitted to show the physical condition of a person, the nature of a disease, svlie0ier
temporary or permanent. the effect of disease or of physical injuries upon the body or mind,
as well as in what manner or by what kind of instruments they were made, or at what time
wounds or injuries of a given character might have been inflicted, whether they would
probably he fatal, or actually did produce death, the cause, symptoms and peculiarities of a
disease, and whether it would be likely tocause death, the probable future consequences of
an injury , when consequences anticipated are such as in the ordinary course of events may
he reasonably expected to happen, and are not merely speculative or possible. While it is
improper to ask a physician how certain wounds or injuries were actually given, as this
would he trespassing upon the province of the jury, he may he asked by what kinds of
weapons wounds of a given description might be caused, or whether wounds of a given
character were caused before or alter death" [Jones, s 378 and cases cited]. See also "Mode
of Exwnination c[Evperi.v and its Scope" (wile).
Opinion of medical men based on hearing the evidence of other witnesses without
observing facts is riot of much value. Thus opinions of doctors based mostly on
prescription and Oil general knowledge of the course of a disease are always indirect
evidence and not of much weight when compared with the evidence of doctors who
personally attended the patient [Hail Sing/i v. !.achmi, 59 IC 220: 12 PLR 19211. If the
oral evidence leads to a positive conclusion one way or the other the opinion of experts
have to yield or have to be accepted or rejected in accordance with the finding arrived at
oil of direct oral evidence [Brij Basi v. Mail Rain, A 1982 All 323, 331].
Doctors are experts in their own right and when they examine a person arid give opinion
it does riot normally mean that their evidence is not correct. The question will he whether
such evidence will he deemed to be sufficient [State (Delhi Minn.) v. Sr€be Singh, 1985
Cri Li 1190, 1192 : (1984) 2 Crimes 109 (Del) (DB)]. A medical witness called in as an
expert 15 lint a witness of fact. His evidence is really of an advisory character given on
the facts submitted to him [Sunil v. 5, A 1954 C 305]. Even where a doctor has deposed
in Court, his evidence has got to be appreciated like the evidence of any other witness
and there is no irrehuttable presumption that a doctor is always a witness of truth. [Mayor
Panashai Shah c. State of Gujarat, A 1983 SC 66,67 : 1982 Cri Li 19721.
When medical men who attended the patient during his illness give their testimony as
to the bodily or mental state of the deceased, their evidence is not that of experts but of
men who has observed relevant facts and whose evidence derives an enhanced value
from the circumstances that they had favourable opportunities, peculiar facility arid
obvious incentive for accurate observation arid that their training would fit them to
appreciate and describe what they observed [Goppessur v. Bissessur, 16 CWN 265, 2731.
In a case where everything depends upon the medical evidence, it must be given viva
voce before the jury. BUCKLAND, J, observed that the doctor conducting the post-mortem
should lie required to record the length of time which in his opinion has elapsed since
death took place [Debendra r'. R, A 1929 C 2441. It would not be possible for doctor to
say with mathematical precision as to when actually the death had taken place prior to the
autopsy and merely because he has in terms., stated that death had taken place within
forty hours, the evidence of the three eye-witnesses that they had witnessed the
occurrence at a particular hour oil date is riot to be brushed aside. [State v. Aru
Pradhan, 1985 Cri LJ 161, 166 : (1984) 2 Crimes 198 : (1984) 2 Cut Li' 422 (On)
(DB)]. The evidence of the Doctor who conducted the post-mortem that the deceased
would have survived only one hour after the attack and might not be able to talk as he
was in a state of shock due to heavy loss of blood from the injuries, cannot be held
conclusive as he has stated that the deceased was a 'stout build man'. [Dulu Gogai v.
State ofA.ssam, 1991 Cni Li 199, 202 (Gao)].
The evidence of the Doctor who conducted the post-mortem is riot conclusive
because he is not sure whether the shock which caused the death of the deceased was
 902 Sec. 45
(Thajj /l---OJ the ReIc'(W(i (i/LOCH

due to the burns cwsccl on urn or due to the fracture of the lelt side 7th and SOt
hich in turn caused the collapsing of tlic left lung I State of Koroataka t: rih
//w/appa
1981 Cii Ii 1545, 154$ (Karn)] Evidence of an expert cannot o1itwcili direct
evidence [Dub! Cliwitha c Ga,rac/Jinr Parm, A
1998 Cal 1503.
The opinion of the doctor who had actually examined the injured person and had
himself examined him should he pietrrcd to the opinion of the other doctor which
was onl y based on the injury report and the X-ra
y report without even looking, to ihe
X-ray plate [Tanviben Pankajkrwiar Dei'ctia i'. Stale of Gujarat, A 1997 SC-2193
1997 Cri LJ 2535, 2550]. Although (lie scrolocists report indicated that blood Iund
on shirt and han iyan was human blood, but when the said clothes were found to be
the belongings of the accused, they cannot he said to be sufficient to conncct the
accused with the crime of murder [Ba/ti u. State,
1993 Cri LJ 2082, 2173 (Mad)].
A doctor is expected to note the time of attack, manner of attack or about other
particulars. The doctor is expected to record the name of the person. There is no
harm if the doctor is reporting whether the injured sustained injury by a known or
unknown person. Such a practice will help both the prosecution and the accused and
that can be followed [Bas/teer n State, 1993 Cii
Li 2173 (Mad)I. Contused lacerated
wound oil side of the head cannot he said to have been self-inflicted injury fBuhu
B/tih'a Jail/mv v. State of Ma/iaros/it,a 1996 Cri I ,J 3952 at.
p. 3955 (Born)].
The doctor who had held the post-mortem examination had occasion to see the
injuries of the deceased ClU ite closely and in absence of any
conv incin g evidence that
he had deliberately given a wrong report, his evidence is not liable to be discarded
[Twivibeu Pankajkumar Divetia r State of Gujurat, A 1995 SC 2193 : 1997 Cri U
2535, 255 I]. In the case of conflicting opinions of the handwriting expert produced
by the defence and the Govt. Examiner of Questionable Documents, when the
Opinion of the latter was found to be more scientific and dependable, it would he sate
to rely on the same. There is natural tendenc y on the part of the expert to Support Inc
view of the person who had called hint [Raj Moliamorad n
State of liP., 1995 Cri U
810, $17 (HP)]. It is the duty of tile prosecution, and no less of the court, to see that
the alleged weapon of the offence, if available, is shown to the medical witness and
his opinion invited as to whether all or any of the injuries o i l victim could be
caused with that weapon. If, tile weapon is not available then the description of the
weapon should be given to the medical expert to ascertain the aforementioned facts.
This is the duty of the Public prosecutor conducting the case. But, in case he fails to
do that, it becomes the responsibility and duty of the trial court to elicit from the
medical expert about the aforementioned facts because failure to do so ma y some
tirnc cau cdjct i inoji in tile course ot Justice [K. Mallikarjwia State of AR.
Cii Ti 3100, 3111 (AP)]. 1995

When tile occurrence had taken place during night time, the witnesses cannot lie
expected to have noticed whether sharp edge or blunt ed g e of the axe was used in
inflicting a blow on the head of the deceased, Therefore even though one of the
witnesses had deposed at one stage that the accused had dealt a blow with sharp edge
of the axe while the oilier witness had not stated so, the statement of the doctor who
conducted the post-mortem that the injuries Found on the deceased could he caused
by blunt edge of the axe, cannot be said to be in conflict with the oral evidence
[Ra,tma/ Saniat n State of Guja rat,
A 1993 SC 1676, 1677 1 99 Cri U 1734].
When in the observation of the doctor, who was age d 42 years, and had considerable
n
expcence, the injury on the body of the deceased was all wound his opinion
cannot be ignored merely on ground that he had not exaniinccl the injury with a lens
hut had only expressed a general opinion [Vishnu Daga Pagar t'.
ms/nra, 197 Cii Li 2430, 2435 (Born)J. State of Malta-
Opinions of e.vpeis. Sec. 45 903

The doctor who held the post-mortem examination had occasion to see the injuries of
the deceased quite. closely. In the absence of any convincing evidence that the doctor
holding post-mortem examination had dcli-bcrately given it wrong report, his evidence, is
not liable to be discarded 17inibeit Pankajkuntar Divetia i: State of Gujarat, 1997 (2)
Crimes 109, 130 (SC)]. Whether the injuries attributed to the accused were caused by a
gun or by a rifle, is to be ascertained by the evidence of duly qualified expert and not by
all who had neither expertised knowledge nor he ever used any rifle or gun
[Ganpat Rant t: Stare of Rajast/ian, 1995 Cii U 1466. 1474 (Raj)]. Where one doctor had
actually examined the injured person and had noted the injuries himself but another doctor
gave his opinion onl y on the basis of the injuty report and X-ray report without looking to
more
the X-ray plate, the opinion of the former would be reliable. [ibnuiben Panka/kunrnr
Divetia c State of Gujarat, A 1997 SC 2193 1997 Cri U 25351. Tn absence of any
convincing evidence that the doctor who had held post-mortem examination and had thus
occasion to see the injuries of the deceased quite closel y, had deliberately given a wrong
report in his evidence regarding time of death of the. deceased is to he preferred to the
expert opinion of the doctor who had based his opinion only oil post-mortem report
and notes oil report as also taking into consideration the presence of rigor mortes,
lividity, coolness and report of injuries found oil person of the deceased F Tain'iben
Pankajkuinar Divetia v State of Gujarat, A 1997 SC 2193 : 1997 Cmi U 2535]. Even
when a single edged knife is stabbed into the body, both ends of the wound may appear to
be sharply cut due to tearing of the skin at the blunt edge I V \suvambharan u: State, 1994
Cri U 1552, 152 (Kcr), See also George v State, (1990) 1 KerIJ 177 (Kcr)J.
Certificates of doctor regarding injuries caused to the accused cannot be rejected on
ground that they were on plain papers and not oil form [4m,ni,ti V. Stale ofKerala,
1998 Cri II 481 (SC)]. Where probable time of death of the deceased was given by the
doctor who performed the autopsy it cannot be said that there was no definite evidence as
regards time of death [Lek/iraj e State of Gujarat, 1998 Cni U 396 (SC)].
Evidence of the victim that the injuries were caused by the blunt side of the axe,
cycle chain and stick cannot he rejected merely because the doctor admitted of the
possibility of his injuries being caused by a fall. [State of MaharashtraDatta
MarutiSalagar, 1998 Cri LJ 3756, 3758 (Born)].
Medical evidence from text hooks showing time of death from appearance of blisters
very
oil body is not of value [In re Chenna, A 1940 SI 710]. It would be difficult for
the Doctor to give nature of injury from a bare look at the photograph of the injury. [Rant
Me/tar o State, 198$ Cni U NOC 57 (Del)]. Medical opinion as to the time of death on
post-mortem examination based on the degree of digestion of stomach contents is
unreliable. It depends oil factors affecting one's digestion and also upon when the
deceased took his last meal and what articles of food were taken [Lachhntan u: S. A 1952
SC 167: 1952 SCR 839: see Dhanna r: S. A 1951 Raj 37;Azi: Khan v.5, A 1964 P 158].
In R v Ahmed Ali, 11 VR Cr25 NORMAN, J, observed as follows:—
"The evidence of a medical man or other skilled witnesses, however eminent,
as to what he thinks may or may not have taken place under a particular
combination of circumstances, however confidently he may speak, is ordinarily a
matter of mere opinion. Ilunian judgment is fallible, human knowledge is limited
and imperfect. New and previously unobserved phenomena, which till they have
been recorded, are supposed to be impossible, are constantly being noticed. It
would have been easy to convict the first man who crossed the Atlantic in a steam-
ship of perjury had he told his tale ill if the opinions of skilled witnesses,
who at the commencement of this century, believed such a feat impossible, could
have been accepted as sufficient proof of the falsehood of the statoment." Quoted
with approval in a case of handwriting [G v R, I R 2901.
 904 Sec. 45 ('/np. il--U! i/ie Role coin t' qf lui.c

It is well settled hat tire medical jurisprudence is not an exact science and it is
indeed difficult for any Doctor to say with precision and exic(i1ude as to when
particular injur y was caused and in ihc iristam case itS
10 ti l e esitet time of sexual
intercourse with piosecutrix EPiniap i: S. A 1977 SC 1307]. In 1110
case ot rape by
four persons on medical examination it is riot possible to sa y about tlic number of
persons corumi ting rape oil girl [Ba/remit Sing/i r: Stare of Punjab, A 1 987 'SC
1090, 1083:1987 Cri LJ97l].
It is the dut y of a mcdical expert called to prove insanit y
at the time of the
commission of fhc crime, but who is sane at the Lime of the trial, to offer to keep the
accused under his observation. He cannot base his opinion on the Summary of the
evidence at the trial [Basuantrao n R, A 1949 N 661.
The court accepted [he evidence ol a wife as to the paternity of it months child
in spite of the unanimous opinion of seven-al doctors [Rony/em u 13, 42 Li 402 cited
Phipson II Ut Ed. p 511]. Where medical evidence is neither definite nor unanimous,
one body of it being to the effect that the circumstances pointed to the application of
external force and the other that they pointed to sucide, it is misdirection to tell the
Jury that they are at liberty to prefer one view to the other- or to pt astde all tIne
medical evidence and form their own conclusion oil facts. The question in such a
case is whether the evidence of the medical experts, taken as a whole, points so
clearly in the direction of homicide that direct evidence establishing the impossibility
thereof (eg, as in this case an alibi
of the accused) must he rejected as untrue
[Sener'ii-a,e v. R, A 1936 PC 289: 41 CWN 65].
Before a court can place reliance on
the opinion of all it must he shown that he has not betrayed any bias and the
reasons on which he has based his opinion are convincing and satisfactory jSrare of
Maliara.s/irra n Sukirdco Sit , g/i,
1992 Cri Li 3454, 3469 (SC)]. Where medical
evidence is conflictin g and the trial judge after carefull y
and dispassionately
weighing the respective theories eome.s to a clear conclusion in fict, it WOLild not be
proper or safe or in accordance with sound practice to reverse it in appeal [T3ias i:
Augusrin, 162 IC 426: A 1936 PC
154]. When medical evidence ran counter to the
evidence of eye-witnesses it would not he proper for the court to rely upon the oral
evidence of the e y
e-witnesses unless there is some circumstantial evidence to support
it [Raj Kisliore n 5, A 1969 C 321 (Surjan v. 5, A
1956 SC 425; Lic.lr/mran v. S, A
1952 SC 167 reId on)].

The Doctor who has examined the deceased and conducted the post-mortem is the
only competent witness to speak about the nature of injuries and the cause of death.
Unless there is something inherently defective the court cannot s htituta its opinion
to that of the Dueior jlrlaJablia i Nagarb/iai Racal e State of Gujarat, A
1992 SC
2186, 2188]. Medical findings are the acid test of judging the truthfulness of the
evidence of eye witnesses. [Kapil Kwuar n State of Assam, 1983 Cr1 Li
(Gnu) (D}3)]. The evidence was that one accused armed with a sword and NOC another
66
With a Bhusa attacked the deceased. The Doctor found only one injury caused by a
straight sharp cutting heavy weapon. The Doctor's evidence is to he accepted in
preference to that of the e y e-witnesses [Gagan C/tooth-a Pattanaik r: State of Ori.rsa,
1990 Cr1 U (NOC) 39 (On)]. In a case of finding the evidence of the victim reliable
and trustworthy in respect of the weapons used, the medical opinion of the doctor
who has given out two alternative possibilities cannot override 1ic trustwordiy
evidence of the victim [Balraj Yadar' v. State of Bihar,
1990 Cri U (NOC) 90 (Pat)].
Medical evidence is hardly conclusive and decisive, because it i g primarily an
evidence of opinion and not of fact [Senevjratne v. R, sup]. To rely upon the medical
a
evidence as decisive is to render the other evidence entirely fruitless [Ana nt
Chintainon n'. 5, A 1 1,1 60 SC 500: 1960, 2 SCR 460; Arun n
5, A 1962 C 504].
Opinions IpeI.c. Sec. 45 905

liye-witnesses' account would require a careful independent assessment and

evaluation for their credibility which should not be adversely prejudged making any
other evidence jnc1udin medical evidence, as the sole touchstone for the test of such
credibility. [State of UP v. Krishna Gopal, A 1988 SC 2154, 2160 : 1989 Cri Ii
2881. Medical experts should have regard primarily to the facts and not draw upon
their imagination; otherwise the administration of justice would depend upon their
individual idiosyncrasies and become unstable and unworkable [Yhnus All v. R, 32
CWN 783]. It is well settled that positive evidence in a case is that of the eye-
witnesses and the evidence of a medical expert is merely an opinion corroborating
the same. The value of medical evidence is only corroborative. it proves Lhat the
injuries could have been caused in the manner alleged and nothing more. Unless the
medical evidence goes so far that it completely rules out all possibilities whatsoever
of in taking place in the manner alleged by the eye-witnesses, the testimony of
eye-witnesses cannot he thrown out on the ground of alleged inconsistency between
it and the medical evidence [Solanki C/iimaith/iai Ukabhiai v. State of Gujarat, A
1983 SC 484,487: 1983 Cri U 822].
The opinion of the doctor that both the injuries were caused by sharp weapon like
knife or dagger is corroborated by the evidence of eye-witnesses. The fact that the
weapon was not produced in the court would not negative the opinion of the Doctor.
[B y Dann y Mao e State of Nagaland, 1989 Cri Ii 226. 231 : (198$) 3 Crimes 351
(Gau)]. IF he gives opinion regarding the nature of injuries, the manner of receiving
injuries, the weapons through which the injuries have been received, it becomes a
corroborative piece of evidence to the testimonies of witnesses of fact. [Nagina Shal7na
v. State of Buiiar, 1991 Cri U 1195, 1223 (Pat)]. If the evidence of the expert is
sufficiently corroborated by independent witnesses, such evidence is not liable to be
rejected. [/idithala Immnanuel Raju State of Orissa, 1992 Cr1 U 243, 248 (On)]. In
case of conflict of opinion between two equally competent medical witnesses the
opinion which supports the direct evidence should he accepted [Piara n 5, A 1977 SC
2274; Puma Palai v. State, 1987 Cri LI 1406, 1408 : (1987) 2 Crimes 257 (On) (DB);
Gwid/iar/i Alias Gohardhan Prod/ian v. State of Orissa, 1989 Cr1. LI NOC 25 (On)].
The negative evidence of the Medical Board regarding the nature of the weapon
cannot efface the positive evidence of the Doctor who has first seen the deceased and
who had also done the post-mortem on the body of the deceased. [Muir Ahniad V.
State of Rajasthan, A 1989 SC 705, 709 : 1989 Cr1 U 8451. The evidence of a
Doctor, examined by the defence, who is more qualified than the Doctor examined
by the prosecution, cannot he accepted since he has only more teaching experience
than practical experience. [State (Delhi Adam.) n Surinder Pal fain, 1985 Cri U
NOC 117 (Dcl) (DB)]. Where the opinion of a medical witness is contradicted by
another medical witness, both of whom are equally competent to form an opinion,
the opinion of that expert should he accepted which supports the direct evidence of
the case. [Sam Antony Danasekaran i State, 1992 Cr1 LJ 474, 487 (Mad)]. Where it
is proved beyond doubt by evidence of eye-witnesses that murder was committed by
firing gun shots, the inconsistency between the opinion of expert and prosecution
story relating to distance from which shots were fired carries no weight [Karnail v.
A 1971 SC 2119; folld in S f'. Sughar, A 1978 SC 1911. The evidence of eye-witness
is that the accused fired the shot with a gun. The Ballistic expert stated that the
injuries could have been caused only by firing with a country-made pistol. The
evidence of eye-witness has to be rejected. [Shiv Kumar v. State, 1985 Cri U NOC
76 : (1984) 2 Crimes 960 (All) (DB)].
The medical officer stated that if shots, are fired from a distance of over 4 feet, the two
injuries could have been caused. He (lid not say if the two injuries could be caused by a
 906 Sec. 45 Chap. II 0f111' Relevancy of Eact.v

single shot. The ballistic expert vacillated and stated that the possibility of the 2 injuries
being caused by two shots is not ruled out. So whcn thc expeit evidence is obscure and
oscillating, it is not proper to discredit the direct testimony of the eye-witnesses.
[Antariic/dj,j : Shakoor, 1990 Cri. LI 1269, 1273 (SC)]. When there are alleged eye-
witnesses of physical violence said to have caused death, the value of medical evidence is
only CoiTohorative [Suiiil v S, A 1954 C 3051. Assessment of evidence when there is a
conflict between medical evidence and the testimony of othcr witnesses [Thakur o 5, A
1955 A 1891. When there is over-whelming evidence of eye-witnesses, the medical
evidence which is contrary to that of eye-witnesses can he discarded, [Naian Pradhian v
State of Orissa, 1983 Cii U NOC 31 (On) (DB) (1982) 54 Cut LT 527; Pate! Han/a!
Mo/ian/a! Jn'ani u State of Gujarat, 1985 Cii U NOC 45 : 1984 Guj LH 46 (Guj) (DB);
Sarbes%t'ar Malik v State, 1986 Cii U1721, 1725 (On) (DB); Ram Koran Ma! V. State,
1990 Cri U 846, 849 (All): 1989 All UT 4531. In contradiction between medical testimony
and alleged eye-witnesses regarding fatal injury medical testimony to he preferred
[Pw:shiottam n 5, A 1980 SC 18731. When the eye-witnesses cannot be said to be
absotutely disinterested, the medical evidence has to he accepted in preference to that of
the eye-witnesses. [Ba/dee Sing/i v. The State, 1982 Cd U 1087, 1094: 1982 Kash LI 194
(J&K); Amin Gliand u State of H.P, 1985 Cii U 1450, 1452: (1985) 2 Chand LR (Cri)
78 : (1985) 2 Crimes 25 (H P) (DB); Balgopa! Panda e State, 1990 Cd U 1848, 1854
(On)]. If the apparent difference between ocular evidence and medical evidence is
attributable to any acceptable reason which is capable of compromising the two
apparently different versions, other acceptable ocular evidence should not normally be
rejected. [Dasan n State of Kerala, 1987 Cri U 180, 185 : 1986 Ker LT 598 (Ker) (DB)J.
When there is consistency between the ocular evidence and medical evidence
about the nature of the weapon and injuries in an occurrence which took place during
night, the ocular evidence need not be rejected. [Motila/ u State of Madhya Pradesh,
1990 Cri U (NOC) 125 (Madh Pra)]. The evidence of the Doctor that the injuries
could have been inflicted 24 to 48 hours before the post-mortem, which gives a big
margin, can be rejected if it is not in conformity with the evideice of the eye-witness
and other circumstances. [Balavantappa v. State of Karnataka, 1983 Cri U NOC 29
(Kant) (1313)]. When the eye-witnesses' account is found credible and trust-worthy,
medical opinion pointing to alternate possibilities is not accepted as conclusive.
FR Jagdish Murty v. Ba! Ram Mohanty, 1992 Cr1 LI 996, 1000 (On)].
The most legitimate, valuable, and wonderful application of scientific evidence
is on change of poisonine, where noinn iq extracted from a corpse by J11G,UIN 01
chemical analysis [Best 11th Ed s 514]. The means which scientific witnesses have
had of forming a judgment are not sufficiently enquired into in our court. To
nothing of those palpable cases where the course of study has been so short, or the
experience so limited, that the judge ought to reject the witness altogether; or of
those where, though the evidence must be received, it is clear that little confidence
ought 10 be reposed in the opinion given. The most able physician or surgeon may
know comparatively little of the mode of detecting poisons, or of other intricate
branches of medical jurisprudence; so that a chemist or physiologist, immea-
surably his inferior in every other respect, might prove a much more valuable
witness in a case where that sort of knowledge is required (Bestl Ith Ed s 516).
The fact that awitnes isa physician does not necessarily qualify him to testify as
an expert concerning the presence of poison in the human system, 6ce he may be
Wholly lacking in the requisite knowledge of chemical science (Jones, s 379). As
to the biological or precipitin test for blood, see Wills Circumstantial Evidence,
6th Ed p 163 at seq and as to another test based on experiments by Border and
Uhlcnhuth, see pp 511-12 of the same book.
Opinions of experts. Sec. 45 907

Where the general condition and state of health ui a person is in issue and it is
sought to prove that he was unable to write oil 01 a disease, isolated extracts
from medical works ought not to be preferred to evidence or a medical man
examined with reference to the symptoms deposed to by the witnesses [Shco
Ba/mw/or v. Beni, 5 IC 419: 6 OLJ 178]. A judge is not entitled to discard the direct
evidence of credible and unimpeachable witnesses deposing to things observed with
their own eyes, merely upon the opinion of a medical witness that those things could
not have been done I Wair Ali v. R, 1889 AWN 74; Basappa o S, A 1961 Mys 21].
Evidence of a doctor who saw the testator two days after the execution of the will
cannot he accepted against the positive testimony of competent and disinterested
witnesses who prove testamentary capacity at the time of execution [Suiyanara-
vanamurthi s Surainma, 52 CWN 35: A 1947 PC 169].
Where there is strong direct evidence of the place of a certain murder, but no blood
was detected by the chemical examination of the earth, leaves, etc, taken from the
alleged place of occurrence, the negative effect of the chemical examiner's report
was not sufficient to rebut the strong evidence as to the place of occurrence
[HassenullLth v. R, 28 CWN 561]. The particular provisions regarding the admissi-
bility of the reports of the Chemical Examiner or Assistant Chemical Examiner
provided under Sec. 293 (4) (a) of the Criminal Procedure Code arc plainly
applicable to override the general provisions contained in sec. 45 and any document
purporting to be the report of such as expert call a whole be used as evidence
[I3liagan Dos v. State of Punjab, 1982 Cri LJ 2138, 2144 : (1982) 9 Cri LT 240 (Punj
& liar)]. Medical evidence as to the presence of semen oil woman's loin cloth is
not a sure test that she consented to an inter-course [Ghulam i R, A 1925 L 94]. The
opinion that absence of external injury would prove absence of force used against the
prosecutrix is the personal opinion of the Doctor, unrelated to the medical science in
which she claims to have special knowledge [Vinod Kumar v. State of Madhya
Pradesh, 1987 Cri Ii 1541, 1543 : (1987) 1 Crimes 631 (MP)]. Where there is testi-
mony of a considerable body of trustworthy and respectable witnesses who were able
to observe facts and draw inferences for themselves, the opinion of medical men as
to what should have been the probable state of the testator should not outweigh and
prevail over such testimony [Saradindu v. Sod/or, 50 C 1001. It is duty of the
prosecution and no less of the court to obtain opinion of medical witness as to
whether all or any of the injuries on the victim could be caused with the alleged
weapon of the offence [Kartarey v 5, A 1976 SC 76; folld in is/mar v. S, A 1976
SC 2423].
The best person to give an opinion about the nature and shape of the weapon of
the offence used is the Medical Officer who conducted the autopsy. When he says
that the injuries on the deceased could have been caused with a Pharsa or some other
sharp-edged weapon, the Court cannot substitute its own opinion resting on
conjectural premises [State of V.P. u Shanker, A 1981 SC 897, 904 : 1981 Cri U
231. Injury report of a medical man is all piece of evidence in proof or
disproof of the theory of accident [Bisipati v. S, A 1969 Or 289 ] . Where the post-
mortem reporf that death was caused by asphyxia due to throttling' is supported by
the evidence of expert the High Court is not justified in the circumstances of the case
in drawing on its own medical knowledge that asphyxia is also possible in the ease of
poisoning [S Ivtwigiya, A 1972 SC 17971. Decomposition of the dead body would
not have affected the fractures noticed by the Doctor who conducted the post mortem
[Ratna Munda v. State, 1986 Cri U 1363, 1364 (On) (DB)].
In England medical evidence to impugn the reliability of an opponent's witness is
admissible [Too/icr i: Commis of Metropolitan Police, 1965 AC 6061.
 908 Sec. 45 ('Iwa Ii--- 0/the RCh'iWi( v o/ /-'a, . 1, i

Expert evidence has two aspects, the dua evidence and he opinion evidence. \Vhik' it
is undoubtedly tine that data evidence cannot be rejected if it is iiieonsisle:iI to (iral
e idence, yet, so far as opinion evidence is concerned, it is only an miereitce dra\\ n from
he data and [hil t evidence would not get precedence over the direct cv i Icncc on less the
inconsistency between the two is so great as to obviously falsify the oral evidence j.1rsi'uu/
o State, 1996 Cr1 U 2893, 2899 (AP)J. In Punethotrant i: State, A 1980 SC 1873 the
Supreme Court rejected the ocular evidence which was in conflict with the medical
evidence as to the number and nature of injuries found oil person of the victiiii. In
Chi,nanbhai o State, A 1983 SC 484 it was posited that unless the medical evidence
completely rules out all possibil it ies whatsoever of injuries taking place in the manner
alleged by the eye-witnesses, the testimony of eye-witnesses cannot be thro\vn out on the
ground of alleged inconsistency between it and the medical evidence.
When the evidence of the cyc-witnesses is found to be credible, and trustworthy,
medical opinion pointing to alternative possibilities is not accepted as conclusive.
As Bantham said "Witnesses are the eyes and ears of justice". Hence the importance
and the primacy of the quality of the trial process. Iye-witncsses , account would require a
careful independent, assessment and evaluation for their credibility which should not be
adversely prejudged making any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility. The evidence must be tested for its inherent
consistency and the inherent probability of the prosecution version; consistency with the
account of other witnesses held to be creditworthy; consistency with undisputed facts; the
credit of the witnesses; their performance in the witness-box; their power of observation,
and similar other relevant factors. The probative value of such evidence becomes eligible
to he put into the scales for a cumulative evaluation. Medical evidence is not invariable
vis-a-vis the ocular evidence. (See State of UP v. Krishna Cope!, A 1988 SC 2154). It
would he erroneous to accord undue primacy to the hypothetical answers of medical
witnesses to exclude the eye-witnesses' account which had to be tested independently and
not treated as the variable keeping the medical evidence as the Constant [Markanda Naik o
Slate, 1993 Cri Ti 332$ (On)]. The opinion of the doctor as to how an injuiy was caused
cannot override unimpeachable testimony of eye-witness in case there is any
inconsistency between them [Dais/ian Singh v State of Haiyana, A 1997 SC 364, 366].

Where direct evidence is cogent, reliable and unimpeachable, the medical evidence
cannot override [State of Maharashtra o Vt/ia!, 1993 Cni U 2285, 2291 (Born)]. Medical
evidence is nor, conclusive proof of age. When there is conflict between medical evidence
and documentary evidence benefit of doubt should be given to the accused [S.K. Bela! u
Satc f0:-is:;':, 1994 Ci 1 U 467, 473 un)j. if the evidence or the eye-witness is found to
he unreliable it cannot be given preference over the medical evidence [J3oddapati
Venkatraniaja/j o State of AP., 1996 Cd U 3749, 3757 (AP)]. Where two persons were
stabbed to death by the accused persons, the injuries as per medical evidence were caused
by sharp edged weapons and the eve-witnesses corroborated the prosecution case failure
of the prosecution to seek opinion of thc doctor with regard to particular weapons cannot
result into rejecting the prosecution case [Preni C'/iand e State, 1996 Cni Ti 1217, 1222
(Dcl)]. But see flilin Sinç'/i v State of UP, 1976 Cni LI 1883 and Kartarey v State of UP,
1976 (1) SCC 1721. Medical evidence as to how the injury was caused cannot override
unimpeachable testimony of eye-witness [Dais/ian Singh v. State of Harvana, A 1997 SC
361 :1996 CriLJ4438,4440].

Where the eye-witnesses' account is found credible and trusKvorthy, medical

opinion painting to alternative possibilities is not accepted as conclusive. It would he
erroneous to accord undue primacy to the hypothetical answers, of medical witnesses
to exclude the cycvitnesscs' account which had to be tested independently and not
Opinions i)! evfieti.',. Sec. 45 909

treated as the variable, keeping the medical evidence as the constant, lithe evidence
of the witness is totall y inconsistent with the medical evidence, this is a vital detect
and unless reasonably explained, is sufficient to discredit the evidence of the witness.
Medical evidence like any other evidence has to he decided on the touchstone of
acceptability and reliability [KanI:aisingh Na yak i: State, 1993 Cri IJ 2812, 2814
(On). Sec also State of UP e Krishna Gopal, A 198$ SC 2154 1989 Cii Ii 28$;
Rain Narain i: State of Punjab, A 1975 SC 1 727 : 1975 Cri LJ 1500; Ainar Singh i:
Stale of Punjab, A 1987 SC 826 1987 Cri LJ 706]. Even though according to the
eycwitnesses, the victims were unconscious as a result of the injuries caused to them
but the medical evidence showed that victims were not unconscious at the time of
their examination, medical evidence cannot be said to he inconsistent with the ocular
evidence on such ground when the injuries were deep and on vital parts and it was
possible that victims had fallen unconscious but gained consciousness subsequently
lRamkishore Pate/v. State ofM.P, 1997 Cri U 207, 210, 211 (Sc)].
It is trite that where the eye-witnesses' account is found credible and trustworthy,
medical opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses are the eyes and cars of justice and hence the importance arid primacy of the
quality of the trial process. It is erroneous to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the eye-witnesses' account which has to he
tested independently and not treated as the 'variable', keeping the medical evidence as
the 'constant' [Kedar Behera n State. 1993 Cd Ii 378 (On); See also State of MR v.
Krishna Gopal, A 1988 SC 2154 : 1989 Cd Li 288], Where the evidence of the
accused inflicted three cuts with the billhook on the neck, but only one incised injury
was noted by the doctors on the neck of the deceased, looking at the width of the injury
as 10 cm extending from left clavicle up to the nape of the neck having a depth of 19
cm involving blood vessels and also the 5th cervical vertebra, there was no difficulty in
countenancing the possibility of multiple blows with a billhook resulting in one injury.
Hence, there was no conflict between ocular testimony and medical evidence
[Periasatni i: State of TN., 1997 Cri U 219 (222) (SC)].
Some variation between the prosecution story and medical evidence should not be a
ground for rejection of the prosecution case. The court has to find out the tntth and
proceed accordingly. The courts have to proceed further and make genuine efforts within
the judicial sphere to search out the truth and not stop at the threshold and give benefit of

1999 SC 883: 1999 Cd II

doubt the moment some ground for doubt creeps in. Mo/ian Singh v. State of ME, AIR
1334; State of Haryana n Rain Pal, (1999)9 SCC 83.
Sufficient weightage should be given to the findings in the post mortem report as
compared with observations in text-hooks, but this does not mean that each and every
statement of the medical witness should he accepted on its face value even when it is
self-contradictory. Mo/id. Za/tid n Slate of TN., AIR 1999 SC 2416: 1999 Cd Li 3699.
The opinion of an expert is not binding on the court. The court has to formulate its
own opinion. The medical opinion was that two successive blows with a sharp
weapon could not have fallen on the same silas. No reasons were given in support of
the opinion. The court held that in the circumstances of the case the prosecution
version that the injury was caused by two strikes could not be doubted. State of
Hwywia o Bhagirar/i, AIR 1999 SC 2005 : 1999 Cri LJ 2898, Where a conflict
arose between the occular evidence and medical evidence because the eye witness
who was seated with the deceased on the same rickshaw testified to a gun shot injury
at the back and medical evidence showed injury in the chest, the court reconciled the
conflict by holding that the witness might have seen the exist wound at the back and
might have believed that the deceased was hit at the back. Surendra Narainv, State of
U-P., AIR 1998 SC 192 : 1998 Cri LI 359. Another case in which the court
reconciled the conflict because a conflict of that l:ind could have naturally arisen in
the circumstances, it was held that the eye-witness account cottid not have been
 910 Sec. 45 Chap. II 01111e Role ianrv a! LhcLv
discarded [or that reason alone. State 01 Riliar i. Rain Pac/arili Singh, AIR [99S SC
2606. Where the witness testified to infliction of two kiijan injuries by one assailant
and one knife injury by (he second assailant and the medical evidence was that all the
three in could be by a knife and none by kirpan, it was held that the I ligli Court
made no error in holding that the medical evidence corroborate(] the eye-witness
account Sail Sing/, v. Mohinjer Pal, (1998) SCC (Cri) 383. See also State of Bihar
Rant /'adari/i Si.ugh, AIR 1998 SC 2606, reconciliation between occular and medical
evidence as to whether the thigh injur y was caused at the hack or front. Other similar
reconciliations were made in Suijan Me/ito n State of i/thai; (1998) SCC (Cri) 886;
Aclya Singh v. State of Biha,'; AIR 1998 SC 3011.
In a conflict between the eye-witness account and medical evidence, the testimony
of the eye-witness has to he preferred unless the medical evidence is so conclusive as
to nile oui even the possibility of truth in the eye-witness version. State of U.? v.
Harban Sa/rai, 1998 (3) JT443 : (1998)6 SCC 50,
Oil question whether the death was homicidal or suicidal, the medical evidence
was that the death was caused by smothering and the report of the chemical
examiner was that some poison was also administered to the deceased, there were
injuries on legs also, it was held that the death was homicidal. This finding was also
supported by the fact that the deceased was last seen
seen the accused. State of H.P.
n Jeer Singh, AIR 1999 SC 1293 1999 Cri U 2025.
Where the allegation was that the death in question was caused by burnin g , but
there were no burn injuries on the palms of the deceased, the court said that itmust
have been a case of suicide. Pavwikunrar Parasnatli Trirari i State of Gujarat,
(1999) SCC (Cri) 352.
Time of Death.—The Supreme Court in a quite number of cases determined time
of death of deceased relying oil of the contents of the stomach or intestine.
Reference may be made to one such decision in Ram Narain Singh r; State of
Punjab, 1975 Cri LJ 1500. The Supreme Court held that "medical evidence of Dr.
Walia shows that undigested food was found in the stomach of the deceased and
according to him deceased must have taken his food only five minutes before his
death or at the most within half an hour of his death. Doctor's evidence, therefore,
clearly shows that he must have taken his food at 8 p.m. which is also the usual time
when the villagers take their food. Relying oil circumstance, Supreme Court
came to the conclusion that the incident must have taken place at about 8 p.m. and it
belied version of the two eye-witnesses that the occurrence took place in their house
at about 6.30 p.m." From the aforesaid decision of the Supreme Court it appears that
if in the stomach of dead man undigested food material is found, it must he presumed
that he died at the most within about half an hour cinc he took his food last.
Therefore, the contents 01 stomach/intestine of a dead man must contain undigested
food material if he dies within half an hour after he took food lBinral Sin/ia n State of
Tripura, 1996 Cr1 LJ 3437 (Gau)]. Likewise the Supreme Court in Raghunairdan e
State of UP., 1974 Cri LI 453 determined the time of death/occurrence on the basis
of nature of the contents of the stomach./intestine that case. The nature of the contents
of the stomach or intestine rendered immense assistance to the Supreme Court to
determine or at least estimate the time of death of the deceased. In Charan Singh i
State of Punjab, 1974 Cri LI 1253 it was held by tile Supreme Court as under:
'The first information report about the present occurrence was lodged promptly
and this is apparent from the fact that a copy of the first information report was
received by the Judicial Magistrate concerned at Ludhiana at 8.12 p.m. the same
evening. We are not impressed by the suggestion that the occurrence took place riot
at 5 p.m. but much earlier. According to the post-mortem examination reports, the
stomach of each one of the two deceased persons was empty at the time of the post-
mortem examination. Normally a vegetable diet containing mostly farinaceous food
as usually taken by an Indian does not leave the stomach completely within six to
 Opinions of, experts. Sec. 45 911
seven hours after its iugCStion (sec pe• 151 of Modis Medical Jurisprudence and
Toxicology. Sixteenth Edition), if the occurrence had taken place at 2 or 3 p.m. as
sLlggCStcd on behalf of the accused appellants the mid day meals usually taken by the
villagers at about t II .. would
m still he in their stomachs and the same would be
have been empty at the time 01 the post-mortem examination. The fact that the
stomach of each of the deceased persons was empty lends assurance to the prose-
cution version that the occurrence took place at about 5 p.m."
From the above discussion it is evident that stage of digestion of the food material or
the nature of the contents of the stomach or intestine call the basis to estimate time of
death or the time of occurrence depending upon the circumstances of the case lBimal
Sinha State of Tripura, 1996 Cri U 3437 (Gau)}. The presence or absence of food at the
time of post-mortem in relation to the time of death is based on various factors and
circumstances such as the type and nature of the food consumed, the time of taking"
meal, the age of the person concerned and power and capacity of the person to digest the
food [S.C. J3cthri o State of Bthar, A 1994 SC 2420 : 1994 Cri LI 3271. Presence of
semi-digested food in the stomach of the deceased belies the stand of the eye-witnesses
that the decease had not eaten anything [State of Karnataka o Bahu, A 1994 SC 31, 32
1994 Cri Li 18]. Ri g or mortis is an important factor for assessing the time of death
[Indradeo Rcii t: State of B//tar, 1992 Cd U 4005, 4013 (Pat)]. Stomach contents cannot
he determined with precision at the time of death. Merely because the illiterate witnesses
stated that the food was taken immediately before the occurrence cannot by itself be a
circumstance to discredit their evidence on the basis of medical evidence regarding the
presence of semi-digested food [Saithd Singh n State of Punjab, A 1994 SC 672 : 1994
Cri U 626, 628]. Medical evidence is only an evidence of opinion and is hardly decisive.
The statement of PW that the deceased had taken his meals at. about ] 0.30 am. and the
occurrence had taken place to about 12-12.30 in the noon, cannot. he taken to have been
contradicted by the evidence of the doctor who opined that digestion began in I or 1½
hours. From this it cannot be made out that had the occurrence taken place at 12.30 noon, the
deceased would have had his meals before 11.00 a.m. as semi-digested food was found in
the stomach of the deceased IMam Rain v State of Rajast/ian, A 1993 SC 2453, 2455].
Hypothetical medical evidence as to the time of death cannot be made basis to reject
the evidence of the eye-witness JS.G. Gundegoieda v. State, 1996 Cii Ii 852, 866
(Kant)]. Where the prosecution care that about 10 hours had elapsed when the post-
mortem was conducted is supported by the stamped witnesses whose presence at the
place of occun-ence is established, the opinion of the doctor that thc death was 12 hours
before the post-mortem as rigor morlis were found in the four limbs of the deceased is
not significant [Mangal Sing/i o State of Pwijab, 1996 Cd U 3258, 3262 (P&1I)].
Where the allegation against the accused was that although lie had not inflicted
direct physical injury on the woman, she suffered man y unpleasant ncr''ous systems
caused by fright and anxiety. The court said that such matter being of psychological
nature the opinion of a psychiatrist was necessary before going further with the trial.
R v. Morris, (1997) rndependent, 24 October (Court of Appeal) The court followed
R v. C/ian-Eook, (1994) 99 Cr App R 147.
Medical evidence and confessional statement.—The accusedin his
confessional statement said that he killed his wife by strangulation and cut off
her head. The post-mortem report mentioned hemorrhage by cutting off the head
as the cause of death. The court said that in the circumstances of the case, the
non-mentioning of strangulation in the post mortem report did not have the
effcci of falsifying the confessional statement. Vinayak S/iivaji Rao Pal v. State
of Ma/i aras/itra, AIR 1998 SC 1096 (1998)2 SCC 233.
Duly of expert wi/ness in medical negligence c(aim.—In a case concerning
medical negli g ence, it has been held that where an expert witness would not have
acted in the way in which the defendant medical practitioner did, the expert witness
should make it clear in his report whether the medical practitioner acted the way in
912 Sec. 45 ('hop. 11--01- iJu' I?'Ieiiiiuv of Paris

which a responsible body of medical practitioners possessing the appropriate skills

would have accepted it as proper. The court may prefer the opinion of one expert
over that of another [S/wipe r: Southend lieu/i/i /tiui/ioritv, (1997) Times, May 91.
Motor Accident cases—Vvlierc the injured person Irimsell' sues as plaintiff evidence of
medical men must be led if lie claims damages for loss of expectation of life. Where the suit
is brought by the administrator of the injured person who is dead the fact of death obviates
to sonic extent time necessity of medical evidence that the accident has shortened the
person's life [ Vinod v. Ved. A 1970 MP 172—cases discussed].
It is not for the doctor to certify the income of the deceased unless it could he a matter
of personal knowledge with him. Gurant Kaur v. State of Jiuryana, (1999) 9 SCC 212.
Age.—Age may be proved b y various means including the statement of a witness of his
own age and the opinion of a witness as to the age of another person; but when age is in
issue, stricter methods of proof may be required [Hals, 3rd Ed, Vol 15, Para 522].
A certificate that A was 21 by a doctor who formed his opinion "judging by his appearance,
his voice and his teeth" is worthless. It is in truth not a certificate hut only an assertion of
opinion [MdSyedol v. Ve/roolvark, 43 IA 246:21 CWN 257: 39 IC 401 A 1916 PC 242; R v.
Qud rat, A 1939 A 708; Nat/mn v. R, A 1931 L 401; Paimnavwn v. •'v[ünipur Ar/inn, A 1962 Man
5]. Opinion of the Doctor about the age of the kidnapped person based on superficial
examination and observation and not on any scientific data cannot take the place of legal proof
[Nirinal Manal v. State of Orissa, 1990 Cri U (NOC) 110 (On)]. Medical evidence as to age
is from its very nature based on conjectures and cannot be relied on to determine with
precision the exact age of a person [Zsiida v. Roshnai, A 1928 U 250: 113 IC 53; see Na.srullah
v. R, A 1934 032; Bislmnat/m v. R, A 19480 1]. One can take judicial notice that the margin of
error in age ascertained by radiologiea] examination is two years on either side {Ja ya Ma/a v.
Home Secreta,'y, Govt of J&. K, A 1982 SC 1297, 1299 : 1982 Cd Li 17771. Medical evidence
as to age cannot stand against municipal register of births properly kept [2aitoon m'. R, A 1946
S 132]. Entry in school register is not reliable with implicit faith as a g ainst medical evidence
[Rawmki v.8, A 1970 P&lJ 450]. When the medical evidence shows that the accused is about
18 years old, he cannot he said to be apparently a juvenile [13cc/ian v. State of UP., 1990 Cri
Li 2524, 2525 (All)]. It is not right to prefer the opinion of a radiologist as to age to the
positive evidence of parents, and the school admission register [Chat/mu v. Govindaim, A 1958
K 12 1 ]_ Whilst siriuiltaneous disclosure of experts reports on quantum of damages would be
appropriate in Some medical negligence cases, there are other cases in which an order that the
plaintiff's report be disclosed in advance of the defendants may be justified [Ravinent v.
Mtnistiy of Defence, 1998 CLY 7 (QBD)].
Weight has to be given to the Doctor's evidence regarding the age of the girl based on x-ray
report even though the prosecutrix gives contradictory statements regarding her age [Abdul
4Iaflib v. State ofAssani, 1983 Cri U NOC 177 (Gau)]. The evidence of the parents of the girl
who was raped was that the girl was aced 13 vears Accnrding to raciicicgis hcr agc \va
i5-16 years. It can he sahhly taken that the girl was below 16 years of age. [Puran Singh i.
State of Rrijasthan, 1985 Cri Li NOC 54 : 1984 Raj LW 357 (Raj)]. The ossification of hones
test is necessary for determining age [Laimaywn v. Manipur Ac/inn, sup]. The ossification of
hones test, however, is no certain guide for determining age as various factors may hasten or
delay osseous changes. Scia g ranis are now admitted in proof of age. The ossification test is
regarded as a good test for ascertaining age. Though ossification test is a surer test, the opinion
of a doctor based on other factors should not be lightly brushed aside [Anani v. S, A 1954 Or
33]. Ossification test ma y he a surer test basis than the opinion of a medical expert, but it
cannot be regarded as conclusive [Kishori v. 8, A 1957 Pu 78]. The test of age on the basis of
epiphyses, namely the extent of fusion of bones is scientific [Raunki ii. 8, A 1970 P&H 450].
handwriting, Proof Of.—Handwriting may be proved by the evid. nce of a person
familiar with such writings (s 47) or by the testimony of an expert competent to make the
comparison on a scientific basis (s 45) or by the Court by comparison with a writing made
in its presence or admitted or proved to be the writing of the person [Faklirudciin v. S, A
1967 SC 1326]. In a suit for money on account of sale of goods, the ledgers, challans and
corresponding hills can he proved by the opinion of a handwriting expert. [Rnhmanand
Ajitsaria v. Us/mci Sales P Lid, A 1991 Gauhati (NOC) 108].
 Opinions oJvpc'rts. Sec. 45 913

It is unsafe to part with the document in custody 01'11)C court (or sending it to liairdwritin
expert, private or Govt for his opinion. It is proper and desirable to permit the expert
examine it in the presence of Court oltieial. 110 ira>' hoo'evei', be pei'niirtcd to take
photographic copies Doriisrramv v. Pooir'wn,nal, A 1976 M 66— eases discussed]—
CON't t(,\ : documents may be sent to expert for examination [Balarain r. Achrirananda, A
975 or 125]. When the defendant did not deny his signature in the disputed document and
he applied for expert evidence at a late stage, that prayer call rejected. ['y E. Electricity
Power Corporation Lid. v. MIs Lsrklni Enterprise, A 1992 Gait 46].
I Iandwriting Expert.—In order to reply o il evidence of an expert the court must
be fully satisfied that lie is a truthful witness and also a reliable Witness fully adept in the
art of identification of handwriting in order to opine whether the alleged handwriting has
been made by a particular person or not {Kanchwrsingli s'. S, A 1979 SC 101 I]. Persons
who have made the peculiarities of handwriting their special study have been examined
to their belief. Whether the writing of an instrument was in a feigned hand, and also as to
whether two documents supposed 10 have written in a dis g uised hand were written by
the same person [Goodritle v. Bra/ram, 1792 4 TR 497]. So, antiquaries have been called
to fix, by conjecture the date of ancient handwriting [Tracy Peerage, 1843 10 Cl & F
54, 191 Tay s 1417]. B y nature and habit, individuals contract a system of forming
letters which give a character to their writing as distinct as that of the human face
[Lawson p 277]. In Scott v. Crerar, 11 Ontario 541. 551, CAMERON, CJ, said:
"Writin g is a thing that is tangible, and almost everyman ss'lro can write has it
character that those, who are acquainted with it call recognise, and though it
ma y , by expert penman, he imitated, OS a g eneral rule, its individuality is easily
established. A mail a peculiar voice arid may he identifled by it; it is his own; and
though, like the h.atures of the human face, there is a general resemblance in the voices
of all mankind, there are marked differences which indicate its possessor very clearly.'
The ('act that personality enters into the handwriting, and becom es an unconscious and
dominant habit which establishes all identity to every handwriting as absolutely as does
physiognomy to the person, is the basis oil evidence as to handwriting is admitted
and acted u 1)011 in courts [A tries p 17].
The features that go to make up the human physiognomy are but few when compared
with the various forms of the fifty-two letters of the English alphabet, large and small, not to
mention their equally various relations, proportions, shades, spacin g , initials, terminals
crosses, clots, etc. That all these various features when woven into the fabric of handwriting
could he coincident throu g hom iwo habitual handwritings is absolutely impossible; the
characteristic distinction thus inevitably stamped upon one's writing are beyond the powers
of numbers to enumerate. The number of different positions in which the twenty-six letters
of the alphabet alone may he placed is 4,032,914,611,265,046,555,8 .10,000 using the fifty-
two letter's (large and small), with their changed forms and other differences, as above
stated, it will be obvious that the personalities of an habitual handwriting are quite beyond
the power of enumeration to express [Ames p 191. It is also an undisputed ('act to be
remembered that the same person never writes twice exactly alike. This is true to such an
extent that one of the infallible tests of forgery of it handwritin g or signature is that
it coincides word for word, line for line, and dot with dot, with another the genuineness of
which is admitted. Althou g h a person's handwriting varies as to its precise detail, yet in its
general habitual characteristics it is the same OS several peas may vary in size, color,
smoothness and outline, set inevitabl y and unmistakably retain every characteristic that
identifies them as peas and distinguishes them from pebbles or any other object of similar
size and form [Ames p 28].
A fine or stub pen, haste or deliberation, good or had health, sitting or standing, drunk or
sober, ma y radicall y change the appearance and quality of writing, as may the condition of
health or age, chan g e or impair the personal appearance of the writer; but it might as well he
claimed that these abnormal circumstances make a new person as that they make it new
handwriting [Ames p 281. There are four main movements employed in the formation of
Figures and letters: (I) Purger /novl'orenl, ie the nioveruent produced by the muscular action,
that is tIne extension and contraction of tire thumb, first and s.cond fingers, the hand and
914 Sec. 45 Chap. II— (J i/ic Relcrwu:v oJ l'u:Ls

arni reillairnug stati Inary except br lateral motion. (2) lVri.vt i orc,ac,r( is the rianre give to
the writing in winch the motion is produced mostl y by the wrist. Women generally employ
the wrist movement, in their writine. Such writing is usually angular. (3) TIre Jiea,nr
/Imore,ncnl is the one that is generally adopted by persons who have to do considerable
amount of writin g work. This is less tiresome to the writer than the other movements. (4)
The ,iiscil arm or whole clf7lt /nove/neltt is the action of the aunt when raised and used from
the shoulder. This is the mode used for ornamental or flourishy letters and rubrics and is
sometimes seen in the headings and oil of large ledgers and account books, and
addresses on large envelopes. These movements again are subdivided according to the
various degrees of combinations of each of the above movements as the simple finger
movement, the advanced finger movement, the combined finger and wrist movement, the
combined finger and forearm movement, and sometimes a whole-arm movement is united
with one or more of the others [Ames 3-44J. It is common knowledge that to enable an
expert to give an Opinion oil signatures have to be magnified to ail extent,
superimposed and lines drawn to find out the angles to measure the len g ths of the various
strokes, to find out their taperings and so on [Clrakropmmi v. C/rancloo, A 1959 MP 541.
In the famous Ticimborne trial, COCKOURN, CJ, in his charge to the jury said:—
"Manifold as are the parts of difference in the infinite variety of nature in which
one maildiffers from another, there is nothing n i which men differ more than in
and when a man comes forward and says, 'You believe that such a
person is dead and gone; he is not, I am the man', if I knew the handwriting of the
mail to be dead, the first thing I would do would be to say 'sit down and
write' that I may judge whether your handwriting is of the mail assert yourself
to he; if I had writing of the man with whom identity was claimed, I should proceed
at once to compare with it the handwriting of the party claiming it. For that reason I
shall ask you to carefully look at and consider the handwriting of the defendant and
to compare it with that of the undoubted Roger Tichhorne and with that of Arthur
Orton" [R v, Castro, 762, quoted in Woodroffe, 8th Ed p 430].
[Besides the opinions of experts, there are two other modes prescribed by ss 47 and 73
for proving handwriting; see notes to those sections].
Experts are allowed to compare a disputed handwriting with any writing proved to the
satisfaction of the judge to be genuine (see s 73 which is analogous to s 8, 28 and 29 Vie c
18). The statute, 28 and 29 Vie c 18, s 8 lays down in express terms that the comparison by
a witness of the disputed writing for the purpose of giving an expert opinion must be with
any writing proved to the satisfaction of a judge to be genuine and though this condition is
not expressly laid down in s 45 which is only a general section as to the admissibility of
expert evidence, yet it is clearly indicated in the i/Ins (c) to the section. This rule was taken
for granted in the earliest ease of Phoodee Bibee v. Gor'ind, (22 WR 277). I1e evidence of
a handwriting expert is inadmissible if there is no comparison with handwriting proved
beyond doubt or admitted in open court in the presence of the party affected [Suresh I,. 1?,
39 C 606 : 16 CWN 71 In s 73 alec the rcjuircacat is drat comparison must he made
with a writing admitted to he genuine or proved to be so. Opinion of expert based solely on
photograph of handwriting, has been held admissible [S/trinirt'as v. R, A 1952 N 226; see
however Mc Cu/lough v. Munn, 2 JR 194 CA cited under s 73. Carbon copies of signature,
particularly copies made on carbon paper, could not generally he relied upon for purpose of
comparison [Nityand v. Ras/rbehari, 89 CLJ 204, 207].
Experts may also without comparison, but from the general knowledge of the subject
give their opinion as to whether the writing is in a feigned or natural hand [R r. Coleman,
6 Cox 163; Phil) 11th Ed p513; Bests 246; Hats 3rd Ed Vol 15 Para 591].
On question of handwriting, not only specialists, but post-office officials, lithographers
and bank clerks have been permitted to testify as experts [R v. Coleman,* sup; Phi 1 Ith Ed
p 513]. A solicitor who had for several years given considerable attention and study to
handwriting was allowed to give evidence as an expert ER v. Silverlock,'1864, 2 QB 766].
The defendant's solicitor being unable to procure the services of an expert in handwriting,
himself carefully studied every leLtcr of the disputed will for 128 hours and eventually
succeeded in satisfying the judge, that the will was a forgery, as alleged by his client. In
 Opinions of cvpei-ts. Sec. 45 915

assessi tiC costs lie was given special rciiiii nerat n in for the special work jDahibui i.
Sooncie,ji, 31 13 430: 9 Born LIZ S t9l. [it Pirncll Commission lnquiry, Russell, who
appeared for Parnell, by his deep thinking. iitensc stud y amid close observation of a letter,
exposed one of tIme most daring forgeries ever coinnntted. The forg er Pig ot disappeared
after his cross-examination, confessed the tormery in a letter and 1 ! e \' his brains nut. The
cross-examination of Pigot is a marvel of advocacy and the meader is referred to O'Brien's
Life of Russell (Edn 1902 pp 225-240) for an account.
In a case, WF-s'r J, observed that the opinion of an expert is not properly admissible,
without askin g any question from which it may be shown what claims he may have to the
chimuacter of an expert [Tiomwmçame i'. Rangongam'thm reproduced in the Note to Har i
C/unta,najm r. Mono, II B 89, 101]. T1e opinion of a handwriting expert, when he is not called
as witness and subject to cross-examination, is inadmissible in evidence [Padnma Priva i.
D/iaranmdass, 15 C\VN 728; see ante "Mere Ceii ifi care ofAledica! man or Expert"].
Opinions of experts in handwriting are useful in so far as the appearance on which
the y rely are disclosed and can thus he supported or criticised, whereas an opinion
formed by the judge in the privacy of his own room is subject to no such check. In this
case the method adopted by the judge, without submitting the question to the assessors
was held not proper [Banindra m. R, 14 CWN 1114 : 37 C 467]. When the character of
the signature is such that a court is convinced that it is lot genuine, in. can act upon it.
But when witnesses have positively affirmed that a testator (lid execute a will, the
court will be slow to declare it a forgery in the absence of other evidence confirming
its conclusion [Lila i' Belay, 41 CLJ 300 : 87 IC 534]. There may he cases in which
the handwriting is of such peculiar character that the conclusion as to identity of the
writer is irresistible. In this case it was held that evidence was not enough to prove
beyond reasonable doubt that the accused was the writer of the threateningnonymous
a
letters [Kali C/moran v. R, 6 ALJ 184]. To base a conviction upon the opinion of an
expert in handwriting is, as a general rule, ver y unsafe [Srikant v. R, 2 AU 444; folld
in Ku/i Clmaran v. 1?, 6 AU 184: 9 Cri U 498; La/ta v. R, t I Cri U 114; In re Venkata
Row, 36 M 159: Prabh m'. 1?, A 1932 L 490]. As to the value of expert opinion on
handwriting see next para and Snikant v. R, 2 ALJ 444; In re Venkata Ron, 36 M 159;
Hari Singh v. Lachnmi, supra; Pancho v. R, I CLJ 385.
Value of Expert Opinion On Ilandwriting.---Expert opinion must always he
received with g reat caution, but perhaps none so with more caution than the opinions
of handwriting experts. These gentlemen stand in an impregnable fortress of their own
and invariably give emphatic opinions. They talk in terms of pseudo science and try to
create an impression by talking glibly of pen-pressure, pen-hold, pen-scope, pen-
pause, pen-presentation, pen-lift, hand-movement irregular movement, angle of pen,
retouchings, joinings, change of pivot, under-stroke, cross-bar, loops of many kinds,
embellishments, terminals and numerous other things not easily intelligible to laymen.
Almost all of them have a favourite theory of their own which they tend to apply with
a firm conviction. They are a type of remunerated witnesses and like others of that
class have all bias in favour of the party engaging them. Moreover, their
opinions are previously ascertained and the y are brought only when they are
favourable to the party calling. The fact that they know beforehand why they have
been called and what the party calling wishes to he proved, detracts to a great extent
from the weight to be given to their opinion. Some handwriting experts do not even
hesitate to claim infallibility. In the case of a disputed will, a handwriting expert who
was examined oil caveator's side to prove that it was a forgery, affirmed that his
opinion on time subject of that will was absolutely infallible. The court, of course,
rejected his testimony arid said that he was making a claim which was wholly
untenable [Hari Sing]7 v. Lac/mou, 59 IC 220, 226; 3 Lab LJ 1101. In Jadu,matlr V.
Bmslmes/mar, A 1939 0 17, 22 the court stigmatised one of these experts as a "dishonest
cxpert"—''one who without any regard for the truth is ready to give any evidence
which would support the ease of the person who has engaged him."
The expert evidence must, always he received with great caution and perhaps none so
with more caution than the opinion of handwriting expert [B/mai'gae K. Sahmkhe r. State
of Maharashtra, 1996 Crm U 1228, 1232 (Boni)]. In a catena of decisions of Supreme
916 Sec. 45 Chap. Il—O f t/u ' Relei'wicv ojiarts

Court has pointed out that it would he risky to found a conviction solely on the evidence
of handwritin g expert and before acting upon such evidence the court must always ti to
see whether it is corroborated by other evidence, direct or circuinsointial; See i%laan
Be/tori La! v. State of l'wijab, A 197 - SC 1091; Ram Chandra v. State of U. P., A 1957
SC 381; 1rhrvari Pd. i' Md. Isa, A 1963 sc
1728: S/iisluktunar v. Subodlt Kumar, A
1964 SC 529; Fakhruddin v. State of M.P., A 1967 SC 1326. The same view is also taken
in the judgments of English and American courts. Vide Gurne y v. J.ong!ands, (1822) 5 B
& Aid 330 and Matter of Alford I"oster'.s Will, 34 Mich 21. The Supreme Court of
Michigan pointed out in the test mentioned case:
"Every one knows how very unsafe it is to rely upon one's opinion con-cerning
the niceties of penmanship—Opituons are necessarily received, and may he
valuable, but at best this kind of evidence is a necessary evil."
Bombay High Court in Bhargai' K. Salunk/te's case (supra) did not subscribe to the
extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that
this type of evidence is, by its very nature, weak and infirin and cannot of itself for the basis
for a conviction. When the handwriting expert mentioned in his report that the disputed
signatures cannot he said to have been made by the accused oil of poor skill of the
writer and the disputed matter being too limited in extent, no conviction can be based
merely oil basis of his opinion [Do/pat Singh v. State of Rajasthan, 1996 Cri LJ 3921,
3923 (Raj)I. The expert's evidence may or may not he relied upon, but in a case where the
positive ocular testimony proves a particular fact which stands unshattered in the cross-
examination then such expert's evidence would not take place of the positive proof and
therefore, the court will have to come to its own conclusion as to whether reliance is to he
placed oil positive ocular testimony or the handwriting expert's evidence which is based
on the comparison of the disputed signatures with the standard signature [Jainunabai v.
Surendra Kumar, A 1995 MP 274, 2811. The evidence of handwriting expert is a rather
weak type of evidence and the courts do not generally consider it as offering conclusive
proof, and, therefore, sale to rely upon the same without seeking inde-pendent and reliable
corroboration [S. Gopa/Reddy s'. State ofA.P., A 1996 SC 2184 : 1996 Cri LJ 3237, 3246].
Where in a case of cheatin g and forgery, the Bank Manager, the Accountant of the Bank as
also the persons who introducedthe accused to the Bank authorities categorically deposed
that they fully knew the accused who had put down his signature in their presence and that
the signatures were of the accused and none else, it was not necessary for the prosecution to
have got compared the signatures of the accused from handwriting expert [Satrangi La! v.
State of llaiyaira, 1995 Cri U 969, 973 (P&H)}.
These experts generally have in memory a catalogue of cases in which their opinions,
confirmed by other evidence, were found acceptable by court and they recite them in
commendation of their superior skill, but more by way of advertise-merit. They do not of
course give the instances in which their opinions were rejected. Weight to be attached to the
opinion of the expert denends on its reasorihh'ne nnd scientific quality arul aot on
of practice of expert. [Rain Prasad v. S/ryarn La/a, A 1984 (NOC) 77 (All)]. It is well settled
that handwriting expert's Opinion must always be received with great caution arid that it is
unsafe to base a judgment purely on expert opinion without substantial corroboration
[Magaii m 5, A 1977 SC 1091; Srikant s R, 2 ALI 444; In re Venkata Row, 36 NI 159;
Kalicharan s' R, 6 ALJ 184; La/ta v. R, 11 Cri U 114; Gird/tori s'. R, 86 IC 993; Gobindjee
i' Smith, A 1928 p 568; hider v. R, A 1931 L 408; Saq/ain v. R, A 1936 A 165; Sud/iindra
v. 5, A 1952 C 422; Rain Ch v. S, A 1957 SC 381: 1957 Cni LJ 559; in re Ahha yanand, A
1959 p 328, Rant Gopal v. State of Himachal Pradesh, 1983 Cri LJ NOC 10 (HP): 1982
SIM LC 225; Ajod/mya PrasadMisra v. State of Orissa, 1985 Cri LJ 1401, 1406: (1985) 1
On. LIZ 326 (On); Joseph v. Aleyamma, A 1991 Ker (NOC) 28 (Ker)]. This rule has been
universally acted upon and it has almost become a rule of law. In Gurney v. Langlands,
1822, 5 B&Ald 330, 332, AnnoTi Ci, said: "I think it much too loose to be the foundation
of judicial evidence, either by judges or juries". The unsupported evidence of experts in
hand-writing will not avail against the denial oil of the alleged writer himself [Paquin
s' Turcotte, QR 35 SC 266; Et/tier s'. Label/c, QR 33 SC 39; Deschenes v. Langlois, QR 15
KB 388; Canadian cases cited in Best, on Ev 11th Ed p 240].
 Opinions oi (a'/)eli.V. Sec. 45 01 -:

Ii is il;iiieeious to place iniplicit ivlianee on the evidence of' handwrjtine experts. Rut
'vlicn such evidence is supxwted bye (he videnc of witnesses thorouelilv conversant
with (lie disputed liaiidwriung reliance may he placed oil [D Conrinr i: CJ:andiii, A
1947 0 180 LII]. Where there is direct and tnistworiliy evidence of persons who SaV
[lie testator sien, it is 1101 necessary to rely on expert evidence
I Aaincsivaia i.
Srui-van-akasr \ 1962 AP 178 ] . 11 is wise to be slow in acting on the opinion of the
handwriting expert, if there are other niatcrials to prove the signature, the Opinion
evidence call sidelined. [VS. tLuIid Sattar 51w/i u Supilt. of Police CIJI/SPE, Cochin,
1987 Cri Ii 1670. 1672 (Kcr) : 1987(2) Ker IT 191. Normally it is unsafe to treat
expert handwriting opinion as sufficient basis For conviction. It may, however, he relied
upon when supported by various items of internal and external evidence [Rain Ch o 5,
.op]. \Vlicn (lie handwriting expert could not give any opinion about the disputed
signature, the accused cannot he convicted on the basis of the evidence of other
witnesses. P/V. Baruah n State of .4 ssam, 1989 Cri Ii NOC 146 (Gau)l.

Experts evidence is only a piece of evidence and external evidence [Ram Ch v. 5,

sup; Ranuwrai,, v. 5, A 1973 SC 2200; Siddhesuar e Rhabasundari, A
1978 C 41.
Expert's evidence is only a piece of evidence which has to he considered along with the
other pieces of evidence. Which is the main evidence and which is the corroborative
one depends on the facts of each case ]Guiitaka u Busetti, A 1954 AP 39; B. K. Kittv e
The State, 1984 Cr1 U 1289, 1297 (1984) 2 Crimes 183 (On); Natahar Beirera u Rota
Krishfla Dos, A 1987 Orissa 7, II (DII): (1986) 2 Orissa LR 1371. Expert evidence of
handwriting can never he conclusive, because it is, after all, opinion evidence [ishii'ari
Pd i: M11 isa. A 1963 SC 1728]. Experts evidence as to handwriting being opinion
cvidencc, call if ever, take the place of substantive evidence. Before acting on
such evidence it is usual to see whether it is corroborated either by clear direct evidence
or by circumstantial evidence ESashi Kumar v. Suhad/i Kumar, A
1964 SC 529; in Re
MA. Anthony, 1982 Cr1 U NOC 32 : 1981 Mad LW (Cri) 134 (Mad); Dolagobinda
Dos n State of Orissa, 1983 Cri U NOC 116 (On)].
Justice does not rely solely upon the opinion of the expert arid even if experts are
unable to give a definite opinion, justice must exercise itself and come 10 a
conclusion and give a definite finding. [Dehendra Chandra Mondal o Ratan Mitra,
A 1984 Cal 316, 317]. When there is any suspicion in the signature in a Will, the
evidence of the attestor can be corroborated or contradicted by the expert opinion
lSwnangala T Pai r Sundaresa Pai, A 1991 Ker 259, 264]. Sole evidence of an
handwriting expert is not normally sufficient for recording a definite finding [S. 'e
Vnava, A 1967 SC 778; Suiril v. LIC, A 1976 C 224]. Examination by handwriting
expert is not necessary in every case [Srichand n 5, A 1967 SC 450; Si: V7iraya, sup]
and no adverse inference can be drawn for not obtainin g expert's opinion [Srichand
I'. S, sup]. If nothing is elicited during the cross-examination of the Handwriting
Expert to throw any doubt on his testimony, his evidence call accepted [State of
Orissa o. Sapnesn'ar Thappa, 1987 Cri U 612, 616 (On)]. I Iandwriting can be
proved by other means also s is Vinaya, sup]. Forming an opinion about
genuineness of handwriting without considering the evidence of expert or the
opinion of one familiar with the hand-writing of the alleged writer is illegal and
improper [Jogendra v.Joykanta, A 1971 A&N 168 (Fakhrdddjn is S,
A 1967 SC
1326; Galstaun s Sonatan, A 1925 C 485; Azinat v. Shiam,
A 1947 A 311 rd On].
Court has power to compare the signatures and conic to its own finding irrespective
of a report of all [I'ranendra v Central Bank, A 1978 C 55].

Having due regard to the imperfect nature of the science of identification of

handwriting, the approach should he one of caution. Reasons for (lie opinion must be
carefully probed and examined. All other relevant evidence must he considered and
91$ Sec. 45 Chap, il—Of the Relc'ancv of/octs

ill cases, corroboration may he sought. In cases where the reasons for the
opinion are convincin g and there is no reliable evidence throwing a doubt, the
uncorroborated testimony of a handwriting expert may be accepted Iilurarilal, iS, A
1980 SC 531]. Evidence of experts is opinion evidence. The opinion is to be
supported by reasons. The court has to evaluate the same like any others evidence.
The reasons in support of the opinion, if convincing, make the opinion acceptable.
There is no place for the ipse divit of the expert. It is for the court to judge whether
the opinion has been correctly reached oil date available and for the reasons
stated [The State Kanhu Chaman Banik (Accused), 1983 Cri U 133, 143 (On)
(DB)]. When the hooks which all to be compared are before the court, the court
could have examined, on its own motion such experts for ends of justice [Govt. of
West Bengal v Nitra Gopal Basak, 1985 Cri LJ 202, 204: 1985 Arhi LR 137 (Cal)].
For evidentiary value of opinion of handwriting expert see Fak/iruddin 'c 5', A 1967
SC 1 326 case law ref; followed by Ramnarain i S, A 1973 SC 220.
At the most, expert opinion on handwriting call a suspicion as to the
genuineness of a document, but it is of no moment unless confirmed by oilier
evidence. It is certain that all such proof is even in its best, form precarious, and often
extremely dangerous. "Many persons", it has been well remarked, "write alike;
having the same teacher, writing in the same office, being of the same family,—all
these produce similitude in writing, which in common cases, and by common
observers is not liable to he distinguished. The handwriting of the same person varies
at different periods of life; it is affected by age, by infirmity, by habit". In Eagleton V.
Kingston, 8 Ves 476, Lord Eldon gave a remarkable instance of the uncertainty of
this kind of evidence. A dcccl was produced at a trial, purporting to be attested by
two witnesses one of whom was Lord Eldon. The solicitor for the party setting up the
deed who was a very respectable mail every confidence in the attesting witness
and had in particular compared the signature of Lord Eldon to the document with
that of pleadings signed by him and yet Lord Eldon declared that he had never
attested a deed in his life [Best 11th ED s 247; Will Cir Ev p 235 ] . In R. v. Follet,
(1912) 47 LJ 34 (cited in Phip 6th Ed p 386] the Recorder of London vcnt to the
length of stating that in forgery cases, the practice of calling experts in handwriting
had been discontinued in consequence of the grave mistakes they had made.
Lawson in his hook on Expert and Opinion Evidence says: "The evidence of the
genuineness of the signature based upon the comparison of handwriting and of the
opinion of experts is entitled to proper consideration and weight. It must be confessed,
however, that it is of the lowest order of evidence or of die niosL uusaiisiactuly
character. We believe that in this opinion experienced laymen unite with the members
of the legal profession. Of all kinds of evidence admitted in a court, this is the most
unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of
jurisprudence" [Lawson's Expert Ev]. The Supreme Court of Michigan said:
"Every one knows how very unsafe it is to rely upon any one's opinion concerning
the niceties of penmanship. The introduction of professional experts has only added
to the mischief instead of palliating it, and the results of litigation have shown that
these are often the merest pretenders to knowledge, whose notions are pure specu-
ations. Opinions are necessarily received, and may be valuable, butit best this kind
of evidence is a necessary evil" [Matter offlifred Foster's Will, 34 Mich 21, 251.
In the following cases amongst others the opinion of a particular handwriting expert
was not accepted [Suresh R, 16 CWN 812: 39 C 606; Srikant v. R, 2 AU 444;
Jalaluddin i'. B, 15 IC 979: 147 PLR 1912; Is/tar Dos v. Ram 18 PWR Cr 1908 : 8 Cri
U 75; in re Venkaza Row, 36 M 159; Lalta v. R, 5 IC 355 11 Cr1 U 114; Punjab N
 Opinions (?I('-VpertS. Sec. 45 919
Bark hi 1'. Men'n,rtiie Thuik id, 7 IC 981. The conrjsuisoii 01 hat lwritjnu is not a
pericci science. Deviations in sienatirros can arise due to material \'ariat j ons'uid various
Other Causes. [Mrs Veeiiii Moirclu r: Nari,rder Kumar Honda,
A 19S4 P&H 99, 10
Piara Sing/i i: Jagiar Singh, A 1987 P&H 93, 95: (1986) 90 Pun LIZ 478].
In many cases, the clear evidence of iron-experts who depose to the fact is more
cogent than the evidence 01 experts who merely form conjectures. Thus where an
a(tcstin witness swore clearly and distinctl y that a deed was executed in his
presence by R and his wi 6a, both of whom he knew, this evidence was held not to be
counter-balanced by the evidence of experts who expressed an opinion that the
si g nature purportine to he that of R was not in the character of his handwriting
[iVeu'tori n Ricketts, 9 HLC 262; Powell Ev 9th Ed p 502J Under S
63 (a) Succession
Act, in order to say that a will has validly been executed it is not necessary that it
should contain the signature of the testator; but on the other hand it is enough if the
testator affixes his mark or some other person si g ns the document in the presence of
tIre testator and under his direction. In such circumstances the opinion of an expert
that the singnature seen on the will is not that of the testator is riot a relevant fact [R
Sarasrr'ai/ry P. Bharvat/ry Animal, A 1989 IKer 228, 2311. In Turner u Hand, 3
Wall, ir 88, 115 (Am), G R ' IER J. said "Opinions with regard to handwriting are the
weakest and least reliable of all evidence as against the direct proof of execution of
an instrument". Conclusions based on more comparison of handwritin g must at best
be indecisive arid yield to positive evidence in the case [Kis/rore n Caries/i, A 1954
SC 316: 1954 SCR 919; Ranjix v. S, A 1963 p 262; IJ/iagrr.
an e Ma/iaraj, A 1973 SC
1346]. When a person who has put his si g nature in the disputed document was
under g oing treatment, and was stated to be in a serious condition, the marginal
dissimilarity in signature is inevitable [Societ y of Sacred Tran.ijigrirarion a MSNP
T/rilaç'a Moon/u, A 1987 Mad 17, 21(DB): (1986)99 Mad LW 6831.

The comparison of handwriting by an handwriting expert, unlike the case of

comparison of a finger print, can at best provide a tentative method of judging the
authorship of the signature and the safe course is to test such a comparison with the
surrounding circumstances [Hok/reie Sema a Kaito, A 1982 Gau (NOC) 113]. The
evidence of a handwriting expert, unlike that of finger-print expert, is generally of a
Frail character and its fallihilitjes have been quite often noticed. The court should,
therefore, be wary to give too much weight to the evidence of handwriting expert
IR/ragrvwi 1'. Ma/raraj, A 1973 SC 1246; Ga/al, C/rand a Sat
ya lrat, A 1983 All 54,
56, Tn! Mohair Ram a State,
1981 Cri LJ NOC 223 (Del)]. After all it is only the
opinion of a person who calls himself an expert. As to the fallibility or unreliability
of expert evidence on handwriting unless confirmed by other positive evidence, see
Ram Ch a 5, A 1957 SC 381; Ki.vlrore a Caries/i, sup; Gor'ardhan a A/unradi Begam,
A 1953 Hyd 181; Ahhayanand a 5, A 1957 P 328; Airnapurnannina a Sankararno,
A
1960 AP 359; S v. Kailash, A 1961 P 451; Thak(l/rari a ingot,
A 1961 P 76;
Oiuuamaiai Animal v. Sirhapatlue, A 1961 M 90 : 1961, 1 Ml J 33; Konres/rri'ara a
Snryapi'okslra, A 1962 AP 178; Ala Uddin a Sis/ur Kumar Dutta,
A 1989 Gau 42,
43. The art of forming opinion by comparison of handwritin g is essentially empirical
in character and error is seldom inseparable from such opinions fKameswara o.
Suryaprakasa, sup].

With regard to the claim made by some handwriting experts that by a chemical test
it can be definitely stated whether a paructtlar writing was of a particular year or
period, Osborne in his book on 'Questioned Documents' ( 464) says: 'the chemical
p
tests to determine age also, as a rule, are a mere excuse to make a guess and furnish
no reliable data upon which a definite opinion can he based". This opinion was relied
Upon ill 5asju Kumar a Su/.tod/r Kumar, A 1964
SC 529,
920 Sec. 45 Chop. ll---O[ilie Relevancy vf/icis

In evaluatin g (lie evidence of' a handwriting expert on the question of' the
2eIIttinCFIeSS ol' the aflcgcd signaitire, the hollowing facts iiiust he kept in view: (1)
very few people sign in the same manner on all occasions; (2) expert Opinion on the
genuineness of a signature should be received with great caution especially in a case
where there is positive evidence of persons who saw the person sign; (3) all the tests
evolved by the experts in the matter of comparison of handwriting and signature are
merely tentative in character, and (4) opinion evidence is weak evidence [Onnanialai
Amnial c. )ithapar/ci, step]. The expert is not acting as judge or jury. His real function
is to put before court all the materials together with versions which induce him to
come to the conclusions [Keemaran Na/i c' IThargai'i, 1988 Cri Ii 1000, 1003
(1987) 2 Ker LT 644 (Ker)]. If the two signatures in the two pages of will vary so
substantiall y , their comparison with the specimen signature looses its signilicancc [4
Clcanthvthati v. Laxmideci, A 1991 Orissa 289, 294].
Where a handwriting is brought into question, it is rare. that any one thing can
determine the point at issue. It is usually determined by a more or less extended
series of things, the presence or absence of which creates the decisive preponderance
of evidence [Ames on Forgery p 100]. Mere resemblances between two writings in
hand-movement, or curve or pen-pressure or such other things are not at all sufficient
to create the conviction that they are written by one and the same person. Compari-
sons in these matters are not of much moment. It is the many pecLiliarities, or
eccentricities of a man's handwriting or spelling, or his mannerisms, if there are any,
that afford good materials for comparison. The peculiarities must be of such a
striking nature that a conclusion as to the identity of the writer becomes irresistible.
In re Venkata Row, 36 M 159, 165, SUNDARA AIYYAR J, said: "I am quite prepared to
concede that there may he cases in which the peculiarities in the handwriting of a
person arc SI) numerous and striking and there are so many mannerisms of the forger
that lie has been unable to avoid in committin g his forgery that the court might well
come to the safe conclusion on expert evidence alone that the writing is that of a
particular person". An instance of detection of forgery by peculiarities in spelling and
in half-crossing of "t" in "to", is to he found in Creswell & others c'. Jackson &
another, cited in detail in Wills Cir Ev 6th Ed pp. 454-55. One of the most useful
tests in a case of forgery is to see whether a clear dissimilarity of habit can he traced
through the documents tendered. If there exists such a dissimilarity, (lien it is difficult
to say that the same person wrote them all [Maw/can c Gokul, 62 IC 882].
The most important things are to examine the general characteristics, formation of
icttcr, iixcd pen-habits and :nartncrisms and discern the. identit y of the writer. It is
not the form alone, nor any one feature, but a combination of all its qualities that
impress us. This total individuality has to be taken into account in arriving at a
decision. A correct conclusion in any case is based only upon a combination of
common qualities and individual characteristics in sufficient number, so that it is
reasonable to say that they would not all accidentally coincide in two writings by
different writers [Jitendra o R, A 1937 C 99 SB]. An expert's opinion is accepted by
the court when the reasons given are both apparent and convincing. The expert's has
also announced that lie had noticed all the characteristics, though he had not
specified them in the report. The dissimilarities noticed bymhiwould be sufficient to
hold against the defence [Pa/ant/a P11/ui v. State, 1991 Cri Li 1563, 1580 (Mad)]. In
examining a disputed document the true test is not the extent of; the similarities
observed when compared with genuine documents, as forged documents usually are
good imitations, but the nature and extent of the dissimilarities noticed. It is these
differences which expose the true character of the document in question [Raviappa o
Njl/canta, A 1962 Mys 53]. The importance of writing characteristics is recognised
 Opinions (1/ ('v/)ert-
Sec. 45 92

by all handwriting expeits anti it is sound because Iwo di1fircrit person.s have no ,.o
the Sallie ffl()VCfllCrltS naturall y , and in hict there art, sortie advanced mover eiits'hat a
'vi iter of a poor class cannot attain .Jaduna,h i: 1$ishesh,-, A
1939 0 I 7 J The
opinion of liandvritjn expert on glaring similarities would not he of much value. In
any serious attem p t the forgers achieve some similarities and may cccii bring about
glaring similarities. [5iiv. Siaria Picdad' D' Soii:a o i1. Noravaiiasii-' A
1984
NOC 139 (Kant) : (1983) 2 Kant Ii 135.

In the matter of recognizing handwriting, an abundant source of mistakes is. that

many persons Write \'CI)'
nitich alike: so much so, that it is often (lilticult to
distin g
uish one person's handwriting from that of another (Ram on Facts, 531. It is
not difficult to forge the ilatidwriting of alniost an y person, so that it may be
impossible for even the most acute and experienced judge to discriminate between
the false and the true ISarin i Hari (las,
26 CWN 113]. "And it is too trite that
Persons may he found 'vrlhng for a sufficient consideration, to sweat- to any
statement of facts" Iper CiRitiz J, in Turner Luciani, I l3al (US)
491. A court is not
to surrender its own opinion to that of experts who arc called before it, but with such
help as the experts Can afford, it must form its own opinion on the subject in hand
cc U an Advocate, 13 R 518; Alitsa Goolain, r Khoo Soo, [in
157 IC 82; Dieia Pd c 5,
A 1952 N 2891. The rejection even in iota of an expert's opinion would not exonerate
the coirt from the duty of coating to an independent findin g
on the question of an
authorship of handwriting; the court has to examine the opinion and dome to its own
decision [Jitelu/ra c R,
A 1937 C 99 SB]. The court is competent to use its own eyes
for deciding whether certain hand-writing placed before it are similar or not. The
Opinion of experts is only a piece of evidence. The opinion of the judge is the
decision in the case [(Id/nab r: B, 65 IC 426; Swril 1 ,.
I L/C, A 976 C 224: Pranendra
,. Comm-al Bank, A 1978 C 55[.

To conic to a decision to find out the identity in a particular writing, there is not
only a Provision for examining an expert under see 45 but also that the evidence of
an y other person acquainted With
the handwriting would he relevant tinder sec 47
[S/ntj jiva,v Pansari v Dr Hail l'rasad Mehra, A 1983 Pat 321, 3251. Where a
CilSC
depends upon a comparison of the handwritin g
, the court is competent to use its Own
eyes for- the purpose of deciding it.
IT' such a case, the Court cannot accept the
expert's evidence like an automation fParsac/ e Ja.coda,
A 1937 P 328; Ab/iavananda
i: S, A
1959 P 3281. The fact that an expert cannot read or write the lanauage in
which 11
signature or writing is made will riot make him incompetent a an expert
[Saqlaimr e. R, A 1936 A 165; Parhciij r•: Mancisi, A 1977 On I
39 ]. hut it must detract
from the value which would otherwise he attached to his evidence [Ramnsent-ak- u 1?,
A 1933 P 559]. When both sides have produced handwriting experts in support of
their cases their evidence is of little help [Md Ziaullah v. RaJiq, A
1939 0 213].
Opinion of any one should not he preferred on conjectural rea s ons
[So/nan/(Il e La/a,
A 1981 A 62]. The two experts examined by the two parties for comparison of the
Signature of the testator in the will, found that there are variations in the disputed
si g
natures. This evidence coupled with further evidence that the testator was in the
habit of writing letters which varies in the formation and shape, was accepted to find
that the will is genuine
[Siimi Manoranra Srii'asiar'a i•: Smnl Saroj Srivastava, A 1989
All 17, 32]. Experts would generally depose ill favour of the party producing them
[Suresin Kumar u. Menra Rain, A 1991 P&H 254, 2551.
Determination of age of hanrlwriting._.Jf'he science of handwritin g is not an
accurate one and there is likelihood of errors creepin g in, when a handwriting expert
gives his evidence and therefore, such evidence should he received with caution.
What is the evidentiary value of a handwriting expert and whether or not in
922 Sec, 45 C /up. il—Of i/H Rcl('ewo\' 0/ /i

con ju nction with the other evidence available, the evidence of the expert supports the
case oh the plaititill, are matters for decision hy the irial judee I L i ppii ./l1(i/lSi i.ctk.cIoi'
13w i'. I. 'iikatesiiaa Rao, A 1994 Al' 90, 921. Osborn on "Questioned Docunienis"
at page 464 sa y s There are those also who pretend to say how old a writing is by
merel y exanlitting it with a hand magnifier or a microscope. 1hiisilways is an
exhibition either of ignorancc or of dishonest presumption. The chicmical tests to
dctcrniinc age also, as a rule, are a mere excuse to make a guess and furnish no
call
reliable data upon which a delinite opinion based as can easily be demons-
oil
trated by lair tests ments of known age''.
The learned author also expressed the view .........By recording the color as first
seen, any observer with good eyesight call second view answer the question
whether an ink is still undergoing a change in color. This kind of all examination
often furnishes conclusive evidence that a document is not as old as it purports to he.
It is important to know that the color of the ink oil suspected document, if it is
promptly examined, may thus he the means of showing that the document is not
genuine. If a writin g of this kind purports to have been written long before and it can
be shown that the ink has not yet reached its final depth of color, and it acwally goes
throush those changes that are characteristic of ink during the first months or year ol
its history, it is only necessary to prose this fact to invalidate the document."
The Supreme Court in Shashi Kumar Bwieijee i: Subodh Kumar Boner/re quoted
with approval the observation of Osborn and held:
"Finally we may point out that the expert admitted in his evidence that it was
onl y by a chemical test that it coLild be definitely stated whether a particular
writing was OF a particular year or period. He also admitted that he applied no
chemical tests in this case. So his opinion cannot on his own showing have that
value which it might have had if he had applied a chemical test. Besides we
may add that Osborn on "Questioned Documents" at page 464 says even with
respect to chemical tests that the chemical tests to determine age also, as a rule,
are a mere excuse to make a guess and furnish no reliable data upon which a
definite opinion can be based'. In these circumstances the mere opinion of the
expert cannot override the positive evidence of the attesting witnesses in it case
like this where there are no suspicious circumstances".
The passa g e from the decision of the Supreme Court extracted above is not an
authority for the proposition that that the evidence of the handwriting expert should
110L be in uugh Ili, ;ccard far the perp n '" nf determininn the age of the disputed
handwriting [Uppu .JJiansi Laksluni 13a1 v. J. Venkateswara Rao, A 1994 AP 90, 92].
Science of handwriting not an exact science.-- The science of handwriting is
not an exact science unlike the science of fingerprints. Even experts tend to commit
errors in giving their opinions on the genuineness of the signatures and handwriting.
Even in genuine writing, at times, the penhesitates or even stops especially when the
author is under great physical or mental strain. Sometimes, it would be difficult for
an expert to examine even the genuineness of different writings, each having its own
individualily, but all by the same author. It requires intelligent comparison to
differentiate the genuine signature from the forged one. [Vanciauas Kari/iikeya u S.
Kanialwnma, A 1994 AP 102].
Osborn says : "As the psychologists explain it, 'likeness and difference co-exist in
all things not utterly unlike', so that intelligent comparison for the purpose of
classification must always include analysis and reasoning......A writing or a
document, having in mind all the various qualities, elements, features, tendencies,
 Opinions /pcs1s.
Sec. 45
variations and conditions in writinOs and in documents that have hcretofor hccn
discussed. A siiiiple questioned signature should thus be mnvcstigatcd with
these
varied qualities under consideration, and until it has thus been Scrutinized
signatuv
has not really been cxamincd. "Questioned Documents" b y
Albeit S. Oshurn Second
Edition, p. 238".

Relying the above passage of Osborn the Andhra Pradesh High Court field:
Great care and caution should be exercised especially \VliCn the court is not
assisted b y
the e idence of an expert in determining the genuineness of a sienatu re or
handwriting. Even while calling experts, it is now admitted by all authorities that if
one cannot get a competent man, it is better not to adduce any expert evidence at all
[Whidatasj Ka,ihikeva m: S. Kaijiafrumna A 1994 AP 102].
Comparison of Handwriting by Court.—This subject has been discussed fully
in the notes under s
73 post. "Conmpari.von of llandmmriiiiigs b' the Court
Modes of proving handw
45 riting.—It has been held that the modes indicated in sections
and 47 are not exhaustive. The court may take into account other external and internal
circumstances The coumi gave this illustration. Where a letter is posted b y
a person and
the sender and the senclee happen to he the same person, there would he an inference.
without resorting to the provisions of Sections 45 and 47, that the sender was the author of
[he letter. Go ar-A/j u State of HP,
1997 (8) JT 564: (1998) 2 SCC 192.
Opinion on Marks.—(Sce post s 47: "Handiiritinç Whet/icr it includes Mark").
Finger im
pressions.—Attention to the subject of linger impressions was first
drawn in 1923 b y
Purkenje, a physiologist of Brcslau. Sir William Herschell of the
Indian Civil Service introduced it into Hooghly, a district in Bengal, The subject was
afterwards in\ esti g
ated by Galton who aivcd at remarkable results. 'Identification
by linger-prints has become a most important branch of criminal investigation, and
has proved to be of signal service both in the detection of crime and the identification
of the offender. The system is new, and had only just been introdLiced into this
country when the last edition of the work was published, and it is onl y
quite lately
that the conciLisivO nature of the evidence that it affords has been appreciated in
courts. It may be said now to have established its claim to admission and to trust-
worthiness The processes, and specially the admirable s y
stem of classification, make
it perfectly simple to those who understand its technology. Despite an appearance of
complication, the system appears to he easily mastered by any person of intelligence
in the course of few months or even weeks" (Wills Cir Ev p 191].
"The inner part of the hand and the sole of tilefeet arc traversed in all
directions by lines of Varying lengths, some representing depressions, others
elevation of the skin surface, many of them being grouped into pattern which,
though seemingly complex, can be outlined with exactness. Time most conspicuous
are the creases caused by the fblding of skin. The less conspicuous but much more
numerous lines are the papillary rid g
es which appear over the whole surface
giving it an appearance that may be likened to that of a newly plou g
hed field with
its ridges and furrows, or to sand which the water in
receding from has left ribbed.
The ridges are studied with microscopic pores, the mouths of [he ducts of the
glands which secrete perspiration are located below the epidermis. They grow
with the growths of the body, and are most marked in
hands that do some work,
though liable to lose their sllmtrnCsS of definition and even to
l/
become partially
obliterated on those parts of the hands where from continued pressure callosities
lhrrn. This may he noticed in labourers and artisans whose bands have become
hardened by the use of tools or other implements of their trades. Injuries do not,
necessarily, obliterate the rid g
es. An ulcerated sore eating so deeply into the flesh
as to destroy the sweat gland. would certainly destroy the ridges, and from the
surface of a lasting scar ridges disappear. A cut leaves across the ridges a
924 Sec. 45 Chap. /I-- 0j the Rclet'ajjrv of Facts

permanent thin mark which when the impression is taken On paper, shows as a
white space, somewhat similar to a crease. The late SIR FRANCIS GAI:ION has
investigated on the persistence of the ridges throughout the period of human life
and in the followin g words records the results of his examination of many sets of
prints taken at different times, and covering the interval from childhood to
boyhood, from boyhood to early manhood, from early manhood to middle age and
from middle age to extreme old age "As there is no sign except in one case of
change during any of these four intervals which together almost wholly cover the
ordinary life of man, we are justified in intrring that between birth and death
there is absolutely no change in say 699 out of the 700 numerous characteristics of
the markings of the fingers of the same person such as can be impressed by him
whenever it is desirable to do so. Neithercan there be any change after death up to
the time when the skin perishes through decompo-sition; for example, the marks
on the fingers of many Egyptian mummies and on the paws of stuffed monkeys
still remain legible. Very good evidence and careful inquiry is thus seen to justify
the popular idea of the persistence of finger impressions" [Henry on Finger Prints,
4th Ed pp 16-191.
The words "linger irnpressic'ns" were added to the present section by Act 5 of
1899, on account of the decision of the Calcutta High Court in R v. Fakir Md
reported in 1 CWN 33, where it has been held that the comparison of thumb-
impressions must be made by the court itself; and that the opinion of an expert was
not admissible under s 45. The reasons for the addition of the words "finger
impressions" will appear from the Statements of Objects and Reasons (see 3 CWN
xxxiv). Under this section as amended by Act 5 of 1899, expert evidence may he
given of finger impressions IR. Sandeo, 3 NLR 1: 5 Cri Li 220]. Tests indicated for
identification of thumb impressions [Kamla Ratanlal, A 1971 A 304]. Science of
identifying thumb impression is an exact science and does riot admit of any mistake
or doubt [Jaspal o 5, A 1979 SC 17081.
Evidence on linger impressions is now admissible, but the person giving his
opinion, as in other cases, must he shown to he an expert. The comparison is to be
made with finger impression proved beyond doubt or admitted. For purpose of
comparison, the court may direct finger impression to be taken of any person present
in court. [See Identification of Prisoners Act (33 of 1920), s 5 and s 73 post; Shea
Narain v. Rawat, A 1986 Punj & Har 174, 175 : 1984 Har Rent R 540].
S 73 has also been made applicable to finger impressions by I E Act, 5 of 1899
and so in order to ascertain whether a finger impression is that of the person to whom
it purports to be; any iirigem imnpicssion admhtcc 1 Cr prov ed in he the finger
impression of that person may be compared with the one which is to be proved
although that finger impression has not been produced or proved for any other
purposes. The court may direct finger impression to be taken of any person present in
court in order that it may compare the finger impression with any finger impression
alleged to be the finger impression of such person (see notes to s 73).
Palm Impressions.—Palm impressions come within s 45 and opinions of experts
to similarity or dissimilarity of photographs of palm impressions are admissible FR '
Babulal, 52 B 223 : A 1928 B 158; see post: "Foot-marks or I'oot-prints"1. In
Ceylon s 45 has been amended to include palm impressions.
Report of Finger-print Expert.—The report of a finger-print'expert is inad-
missible unless he is called as a witness arid subjected to cross-examination [Pitain v.
Baboo Singh, A 1924 N 183; Wad/rowe v fat Kishan, A 1928 L 427: 106 IC 4931.
Report of Director, Finger Print Bureau, can be treated as evidence without
examining him, but in case of any doubt the court may examine him [H P Admn n
 Opiniun.v of elperis. Sec. 45 925
Oinpiakah, A 1972 SC 975: sec u/lie. 'Sl,',e Certificate of Meilic,i/ iuii or
Ekpert'' J.
Value of Fingcr-prints----Dutv of* Court.—Although finger-prints s. oetiiiics
afford valuable evidence of" identity as in R v. Casi(eto,i, (1909) Cr Ag;' Rep 7 as
was pointed out in the case of R u Fakir (i/id) and 1? u Abdul Ilainil po.vt), ereat
caution must he exercised in arrivin g at a conclusion by comparison of thumb-
impressions, and the positive evidence of witnesses who werc undoubtedl y present
and were eve-witnesses to the transaction should not he 1ihtly brushed aside. In this
case there was diversity beiwben what purported to have been the thumb impression
taken in the registration hook (the original document being lost) as compared with
specimens of thumb-impression taken in court and it was held that the evidence of
the finger-print expert was b y no iicans conclusive [l3uidyancrth u Al/cf Jan Ribi, 36
CU 9: 70 IC 194].

It is most unsafe without any corroborative circumstances to Convict a person of a

Serious crinle solely and entirely upon similarity of thumb-mark or figner-prints
[Baari i: R. 6$ IC 95$ : I 242; Bas-it v. R, 6 P 305; sec also Pancho v. R, I CI.J
385; Jas.vura,n u fl 4 1, 246 : 77 IC 423; Singri v. R, 27 IC 900 (M); Hail SiJI'/I
1:
/.aclth,ni, A 1921 1, 126; Go/op Chandra Maliania u State of Assam, 1989 Cri U
NOC 95: (1988) 3 Crimes 114]. It is not sate to COIlViCL one on the mere result of
critical examinations of th umb-impressions made by an expert. Thou gh
the
classification of finger impressions is science requiring much study, and though it
may require an expert in the first instance to sa y whether an y two fingcr impressions
are identical, yet [he reasons which guide him to this conclusion arc such as may be
weighed by an y intelligent person with good powers of eyesight. The term
"evper"
in coniparing finger impressions explained [R n Abdul Hainid, 32 C 759: 9 CWN
520 ] . These cases were not followed in a Madras case where it was held that a coLtrt
cannot refuse to convict a person on the evidence of finger-print, merel y on the
ground that it is unsafe to convict upon such evidence. There is nothing in the so-
called science of finger-prints or the qualifications of an expert in it which deter the
C 0 11 1 - 1 from applying its own magnifying glass or its own eyes and its own mind to the
evidence and verifyin g the results submitted to it b y the witness. The arguments in
fin g er-print cases rest on a simple deduction from a number of observations of the
similarities and differences between the finger-prints in question fR u Vrani,nal, 46
M7 15: 69 IC 374 (32 C 759: 1 P 242 not folld); Fakir u R, A 1947 S 177;
see also
R u Fakir AN, 60 B 187 : A 1936 B 151; Sarac/a u R, A 1930 L 667]. In a later
Madras case, a magistrate not being satisfied with the opinion of a finger-print expert
gave the accused the benefit of doubt. Ii was held that the court was not hound to
accept the evidence of an expert even though there were no special reasons for not
accepting it. It Was proper for the magistrate to satisfy himself by personal exami-
nation of the finger-prints even though he was not an expert [Pub Pros i: Gopal, A
1941 M 55 I]. In another case the judge felt the necessity of examining the finger-
print expert at the appellate stage and set aside the conviction on such opinion as he
could not give satisfactory reasons for the opinion In ii Godar'ari/i y, A 1960
AP 1641.

The court has to rely on the expert on two distinct points: (i) on the question of
similarity between the marks which is a question of fact on which the court can and
should with the assistance of the expert satisfy himself and (ii) on the point, which is
one for expert opinion, whether it is possible to find the finger-prints of two
individuals corresponding in as many points of resemblance as are shown in exist
between the impression found in the case before the cotiri and those of the accused
[R u. Fakir Md, sup; R/raluka r: S, A 1957 Or 172].
 926 Sec. 45 Chap. 11—Of the Iielei'nncv of lici.r

Expert opinion on finger-prints has the same value as the opinion of ilriv Other
expert, eg medical opinion, &c; in each case thc evidence is onl y a g uide to
judee of
its sahic. The court is at liberty to use its own discretion and to affirm or diflr from
the expert Opinion. In this view, as has been repeatedly held, it is not safe to convict
upon the sole testimony of an expert [liasgit v R, 6 P 305: 104 IC 626]. Jr 11o/iini
t:
R, 46 C 635: 54 IC 50, the jury accepted the expert's evidence though caunoned by
the sessions judge, and conviction was also based o i l testimony in Pith I'm i:
Kandasami, A 1927 M 696: 50 M 462; Re Castieton, 1909, 3 Cr App Rep 74. It
cannot be laid dOW11 as a rule of law that it is unsafe to base it on the
uncorroboratcd testimony of a finger-print expert. The true rule seems to be one of
caution, that is to say that the court must not take the expert's opinion for granted but
it must examine his evidence in order to satisfy itself that there can he no mistake and
the responsibility is all the greater when there is no other evidence to corroborate the
expert [Hare,tdra e R, 35 CWN 863 : A 1931 C 441, 442;
Go/am e I?, A 1950 C 66;
R n Viraminal, 46 M 715; S e Karu, A 1954 P 13].
It is the duty of the expert to give reasons for his conclusion. It is not enou g h to
say with a magnifying glass that there are 2 or 3 common ridge characteristics.
Comparisons should be made by making enlargements oil All in the
number of ridges between the core and delta is one of the sure criteria for
comparison. A similarity in the type cannot be a certain index. It is the duty of the
court to scrutinize the evidence of tile expert or make a comparison of the impression
personally—Method of comparison indicated I/n re Godauarthv, A 1960 AP 164]. In
Dj/cdad e R, 113 IC 68 : A 1929 I. 210, ADDIsON, J, expressed the view that
comparison of thumb impressions has become an exact science and great weight
attaches to the evidence of an expert. Oil 1 7th of August, 1904, th aief
entered No
30, Si Peter's Square, Hammersmith, and before leaving, helped himself to a class of
wine. On the ttimber used, the thief left two finger prints, and these were
subsequently found, upon search in the record at New Scotland Yard, to be identical
with two of the finger-prints of one George Gage, a notorious criminal. Gage was
subsequently arrested and committed for trial. He pleaded guilty, and was sentenced
to four years' penal servitude. The case is reported at length in the Daily Telegraph of
the 21st October, 1940 [Henry's Finge r Print, p 62]. The evidence of finger print
expert can he acted upon without corroboration as the science of identifying thumb-
impressions has developed to such an extent that it does not admit of any mistake or
doubt [Pathn(1nara Mohapatra r: State, 1983 Cri Li NOC 238 (On)].
A court should he ver y chary in accentinc' the evidenc' OF a floger-pnint expert as
to the age of a thumb-mark when it is markedly opposed to the date oil document,
SO long as 110 serious extraneous testimony controverts that date
[Ram/ak/tan v.
D/tarmadeo, 97 IC 335: A 1926 P 5751. A jury is not bound to accept the opinion of
an expert upon thumb-impressions without corroboration of their own intelli g ence as
to the reasons which guided him in his conclusions [R v. Abdulliamid, 32 C 759: 9
CWN 520]. The question as to the identity of thumb-impression on two or more
documents, for the purpose of ascertaining whether the thumb-impressions are of one
and the same person, is eminently a matter for the jury and not for the judge [Pancho
n R, I CLJ 385].

In order to prove the previous convictions and identification of thc accused which
were denied by him, the prosecution produced certain finger impression slips, which
were compared with the accused's finger impressions by an expert who declared that
the accused must he the mail finger impressions were on the slips. He did not
personally know [he accused and had not himself taken the impressions on the
ships—field, that the previous convictions of the accused stated on slips Were not
 Optninv oJi'.iperts.
Sec. 45 927
proved by lucre Production of such slips [Jiulost r'. R, 4 L13 K 125: 7 Cri Li 1
Ra,iu/a.c i'. R. 21 CWN 4691. 106; see

If a finucr-print expert has not been cross-examined as to the ground of his opinion and
as to the test applied, the value and weight of his evidence cannot be diminished by
applying to it considerations to which the witness's attention was not directed [Saniar v. R,
55 IC 2731. The opinion of an expert recorded for the purpose of a civil though proved in
criminal case, is not admissible [Jassu Rain v. R, 4 L 246; Ganda v.I?.
A 1928L 9211. Use
of report of finger print expert as evidence without examining him where the accused did
not apply for his examination is in order [Plioolkwnar i. Delhi Ad,nn, A
1975 sc 505]. It is
the duty of the prosecution to prove that the specimen writings are of the accused and only
then the question can arise as to whether the opinion of, the handwriting expert should he
relied upon or not [Stare of Rajasthan v. Dr. J.P. Shanna,
1982 WLN 60 : 1983 Cri LJ 858,
864 (Raj)]. The science of comparison of scalp hairs has riot yet reached perfection like the
science of comparison of finger prints (Hi,nansliu Pahar v. State,
1986 Cri Li 622, 628
(DB) (Cal)].
Where the first photo g raphs of fingerprint impressions were not found to be clear
enough to enable the expert to come to any definite conclusion and, therefore, second
impressions were taken by the photographer, it was held that thephotographer's evidence
that he was able to take better photographs on the second occasion could not he
disbelieved by the court unless he was exposed in cross-examination. Arnnzini v. Stare of
Kerala, AIR 1998 SC 260.
Foot-marks or Foot-prints.—The fact that foot-marks corresponding to that of the
accused was found near the spot of occurrence is relevant. Evidence of skilled persons
who are in a position to identify foot-mark is admissible in England and America. It is an
instance of identifying traces circumstantially. Vigmore says: "For foot-marks and hoot-
marks there is also a double step of inference, viz from the mark found to the presence of
the maker at the time of the act, ie. a Trace-inference, and from the combination of the
features in the mark found to the person bearing the same combination of features, le an
Identity-inbrence ............No doubt a witness to identify foot-marks should be required
to specify the features on which he bases his judgment of identity; and then the strength
Of the inference should depend on the degree of accurate detail to be ascribed to each
feature and of the unique distinctiveness to he predicted of the total combination.
Testimony not based on such data of appreciable significance should be given no weight"
[Wig s 415; see also ss 151 a, 660; 3 Chamberlyne's Ev s 1874n I and Phil) 8th Ed pp
127, 130-31]. In a murder case a witness was called to prove comparison of shoes and
shoe marks; PARKE, J, asked him if he had looked at the soles of the shoes and examined
them with the foot-marks before he put the shoe in the mark; the witness answered in the
negative. PARKE. J, desired the jury to reject the whole inquiry relating to identification
by shoe-marks [I? v. Show, 1830, 1 Lew, Cr C 116, cited in Wis s 660].
Though foot-prints are not recognised in s 45, evidence of foot-print.expeas have been
admitted with the caution that there should be other evidence to bring home the offence to
the accused [In re Oolnayaim, A 1942 M 452: Fu/lava s. R, A 1941 M 88;
A 1937 M 951; R v. Rahula/, 52 B 223; Sidik v. R, A 1942 S 11; In re Mylaswaini,
51; Eakirc/iand v. 5, A 1955 MB 11 9—C
Goner/i V. S, A 1955 As
ONTRA: If it is to he used, court must satisfy itself
by a comparison, Paraniba,i u. 1?, A 1951 M 737]. In Se. Karu,
A 1954 P 131: 1954 Cri U
201 expert evidence about a blood stained foot-print and in Rarnkaran r'. S,
1958 Pat LR
246 about a foot-print on a chadar was considered without reference to any section of the
Act. Mere fact that foot-marks tally with those of accused's shoes is not sufficient. There
may be a large number of the size of the accused's shoes
[Bhikka v. R, A 1943 B 458].
Identification by foot-prints is a rudimentary science and much reliance cannot be placed on
it. It can be relied upon along with other evidence pointing to identity [Pritam v. 5, A
1956
SC 415: 1956 Cri U 8051. The word 'science' is wide enough to include evidence of foot-
print expert. Conviction was sustained on the evidence of PW I and a foot-print expert
[l3asudeo v. S, A 1959 P 534].
 928 Sec. 45 Chap. ii— Oft/u' Releva,tc . of Facv

In Ceylon s 45 has been amended to include loot impressions.

Expert Evidence on Commission.- -The evidence of an expert when given on
Commission is very considerably reduced in value [IVur Dill R, A 1928
L 5331.
Use of Scientific Treatises by Court.--[See post s 57 and s 60 proviso (I) and
notes].
Expert evidence on witness's state of mind or reliabilitv.--As regards the
admissibility of expert evidence to deal with a witness's state of mind or reliability it
was observed in R o Turner, 1975 All ER 70, 74 as under:
"An expert's opinion is admissible 10 furnish the court with scientific
inforniation which is likely to he outside the experience and knowled g e of a
judge or jury . If oil proven facts a judge or july can form their own conclu-
sions without help then the opinion of an expert is Unnecessary ......jurors do not
need psychiatrists to tell them how ordinary folk who are not suffering from any
mental illness are likely 10 react to the stresses and strains of life ..... The same
reasoning applies to.....admissibility oil issue of credibility. The jury had to
decide what reliance they could put on the appellant's evidence. He had to he
jud g ed as someone who is not mentally disordered. This is what juries arc
cmpanellcd to do. And the law assumes that they can perform their duties
properly.jury
Thein this case did not need, and should not have been offered
the evidence of the psychiatrist to help them decide whether the appellant's
evidence was truthful".
There have been cases where medical evidence has been ruled admissible to attack
the reliability of a prosecution witness (Too/ie' a Metropolitan Police Coinr, (1965)
I All ER 506 : (1965) AC 595; or to east doubt on the reliabilit y of confessions by
the cleEndant (R. a Rag/up, (1991) limes, 5 December and R a Wird, (1993) 2 All
ER 577: (1993) 1 WLR 619.
In R a MacKemtev, (1981) 76 Cr App R 171 it was held that a psYcholo g ist with
no medical qualifications could not be called to give evidence as to whether a
defendant was suffering from any disease, defect or abnormality of mind, but that
psychiatric evidence might, in a proper ease, he permissible to show that a witness
was incapable of giving reliable evidence.
However, in both R i-: Rag/up and 1? v. Ward the court accepted that psychological
evidence could be deployed to show thir n confession vas uiiuiiubje.
In P a Rag/up FARQUIIARSON LI said:
"The state of psychological evidence before us... is such as to demonstrate
that the jury would have been assisted in assessing the mental condition of
Raghip and the consequent reliability of the alleged confession ----- we consider
that the psychological evidence as deployed before us was required to assist the
jury and would have been admissible at Raghip's trial."
In R a Ward, (1993) 2 All ER 577 at 641, (1993) 1 WLR 619 at 690-691
GLTDEWELLLJ said:

we conclude on the authorities as they now stand that the expert

evidence of a psychiatrist or apsychologist may properly be admitted if it is to
the effect that a defendant is suffering from a condition not properly described
as mental illness, but from a personality disorder so severe as properly to be
categorised as mental disorder ..... In our view, such evidence is admissible on
the issue whether what a defendant has said in a confession or admission was
Opinions of experts. Sec. 45 929

reliable and therefore likely to have been true. \Ve cniphasise that the occasions
oil such cvidcnce would properly he admissible would probabl y be rare -
This decision is 1101 tO be consijued as au OCi) invitation to every defendant
who repents of having confessed and seeks to challenge the truth of his
confession to seek the aid of a psychiatrist."
Thus, in a proper case, evidence from a psychiatrist or ps y chologist may he
admissible to show that a wifllcss is unreliable, or a confession is unreliable. But Mr
Jones points out that there is no case in which psychiatric (Jr psychological evidence
has been admitted to boost, holster or enhance the evidence of a witness for the
Crown or indeed of any witness, lie submits that it is for tile jury to asess the
reliability and persuasiveness of witnesses and it cannot be right to allow evidence,
however expert, to suggest to tile jury that they should believe a witness of' fact.
Reference may he made to a Canadian case, 1? o Kvselka, (1962) 133 CCC 103.
The headnotc reads:
"In a rape trial, where the complainant was mentally retarded, the Crown
called a psychiatrist who testified that a person of' her mental classification,
which was a mental age of 10-11 years, was likely to he a truthful witness
becau s e such a person would lack the irliagination to fabricate. Held, that such
evidence was inadmissible. While the credit of a witness may be impeached by
the opposite party, a party cannot call witnesses to testil y to the credibility of-
truth of his own witnesses'.
The Crown cannot call a witness of fact and then t withoLit more, call a
psychologist or psychiatrist to give reasons why thejury should regard that witness
as reliable.
If the defence propose to call an expert witness to say that a witness of fact for the
Crown should be regarded as unreliable due to some mental abnormality outwith the
jury's experience, then, depending on tile precise issue, it may he open to the Crown
to call an expert in rebuttal, or even (anticipating ihc defence expert) as part of the
prosecution case. It may even he open to the Crown to rcbul by expert evidence a
case put only ill cross-examination that a prosecution witness is unreliable in a
particular respect arising from mental abnormality. Much ma y depend upon the
nature of the abnormalit y and of the cross-examination. If such evidence is admitted,
great care would need to be taken to restrict the expert opinion to nleeting the
specific challcne and not to allow it to extend to 'oath-helping' [R u' Robinson,
(1994) 3 All ER 346, 3521.
Value of Expert Evidence in General and Degree of Credit to he Attached to
it.—Perhaps the testimony which least deserves credit with a jury is that of skilled
witnesses. These gentlemen are usuall y required to speak, not to facts, but to
opinions: and when this is the case, it is often quite surprising to see with what
facility, and to what extent, their views can be made to correspond with the wishes
and interests of the parties who call them. They do not, indeed, wilfully misrepresent
what they think, but their judgment becomes so warped by regarding tile subject in
one point of view, that, when conscientiously disposed, they are incapable of
expressinga candid opinion. Being zealous partisans, their belief becomes synony-
mous with faith as defined by the Apostle, and it too often is but "the substance of
things hoped for, the evidence of things not seen". To adopt the language of LORD
CAMPBELL, "skilled witnesses conic with such a bias on their illintis to support the
cauSe in which they are embarked, that hardly any Weight should he given to their
 930 Sec. 45 (101/). 1/ - Oj the A'e/cvanrv f/'th
evidence" 'Dacy I'emlge Case (1843) 10 Cl&F 154, 191 Th
y s 5$. In 3liJ11i;' P
Co i' Christian, 4 Dillon, 448, 459, M!LLtu J, said:

"My own experience 1)0th in the local courts and in the Supreme Court ui
the United States is, that whenever [lie matter ii) Contest in\'OIvcs an iIliiflCnSC
SLIM in value, and when the question turns mainly upon Opinions of experts,
there is no difficulty in introducing any amount of them on either side".
The infirmity of expert evidence consists in this that it is mo.stiv matters of op non
and is based on facts detailed by others or assumed facts or opinion a g ainst opinion
and experts are selected by parties by ascertaining previously that they will give an
Opinion favoLtrahlc to the party calling them. Expert evidence is however, of value in
cases where the courts have, to deal with matters beyond the range of common
knowled g e and they could not get along without it,
eg in witHers of scientific
knowledge or when the facts have come within the personal observation of' experts.
The evidence of an expert is not conclusive [Kamla n Ratwilai, A 1971 A 304
following is/iivari Pd o Md i.a, A 1963 SC 1728; Devi Pd i'. 5, A
1967 A 64; J'nhlie
Prosecutor i: Moliaiii,,ied Kassim, (1977) 1 Malayan LJ 64 (Ipoh HC)j. It is for the
cowl to assess the weight of the evidence and conic to its own conclusion [Wong
Sivee Chinv. PP., (1981) 1 Malayan LJ 212 (Kuala Lumpur FC); Chin Sell1i1i i:
PR, 1958 Malayan IJ 154 (Penang HC); Ang Chwee Keong r: R,
1955 Malayan U
26 (Penang HC)]. The court should not form a conclusion on a matter which can
only be properly concluded with the aid of expert evidence jSved Abu Bakal- e P.R.,
(1984) 2 Malayan U (Kuching FC )] . Where an expert witness is called to give
evidence in court, his report should only be used to corroborate his evidence [Public
Prosecutor c Lin Lion Chen, ( 1991 ) 1 Mala y an Ii 316 (Koala Lunipur 1 IC)l.
An expert is fallible like all oilier witnesses and the real value of his evidence
consists in the logical inferences which he draws from what he has hirtiself observed,
not from what he merely surmises or has been told by others. Therefore in cross-
examining him, it is advisable to get at the erounds on which he bases his. opinion.
There is special difficulty in dealing with the evidence of expert witnesses. Such
evidence must always he received with caution; they are too often partisans—that is,
they are reluctant to speak quite the whole truth, if the whole truth will tell against the
party who had paid them to give evidence. At the same time such witnesses are in a
position of advantage; for they have had that special training and experience which the
judge and jury are without: and the ihpnc,-' of which renders acecs:ciiy the
pI'C.eiice of
such witness. Expert witnesses are far too prone to take upon themselves the duty of
deciding the questions in issue in the action, instead of confining themselves to stating
fairly and clearly their real opinion on the matter. Their duty is merely to assist the court
by calling its attention to, and b y matters atters the true significance of which
would not be clear to persons who have received no scientific training, or have had no
special experience in such matters [see Heimessy v. Kearing, 25 RPC 125; Birnuiig/iain
5,4 Co v Webb, 24 RPC 27; Powell Ev 9th Ed pp 46,5021.

In assessing the relative value of the testimony of expert witnesses, as compared

With witnesses of fact, their demeanour, their type, their personality, and the
impression made by them upon the trial judge, eg whether the y confined
themselves to giving evidence, or acted as advocate—may powerfully and properly
influence the mind of the judge who sees and hears them in deciding between
them. When the trial judge conies to a clear conclusion in fact after carefully and
dispassionately weighing the respective theories, it would not be proper or sale or
in accordance with sound practice to reverse such finding in appeal [Dias i.
Augustus, 162 IC 426: A 1936 PC 154].
Opinions of experts. Sec. 45 931
The Supreme Court observed in a case that the observation of the High Court that
there is a natural tendency on the part of an expert witness to support the view of the
party who called him, could not he downgraded. Many so-called experts have been
shown to he remunerated witnesses making themselves available on hire to pledge
their oath in favour of the party paying them. Guizar Ali s State of H.P., 1997 (8) JT
564: (1998)2 SCC 192.
After giving a wide latitude for bona fide opinions, however unfounded or
fantastical—there can he no doubt that testimony is daily received in our courts as
'scientific evidence' to which it is almost profanation to apply the term, as being
revolting to commonsense, and inconsistent with the commonest honesty on the part
of those by whom it is given. In truth witnesses ofthis description are apt to presume
largely on the ignorance of their hearers with respect to the subject-matter of
examination, and little dread prosecution for per [Best 11th Ed s 514]. Templeton
v People, [3 Hun (N Y) 357; affirmed 60 N Y 543], DANIELS J, said:—
'The evidence of witnesses who are brought upon the stand to support a
theory by their opinions, is justly exposed to a reasonable degree of suspicion.
They are produced, not to swear to facts observed by them, but to express their
judgment as to the effect of those detailed by others, and they are selected on
account of their ability to express a favourable opinion, which there is great
reason to believe, is, in many instances, the result alone of employment, and the
bias arising out of it. Such evidence should be cautiously accepted as the
foundation of a verdict, and it forms a very proper subject for the expression of
a reasonably guarded opinion by the court. That is often necessary to prevent
the jury from being led astray, by giving too much weight to evidence really
requiring to he suspiciously watched, and which in many instances has induced
unwarranted verdicts, discreditable to the administration of justice, as well as
exceedingly detrimental to the public interest".
Rogers says: "It is not surprising to find the courts saying that, as this kind of
evidence is fraught with danger, it ought to be received with caution, at least in cases
where the testimony does not relate to precise scientific facts, or to the necessary
conclusions which result from facts stated, but consists in mere matter of opinion as
to the probable inferences which are to be drawn from certain facts, or is speculative
and theoretical in its nature" [Rogers, s 199 2nd Ed p 4501. See the observations of
JESSEL MR, in Abinger Ltd v. Ashton, LR 17 Eq 373-74; of STIRLING Ii, in Bailey v.
Clark, 1902, 1 Ch 670; and of LORD COTrENHAM in Re Dyce Sombre, 1 M&G 116,
128 and also Aitken v. McMeckan, 1895 AC 310, 315-16; Perera ' P, 1901 AC 354,
359 as to the lesser weight of expert evidence. As to the weight of expert testimony,
see Rogers, ss 197-207 2nd Ed pp 443-92.
The evidence of an expert witness has to be tested like that of any other witness, for
even expert witnesses are liable to make mistakes [Baines Ram Sahai, A 1940 L
505]. The court is not bound to accept the evidence of an expert, eg a finger print
expert, even though there are no special reasons for not accepting it [Pub Pros v. Gopal,
A 1941 M 551: 195 IC 1831. The expert should not give an opinion on matters outside
the field of his expertise [Public Prosecutor i Li.'? Lian Chen, (1991) 1 Malayan LI 316
(Kuala Lumpur HC)]. The expert's role is to explain to the court the application of
necessary scientific or medical criteria so as to enable the court to come to its own
judgment by the application of these criteria to the facts proved in evidence [Sek Kim
Wall u PP., (1988) 1 Malayan LI 348 (Singapore CA)]. It is unwise to reject semi-
expert opinion. The court should adapt itself to the circum-stances of the country and
take advantage of such knowledge as may be available [R. v. Majana, 1957 SCR 14
(SC Sarawak)]. The evidence of skilled witness, however eminent, as to what he thinks
may, or may not have taken place under a particular combination of circumstances,
however confidently he may speak, is ordinarily a matter of mere opinion. Human
judgment is fallible. Human knowledge is limited and imperfect. An expert witness
 932 See. 45 Chap. II- Of the Relevancy of EacLv

however impartial he may wish to , is likely to be unconsciously prejudiced in favour

of the side which calls him. The nicie fact of opposition on the part of the other side i
apt to create a spirit of partisanship and rivalry, so that an expert witness is
unconsciously impelled to support the view taken by his OWfl side. Besides it must he
remembered that an expert is often called by one side simply and solely because it has
been ascertained that he holds views favourable to its interests [[Ian Singhv. Lachnii,
59 1C 220 : 3 Lah U 110; Diwwi v. 1?, A 1933 L 5611. Opinion of the imperial
Serologist is entitled to great. weight [Ghir v, R, A 1933 0 265].
An opinion of an expert witness not based on any well-defined inexorable laws of
nature cannot he taken as decisive, especially when there is direct evidence opposed
to it [PlevdeIl i'. R, 96 IC 461 (L)]. In the circumstances of a case, the court may
refuse to rely oil evidence of an expert unsupported by any reasons [Haji Md v. S,
A 1959 SC 488 : 1959 Supp I SCR 922], In a case, the expert evidence of brokers as
to the value of property was held to be of no value [Secy of S V. Sarala, 5 L 227: A
1924 L 548]. Where the so-called experts give no data in support of their opinions as
to value of land, they should be rejected [Pribhu 'e Secy of S, A 1931 L 364]. Where
experts contradict each other, their evidence carries no weight
L 885; Molar v. Dindayal, A 1974 P&H 302]. The value of an[Sadiaa v. Ate, A 1933
opinion given by an
expert depends to a large extent upon the materials put before him and the nature of
the questions that are put to him [In re Salter, A 1939 M 283]. The reliance to he
placed on it must necessarily depend oil facts and circumstances of the particular
case [Lodhararn t R, A 1945 S 4 : 1944 Kar 305
] . It cannot be suggested that
because an expert's evidence was accepted in one case it must be accepted in every
other ease [Baswarztrao v. R, A 1949 N 66].
It has now become axiomatic that medical evidence can be used to repel the
testimony of eye-witnesses only if it is so conclusive as to rule out even the possi-
bility of the eye-witness's version to he true. A doctor who conducted post-mortem
examination or examined an injured person is usually confronted with such questions
regarding different possibilities or probabilities of causing those injuries or post-
mortem features which he noticed in the medical report. But the answers given by the
witness to such questions need not become the last word on such possibilities. After
all he gives only his opinion regarding such questions. But to discard the testimony
of ail simply on the strength of such opinion expressed by the medical
witness is not conducive to the administration of criminal justice [State of UP v.
Harban Sahai, (1998) 3 Scale 178 at 181 (SC)]. The court followed
P/era Singh r
State of Punjab, A 1977 SC 2274; Manga v. State of Harvana. A 1979 SC 1191;
Randcv -.Szci; uf (Jour Fradesh, 1995 Suppt (1) SSC 5471.
Conclusions adverse to the accused should not be drawn by relying upon passages
in text-books for discrediting opinion without putting the passages to the expert
[Sunder/al i 5, A 1954 SC 28: 1954 Cri 11257; Bhagwan Des
t S, A 1957 SC 589:
1957 SO 515].
Corroboration of Expert Evidence.—There is nothing in the Act which requires
the evidence of an expert to he corroborated [Ladhararn v. R, sup]. As a matter of
fact courts do not ordinarily base their decisions on expert evidence only, unless it is
supported by other evidence external and internal, except that greater reliance is
placed on evidence of finger-print experts.
Whole of the report including covering letter.—Where an expert who is going
to be called as a witness sends a letter with his report which contain matter detri-
mental to one side's case (report in favour of employer, but letter suggesting possible
negligence in the employer in the accident causing injury to employee) the substance
of the letter would have to be disclosed [Kenning v. Eve Construction, (1989) 1 WLR
1189 DC].
 lads heart/g iipcni Opinions ujex//cris. Sec. 46 933

Experts cannot admit f.lCtS.-- - l-'X P cFL -s have no implied or ostensible authority to
admit f acts in any orm. On behalf of' the party engaging him. Cartiell Computer
/ 'fl'c/ino/uç'v o Unipart Gniup, (1989) 45 Build LR IOU].
Expert opinion need not state facts.- –There is no rule of evidence of common
law that, except in a straightforward uncomplicated case where the fact arc admitted
and readily identified, the opinion 0! an expert is admissible onl y when the premises,
i.e., the facts upon which his or her opinion is based, arc expressly stated ID- o de
Practices ('ajiiniission n Arnutis, (1990) 92 Aust LR 527 Fed CL of Australia].

Court's duty to reject non - expert opinion.— The jud g e is responsible for
assuring that evidence that Wrongly purports to be expert evidence is not admitted
even though there is no objection from counsel of the defence. A medical orderly's
Opinion as to the instrument with which injury was caused was accordingly held to
be wrongly admitted [R n Inc/i, (1990) 91 Cr App R 51, Court Martial Appeal.
Court may act without expert opinion—Where a victim ol' buggery was over
21 hut simple minded and the accused had put in the defence of consent and,
therefore, the issue was whether because of his mental handicap, he had the capacity
Lo give consent, no expert evidence supporting mental handicap, it was held that it
was open to the prcsecuiion to argue mental handicap withoLmi. the support of expert,
by inviting the jury to consider complainant's evidence and demeanour [R o I/o/thins,
1988 Crim LR 744 CA].

S. 46. Facts bearing UPOII Opinions of experts.—Facts, not otherwise

relevant, are relevant if they support or are inconsistent with the opinions
of experts, when such opinions are relevant.

11111s! rations.
(a) The question is. whether A was poisoned b y a certain poison.
The fact ttmatoiticr persons, who were poisoned by that poison. exhibited certain•svniptoins
which experts affirm or deny to be the symptoms of the poison, is relevant.
- WJI^c question is, whether an obstruction to a harbour is caused by a certain sea-wall.
-
The fact that oilier harbours similarl y situated in other respects. hut where there were no such
sea-walls, began to be obstructed at about the same time, is relevant.

COMMENTARY
Principle and Scope.-'--The meaning of this section is, when the opinion of an
expert is relevant, an y tact ('not otherwise relevant) which supports or is inconsistent
with that opinion is alsorclevant. In other words, the opinion of an expert is open to
corroboration or rebuttal.; [cf's 1] ] . The subject matter of this section has been dealt
with in the notes to s 45.'

Facts, although otherwise relevant, as well as the result of experiments made either
out of court with special reference to the trial, or even before the court itself may be
given in cvideticc in corroboration, illustration, or rebuttal of the Opinion. So, on
cross-examination, the witness may be asked whether he has not expressed opinions
inconsistent with his present tcstimo?'; and jr he deny the fact, it may he
independently proved [Phipson 8th E4 3861.
h/u.s (b) is taken from the ease of/u/ks o C/todd, 1 872, 3 Doug 157, which is to be
found in Thylor, s 337. The point in dispute in this case was whether a sea-wall had
 934 Sec. 47 Chap. 11--- Of the Re/eiaiicy of/'icts

caused the choking up of a harbour, and cngioeci-s \\CI - C called 10 give thcir Opinions as
to the clThct of the wall, and proof, that other harbours oil same coast, where there
were no ernhankments hicl begun to he choked about tile same time as the harbour in
question, was admitted, as such evidence serves to elucidate the reasoning of the sk lied
witncsscs. 1111's(a) is similar to Palmer's case (see note to s 45 ante).

This section is an exception to the rule excluding evidence of co ateral facts where the
(lueSlion is a matter of science, and where the facts proved, though not directly in issue,
tend to illustrate the opinion of scientific witnesses. lila's (b) exemplifies the point. So, if,:,
point in dispute were whether a defendant was or was not oil certain occasion, in his
right mind, it is clear that, after proof given by a medical man, or admission made by a
counsel, that madness was oflen of an hereditary character, evidence tending to show that
none of the defendant's ancestors or near relations had been insane, would be admissible
in support of the negative proposition. So, on a question of disputed paternity, once proved
as a matter of science that children are apt to inherit the features or general appearance of
their parents and then, as a matter of course, evidence will he received of personal
resemblance between the party in question and his alle ged father 113agot c l3agoi, 1878, I
LR Jr 308; Tay s 337]. Sec ante s 9:'—Question c?fPate171irt".

This section and the preceding section should he read with the first proviso to s 60
under which opinions of experts expressed in any treatise commonly offered for sale and
the grounds on which such opinions are held, may be proved by the production of such
treatise, if the author is dead or cannot be found or has become incapable of giving
evidence, or cannot he called as a witness without an amount of delay or expense which
the court regards unreasonable. The testimony of eye-witnesses is always Prelrahle to
medical evidence unless the medical evidence completely rules out the version given by
the eye-witnesses 'tue medical evidence, i.e total absence of contusion etc., on the bode
of the deceased completely rules out the version given by the eye-witnesses that the
deceased was hit and injuries were caused by 'lathis'. ]Riini Karam Ma! v State, 1990 Cri
UT 846, 849 (All): (1989) II A JJ 4631.

S. 47. Opinion as to handwriting, when relevant.—When the Court

has to form an opinion as to the person by whom any document was
written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed
that it vvas or eos 1101 written or signed by that person, is a relevant fact.
Explanation.—A person is said to be acquainted with the handwriting of
another person when he has seen that person write, or when he has
received documents pttrporting to be written by the person in answer to
documents written by himself 01' under his authority and addressed to the
person, or when, in the ordinary course of business, documents purporting
to be written by the person have been habitually submitted to him,

llliistiatioiis.
The question is, whether a given letter is in the handwriting of A, a merchant inLondon.
1? is a merchant in ' t Calcuua l who has wriucn letters addressed to A and receive letters
purporting to be written by him. C is /3's clerk, whose duty it was to examine at file ITS

I. Pakistan "Chiftagong" and in Ceylon "Colombo" substituted.

()pznio,t as to h(1irdit',itint,', ri/ten rcleiarii. Sec. 47 935

conesponderice. I) is I? s broker. to whom 1? habitually submit ted the letters purporti rig to be
written by A ["(it (Ile purpose of advising ivith him thereon.
The opinions of 11, C and I) on the question whether the letter is in the handwriting of .1 are
relevant, though neither, 11, C nor D ever saw A rite.
N%

SYNOPSIS
Page Page
Principle and Scope [Opinion "When lie I las Seen that
Evidence of Non-experts] 935 Person Write" [Er vismr
Opinion Evidence of Non- scriplion is] 941
Experts as to Handwriting 935 Acquaintance With Hand-
Different Kinds of Handwriting 937 writing Without Seeing
a Person Write [I3xscriptis
Mode of Proving Handwriting 937 olint visis, ie seeing known
Whether Handwriting genuine documents] • 942
lnciudcs Marks 939 "Habitually'' 943
Acquainted \Vith the Hand- Comparison of Handwritings 943
writing" 94°

COMMENTARY
Principle and Scope.—[Opinion Evidence of Non-Experts].---S 45 makes
relevant the opinion of experts or persons skilled in some special branch of [earning
or trade or profession. But the opinion of ordinary witnesses are also sometimes
admissible, eg in matters respecting the identity of persons and things, handwriting,
and other matters (ante pp 489-90). In such matters, positive evidence not being
available, evidence of opinion of belief is admissible. In Fryer i'. Gathercole, 13 Jtnr
542, the witness could not swear about the identity of a certain pamphlet but swore
that she "believed" the document produced to be the sat-ne in question. Her evidence
was admitted. POLLOCK CB said:—
"The witness could say no more than this "I believe the copy of the
pamphlet produced to he the same with that which I received from the
defendant ...........As has been tritely argited, there are many cases of
identification where the law would be rendered ridiculous if positive certainty
were required from witnesses. The evidence in the case was therefore properly
received: any objection to it goes merely to its value".
In the same case PARKE B, said: 'In the identification of a person you
compare in your mind, toe man you have seen with the man you see at the trial.
The same rule belongs to every species of identification".
The opinions of ordinary witnesses are admissible as to identity, handwriting and
various miscellaneous matters. On a question of identity, a witness may state his
belief or opinion as to persons or things, and so may testify to his belief that the
prisoner in the dock is the person they saw committing a crime; or that a photograph,
which is produced, is the likeness of some absent party; and in a case in which
infringement of copyright in picture is alleged, evidence of infringement may be
given by a person who knew the original picture, although the original picture itself
is not produced [Hals 4th Vol 17 para 88]. As to opinions of ordinary witnesses, see
also notes to s45.
Opinion Evidence of Non-Experts as to Handwriting.— This section deals only
with the question of identification of handwriting. By it handwriting may he proved
by the opinion of any person who is acquainted with the handwriting of the man
alleged 10 have written the document. The section differs from s 45 in this, that tinder
 936 Sec. 47 Chap. II 01 *1/11' Releuancv (dP(leIs

that SCCtiOri the witness must be specially skilled in the art of distiriguishine the
writings; hat is, lie iliust he an expert as defined there. l)ut under s 47 an y peisori
other than an expert, who is acquainted with the handwriting of another, may g ive lii
opinion as to identity of handwriting A person may be acquainted with the
liandwriingof another- person in three ways, vi;, (I) when he has seen that person
write; (2) when he has received conlnlunicat j
on purporting to he written by that
person in answcr to documents purporting to bc written b y himself, rlthounir neirher
Of' Item saw each other write; (3) when in the ordinary course of business documents
purporting to be written by that person have been habitually submitted to him. This
kind of nail-expert evidence is in most cases better than expert evidence, if the
person deposing to it is disinterested and has in any of the ways above acquired a
good knowledge of the character of one's handwriting or signature. But the strength
of' such evidence varies with the degree of a person's knowledge of the halldwriting
Of rrio[her, i.e., the opportunities he had of seeing him write or the number of times
he has received and read correspondence written by him, or the len g th of time which
has passed after he saw the last writing. But whether the witness asserts firmly or'
otherwise, his statement is a mere opinion based upon a comparison in the mind
between the disputed writing and all formed by his previous experience. An
expert's comparison is between a disputed writing and an admitted or proved
handwriting by one who has never before seen persons write. Opinion evidence is
hearsay and becomes relevant only if the conditions laid down in s 47 is first proved
[l?ahim Khan v Krurshed, A 1975 SC 209]. The opinion evidence of non-expert,
becomes good evidence to go by. if the acquaintance of' such witness with fhe
signature of the executor is well proved within the meaning of s 47. Expin IDa/jar v.
Na,idara,mj A 1970 C 2921.
PA'rrrsoN, J, in Doe r: Sirckerinw'e, S A&E 703: "To my rriind I eonl'ess the
knowledge of the general character of a Person's writing which a witness has
acquired incidentally and unintentionally, under no circumstances of bias or
suspicion, is far more satisfactory than the most elaborate comparison of even
an experienced person called by one side or the other with a particular object".
In the same ease LORD DENMAN: "The clerk who constantly reads the
letters, the broker who has been consulted upon them, is as competent to judge
whether another signature is that of tire writer of the letters as the merchant to
whom they were addressed. The servant who has habitually, carried letters
addressed by inc to others has an opportunity of obtaining a knowled ge nt my
writing, though he never w me oi received a letter toni me".
The knowledge of the witness musi not have been acquired or communicated with
a view to the specific occasion o i l the proof is offered. In
R r: Crouch, 4 Cox
163, MAULE, J, said: "Knowledge obtained for such a specific purpose, and under
such a bias is not such as to make a man admissible as a quasi-expert witness", (See
also Doe v, Suckermore, sup; R v. Richard, 13 Cr App
140: Best, 11 Ui Ed, s 236).
Witnesses should declare their belief as to handwritin og though once LORD KENYON
held that a person who acknowledging his inability to form a belief, merely stated
that the paper produced Was like the handwritin g of the individual by whom it
purported to have been written, was admissible [Ga,'rells g Alexander, 1801, 4 Esp
37]. This case—though recngnised by LORD WYNFORD,
has hecr questioned by
Lord Eldon [Eagleton c Kingston, 1803, 8 Ves 476], arid apparently with reason. It
may be very true, that witnesses are occasionally pressed too much to form a belief;
and some allowance should certainly be made for the over-caution of' a scrupulous
witness, but though it may he very proper to receive the testimony of a person, who,
declining to express a decided belief, will yet declare that lie is of opinion, or that lie
Opillioll (IS 1() lI(i,ltliI/Oi!O,'. ti/IC!) lCl)'\Olit. Sec. 47 937

thinks, the paper is genuine; yet it is goingit Step further when the witness will only
stale that the handwriting is like; a statement which mitay be perfectly true, hut yet
within the knowledge of the witness, tile paper may have been written by an utter
stranger (Thy s 1868). If his opinion rests upon extrinsic circumstances, em,', the
probabilities or the case, or the character or conduct of the supposed writer, and not
on his actual knowledge of the handwritin g , it will he rejected [Do Costa t: I'yni,
Peake, Add Cas 144; Phipson. 1 lilt Ed, p 528].
"The knowledge of a person's handwriting may have been acquired in both or-
either of two ways. The first is having seen him write; and though the weight of the
evidence, which depends upon knowledge so obtained, must of course vary in degree
according to the number of times that the party has been seen to write, the interval
that has elapsed since the last time, the circumstances, whether of hurry or
deliberation, under which he wrote, and the opportunities and motives which the
witness had for observing the handwriting with attenlion; yet the evidence will he
admissible, though the witness has not seen the party write for twenty years (R '',
Home Took, 25 1-low St Tr 71, 72) or has seen hint write but once, and then only his
surname" (Doe v. Suckerinore, sup, per PArrESON, J; Tay s 1863).
"The second way in which the knowledge of a person's handwriting may he
acquired, is by the witness having seen, in the ordinary course of bLiSifleSs,
documents, which by some evidence, direct or circumstantial, are proved to have
been written by such person" (Thy S 1864).
[Ref Toy ss 1862-68; Step/i Art 50, 51; Phil.) 11th Ed 528; Best 11th Ed s.c 234-
37; Rogers Eperi Testimon y, 2nd Ed. ss 122, 123; Lawson 's Evperi Opinion, 277;
Powell, 9th Ed, p 54; Wig ss 693-709,' Jones, 3rd Ed, s.c 545-491.
Different Kinds of Handwriting.—A document in the handwriting of a party is
said to be an autograph or holograph; where it is in the handwriting of another
person, and is only signed by the party, the signature may be called "onomatic",
where it is signed by a cross or other symbol, "symbolic" (Best, 11th Ed, s 232).
Mode of Proving Handwriting.—In order to prove identity of handwriting any
mode not f'orbiddcn by law can be resorted to. Two modes arc indicated in sections
45 and 47.-There can he oilier modes through which identity of handwriting cart be
established [Guizarflhi v State of HP, JT (1997)8 SC 564]. The ordinary methods
of provingthandwriting are:---
(1) by caing as a witness a person who wrote the document or;
(2) saw it written or signed or;
(3) who is qualified to express an opinion as to the handwriting b y virtue of s 47;
(4) by a comparison of the handwriting as provided by s 73;
(5) by admission of the person against whom the document is tendered [Barindra
u R, 14 CWN 1114, 1138:37 C 467; Sarojini i: Hondas, 26 OWN 112:34 CLJ 373;
Balakranr v. Md Said, 77 IC 872: A 1923 L 695; K/rzijiruddin e R, 53 C 3721;
(6) by expert evidence under s 45 (expert opinion is only relevant, but it is for the
court to determine whether a writing is genuine or not);
(7) by internal evidence afforded by the contents of the dpument [Mobarik e S, A
1957 SC 857: 1958 SCR 328; see notes to s 67 post]; any'
(8) if signature or handwriting is to be proved circumstantial evidence, the
Court should he satisfied that the circumstantial evidence irresistibly leads to the
 93$ Sec. 47 Chap. IlOf the
Reici'ancy of Pacts
inference that thc person in question must have signed or written it [Rain Ram n
J'raswiiij A 1969 SC 93: ] 959 SCR 1403]. Where a document is proved to be
executed by proving the signatures or thumb impression of the exccu[ant and proved
to have been attested by witnesses by proving their signatures or thumb impression, it
is not necessary to also prove the handwriting of the person who has written. Proof of
execution of a document or where it is required to be attested, proof attestation also,
are sufficient to make the contents of it admissible [Sint. Noon JO/lan Begiem e: Abiar
A/meadKhicm, A 1982 All 149, 1501.
These modes of providing handwriting should be considered in the light of the
recent Supreme CoLirt decision that testimony as to handwriting can be based not
only upon the examination of the originals but also oil of photographs which can
now be received in evidence to prove authorship, besides the contents of the
documents provided that there is no trick photography and the photograph is above
suspicion and the original cannot be obtained [Laxinipat v. S, A 1968 SC 93$].
Phipson seems to have taken the contrary view (11th Ed, p 142) but Wigmore has
observed". It is generally conceded that a photogr aphic copy of handwriting may he
used instead of the original, as far as the accuracy of the medium is concerned" (3rd
Ed, Vol III s 797).
The simplest and the most satisfactory method is to call the writer himself when
available, but it is not absolutely necessary to call him as the testimony of one who
saw him write is also primary evidence. GRESHAM, J, while instructing the jury
said:—
"The testimony of a witness who speaks from his own personal knowledge
is more satisfactory and convincing than the testimony of another who speaks to
matters which lie in opinion only. If a witness swears that he was present and
saw a party sign a disputed instrument in writing, his evidence ou ght to
outweigh the statement of another (both witnesses being equally credible) who
testifies that he is acquainted with the handwriung of the alleged signer and that
he does not believe the signature is genuine". IRisely n Indianapolis &c R Co,
Biss, USA 408, 20 Feb Cas No. 11, 859]. J

The opinion of witnesses as to the identity of the writing of a person with which
they are acquainted would be relevant under s 47 though they are not experts [In re
First Grade Pleader, 18 PR 1915: 28 IC 722; Jagannat/ r R. 101 IC
493: ,A 927 L
7241.
Where a skilled witness swears to his belief that a particular writing is that of a
certain individual, he does not pledge himself to anything beyond the fact that the
handwriting is in his own opinion precisely similar to that of the said individual and
nothing further than this can be guaranteed to the court where one writing is
compared with another [Gins/i r Dhagwaii. 13 WR 191 J. In La/it Mohan e' 1?,
313, 322, the court observed:— 22 C

"It was contended that the evidence to show that the post-card and the letter
were in the handwriting of the accused is extremely meagre. We do not think
that there is much force in this contention. There is the employer of the
appellant and other persons who say that the post-card and the letter are in the
handwriting of the accused. All of them do not say that thcyhave seen the
accused write, but they say that, in the course of business, they have seen his
handwriting; and viewing the matter in the way in which such matters ought to
be viewed by reasonable men, we do not think it would be right to hold that this
Opinion (IS to iiaiidwrirrng. uiicii relc'\(Int. Sec. 47 039

evidence does not prove that the post-card and tile letter were in hand ,.vritinv of
the accused".
Opinion of handwriting expert or other Witfless is not conclusive. The Court must
come to its own conclusion [C/wndrL'shnar v. Rain Ch, A 1973 P 215 (Is/neon Pd u
Md isa, A 1963 SC 1728; Pakhrud(fin u S. A 1967 SC 1326 rel on), Kumaran Nair
B/iargai'i, 1988 cri U 1000, 1003 : (1987) 2 )Kcr LT 644 (Ker)).
Whether Handwriting Includes Marks.–/The word "signing" means the writing
of the name of a person so that it may convy a distinct idea to somebody else that
'hat the writing indicates is a particular individual whose signature or sign it
purports to he. A "mark" is -,I mere symbol and does not convey any idea to a person
who notices it—very often,sprohahly even to the person who made it [Nininal v.
Sararntani, 25 C 911, 915]. )
In Sayer v. Glossop, 12/Jar 546, PARKE B, said: "I think you ma y prove the
identity of the party by showing that this mark was made in the hook and that mark is
in his handwriting". In George u Surre y , I M&M 516 a witness who was called to
prove the endorsement on a bill of exchange by a person by making a mark, stated
that he had frequently seen the person sign instruments by making his mark and
pointed out some peculiarities. The evidence was admitted by TtNDAL, CJ.
Marks cannot however strictly he called handwriting as there is no formation of
letter. As marks have for the purpose of some Acts been included within signature,
persons may no doubt he called to depose that they saw the exccutants affix their
marks and as marks in this sense come within 'handwriting', opinion evidence may
also be admissible, though it seems it would serve no useful purpose. A mark is a
sort of symbolic writing. A cross or a dot is the commonest form of mark, and
crosses or dots are so alike each other that they are hardly identifiable. Dots are also
commonly used in India as marks. Marks are therefore difficult of recognition or
proof and unless some peculiar or special symbol is adopted as a mark, it is doubtful
whether it can properly be the subject of opinion evidence. Illiterate persons olten
use the same ordinary mark. In S i'. Tice, 30 Oregon, 457, the Oregon Court
observed:—
"Considering the manner in which marks of persons incapable of writing
their own signatures are usually made by merely touching the pen while the
scrivenor forms the character, it is a matter of doubtful propriety whether any
person ought to he allowed as a matter of evidence, to testify such a mark as a
handwriting,; but the mark of some person by reason of methods of their own
adoption in its formation, and in its inherent peculiarities might he capable of
identification".
The method of proving handwriting by some one who is familiar with the
handwriting of executant is not available when the exccutant is a marksman
[Ponimuswaini v. Kalyanasundara, 57 M 662]. Generally, where a mark, on inspection
appears to have nothing in its construction to distinguish it from the ordinary marks
used by illiterate persons to authenticate their assent to written instruments, it is not
the subject of opinion evidence [Spinkie v. Crock, 17 Pa St 159]. Testimony of the
marksman himself denying the genuineness of his marks, twenty or thirty years
having elapsed since it was made, was declared to be entirely insufficient to establish
the fact of forgery [Hutcheson e. Meazeli, 64 Tex 604]. In a case in America a son
who had frequently seen his father affixing a mark in the shape or cross was allowed
to prove the execution of a document, the court remaking "in some instances the
peculiarity may he as strong as that which marks the characters of one who can
 940 Sec. 47 C/tap. II . Of I/ic kcicva,ice of/'zct.v

write, and in other Instances not perhaps so meat, yel i ll

all, we iLpl)rehcjol, would bc
found sotuctliiii distinct and peculiar, %\lliCll would enable one who had frequetitiv
seen the pot iy niitke his marks to know it'
[SIivni lireiicr, 17 i\la 706, 710, pci
l)i\RG\N,
CJ j. In on ease the Witness was allowed to Stoic ill his croS5-Cxalnjnat ott
that his father could not write or sign his name, hut used to make it the mark ot
a plough,--that he had no paper with him that bears his father's niark, and that the
paper then shown to him (lid not bear his father's mark [ es/in'ada/iai I/onto
Chandra, 18 13 66, 74]. The question has occasionally been raised whether one eon
testif y at all Ii am the present basis to the genuineness of a
inarksnrajz 's inark---ic,
\vhcthcr there is any constancy of peculiarity in tile mark of an illiterate which can
serve as 'a or standard. There should be no hard and fast rule; the discretion of
the trial court should control [Wig s 6931. See post ss 67, 68.
As to execution or attestation by mark, see post notes to s 68.
"Acquainted With the Handw
ritng"._—Under the Act acquaintance with one's
handwriting mit)' be in three ways: (1) seeing a person write;
(2) knowledge by
Corres pondence; (3) habitual submission of documents pu porting to be written b
ya
person in the ordinary course of business. The value of such evidence depends not
merel y itpon the fact that the witness has seen the part
y write, or has corresponded
ith him, but also upon the extent of the opportunities he has had of becoming
familiar with the handwriting in question, and upon his own habits of accurate
observation. [Wills, Cir Ev 228]. But this observation of writing is very rarely made.
Commonly you sec a mail the act of writing, but you do riot observe the manner in
which he forms hisletters; and if evidence of handwriting depended on such
observation, it could very seldom be given. But writing can be SLilfieiently well
known in other wa y s: as for instance, if y
ou have received nurnerotis letter's front a
person, and you have sufficient reason to believe he wrote them. This reason and
belief are essential, because one person may,
may, and often does, write letters for another
[Ram on Facts, 531.

It must he proved that the witness is acquainted with the handwriting in question
[Rahim Khan v. Khiirs/ied, A 1975 SC 290; Jasoda e Janak, 4 p 394: A 1925 p 787;
B/iupeitdra i: Eknarai,t, A 1965 P 332; S r: Gun/am, A 1965 P 393]. In a suit for
money an account of sale of goods, the ledgers, challans and corresponding hills can
be proved by a person acquainted with the handwriting of the person who has written
these records [Riekmanand Ajitsaria r: Us/ia Sales P Ltd., A 1991 Gau (NOC) 1081
If in a proof of a document a w itness says a exinnination-in-chief that he is
acquainted with the writer's handwriting. It may be stifficient. It may not he
necessary for a non-expert witness to slate in e xamination-in-chief as to the mode in
which the knowledge of the handwriting was acquired, it being open to the cross-
examination counsel, to probe into the matter in the cross-examination [Shankerappa
e Sns/ii/abaj A 1984 Kant 112, 1181. As rightly stated in Taylor (s
.'1oody t: Rowe/l, 1835, Pick 419) 1863 citing
"the witness need not state in the first instance
how he knows the handwriting, since it is the duty of the opposite party to explore on
cross-examination ) the sources of his knowledge, if he is dissatisfied with the
testimony as it stands. Still, the party calling the witness may interrogate him, if lie
thinks proper, as to the circumstances on which his belief is founded". Taylor was
approved in the f o llowin g
eases saying that it may often be expedient that the matters
referred to in the explanation should he elicited in the examipation-in-chief
[Shankarrao e Ramji Hwjivan, 28 B 58 : 5 Born LR 663; see Shyam v Beni, A 1942
P 449; Jagadish e R, A
1938 P 497; Pusara,,t e Manmnal, A 1955 Raj 180--
CONTRA: !-iarden'j e 5, A 1969 SC 423].
Opinion as to handwriting. wIieii relevant. Sec. 47 941

When a witness withoul saying straight Off that the signature on a docunicnt is that
ot a particular lerson proceeds to compare it with the signatures in his own book, the
evidence is not admissible [RaJn1al r. Islam, A 1958 Raj 6].
Evidence of a person acquainted with the handwriting of another is much more
valuahlc than that of a handwriting expert [Rainanlal v. S. A 1951 C 305]. The
credior who had himself seen the debtor writing the disputed signatures may prove
the handwriting [Girja Pd r. Sawlarla/1?, A 1977 P 241 1. The degree of his
acquaintance will affect the value, though not the admissibility of his evidence
[Saqlain v. R, A 1936 A 1651. Where the fact to be Proved is a signature and witness
merely says that the si g nature is of the person concerned, there is no proper evidence
of the facts required to be proved under s 47 [Surendra v. Mirzxe Md, 63 IA 85 40
CWN 226 : A 1936 PC 15]. When the evidence of the pharmacist was not questioned
and he stated that lie was acquainted with the handwriting or the Doctor who issued
the injury report, that evidence is sufficient [Ran?eshwar Prasad Sri%asrat'a v. Slate
of liP, 1984 Cri U 996 998: 1984 All Cri 170 (All)].
'When He Has Seen That Person Write" [Ex visu scriplionis].—The rule with
respect to proof "ex visit .ccriptioni.v' is clear and settled; namely that a person who
his ever seen the supposed writer of a document write, so as to have thereby
acquired a standard in his own mind of the general character of the handwritin g of
that party, is a competent witness to say whether he believes the handwriting of the
disputed document to be genuine or not. He having seen the party write but once
[William v. Wrrall, 8 C&P 390], no matter how long ago [R v. Hor,ie Tooke, 25 How
St Tr 71, 72; Eagleton e Kingston, S Ves 474, per LORD ELDON] or even only his
surname [Lewis c Sapio. I M&M 39] is sufficient to render the evidence admissible;
the weakness of it is a matter of comment for the jury. [Best 11th Ed, s 234]. "Dirt it
ought to be remembered, that the unwise liberality of these rules is explainable by the
history of the law. It was the product of a time when this mode of knowledge was the
only orthodox one, when even the second mode ('ex scripris aiim civic') was just
obtaining acceptance and when the third mode ('e-t: scripro none vLro ' ) was not
recognised at all; so that the paucity of recognised modes of proof upon a subject so
common and so important forced the judges to concede a looseness in applying the
primary and orthodox mode. This laxity the courts of to-day would do well to
abandon, now that the strees of necessity does not exist" [Wig s 696].
It would he very unsafe to consider the execution of a deed efficiently proved by the
testimony, of a witness who identities the grantor's signature from knowled ge of his
handwriting acquired by seeing him write his name twice or thrice, a year or two before
the trial [Moore n Livingstone, 28 Barb N Y 543, 5611. Much reliance cannot be placed
on the evidence identifying signature when the witness had seen executant writing only
once or twice, more so when the signature was made before witness was born [Dlrani u
Nee,?, A 1972 Raj 9]. The weight and value of non-expert opinion evidence to
handwriting depends in some degree upon the frequency with which the witness have
had occasion to notice and carefully observe the handwriting and how recent their
opportunities for noticing the same have been [Green v. Terwillinger, 56 Bed 384, 401].
Such evidence is an opinion of the basis of familiarit y resulting from the frequent
observation and experience [Ala Uddin u Sishir Kwncrr Duitci, A 1989 Gau 42, 43].
This kind of evidence admits of every possible degree from the lowest presumption to
the highest moral vidence. It may be so weak as to the unsafe to act upon, or so strong
as in the mind of every reasonable man to produce conviction [11opper v. Ash, 15 Ala
457, 462]. "It is not enough that he has been the person, as in the proof in this case,
write but once and then under circumstances showing that the attention of the witness
was not specially directed to the peculiarities of the penmanship. It would he dangeroLls
 942 Sec. 47 CIw/). ii- -Of i/iL' Reliwicy of 1icts

in a criminal case to rely on such vague and unsatisfactory evidence 1 0 S c Grow, I

Bond US 5 I. 55]. There arc very many persons in India who, it " they can he called
literate, are literate in the sense that they call scrawl their names somehow with
difficulty by irregular alphabets and have (]one so only oil a few occasions lii their lics.
The rule should he cautiously applied to the evidence of witnesses who say that they
are acquainted with the handwriting of such persons.
In view of the circumstances in a case it has been observed that it is not impossible
for a person unable to read and write certain characters to know and to recognise and
prove the handwriting of another in those particular characters, if he had the occasion
to see the latter write lRanz C/i v. Jaithinol, A 1934 A 990]. Witness ignorant of
English language is competent to prove pronote executed in English IB/ianwar u.
A/unedA 1977 Gau 27].
Acquaintance With Handwriting Without Seeing a Person Write [Ex scriptis
olim vin y , ie, seeing known genuine documents].—I-lcre the document has come to
the observation of the witness without his seeing any person in the act of writing it.
1-Icncc the main SOUCC of controversy is the sufficiency of his grounds for believing
that the person in question was genuinely the writer. The various circumstances that
may he regarded as affording adequate ground for such a belief may hc----(1) Express
admissions, (2) implied admissions, ie, any conduct which amounts to recognition by
the person in question of the genuineness of the writing received, (3) exchange of
correspondence [Wig ss 699-702]. One is deemed competent to testify to the
handwriting of another person, when he has received letters or documents purporting
to have been written by that person in answer to those written by himself, or under
his authority, and addressed to that person. In such case there is presumption that
the letter or document is genuine. It has sometimes been held that the receipt of
letters purporting to come from another, which have been acted upon as such will
render the testimony of the person so receiving theni competent to prove the
handwriting [Thorpe e Gishurne, 2 Car&P 21]. But the decisions generally establish
the proposition that the rule is not changed by the mere fact that the one receiving the
letters has acted upon them, although such acts may be a part of a chain of evidence
from which the acknowledgment or approval of the supposed author may be inferred.
In order to bind the alleged writer he must recognize or ratify such instruments or
letter. But it is well settled that the mere receipt of letters or papers, standing alone, is
not evidence that they were written by the person whose name they bear [Hightower
v. Ogletree, 114 Ala 94 and eases cited Jone, s 547].
"[Th e requirement is that] transactions have taken place between them upon
the faith that letters purporting to have been written or signed by him have been
so written or signed"—per COLERIDGE, J. "The letters forming one side of a
correspondence do not prove the handwriting because addressed to a particular
person, that person's evidence may he requisite to show that A had in some way
recognized the letter bearing A 's signature and was therefore probably the
individual who wrote them: but this is quite different from a knowledge of the
handwriting, whether they proceeded from A oLany other". [per DENMAN, LCJ
in Doe v. Suckermore, 5 A&E 705].
Batchelor v. Honeyivood, 2 Esp 715, KENYON, LCJ: "If persons are in the
habit of corresponding and letters arc received from one to the other, upon
which any transaction takes place that may enable the party' to swear to his
correspondent's handwriting". Knowledge derived from family correspondence
may be sufficient to qualify a member of the family to testify as to the genuine-
ness of handwriting [Tuttle v. Rainey, 98 NC 513; Johnson ' Bee, 100 SE 486].
Opinion as to existence of rig/it or custom, -hen relevant Sec. 48 943

There may he other modes by winch a person may be acquainted with anothcr's
handwritinuz although he has not seen him write or has not corresponded with him. Thus
LORD DENM..\N said: "The servant who has habitually carried letters addressed by me to
others has an opportunity of obtaining a knowledge of my writing, though he never saw me
write, nor received a letter from me" [Doe v. Suckerniore, sup]. The main point of
consideration in such cases would be sufficienc y of his grounds for believing that the
handwritin g is that of the person in question. if a person receives a letter purporting to come
from another, that by itself does not lead to any presumption that it was written by that
person. But if he receives from that person a letter in answer to his and the contents are such
that that person only could have knowledge of them, it may form the basis of the
presumption. And it becomes firmer if any transaction takes place oil basis of such
correspondence. It may however be that a letter purporting to come from a person is written
by another by the authority of the person whose name is used. On this question Rogers says:
"But as ordinary persons write their own letters, unless the letters indicate the contrary, the
courts have established the principle that a witness who has never seen the party write is
competent to testify if he has through correspondence acquired a knowledge of such party's
handwriting [Ro gers, 2nd Ed s 122].
"Habitually".—'Habitually' means 'usually', 'generally' or 'according to custom'. It
does not refer to the frequency of the occasion but rather to the invariability of the
practice. The evidence of a record-keeper who files English papers in the ordinary course
of official business about the handwriting of a person whose paper he has so filed on over
7 or 8 occasions is relevant [R v. Ponde, 27 Born LIZ 1032 : 89 IC 1042]. Identification of
handwriting from a single letter would be hardly sufficient under this section [Henzraj v.
Ranicharan, A 1934 N 2041,
Comparison of Handwritings. (See post, s 73 and notes).

*[ s. 47A. Opinion as to digital signature where relevant.—When the

Court has to form an opinion as to the digital signature of any person, the
opinion of the Certifying Authority which has issued the Digital Signature
Certificate is a relevant fact.]
Information Technology Act, 2000
Opinion as to digital signature [S. 47A].—A new section has been added so as to provide
for relevancy of expert opinion oil genuineness of a digital signature. The new provision
says that when the court has to form an opinion as to the digital signature of any person, the
opinion of the certifying authority which has issued the Digital Signature Certificate is a
relevant fact. A "certifying authority" means a person who has been granted a licence to issue a
digital signature certificate under S. 24 of the lnfornrntion Technology Act, 2000.
§ For text of the Information Technology Act, 2000, see Stop Press pages in Volume 1
after General Contents.

S. 48. Opinion as to existence of right or custom, when relevant.— When

the Court has to form an opinion as to the existence of any general custom or
right, the opinions, as to the existence of such custom or right, of persons who
would be likely to know of its existence if, it existed, are relevant.
Explanation—The expression "general custom or right" includes cus-toms
or rights common to any considerable class of persons.
Illustrations.
The right of the villagers of a particular village to use the water of a particular well is a general
right within the meaning of this section.

* Ins, by the Information Technology Act, 2000.


944 Sec. 48 Chap. II-6f the Relevancy of Pacts

SYNOPSIS
Page I'ai.e
Principle and Scope 914 Opinion as to Existence of Any
Competency of Person \VIIIJSC General Custom or Rlit
Opinion is Relevant 944 Explanation 946
COMMENTARY
Principle and Scope.—On matters relating to the existence of any general custom
or right, opinions of persons who would be likel y to know of its existence, are relevant,
as such evidence is the best possible under the circumstances. The persons
contemplated by this section arc, so to speak, the depositaries of customary law, just as
the text-books are depositaries of general law [Jugmohan v. Man gaidas, 10 A 528,
543]. General reputation is admissible to prove public rights under the same limitations
as hearsay on this subject [Phipson, 11th Ed, p 506]. The expression 'general custom or
right' has been explained in the Explanation. The word public has not been used in the
expression as in s 32(4), but it is obvious that there was no intention, to make any
distinction, between 'public right' and 'general right' or 'public custom' and 'general
custom' and both classes would come under the section. Right or custom includes all
kinds of right, or custom, eg, right to pathway, past-urage, water-course, tanks, local
customs, usage of transferability of a holding, tradecustoms, &c. Opinions of living
persons likely to know about the existence of such and other rights or customs are
relevant, The section contains another exception to the general rule that the 'opinions'
of individuals are not admissible in proof of facts. By and large a custom has got to be
recognised by the community as a whole. The mere statement by a witness that he saw
the plaintiff using the defendant's Pond for watering his own crop oil own land does
not amount to evidence of custom recognised by the community [San'. Rod/ia Krishna
Kandolkar i 7iikara,n Pwmdalik Iio,nkhandi, A 1991 Born 119, 123].
This section deals with opinion evidence (as opposed to direct or positive evidence
of a living person given by the witness himself as to the existence of a general right
of custom [A4q Oil Mg Shwe, I LBR 80 ] . If such opinion is recorded in a book it is
also admissible under s 48 although the author is living [Soinar v. Bud/mu, A 1937 P
463]. S 13 deals with all kinds of ri g hts, public, general and private and s32(4)
refers
to the opinion evidence of persons who are dead or cannot be called as witnesses.
The distinction between s 32(4) and this section is this: (a) S 32(4) makes relevant
statements of opinions, re g arding public rights or customs, made by persons, who are
dead or who cannot he lound or have become incapable of giving evidence; the
present Section refers to the evidence of a living witness produced before the court,
sworn and subject to cross-examination. (b) Again s 32(4) speaks of oiy pubc riht
or custom or matter of public or general interest; but in this section the word 'public"
does nor, appear. This does not however make much difference, as the terms "Public"
and "general" are used in this Act as synonymous. [Sec notes under ss 13 and 32(4)].
Moreover, the Exploitation adopts the sense in which the term "general" is used by
Taylor and other Enlish writers. (c) The present section also differs from s 32(4)
inasmuch as the admissibility of opinion as evidence under this section is not subject
to the condition that the statement was made before the controversy arose.
Competency of Person Whose Opinion is Relevant.—It will appear from the
above that this section lets in reputation evidence as to the existence of any custom or
right like s 32(4), although in the presentcase it is the opinion of a living person. But
as in s 32(4), reputation evidence should not be repetition of mere hearsay; it should
be the opinion of a person of competent knowledge. The expression used in both
sections as to the requirement of qualification is identical, viz. "likely to be aware" [s
32(4)] or 'likely to know" [s 48]. It does not appear to he absolutely necessary that
the person stating his opinion should have personal knowledge of the existence of the
right or custom although such knowledge supported by instances would be most
 Opinion as to existence of rig/if or CUstom iihen iicront
Sec. 48 945
S atisfactory. The experiential qualification should he insisted upon where available,
because an y
body who has experience of the custom from his Connection with the
matter b y living in the neighbourhood or bein
g a member of the community in
question,is more competent than others. Failing this, evidence founded on infor-
mation derived from reliable persons who were in a position to know of the existence
Of the custom or right would also he relevant under ihc
section see Sariatl,u//a/ i v.
Prannat/i 26 C 187; Daniraiji C Vahuji, A 1971 G 1881.
The weight of his evidence
would naturally depend on the position and character of the witness and of the
persons on whose statements he has formed his opinion but he cannot he confined to
instances in which he had personally foreseen the usage or custom exercised as a
matter of fact. Baiwinder Sing/i v. Sm Gurpal Kaur. A 1985
Radhani LR 6581. Delhi 14, 20 : 194
But it must he the expression of independent opinion based on
such information and not mere repetition of hearsay. The test is whether the person
giving his opinion was likely to have had reliable knowled
ge,—which may he
personal or otherwise. The witness's qualification must he examined from the
specific point of view. The data on which such knowledge is based are therefore ve
important. Opinion founded on mere reputation on h ry
earsay wou]d be of no worth.
Sees 51 under which the grounds on which opinions are based are also relevant.
"Ordinajily speaking, such a witness must, in his exa
mination-in-chief, speak tofticrs
only, but under this section he will be allowed to give his opinion
as to the existence of
the general right or custom. I-Ic will not he confined to instances in which he has
personall y
known the right or Custom exercised as a matter of fact. Custom is not a
matter to he submitted to the senses. It is made up of an ag g reg
ated repetition of the
same fact, whenever similar conditions arise; and though a bare opinion is worth
nothing without ascertaining the data
on which it is founded; yet it is always to he
remembered that s 51 is to be read with this section, and that the g rounds for the
witness's opinions are sure to he eliciicd in cross-examination even if they should not
be elicited in the exanhinatioll-in or demanded by the judge. A boundary between
villages; the limits of a village or town; a ght to collect tools; a right to trade to the
exclusion of others; a right to pasturagc of waste lands; liability to repair roads, or plant
trees; right to water-courses, tanks, ghats for washing; rights of Cofl1nn and the like,
will be found the most ordinary in mofussil practice" [Nort 22].
Opinion as to Existence of Any p
General Custom or Right.—
of the word "tight" see Gujju Lal s: flare/i Lal, 6 C 171, 180, 187 . (For the meaning
and ante S 13). A
living person may state his opinion on the existence of a family custom and may state
as grounds thereof information derived from deceased persons, but it must be the
expression of independent opinion and not repetition of hearsay
1933 0 246]. [Atnina n Khalil, A
The opinions of responsible members of the family as to the existence
of a family custom and the grounds of their opinion, though generally in the nature of
a family tradition, are clearly admissible
1939 Kar 98 ] . [Raja Ajai : '7jai Kuniari, A 1939 PC 22:
Answers in Wilson's Manual on questions of customary law are
clearly admissible under s 48 [Sub/toni n Nawab, 68 IA 1: 1941
Lab 154: A 1941
PC 211. So also answers to questions
/?iwaz-i-am [Rawa u Taco, A 195 I Pu 239 ] .
On tIme question of the existence of a special custom in a clan excluding daughters
from inheritance ivaib-u1-a,-z
or village administration papers made in pursuance of
Reg 7 of 1 821 were held admissible under s 35. Sembie—Even
if such papers were
treated as the recorded opinion of those likely to know the custom, they would be
admissible under s 48 lLek/iraj : Mahpa/, 7 IA 63 : 5 C 744].
definitel y held that entries made in the In a later case it was
s 48 mvazib-111-arz are admissible in evidence under
us the ecord of opinions as to the existence of family custom of inheritance by
persons likely to know it
CWN 703; see [Mussamat lxiii c Murli D/mar, 33 IA 97: 28 A 488: 10
Beg c A/ia Ditta, 44 IA 89 : 44 C 749 : A 1916 PC 129 As to
evidence of custom recorded in lthzib-u/a,z ].
5CC notes under ss 13, 35 134. 436.
For the meaning of the word "custom", its elements and essentials and a full
pp
treatment of the subject, see notes under s 13
p 129 et seq. Opinion as to non-
946 Sec. 49 Chap. /1-_Of the Re/eiuu'y of l'acrs

transferability of 'dwaiui-u/ticka in Siftoiis settlement report is 2uImisslble jSoin y

Bud/to, A 1927 P 463].
A tribal or family custom excluding a daughter or sister from inheritance in favour
of collaterals may he proved by genera] evidence of members of the Li'ihc or family
who would naturally be cognizant of its existence. No specific instances need be
proved. [Ahi,oad Khan v. C/mimi Bjbj, 52 IA 379: A 1925 PC 267 : 30 CWN 506;
folid in 1-Tubraji v. Chandrahati, A 1931 0 89]. As to evidence of general custom
excluding daughters and their issues from inheritance, see, &mi]rangi v. Mono-
karnika, 35 IA 1 : 30 A 1: 12 CWN 74 1 . As to evidence of custom, see Lac/miwi s:
Akbar Khan, I A 440; Bai Baiji e Bai Santok, 20 B 53.
In a suit by a landlord for ejecting the purchaser of an occupancy holding and
avoidin g the sale thereof, re g ard should be had to the provisions of s 48 in
determining the question as to the existence of a custom or usage permitting the
tenant to transfer the holding. Distinction between custom and usage pointed out
[Do/gush v.Guzuffer, 23 C 4271. In a similar ease it was held that the statements of
CS flS who are in a position to know of the existence of the custom or usage olO
transferability in the locality arc admissible under s 48. For instance, a person who
had been in the habit of writing out deeds of sale, or one who had been seeing
transfers frequently made, would certainly be in a position to give his opinion
whether there was a custom or usage in that particular locality. In order to establish
usage, it is not necessary to require proof of its existence for any length of time
[Sariatullah u Prannath, 22 C 184, 187]. A recital in it public record as to a
statement made by a public servant with reference 10 a particular statement of the
grant by the Government would not he admissible under s 48 where a specific right
claimed by a particular individual and not a general rule, is being dealt with. It may
he relevant under s 35 [Sankarac/ian'a v. Alanali, 51 IC 8761. In order to ascertain
the customary rate of interest on hundi, the opinion of persons faniilar with the usage
is admissible [far Ncirain v. B//tori, A 1932 L 5821.
The opinions of witnesses as to the effect in law of the practice in the business
Firms of crediting amounts to charities and temples in their books and the rights of
the beneficiaries of such charities, &c are both inadmissible and useless [S000iram u
AlagaiVachiar,42CWN 1125 :A 1938 PC 2591.
Explanation.—The Explanation to this section excludes private rights from the
operaliul of this sccton Opinion or reputation evidence is not admissible to prove
,hi [No rton n 2271.
such rights, they must be proved by facts, such as acts (A' uw',crs
The Explanation to this section adopts the sense in which the term "general" is used
by the English writers [Field p 195]. See notes tinder "Commentary."
For the meaning of the terms, public and general rights—see notes to ss 13 and
32(4).

'S. 49. Opinions as to usages, tenets, etc., when relevant.—When the

Court has to form an opinion as to—
the usages and tenets of any body of men or family,
the constitution and government of any religious or charitable founda-
tion, or

In Ceylon paras 2. 3, 4 have been designated (a), (b) and (C) respectively.
 Opinions as to usages, lends. dIC., O/U'fl ic/cia/it. Sec. 49 947
the meaning of Nvords or terms used in particular districts or by
particular classes of people,
the opinions of persons having special means of knowled ge thei-eon are
relevant facts.

SYNOPSIS
Page Page
Principle arid Scope 947 Constitution and Govenirnnt
Proof ni tJsae 948 or airy Religious or
Usage and CUStOm ... 949
Charitable Foundation ... 949
Special Means of Knowledge ... 949

COMMENTARY
Principle and Scope.—This section makes relevant the opinions of third persons
as to usages, tenets, etc. Under it, persons having "special means of knowledge" of
the usages, tenets, doctrine, &c of any body of men or famil y, or of the constitution
and government of any religious or charitable foundation, or of the meaning of words
or terms used in particular places or by particular classes of people, arc allowed to
give their opinions on these matters. Usages include usage of trade, agriculture,
mercantile custom, &c and all other usages of any body of men or family, eg
primogeniture, ku/ac/ia,; des/tachar &c. Proof of facts relating to customs or usages
comes under s 13 and this section deals only with opinion. Expert opinion on legal
principles of Hindu or Mohamedan Law is not admissible lMcisiid Sa/iidganj e
Gitrudivam, 44 CWN 957, 964: 67 IA 25 1 :A 1940 PC 1161.
In commercial transactions any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to it may be proved provided that such
incident would not be repugnant to, or inconsistent with the express terms of the
contract (see s 92 proviso 5, post). As to the rneâ6ing of unintelligible words,
technical expressions, &c see also s 98 post. The opinion admissible under this
section must be that of persons having special means of knowledge, ie experienced
and competent men. This section must be read with s 51. This section refers to the
opinion of a living witness which may be based on the statements of dead persons or
other sources. S 32(4) deals with the opinion of dead persons (ante). Opinion of a
dead person cannot be proved except under s 32 [Pratap v. Jagadish, A 1925 C 116].
The latter section refers to opinion as to public right or custom, but this section has a
wider scope. By s 60 para 5, if the oral evidence refers to an opinion or to the
grounds on which that opinion is held, it must be the evidence of the person who
holds that opinion on those grounds.
Under this section a Witness may give his opinion upon:---(a) Usage of any body
of men. This will include usages of trade and agriculture; mercantile usage and any
usage common 10 a body of men. (b) Tenets of an y body of men. This will include
any opinion, principle, dogma or doctrine which is held or maintained as truth. It will
apply to religion, politic, science, &c (c) Usages of a family. Such for instance as
the custom of primogenilure in the families of ancient zemindars; any peculiar course
of descent; the usage of Indian convert families and the like. Custom is of two kinds,
kulachar or family custom, deshachar or local custom. Tenets of a family—this
sufficiently explains itself. (d) The constitution and government of any religious or
c/icirjfal,le foundation. (e) Meaning of reords or terms used in particular districts or
by particular classes [Nort p 2281. By s 98, evidence may be given with reference to
948 Sec. 49 Chop. //----Of the Reicranc y oJl-a('t.c

a document to show the meanine of technical, local and provincial expressions,

abhrcviations and of words ucd in a peculiar sense. For this purpose the opinions of
persons having special means ol knowledge on the subject would be valuable. The
udgc may also refer to Dictionary as to the meaning of words (s 57).
This section deals with usages apparently intended to cover cases in which the
persons concerned do not I ()LTh considerable class of persons, so as to justify the
application of the term ''gciicral.". The section therefore includes cases to which s
32(4) could not be applied (Cunit p 131). In deahine, with the caste of a Family,
evidence given in previous litigations between members of the family is relevant
[Maharaja of Kolliapur i' Sunth'aoi, 48 NI 1].
Proof of Usage.—" Usage is proved," says the coLtit in Massachusetts, "by witnesses
testifying of its existence and uniformity from their knowledge, obtained by observation of
what is practised by themselves and others in the trade to which it relates. But their
conclusions or inferences as to its effect, either upon the contract or the legal title, or rights of
parties, are not competent to show the character or force of the usage" [Haskins i: b'rrcn.
115 Mass 514, 535 cited in Rogers, 2nd Ed 5 117 p 2711. It is held that witness is competent
to testify as to usage whose only knowledge of it is derived from his own business, if that has
been sufficiently extensive and long continued [Hamilton v Nickerson, 13 Allen (Mass)
351]. The testimony of those engaged in a particular business as they never heard of such a
usage, is admissible lEvansille &c R 1? Cc Younç', 28 Ind 516]. It has been held in England
that a London stock-broker is a competent witness as to the course of business of London
Ixinkers [Adams 'i: Peters, 2 C&K 7221. And it is to be observed that a person may be
competent to testify as to the usage which prevails in a certain business, without himself
being engaged in that business. So that when the question was as to the custom of the New
York banks in pa y ing the cheques of dealers, it xvas held proper to call as witnesses persons
who were not employed in banks. Although not employed in banking business, the
witnesses were dealers with the banks, and had knowledge of the ordinary course of dealing
with them. There is no necessity for showing a man to be all in banking in order to
prove a usage. lie should know what the usage is, and then he is competent to testify,
whether he be a bunker, or employed in a bank, or a dealer with banks. There is no reason
why a dealer should not have as niuch knowledge on such a subject as a person employed in
a bank" [Grijjin r: Rice, I Hilton, NY 184 cited in Rogers, 2nd Ed s 117 pp 272-731. 'Since
it is necessary that there should be knowledge of the usage either actual or presumptive,
before panics are bound thereby, it frequently becomes important to show that the usage is
8 e neral in its character. In most cases it may not be possible to prove actual knowledge of the
usage: and in such cases toe usage trust be sho'.vn tr be so notorious and general that notice
may be preSUMCCL It is, of course, not necessaly to the validity of usage that it should e.kL
throughout the whole countiy" [Jones s466].
In Garuradliwaja v. Sa/7arnadhnaja, 27 IA 23$: 23 A 37 : 5 CWN 33 the Judicial
Committee observed:
"By s 49 when die court has to form an opinion (inter alia) on the usage of any
family, the opinions of persons having special means of knowledge thereon are
relevant. But by s 60 if oral evidence refers to an opinion, or the grounds oil
that opinion is held it must he the evidence of the person who holds that opinion.
Their Lordships think it is competent for a living witness to stare his opinion on
the existence of a family custom and to state as the ground of that opinion,
information derived from deceased persons and the weight of' the evidence would
depend oil position and character of the witness and of the persons on whose
statements he has formed the opinion. But it must he expression of independent
opinion based oil and not mere repetition of hcarsay"
 Opinions io Iii I/.V(/'S, 1('/J(IS, ('it., n'/Wli reh'r'o,ri, Sec. 49 949
'Iii is case Was relied On in ('h'ridi'cec'lroor V. b'ibhuti, A 1945 P 2 I I : 23 P 763 and
Jcl'a(lis/i 4() (Ii 362 82 IC $86 A 1925 C I 16 and it was held that
statements made by deceased persons as to the usaces of family a0cr the. controversy
had arisen are inadmissible both under .s 32(4) and s 49.
Usage and Custom. - -'Ihe word 'usa g e' at any rate won Id include what the
people are now or recently in the habit of dome in a particular place. It 111, y
he that
(Iris particular limihit is on)u 0! very iCeiit ori g in, or it may be one which has existed
for a long time. 11 be one re g ularly and ordinaril y practised by the inhabitants of
the place, where the tenure exists, that would be usa g e within tire nicaning of s
of the BT Act S of 1 885 183
h IDa/gus r: Guzu/jir,
1. 23 C 427; f'oIld in .Sariutitl/ali 1'.
I'ia,ijicuh, 26 C 184. See also I.cong Wing Aong r. Public Prosecutor,
(1994) 2
Singapore LIZ 54 (Singapore CA).]. Interpretation of n'azih-ul-arz accepted by
certain members of a famil y is admissible in
evidence when custom applicable to that
famil y as entered in na:ib-ul-arz is in question
o
[Shar/uildur r: iViainat. $7 IC S : A
1925 0 6881. To prove a custom, pinions of persons having special means of
knowledge are relevant under s 49 /]aijnath r: Ra//u. 12 OLJ 571]. As to Customs
and Usage--see, notes and the cases under s 13.
Constitution and Government or an y Religious or Charitable Foundation.—
Where the founder of a charit y had described tire object of his mmii Occnee as "godly
preachers of Christ's Hol y Gospel" evidence was admitted to show that a religious
sect of Protestant Trinitarian D issenters existed who bore that name and that the
founder was herself a member of that sect (Shore v. Wilson, 9 Cl&F
355: Cf
"Co,rrenrj,orwrea Lvposjtjo", port s 9$j. As to reli g ious or charitable foundations
under Statutes, see Berm Re g 19 of 1810; Mad Reg 7 of
1863, Reli g ious Endow-
nients Act (20 of 1863).
"Special Means of Knowledge."--Special means of knowled
g e" does not
necessarily mean that the person should be himself en g aged in a particular
business or he a member of an establishment or that the means of his knowledge
should be confined to his own experience. All that is required is that he had
opportunities for acquiring knowledge of an usage or custom and that he acquired
the necessary knowledge; [see Griffin i: Rice, sup]. It has been held that evidence
which represents the opinion of persons having special means of knowledge based
oil derived from deceased members of the family is admissible under
ss 49 and 60 ISaraliit r. /irdrajit,
27 A 203: 2 AU 720]. Where witnesses, as
members of a family, have special means of knowledge, as to the usage of the
family, their evidence will he rcevarit under this section in so far as the existence
of such usages is concerned (Shvaomananda o Ramakanta,
32 C 61. Where plaintiff
as sister claimed to inherit self-acquired properties of her brother under a special
custom, general evidence as to its existence by members of the tribe or family who
would naturally he cognisant of its existence and exercise without controversy is
admissible [A/mined Klra,r v. Channi Bibi,
52 IA 379: 30 CWN 506: 6 L 502: A
1925 PC 2671.

The weight of evidence would depend upon the position and character of the
Person claiming special means of knowled g e and his evidence must he the
expression of an independent opinion formed on what he has known or heard.
Repetition of hearsay is still hearsay [Tulsii'a,n u' Rain Prasanna, A
1956 Or 41:
1955 Cut 653].

2. B.T. Act has been repeated.

950 Sec. 50 Chap. 11--Of[/u' Relci-mic .v of Pacts

S. 50. Opinion on relationship, when relevant.—When the Court has

to form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such relationship, of
any person who, as a member of the family or otherwise, has special
means of knowledge on the subject, is a relevant fact;
Provided that such opinion shall not be sufficient to prove a marriage in
proceedings [under the Indian Divorce Act, or in prosecutions under
sections 494, 497, or 498 of the 2 lndian Penal Code).

Illustrations.
(a) The question is, whether A and B were married,
The fact that they were usually received and treated by their friends as husband and wife, is
relevant.
(6) The question is, whether ,% was the legitimate son of B. The fact that A was always treated as
such by members of the family, is relevant.

SYNOPSIS
Page Page
Principle and Scope 950 Family Conduct, Family
Conditions of Relevancy 952 Tradition and Repute 954
- Opinion 952 Matrimonial offences 956
- Existence of Relationship." Resemblance 957

Non-existence] 953 Opinion Expressed by Conduct
General Evidence of Repute When Relevant 957

in Proof of Relationship 953 Special Means of Knowledge 958
Proviso 958

COMMENTARY
Principle and Scope.—The essential requirements of the section are (1) the court
has to form an opinion as to the relationship of one person to another; (2) the opinion
expressed by conduct as to the existence of' such relationship is a relevant fact; (3)
bitt the person whose opinion is relevant must be one who as a member of the family
or otherwise has special means of knowledge oil particular subject of relationship
IDo!gohinda v. jVi,naj, A 1959 SC 914]. For anaiysia a nd explanation of the section
see also U/la v. Maui, 1967, 33 Cut UI' 740 and Ma/tadeb s'. So ya, A 1973 Or I. The
offered item of' evidence is 'the conduct', but what is made admissible in evidence is
'the opinion', the opinion as expressed by such conduct [Chandu s Khatcmonnessa,
1942, 2 Cal 299, 309: A 1943 C 76, 80—approved in Dolgos'inda v. Nimai, A 1959
SC 914: 1959 Sup 2 SCR 814; IIisha'anath v. Dolt-in, A 1968 p 481]. The opinion
all
may he of a member of the family or it is enough if he has special means
of knowledge oil subject. But the opinion must he expressed by conduct, ic
external facts or events of the nature indicated in the illustrations to the section and
not a mere statement of an opinion held by the witness or what another person may
have said oil question of relationship. The last would not be admissible except
under the conditions in s 32(5). The fact of existence or non-cxistenc of relationship

1. In CEYLON, substitute tlic lo! t owing: 'ku divorce, or in prosecution under section 24 of the
Kandyan Marria ge Ordinance, and sections 362 (B), 362 (C). and 362 (0) of the Penal Code."
2. In PAKLS rAm. "Pakistan' substituted for 'Indian". In lluiouA, "Indian" omitted,
 Opinion on relationship, when relevant. Sec. 50 951
need not as under s 60 he proved b y the direct testimony of the person holding the
Opinion. A witness need not confine' his testimony to his own conduct as expressive
of his own nion withopi
regard to the relationship; he may also extend it to the
conduct of others [Aniar e C/thajie, A 1973 P&H 213 FBI.
If a witness has no direct knowledge of the existence of relationship between two
or more persons, he can give evidence about the statements relating to the existence
of such relationship heard from persons who had special means of knowledge and
such statements were made before the question in dispute was raised, if they are dead
or cannot he found within s 32(5) [Sheojee Thtary v. Prerna, A 1964 p 187 (Sitaji
Bijendra, A 1954 SC 601; Dolgobinda e Nimai, infra reId on)].
As s 50 makes relevant opinion expressed by conduct, ie external facts, it may be
proved by the evidence of the person holding the opinion or by other persons
acquainted with such facts evidencing conduct. Evidence as to the conduct of other
members of the family made admissible under the section may be given either by the
person whose conduct is in question or by a stranger who has special means of
-
knowledge. In either case, the witness is to state acs, observed by him and the opinion
he has formed thereon: but it must he the expression of independent opinion and not
mere repetition of hearsay [see Garuradhwaja v Swaparnadhwaja, 23 A 37 PC (ante)].
The contrary view expressed by HUTCHINS J, in R Subbaravo.n, 9 M 9 viz "that proof
of the opinion, as expressed by conduct, may be given seems to imply that the person
himself if not to be called to state his own opinion but that, when he is dead or cannot
be called, his conduct may be proved by others", is therefore open to objection. It has
since been held by the Supreme Court (disagreeing with the opinion of HUTCHINS J,)
that s 60 which provides that the person who holds an opinion must be called to prove
that opinion does not necessarily delimit the scope of s 50 in the sense that opinion
expressed by conduct must be proved only by the person whose conduct expresses the
opinion. Conduct as an external perceptible fact may be proved either by the person
himself whose opinion is evidence or by some other person acquainted with the facts
which express such opinion [Dolgobinda v, Nimai, 1959 Sup 2 SCR 814: A 1959 SC
914; Fulkajia v. Nathurani, A 1960 P 480; Bishwanath u Duithin, A 1968 P 481; Virsa
v. Biswanath, A 1971 P&H 362; Champa u Mad/ia, A 1980 P 1031.
The word "relationship" embraces all kinds of relationship, although the words
"by blood, marriage or adoption" have not been added after it by Act 18 of 1872 as
in the case of s 32 cls (5), (6). The illustrations make it clear. This Section makes
relevant the evidence admissible in English law as "family conduct", but its scope
appears to he more restricted than the English rule as it does not contain any
provision making evidence of general reputation admissible as evidence of relation-
ship (see post). The opinion made relevant is "opinion, expressed by conduct," ie a
conduct which is the expression in outward behaviour of the opinion entertained as to
relationship. When such conduct is tendered in evidence the court should subject if to
a scrutiny and see whether the conduct is based on the opinion held by the person.....
Evidence showing that the boy was treated for a long time as the adopted son when
there was no controversy is sufficient to prove adoption although evidence of actual
giving and taking is not forthcoming [Balinki v. Gopa Kr, A 1964 Or 117].
According to English law, evidence of general reputation is admissible to prove
relationship, eg pedigree, marriage &c. Thus evidence of general reputation is
admissible in proof or disproof of marriage [Doe v. Fleming, 4 Bing 266; Evans
Morgan, 2 Cr&J 453; Phip 11th Ed
p 506]. In the case of marriage the repute and
conduct need not be confined to the family, reputation among and treatment by,
friends and neighbours being receivable Doe e Fleming, sup; Re Thompson, 91 LT
952 Sec. Sf) C/aip. Ii- –01 (JUt Re/c vain t' oil; ic'.

680; Phip diIi Ed p 3121. On a question whether .\ and B were married, the fact that
they were alwa y s visited and rcccived as man and wife by respectable people in the
nciehbourhuod, is admissible [Tay s 57$; Step Art 53]. In most ofthe cases the
inairiage has been proved by evidence of certain speci6c facts, such as the parties
beine received into society as man and-wife, bein g visited by respectable families in
the neighbourhood, attendin g church and public places toizcthcr, and otherwise
demeaning themselves in public, and addressing each other, as persons actually
married [Kay v. Duchess de Vienna, 1811, 3 Camp 123 and other cases 1.
The absence of evidence regarding sampradan and Saptapati will not ncgativc the
evidence of oilier witnesses about the marriage [Sadhii Mondal v. Sarailti Bala
Mwic/al, 1985 Cri U 979, 981 (Cal)]. Still, though some of these circumstances are
receivable, as amounting to acts of admission by the parties themselves, those., which
are merely evidence of the treatment of the parties by third persons, cannot be
admissible oil principle that would not equally include the declarations of
strangers. The acts, like the words, merely show the opinions entertained by persons
not called as witnesses; and though it may be said, that what a person clues is usually
better evidence of his opinion than what he says, yet this is all which
goes rather to the weight than to the admissibility of the evidence. Accordingly,
general evidence of reputation in the neighbourhood, even when unsupported by
facts, or when partially contradicted by evidence of a contrary repute [Lyle a
El/wood, 1874 LR 19 Eq 98] will he receivable in proof of marriage [Tay s 578] S 50
(foes not appear to admit evidence of general reputation (see posi, heading below).
S 50, however, does not state as to how the conduct or external behaviour which
expresses the opinion has to he proved. For this purpose one has to turn to s 60
[Bclaram i'. Jayakrushna, A 1972 Or 141].
Conditions of Relevancy.—In order to admit evidence three conditions must he
fulfilled: (1) The person must be proved to have special means of knowledge. (2) (a)
The opinion alone is evidence; (b) the opinion as expressed by conduct only is
evidence; or in other words, (i) conduct only can be given in evidence; (ii) from the
conduct given in evidence, the court is to see whether it is the result of any opinion
held by the person. (3) The opinion which is relevant must be the one as to the
existence of the relationship [C/iandit a K/iai'emonnessa, 1942, 2 Ca] 299: 46 CWN
729: A 1943 C 76; apprd in Dolgobinda v. Niinai, A 1959 SC 914; relied on in
Rainathiar a Jm;i1, A 1956 P 491. The opinion made relevant is opinion expressed
by Conduct which is the expression ii outward behaviour of the opinion entertained
as to relationship [Ramadhar a Janki, sup].
—Opinion. Opinion means something more than mere retailing of gossip or of
hearsay; it meansjudgment or belief, that is, a belief or a conviction resulting from
what one thinks oil particular question. The "belief" or conviction may manifest
itself in conduct or oLitward behaviour which indicates the existence of the belief or
opinion [Dolgobiiida v. Nimai, sup].
A person can give evidence of what he has been told and what he learned about
his own ancestors, provided what he says is an expression of his own independent
Opinion (even though it is based oil derived from deceased, not living
persons) and is not merely a repetition of the hearsay opinion of oihers and provided
the opinion is expressed by conduct. Whether he got the information before the
dispute or not would affect its weight and not admissibility [Sitaji a l3Uendra, A
1954 SC 601; S Al Dawood a Abu, A 1972 M 228]. What is said in Silaji 's case
about a member of the famil y is also true of one who although not a member of the
family has special means of knowledge about the relationship of parties. The words
 Opinion on ie/alionship, u-/len ielei'uir.
Sec. 50 953
"or otherwisc" clearly contemplates such it CilSC Rw,iad/iar i: icinhi, A 19
5 0 P 491.
Reading s 50 along with s 60 evidence of persons, though not nienihers of the tiimi IV,
having special means of knowlcdizc with regard to the conduct Of a member of the
family in relation to the CSOS whose relationship is in issue is adiiiissihlc
I. .Iaduna,ida,:, A 1969 P 82 tGanes/,
(Ramad/iar c iunI-j, sup; BIiou/ I ,. Bibi JVa/j/iwi A
1963 p 450; Dologobinda e Nimai, sup expid).

—"Existence of Relationship." [Non-existence].—The Section speaks of

"evidence of such relationship' and it is not clear whether it includes the non-
existence of relationship. When opinion evidence i' s to existence of relationship has
been made relevant, it is difficult to see on what principle can negative opinion or
opinion as to non-existence of relationship can he excluded when the court has to
conic to a decision as to the existence of relationship of one person to another. In
Wigmore, s. 1603 (3) some cases are cited in which negative evidence was received.
The phrase "existence of relationship" is also to he lioincl in s 32(5) and (6) and it has
been held that existence includes non-existence [Suba Rout i: Din Dam!, A
P 205J. 1941

General Evidence of' Repute in Proof of Relationship.—It is doubtful whether

general evidence of repute is admissible under this section to establish relationship,
as the section speaks of "opinion expressed by conduct." In
39 IA 57 : 39 C 492, 503 : 16 C\VN 529 : 14 Born LR 204,Ali Me e Ali S/inc Ma,
however, the Judicial
Committee held that in the absence of direct proof, consent to a marriage may he
inferred from the conduct of parties or established by reputation. This decision was
considered in it Madras case in which it was pointed out that the evidence which WaS
accepted by the Privy Council was evidence of family conduct and it was held that s.
50 enacts a rule different from that prevailing in England. It is limited to opinion
expressed by conduct and there is no other provision in the Act under which
evidence of general repute would he receivable to prove relationship. The evidence to
prove relationship is of the kind described in s 32(5), (6), (7) and s 50
KppailaIy\'a/lgcu', A 1926 M 475: 91 IC 462; Sris/, cli u [Ses/lamnlal 0
Rak/ia!anaiicja, 45 CWN
435: 68 IA 34: A 1941 PC 16 and also Cjianc/tj u Khatemonnessa, sup
where the
question has been dealt with at some length]. S 50 makes relevant the evidence
admissible in English law as "family conduct", but evidence of general reputation
admissible in that law to prove relationship is not admissible under the section
tRamad/iar 0 Ja,iL-i, A 1956 P 49J. Agreeing with
Laks/uni Reddi o Venkata, A 1937
PC 201 the Supreme Court held that s 50 does not make evidence of mere general
reputation (without conduct) admissible as proof of relationship [Dolgobinda 'i'.
Nimai, sup; folld in Balaram u Jayakrus/ina A
1972 Or 141].
Evidence of general reputation which is a cumulation of perception, testimonies
heard and gathered and reduced to an assertion in court, is not admissible [Cliandu o
K/iatcinojtne,csa sup]. Section 50 does not make evidence of mere general reputation
admissible as proof of relationship. jS!aiaiii Naj n Paranoia! Sonar, A 1985 On
171, 176 (DB)1. So it has been held that the evidence of witnesses that a certain man
and a woman were regarded as man and wife by the members of the community does
not come within 5 50, not being opinion expressed by conduct as to the existence of
such relationship of any person who as a member of the family or otherwise has
special means of knowledge [Liks/uni e Anandi, A 1933 A 130;
Parein v Gokal, A
1949 Pu 35]; but evidence that the younger brother of the woman used to call the
man as Jija (sister's husband) is covered by s
50 [Parvin o Gokal, sup]. What people
think may he expressed in words or by conduct. If there is a rumour or gossip that
two persons are married, it is inadnissibie On tile other hand the fact that they were
received and treated by their friends as husband and wife is admissible. [Ningu Vitllu
954 Sec. 50 Chap. 1/ -Of i/re Rclero,wv of Fads

l3aiiru,u' e ,adas/jjv Niiig/r Baivaire, A 1987 Born 27, 3! : 1986 Mali 13 186;
Khar'srrar Na/k p. Domrurj Beria, A 1989 Ori 10, 12]. l-Icncc such statements as ''I
learnt that the y were living together as mail wife," or ''they were man and wife"
are not receivable [Mg Maung v. Ma Se/n, 1940 Rang 562: A 1940 1k 1811 Mere
opinion about relationship based oil unsupported by conduct is not admissible;
but it is not necessary that all instances of family conduct should be stated. The
quantum of evidence roust depend oil facts of each case [Natabar r: Nhnai, A
1952 Or 75]. 'l'lre evidence must be of an opinion, as expressed by conduct regarding
existence of such relationship. Neighbours, cu-villagers and friends having frequent
intercourse call special means of knowledge of such relationship. Such
opinion is not relevant unless it is expressed by conduct which means an overtact
[BarimfBe/iera v. Padan Behera, A 1987 Cr1 187, 189].
That the proof as to whether there was a marriage between two parties is to
include a consideration of the character and conduct of various relatives and an
estimate is to be formed as to whether on the whole these relatives prefer the tie of
concubinage to that of marriage is a wrong doctrine regarding proof of marriage . The
evidence on the subject should not be allowed as it i without competence IMolrahbat
',: Ibm/i/nj, 56 1A 201 : 33 CWN 645 : 10 L 725 : A 1929 PC 135].
In a case however it has been held that where the question is as to the legitimacy
of a certain type of marriage, much may be gathered from the treatment accorded to
the alleged wives and from the way in which they speak of themselves in official
documents and petitions and legal proceedings in which they were parties. Evidence
of this kind is conduct admissible under s 50 (I1/us b) as it shows the repute in which
such marriage is held in the family [Maharaja of Koihapur v. Sundrain, 48 M 1: A
1925 M 497; Shivalingiah r Chowdamma, A 1956 Mys 17]. But treatment accorded
to the alleged wives seems to he as much evidence of repute as of conduct of the
persons who received them or mixed with them as such. The dividing line hciwccn
conduct and repute in such cases appears to be so thin as to , be imperceptible. At any
rate the circumstances of their behaving themselves in society as man and wife, &c
may h received as acts of admission by the parties themselves. The existence or
non-existence of relationship between two persons may also be presumed under
s.114 from the conduct of other members of the family or strangers, towards them
(see s 114). The proviso enacts that in divorce cases or in cases of adultery, bigamy,
etc. where marriage is an ingredient in the offence, mere opinion evidence by
conduct is riot sufficient to prove it. In these cases the fact of the marriage must be
str:tiy proved.
Evidence of notoriety of adoption must he the evidence of a number of people
who owing to their circumstances are in a position to say what the attitude was of the
alleged adoptive parents towards the claimant. A mere statement that an opinion was
held by the witness or other persons does not come within the scope of s 50, the only
provisions under which evidence of repute is admissible [Mg Mya Mya, A 1936 R
518 ] . The evidence of a firm servant as to the adoption ceremony and as to the fact of
A's calling B and B's wife as father and mother respectively was admissible
[Jagabandhu i Bhagu, A 1974 Or 120].
Family Conduct, Family Tradition and Repute.—This sectin is founded
on s 649, of Taylor which is as follows:—"Family conduct, such as the tacit
recognition of relationship, and the distribution and devolution of property,—is
frequently received as evidence from which the opinion and belief of family may
be inferred, and as resting lti[nately oil same basis as tvidence of family
traditions.—For, si'iTce the principal question in pedigree turns on the parentage
 Opinion oil relationship, 1%/U/I I('fCi'a/,L Sec. 50 955

OF (ICSCCOI of ;ill individual, it is ObVR)tIsly unaicrial, in order to resolve this

question, to ascertain how he was Ircated and acknowledccd by those who
sustained towards hill) ally relations of blood or of affinity. Thus, in the I3erlc/ev
Peerage Case (1811, 4 Camp 416), SiR JAMES MANSFIELD remarked, that, "if the
lather is proved o have brought up the party as Ills legitimate son, this amounts
to a daily assertion that the son is legitimate." So, the concealment of tire birth of
a child from the husband (Hargave v. H, 1848, 2 C&Kir 701 ).—thc SLihsCqtleflt
treatment of such child by the person who, at the time of its conception, was
living iii a stale of adultery with the mother.—and the fact that the child and its
descendants assumed the name of the adulterer, and had never been recognised
in the family as the legitimate offspring of the husband, or that the alleged father
had never recognised the child as his, and that the mother had never so put the
child forward (Pouleit Peerage, 1903 AC 395),—are circumstances that will go
SO far to rebut the presumption of legitimacy, which the law raises in favour of
the issue of a married woman [Goddright p. Saul, 1791, 4 TR 356; Morris e.
Davis, 1837, 5 Cl & Fin 163: Banbury Peel-, 1811 A1)1) FIC, to Le Marchant's Rep
of Gardener Peer 389, 432, 433: R v. Mansfield, 1841, 1 QR 444: Townshend
Peer, 1943, 10 Cl & F 289: Atchley v. Spring, 1864,33 U Ch 354]. Again, if the
question he whether a person, from whom the claimant shows his descent, was
the son of a Particular testator, the fact that all members of the family appear to
have been mentioned in the will, but that no notice is taken of such person, is
strong evidence to show either that he was not the son, or at least that, he had
(lied without issue before the date of the will [Tracy Peerage, 1843, 10 Cl & Fin
100; Robson n'. Art Gen, 1843, 10 Cl & Fin 500, per LOiw CoTTENt1At 1; and if
the object be to prove that a man left no children, the production of his will, in
W hich riot icc is taken of his family, and by which his property is bequeathed to
strangers or collateral relations, is cogent evidence of his having died childless"
[Hungate v. Gascoigner, 1846, 15 LJCh 382—Thy s 649].
The tradition and repute prevailin g in the family as to any genealogical event must
also be proved and will be received as presumptive evidence thereof. So, Family
conduct and treatment—cc the tacit recognition of relationship; the distribution of
property; the omission of particular persons from mention or benefit in family wills
and settlements lGrear'es u Greenwood, 2 Ex D 289
]—arc admissible as showing
acknowledgment or the reverse by the family, though such facts fall, more properly,
under the head of ou-i g inal evidence, than of hearsay, since they are not used as
declarations to prove the truth of the matter stated, but merely as relevant conduct,
nor are they confined solely to matters of pedigree. As to repute, trcatnien, and
recognition by slrangers',—in the case of marriage, the repute and conduct need not
he confined to the family, reputation among, and treatment b y, friends and
neighbours being receivable. A witness deposing to the existence of such a general
reputation must not, however, state what some partictilar individual has said on the
subject; and if it appears that his testimony is based merely on the declarations of
such person, the evidence ceases to be admissible as general reptutation, and can only
he received if the declarant was a deceased member of the family [Shedden 'c A G,
30 U P&M 217; Phil) 11th Ed p 427].

Taylor (s 584 in 1872) might have been the nmterial source of' s 50. 1311t the
language used in the section makes the Indian law much restricted [ Chandu is
Klua tell) oil ncssa, sup]. On a question whether a particular amount was paid to the
plaintiffs and their ancestors as briui, the history of the origin of the deities and
their wordship which came to the plaintiffs as a tradition in the family from father
to son was held inadmissible [Sris/i Gb n Rak/ialananda, 68 IA 34: 45 C\VN 435:
956 Sec. 50 (hop. //—O/ the /elciiict 0/ lciCL

A 1941 PC 101. Family tradition has however been held admissible on question
aUccting custom (see Raja Ajai v. tjai Kumari. A 939 PC 22: 43 CVVN 585;
1939 Kar 98).
The section may be considered in connection with s 114. The fact of relationship
or non-relationship between two given persons may be inferred from the manner in
which other members of the same family behave towards them, or from the mannci'
in which tile two persons behave towards each other, evidence of either kind may
raise the presumption for which s 114 provides (Cunn p 132).
[Ref Thy ss 578, 649; Step/i Art 53; P/up St/i Ed pp 122-23, 305-06, 378; Jones s
315.' Wig ss 1602-607, 2083; Greenleaf s 1061.
Matrimonial offences.—In adultery cases the complainant has to provide strict
proof of the marriage. The mere fact that they had been living together as husband
and wife giving birth to their progeny would not do in a prosecution for matrimonial
offences. And, as for s. 50 of the Evidence Act, the fact that the man and woman
spoke of each other as husband and wife, that others cooling into their life in the
passing or to endure also took them as husband and wife, proves nothing more than
conduct, and conduct alone is no substitute of Strict proof. In a prosecution under s.
497 of the Penal Code the question of marriage must be proved strictly. In such a
case admission by all in his Statement under s. 313 of the Code of Criminal
Procedure that the woman was the legally wedded wife of the complainant will not
be of any avail to the prosecution if it otherwise fails to prove marriage between the
complainant and the woman whose body stands violated ]Brij La! Bis/uroi r: State,
1996 Cri LJ 4286, 4288 (Dcl)].
As far back as in the year 1928 it was held by WORT, J. in Ganga Patra r;
Emperor, AIR 1928 Pat 481 : 29 Cri Ii 1045:
"In cases of that kind where the relationship of husband and wife comes into
question it is necessary to prove strictly that relationship and that that matter is
always ill whatever the defence in the petition or the prosecution may he, I
mention that because the learned Government Pleader suggests that even though
the strictest proof is not given in this case, it is unnecessary by reason of the fact
that there was a tacit admission on the part of the accused that the woman was
the vile of the complainant. I cannot, however, accede to that proposition of
law. If it is conceded, and I think it must be conceded, that in it prosecution
under this section the question of marriage must he proved strictly then any
inference, tacit or otherwise, will not avail the prosecution if they fail to prove
strictly the marriage netween the complainant and the woman whose chasity has
been violated."
Similarly in Empress v. Kahn, 1883 ILR 5 All 233 and Morris v. Miller, (1767)
4 Burr 2057 it has been held that admission of marriage by the accused is not
evidence of it for the purpose of proving marriage in an adultery or bigamy ease
and significantly both these judgments were approved by the Supreme Court in
Kanwal Ram u H.P. Administration, AIR 1966 SC 614 : (1966 Cri LJ 472) at page
615. Of course, in the case before the Supreme Court the admission had been
alleged to have been made by the accused in the written stitcment. It was
observed:
It is clear that in law such admission is not evidence of the fact of the
second marriage having taken place. Ill bigamy case, the second marriage as a
fact, that is to say. the ceremonies constituting it must be proved............
 Opinion oil IeI(i!iO/Lr/ii/), iv/,e,i re/eva,,,.
Sec. 50 957
In Thiva Bala n Sores/i (iwidra, AIR 1971 SC II
53, the above obServatioK in
Kw,o'aI Rain '.v case AIR 1966 SC 614 : 196(, Cii Id 472 were approved
followed. and

Resemblance. —Evidence of resemblance of a Child to the putative lather is

admissible [Iinam/a'iin/j n Moia.rud,/i, 15 CI .J 621 ( lYric/it i'. Hicks, 15
(icorg ia 160:
60 Am Dec 687; In tile mailer of Jessiij.i, 1889, 81 Cal 408: 62 LRA
594;S/io,ie,i ,'
Puild, 1895, 56 Kan 43: 54 Am St Rep 587 reid to)].
The Opinion rule cannot avail to exclude testimony to resemblance, because
matters of identity, similarity and the like are well settled to be not obnoxious to that
rule Wig s 106. Sec a/lie, s 9: "Jc/eniiiv of au ythwc' and person"
(1/1(1 Question of
paler ut',"'].
Opinion Expressed by Conduct When Rclevant.— .-Every presumption ought
to be made in favour of marria g e, where there had been a length ened cohabitation,
specially in a case where the alleged marria g e took place so long ago that it is
difficult to get a trustworthy account of what actually occurred. Sufficiency and
insufficiency of father's acknowled g ment, explained in this ease
[Abdul Jiazak n
Age Md, 21 LA 56: 21 C 666; see also K/iajooroonisscz 0
Roitshanj an, 2 C 184: 3
1A 291]. Continual cohabitation and acknowled g mn of parenta g e by a
consecutive course of treatment will establish marriage and legitimacy amongst
Mahomedans IKhoja Ileda et v Raijan, 3 MIA 295 and
Ma/iatata Bi/i u prince
Ahmed, 10 CLR 293]. Where long cohabitation of a person's mother with his
father is established byalor
as well as documentary evidence, the presumption of
lawful wedlock arises [Milk/ii Rani i: Milk/u Rain, A 1996
HP 116, 1191.
Acknowled g ment and repudiation oflegitimacy, both being conduct, are
admissible under s 50 [S/ic'odliar 0. Jagil/iur, A 1964 P
3161. The doctrine of
acknowledgment is inapplicable if paternity of a child is kno\vii [A izwuuissa u:
Karimcuunis.ca, 23 C 1301. Acknowledgment in face of proof of Lhc fact that there
was no marria g e is of no avail Jllabib:tr v. Altaf, 48 IA
144:48 C $56: A 1922 PC
159; Moliabbat o Md Ibrahim,
56 IA 201: 33 CWN 645: A 1929 PC 1351.
Omission to mention an alleged son in a grant by a zemnindar may afford an
inference that he was not the son of the zemindar or was not recognized so by him
at that time {Miithusn'a,ny u Veiikatasn'ara
12 MIA 203: 11 WR 6 PC].
Where the le g itimacy of the defendant in possession of the property is questioned
by a party who has strict legal right to question his legitimacy, the defendant should
he allowed to invoke against the claimant every presumption which reasonably arises
from the long recognition of his legitimacy by members of the family or other
persons [Rajemithci o Jogendra, 14 MIA 67: 15
VR 41]. Where all talookdar
treated his daughter's sun in all respects as his own son, he must be held to be his
heir {Maharaja Pei-tap i: Maharani Snbhcio,
3 C 626: 4 IA 22$. See also U1777-610
Begum v. sluab,
h 21 IA 163: 21 C 997]. A person claiming as an illegitimate son,
must establish his alleged paternity like any other disputed question or relationship
and can rely upon statements of deceased persons under s 32(5), upon any Opinion
expressed by conduct under s 50, and also upon such presu option as may he
warranted b y the evidence [Gopalasaini V.
A ru,iac/,el/wn, 27 M 32]. The mere
statement of A that B was the son of the defendant is not based oil conduct as
conduct alone car, be given in evidence
[Swiwn Tsering v. Kwizarg /icrh A 1982
Sikkim 26, 32]. \Vluerc in a transaction with a third party, A described 13 as his son,
acknowledgment of sonship is complete fNabakanta u: Mahatab, 20 WR 1641.
Under s 50 conduct of parties is very stron g evidence regarding the factuu:: of
adoption [Mullangi u: Vcnkatasithban,a/ i,
25 MJ.J 373: 19 IC 7401.
Q-58 Sec. 50 Chap. 11----Of the Relcrancr L/ /ats

Where the question is whether one person is related to another in any degree, the
facts that according to the religious usage the names of particular persons arc usually
recited or omitted during the performance of ceremonies, and the observance of
pollution are instances of conduct within S 50 [Rcuncikrislina n Chiniiu, 26 IC ii 0j.
On a question whether certain persons are members of a joint family the opinion
expressed by conduct of PCSOflS other than members of the family who had special
means of knowledge arc also relevant [Si-irain v. Gourishankar, A 1961 13 136]. On
the question as to whether the plaintiff's husband was the son of K, the evidence of
plaintiff's elder brother who gave her away in marriage and K's harbar who acted as
barbar in the marriage ceremony are relevant and admissible [Mahadeb v. Soi'a, A
1973 Or 1].
Where witnesses give no pedigree table, but state vaguely that they are related to
the parties and, therefore know that the parties are related in fifth degree, they are not
admissible tinder s 32(5) or .s 50 [Mohan v. Tulsa,i, 109 IC 774: A 1928 L 824].
Where the statement of a witness giving the pedigree is found to be admissible under
s 32(5), but he deposes to facts which establish such treatment as is contemplated by
s 50, it should be admitted to that extent [Chunna v. Mukat, A 1934 A 117].
Special Means of Knowledge.—Evidence of witnesses who have no special
means of knowledge and whose evidence is hearsay, about the name of the
grandfather of the deceased is not admissible because that is not opinion expressed
by conduct [Dukh ilaran i Dulpin, 1963 P 390]. If a person fulfils the conditions
laid down in the latter part of sec. 50 i.e. if he is a person who as a member of the
family or otherwise has special means of knowledge on the particular subject of
relationship, then what is relevant is his opinion expressed by conduct. 'Opinion'
means something more than mere retailing of gossip or of hearsay; it means
judgment or belief, i.e. a belief or a conviction resulting from what one thinks on a
particular question. [Sauney Majhi : Debi Devi, A 1985 Orissa 22, 26 (1)13)]. A
person who lives 100 or 150 cubits away from the suit land cannot be considered to
have knowledge about the relationship between two persons since the property is a
Calcutta property and not a property in the mofussil where the residents generall
know the other residents. [Dukhirani Dey i Mrityunjoy Prosad, A 1982 Cal 294,
298 ] . In a proceeding under s 488 (now s 125) Cr P C unlike proceedings for bigamy
or divorce opinion expressed by conduct of persons who had special means of
knowledge on the subject may suffice to prove the fact of marriage [Vanajakshanma
V. P Gopala Krishna, A 1970 My 305 (KJB David 'e Nilamoni, A 1953 Or 10; I3ebi
Bai v. Y Japamoni, 1967 MU (Cr) 311: 1967 KLT 1122 rel on)]. Evidence of a
v.'itness "ho has no special means of knowledge ahotit the. relaionshio is not
admissible [S/iankali Dhal v. Nilamani Dci, A 1994 Ori 298, 300].
Proviso.—Thc proviso applies only to eases coming under the Indian Divorce Act
and the prosecution tinder ss 494, 495, 497 or 498 Penal Code. The proviso was
inserted because Strict proof of marriage was required in original prosecutions and
also in proceeding tinder the Indian Divorce Act [Bhagavathy v. Rainankutty, A 1976
K 34]. The only effect of the proviso is that on the basis of opinion evidence alone,
the court cannot hold in a prosecution under s 494 PC that the factum of marriage has
been proved [Rahindra v. Pratii'a, A 1970 Tri 301. In eases of bigamy, divorce, and
petition for damages by reason of adultery, however, stricter proof is required. Thus
on a charge of bigamy, the prisoner's admission of a former valid, marriage, or his
marriage certificate coupled with evidence of cohabitation, though without testimony
of any witness present at the marriage, or in the case of a Jewish Marriage, even such
testimony without the production and proof of the marriage contract itself is
sufficient (Phip 8th Ed p 278). The first of these exceptions rests on the ground that a
 G,oun/s OJopi/iio/1, U/ic/i rclei'ant.
Sec. 51 959
prosecution for higail)y bcilg of a penal naitne, icjuii'c strict proof; and the second
Cxceptioil, upon the necessit y 01 care being taken to preventarties parties n settini up
liru
pretended marriage for civil purposes [Tay s 172].
Thc reference to Indian Divorce Act should be read as applicable to any procee-
din g s for divorce, ci,' tinder the Special Marriage Act, 43 of 1954,
the Hindu
Marriage Act, 25 of 1955 &c.
The proviso would mean that the proof of fact of iliarn age is not to depend on opinion
or conduct evidence in proceedings lot- divorce or bigamy, aduhtci-y &c [/tllwa/a v
Sithbalak,s/iinj, A 1962 AP 3111. The provisions of this scction show, that where marriage
is an ingredient in an offence, as in bi g amy , adultery, and the enticing away of a married
\soman, the fact of the marriage must he strictly proved IR u Pji'ani/,a,- Singh, 5 C
5 CLR 579 (R n iir, 8 BLR App 63 overruled); folid in 566 FR:
R i: Anched, 13 CLR 125; 5cc
also Gopa! e /i,A 1925 R 328; Prahlael i: R, A 1930 C 447]. The f',
ICL must be proved in
the regular way. The mere opinion expressed by conduct will not he sufficient. The
evidence of the complainant and here mother as to the marriage, if believed is sufficient [[3
i: Sithha,va,i 9 M 91. In the case of bigamy, the witnesses did no[ speak of the
ceremonies that weic gone though in the performance of the marria g e of the defendant
with another girl. If that is so the evidence that the defendant married a girl, brou g ht her to
his house and the y lived as husband and wife is not sufficient to brin
g the case within the
requirements of sec. 50. [i.a.vnu Salniwuj i: Ma/ic.rii-ar Sa/iu, A
1985 Orissa 11, 18: 1984-
1 Orissa LIZ 578 (DB)1. The court should require some better evidence of the marriage
than the mere statement of the complainant and the woman [[3 s: Dal Singh, 20 A 166 In
Rag/input i: R, A 1927 0 140: l) IC 535 the evidence of the woman, her father-in-law ].
and the headman was considered sufficient. In divorce cases marriage should he proved
strictly and in general a cenificate of mana g e should be produced [Prenidiand i: 1/ira.
A
1927 B 5941. In criminal cases, the facts constituting a valid marria g e should be proved in
accordance with s 50 [[3 u: Kalu, 5 A 233 and [3 u: Dal Singh, 20 A 166. See
Bliagu n
27 IC 837: 17 Born LR 75; 3 OC 342; P/nkku i: [3,A 1925 0 701: 89 IC 4]. In criminal
cases, the mode of proving a Mahornedan marria g e has been pointed out in Bee/al A neat u:
R, 19 C 79,
Proviso is not applicable to contempt proceedings [[Thoiii-ila/ n Kaus/ialiya,
A
1970 Raj $3 ] . There is a presumption against the legislature that it enacts laws with a
complete knowledge of all existing laws pertaining to the same subject, and the
failure to bring an amendment to s. 50 correspondin g to the amendment to ss. 30413
and 498A I.P.0 indicates that the intent was not to repeal existing legislation. [Vadde
Rain Roo s: State affliic//iiyi Pro, 1990 Cri Li 1666, 1671 (AP)].

S. 51. Grounds of Opinion, 'hen rel e v

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

I//us ration.
An expert may give an account of experiments perk rmcd by him for the purpose at forming his
opillion.

COMMENTARY
Principle and Scope. [Relevancy of Grounds of Opinion].–The opinion of an
expert (s 45) or any other person conipeteni to give his opinion under ss 47, 48, 49
loses its value unless the grounds on which the opiltion is based are known. Mere
96() Sec. SI Chap. 11-0/ thU R('l(l((/IC ttlacLv

opinion is of no help or same. It has therefore been laid down that wherever th
Opinion is relevant, thc grounds on which such opinion is based ille also relevan
This Section is therciorc a necessary corollary to the preceding sections by \vhih
opinion evidence has been made admissible. The soundness or otherwise of the
oil
opinion expressed must depcnd 10 a lucite extent oil reasons the opinion
is hcld. If the grounds are known, the value of the opinion nmy he increased or
lessened. An expert whose special knowledge on a subject is derived horn a study
only of standard authorities is not incompetent to testify,
but if it is found that that
study was made solely for the purpose of deposing in the case in question, and that it
was not in the line of his profession, he becomes incompetent to testify. Or, if it is
found that his opinion is not based solely on the study he had to make in the pursuit
of his calling or profession, but also oil own experience or actual observation, that
opinion necessarily acquires a higher value. Persons who pretend to he experts
without any special skill or experience may be exposed by questioning him about the
grounds of his opinion.
S 46 covers to a certain extent the ground taken by this section. By that section
any facts which support or are inconsistent with the opinion of an expert are relevant;
so that evidence of other facts as observed or proved by other persons is admissible
if it supports or contradicts an expert's opinion The Section iiosvcvcr refers to the
ground oil the opinion is lick] by the person who gives his opinion, and it
applies to a 'living person". In every case, Lhe grounds of opinion may he inquired
into in order to find out whether it is based oil or mere hearsay, humour,
conjecture, prejudice or oil unscientific or untenable data. They furnish an
important test of the value of expert evidence, This is done in examination-in-chief or
as is mor0 usual, in cross-examination.
CLiALMORs J. in Wood v. .5', 58 Miss 743: "Whether the witness he an expert
or non-expert, the grounds of his belief and his opportunities of observation
may always be elicited; and, whether the witness be of the one class or the
other, his testimony should he rejected by the court where it consists of a mere
declaration of opinion with neither learning, observation, nor acquaintance to
support it".
Opinion Must Be Founded oil Reasons Supported B y Facts.—Loit
MANSflFLD in Carter u: Boehm (I \V 131 593), 3 Burr 1905, 1918: "Great stress was
laid oil opinion of the (insurance) broker. But we all think the jury ought not to
pay the least regard to it. it is mere opinion, which is not evidence. It is opinion after
.,,.,U.-,,. f, C'S• j,..,, .
tL.)¼)1),Il)jlflJLL j j.iS SLIL, L.U.)S JL,Lj,&L..tL,¼)ii Li LfliiL.iJ J)ifl¼JSi.J }fl L,L,L,L,L,L 5)1

usage. It is an opinion, which, if rightly formed, could only be drawn from the same
premises from which the court and tile jury were to determine the cause".
'WASHINGTON J, in Harrison ' Rcuwrw, 3 Wash CC 587: "The mere opinions of the
witnesses are entitled to little or no regard, unless they are supported by good
reasons, founded oil which warrant them in the opinion of the jury. If the
reasons are frivolous or inconclusive, the opinion of the witnesses are worth
nothing".
"Opinion is no evidence, without assigning the reason of such opiiion" [DUNCAN
J, in Rain bier n Tryon, 7 S&R 941. "it is true that the mere opinion of witnesses who
have not the aid of science to guide them woUld not have any weight in such a case,
and would be generally inadmissible unless sustained by facts showing the opinion to
he (rue ............I find that tile witnesses generally said they thought the slave to be
unsound, and if they had stopped there such testimony ought to have been rejected;
hut they go on to fortify their opinion with facts showing some foundations for them,
 (irniitd.c of opinion, n'/uv, i eiercini. See, 51 961

and hence the y were adniissihie and were to be compared \ViLh the acts by the jury"
lO ' Nt',\LL J, in Seth/es c 13/w'k/tke-id, I MeMuli, 57: cited Wig s 1917]. "Neither
judge not .jury can know what credence to give to a mete opinioti, unless the reasons
on which it is loundcd are set forth. The 01) 1 1)101) of an expert may he contradicted by
showing that at another time he. had expressed a different opinion [Sanderson v.
Nashua 44 NS 492], and he may be asked as to the grounds upon which the change
of his opinion is brought about [People v. Donovan, 43 California 1621. While the
inquiry into the grounds and reasons of the opinion of an expert is more frequently
made 01) the cross-examination of the witness, yet there is no objection to its being
made 011 the direct examination [Diskenson c Fitchburg, 13 Gra y, 546, 557—Rogers,
2nd-Ed p 84].
/Wherc an expert was called and asked if he concurred in the statement of another
cf-pert witness, anti if not, to state wherein lie differed, the court held this method of
examination to he erroneous. The Court
"The mode sought to be adopted in eliciting the opinion of this witness, may
have the merit of being expeditious, but it might be attended with some unfairness
towards the witness himself, as well as to the opposite party. Witnesses called upon
to testify professionally should he left free to give their own individual opinion
upon the facts involved unconnected with, and untranielled b y the opinions of
others who may have beet) examined". [1Ionic v Williams, 12' Ind 324; Rogers,
s 37 2nd Ed PP 86, 87].
In Collier v. Simpson, 5 C&P 73, TtNDAL CJ, laid down the doctrine, that an
expert could be asked whether in the course of his reading lie had found so and so
laid clown, and that his judgment and the grounds of it could he founded in some
degree oil as a part of his general knowled ge. And the authority of that case
has been recognised and followed in America [Rogers s 19 2nd Ed p 46]. Although
on questions of professional skill an expert may state in a general form what would
be the proper course to pursue under the circumstances proved, he may not he asked
what his own couduct would have been under such circumstances; though the fact
that he has acted in accordance with his opinion may always he proved to enhance its
weight [see Phip 8th Ed p 385 and the case cited].
The opinion of an expert witness is admissible in evidence not only when it rests
on the personal observation and enquiry of the witness himself or on facts within his
knowledge, but also when it is founded on the case as proved by other witnesses at
the trial; and tinder s 51, when the opinion is admissible, the grounds on which it is
based are also admissible. But it is settled law that an expert may not be asked purely
speculative or hypothetical questions having no foundation in the evidence; in other
words, before the expert witness is entitled to give evidence on the hypothesis,
sufficient foundation for it must be laid by due evidence aliunde of the facts assumed
[Govt of Bombay v Mern'anji, 10 Born LR 907. See also Secv of S v. Pilling &
Co. ,26 H 1: 28 IA 121, See s 45 ante: "Mode of examination of experts and its
sppe".
(The opinion of an expert would carry little wei g ht unless it is supported by a clear
statement of what he noticed and on what he based his Opinion. The mere mention
that certain kind of tests known as Binct and Simon tests were applied and certain
results were obtained, might be relevant as a piece of evidence, but would not be
conclusiv/[Titli u Jones, 56 A 428]. An excise sub-inspector giving opinion on illicit
liquors must state his grounds so that the court may conic to its own conclusion as to
its correctness [Rainkaran, v. R, A 1935 N 13; Gobarc//tw, v S, A 1959 A 53; Paltu u
S, A 1961 M115].
 1 )(12 Sec. 52 Chap. IL—el the' I?cicvn,tcv of I'zci.r

I I/e[Sreph Art 64; P/tip 81/? Ld p38) Roip'rs.s 37 2nd Lil je $$ Laii'.v0t, 231,
W'ij ss 1917, 1922].

CHARACTER, \VHEN RELEVANT

S. 52. In civil cases character to prove conduct imputed, irrelevant.—
In civil cases, the fact that the character of any person concerned is such as
to render probable or improbable any conduct imputed to him is irrelevant,
except in so far as such character appears from facts otherwise relevant.

SYNoPSIS
Page Page
Principle and Scope [Character "Character' 966
Evidence Generally
Irrelevant] "Except in So Far As Such
962 Character Appears From
EXCCptiOnS to the Rule 963 Facts Otherwise
Character Evidence 965 Relevant" 966
Character of ''any Person Character in Actions for
Co nec rn ed' 966 Fraud 966

COMMENTARY
Principle and Scope. [Character Evidence Generally Irrelevant].—This
Section and the three that follow deal with the relevancy of Character evidence. The
Explanation to s 55 states what is meant b y the term 'character". It includes both
"reputation' and ''disposition'', ie the general credit which a person has obtained in
the estimation of the public or the people in the neighbourhood. Character may refer
to the character of the parties to a litigation or the character nt their witnesses. The
expression "any person concerned" may include both witnesses and parties, but
obviously it refers to the parties The section deals with the relevancy of character
evidence in civil cases. The character of a party to a civil suit is not relevant to the
decision of an issue arising in that suit and SO character evidence in regard to the
subject matter of the suit is prohibited.
This section does not deal with the evidence of character in reference to the
veracity of a witness which includes a party examined as a witness. As to witnesses,
their character ay always L impeached in lesi iheir veracity or to shake their credit
by injuring their character (see s 146). Ss 138, 140, 145, 148, 154 provide for
impeaching the credit of a witness by cross-examination [see Guntaka v Busetti, A
1954 AP 39 ] . The Credibility of a witness is always in issue and for this purpose, the
opposite party can deliberately challenge it in cross-examination by asking whether
he has committed any crime or been guilty of immoral conduct. But if lie gives a
denial, no evidence can be given to contradict him (s 153).
As to character of parties, there is a difference between character in civil cases and
character in criminal cases. Evidence of character, good or bust, is generally irrele-
vant in civil cases unless character is of the substance in issue. Character is of no
moment when the issue is whether a contract was entered into or not, or whether
there was payment of money or consideration. In action for scductibn the character
of the female for chastity is directly in issue and may be impeached either by general
evidence of misconduct or proof of particular acts (; see Best 11th Ed s 258). When a
person's general character is in issue, evidence may of course, be given of his general
character, whether in civil or criminal proceedings. But where character is not in
G;riuid of opinion, wireir relevant. Sec. 52 963

issue in an y civil case, cvidcnce of character cannot he given under this section with a
View to show that any conduct imputed to him is probable or improbable. It is the settled
policy of the law to reject character evidence of parties in civil cases in proof or disproof
of any act attributed to him. To admit character evidence would he to surprise the parties
and to create a prejudice or bias for or against a person and to protract trials to an
embarrassing length by the introduction of a mass of minor issues clouding altogether the
main fact in issue. The nile therefore is that each transaction is to be determined by its
own circumstances and not by the character of the parties. A fact involving grave moral
turpitude may seriously affect the reputation of a person, but it is irrelevant oil question
of existence or non-existence of a fact in a civil case. As observed in an American case:—
"The general character is not in issue. The business of the court is to try the
case and not the man. A very bad mail have a righteous cause" [Thompson
i' Church, 1 Root 3121.
Not only evidence of general character cxcludcl, but evidence of character in relation to
particular instances, is also not admissible. No doubt it is always open to the Judge to make
his own estimate of the character of the parties or witnesses from the facts and circumstances
placed before him and to base oil his opinion as to the probability or improbability of the
conduct attributed to them or as to whether their evidence is worth y of belief.
Evidence of character should always be distinguished from evidence of previous
conviction as also from previous acts of misconduct. As to when previous conviction
becomes relevant; see s 54, expin (2); s 153, Exception I ; s 43, illus (e); s 14(2), and
notes thereto.
Exceptions to the Rule.—There are however exceptions to the rule that character
is irrelevant unless it is in issue:—
(1) CHARACTER AS AFFECTING DAMAGES.---ln suits for damages, though
character is not directly in issue, character evidence is admissible in mitigation of
damages, eg breach of promise, seduction, adultery, defamation (see ss 55 and 12).
Evidence, of' good character is not however admissible in aggravation of damages as
there is always a presumption in favour of good character. Such evidence is
admissible only to rebut evidence of bad character if given by the defendant [Jones u
I, 18 LT 243; A'aracott v. N, 33 UP & Ni 61].
(2) CHARACTER OF ACCUSED—In criminal cases the fact that the accused
bears a good character is always relevant (s 53), though general evidence of had
character is not admissible. Evidence of had character becomes admissible in reply,
only when accused gives evidence of good character. It is not admissible by the
prosecution in the first instance [s 54].
(3) CHARACTER OF PROS ECUTRIX.—I n indictments for rape and other
sexual offences, evidence of general immoral character of the prosecutrix is
admissible [vide s 155 ci (4) and s 54 post].
(4) CHARACTER OF WITNESSES—Character of witnesses, whether party or
not, may he impeached to shake their credit [s 146; see also ss 153, 155]. Plaintiff
may be discredited by answers elicited in cross-examination that his antecedents
were bad [Guntaka i Buseni, A 1954 AP 39]. It is not open to the Crown to adduce
evidence of good character to boost the testimony of prosecution witnesses in
response to evidence from the defence alleging misconduct on the part of those
witnesses. [R. v. Hamilton, 1998 CLY 27 (Crim Div)].
(5) CHARACTER OF ANIMALS, PLACES AND THINGS—When the doings
of animals are in issue, it is relevant to prove the general character or habits of the
species, or of the particular animals, as well as doings of the same, or similar animals
 964 Sec. 52 ('hap. l!OI the Rclei'ancy of /'1cLv
Oil other Occasions ]I'liip 11th Ed p 239; Wig s 201 11 it is mater i
]. al to show the time
of an accident that a horse had the habit of shyin. instances may he pi-oved of such
shyine both before and alter the time of the accident I Thild e Raider, 8 Allen (Mass)
SI: see Brown i Eastern Counties fl y , 22 QBI) 391, ante s 141. The condition or
character of a place or thing may sometimes be proved by showing its Condition or
character at other times [Phi l ) 11th Ed p 2181. 'thus to show the dangerous condition
of' a dock that other drownings had occurred thereat [Moore e Ransoiii, 14 'Fl .R 539
CA] or to prove the disorderly character of premises, convictions against former
occupiers are receivable though the present one is admittedly respectable JR i:
Aliskin, 1893, I QB 275].

—Docs. In a case of house trespass a police officer took trained police dogs to the
place where a mail suspected to have climbed over the wall. He allowed them to
smell that place and then he took them to a g roup of' eight persons including the
accused. He stated that one of the dogs pointed to the accused but the other dog did
not do so as it was ill that day. The fact which the prosecution sought to establish was
that the smell of a certain person who had been in one place was the same as that
which the dog pointed out. Held that the behaviour of a dog is not admissible in
evidence [Said Ali e l?, A 1940 Pesh 47]. Such evidence is however admissible in
America on certain conditions. ''It is conceded by most courts that the fact that a
well-trained and well-tested bloodhound of good breed, alter smelling a shoe or other
article belonging to the (10cr of a crime, has tracked definitely to the accused is
admissible to show that the accused was the doer of the criminal act. Nevertheless in
actual usa g e, this evidence is apt to he highly misleading, to the danger of' innocent
men" [Wig s 177 and cases cited].
(6) CHARACTER AS AFFECTING STATE OF MIND—It seems doubtful
how far one person's character is admissible as evidence of another's State of mind.
On a char g e of homicide, the bad character of the deceased (R c Biggin,
1920, 1
KB 213), and previous assaults by the latter (R o Hopkins, 10 Cox 229), have been
received to show that the prisoner had reasonable grounds for apprehending
violence [Phip 11th Ed p 237]. So, in America, evidence of the character of and
threats by, the deceased is admissible on a plea of self-defence [Phip 6th Ed p 190
referring to Wharf, Cr Ev ss 69-84, 306, 758 and Wig ss 63, 110, 246-48]. In
actions for homicide or assault where the issue of sell'-defence was raised,
testimony has been sometimes received as to the quarrelsome or turbulent or
violent character of the accused. Such evidence may he admitted when it is shown
that the accused had knowledge of the fact, when it rests in doubt as to who was
the aggressor. Under these circumstances such evidence throws light upon the
intention of the accused and the reasonableness of his acts and may tend to
establish his innocence or the degree of guilt [Fields e S, 47 Ala 603 and other
cases cited Jones s 156]. As to relevancy of facts showing intention, &c see ante s
14. It has been held in England that in actions for malicious prosecution or false
imprisonment, the bad character of the plaintiff is not admissible to show
reasonable and probable cause oil part of the defendant [Newsanm e Carr, 2
Stark, 69; Cornwall r Richardson, Ry&M 305; Donning v. Butcher,
2 M&Roh
374; Phip 11th Ed p 237]. In America however it has been held that on the
questions that lie had probable cause and acted without ma1ie and also in
mitigation of damages, the defendant may show the general bad reputation of the
plaintiff [Calhoun v Bell, 136 La 149]. There is high authority for the view that in
actions for malicious prosecution of a criminal action, the plaintiff may in the first
instance prove his own good character. This is an exception to the general rule that
in civil cases proof' of good character cannot be received untill it is attacked; and
 (i,-non(/ o/ O/iF: ion, n/len ,cleianf.
Sec. 52 965
such testimony is deemed relevant in such cases as bearing directly on the issue of
probable cause (itlurpliv v. Dai'uds, SI Cal 7l)( and othcr CaSCS
cited Jones,
S 157].

Character Evidence.—( 1) A party's character is usual/v of no pro/7nliee un/ne.

Where the issue is whether a contract was made or broken, whether money was paid
or property improved b y iiiistakc, whether goods were illegally converted or a libel
published, there is no moral quality in the act alleged, or at any rate any moral quality
that may have been present is ignored b y the law; and moral character can therefore
throw no li g ht on the probability of doing or not doing. in toils involving violence or
actual fraud, such a moral Cl ualiLy may appear; hut apart Iromn these, it is (almost
without e.xccption) either non-existent or imniaterial. (2) "'here is additionally a
complex reason of Auxiliary Policy equally suflicie nt for exclusion. Admission of
character evidence would cause undue /m?Juc/ice, uiitiii,' surprise, and coli/siwi of
mind and the main controversy would he lost sight of in a great mass of minor issues
Wig ss 64, 29a].

As to character, Stephen says in his Introduction ( pp 167, 168): "Evidence of

character is, g enerally speakin g , a make-wei g ht, though there are two classes of
cases in which it is highly important: (1) \Vhere conduct is equivocal, or even
presumably criminal, In this case, evidence of character may explain conduct and
rebut the presumptions which it might raise in the absence of any such evidence. A
man is found in possession of stolen goods. He says lie found them and took charge
Of' them to give them to the owner. If he is a man of very high character this may he
believed. (2) When a charge rests on the direct testimony of a single witness and on
the hare denial of it by the person charged. A man is accused of an indecent assault
by a woman with whom he was accidentally left alone. He denies it. Here a high
character for morality on the part of the accused would be of great importance."
In general, in actions unconnected with character, evidence as to the character of
either party to a suit is inadmissible, being foreign to the point in issue, and only
calculated to create prejudice. For the same reason where particular acts of
misconduct are imputed to a party, evidence of g eneral character is excluded; but it is
otherwise where general character is put in issue [Doe d Parr i flicks, Per BULLER J.
cited Esp 5, Ros NP 18th Ed p 861. Where a part y 's character is not directly in issue
in the proceedings but is merely tendered in proof of some other fact, it is as a
general rule excludcd—noi because it may not in strictness by logically relevant, but
for reasons of policy and fairness, since no litigant can he prepared to protect himself
against imputation made without previous notice, and which may range over the
whole of his career. In civil cases, evidence as to character, thou g h character is not
directly in issue, is admissible in two classes of cases; (1) to impeach the credit of
witnesses; and (2) in reduction of damages [Hals 3rd Ed Vol 15 pars 530, 5321.

As evidence of genera] character can, at best, afford only a glinituering light when
the question is whether a party has done a certain act or not, its admission for such
purpose is exclusively confined to criminal proceedings. A distinction, however, (has
been taken) between cases where particular acts of misconduct are imputed to a
party; and those where his general conduct is put in issue; and though evidence of
character is rejected in the former, it has several Limes been admitted in the latter
class of cases [Doe i: hicks, per BULLER J, cited in Doe v Walker, 1801, 4 Esp 501.
Thus in an action for libel contained in an answer to inquiries respecting the
character of a governess, where the language complained of stated that the defendant
parted with the plaintiff "on account of her incompetency, and her not bein g ladylike
or good tempered", general evidence was given of her competency, good temper and
 966 Sec. 52 Chap. Ii- O f t/ i c Rcic y a,ic 1, 0 -JI'acts
manners, by witnesses who were her personal friends [ l'oU/th1W v. Poodle, 1842, 3
QB 5; Thy ss 354, 3551.
Character of "Any Person Concerned".—The expression 'any person
concerned" is wide enough to include any person, but here it reRrs to the character
of the parties to the suit and not to the character of witnesses, and represents the old
state of the law, according to which, in actions unconnected with character, ihc
character of either of the parties is irrelevant, and evidence introduced with the sole
object of exposing the character of a party to the view of the court, is excluded [Non
p 230]. See utile; "Principle and Scope".
[Ref Taylor ss 349-63; Steph Art 56; Best ss 257-64; Phip 8th Ed pp 17379; Wills
CirEv 6th Ed pp 272-79; Wigmore ss 52-80, Jones ss 148-58].
"Character".--The meaning of the term "character" as used in this and in ss 53
and 54 has been defined in the explanation to s 55. That Section must he read in
connection with s 52. Sec notes to s 55.
"Except in So Far As Such Character Appears From Facts Otherwise
Relevant".—In civil cases, evidence of general character of a party is not
admissible. But when relevant facts are proved in support of the points in issue, and
they in addition raise inferences as to the character of the parties, they become
relevant for the purpose for which they are given in evidence as well as for the
purpose of showing the character of the parties. (Nort p 230). When character is not
in issue, general evidence of character is excluded. Where a will was impeached for
fraud, the defendant was not allowed to prove his good character in answer
[Goodright v. Hicks, BNP 296 cited in Phip 11th Ed p228].
A person's character is not relevant in civil cases to show the doing or not-doing of
an act by him. 'But there are two other ways in which character may be involved,—
one an evidential question, the other not. (i) Whether a person's character is
evidentiary for any other purpose, eg a wife's character to show that the husband's
alienation of affection was a natural consequence. This use is less usual. (2) Whether
a person's character is under the legal principles and the pleadings of the case one of
the issues in it, eg the character of a plaintiff in defamation, either as expressly
brought in issue by a plea of truth, or as issuable in the assessment of damages; the
character of an employee as involving the employer's liability to a fellow-servant for
the selection of incompetent employees; the character of a house charged with being
used for immoral traffic; and so on. 1-lere no evidentiary use is made of the character;
it merely plays a part in th.c legal ssucs of the case, cad the cature of the iitigation
must he looked to in determining whether character is so involved (Wig s 54). As to
character as an issue in the case, see Wig ss 69-79. In civil cases evidence of a party's
character, though not directly in issue, may be admissible in reduction of damages.
Character in Actions for Fraud.—The doctrine has been announced ill few
cases that, if a party is charged with fraud or other act, involving moral turpitude and
the charge is based only on circumstantial evidence, he may rebut the charge by
proof of good character [Henri' it Brown, 2 Heisk (Tenn) 213 and other cases cited in
Jones s 154]. Greenleaf says: "And generally in actions of tort, wherever the
defendant is charged with fraud from mere circumstances, eviderc of his general
good character is admissible to repel it [Greenleaf s 54].But this View is contrary to
the weight of authority and does not seem to he based upon a recognizable principle
of the law of Evidence. Instances are constantly arising, both in actions oil and
contract, where the motives of parties are called in question; but this fact does not in
any legal sense, render the general character of such parties relevant to the issue. It is
hi criminal cases, piclious gool Jniiicier icfcioii(. Sec. 53 967
a kIr safer rule that, in conformity with general rules of evidence in civil cases, cacit
transaction s hould be ascertained by its own circu mstnnces and not by the character
of the panics [Quinali y n Temile, 176 Fed 167 and other cases citecf Jones s 1541.
The view stated is that which now prevails and many illustrations mighi be given in
Which such evidence has been held inadmissible, aithouch fraud and other
misconduct is imputed [Jones s 1551. A few illustrations may be given from Ameri-
can cases. The evidence has been held irrelevant ill actions to set aside the probate of
a will on the ground of fraud [l'otier n Webb, 6 Grccnl (We) 14 ]; for assault and
battery lMarkcy n Angel!, 47 AtI 8821; for embezzlement [Adaiirs v. ElseJfer, 132
Mich 1001; for fraudulent conveyance of property [ Van Sickle v. Shenk, 150 Ind 413];
for malicious prosecution [Rogers e Lamb, 3 Blackf (Ind) 155]; for procuring a deed
by fraud [Norris c. Stewart, 105 N C 4551. For other cases, see Jones, s 155 fri. The
Indian law is not otherwise. Where character is not in issue or relevant to the issue,
character evidence is excluded.

S. 53. In criminal cases, previous good character relevant.—In

criminal proceedings the fact that the person accused is of a good character
is relevant.
COMMENTARY
Principle and Scope.-\ -In criminal cases general evidence of good character of
the accused is always relvant and admissible in favour of the accused, though
general evidence of bad character is not admissible. Evidence of had character of
accused is wholly irrelevant and is admissible only in reply, ie, when accused has
gi ven\evidcnce of good character and also in cases where character is itself' a fact in
issue )[v. s 54]. Ss 53 and 54 should be read together. Such evidence of good
chacter is arnitted for the purpose of showing that it was unlikely that he should
have committed the offence charged. So in R n Rowton, Leigh & C 520, 540 : 10
Cox CC 25, WILLES, J, said:—
"It is a misiake to suppose that because the prisoner can only raise the
question of character, it is therefore a collateral issue. It is not. Such evidence is
admissible because it renders it less probable that what, the prosecution has
averred is true; it is strictly relevant to the issue".
In some cases evidence of general good character of the accused may explain his
eeduct or suggest an inference as to his guilt or innocence/ Evidence of good
character is of no help or use urless there is some legitimate doubt as to the guilt of a
person. ELLNBOROUGH, CJ, in(? v. Davison, 1803, 31 How ST 99, p 217:—
"Evidence of character is only of" weight where the other evidence is in een
balance, or where there is a fair and reasonable doubt of the prisoner's guilt,,',>)
In criminal proceedings a man's character is often a matter of importance in
explaining his conduct and in judging his innocence or criminality [Hcibeeh Md v. S,
1954 SCR 475 : A 1954 SC 511. Good character of accused is relevant in establis-
hing credibility of accused as witness [Tsang Kai Along Elke v. Public Proecutor,
(1994) 1 Singapore LR 651 (Singapore CA)]. It becomes of great importance in
weighing the probabilities in doubful eases; that is, when any reasonable doubt arises
as to the guilt of the prisoner, evidence of good character may turn the scale in his
favour. When, however, the evidence against the accused is such as to clearly
establish his guilt, no importance can be attached to evidence of good character [1? v
 96 8 Sec. 53 Chap. ll--O/ the l6'levenry oJflois
hone,, 106-1, 6 H ow St 'Fr 565, p 6131; unless the object is 10 plead iii hivoor of a
len cut sentence, or possibly the opposite. Norton cites the case of an Irish who
sunnncd up thus: "Gentlemen ol the jury, there stands a boy of most cxcelk'rit
cluiractei who has Stolen six pairs of silk stockin g s", when evidence was
g iven as to
the g ood character of a boy who had been clean !ound guilty of hell Nor(
In R c Davison, sup, ELuNnoRou(;tI p 23!
CJ, said to the jury:--
"If YoLl do not know which way to decide, charactcr should have an elThct.
But it is otherwise in cases which arc clear. If it could be permitted to operate
where a crime is clearly proved, it would always be brought forward: because
there is hardly any one who has not at some time maintained it good
charade. ............ If the evidence were in even balance, character should make it
preponderate in favour of a defendant; but in order to let character have its
Operation, the case must he reduced to that situation".
Wigmore is of opinion that the broad rule now being that accused's character is
"always admissible" in criminal cases, the above limitations do not exist. "Whether,
when admitted, it should he given weight
except in a doubtful ease, or whether it may
sutfice of itself to create a doubt, is a mere question
of the weight of evidence, with
which the rules of admissibility have no concern" [Wig s 561. Character evidence
under this section must be confined to evidence of general character or general
rcpu1aton and not the individual opwion of the witness (; see Expin to s 55) and also)
not character with reference to particular instances, unless
a question of intention is
involved. The worst criminal may have clone meritorious acts at some period of lie,
It should he noted that under ihe law in the Act character includes both reputation
and disposition, whereas under English law it is confined to reputation only
Explu to s 55 which should be read with this section]. [vide

General Evidence, of Good Character in Criminal Cases.— man's character

is often of importance in explaining his conduct"pnd judging oA its nnoccnce or
criminality. Many acts which standing alone, would be suspicious are freed from all
suspicion, when we comeo know the circumstances and the character of the person
by whom they are clone. r James Stephen gives, as an instance, the case of B being
found in possession of A's watch, and stating, by way of explanation, that he found it
and was keeping it to give it to A. The value of this explanation would depend
entirel y on the character and position of the person who gave it. As it stands, it is
worth very little, but given by an intimate friend of A and a man of respectable
character, it would effectually dispel any suspicion of a guilty intention. Evidence of
good character accorc]in p lv. is .'.'ays admLssibic, provided 01
course that it is appro-
pnate to the particular nature of the offence charged. Evidence c bad character is
also admissible, but only in the case and subject to the limitation provided in the
next following section [Cunn Intro xxxiii].

When the point at issue is whether the accused has committed a particular criminal
act, evidence of his general good character is obviously entitled to little weight,
unless some reasonable doubt exists as to his guilt: and, therefore, in this latter event
alone will the jury he advised to act upon such evidence. The inquiry, too, rnttst be
confined to the general character of the prisoner, and must not condescend to
particular facts; for although the common reputation, in which a person is held in
society, may be undeserved, and the evidence in support of it must, from its very
nature, be indefinite, some inference varying in degree according to ,circurnstances,
may still fairly be drawn from it, since it is not probable that a man, who has
uniformly sustained a character for honesty or humanity, will forfeit that character by
the commission of a dishonest or a cruel act. But the mere proof of isolated facts can
 !,i j ii bad C/lUFflCICI not ,elevant, c.vcepr in i'q.'/y. Sec. 54 969

allord to such prcsutiiplicn. 1NOUL' are all C\'il'', and the tilost COflsutttniaie villain
na y be able to prove that on saute occasions he has acted with humanity, fairness or
honour. In all cases, too, when evidence is admitted touching the general character of
the party, it ou g ht manifestl y to bear reference to the nature of the char g e against
him: as for instance, if he he accused of theft, that he has been reputed an honest
man: if of treason, a man of loyalt y . It should also relate to the same period as the
supposed offence; for as LORD H0LT once remarked, in R t: Suendsen, 14 I low St Ti
596: ''A man is not born a knave, there must he time to make him so; nor is he
presently discovered after he becomes one". Subject to these observations, evidence
of the defendant'sgeneral good character is admissible in all prosecutions whether
for felony or misdcmeanour [Tay s 35 I].
In criminal eases involvin g punishment as distinguished hem penalty [.4 G t: Bowman,
2 B&P 5321, the accused is allowed to prove his general good character (though not
specific instance thereof) either by cross-examination of the witnesses for the prosecution,
or in chief by his own testimony or that of independent witnesses. It has been held,
however, that such evidence does not stand on precisely the same plane as that concerning
the relevant facts going to prove or to disprove the issue, but that the jury only is entitled to
take into consideration the good character of the defendant when, weighing the other
evidence, one view of that evidence would he favourable to the accused [R u Broad/nirsi,
13 Cr App R 125, CCA; Phip 11th Ed. p 229]. When the accused in a bribery case
produces satisfactory evidence of good character, the improbabilit y of his acting in the
manner alleged must be taken into account [R u K/wrshid, A 1947 L 41 C]. [Ref Th s 357,
Wigs 55; Phip 111/i Ed, p 229; Best 11th Ed, s 261].
A senior lawyer filed an affidavit certifying the good character of the accused. The
latter was an assistant public prosecutor. The Supreme Court held that the evidence
was of no use in the circumstances of the case. There was other evidence. Rasain
4bdulJa Haftz a. State afMa/wras/itra, AIR 1998 SC 1451 : 1998 Cri Li 1422.

S. '54. Previous bad character not relevant, except in reply.—In

criminal proceedings the fact that the accused person has a bad character is
irrelevant, unless evidence has been given that he has a good character, in
which case it becomes relevant.
Explanation 1.—This Section does not apply to cases in which the bad
character of any person is itself a fact in issue.
Explanation 2.—A previous conviction is relevant as evidence of bad
character.

SYNOPSIS
Page Page
Principle and Scope 970 Explanation 1: [When Bad
Evidence of Bad Character Character is Itself a
Becomes Admissible to Fact in Issue] 973
Rebut Evidence of Explanations 2: [Previous
Good Character 971 Conviction When Relevant] 974
Kind of Character 972 'Unless Evidence Has Been
Questioning the character Given That Accused
of prosecutiort witness 973 Has a Good Character" 974

1. Section substituted for the original section by s 6 of I E Act 11872] Am. Act, 3 of 1991.

970 Sec. 54 Chap. /l—O_/ the Re/c 'aiic' of /'n 'is

Page Page
—Evidence of Bad Character Exception to the Rule that Evidence
by Prosecution by of Accused's Bad Character is
Cross-examining the Accused 975 Inadmissible in Criminal Cases,
—Previous Bad Character [Admissibility of Pres 0US
Not Relevant, Except in Reply 975 Conduct or Similar Facts] 979
Opinions of Reputation &c 976 Evidence of Previous Conviction
When Ma y he Put in
Relevancy of Bad Character
—Its object 980
or Previous Conviction
When Bad Character is Itself - Previous Conviction May Be
a Fact in Issue' 976 Relevant Otherwise Than
Under This Section 981
Cross- Ex ami nat i on as to
previous conviction 978 Character of Prosecutor If
Relevant 98!

COMMENTARY
Principle and Scope.—It has been seen from the preceding sections that general
evidence of good character, is always relevant in criminal cases, and the accused is
always entitled to tender such evidence. Not so, with re g ard to general evidence of bad
character. This section embodies the rule that evidence of bad character cannot in the
first instance he given for the prosecution and against the prisoner. When character is
not in issue, to admit character evidence in proof or disproof of other issues would he to
cause surprise and to create a prejudice or bias for or against a person. In R v. Rott'ton,
Leigh & C 540: 10 Cox CC 25: 34 LJMC 57, WuLES, J, said:—
"It (character evidence) is strictly relevant to the issue; but it is not admissible
on the part of the prosecution because (as my brother Martin says) if the
prosecution were allowed to go into such evidence, we should have the whole life
of the prisoner ripped up, and, as has been witnessed elsewhere, upon a trial for
murder you might begin by showing that when boy at school the prisoner had
-,I

robbed an orchard, and so oil the whole of his life; and the result would be
that the man oil trial might be overwhelmed by prejudice, instead of being
convicted by that affirmative evidence which the law of this country requires. The
evidence is relevant to the issue, but is excluded for reasons of policy and
humanity; because although by admitting it you might arrive at justice in one case
out of a hundred, you would probably do injustice to the other ninety-one".
A magistrate looking into the cenfdeii1tl police record oi' die accused and
allowing his judgment to be influenced thereby violates the fundamental principles of
criminal jurisprudence [Gaya v. R, A 19460233].
(I) Just as every person is assumed to he sane, he is also assumed to he of normal
moral character. An accused starts with a presumption of innocence. His bad
character is not relevant unless he g ives evidence of good character in which case by
rebuttal, evidence of bad character may be adduced [Rainlakhan v. S, A 1977 SC
1936]. With a view to rebut the presumption sought to be raised by giving evidence
of good character, the prosecution may also cross-examine the defence witnesses as
to character (see s. 140). By offering evidence of good character, the accused
challenges or invites an inquiry and thereby enables the prosecution-to give evidence
of his bad character. When an accused offers evidence of good character, that
character must concern the specific trait involved in the charge find the counter
evidence by the prosecution must also relate to the act charged [see post: "Kind of
Character"]. Evidence of bad character in the first instance by the prosecution
instead of leading towards establishment of guilt; would only injure the accused by
Previous had character !tot relevant, vccp1 in rep/v. Sec. 54 971

cleating a prejudice against him. For, a man's guilt is to he established by proof of

the lads and not by proof of' his character l? i'. Tiii/nuj7ehl, 10 Cox 1; Ainnia n 1?, 42
C 958, 108!). Evidence of character, when property admitted goes to the credibility
of the witness I A' i: Longman, 1968,
2 All ER 761].
(2) Evidence or bad character becomes also admissible, when it is itself a fact in
issue (v Lpin )). The section has no application when the bad character of any
Pei-soil is itself a fact in issue, eg, when one is charued undcr the preventive Sections
of the Cr P Code. When evidence of bad character becomes relevant' either on
account of the tender of evidence of good character by the accused or on account of
had character being itself a fact in issue, a previous conviction becomes relevant as
evidence of had character (v Llvpin 2). Where upon the trial of a person accused of an
offence, the previous commission of a similar offence becomes relevant for the
purpose of showing existence of any state of mind, eg, criminal knowledge or
intention, the previous conviction also becomes relevant (see s 14 E'xpin 2 and notes
and the statement of law by LORD IIERSCUELL in Makin u Au-Gent quoted ante:
"Principles of admissibility of similar acts and its qualification") S 54 as it stood
before its amendment by s 6 of Act 3 of 1891 departed From the rules of English law
and treated previous conviction of any offence as relevant in all cases. The
amendment was in consequence of the decision in P i: Kartick CA, 14 C 721 (see
notes post under the heading "Explanation 2").
S 54 does not override ss 8, 9, 11, 14 and IS—case law ref [Lcikslimandas c. S. A
196$ 13 400]. S 54 does not relate to the manner of proof of previous convictions, and
relates only to the proof of previous convictions in certain cases [Pokar e R, A 1941
S 173: 1941 Kar 3981.
On charges of rape or attempt to ravish, evidence may be given of the general had
character of the prosecutrix [see s 155(4)].
Evidence of Bad Character Becomes Admissible to Rebut Evidence of Good
Character—This section as it now stands (after amendment by Act 3 of 1891), is
taken from Taylor s 352 which runs as follows: Although the defendant, from
motives of humanity, is allowed this reasonable indulgence, (that is, allowed to give
evidence of his general good character in all prosecutions whether for felony or
misdemeanour), the prosecutor cannot in the first instance, have recourse to the same
loose testimony for the purpose of establishing the guilt of the accused; but if with a
view to raising a presumption of innocence, witnesses to character are called for the
defence, the counsel for the Crown may then rebut this presumption, by cross-
examining the witnesses, either as to particular facts, or, if they deem it essential, as
to the grounds of their belief. Evidence of general bad character will also be
admissible, though it is seldom resorted to in practice. Moreover, in most trials for
felony, and in some for misdemeanour, if defendant endeavour to establish a good
character, either by calling, witnesses himself, or by cross-examining the wilnesses
for the prosecution, the prosecution have a right to prove the specific fact that the
prisoner has actually been convicted previously [Fay s 352].
Where, however, character is tendered in proof or disproof of some other issue, it
is, in general, even though logically relevant, excluded on grounds of public policy
and fairness, since its admission would surprise and prejudice the parties by taking
up the whole of their careers which they could not possibly come into cotirt prepared
to defend without notice, [R v. Roivion, sup]. Thus in criminal cases, to prove that the
defendant committed the crime charged, evidence may not he given either that he (I)
bore a bad reputation in the community )R v. Roivron, sup] or (2) had a disposition to
commit crimes of that kind (ibid); or (3) had no other occasions committed
 972 Sec. Chap. Il—Of the leleiaiu' of PacLr
);, lieu/ar acts o the Sal IC class cvincirig such a disposition( 1i'ii, per \i 1.1
tS J, at J)
67; Phil) 11th Ed p 228]. [As to cvidcnce of particular similar facts. see ss I '1. 5 wile
and also post].
Alter a delcndant liasuttc mptcd to show his g ood cimmcier in his own aid,
p/oe'titon ,nay i12 rebuttal oiler as evidence his bad character. The true reason br
[his sccms to be not any relaxation of thc principle just mentioned, ic, not a
permission to show the defendant's had character, but a liberty to ret ute his claim ilial
he has a good one. Otherwise a defendant, secure from rehitation, would have to
clear an unscrupulous license to impose a false character upon the tribunal [Wig s
58].
The fact that the accused has a had character is not irrelevant under s 54 when the
evidence relating to it is given for the puq)use of showing that the accused had a had
character and was therefore likely to eomrnil offences of the kind for which he has
been convicted [Datilat n R, 2 LLJ 653]. Objection being taken that evidence in the
nature of had character was admitted to the prejudice of the accused, the Supreme
Coin t held that the evidence which disclosed certain unpleasant things about the
accused was examined by the Court in order to ascertain the motive of the murder
and not for proving guilt ]Man gal n S, A 1957 SC 199: 1957 Cri I .J 325 The object
].
of s 54 is to lay down that evidence of had character includin g a previous conviction
is, as a rule irrelevant "to help to establish an accused's guilt", but not to lay down
that it may not he taken into account in passing sentence [Suban n R, A 1929 M
306]. Under s 236 Cr P C in sessions trials and s 248(3) Cr P C in warrant cases no
enquiry about the charge of previous conviction for the purpose of enhanced
punishment shall take place until alter the accused has either been convicted or found
guilty. The principle underlying this provision, viz, that knowledge oh previous
conviction should be excluded when weighing the evidence is also to be found in s
54 1 Mg E Cvi v. B, 81 IC 106: A 1924 R 1061.
As to the mode of proving a previous conviction see s 248 Cr P Code. The Court
should not act upon admission of accused [Dayamm i.. R, A 1929 L 768 Previous
].
conviction or the identity of the accused cannot he proved by the mere production of
conviction slip [R v. Slik Abdul, 43 C 1128; Pakar o B, 1941 Kar 308: A 1941
S 173]. As to proof of previous conviction by finger-print, see Ramilas v. R, 21 CWN
469.
[Ref lhv ss 349-63; Step!! Arts 56, 57; Best, ss 256-83; Wi,t'more, ss 52-80: Phiii
111h Edpp 229-36; Ros (rizL dO-/i.
Kind of Character.—Under the English law, evidence of character of accused,
whether for or against him, must bear reference to the trait involved in the charge
against him, eg, honesty in charges relating to dishonesty; chastity or morality in
regard to women in charges of rape. Evidence of honesty or that he paid his hills
regularly would be irrelevant oil charge of rape or cruelty. In R r Rowton, Leigh &
C 520, 537, MARTINt, B, said that it must be "good character with respect to the
species of crime charged against him". The law under the Act does not appear to he
otherwise. It should also relate to a period of the supposed offence [R n Swendson,
14 How St Tr 596]. In Dover's Trial, 6 How St Tr 539, 552, (cited Wig s 59) a ease
Of seditious publication—a witness testified that the defendant was a ralthful member
of the train-band. HYDE, LCJ, said:—
"Do not mistake yourself, The testimony of your civil behaviour, going to
church, appearing in the trained bands, going to Paul's, being there at common
scrvice,—this is well. But you are not charged for this. A man may do all this,
 Previous 1)0(1 charactcrilof ic'Ierwii, escepi in ICJIIV. Sec. 54 973

and yet he it naughty uian ill printing abusive hooks, to the misleading of the
king's subject".

When, however. "an accused puts his character in issue' he heist he recarded as
putting the whole of his past record in issue. He cannot asserl his good conduct in
certain respects without CxpOsino himself to inquiry about the rest of his record so far
as this tends to disprove a claim of good character" lp('r LORD SIMON in St irla,ul
DPP. 1944 AC 315, 324].

Where [he honesiy of the accused was a principal fact in issue because he was
charged with false accounting and obtaining money on forged instrument and, there-
fore, the prosecution had the right to lead evidence as to his character, and they tried
to expose him by questioning him about the contents of his legal aid application, it
was held that his legal-aid application ought not to be used for the purpose of cross-
examining him as to his credit because that application was not an evidence in the
case. Since it could not he said that if' the cross-examination had not taken place the
jury would still have convicted him, he was entitled to be acquitted. [R v.Stabbs.
(1982)1 Al] ER 424 CA].
The accused woman was char g ed with affray and assault occasioning actual bodily
harm. She confirmed in evidence that she had never been convicted of an offence of
violence. This amounted to an evidence of good character and the prosecution sought
to counteract it by questioning her about her pending trial for an offence of violence.
It was held that the evidence of a pending trial was improper because that is still not
an evidence of had character. [R v Smith Lioanne, 1989 Crim LR 900 CA].

Where one accused person put his character in issue as against that of his co-
accused in a cut-throat defence and failed to give evidence, it was held that his co-
accused was entitled to cross-examine prosecution witnesses about the defendant's
character including establishing the criminal record of the accused. [R i: Doug/ass,
1989 RTR 271 CA; Lui Mei Line. The Queen, (1989) 2 WLR 175 PC].
Questioning the character of prosecution witness.—Where an accused person
attacks witnesses for the prosecution and suggests that they are not reliable, he is not
there by putting his own character in issue, since he is not stating directly or
indirectly, any thing about his own character, and accordingly there is nothing, so far
as his character is concerned, which the prosecution is entitled to rebut either by
cross-examination or by independent, evidence. [R e de vere, (1981) 3 All ER 473
CA]. The court added that where an accused person states from the dock that he is of
good character he is putting his character in issue and at common law the judge may
allow in the exercise of his discretion the prosecution to call evidence to the contrary.
The court followed [if v. Gadbury, (1838) 8 C&P 676 and [R e Butterr yasser, (1947)
2 All ER 415].

See also post, S 55: "Kind of Character".

Explanation 1: [When Bad Character is Itself a Fact in Issue]. According to
this Explanation the section does riot apply to cases in which the bad character of any
Pei - soil is itself a fact in issue, ic when the charge itself implies the had character of
the accused. In other words, the had character of a man is relevant, when lie is
char g ed under sonic of the preventive sections of the Cr P Code, that is to prove that
he is _a man of dangerotts character within the meaning or s 110 (g) of the Code of Cr
Procedure or that lie is likely to commit a breach of the peace. Bad character is also
relevant in prosecutions tinder the Criminal Tribes Act (Ac. 27 Ui' 1871). This
explanation is to he read with Chap VIII of the Cr P Code under which persons of
bad or dangerous character may be called upon to give security for keeping the peace
974 Sec. 54 Chap. 11—Of the RL'levaric\' of /acts

for good behaviour. In such cases in the interest of fair trial it is desirable that a trial
judge should know that the accuscd person is ci had character, and, tlicreloi'e, it is
perniissihlc for the trial judge to have before hint during the trial the antecedents of
an accused who is of bad character, so that the judge can, e.g. then prevent cross-
examination of crown witnesses that will let in the character of the accused [R n
Ewing, (1983)2 All ER 645 CA].
Explanation 2: [Previous Conviction When Relevant].- --This section as it stood
originally ran thus. "In criminal proceedings, the fact that the accused penson has
been previously convicted of any offence is relevant; but the fact that he has a had
character is irrelevant unless ..................(The remaining portion was the same as
now, up to Ecpin. I). So the previous section while it excluded evidence of bad
character in the first instance, treated previous conviction of any offence as relevant
in all criminal cases, with a view to prejudice the accused or to suggest an inference
as to his guilt with regard to the offence charged. The reason for this departure from
the salutary rule of English law as given in the First Report of the Select Committee
was that the authors of the Act were unable to sec why a prisoner should not be
prejudiced by such evidence when true. In spite of the clear wording of the former
section, evidence of previous conviction was not admitted in Roshun Dosad e R, 5 C
768, where it was held that except t.tndcr very special circumstances, the proper
object of using previous conviclion is to determine the amount of the punishment to
be awarded should the prisoner he convicted of the offence charged. As to previous
convictions see also R n Shiboo, 3 WR Cr 38: R v. P/ta! Cliand, 8 WR Cr 11; R ':
T/takoordas, I WR Cr 7, which were decided before the passing of the Evidence Act.
Under the section as it then stood, a Full Bench of the Calcutta 1-u g h Court held, ill
v. Kartick, 14 C 721 that evidence of previous conviction was in all cases admissible.
to prove the guilt of the accused so long as the section remained unaltered. It was in
consequence of the decision that the section was amended by Act 3 of 1891. Expin 2
to s 14 was also sttbstituted by Act 3 of 1891. The present section is in accordance
with the English rule (v ante) and also the view expressed in Roshun Dosad o R, sup.
See further, post.
"Unless Evidence Has Been Given That Accused Has a Good Character".--
The words "unless evidence has been given" do not mean that unless evidence of
good character has been given by his own or others' independent testimony. The
prosecution is invested with the right to offer evidence of bad character when the
tccuscd elicits evidence of good character by cross-examination of the prosecution
witnesses IR i Gadhury, 8 C&P 676; R v Shriinpton, 2 Den CC 396]. But a prisoner
cannot be said to be endeavouring to establish a good character merely because a
witness whom he called, voluntarily and probably against the prisoner's own desire,
made it statement as to his good character and that does not entitle the prosecution to
question the prisoner as to his previous conviction [R v Reid, 1923 KB 104]. A
statement not voluntarily made by all but extorted by repeated question in
cross-examination cannot he treated as evidence given by accused of his good
character and does not justify the prosecution in letting in evidence of his previous
convictions [R v. Beecham, 1921, 3 KB 464]. Evidence of good character may be
rebutted by the prosecution by cross-examination [Stir'and v. DP, 1944 AC 315,
3271 or by independent evidence.
Where an accused has not put his character in issue, but has merely attacked the
character of the prosecutor in cross-examination, evidence cannot be called by the
prosecution to prove that he is a man of bad character [R v. J3utterwasser, 1947, 2 All
ER 415 CCA]. Where art accused, charged with indecent assault on a respectable
married woman in her house, called a witness and examined her about his character
 J',erwu.r had character 11(1! relevant, ('.Vr'Jlt in reply. Sec. 54 975

in regard to women, quite apart from the case, held he was properl y cross-examined
as to his had character. There is no such thing as putting half your character in issue
[R v Winfield, 1939, 4 All ER 1641.
—Evidence of Bad Character b y Prosecution, by Cross-exarniiiing the
Accused.—In England the competency of the accused to appear as a witness for the
defence under the Cr Evidence Act 1898 has introduced changes in the law dealing
with his cross-examination. He may now under s 1(/) of the Act be asked questions
tending to show that he has committed or been convicted o" offences other than the
offences with which he is charged, if he g ives evidence of his good character or
makes imputation on the character of the prosecutor or his witnesses; in the latter
case the character of the prosecutor or his witnesses is not, however, a relevant fact
under this section. In a charge of manslaughter with intention to procure miscarriage,
the prisoner went into the box and gave evidence of good character. Thereupon he
was asked by the prosecution whether On a previous similar charge he was acquitted
and he replied in the affirmative—held that as the prisoner had given evidence of
good character, he could he asked question tending to show that he had committed or
been convicted of or been charged with the offence, but subject to the consideration
that, the question asked of him must be one which was relevant and admissible in the
case of an ordinary witness. The rule that evidence of bad character may he given
when evidence of good character has been tendered is subject to the consideration
that the evidence sought to be given must he one which is relevant and admissible.
Evidence cannot be given which is irrelevant or has nothing to do with the issue
which the court was endeavouring to decide. The fact that the prisoner had been
acquitted on a previous charge of murder or manslaughter was not relevant and did
not send to destroy his credibility as a witness. The questions and answers were
therefore inadmissible and the conviction was quashed [Maxwell ' DPI', 1936 AC
309].

Even if the defence necessitates imputation on the character of the prosecution

witnesses the accused still exposes himself and there is no rule that the judge must
exercise the discretion in his favour [Selvev c DDP, 1968, 2 All ER 497 HL].

S 315(J) Cr P Code which permits the accused to examine hinise]!' as a witness for
the defence puts the law on a par with that in En g land and so he can be cross-
examined like any other witness (See Sarkar's Cr P Code, 4th Ed s 315(1)). He can
therefore he cross-examined about his previous commission or conviction on a
similar charge in order to rebut evidence of his good character when offered, As to
eriminating questions to the accused, see notes to s 132 post.
—Previous Bad Character Not Relevant Except in Reply.—Evidence of bad
character is not admissible in the first instance [R n Jiehari, 7 WR 7]. Evidence of
character and previous conduct of a prisoner being matters of prejudice, and not
direct evidence of facts relevant to the charge, ought not to be allowed to go to the
jury [I? n I3ykant, 10 WR Cr 17; see also 1? : Kulwn, 10 WR Cr 39 and AliMyin , nR
5 LBR 4: 2 IC 249]. A statement elicited from prosecution witness in cross-
examination under s 154 as to the opinion of another witness about the bad character
of accused is not evidence of bad character, when the statement was elicited with the
collateral object of showing that the witness was resilin g from his former statement
before the committing magistrate [Nital ': R, 1939, 1 Cal 337]. Where evidence of
bad character (viz that statement of approver that accused used to go about together
committing theft and burglary) and previous conviction has been admitted contrary to
s 54, the judge should warn the jury that they should exclude the evidence from their
minds [Kailash i R, 48 CI.J 481]. Evidence as to general dishonesty of character is
976 Sec. 54 ('/io,, //----Of i/ic Releroi,cy of l'thL

101 admissihle for thc purpose of raising a presumption of dishonesty in the

particular case under trial I Naga r 5, UBR (190$) and 2nd Or Evidence, p I]. The
complaint was that, the accused came to the complainant and attacked him by
complaining that he had made report to the police---He/el that evidence of it

officer that the aCcLised was under police surveillance is not admissible under s 54
]Pliekan v. 5, A 1931 P 345: 133 IC 4491. As to the improper admission of the
previous bad character of the accused, sec S n Gopal Jiakur, 6 WR Cr 72].
The prosecution may rebut evidence of good character, either by cross-
cXammation or by independent testimony [R o Gadbu rv,suj,; R v Slirioipto;r, sup].
The accused's witness may (though this is not usual) he cross-examined as to their
means of knowledge, grounds of belief, or SuspiciOnS of misconduct oil part,
since the last named are integral parts of character [R v Wood, 5 Jur 225; Phil) 8th Ed
p 175]. Evidence of previous conviction amounts to evidence of bad character and is
not admissible unless and until accused produces evidence of good charactci- I 7'ka
A/or n R, 5 PLJ 706: 60 IC 331].
In it ease tried tinder Ch XIX Cr P Code, when the accused leads evidence
of good character by way of defence, tile prosecution cannot as of ri g ht lead
rebuttin g evidence, for no such privilege is conferred by the Code. But court may
allow such rebutting evidence in its discretion, if it thinks just [Rainasii'wni 'I'.
Raniaii,iga, A 1930 M 448]. Same is also the position with regard to sessions trial
under Ch XVII].
Opinion of Reputation etc.—The opinion of ailexcise officer that ail
charged with illicit sale and possession of cocaine had the reputation of bein g a
dealer in cocaine oil very large scale is inadmissible lBatosiinwti t'. R, 53 C 707-'
30 CWN 854]. History sheet kept in policestation is not admissible in proof (If luau's
character as it is based on hearsay ]Kamal n S, A 1959 C 3421.
Relevancy of Bad Character or Previous Conviction When "Bad Character is
Itself a Fact in Issue".—There appears to he some divergence of opinion whether
evidence of previous conviction of clacoity alone wotild be relevant in a charge tinder
S 400 Penal Code or whether previous conviction of any other offence, eg theft,

burglary, binding down under s 110 Cr P Code &e would also he relevant. Previous
Commission or conviction of' the offence of dacoity was held admissible in such a
case under s 14, Expin 2, but not convictions subsequent to the time specified in the
charge [5 v Naba Kumar, I CWN 146]. Evidence that the accu s ed had committed
crimes other than dacoities were however excluded in a charge under s 400 PC [Pub
Pro v Bonigiri, 32 M 179: 5 MLT 100; see R v. Slier Md, 46 B 958]. But in a case
under s 401 PC it was held that where the 0111cr evidence has established association
for habitually committing theft, evidence of previous conviction whether for offence
against property or for bad livelihood has always beer) admitted not as evidence of
character, but of habits. Of such evidence, convictions for bad livelihood would be
more cogent than isolated theft [Bonai r: R, 38 C 408 : 15 CWN 461 (Mankurci v
27 C 139 doubted and distd; R v. Naba Kuina,; sup folld); see also Lelu Mo/lou V. R,
52 C 595; R u Parblzudas, 11 Born HC 90; K/iilawan r: 5, A 1928 C 430; R : Kaseni
Ali, 47 C 154; Motjrdwr r 5, A 1925 B 195; Beni Mad/ia v. 5, A 1933 0 355;
Bach/in v. 5, A 1930 0 455; Anidu Miyan v. R, A 1937 N 17 FB; Bhijia Shari' n 5, A
1956 Or 177]. The majority view appears to be that in a charge tinder s 400 PC
previous conviction is admissible for proving habit and association. As habit is
equivalent to character, character is itself a fact in issue in a charge under S 400 PC
[see Bhjnua Show, v. 5, sup where cases reviewed]. In cases under ss, 400 and 401 PC
the general had character of the accused is not a fact in issue. The fact in issue is a
 PICIiOl(S had chal .flctcr not re/elan!, e.vee / ) t reply.
(0 Sec. 54 977
particular trait of bad character, viz association or habitually committing robbery or
-
theft. Evidence c all civen of that particular trait, but not of general had character.
eg that the accused is niurdcrcr or a cheat I lJoi Cliaturi
n S, A 1960 U 51.
In the absence of direct evidence, the purpose of association may be established by
proof of acts from which this may be reasonably inf e rred
[l'ir Baksh o 1?, A 1923 L
327]. As to the amount of cvidence necessary to substantiate a charge under s 400 1 P
Code, see Kader o R, 16 CWN 69; llhima Shaft o 5, sup.
Evidence showin g the had
character of the accused, or his participating in the commission of offences other
than the offence with which he is charged is not rendered inadmissible by s 54 if it is
Otherwise relevant LSaroI R, 59 C 1361).

In order to establish the guilt of the accused of joint possession of cocaine,

evidence of previous conviction of trafficking in cocaine and that a history sheet had
been opened by the police against him as a suspect, is not admissible under s 54
[Rahim i: R, A 1928 0 2151. Previous conviction must he proved strictly and in
accordance with law. Although general statements, eg accused are all pick-pockets
and that every one is afraid of them, may not be wholly inadmissible, no court should
act on such evidence without testing the statements and obtaining particulars FR v.
Sheik!) Abdul, 43 C 11281.
[In England where a prisoner is indicted not only for an offence but also for
heine a "habitual criminal", the court proceeds to the trial of the second charge
alter conviction on the first, and oil trial the court may, if it thinks fit, permit
evidence to be given of de prisoner's general character and repute as a part of
the case for the prosecution (Prevention of Crimes Act, 1908, 8 Edw VII, c59 s
10; see S u: Turner, 1910, 1 KR 346: Powell Ev 10th Ed
p 12 1). S 10(5) of that
Act runs thus: "Without prejudice to any right of accused to tender evidence as
to his character and repute, evidence of character and repute may, if the court
thinks fit, be admitted as evidence on the question whether the accused is or is
not leading persistently a dishonest or criminal life". In a prosecution under S 4
of the \Tagrancy Act, 1824, 5
Geo IV, c 83, genera] evidence of had character
may be given to prove intent].

For the purpose of s 116 Cr P Code, the fact that the person is a habitual offender
may be proved by evidence of general reputation and otherwise; [see s 116(4) Cr P
Code]. Hearsay amounting to evidence of general repute, is admissible for the
purposes of the proceedings under Chap VIII Cr P Code [R v. Raoji Pal, 6 Born LR
34; see Sarkar's Cr P Code, 4th Ed s 1101. Such evidence of general repute must
necessarily consist largely of 'hearsay'. Thus, a witness may depose "I believe the
accused to be a habitual thief, and that is what persons of the neighbourhood
generally say about him". This is admissible [R r: Kumera, A 1929 A 650: 51 A
275]. Evidence of cases in which the accused is suspected is not evidence of general
repute within s 117 (now s 116) [Rn/mom Ali u: R, 20 IC 231; Rajnarain i R, A
1927
A 394], but it does not necessarily follow that such evidence is not admissible for
other purposes fR ': Kumera, Sup].

Evidence of previous conviction is relevant in proceedings under s 109 Cr P Code

[Ram/al o I?, A 1942 0 246 ] . A
charge under s 110( [now (g)] Cr P Code, cannot
be proved by
general reputation but can only he proved by the evidence of the facts
charged [Kalai it R, 29 C 779: see also
Rap Singh it R, I AU 616; Wa/un o R, 11
CWN 789; Parasulla n R, 13 CWN 244; Ak/may it
R, 5 CWN 249; R v. Indar, 40 A
372; Ranga Reddi v. R, 43 M 450:
38 MLJ 97]. When a person in solely charged
under s ll0( [now (g)] of the Cr P Code, evidence of general repute is inadmissible
to prove that he is a desperate and dangerous character. A provision of law which is
97$ Sec. 54 Chop. ll—Of the Relet'oncy of licts

an exception to the general rules of evidence must he only applied to the case to
which it is confined by the legislature. No argument can the]-Clore be adduced from
the admissibility of evidence of general repute under s 117 (now 116) of the Cr P
Code [Mw/in I'illai t'. R, 34 NI 2551. A person may be allowed to depose that the
accused has a geneal reputation as a hahiwal thief or robber, but he should not be
allowed to state that the accused is a 'had character' or has the reputation of being a
'bad character' [R v. Kurwa, A 1928 A 3571. But when the statement that he is a 'bad
character' is immediately followed by saying that lie habitually commits theft, it
becomes admissible as evidence of general repute. A witness can say that lie himself
SuSpecis an accused person of having committed a certain offence, although evidence
cannot he given that the accused has been suspected by other persons [R Kumera,
sup]. The general reputation of a man amongst the community may no doubt he
evidence in inquiries under s 110 Cr P Code [Mg Mawig v. Ma Scm, A 1940 R 181:
1940 Rang 562]. In a prosecution under s 110 it is not necessary that witnesses who
speak to the general reputation must he residents of the same place and a stranger
could find out what the general reputation of a person is [In re Perne, 1938 Mad 720:
A 193$ M 591; Sandeo v R, A 19420 356].
When a person is called upon to furnish security to keep the peace, evidence of
general repute cannot be made use of to show that such person is likely 10 commit a
breach of the peace. It is only in the case of a person who is a habitual offender, that
the fact of his being so may be proved by general repute R v. Bidyapati, 25 A 273;
see also Raj Js,j v. R, 23 C 621]. This case has been distinguished in Chintaivan R,
12 CWN 299, where it has been held that the evidence of general reputation coming
from the people of the villages where dacoities had taken place, is certainly to he
treated as evidence of general repute.
On a charge of keeping a common gambling house under the provisions (it' the
Bombay Act (4 of 1887), previous convictions under the same Act are relevant to
prove the intention and knowledge which the offence charged involves [R ly. Alloo-
Miya, 28 B 129 : 5 Born LR 8051. In a case under ss 325, 395, 402 I P Code,
evidence of previous conviction in order to show the state of mind is not relevant
[Teka Alt ir R, 5 PLJ 705: 60 IC 331].
Order under s 118 (now 117) Cr P Code is not admissible against a person
proceeded against wider s 110 Cr P Code as such order is not a "conviction" within
Em/n 2 fl? v. Kui-wa, sup; R v. Kumera, sup] but it is admissible on other grounds.
The fact that a person has been bound o'er may he stated and proved as one of Lhe
grounds on which the witnesses to general repute believe the accused to he habitual
offender [R v. Kwnera, sup].
Where accused are not charged with belonging to any gang, but with committing
or conspiring to commit a particular dacoity, evidence to show previous association
with approver for commission of theft and other discreditable acts is not admissible
to show the character of the accused, their bad character not being in itself a fact in
issue [ Wahiduddin v. R, A 1930 B 157).
Cross examination as to previous conviction.—It is permissible to cross-
examine in respect of convictions both of a similar kind and in sonic circumstances
where the offences may tend to show a disposition to commit offences of this sort.
Section 1(f) of the 1898 Act specifically states lie may be asked abdut other offences
and his had character if the provisos are satisfied. The purpose of the cross-
examination is to attack his creditworthiness as a witness and not to seek to show that
he has a disposition to commit the offence in question, though in some cases it may
have that incidental effect. It is not to be excluded for that reason alone.
 Previous bad character not relevam, e.vcep' in icph: Sec. 54 979

As to the nature of the questions that may properly put the court laid down the
followin g propositions in R v McLeod. (1994) 3 All ER 254, 267:
(1) The primary purpose of the cross-examination as to previous Convictions and
had character of theaccused is to show that lie is not worthy of belief. It is not, and
should not be, to show that he has a disposition to commit the type of offence with
which he is charged: see Vickers, Khan and Barsou,n. But the more fact that the
offences are of a similar type to that charged or because of their number and type
have the incidental effect of suggestin g- a tendency or disposition to Commit the
offence char g ed will not make them imporper : Powell, Given and Se/icy.
(2) It is undesirable that there should be prolonged or extensive cross-examination
in relation to previous offences. This is because it will divert the jury from the
Principle issues in the case, which is the guilt of the accused on the instant offence,
and not the details of earlier ones. Unless the earlier ones are admissible as similar
fact evidence, prosecuting counsel should not seek to probe or emphasise similarities
between the underlying facts of previous offences and the instant offence.
(3) Similarities of defences which have been rejected by juries on previous
occasions, for example false alibis or the defence that the incriminating substance has
been planted and whether or not the accused pleaded guilty or was disbelieved
having given evidence oil may be a legiti mate matter for questions. These
matters do not show a disposition to commit the offence in question but they are
clearly relevant to credibility.
(4) Underlying facts that show particularly bad character over and above the hare
facts of the case are not necessarily to he excluded. But the judge should he careful
to balance the gravity of the attack oil prosecution with the degree of prejudice to
the defendant which will result from the disclosure of the facts in question. Details of
sexual offences against children are likely to he regarded by the jury as particularly
prejudicial to an accused and may well he the reason why in R i Watts, (1983) 3 All
ER 101, the court thought the questions impermissible.
(5) Jffohjection is to he taken to a particular line of cross-examination about the
underlying facts of a previous offence, it should he taken as soon as it is apparent to
defence counsel that it is in danger of going too far. There is little point in taking it
subsequently, since it will not normally be a ground for dischareing the jury.
(6) While it is the duty of the judge to keep cross-examination within proper
hounds, if no objection is taken at the time it will he difficult thereafter to contend
that the judge has wrongly exercised his discretion. In any event, this court will not
interfere with the exercise of the judge's discretion save on well-established
principles.
(7) In every case where the accused has been cross-examination as to his character
and previous offences, the judge must in the S1]mmiflg up tell the jury that the
purpose of the questioning goes only to credit and they should not consider that it
shows a propensity to commit the offence they are considering.
Exception to the Rule That Evidence of Accused's Bad Character is
Inadmissible in Criminal Cases. [Admissibility of Previous Conduct or of
Similar Facts].—Evidence cannot be given for the prosecution to prove that the
defendant is of bad character or has a propensity to commit criminal acts of the same
nature as the offence charged merely for the purpose of leading to the conclusion that
the accused is a person likely from his criminal conduct or character to have
committed the offence for which lie is being tried [Makin v A-G, cited under s 14
980 Sec. 54 Chap. h/—O/ the Iheh'ranc (?J Jwt.v

au/C]. Oil the other liaiid, the iiieie fact that evidenceadduced tends to show the
commission of other crones does not render it inadmissible jut is relevant to an issue
before the jury, and it ntay he relevant if' it bears upon the 1ue.slionI whether the acts
alleged to constitute the crime charged were desi g ned or accidental or to rebut a
defence which would otherwise he open to the accused. It is not necessary that a
specific line of defence should he set up before evidence is tendered which would
overthrow it [(Noor Md v. R, 1949 AC 182 cited under s 14 ante); I lals 3rd Ed Vol 10
paras 818-20 and the cases cited in the footnote at p 442; Vol 15 paras 527-29 (sec
also ante s 14)].

It has been seen that evidence that the accused committed acts similar to that
which form the subject matter of the charge is admissible not to show that because he
has committed one crime, he would therefore he likely to commit another crime of
the same nature, but to prove intention, knowledge, good faith &c of the accused
with regard to the act or to rebut (even by anticipation) the defence of accident,
mistake &c and to show that the act charged formed part of a series of similar
occurrences. (sec ante notes to ss 14, 15). The above is all to the general
rule ihal evidence of had character of the prisoner is inadmissible. The object of the
admission of other transactions is only to show guilty knowledge, fraudulent intent,
malice, etc. It should be remembered that general evidence of bad character is not
admissible to show the accused's state of mind at the time of the commission of the
offence charged, or for the raising of a presumption or general inference from such
had character. But evidence that the accused has been previously convicted of the
same offence is admissible to show guilty knowledge or intention [R n flhlooniiya, 5
Born I.R 805, 821].

In cases of crime where it is thought desirable by the prosecution to give evidence

of previous conduct of similar character to the suggested crime, before the jury, the
intention of s 54 is not infringed and evidence pointing to directly similar conduct is
admissible. S 54 refers to specific evidence of bad characrer not confined to acts
similar to the crime which was being investigated, which may influence the jury on
the question of motive which is dealt with the same conviction. Such a motive must
he the same kind of motive that in all probability actuated the mind of the accused or
may have actuated his mind in committing the crime for which he is being tried
[Raik/ion i R, A 1936 C 469]. Though evidence of bad character is not admissible to
prove disposition to commit the crime, the prohibition does not in any way affect
evidence which is required to piuvc iouivc for tha crime or "ihich ic otherwise
relevant [Jagwa v. R, 93 IC 884: 5P 63: A 1926 P 232].
Evidence of Previous Conviction When May be Put in—Its Object.—.Rccords
of previous convictions should not he put in until the close of the trial Such
convictions can only be used in determining the measure of punishment should the
accused he convicted [R v. S/oboe, 3 WR Cr 38: Roshwn Dosed n R, 5 C 76$; see
also Th re Ramanjulu, 2 Weir 264: R n David, 6 Born LIZ 548: R t'. Ismail, 39 B 326].
Admission of evidence of previous conviction, before accused is called upon for
defence is not an illegality or irregularity [De/iri e R, 50 C 3671.
The imposing of sentence is a matter of discretion, it is not a rnattr of proof. That
is, it is a matter within the sphere not of evidence but of penology. S 54 is a part of
the law of evidence, not a part of the penal law: it regulates what isrelevant for the
purpose of proof at the enquiry or trial, not what is relevant for the purpose of
deciding whether a long or short sentence should be imposed JR v. Ismail, 39 B 326:
16 Born LR 934. Approved in I? c Nga Ba, A 1928 R 200: 6 R 391 FB where the
object and use of s 54 have been fully discussed and in Suban u R, i\ 1929 M 3061.
 Pre ijOtlV /10(1 c/Jar(J(ILr /uri ic/era/li cveepi iii i'p/v.
Sec. 54 9$ I
In Criminal proccedinis, irrcrs which tend to reduce the Seriousness of the otTcncc,
arid therclor allect tire sentence, rila y
he civen in evidence before a verdict is taken:
hut on tire other ljariil, faCts tendine to agravarc the sentence. Such as a previous
Conviction, can as a rule, only be proved after tile _jury has found the prisoner guilty
[Powell 9th Ed p 31 J.
After conviction moreover, it is customary for the prosecution
to call witnesses as to the prisoner's gcneral character and reputation [Or the
information of the court in dcternijnin the
sentence to he passed [see R i'. iVutra//, 73
JP 30: 1/i: IV/riteman, ibid, 102 and
5 u &lwa,d/s. ibid 286; Powell 9th ED P 135].
New Cr P Code. 1973 has made it ohli g
atorv for the courts to hear the accused on the
question of sentence [ride ss 235(2) and 248(2)[.

In a case the police resorted to the ingenious device of producing a photo of the
accused which bore the number he had on his jail clothes and which indirectly Went
to show his previous conviction. It was held that indirect evidence of
convi ction is as inadmissible as any direct statement (R r: previous
Dove,, 1925, 2 KB 799].
—Previous Conviction May be Relevant Otherwise Than Under This
Section.Evide i
ce of previous conviction may he given where the accused is liable
to enhanced punishment; see ss 2 II, 236, 248(3), 298 of the Cr P Code; s 75 I P
Code; Indian Articles of War (Act 5 of 1869) Art 117. It is also relevan t
14(2) Evidence Act (see i//us h); under s
s 43 Evidence Act, (i//us e); and under s 8 of the
Evidence Act as showing the motive for the fact in issue (see illuc f
Saroj o 5, 59 C 1361 ante. of s 43). See

fin England it is expressly provided that iii a prosecution for handling stolen
goods, evidence of previous conviction for theb or for handling stolen goods within
the last Five years may he admitted in order to prove guilty knowledge
Act Is 27(3) Theft
1968]: S 1(2) Official Secrct Act 1911 and s 15 Prevention of Crimes Act 1871
also provide for the admission of evidence of previous convictions. The Civil
Evidence Act 1968 (s 11) makes a (feel) inroad in this branch of the law by enacting
that tire conviction of a person for a criminal offence may, in subsequent civil
proceedings between a'nv parties, he accepted unless the contrary is proved by any
person seeking to refute it. It provides further that in defamation actions between any
parties such proof of a previous conviction is
conclusive evidence that that person
committed the offence (s 13). See also s 1 Previous Conviction Act, 1836, 6&7 Will
IV s Ill; s37 Coinage Offences Act, 1861, 24&25 Vie c 99].

Character of Prosecutor if Relevant.—The general character or reputation of the

complainant is as a rule immaterial in criminal eases and no evidence can be given of
it. But there is an exception
to this rule. Where a man is prosecuted for rape or an
attempt to ravish, it may he shown that the prosecutrix was generally of immoral
character [see s 155(4) post-S r: 7Esingto 0
1 Cox 48. See also R e Robins, 2 M& R
512 and other cases cited post,
under s 155(4). The immoral character of the accused
even if it is true is of little consequence since even whore is entitled to protect herself
from attacks of an intending rapist. [Slate
of Orissa o Nirupama Panda, 1989 Cri 1.1
621, 623: 1988-2 Orissa LR 486]. The prosecutor can however be cross-examined as
to credit like any other witness but his answers cannot be contradicted with a few
exceptions (s 153 post). "The admissibility on a
rape charge of the complainant's
character for chastity or uncirastj(v is generally conceded; and her
habits as a
Prostitute are usually regarded as equivalent to a general trait of character. The same
doctrine should apply to a charge of elrlice/ire,rrforp,.ostjtution
because the question
is whether the woman went of her own impulses or yielded to P
uasion. It should
also apply in rape where the woman is render the age of consent,ers
mere assault with i/lieui and in a charge of
to commit rape, or of indecent assault, or the like, not
982 Sec. 55 Chap. li—Of the Relevancy of lacts

bccausc it is logically relevani, but because a cerinin type Of leininitte cliarLicter

prc.disposcs to imaginary or raise charges of this sort (Wig s 62).
'The character of the prosecutor is not in general a matter relevant to the issue,
unless he is also a witncs and his credibility is impeached; but it scems it is open
to the defence to show, if there is any doubt as to the truth of the charge, that the
prosecutor in instituting the prosecution has been influenced by unworthy motives''
[Ilals 3rd Ed Vol 10 para 826], In charges of rape the proseculix may he cross-
examined as to other acts of immorality with the prisoner (see notes to s 155(4)
post),
In libel actions where the defendant is alleged to have injured plaintiff's
reputation, defendant is entitled to give general evidence of plaintiff's bad reputation
or to cross-examine him to the same end [Laidman u Hearsa y . 7 A 906 cited under s
l38—CoNT1A: Debbrata i Krishna, A 1954 P84].
In a trial oil of burglary, the prosecution relied on the evidence of three
police officers who stated that the accused had admitted his guilt to them. But the
accused denied any conversation with them. The prosecution was granted leave to
cross-examine him as to his previous convictions oil ground that the nature and
conduct of the defence were such as to involve imputations oil character of the
witnesses for the prosecution. The court of Appeal upheld the permission. By
putting the truth of the police witnesses in issue, the accused had exposed himself
to the risk of being cross-examined as to his previous convictions [R v. Britzman; I?
v. Hall, (1983) 1 All ER 369 CA].

S. 55. Character as affecting damages.—In civil cases the fact that the
character of any person is such as to affect the amount of damages which
he ought to receive, is relevant.

Explanation—In sections 52, 53, 54 and 55, the word "character" inclu-
des both reputation and disposition; hut, '[except as provided in section
54,] evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition
were shown.

SYNOPSis
Page Page
Principle and Scope 983 Section Based on Dissentient
Judgments in 1? v. Rowian 987
Character Evidence in Questions
of Damages. [Defamation, Evidence of Reputation
Seduction, Breach of or Disposition should
Promise of Marriage, ctc.1 983 be General 989
Evidence of Good Character Kind of Character 990
in Aggravation of Damages 985 Reputation to be distin-
Explanation- quished From Rumour
"Character-Includes Both Reputation or Hearsay 991
and Disposition 985

1. Inserted by s 7 oft E Act (1872) Am Act. 3 of 1891.

 Character as a/J'ectuig damages. Sec. 55 983
COMMENTARY
Principle and Scope—It has been seen that under the fifty-second section, the
character of a party is irrelevant in civil cases, unless character is of the substance of
thc issue. In suits in which damages are claimed, the character of the person claiming
damages sometimes becomes very material in assessing the amount of damages to be
awarded, for in defamation and other cases damages depend oil character of the
plaintiff. In such cases damages are always ill and as character affects the
question o[damages by either increasing or reducing the amount, it becomes relevant
(sec also s 12 ante). Character as affecting damages in such suits does not properly
belong to the law of Evidence, but to the law of Damages, because character or
reputation evidence is here admitted not for rendering probable or improbable the
conduct or act attributed, but for something else. The object is to ascertain the
amount of damages by an inquiry into reputation. Character, however, is not relevant
in every case of tort claiming dama ges, eg the amount of damages claimed for being
bitten by a dog or for an injury caused by a railway accident, does not depend on the
character of the plaintiff. The section makes relevant only the character of the person
claiming the damages and not of the defendant, although the character of the latter
may also sometimes he relevant for determining the amount of damages. Thus under
the English law, in an action for damages oil of adultery or for seduction of
wife or daughter, evidence of general bad character of the wife or daughter or of
particular acts of immorality or indecorum is admissible in mitigation of damages
[Vcr.'y v Watkins, 7 C&P 308; Tay s. 356]. In such cases what is really sought is
compensation for the pain which the plaintiff had to suffer for disgracing his family
and ruining his domestic happiness and so the damages should be commensurate
with the pain which will vary according as the character of the wife or daughter has
been previously unblemished or profligate Such evidence although not admissible
under this section is certainly admissible under other sections of the Act (see s 12) as
damages being a fact in issue, evidence of bad character may diminish its amount.
On it claim of damages from an alleged adulteror, the co-respondent may prove, in
mitigation of damages, that the petitioner has been guilty of notorious infidelity, has
turned his wife out of doors; has refused to maintain her; or has otherwise been
guilty of dissolute conduct; for, in such cases, a man call complain of the
loss of that society upon which he himself placed so little value. In action for breach
of promise of marriage a similar rule prevails ['ray s. 358]. There may be cases in
which the plaintiff's character is directly in question. A mail bad character cannot
claim the same amount of damages as a man of good reputation.
In civil cases, good character being presumed, may not be proved in aggravation
of damages; but the party attacked may repel general evidence of had character by
general evidence of good character, or meet evidence of specific acts of impropriety
by disproof of such acts, though not by evidence of general good character [Jones c.
James, 18 LT 243; Narracotr v. N, 33 UP & M 611. Bad character is admissible in
chief in mitigation of damages in four cases, provided that it would not, if pleaded,
amount to a justification, viz (i) Defamation; (ii) Breach of promise; (iii) Seduction;
(iv) Petition for damages for adultery [Phip 11th Ed p 237; Tay ss 356-63].
IRefTay ss 355-63; Powell, 91h Edpp 136, 137; Step/i Art 57; iV!ayne aim Damages
7th Ed title 'Character'; Odgers Liber and Slander,- Phip 11th Ed p 237; R o
Rowion, 34 LJMC 57; Wig ss 52-74, 1608-15].
Character Evidence in Questions of Damages. [Defamation, Seduction,
Breach of Promise of Marriage, etc ] .—As to defamation the subject was fully
considered in Scott i Sampson, 51 UQB 380 and CAVE, J, pointed out that the
 984 Sec. 55 Chop. II —Oft/u' Rcici'ofu % 00 'aci.v

(IucstioIi fell into three classes. (1) Evidence of reputation; (2) Evidence al fliinours
Of' and suspicIons 10 the same effect as the defaniaiory flatter complained 0!; and (3)
Evidence of particu tar facts tending to show the character arid disposition oi the
plaintiff. Time court decided that evidence of classes (2) antI (3) is not adnussible, and
as to these the law may be considered to be settled. As to reputation, CAVE J, said
...."I-Ic complains of an injury to his reputation and seeks to recover damages
for that injur y ; and it seems most material that the jury who have to award those
damages should know, if the fact is so, that he is a man of no reputation. 'to deny
this would', as was observed by Starkic on Evidence 'be to decide that a man of We
worst character is entitled to the same measure of damages with one of unsullied and
unblemished reputation. A reputed thief would be placed on the same footing with
the most honourabic merchant, a virtuous woman with the most abandoned prosti-
tute. To enable the jury to estimate the probable quantum of injury sustained, a
knowledge of the party's previous character is not only material but seems to he
absolutely essential' [this passage from Starkie, LORD COLERIDGE CJ, read to the
jury with approval in Wood v. Co y, 1888, 4 TR 6531 ..........On principle, therefore, it
would seem that general evidence of reputation should be admitted, and on turning to
the authorities it would he found that it has been admitted in a great majority of those
cases, and that its admission has been approved by a great majority of the judges who
have expressed an opinion on the subject" [Tay s 355A]. [For a summary of the law
on the subject see Tay ss 355D, 355E].

In actions for defamation therefore plaintiff's had character, i.e., poor reputation is
admissible in mitigation of damages and evidence of his previous conviction is
admissible as being cogent evidence that he had a bad general reputation, provided
that the connections are in the relevant sector of the plaintiff's life and have taken
place recently enough to affect his current reputation. [Goods' u Odhains Press Ltd,
1966 3 All ER 369]. As Wigmorc says "the Focal of the argument is that a person
should not he paid for the loss of that which he never had".
In actions for defamation, evidence of the plaintiff's general good character is held
irrelevant even though a justification is pleaded [Cornwall c Richardson, 1825 Ry & M
305]. \Vhcre the libel charged the plaintiff with incompetency as a surveyor, he was not
allowed to travel out of the record by showing that he had at other times acted
competently in that capacity [Brine n Bazalgetre, 3 Ex 692]. In an action for seduction,
evidence of the bad character of the person seduced is admitted in reduction of damages,
but [he evidence mist refer to a time prior to the seduction [Vcrry 'c Vitkins, 7 C & P
3081. It is a defence to an action for breach of pIotiu.c Of marriage that the p laintiff at the
date of the promise was a woman of general immoral character, unless the defendant was
then aware of this. So, proof, that the plaintiff, after the promise, became unchaste will
release the defendant [Jones v James, 18 LT 243; Powell, 9th Ed 1361.
p
In actions of criminal connection, the defendant could adduce evidence of the wife's
bad character for chastity, and even of particular acts of adultery committed by her
before her intercourse with him; for by brin g ing the action, the husband put her general
behaviour in issue. So in seduction, the defendant may show the previous had character
of the person seduced. But even in such cases it has been held that the plaintiff cannot
give evidence of the good character of the wife or daughter until evidence has been
offered oil other side to impeach it [Bamfield v Massey , I Camp 460]; and if such
evidence he not general, but go only to a specific instance, it has hee'n ruled that the
plaintiff cannot, in reply, give evidence of general character but must he restricted to
disproof of the specific instance. So, in an action for slander imputing dishonesty to the
plaintiff, he cannot adduce evidence in the first instance of good character [Ros NP
18th Ed pp. 86, 87]. [As to seduction, see Tay s356 ctuoted ante,
p. 553].
 Ic, a//c iwr (hill roge.v.
Sec.

Iii libel cases in Enland, general evidence of ulaintrfLs bird character is controlled
by tire P rov ision of' r 37 of Or 36, R.S .C.
Where the eist of the action was damage to the plaintiff's character, tire defendants
were entitled to show that the p l aintiff was a person Whose reputation would not he
damaged by a particular libel in question. in rflitr(2ation of damages the dehndants
can g ive evidence of the plaintiff's bird character', hut not cvidencc of rumours and
I
Suspicions of had character Eirglislrman c I.ajpat Rai, 37 C 760 : 14 CWN 71 3
(Scott 0 5011r/)swl, (I,rie, i'ckl to)]. In the case rei'errcd to it was held that in an action
for libel, cv idenec of plaintiff's had character is admissible in mitigation of damages
bLI1
evidence of rumours before the publication of the libel that plaintiff had
committed the offences charged or that he was in the habit of committing offences of
a like nature is inadmissible. In Scott n Sampson, airie, tile innuendo char g ed by the
statement of claim Was that the libel complained of' meant that plaintiff had systema-
ticall y abused his position as a dramatic critic and a journalist for tile poirpoSe of
extorting money, and a joistihcation was pleaded, so thai plaintiff's general character
in this regard was in issue, and not merely a question whether he had been guilt y of a
particular' act of misconduct [Tay S 35513].
In action for breach of promise the had character of the plaintiff is clearly in issue.
If the plaintiff has been guilt y of' criminal intcr'Course with another, and such fact is
unknown to the defendant at tile time of the contract, he may prove it as a defence.
The same is true if without his fault she becomes unchaste after the promise and if
without the fault of the defendant, the plaintiff by her subsequent indelicate conduct
injures her reputation, this may he shown in mitigation of dama g es. So if the plaintiff
prior to the promise was a person of poor character, the fact is relevant in mitigation
of dama g es. Rut if she has been seduced first by the defendant tinder profuse of'
marria g e, he cannot he heard to prove her bad character [Jones, 3rd Ed s, 151]. In
actions for seduction and criminal conversion, the character of tile woman seduced is
in issue. In such actions one element of dama g e is the wounded sensibility of the
injured part, and another is the loss of societ y of tile (laughter or wife. Hence tile
dama g e is manifestly less if the daughter or wife was a person of disparaged fame
before the wrong. In such cases evidence is admissible not only of general had
character for chastity, hut of specific aCtS of intercourse with other men, even though
such former acts of unchastity were not known to the defendant or the public. In
action of this kind it has been held that the bad character of the husband or father,
bringing the action is relevantto tile issue when it affects him in his marital relations
or in the character in which he sues. But in other cases in actions for seduction
brought by the father, such evidence has been rejected [Jones, 31d Ed S. 152J.
Evidence of Good Character in Aggravation of Damages.--A plaintiff cannot
give evidence of general good character in aLgravation of dama g es, unless counter-
proof has been first offered by the defendant, for', until tile contrary appear, the
presumption of law is already in his favour, in an action for seduction, where evi-
dence was produced for the defence to prove that the girl had previously had a child
by another man, LORD ELLENt3OROL'Gtt would not allow 'a qlte.stion to he asked
respecting her general good character for chastity, but restricted the plaintiff to the
proof that the specific charge made by tile defendant was false (BanrJìelc/ c Massey , I
Camp 460 Tay s 3621,
Explana tion—"Character" Includes Both Reputation and Disposition.—
According to the Lvplairaiioii
the term "character" in ss 52, 53, 54 and 55 includes
both reputation and disposition
In England however, according to the common law it
includes reputation only though in tire special mISC of tile Evidence Act 1898 it seems
986 Sec. 55 Chap. Il— Of tire Relevanc y of lads

to accommodate h()tll concepts [per LORI) SIMON LC, Sthiaiul V. [) P P, 1944, 2 All
FR 13, 171. The term ''character', sa y a Taylor as here used is not—as Some able
judges have considered it lo be—synonymous with 'disposition'', hut it sriiil)lv
means "reputation", or the general credit which a man has obtained in public
opinion. A wilness therefore, who is called to speak to character—unlike a master
who is asked for the character of his servant, cannot give the result of his personal
experience and observation, or express his own opinion but in strict law, lie must
confine himself to evidence of mere general repute [Tay s. 350]. "Character and
reputation are as distinct as arc destination and journey. Nevertheless the occasional
use of the single term 'character' for both actual disposition and reputation of it, and
the circumstance that the reputation is the most usual way of evidencing this actual
disposition has sometimes led even careful judges to define reputation and actual
disposition, for all purposes of evidence, as the same, and to intimate that reputation
alone is the thing involved" [Wig. s. 52].
"Character" as is commonly understood is, distinct from reputation. It may mean
actual moral disposition [Malindi v. 1?, 1966, 3 All ER 285]. Strictly speaking,
character means actual disposition, ic., the inherent qualities of a person or the sum
of his traits and not the ''reputation" which a mail obtained in the estimation of
others. According to Webster "character" means "the peculiar qualities impressed by
nature or by habit on the person, which distinguish him from others; these constitute
his real character. The qualities which he is supposed to possess constitute his
estimated- character or reputation" (Webster's Dictionary). DURFEE, C.J., in State V.
Wilson, 1885, 15 RI 180 : I AtI 415 (cited Wig s. 1608) said: "Doubtless there is a
distinction observed by careful writers between 'character' and 'reputation';
'character' (where the distinction is observed) signifying the reality, and 'reputation',
merely what is reported, or understood from report, to be the reality, about a person
or thing." What, the law admits as character evidence is not real character, ie.,
particular traits but the reputed character, ie, the opinion formed by others of a
person, which is known as reputation. Reputation, therefore, is only one of several
modes of proving character, though commonly it is said that 'character' and
'reputation' are the same. In Buckhin n 5, 1851, 20 Oh 23, CALDWELL, J, said:-
... ..... .a man's character may really he good when his reputation is bad, arid,
on the other hand, his reputation may be good when his character is bad. But, as
we have before intimated, the terms when used in connection with this subject
are gencral t y used in contradiction to this distinction—the term 'general
character' being used in legal significance, as it is frcqucatiy used in common
parlance, to express the opinion that has generally obtained of a person's
characier, the estimate the community generally has formed of it. When you ask
a witness, then, in this sense of the term, what a man's general character is for
truth and veracity, he is called on to answer as to what opinion is generally
entertained and expressed of him by those acquainted with him."
It has been held in England that character means only general reputation and it is
this evidence which is admissible and not disposition. So reputation is character. This
evidence of reputation is a form of hearsay and is admitted on the ground of
necessity. Under the Act character includes both reputation and disposition.
The accused was charged with five counts of obtaining property by deception. He
pleaded his good character. The prosecution cross-examined the appellant about a
recent civil action against him in the county court, the purpose being to show that the
appellant was of dishonest disposition. The appellant was convicted on all five counts
and appealed. It was held that bad chractcr encompassed both reputatiun and
 Character CIS affecting dCl/1U9,'('S. Sec. 55 987

disposition. The court said that the following propositions applied (I) any cross-
CXaminahiofl of an accused dcsiene.d to show that he wits unworth y of belief, and
which did not arise horn cvidcnce relating to the indictment, before the jury, related
to character in the sense of disposition and so fell with in the prohibition, (2) if such
leave was given, both the jud g e and the prosecutor had a discretion to limit the use
which was to bc made of it, and a duty to use that discretion to avoid unfair sugges-
tions of propensity or prolonged inquiry into issues of only rnirginal relevance. The
appeal was allowed [R n Carter, (1996) JP 207 (CA)].
Section Based on Dissentient ,Judgments in R v. Rowton.—The leading English
case is that of R n Roieton, (1 885) 34 LJMC 57, according to which character is
confined to general reputation only. In that case [he accused who was tried for
indecent assault gave evidence of good moral character upon which the prosecution
by way of rebuttal gave evidence of a person who said that he had no knowledge of
the opinion of the neighbourhood, but his own opinion and that of his brothers who
were pupils of the defendant was that the accused was "a man capable of the grossest
indecency and the most flagrant immorality." It was held by the majority of the
judges (eleven) including COCKBURN, CJ, (ER -LE, CJ, and WILLES, 3, dissenting) that
the opinion of a witness based on his personal experience of the disposition of the
Prisoner is inadmissible. This case has been much criticised b y S]R JAMES STEPHEN,
who said:—

"One consequence of the view taken is that a witness may with perfect truth
swear that a man who to his knowledge has been a receiver of stolen goods for
years has an excellent character for honesty, if he has had the good luck to
conceal his crime from his neighbours. It is the essence of successful hypocrisy
to combine a good reputation with a bad disposition. The case is seldom, if ever
acted oil practice. The question always put to the \VitflesS to character is:
"What is the prisoner's character for honesty, morality or humanity" as the case
ma y he. nor is the witness ever warned that he is to confine the evidence to the
prisoner's reputanon. It would be no easy matter to make the common run of
witnesses understand the distinction" (Steph. Dig. note xxv, p. 179).
Though according to R i Rowton, ante, character is confined to 'reputation' only
and not 'disposition,' the rule, as Taylor, observes, "appears to rest rather on authority
than oil and would probably have been rcjecied long ago by the courts, had it
not been for two causes. First, the rule, in practice, is seldom strictly enforced; and,
next, it has to a certain extent been modified by the judges" (Tay s 350; see also Phip
11th Ed pp 227-30; Wig s 56). Thus, in R : Davidson, 31 How St Tr 99. LORD
ELLENBOROUGII held that the personal experience of a witness, or his opinion
founded upon his personal experience was admissible.
STEPHEN however, in including ' reputation' and ' disposition ' within the definition
of character in this section, has made a deliberate departure from the law of England.
There is no doubt that the inclusion of 'disposition' also within 'character' is in
consonance with practice and reason as the distinction between 'reputation' and
'disposition' is seldom if ever adhered to, It is an improvement and has simplified
matters. A man with a very good reputation may have a very bad disposition, and
both go to make up real character. On the other hand, a mart may have a good
disposition without any general character in the sense of reputation. If a man's
reputation or the general credit he has among the public or a community is only
Laken account of, his real character, ie the particular traits in his disposition which are
permanent and settled, is withheld and it is these traits which are of help in forming
an estimate of his true character. The inclusion of 'disposition' in the definition is
 9X Sec. 55 Chap., /1— 00/ic I/c/ct'u,icv of /}r
tlierclorc bascd on the reasons given b y FRt.n. CJ. and \VILHS, J, in their dissent1
iudginents in R r: 1/o'ion, Sup/a. ERLE C.J. in the course of his jiidnnicnt said:--

"What is the principle on which evidence of character is admitted'? it seems to

nc that such evidence is adnussiblc for the put] OSC of showing the disposition of
any patty accused, and basing the reot a presumption that he did not commit the
CliniC
imputed to him. Disposition cannot he ascertained directly; it is only to he
ascertained by the opinion formed concerning the man, which must he found
either on personal experience or on the expression of opinion by others; whose
Opinion again, ought to he founded on their personal experience. The question
between us is whether thc court is at liberty to receive a statement of the
disposition of a prisoner, founded on the personal experience of the witness, who
attempts to give evidence and state that estimate which lon g personal knowledge
of an acquaintance with the prisoner has enabled liin to form. I think that each
source of evidence is inadmissible. You may give in evidence the general tumour
prevalent in the prisoner's neighbourhood, and according to my experience, you
may have also the personaljud g ment of [hose who are capable of forming a more
real, substantial guiding opinion than that which is to he gathered from general
rumour. I have never seen a witness examined to character without an enquiry
bein g made into his personal means of knowledge of the character ..........Suppose
a witness to character were to say—'This man has been in my employ for twenty
years, I have had experience of his character; but I have never heard a human
being express an opinion of him in my life. For my own part, I have always
regarded him with the highest esteem and respect, and have had abundant
experience that lie is one of the worthiest man in the world.' The principle the
1.01w JUSTICE (CO( -KIJURN, CJ) has laid down, would exclude his evidence; and
that is the point, where I differ from him. To my mind personal experience gi vs
cogency to the evidence; whereas such a statement as 'I have heard some person
speak well of him' or 'I have heard g eneral report in favour of the prisoner, has a
very slight effect in comparison."
In the same case WILutS, J, said:

"I apprehend that the man's disposition is the principal matter to he enquired
into and that his reputation is merely accessory, and admissible only as evidence
Of disposition ..............The judgment of the particular witness, is superior in
quality and value to mere rumour. Numerous cases may he pitt in which a man
may have no general character--in the sense of any reptitation or rumour about
him—at all, and yet may have a good disposition. bor instance, lie iiuy be af a
shy, retiring disposition and known only to a few; or again, he may he a person
of [lie vilest character and disposition, and yet only his intimates may he able to
testify that this is the ease. One man may deserve that character (reputation)
without having acquired it, while another man may have acquired without
deserving it. In such case the value of the judgment of a man's intimates upon
his character becomes manifest . In ordinary life, when we want to know the
character of a servant, we apply to his master. A servant may he known to none
but members of his master's family; SO the character of a child is known only to
his parents and teachers, and the character of a man of business to those with
whom he deals .......According to [lie experience of mankind, one would
ordinarily rely rather on the information and judgment of a man's intimates than
on general report, and why not in a court of law'?"
A witness to reputation may however testify to negative as well as
affirmative
evidence on the subject, eg, that lie has never heard anything again-,,t a person. As
 C/usracic'r as (I "cling cl/P/a l,'C.V. Sec. 55 91)

lRij, CJ, said in 1? c /ionioir, a/lie: 'The best character is that which is least taUd
of," And COCKBURN. CJ, in the same case said: "Neativc evidence, such as "I
heard anyl'int aqainst the character of the man' is the most coocnt evidence of a
mn a's g ood character and reputation, because d nhiitS character is not talked about
iil there is Sonic faub to be found with. It is thc be s t evidence of his character- that he
is riot talked about at all." In this connection \Vigrnore says: "But it is obvious that
this form is no su flicient indication for a reputation of had character. Moreover, So
far as the answer 'I never heard his character discussed' implies that the witness has
not had opportunities for learning what the reputation \vas, lie is not a qualified
witness to reputation' ]Wis s 1614L].
Reputation includes both character and disposition and the disposition is not the
less proven because it appears on the face of the facts deposed to by the plaintiff, or is
a proper inference from dose facts [Engli,c/miai, v. Lczjpal Rai, 37 C 760 : 14 CWN
713].
Evidence of Reputation or Disposition should be General-The Explanation
makes it clear that evidence may he given onl y of general repntation and general
disposition arid not of particular facts. Nor can a \vitreSS express his owrr Opinion
based on personal experience and observation. The opinion must be as to the general
reputation prevailing among the comri-iunity as a whole in the neighbourhood where
the person whose character is in question resides [; see note-.s to S 53, ante; Tav s 351
quoted awe]. The witness's knowledge of reputation should therefore he based on his
residence in the place or in its neighbourhood arid not on riicre inquiry by a visil to
the place where the person whose reputation is in question resides. "That cannot be
evidence . ....... If this was allowed, when it was known that a witness was likel y to he
-called, it would he possible for the opposite part y to send round to persons who had
prejudices against him and from thence to lorni an opinion which was afterwards to
he told in court to destroy his credit" [KENYON, CJ, in Mawson n Hearisink, 4 Es1)
1021.
Only general evidence of character or reputation can he given arid riot, for instance
evidence of a particular conviction [Samarth/nal n II, A 1932 N 158]. A man's
general reputation is the rcputation which lie bears in the place in which he lives
amongst all townsmen. If it is proved that a man who lives in a particular place is
looked upon by his fellow-townsmen, whether they happen to know him or not, as a
than of good repute, that is strong evidence that he is a man of good character. On the
other hand, if the state of' things is that the body of his fellow-townsmen, who know
him, look upon him as a dange rous maui, and a man of bad habits, that is strong
evidence that he is a man of bad character; [see Rai Isri v. R, 23 C 621]. Under the
Act, unlike in England, evidence can be given both of general character and general
disposition. Disposition Means the inherent qualities of a person reputation means
the general credit of the person amongst the public lBhagwan Sn'arip & Ors o 5, A
1965 SC 682]. S 55 allows evidence of general reputation and of general disposition,
bui not ol ticu far lads or traits. The principles of law in a criminal prosecution for
defamation are not different in this matter. In either case loss of reputation is the
foundation for an action or prosecution [Hail /iajwi n S, A 1961 Pu 215],
In the case of 'disposition,' however, the opinion of a witness founded on personal
experience as well as the expression of opinion by others is receivable; (see the
observations of ER-E, CJ arid WELLES, J, in R o Rowion, ante). A
cogent source of
knowledge of general disposition of a man is our personal experience and
observation. Moreover, when a witness .speaks to the general reput:ition or
disposition of a person, his personal experience naturally becomes the subject of
990 Sec. 55 Chap. I[--(')f the Rehi'uncv

inquiry when he is asked in cross examination as to his FOCaTIS of knowledc of the

Character. "11 is commonly said that the reputation must be general: that is the
coniniuniiy as a whole must he agreed in their opinion, in order that it may he
rcuardcd as a reputation. It the estimates vary, and public opinion has not reached the
stage of definite harmony, the opinion cannot yet he treated as sufficiently
trustworthy. Oil other hand, it must he impossible to exact unanimity; for there
are always dissenters. To define precisely that quality of public opinion thus
commonly described as 'general' is therefore a difficult thing.........There is oil
subject often an attempt at nicety of phrase which amounts in effect to mere
quibbling, because the witness ordinarily will not appreciate the discriminations;
such requirements of definition should be avoided as unprofitable" [Wig s. 1612].
CAMPBELL, J, in Pickens u. State, 61 Miss 566 : "General reputation consists in
what is generally thought of one by those among whom he resides and with whom lie
is chiefly conversant. 'Common opinion'; 'that in which there is general
concurrence'; 'the prevailing opinion in that circle where one's character is best
known'; what is generally said by those among whom he associates and by whom
he is known'; 'common report among, those who have the best opportunity of judging
of the habits and integrity', 'common reputation among his neighbours and
acquaintances',—arc so many forms of expression by which an effort has been made
to define wherein consists general reputation" (cited Wig. s 1612).
"The reputation must involve the general opinion, not a partial or fragmentary one.
Nevertheless that opinion may exist as a general one, entertained by the community
as a whole, althou g h no utterance by the general mass of its members, or even b y a
majority of them, has been made. In oilier words, a general reputation may by
inference be believed to exist, although the utterances actually heard by the witnesses
and used as the basis of his inference, may be and usually are those of a
representative minority only" [Wig s 1613]. "He may have heard a sufficient number
express themselves to he willing to say lie knows the general concurrence in one
view of a number great enough to he regarded as a fair index to the community. One
may know the general reputation of Sargent S Prentiss as a matchless orator,
although lie has heard a small proportion of those who felt the thrill of unrivalled
eloquence say what they thought of him [per CAMPBELL, CJ, in Pickens' v. S, 61
Miss 567]. The general reputation must prevail in the neighbourhood where the
person resides.
Thus, BRACE, J, in Waddington i'. Hulleti, 92 Mo 533 said "(The witness) must be
able to state what is generally said of the person by those among whom he dwells or
with whom he is chiefly conversant,—not by those among or with whom he may
have sojourned for a brief period, and who have had neither time nor opportunity to
test his conduct, acts or declarations, or to form a correct estimate of either. A man's
character is to be judged by the general tenor and current of his life, and not by a
mere episode in it."
Kind of Character.—Evidence of reputation or disposition must he con fined to
particular traits which the charge is concerned about [R r: Sivendsen, 14 Flow St Tr
559, 596]. Thus, it would be useless to offer evidence of a prisoner's reputation for
honesty oil charge of cruelty, or of his mild disposition oil charge of theft.
Reputation for honesty would be relevant on a charge of theft: a merciful disposition
oil charge of cruelty. Where evidence of character is offered, it must be confined to
general character; evidence of particular acts, eg, of honesty, or benevolence, or the
like, cannot be received [J'.4nsen i'. Stuart, I TR 754; Norton, p 234]. But a
disposition of a man may be made up of many traits, some good and some bad, and
(:/Icil(;c•,cr as u f/ecIuli,' iluiiurgc.c. Sec. 55 991

only evidence in regard to a particular trait with which the \vitness is familiar world
he of sonic use [/iliaguwi .numn) i.i Oiv i. S, iij.'j.
Reputation to be I)istiiiguishecl From Rumour or Iiearsay.—'Repiitat ion,
being the cot nunity's opinion, is distinguished from mere rumour in two respects.
On the one hand, repu tationimplies the dci itlitC md fural lormation 01 opinion by the
Coutniunity; while rumour implies merely a report that is not yet finally credited. On
the other hand, a tumour is usually thou g ht of as siunifin g a particular act or
Occrrence,
u while a r eputon
ati is predicted upon a general trait of character, a man's
reputation, for example, may declare him honest, and y et today a rumour may have
circulated that this reputed honest man has defaulted yesterda y in his accounts" [Wig
s 1611].
CAVE, J, in Scoit ii Sampson, LR S QBD 491: ''It would seem that such
evidence (or rumour and suspicions), is not admissible, as only indirectly
tendin g to affect the plaintiff's reputation. If - these rumours and suspicions have
in fact affected the plaintiff's reputation, that may he proved by general
evidence of reputation. If they have not affected it. they are not relevant to the
issue. To admit evidence of rumours and suspicions is to give any one who
knows nothing whatever of the plaintiff, or who may even have a grudge against
hint, an opportunity of spreading, throu g h the means of the publicit y attending
judicial proceedings, what he may have picked from the most disreputable
sources and what no man of sense who knows the plaintiff's character would for
a moment believe in."
If the evidence is of those persons who are livin g in the locality where the
reputation is prevailing and people talk of their beliefs about him, it is admissible.
But it the evidence is of a man who does not know of the reputation himself but
heard it from others, it will be hearsay and inadmissible [I'7rangi n R, A 1933 1' 189
143 IC 687; relied on in Bci.ro Rai u R, A 194$ p 841. 'Character'. 'Reputation' and
'Rumour' explained 'IIarbhaja,r v. S. A 1961 Pu 215].